Parents of transgender children can consent to treatment with puberty blockers on their child’s behalf without a court’s approval, a High Court judge has ruled.
Mrs Justice Lieven gave the ruling on Friday in the case of a 15-year-old, identified as XY, who was born a boy but lives as a girl and is undergoing treatment with puberty blockers.
The judge was asked to consider the issue following the High Court’s landmark decision in the case of Keira Bell over whether children can consent to the use of puberty blockers.
The girl’s mother sought a declaration from the High Court that she and the girl’s father can consent to her ongoing treatment amid “uncertainty on the lawfulness of parental consent” and a concern that XY’s GP might not continue to prescribe puberty blockers in light of that ruling.
Mrs Justice Lieven said the use of puberty blockers for children with gender dysphoria “raises unique and highly controversial ethical issues”, and the division of clinical and ethical views has become “highly polarised”.
The judge said that, before the ruling in Ms Bell’s case, XY had been treated with puberty blockers on the basis that she was able to consent to the treatment herself.
However, she said that view had been “cast into doubt” by the judgment in Ms Bell’s case and therefore the issue for her to decide was whether XY’s parents could continue to consent to the treatment on her behalf.
The judge concluded that, whether or not XY is considered legally competent to make the decision about puberty blockers, “her parents retain the parental right to consent to that treatment”.
Ms Bell, who began taking puberty blockers when she was 16 before “detransitioning”, brought legal action against the Tavistock and Portman NHS Foundation Trust – which runs the UK’s only gender identity development service (GIDS) providing treatment to transgender children – arguing that children cannot properly consent to taking puberty blockers.
Dame Victoria Sharp, sitting with Lord Justice Lewis and Mrs Justice Lieven, ruled in Ms Bell’s favour in December last year and said children under 16 need to understand “the immediate and long-term consequences of the treatment” to be able to consent to the use of puberty blockers.
Following the ruling, which is being challenged and will be considered by the Court of Appeal in June, GIDS paused new referrals for hormone treatment.
However, the trust said treatment for patients currently taking puberty blockers should continue on the basis of parental consent given the “extreme distress these children and young persons would suffer if the treatment was not continued”.
Mrs Justice Lieven said she “self-evidently” agrees with the conclusions in Ms Bell’s case, having been one member of the court which gave the ruling, and that nothing in her decision on XY’s case is intended to depart from it.
However, she said the issue of parental consent was not considered by the court in Ms Bell’s case.
In the case of XY, the judge said there was agreement between the teenager, her parents and treating clinicians that she should continue to be treated with puberty blockers.
The teenager’s mother said her daughter had always only been interested in girls’ toys and clothes and was “utterly miserable, became very withdrawn, and was shy and unhappy” during a period when she tried to conform to a more “male” stereotype.
Once she told her parents she was transgender and started going to school as a girl, her mother said XY’s confidence grew and she “became much happier”.
The judge said she has now “fully transitioned socially in all aspects of her life, including legal paperwork” and has changed her name by deed poll.
She said XY has never been diagnosed as having an unresolved mental health issue and there is no suggestion she is on the autistic spectrum.
The girl’s mother said in a witness statement she did extensive research on puberty blockers before her daughter started taking them, was “fully aware” of the potential side effects and knew that the treatment was very new.
The judge said: “It does appear from (the mother’s) witness statement that she and (the father) have been careful and cautious in their approach to the treatment, have tried to become as well informed as possible and have sought at various stages to take matters slowly.”
After starting on puberty blockers, XY and her parents considered fertility treatment but decided not to wait for it to go ahead because the changes to her body were “progressing at considerable speed and causing her distress”.
In a statement before the court at the hearing earlier in March, XY said: “I agree with everything my mum says about our efforts for me to undergo fertility preservation treatment before I started on puberty blockers and the race against time.
“The visible and irreversible onset of male puberty was very and most distressing for me.
“It also meant that my life wouldn’t be my life any more and normal, where everyone knew and accepted me as female.
“I had to make a very difficult choice. I have already explained in my letter how I felt about developing any additional male characteristics and especially as they could not be reversed. I would have been devastated.
“My parents and I talked about everything, they have been hugely supportive and understanding.”
Mrs Justice Lieven said the “key difference” from Ms Bell’s case is that parents are generally in a position to understand and consider what is in the best interests of their child.
She added: “They are adults with full capacity and, as the people who know their child best and care for them the most, will be in a position to reach a fully informed decision.
“The evidence strongly suggests that XY’s parents have fully considered these matters and come to a careful and informed decision.”
The judge concluded: “In my view, the factors identified in (Ms Bell’s case), which I fully agree with, do not justify removing the parental right to consent.
“The gravity of the decision to consent to puberty blockers is very great, but it is no more enormous than consenting to a child being allowed to die.
“Equally, the essentially experimental nature of puberty blockers should give any parent pause for thought, but parents can and do routinely consent on their child’s behalf to experimental treatment, sometimes with considerable, including life-changing, potential side-effects.”
The judge said that in cases where there was disagreement between clinicians, or concern that parents were being “pressured” by their children to consent, then those cases should be brought to court.
However, she said she does not consider that these issues “justify a general rule that puberty blockers should be placed in a special category by which parents are unable in law to give consent”.
Commenting via the Science Media Centre, Dominic Wilkinson, professor of medical ethics, University of Oxford, said: "The legal decision this morning, in the Family division of the High Court, provides important clarification. It is likely to be a relief to young people with gender dysphoria and their families."
He continued: "This court decision reinforces a long established ethical approach to medical treatment in children and young people. The views of the child or young person should be sought. If the young person is sufficiently mature they may be able to consent on their own to the treatment in some cases. But where that isn’t the case, parents are able to consent to treatment that would be in the young person’s best interests (ie would be best overall for them). That ethical approach has long been adopted, in this country and others, for young people needing surgery or chemotherapy or other medical treatment. It applies to extremely important life and death decisions (for example about stopping life support). It also applies to puberty blockers.
"Debate about the role of puberty blockers in young people and children is likely to continue. But this decision means that where doctors believe that it would be best for the young person to have this treatment, the young person wants the treatment and parents consent, the treatment can legally be provided."
This article contains information from PA Media.