M’Lords swallow the blue pill

Legal cases rarely make for very exciting reading. The Court of Appeal’s decision today, that the High Court should not have made a declaration about the limited powers of comparatively young teenagers to consent to potentially drastic gender reassignment at the Tavistock Clinic, is no exception. Unless you suffer from serious insomnia, it is not recommended entertainment (if you are desperate you can find it here). But as with all decisions of this sort, its importance lies in its background and the values underlying it. And this decision is important, not to mention worrying

To recap, the Tavistock Foundation in Belsize Park has for some time become the main NHS port of call for young people and teenagers suffering, or believing that they are suffering, from gender dysphoria. For some years a practice had grown up of approving the provision to many such young people (something over 150 a year) of treatment that might, and not infrequently did, culminate in full gender reassignment. This had caused disquiet on a number of grounds: notably that it was not clear that proper consent had been given, that some later regretted the treatment, and that there had been pressure put on people within Tavistock who had voiced concerns.

Last year Keira Bell, a person who had undergone reassignment treatment but now regretted it, asked the High Court to declare the practice unlawful. It declined to do so, but then said something very important. In law, children under 16 of some maturity can validly consent to medical treatment, but only provided they fully understand it. The High Court declared that for children under 16 full understanding in connection with gender reassignment meant appreciating in some detail a large number of listed factors, including the nature of the treatment, possible implications for sex life, and so on. It went on to suggest that if there was any doubt the treating clinicians should seek a court order about what was really in the child’s best interests.

The Court of Appeal was having none of this. Essentially it said the High Court should not have issued the detailed declaration it did, or called for the intervention of the court in cases of doubt, or indeed expressed any view on the matter. In medical treatment generally of the under-16s, it was largely up to the informed judgment of the treating clinicians to make up their mind whether there was proper consent, and the court should not unduly constrict their decisions. Gender reassignment should be treated no differently. The Tavistock programme was, it was said, internationally endorsed, subject to a rigorous internal assessment and approved by the professional bodies. In short, the doctors and the experts should be left to get on with it, and those who disapproved owed it to clinic and children alike to butt out.

This may sound good to lawyers, and indeed may well be good law. It will doubtless be welcomed with reverential wonder by academics in in all the university law reviews. But it is still misguided.

To begin with, it is one thing to allow relatively free rein to 15-year-olds to consent to uncontroversial surgical procedures like an appendix operation, and ask the courts in siuch cases to stand back and, seriously exceptional matters aside, leave it up to the doctors’ professional judgment. The leading case which established this principle as part of the law, that of Victoria Gillick in 1985, concerned contraceptive treatment – a bit of a stretch, given the girls were under age, but still short-term and just plausible. However, to extend this reasoning wholesale to life-altering treatment the implications of which the vast majority of 15-year-olds are too impressionable and immature to take a reasoned decision on is bizarre. If the legal mind says this is all right because it’s all about medical treatment and treatments should not be distinguished one from another, that may tell you something about the legal mind, but it doesn’t mean it’s right.

Secondly, standing aside and giving way to medical expertise becomes much more difficult to justify once we start discussing a far-from-ordinary procedure which not only has potentially very drastic effects, but also raises serious social and indeed political issues. This is exactly the case here. Normalising gender reassignment raises incredibly complex and sensitive questions about such matters as our treatment of sexuality, the differentiation of the sexes and the entirely justifiable desire of one sex – particularly the female sex – to maintain the idea of separate spaces away from those of the opposite birth sex. Indeed, the supporters of the decision fully realised this: within minutes of its announcement they took to social media with whoops of electronic joy to welcome it as a famous victory for trans rights, not to mention children’s rights. That’s fine: but they can’t have it both ways. If issues of political and social policy are involved you can’t just leave matters up to the professionals: society – if necessary acting through the courts – must have a right to a say.

Thirdly, there remains a stark question whether we should be doing anything to encourage gender transition as an ordinary cure for gender dysphoria, assuming a child indeed is suffering from it. The answer isn’t obvious. If a child in a girl’s body feels like a boy, it is true that we can change the body to match the mind; and this is indeed what many people advocate as obviously necessary in the child’s interest. But the fact remains that this is an incredibly drastic solution, and some might think it not necessarily the most beneficial one. There are others, such as telling the child that there is nothing necessarily wrong with her feeling, and that less harm would be done were we to reconcile herself to the body she is in. Whatever precautions are taken, there is a danger that the result of the Portman decision will be to normalise a particularly traumatic bodily transformation which may well be regretted later.

We will have to wait and see what the political fall-out will be from the Court of Appeal’s pronouncement. There is certainly a case for Parliament to intervene and require more oversight of the medical professionals involved, however well-meaning the latter. Meanwhile, however, let us leave readers of the Salisbury Review with an interesting conundrum. A girl of fifteen cannot in law consent to be tattooed, however many experts think she might benefit. But but she can consent to begin life-changing treatment that could have profound effects, including sterility; and here we need to leave it up to the professionals, with the courts taking a back seat and avoiding intervention. How can these be reconciled? If you can’t think of an answer to the riddle, perhaps you could do worse than ask a lawyer.

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