May 10th was the State Opening of Parliament.
Included in the Queen’s Speech (read by Prince Charles) was a bill to ban conversion therapy, which controversially excluded trans conversion therapy. Almost the entire LGBT community were united in opposing the exclusion, and in a neatly orchestrated stunt, dozens of MPs were photographed in and around Westminster that day, holding up protest signs.
One of the many tweets that day featured this photo of the Labour MP Ed Miliband. Beneath it was a pile-on, primarily from anonymous anti-trans accounts. There were three points in particular that the trolls were anxious to make :
That enabling kids to transition is gay conversion therapy
That Ed Miliband is condoning sterilisation of healthy kids
That Ed Miliband is showing his ignorance of the Cass Interim Report
I’ll be discussing the Cass Report later, as it’s of interest for other reasons, but to be absolutely clear, there’s nothing in it which would conflict in any way with a ban on trans conversion therapy.
Not that the trolls were interested in having a serious debate about trans conversion therapy. Their retorts all came from a similar place – one of barely disguised horror that so many teens are coming out as trans, and an absolute refusal to accept that society should comply with the wishes of these trans kids.
In this article, I’m going to be looking at recent developments in the war against healthcare provision for trans kids. The big debate here is over the use of puberty blockers, so that’s what I’ll be mainly focusing on, though as we shall see, the same arguments trotted out against Ed Miliband are also used here.
Transing the Gay Away?
The gay conversion therapy line is a myth that’s been around for a long time. The idea is that some or all trans men are essentially lesbians who are confused, or in denial about their sexual identity (or that trans women are confused gay men, but more often than not, this is directed toward trans men). JK Rowling, for instance, writes of her “concern” that so many girls are seeking to transition – “some say they decided to transition after realising they were same-sex attracted, and that transitioning was partly driven by homophobia.”
The source that Rowling relies on is Lisa Littman. Littman’s findings were based on a survey of parents of trans adolescents recruited from anti-transgender websites. No information was provided by the trans kids themselves. Littman’s paper is debunked here.
It’s not surprising that virtually the only people who subscribe to this theory are supporters of trans conversion therapy. They believe that they know better than trans children how those kids lives should be regulated, and they’re uninterested in anything that transitioning teens may have to say which contradicts their beliefs.
What makes us identify as trans?
There are so many pathways. We’re an incredibly diverse population who defy easy stereotypes, whether as to our age, social class, sexuality or anything else. For the majority of us, we don’t have the knowledge from infant age, much less the vocabulary, to know that we’re trans. Learning this is likely to be a long and challenging journey. Doubtless, there are teens who may be gender non-conforming or coming to terms with their sexual orientation or both, who ask questions of themselves about their gender identity. Committing to socially transition, though, is another matter altogether, and few will do this unless they’re convinced that there’s really no alternative.
To believe that trans people are lesbians or gay men in denial, you really have to be something of a conspiracy theorist. You have to believe that thousands of healthcare professionals who’ve spent time with trans people and held consultations with them, and accepted that they suffer from gender dysphoria are all in on the conspiracy. You have to ignore the overwhelming evidence that de-transitioning rates among those who start on hormone treatment are very low (the claim that it’s as high as 80% is another piece of gender critical junk science, debunked here).
Even among detransitioners, this is not a common issue. Those trans men who’ve come to realise that they were same sex attracted all along ? They’ve not been coming forward in any significant. numbers.
Trans healthcare as Child Abuse?
In February 2022 the Attorney General of Texas Ken Paxton dropped a bombshell into the world of healthcare for trans kids. The legal opinion that he issued declared gender-affirming healthcare to be child abuse, and advised that failure to report instances of this “child abuse” could be deemed a criminal offence.
It was an edict that could have come straight out of Nazi Germany: born out of an extreme ideology, sweeping aside all the accumulated knowledge and wisdom of the actual experts in the field, relying instead on junk science and deliberate misinformation, with the effect of terrorising an entire population. If anyone thinks though that it’s only in places like Texas, where politicians are jumping on the anti-trans bandwagon, while I was writing this article the Times published this horrifying interview with the Attorney General of the UK.
