Last week, three judges of the High Court in London ruled that transgender children, aged 13 or under, were “highly unlikely” to be “competent to give consent” to chemical treatments prescribed for them. For those between 14 and 16 they said competent consent was “doubtful” and for those aged 17 and 18 the judges said that competence to consent was presumed but doctors may want to seek court orders before prescribing puberty blockers due to the experimental nature of the treatment.
In others words, the judges were raising serious concerns about the ability to give informed consent to treatments in current use. The Tavistock Clinic planned to appeal the judgment but this has been rejected.
Keira Bell, a woman who began reassignment treatment aged 16 and detransitioned in her early 20s, and Mrs A, the mother of an autistic teenager who does not want her daughter to be prescribed these drugs, took the case. They took the action against the Tavistock and Portman NHS Foundation Trust, which runs England’s only youth gender identity clinic, called GIDS (Gender Identify Development Service). The clinic has now stopped taking new referrals and has stopped prescribing puberty blockers and cross-sex hormones to under-16s.
Their lordships noted that children as young as 10 were being treated and that they needed to understand the immediate and long-term consequences of this treatment. They pointed out that since this pathway may end with surgery, the young person involved needed to understand the implications of cross-sex hormones and of surgery.
They should be advised that the drugs may lead to loss of fertility, have an impact on bone, impair growth and lead to impaired sexual function. They expressed surprise that data on numbers moving from puberty suppressors to cross-sex hormones was not available from the clinic, and also disputed the claim that puberty suppressants were safe and reversible since they have been tested only in young people with a different condition.
How is this judgment relevant to Ireland? Crumlin Hospital in Dublin provides assistance for youths in Ireland with gender dysphoria, the condition of feeling discomfort or distress when gender identity differs from the sex assigned at birth. Media reports indicate Crumlin Hospital is treating less than 20 children at its Gender Endocrinology Service and that some are on puberty blocking drugs.
GIDS reportedly holds a monthly clinic in Dublin for young people with gender dysphoria and the HSE has sent 80 young people in the past three years for evaluation at the Tavistock Clinic. On return to Ireland they attend endocrinologists and are monitored on the recommended medications. So there are close links between the GIDS service and Crumlin Hospital but the exact numbers likely to be impacted by this ruling is not known.
It remains to be seen what will happen now as the London service has effectively been closed. How will the children in Ireland who are receiving these treatments, and their parents, deal with the fall-out? Will treatments be discontinued? What psychological supports will be provided?
It is possible this judgment will trigger litigation both in Britain and in Ireland. Parents will have taken their children, in good faith, for treatment to those claiming expertise in this area. They may have been advised that these treatments are safe and reversible. Indeed the website of the NHS on puberty blockers and the HSE website made this claim, giving reassurance to parents and their children.
However, in June 2020 the NHS changed the entry to “Little is known about the long-term side effects of hormone or puberty blockers in children with gender dysphoria”. The HSE website has yet to change its entry. The earlier false reassurance about safety and reversibility along with the lack of informed consent could form the basis for litigation.
There is also the possibility of medical negligence claims since there is evidence that those with gender dysphoria have high degrees of co-occurring psychiatric illness. This information was not available to the court in London. The judges found the lack of data analysis “surprising”.
A review by the Swedish National Board of Health and Welfare, on foot of a massive rise followed by a huge decline in referrals in 2019, said: “People with gender dysphoria, especially young people, have a higher incidence of co-occurring psychiatric diagnoses, self-harm behaviours and suicide attempts… it is not possible to ascertain to what extent gender dysphoria alone contributes to suicide, since these psychiatric diagnoses often precede suicide”. It identified anxiety disorder in 32.4pc, depressive disorder in 28.9pc, ADHA in 19.4pc and autism in 15.2pc of referrals. Failure to take these conditions into account when offering treatment for gender dysphoria could also lead to legal claims against doctors not to mention the unclear link to suicide, fears of which may have prompted parents to embark on the pathway to gender reassignment for their child.
There are political ramifications for us in Ireland. Former Minister for Employment Affairs and Social Protection Regina Doherty carried out a review on the gender recognition legislation in 2017. It recommended that there be no lower age limit for children wishing to legally change their gender and legislation to enable this is planned.
Will this now go ahead given the myriad problems highlighted by the judgment in London and the findings of the Swedish review? Or will we pause and reflect on the findings that have emerged?
Patricia Casey is a consultant psychiatrist and a patron of the Iona Institute.
Source: Irish News