The UK High Court recently announced a new ruling, banning children under the age of 16 from being prescribed puberty blockers or hormone replacement therapy, without official judicial approval. The ruling sent shockwaves through the country, with critics claiming it undermines years worth of established medical practice that allowed trans children to access this type of treatment.

The court ruled that it was highly unlikely that a child under the age of 16 would be able to give confirmed consent to gender reassignment procedure, despite warnings by medical and legal professionals arguing the opposite.

While the lawyers who bought the case against the NHS clinic argued that the treatment could lead to “irreversible changes” to young peoples’ development, the defence claimed that the procedures on trial were “widely deemed safe, reversible, and medically necessary”.

This view is backed by the World Professional Association for Transgender Health, an international panel of doctors specialised in trans health, which claims that puberty blockers can help prevent the negative psychological impact of gender dysphoria during puberty.

Legal experts and human right’s campaigners have called on the Supreme Court to overturn the High Court’s ruling, and a spokesman for the Trust has confirmed it is in talks with lawyers. Until then, the National Health Service England has put new guidelines into place which state that consent must be obtained from the court for new referrals for such medication.

NHS under fire

The NHS faced unprecedented challenges throughout 2020, with wait-times reaching all-time highs as hospitals struggled to deal with the Coronavirus pandemic. More than two million non-emergency procedures were postponed in an attempt to free up beds for COVID-19 patients, affecting a myriad of people awaiting treatment. 

Among the worst hit by the delays were teenagers waiting for gender reassignment treatment. NHS guidelines state that patients should be referred to a specialist gender identity clinic and listed for surgery within 18 weeks of their initial appointment. However, figures released this year revealed that some teens were being forced to wait up to two years before receiving treatment.

According to Freedom of Information (FOI) figures obtained by Victoria Derbyshire, the longest waiting period for a specialist appointment after a referral was in Belfast, with patients having to wait up to 166 weeks. The second highest wait period was in Nottinghamshire, where wait times reached 145 weeks. The NHS Highland’s gender identity clinic had the shortest waiting period at 32 weeks.

Reporter Madaline Dunn, who covers breaking legal news for the Legal Journal, explained that the delays were not only putting teens at risk of serious mental health difficulties but in some cases, in danger of inflicting actual bodily self-harm.

She said: “As a consequence of these delays, some trans teens have been forced into DIY transitioning, which can be dangerous and potentially life-threatening. Blood clots and liver problems are a serious danger. Another serious risk associated with significant delays is suicide.”

Independent review launched

On 22 September, the NHS that the former President of the Royal College of Paediatrics and Child Health, Dr Hilary Cass, would conduct an independent inquiry into gender identity services for children and young people. The review will examine how the number of teens seeking treatment in Tavistock NHS clinic has increased from 77 to 2,590 in the past decade.

It will also seek solutions to the problems surrounding wait times, focusing on the care given to children and young people after they have been referred to specialist services. 

Speaking to the BBC about the review, Dr Hilary Cass said: “It is absolutely right that children and young people, who may be dealing with a complexity of issues around their gender identity, get the best possible support and expertise throughout their care. This will be an inclusive process in which everyone will have the opportunity to make their views known. In particular, I am looking forward to hearing from young people and their families to understand their experiences. This review provides an opportunity to explore the most appropriate treatment and services required.”

“Trans people are real”

However, despite the NHS inquiry, young trans people and LGBTQ advocates said they have been forced to seek specialist legal advice to convince the health service to fulfil its statutory duty.

One trans teenager, known simply as “Reece” said the long waiting times had caused him undue suffering, after his referral to Tavistock NHS gender clinic was delayed by more than a year. The 14-year-old’s GP referred him to the clinic back in 2019, when he was due to undergo his first assessment. This initial stage is designed to give the young person the chance to explore their gender identity alongside a trained professional, who can help support them with any associated mental health issues. But despite being referred, Reece said he still hadn’t been contacted by the clinic and had decided to launch legal action against the NHS.

He said: “I know more than 30 trans people, from school and LGBT groups. Everybody’s been waiting for months, or even years, but nobody’s been able to get in yet”. He added: “It’s scary because it shows the service isn’t available to the people who need it”.

Backed by the non-profit campaign group The Good Law Project, Reece has urged the NHS to provide treatment for young trans people within its own 18-month cut-off period.

Representatives for The Good Law Project claim that the NHS has acted unlawfully, with Jolyon Maugham, director of the Good Law Project, stating: “NHS England has a statutory duty to ensure that patients referred by their GP to a gender identity development service are seen within 18 weeks.”

He added: “This is not happening, and as a result, we believe the law shows they should be providing alternative care to anyone on the waiting list. That could include private and overseas healthcare. Whilst the young people are waiting, puberty passes and transitioning becomes a lot harder – some people are effectively denied treatment. The NHS needs to make a cultural decision that trans people are real, and they have the same rights to treatment as everybody else”.