I’m not going to talk you through all of Paxton’s false assertions, as others have done the job here. But let’s take a little look at his argument. He lists the effects of this healthcare as sterilisation, loss of fertility, adverse mental health effects, and a variety of other bodily changes. He lumps together puberty blockers, hormone treatment, and gender-affirming surgery, almost as though he thinks that they’re one and the same. In fact, as in other states, this kind of surgery isn’t available to children in Texas.
The serious debate is around the use of puberty blockers, which do have an effect on fertility (though Paxton exaggerates here), but which in no way lead to sterilisation, as pubertal development occurs once the medication is discontinued, leaving patients still able to conceive.
At one point, Paxton goes on an extraordinary rhetorical flourish –
“Sterilisation of minors and other vulnerable populations without clear consent is not a new phenomenon and has an unsettling history. Historically weaponised against minorities, sterilisation procedures have harmed many vulnerable populations, such as African Americans, female minors, the disabled, and others. These violations have been found to infringe upon the fundamental human right to procreate. “
It’s hard to imagine a less appropriate comparison. Forced sterilisation in America was a racist policy with roots in eugenics, which had its precise aim of cementing the dominance of the white race. No one, on the other hand, ever set out with an agenda to sterilise trans youth. And if such an agenda had existed, it wouldn’t be puberty blockers they would be prescribing! Most importantly, we’re talking about medical assistance that’s requested by trans kids themselves, kids who are fully capable of making informed judgements on what’s best for their physical and mental health.
Paxton knew what he was doing though. The notion of a “right to procreate” which trumps everything else is straight out of the copybook of the Evangelist right, giving legitimacy to the state taking control over women’s reproductive rights and denying women autonomy over their own bodies.
On the issue of consent, Paxton says that children can’t consent to sterilisation. Not because it’s too complex an issue, but because it’s too serious a matter. Again, he undermines his own case by a lack of grasp of how puberty blockers work. He claims falsely, that “there is insufficient medical evidence available to demonstrate that discontinuing the medication resumes a normal puberty process.” He implies that their use in this context is experimental because they’re “off-label”. In fact, puberty blockers may be controversial, but they’re neither new nor experimental.
Finally, for those still not persuaded, Paxton refers us to the court judgment in Bell v Tavistock and Portman NHS Foundation Trust 2020. And it’s to this that we shall now turn.
Keira Bell was one of two claimants who brought a claim for Judicial Review seeking a declaration that children under the age of 18 are not legally competent to consent to puberty blockers. In a surprise judgment, the High Court agreed to make a declaration that was to have far-reaching consequences.
The court found that it was ‘highly unlikely’ that a child aged 13 or under would ever be competent to give consent and ‘very doubtful’ that a child aged 14 or 15 could properly understand and weigh up the long term risks and consequences.
For young persons aged 16 and 17, the court acknowledged their right to decide but said there may still be cases in which questions over competency should be raised by clinicians.
Bell was already 16 when she was first seen by the Tavistock, and by her own account, she was very adamant about her desire for gender-affirming treatment. Subsequently, she came to realise that she had made a mistake and detransitioned. Every such case is tragic.
However, the Tavistock wasn’t being sued for negligence, and no negligence was found in the care that Keira Bell received. In reality, this was a challenge to public policy, and to the right of children to make major decisions about their own medical treatment (known in the UK as Gillick competence).
After a year of trauma and uncertainty for trans teens, the High Court judgment was overturned in September 2021 by the Appeal Court. The High Court, it turned out, wasn’t competent to say some of the things that it had said! For instance, the High Court didn’t have the medical authority to characterise the use of puberty blockers as experimental. Both sides had produced expert evidence, and as the Appeal Court noted, there is a real division of medical opinion on the issue. It’s not the role of judges to decide disputed issues of fact or expert evidence - they should focus on the law. The Appeal Court also looked at the original Gillick ruling in which the House of Lords ruled that it was for the clinician – not the court – to decide whether a child under 16 could give informed consent to the prescription of contraceptives.
