8th Family Law & Children’s Rights Conference July 2021, Singapore

I have been invited to present a paper at this conference, postponed from July 2020 due to the pandemic. This was a timely postponement as it will enable me to incorporate and discuss what will be a seminal judgment in the Keira Bell case, due to be delivered on December 1st 2020.

The changing legal response to primary school children who are said to wish to transition from one sex to the other.  Have legal responses been captured by considerations other than the rule of law and the welfare of children?

Historical context – the birth of the ‘trans child’ 

Only an understanding of how we got here will enable us to fully understand where we are now. By 2018 it had become firmly established as a UK ‘cultural norm’ that transgender identities were inherent and that any challenge to this was not acceptable, to the extent that those raising questions or unease about how this translated to choices made by even very young children were ‘transphobic’ and ‘hateful’. 

This is a pretty dramatic shift from 20 years ago, when the issue of the ‘trans child’ simply was not on the radar of the family justice system. The concept has been successfully normalised in what seems a very short space of time, using both medical and legal routes. 

From 1999 – 2019 I encountered not a single case involving a ‘transgender child’ but in 2020 I had two. How has recognition of issues of ‘gender identity’ shifted so dramatically over the past decade?. ‘Queer Theory’ has become more mainstream; this, in essence, re-frames innocence and vulnerability in children as ‘support systems of power’ that enforce heteronormatively and other harmful stereotypes. 

As long ago as 1979 the ‘Harry Benjamin International Gender Dysphoria Association’ was established, now known as the World Professional Association for Transgender Health (WPATH). This organisation advocates for ‘trans affirmative’ clinical guidance and training course for health professionals working with transgender people. 

By the 1990s in the UK, parents of ‘gender dysphoric’ children began to request hormone suppression at the first signs of puberty. Such ‘puberty blockers ‘ administered at a young age, followed by cross sex hormones, would enable a child to ‘pass’ more effectively as the opposite sex when an adult. By 2009 the Endocrine Society had new clinical practice guidelines for treatment of transgender children which lowered the age for administration of hormones from 16 years to the first onset of puberty. However, the long term consequences of such treatments are not known – and it was not until 2020 that the NHS revised its on line guidance to make that clear. 

In the USA in 1995 an International Bill of Gender Rights (IBGR) emerged, setting a legal stage for the development of ‘the transgender child’ including claimed rights for transgender peope to define their own gender identity and to alter their bodies, surgically or medically as they saw fit, coupled with a right not to be subject to ‘involuntary psychiatric diagnosis or treatment’. 

In 1997 the European Court stated in X, Y and Z v the UK (1997) 24 EHRR 143 that transexuality “raises complex scientific, legal, moral and social issues, in respect of which there is no generally shared approach among the Contracting States”. But over the years that followed, the complexity of those issues were re-considered in the light of growing demands for the recognition of the rights of trans people. 

In 2007 the ‘Yogyakarta Principles’ were drafted by a group of academics and transactivists.. Gender identity was defined as:

… each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms.

The Yogyakarta Principles have no legal force, they are not incorporated into any UN convention or declaration but over time they have been regularly cited and relied upon. They were redrafted in 2017 to propose ‘no eligibility criteria, such as … minimum or maximum age … shall be a prerequisite to change one’s name, legal sex or gender’

In 2007 in the UK, the Department of Health declared that being trans is ‘not a mental illness’ and by 2012 the British Psychological Society produced guidelines to affirm all sexualities and genders, pointing out their profession’s long and inglorious history of pathologizing individuals who went against traditional norms of sexual expression. 

In 2008, Department of Health guidelines advised ‘sex assigned at birth’ and the child’s ‘inner sense of knowing’ their true gender, may not align, and ‘gender variance’ in children can emerge at a very young aged, identified in the ways children behave in their dress or play. Parents were urged to address their child’s gender variance as soon as possible in order to secure their future as a happy adult.  

Around this time, referrals to the Gender Identity Development Service (GIDS) at the Tavistock and Portman NHS Foundation Trust showed a staggering increase; from just 97 in 2009/10 to 2,016 in 2016/17. 

