On 19th December 2024, the Court of Appeal agreed that it was wrong to dismiss proceedings about a child wanting cross sex hormones in the face of parental opposition, once that child was 16. Proceedings would be adjourned to consider the result of a further assessment with Gender GP because of the rapidly changing landscape regarding medical transition. The Court of Appeal agreed it had the power to override a competent child’s consent, even when that child was 16 However, the Court of Appeal declined to designate medical transition should be a ‘special category’ of treatment, thus requiring automatic oversight by the courts.
This is a significant step forward for the family courts which have shown to be dangerously captured by gender identity ideology over the years. Bell v Tavistock in 2020 was a seismic event that triggered the Cass Review – but the Court of Appeal then rowed back. In 2019 the High Court was prepared to find there was ‘overwhelming evidence’ to support the social transition of a 4 and 7 year old. In 2023 the President of the Family Division (who sat in the Court of Appeal for these proceedings) was willing to send a teenage girl out of the country to have her breasts removed – a procedure that would be unlawful here.
The Court of Appeal’s decision that medical transition requires a little more scrutiny in a post Cass landscape is a welcome course correction – but a ‘throwaway’ comment about the Review itself does remind me that we are not out of the woods yet. I will discuss this in further detail below.
Background
I represented the mother at the first court hearing in April 2024 and have written about it here. These proceedings involve a 16 year old girl who for several years expressed the wish to transition to be seen as the opposite sex. Her parents had separated. The father was very supportive of transition, the mother implacably opposed and she made application to the court.
The court were prepared to support the mother and deny any medical intervention while the child was under 16, but once that age is reached, the Family Law Reform Act 1969 says that a child with mental capacity should be treated as an adult when making decisions about medical treatment.
I argued that the High Court had the power to override a 16 year old’s ability to consent to a medical intervention that was unevidenced and highly controversial; there could be no ‘informed consent’ in such circumstances. The Cass Review – which was published a week before the court made its decision– was clear that prescribing hormones to 16 year olds, should be approached with ‘extreme caution’ and required a second opinion from an independent multi disciplinary team.
The Gender Plus clinic had been regulated by the Care Quality Commission in January 2024 to provide cross sex hormones to children and the child wanted a six month assessment there. However, we all agreed that no private provider would be able to meet the Cass/NHS requirements of an independent second opinion offered by a multi disciplinary team. The mother wanted the court to adjourn the matter, have oversight of any assessment by Gender Plus and be prepared to deny treatment if it did not consider it in the child’s best interests. The mother further argued that provision of medical transition should be considered a ‘special category’ of treatment, over which the courts should have continuing oversight.
The first court did not agree and dismissed the proceedings, on the basis the child was 16 and therefore benefited from the presumption of capacity in the Family Law Reform Act. She is intelligent with no impairment to her brain functioning and Gender Plus was a regulated provider. There was thus no ‘realistic prospect’ of overriding the child’s wishes and the continuing proceedings were causing distress and emotional harm.
The Court of Appeal agreed to reconsider that refusal, as a matter of public interest. It heard submissions on 12th December and judgment was handed down on 19tth December – a remarkably quick turn around.
The judgment of the Court of Appeal
The Good
The fundamental question before the court was if the Judge had been right to refuse to continue proceedings to allow the court to consider the outcome of the Gender Plus assessment.
The mother made the following points
- The legal and regulatory landscape for gender dysphoria treatment was changing rapidly
- The final Cass Report was published on 10th April, a week before the hearing
- The Government was continuing to take steps to respond to the Cass Review
- Gender Plus was a private provider, whose procedures diverged from the NHS protocols.
Thus, cases concerning this kind of intervention should be a ‘special category’ of case with continued court oversight.
The Court of Appeal did not agree this was a ‘special category’ of treatment but agreed ‘although not without hesitation’ in saying that the Judge had been wrong to refuse to keep the court proceedings alive, for two combined factors (see para 7)
Gender Plus could not satisfy the recommendations made in the Cass Review, particularly the requirement that every case required consideration by a national multi disciplinary team
The Cass Review had only just been published at the time of the first court’s decision, and the Government was taking various steps to implement it in ways the court could not predict but which might ‘affect an appropriately objective view of where the young person’s bests interests lay’.
The Court of Appeal stated (para 38) that the judge had not put enough weight on the ‘rapidly changing regulatory environment and the situation of private providers like Gender Plus in light of the recommendations made by the Cass Review’. The court was also struck by the first Judge’s observation that she was ‘not sure’ if she shared the Guardian’s confidence that the child was able to consider all the evidence about treatment in a ‘balanced and unbiased’ way.
The wiser course of action was therefore to keep proceedings alive until the Gender Plus assessment was completed and then it can be considered if necessary by the court.
This is a very significant decision. The Guardian and the father argued there could be no justification at all for an adjournment – the child wanted the treatment, the child was 16, WPATH guidelines were followed, the doctors had to be trusted and that was that. Prior to the Cases Review, this argument would have been accepted. That the Court of Appeal now rejects it, is a significant blow to those activists who continue to assert that medical transition is not merely uncontroversial but ‘life saving’ It is a welcome reinforcement by the Court that the Family Law Reform Act does not provide a child with an absolute right to consent or refuse treatment, and is a recognition by the court that the medical profession requires continued oversight in this area. This contrasts with the approach of the Court of Appeal in Bell and the refusal there to get involved at all with the doctor/patient relationship – even when that patient was a child who could not possibly consent.