Where does all this leave us on the issue of consent?
Accusations that children are being abused, their bodies mutilated, and so on, are utterly false. This is not an assault on unwilling subjects. This is about children who’ve already had to wrestle with difficult questions, seeking help, desperate for medical assistance, and medical authorities who operate under protocols that require assessments of capacity and needs prior to any intervention.
A more interesting question is whether medical practices are giving trans teens the right kind of information with which to make an informed decision. To find answers to this, it’s time that we listened to some actual healthcare experts.
Read the Cass Report
Hilary Cass is a former president of the Royal College of Paediatrics and Child Health. Commissioned by NHS England to lead a review of the field of healthcare for trans youth, she published her interim report in March 2022. The report opens with a letter to children and young people. “I have heard that young service users are particularly worried that I will suggest that services should be reduced or stopped,” writes Dr Cass. “I want to assure you that this is absolutely not the case – the reverse is true. I think that more services are needed for you, closer to where you live.” This is welcome: young people shouldn’t have to rely on one London-based clinic (the Tavistock).
The letter continues: “The other topic that I know is worrying some of you is whether I will suggest that hormone treatments should be stopped.” The fact that she recognises this is the primary concern of young trans people, and feels the need to speak to them directly to offer some reassurance, is important in itself. She gets the importance of having these services, even if the words that follow may make some uneasy – “What we will be doing over the next few months is trying to make sense of all the information that is available, as well as seeing if we can plug any of the gaps in the research.
I am currently emphasising the importance of making decisions about prescribing as safe as possible. This means making sure you have all the information you need – about what we do know and what we don’t know.”
The report identifies “gaps in the evidence base.” Few would deny that further research would be beneficial. Ken Pang though, writing in the BMJ, sums up the frustration of many professionals that Cass felt unable at this stage to take a stronger stand:
“Firstly, it ignores more than two decades of clinical experience in this area as well as existing evidence showing the benefits of these hormonal interventions on the mental health and quality of life of gender diverse young people. Secondly, it will take many years to obtain these long term data. Finally, Cass acknowledges that when there is no realistic prospect of filling evidence gaps in a timely way, professional consensus should be developed on the correct way to proceed.” Such consensus already exists outside the UK. The American Academy of Pediatrics, the Endocrine Society, and the World Professional Association for Transgender Health have all endorsed the use of these hormonal treatments in gender diverse young people, but curiously these consensus-based clinical guidelines and position statements receive little or no mention in the interim report.”
Cass doesn’t say, however, that the treatment currently being provided is inappropriate or should be withdrawn. Quite the contrary. These are some of her recommendations:
Significantly, Cass acknowledges that “doing nothing cannot be considered a neutral act” – in other words, failing to provide treatment to teenagers will in many cases, have damaging consequences for the child.
It’s hard to fathom why advocates of trans conversion therapy imagine that this report supports their case. I doubt that Hilary Cass will be very happy to be associated with this cause.
As with other gender clinics, the Tavistock has been simply unable to handle the rising demand for its services, resulting in waiting lists running into several years. This has forced many young people to turn to private solutions, of which the best and most affordable has been GenderGP, run by Drs Helen and Mike Webberley. For a number of years now, GenderGP has been under constant attack from gender-critical organisations, who believe that what they’re doing, particularly in prescribing for young people, is highly irresponsible and that they should be shut down.