From 2014/15 to 2015/16,referrals increased by over 100% and from 2015/16 to 2016/17 they increased by 41%. Ages at referral seen by the service ranged from a very few at 3 to 17 years old [www.ncbi.nlm.nih.gov] The majority of the children were registerd female at birth. 

What had apparently been born out of a desire to confront and tear down harmful stereotypes around regressive gender stereotyping, had instead become affirmation of the same, to the extent that if a boy wished to play with ‘girl’s toys’ or wear ‘girl’s clothes’ he could not actually be a boy but was instead a girl born ‘in the wrong body’. 

Since 2015, after the fight for gay marriage was won in the UK, the lobby group Stonewall added a ‘T’ to the LGB, a move that saw its funding increase from £4.33m in 2013, to £7.24m in 2017. The charity Mermaids, saw a similar surge in its funding. 

The Human Rights Council established the office of the Independent Expert on Sexual Orientation and Gender Identity (SOGI) in June 2016 and the European Court of Human Rights (EHRC) recognized homophobic and transphobic hate crimes in 2018.

Also in 2018 the Royal College of Psychiatrists (RCPsych) in the UK endorsed the propostion that sex is assigned and gender identity inherent, supported removal of transgender status as a psychological disorder and objected to any kind of ‘conversion therapy’ to make people ‘cis gender’ (i.e. one whose ‘gender identity’ is congruent with their birth sex). 

Alongside these declared positions by medical bodies and campaigning groups, frequent reference was made to the dangers of denying children access to treatment to address their gender variance. It has frequently been asserted that as many as 40% of transgender adults have attempted suicide; for example see “Pubertal Suppression for Transgender Youth and Risk of Suicidal Ideation,” (Turban JL, et al. Pediatrics. Jan. 23, 2020” . 

However, the UK organisation Transgender Trend unpicked some of the research that supports this figure and concluded it was unreliable.

One study was conducted by questionnaire using a non-probability sampling method. This means that the questionnaire was promoted within the LGBT community and people chose whether or not to fill it in. In total 2078 questionnaires were analysed, however only 120 of these were transgender people, and only 27 of these were under the age of 26 years old. It is only the results from the 27 young trans people that was reported in relation to suicide.  Of these 27 young trans people 13 of them reported having attempted suicide at some point in the past. This is where the 48% of all trans youth attempt suicide stat comes from.

Gillick competence

The bulk of reported legal cases around transgender issues reflect the choices made by adults. But when considering a child who declares themselves to be ‘trans’, we must examine more carefully the reality of their informed consent to medical treatment which could leave them infertile or with reduced sexual functioning as adults. There is no ‘test’ for ‘gender variance’ – doctors are expected to prescribe treatment on a self reported diagnosis. 

“Gillick competence” refers to the recognition that the capacity of a child to make serious decisions about his or her life will increase as does the age and understanding of that child. It derives from the decision of the House of Lords in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 where a mother attempted to argue that children under 16 should not be provided any treatment or advice around sexual issues. The court disagreed and said that younger children could access such services, as long as they were able to understand the implications – i.e. were they ‘Gillick competent’?

Although a ‘child’ is defined as a person between the ages of 0-18, Gillick competence is only relevant to children under 16. Once children reach 16, in England and Wales they are held by various statutes as able to make their own decisions across a range of issues. 

These are set out in the judgment of Lady Hale at para 26 of D (A Child) (Rev2) [2019] UKSC 42 (26 September 2019). For example Section 8(1) of the Family Law Reform Act 1969 provides that the consent of a child of 16 to any surgical, medical or dental treatment “shall be as effective as it would be if he were of full age.”

The Austrialian case of Imogen (No. 6) [2020] Fam CA 761; (10 September 2020) has some useful discussion about the continuing role of the court, even with a Gillick competent children (Imogen being over 16 at the time of the proceedings).  The court identified the two stages of treatment for gender dysphoria as ‘stage 1’, being ‘puberty suppression’ via gonadotrophin releasing hormone analogues (GnRHa) in order to halt progression of physical changes such as breast growth or voice deepening. Stage 2 is ‘gender affirming hormone treatment’. 

