by Michael Biggs, Department of Sociology, University of Oxford.
Keira Bell’s and Mrs A’s claim against the Tavistock and Portman NHS Foundation Trust led to a momentous judgment on 1 December 2020. The judgment places significant constraints on the use of GnRHa (Gonadotropin-Releasing Hormone agonist) to suppress puberty in children suffering from gender dysphoria, as adopted by the Tavistock’s Gender Identity Development Service (GIDS) in 2011.
1. Puberty suppression is an experimental treatment
The judgment is unequivocal that puberty suppression for gender dysphoria is an experiment: ‘it is right to call the treatment experimental or innovative in the sense that there are currently limited studies/evidence of the efficacy or long-term effects of the treatment’ (para 148). This finding should finally dispose of the claim—frequently made by the GIDS—that the treatment is not experimental because GnRHa drugs are licensed for precocious puberty. Treating a child whose puberty arrives abnormally early (under the age of 8) so that he or she can experience puberty at a normal age cannot be compared to stopping puberty at the normal age so that a child can proceed to cross-sex hormones at the age of 16.
Puberty suppression is an experiment whose aims are ambiguous. The judgment highlights the ‘lack of clarity over the purpose of the treatment: in particular, whether it provides a “pause to think” in a “hormone neutral” state or is a treatment to limit the effects of puberty, and thus the need for greater surgical and chemical intervention later’ (para 134).
2. GIDS fails to collect basic data and to report outcomes
At several points the judges express surprise at the failure of the GIDS to provide data to the court. The GIDS could not provide comprehensive figures on the ages at which children have been prescribed GnRHa (para 28). It had no information on how many were diagnosed with Autism Spectrum Disorder (para 35). It could not say how many proceeded from GnRHa to cross-sex hormones (paras 59). This failure—or perhaps reluctance—to collect basic data has been highlighted by Transgender Trend.
During the proceedings, the judges asked the GIDS to produce results from their initial experiment with puberty blockers on 44 children from 2011 to 2014. This initial experiment had been conveniently forgotten by GIDS—and even by the Principal Investigator, Professor Russell Viner—until it was brought to light by Transgender Trend in March 2019. We called then for the outcomes of the treatment on all 44 subjects to be published immediately.
When the judges asked for these results during the hearing, the GIDS refused. As the judges explain, ‘we note that though this research study was commenced some 9 years ago, at the time of the hearing before us the results of this research had yet to be published. Dr Carmichael says in her witness statement dated 2 February 2020 that a paper is now being finalised for publication. At the hearing we were told that that this paper had been submitted for peer-review but that Professor Viner, one of the authors of it, had yet to respond to issues raised by the reviewers, as he has been otherwise engaged in working on issues relating to the coronavirus pandemic’ (para 24).
Using the pandemic as an excuse is not plausible given that Professor Viner and Dr Carmichael promised (in their protocol given ethical approval in 2010) to provide outcomes after the patients had been on GnRHa for two years, which would have been in 2016. (The only peer-reviewed publication on the experiment’s outcomes for psychological functioning and gender dysphoria is my letter in Archives of Sexual Behavior.) If the longer-term outcomes of the 2011-14 experiment were positive, why would Dr Carmichael and Professor Viner refuse to produce this evidence for the judges?
The failure to publish cannot be blamed on lack of resources. In 2019 the GIDS won a £1.3 million grant to research outcomes for children treated for gender dysphoria.
3. Puberty suppression inexorably leads to cross-sex hormones
The judgment should finally dispose of the illusion that puberty suppression simply provides a “breathing space” or pushes a “pause” button (as Dr Carmichael claimed on BBC Children’s Television in 2014). As I have said, it is more like pressing fast forward into cross-sex hormones and ultimately surgery. The Health Research Authority has acknowledged that the rationale for puberty suppression is lifelong physical transition. The judges emphasized that ‘the vast majority of children who take PBs [puberty blockers] move on to take cross-sex hormones, that Stages 1 and 2 are two stages of one clinical pathway and once on that pathway it is extremely rare for a child to get off it’ (para 136).
Therefore for a child to actually consent, he or she ‘would have to understand, retain and weigh up’ the following information: ‘(i) the immediate consequences of the treatment in physical and psychological terms; (ii) the fact that the vast majority of patients taking PBs go on to CSH [cross-sex hormones] and therefore that s/he is on a pathway to much greater medical interventions; (iii) the relationship between taking CSH and subsequent surgery, with the implications of such surgery; (iv) the fact that CSH may well lead to a loss of fertility; (v) the impact of CSH on sexual function; (vi) the impact that taking this step on this treatment pathway may have on future and life-long relationships; (vii) the unknown physical consequences of taking PBs; and (viii) the fact that the evidence base for this treatment is as yet highly uncertain’ (para 138).
4. Can children consent to sterility and potentially losing sexual function?
The judges remarked on the curious fact that the GIDS could not recall any child ever being considered to lack “Gillick competence” to consent to GnRHa drugs (para 44). Gillick competence requires the child to have ‘sufficient maturity and intelligence to understand the nature and implications of the proposed treatment’ (para 105). Even when treating children as young as 10, the GIDS invariably assessed them as having the ability to consent, ‘on the assumption that if they give enough information and discuss it sufficiently often with the children, they will be able to achieve Gillick competency’. The judges concluded laconically, ‘we do not think that this assumption is correct’ (para 150).
One of the GIDS’ witnesses, “J” embarked on puberty suppression at the age of 12. According to J’s recollection of the consent process: “We discussed sex and I told them the idea of it disgusted me. I knew I would be unable to consider having a sexual relationship as an adult with my body so wrongly formed’ (para 86). Such testimony heightened the judges’ concerns about consent. ‘Some of the children and young people who have been treated at GIDS say in their witness statements that the thought of sex disgusted them, or they did not really think about fertility. These normal reactions do not detract from the difficulties surrounding consent and treatment with PBs. That adolescents find it difficult to contemplate or comprehend what their life will be like as adults and that they do not always consider the longer-term consequences of their actions is perhaps a statement of the obvious.’ (para 141).
Remarkably little is known about the effect of puberty suppression on the development of sexual desire and the capacity to orgasm. This was revealed in the proceedings, when the judges asked for evidence that the development of sexuality was unimpaired by GnRHa. The question stumped the barrister for University College London Hospitals NHS Foundation Trust, which prescribes the drugs on behalf of the GIDS. One clue is that GnRHa is prescribed to chemically castrate sex offenders in Broadmoor—a use for which it is licensed, unlike for gender dysphoria. It seems implausible that an adolescent’s sexuality would be unaffected by several years of chemical castration.
5. Who can consent to puberty suppression?
The judges concluded by emphasizing the ‘enormous difficulties in a child under 16 understanding and weighing up this information and deciding whether to consent to the use of puberty blocking medication’ (para 150). Therefore GIDS—and private clinicians who wish to prescribe GnRHa for treating gender dysphoria—will have to seek a court order for each individual patient. The judgment sets a high bar for meeting Gillick competence: for a child aged 13 or under, this would be ‘highly unlikely’; for a child aged 14 or 15, it would be ‘very doubtful’. Even for a child aged 16 or 17, for whom there is a presumption of consent, the judges recommend that clinicians ‘may well regard these as cases where the authorisation of the court should be sought’ (para 151). The judgment closes the era of unconstrained experimentation on children suffering from gender dysphoria, when the GIDS could flout ethical rules and ignore scientific principles.
Previous instalments of the Tavistock’s Experimentation with Puberty Blockers:
Part 1: Scrutinizing the Evidence (March 2019)
Part 2: An Update (July 2019)