I just want to focus on the recent case against Helen Webberley brought by the General Medical Council (GMC). A medical tribunal panel hearing the case made a determination on the facts in April 2022 and the hearing is to reconvene in a few days time. In his summing up, Webberley’s solicitor pointed out the absurdity of the fact that the case had been brought at all –
“This is the oddest of cases. No one has suggested that each of the patients did not suffer from gender dysphoria. No one has suggested that the treatment for gender dysphoria in this case is not puberty blockers and/or testosterone. None of the patients has complained about the care they received from Dr Webberley. Quite the contrary, the mother of Patient A and the mother of patient C were asked to provide statements to the GMC and the GMC obtained statements from them. Each is glowing in their support of Dr Webberley and each views the care that she provided to their son as life-saving.’
The panel’s statement is lengthy and detailed, I can give you some of the headlines, but to fully understand where they’re coming from you need to go to the original statement. They considered Webberley’s competence at some length and concluded that she was competent and that there was no reason why she shouldn’t be prescribing hormone treatment herself rather than referring patients to an endocrinologist as is the practice within the NHS. Moreover, she wasn’t under any duty to follow the ” rigid and protocol-driven approach” of the NHS. Alleviation of the stress and harm caused by lengthy waiting times at the Tavistock was a valid consideration. “The logical and proper approach in those circumstances was, in the view of the Tribunal, for Dr Webberley to seek out safe and effective alternatives to the GIDS care pathway and in doing so to embrace the new thinking that transgenderism is not a mental illness.” This more enlightened approach was in line with a solid body of medical opinion.
The tribunal found that proper assessments need to be carried out to see whether a child has capacity to decide on starting treatment, but even if a child is not Gillick competent, a parent may consent to the treatment on their behalf.
The tribunal supported the decision to prescribe testosterone to Patient A, a 12-year-old trans boy: “the depression and anxiety Patient A was experiencing when he saw Dr Webberley in March 2016 was self-evidently a reaction to his profound and lifelong gender dysphoria coupled with the bleak prospect of being suspended by GIDS in a peripubertal state for four and a half years while his twin sister and peers progressed through puberty.
This was the inescapable conclusion reached by the tribunal, having read the statements and heard the compelling evidence of Patient A and his mother. The tribunal finds that any GP, let alone a GP such as Dr Webberley with a special interest in gender dysphoria, would be competent to recognise the reactive nature of the anxiety and depression Patient A was evincing at the material time. The cause of Patient A’s anxiety and depression was, in the tribunal’s view, as plain as a pikestaff: it was the decision by GIDS to withhold gender-affirming therapy until he was sixteen years of age.”
However, the tribunal further found that Webberley hadn’t provided adequate follow-up care to Patient A, including proper monitoring of the effect of the testosterone. A number of similar charges were also upheld.
The attacks on the rights of young trans people are generally based on the conviction that children aren’t mature enough to know that they’re trans. It’s Section 28 all over again. The hope seems to be, if you stop them from transitioning, maybe the “problem” will go away. There is of course, no problem: some kids are trans. And preventing them from transitioning won’t stop them from being trans, it will only cause them trauma in the short term and affect their physical and social development for much of their lives.
The battles over consent are, in essence, battles for the right of children to control what happens to their own bodies. In the UK, this revolves around the defence of Gillick. Clinicians on their part need to show that before prescribing puberty blockers, they’ve talked through with the patient the many ways in which their body could be affected by suppression of hormones for any period of time, and any uncertainties about the long-term effects of this. And patients should be given information as to what options would be available to them should they later become infertile. Having these discussions isn’t about denying patients the right to choose, it’s about enabling them to make informed choices.
In general, though, what young people need is fewer hurdles to accessing trans healthcare, not more. The Cass interim report, the Appeal Court decision in Bell v Tavistock, and the determination of the facts by the Helen Webberley tribunal, all lead to the same conclusion: that medical intervention to help transitioning teens is both necessary and essential. Sure, there are debates within the medical community, particularly over puberty blockers. Sure, there’s more that can be learned from further research. But these aren’t sufficient reasons to deny access to treatments that have been successfully used for several decades.
Words Linda Wall
30th May 2022