The court makes a distinction between therapeutic and non-therapeutic treatment, stating that both Stage 1 and Stage 2 were deemed ‘therapeutic’.  Non therapeutic treatments were held to involve invasive, irreversible and major surgery, where there was a significant risk of making the wrong decision and where the consequences of that decision are particularly grave. Given that so little is known about the long term impact of puberty blockers and cross sex hormones for children, I suggest there is a question mark about the categorisation of both stages as ‘therapeutic’. 

But the distinction is important when considering the limits of the court’s paternalistic powers to rule against the wishes of a Gillick competent child. It is of course possible, but very unusual. For example, In X and Others v The Sydney Children’s Hospital Network [2013] NSWCA 320;  (2013) 85 NSWLR 294, the court did not allow a competent 17 year old Jehovah Witness to refuse blood products which were potentially lifesaving. However, this was the only case identified where a court has overruled the views of a Gillick competent child to impose treatment. Other cases involving anorexia nervosa and treatment for drug rehabilitation involved children who were not Gillick competent (Director General, Department of Community Services v Y [1999] NSWSC 644Director General, Department of Community Services v Thomas [2009] NSWSC 217;  (2009) 41 Fam LR 220). There was no recorded case where a court had refused a Gillick competent child the opportunity to consent to therapeutic treatment. 

Much then seems to turn on how the adults assess the nature of the intervention to which a child seeks to consent. There has been considerable disquiet in England about the apparent ‘affirmation path’ upon which children are placed – in that treatment is not merely seen as ‘therepeutic’ but the only identified option, as opposed to therapeutic intervention. 

Marcus Evans, now a psychoanalyst in private practice, formerly served as Consultant Psychotherapist and Associate Clinical Director of Adult and Adolescent Service at the Tavistock and Portman NHS Trust. In 2020 he wrote about why he resigned.

Those who advocate an unquestioning “affirmation”-based approach to trans-identified children often will claim that any delay or hesitation in assisting a child’s desired gender transition may cause irreparable psychological harm, and possibly even lead to suicide. They also typically will cite research purporting to prove that a child who transitions can expect higher levels of psychological health and life satisfaction. None of these claims align substantially with any robust data or studies in this area. Nor do they align with the cases I have encountered over decades as a psychotherapist.

As Heather Brunskell Evans points out, the child’s ‘gender identity distress’ is occurring within this cultural context and the ‘fantasy’ that it is possible to become the opposite sex. This prevents proper or even any discussion of the reality and limitations of surgical and medical interventions – for example, surgery on the female body to simulate a penis cannot create a fully functioning organ. There must be real and serious doubts about whether a child or adolescent can grasp the importance of information about medical or surgical intervention and fully understand the implications. Therefore significant doubts exist about the reality of their consent. 

There were futher worrying signs that the intent announced in the Yogyakarta Principles’ – to remove any minimum age based reqirements around gender issues  – were being encouraged further into the cultural context. For example, in 2019 the legal adviser to the Mermaids charity, attempted to erase entirely any distinction between very young children and those with ‘Gillick competence’ by commenting  

….someone’s gender identity, at any age, must be respected. A child identifying as trans, whether it has been submitted this is as a result of harm or not, is identifying as trans and that must be respected throughout proceedings…More often than not, if a child says they are trans, they will be trans.

Two High Court cases. Re J and Re TP 

So it is interesting to see how all of this has impacted on the approach of the courts in England and Wales, when considering the welfare of very young children who were declared by the adults around them to be ‘transgender’. 

Both cases examined the issue of preschool children transitioning to the opposite sex. That is probably the only factor each case has in common but I think the different approach in each to the very young ‘trans child’ is an indication of the speed with which attitudes have apparently shifted – from not simply recognising the existence of young children who may have gender dysphoria and offering appropriate support, but to embracing the affirmation principle itself. 