Further, this judgement is positive news for the application for judicial review of the decision by the Care Quality Commission to regulate Gender Plus, as the fundamental premise of that legal action is that the CQC acted unreasonably in regulating a private provider which could never meet the standards now demanded by Cass/the NHS. REF JR It also conceivably gives impetus to further challenges to the Secretary of State for Health for permitting cross sex hormones to be provided to teenagers without at least the prior approval of the court.
The bad
So lots of good stuff. However, the judgment is in other respects disappointing. It dodges and fudges what in my view is the central issue; the court needs to step in to protect children from highly controversial medical interventions, the evidence for which as identified by the Cass Review is ‘remarkably weak’. Wes Streeting, when announcing on XX the permanent ban on prescribing puberty blockers outside of a clinical trial, declared that it was a ‘scandal’ that such interventions had been allowed in the absence of a clear evidence base. I agree.
Despite all this, the Court of Appeal rejected the invitation to treat medical transition as a ‘special category’ of treatment, meriting continued court oversight and instead reduced the issue to a much more narrow one of keeping open the possibility that the court might need to decide whether hormone treatment was or was not in this child’s best interests at some future point.
If the likely sterilisation and deprivation of adult sexual function for a child, based on ‘best practice’ that is anything but, does not merit being a ‘special category’ of medical intervention, then I cannot understand what would be. The Guardian at the first hearing had many meetings with the child but failed to talk at all about potential future sterility. Neither the Guardian nor the first court considered this was a problem. The father and Guardian continued to rely on WPATH guidelines before the Court of Appeal, despite now ample evidence from the Cass Review and cases in other jurisdictions that they are not reliable – see for example Boe v Marshall Boe v. Marshall – Alabama Attorney General’s Office and the Cass Review paras 47, 48, 9.22, 9.23, 9.32, 12.28, 12.30.
As the mother’s solicitor Paul Conrathe commented after the judgment
The Court stated that such protective measures were for regulators and Government. With the regulator, the Care Quality Commission, deemed unfit for purpose by a recent independent review, it is for Wes Streeting to step up and put in place protections for vulnerable children receiving powerful irreversible experimental treatments in the private sector. The profit motive, ideological zeal of clinicians and exceptionally poor evidence base for this treatment mean there is a desperate need for urgent regulatory protection in the private sector
I appreciate there are obvious and necessary public policy reasons as to why any court should not be seen to ‘take sides’ in any area of controversy. But nor should any court claim controversy or uncertainty when none exists. The Cass Review searched over four years and could find no reliable evidential basis for medical intervention for childhood ‘transition’. In my view, no child has the capacity to consent to it. This is an area almost entirely captured by political activists. The Court should have been willing to acknowledge this, or at least entertain the possibility, having before the wholesale adoption of Dr Cass’s recommendations by the NHS and Governments of both political colours.
But instead, the Court of Appeal makes a bizarre and concerning reference at para 19
The Cass Review has received wide publicity. Like the subjects it covers, it is controversial. Strongly held views have been expressed on both sides of the debate. Nothing I say in this judgment should be construed as expressing support for one side or the other.
‘Strongly held’ views have indeed been expressed, to the extent that Dr Cass may no longer freely travel on public transport, given the threats made to her safety by some who express such ‘strongly held’ views. I should not have to point out to the Court of Appeal, that the weight and influence of one’s views is not determined by the vehemence with which they are expressed. The CoA states explicitly that the Cass Review should be considered ‘controversial’ without providing any detail as to the nature and quality of that controversy and the ‘evidence’ on which Cass’s detractors rely – which has been routinely poor. The Court of Appeal has now given these detractors credibility which they do not remotely deserve and this is gravely disappointing.
For example this is what journalist Jesse Singal had to say about the white paper ‘An Evidence based Critique of the Cass Review’ published by the ‘Integrity Project’ which is associated with but NOT endorsed by Yale University. Yale’s “Integrity Project” Is Spreading Misinformation About The Cass Review And Youth Gender Medicine
McNamara et al. is an exceptionally misleading, confused, and fundamentally unprofessional document. The authors make objectively false claims about the content of the Cass Review, badly misrepresent the present state of the evidence for youth gender medicine, and, just as alarmingly, exhibit a complete lack of familiarity with the basic precepts and purposes of evidence-based medicine. In some cases, the errors are so strange and disconnected from the Cass Review that they can only, realistically speaking, be attributed to malice, a severe lack of curiosity and reading comprehension, or both. This might sound harsh, but you’ll see what I mean shortly. It is genuinely surprising that any of the co-authors would agree to put their names on a document like this.
Conclusions
I agree no court can play politics or attempt to regulate the medical profession. But this is about evidence, the best interests of children and the exercise of the ancient parens patriae jurisdiction. When the medics have no clothes on, the court should be willing to notice.
Despite all this, we must not lose sight of the significance of this judgment. We have come a long way from 2019 and the High Court’s enthusiastic endorsement of socially transitioning a four year old. The Court of Appeal has confirmed it is willing to override the wishes and feelings of a capacitious child who wants to medically transition, if to do so is in that child’s best interests. As more cases about ‘medical transition’ come to court in jurisdictions all over the world, as more detransitioners seek damages for what was irreversibly done to them, the more the courts will have to step up and do their job; to protect children when other adults have lost their minds or any allegiance to evidence.
And I offer very great thanks to the mother in this case, who has done her best to protect her daughter in what has been gruelling legal proceedings. I hope has made it easier for other children to be protected as well.