J (A Minor), Re [2016] EWHC 2430 (Fam) (21 October 2016) involved a mother who asserted that when her son was 4 years old he wanted to become a girl. She asserted that he ‘disdained his penis’ and was being subjected to bullying at school etc. She could not provide any proof of this and the school denied it was happening. She was supported throughout by the charity Mermaids who played a significant role in the development of a ‘prevailing orthodoxy’ that J wished to be a girl. That view was found by the court to have no bearing in reality and was a product of both ‘naivety and professional arrogance’

Mr Justice Hayden was highly critical of the local authority for getting swept up in this ‘prevailing and false orthodoxy’, commenting at paragraph 20 of the July judgment:

This local authority has consistently failed to take appropriate intervention where there were strong grounds for believing that a child was at risk of serious emotional harm. I propose to invite the Director of Children’s Services to undertake a thorough review of the social work response to this case. Professional deficiencies to this extent cannot go unchecked, if confidence in this Local Authority’s safeguarding structures is to be maintained.

So in 2016 it was clear to see that the court was doing its job to protect children; undertaking a clear and objective appraisal of the available evidence and making a decision in the face of angry opposition from Mermaids – who declared at the time that this decision would be appealed. It was not.

However, the approach of the court seems to have shifted quite dramatically only 3 years later in the case of Lancashire County Council v TP & Ors (Permission to Withdraw Care Proceedings) [2019] EWFC 30. This involved foster carers who had two unrelated children in their care who decided they wanted to transition – the youngest aged 4 years old. The local authority were applying to withdraw care proceedings, so it was a very different situation from re J. But even so, it’s interesting to see how the Judge framed this issue of transitioning pre schoolers:

Notwithstanding even the Guardian’s caution in respect of the openness of [the foster carers] to the possibility of an alteration in the children’s attitude to their gender identity I conclude that Dr Pasterski’s evidence demonstrates that it is obvious that neither of these grounds would meet threshold. Taken together with the panoramic evidence of the child focused approach of [the foster carers] it is overwhelmingly obvious that neither H nor R have suffered or are at risk of suffering significant emotional harm arising from their complete social transition into females occurring at a very young age. The evidence demonstrates to the contrary, this was likely to minimise any harm or risk of harm. The evidence does not support the contention that it was actively encouraged rather than appropriately supported.

This poses two immediate questions: how is it ‘overwhelmingly obvious’ that a 4 year old will experience no harm from a decision to transition from male to female at such a young age (and against the wishes of the school). It seems to be an inescapable fact that the evidence base to support any expert opinion that full social transition for a pre-school child is a ‘positive’ thing, simply cannot exist. 20 years ago, so far as I have been able to discern, this phenomenon was unknown. There is apparently no cohort of children who have been tracked from toddlerdom to adulthood to see if full social transition at a young age was something that helped or hindered their emotional, physical and sexual development. If I am wrong and that evidence does in fact exist, it did not appear to be before the court in either of the two cases I discuss here.

The second question is why the court did not give more critical appraisal to the highly unusual fact that here were two unrelated children in the same family, both apparently expressing a wish to change sex at a very young age. To what extent can the court be confident that this was a genuine expression of their wishes and feelings, rather than a product of environmental and social pressure from the adult care givers? There is considerable and I think reasonable fear expressed by gay people that some parents would rather have a trans child than a gay child as this is more ‘socially acceptable’.

I think there is a real problem here. No one is suggesting – yet – that 4 year olds should face surgery or medical intervention. But how confident are we that a child set on a path aged 4 is going to find it easy to leave that path when older? The ultimate destination is presumably some form of significant medical or surgical intervention and life long consequences. It is troubling to note that we appear to know more about the impact of puberty blockers on sheep than we do on children. I note the comments from the Science Symposium on 18-19 October 2018 at The Tavistock and Portman NHS Foundation Trust:

KIERA BELL CASE TO DISCUSS WHEN JUDGMENT IS OUT 

Tide is turning ?

Shortly before the case was heard in court on 7th and 8th October, the NHS announced a review on 22ndSeptember, lead by Dr Hilary Cass OBE, former President of the Royal College of Paediatrics and Child Health, into gender identity services for children and young people. The review will be wide-ranging in scope looking into several aspects of gender identity services, with a focus on how care can be improved for children and young people including key aspects of care such as how and when they are referred to specialist services, and clinical decisions around how doctors and healthcare professionals support and care for patients with gender dysphoria. It will also set out workforce recommendations for specialist healthcare professionals and examine the recent rise in the number of children seeking treatment. Recommendations for children and young people’s gender identity services will be made in 2021. 

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