A blow to the rights of transgender children

The High Court just dealt a blow to the rights of transgender children in the UK (Bell v. Tavistock, 2020). As a consequence, thousands of trans teenagers have been stripped of the autonomy to access a life-saving medical treatment. The NHS trust affected is seeking permission to appeal.

Reeling from this ruling, I noticed how certain misconceptions about transgender children, which have become much more prevalent in the last few years, may have led to this injustice. So, I thought I would dispel some myths and discuss how these myths are used to justify attacks on trans children's access to healthcare – sometimes even by gender-specialists (Turban et al., 2017; Temple-Newhook et al., 2018; Winters et al., 2018). 

Accessing healthcare

The case was brought against the Tavistock & Portman's Gender Identity Development Service (GIDS) (Bell v.Tavistock, 2020), the only NHS service for transgender children in England and Wales. The case rested on the assumption that under-16s cannot be trusted with their medical decisions. The judgement of this case was released on Tuesday and the NHS consequently issued an amendment to GIDS' service specification that means they cannot continue to refer patients for endocrine treatments that prevent the patient from having to endure a traumatic, gender-incongruent puberty. More detail on how GIDS plan to handle this issue is available on their website, but in short, there is now no way for under-16s in England and Wales to access this vital treatment without first going to court. 

'Gillick competence' is the result of a 1985 landmark ruling (Gillick v. West Norfolk and Wisbech AHA, 1985) that enables children to access healthcare without parental consent if they are ascertained to understand the possible and probable effects of the treatment. Gillick competence is now vulnerable to legal challenge, which could make access to abortion in particular, much harder for under-18s. This is hard to square with the self-described 'feminism' of those supporting the case. Even if Gillick had been preserved by a ruling in GIDS' favour, bringing this case would still have worsened the already difficult situation in which trans children find themselves when seeking support for their identities. This result is a terrible blow to the rights of British youth – especially, but not exclusively, trans youth – to bodily and personal self-determination. 

The only transgender-specific medical treatment offered to under-16s in the UK is GnRHa (Gonadotrophin Releasing Hormone analogues) – commonly known as puberty blockers (PBs). These medications interrupt the progression of puberty, and have been used to treat precocious puberty, even in very young children, safely and successfully for years (Zenaty et al., 2016). Puberty blockers are completely reversible (Manasco et al., 1998; Panagiotakopoulos, 2018) – reversibility is the whole point [Editor's note: Although note the NHS guidance on this, and the final report from the Cass Review]. Children are able to experience just the beginnings of their endogenous puberty, and then pause to take time to make a properly informed decision about what is right for them, their bodies and their genders (Schaagen et al., 2016). 

However, the judgement in Bell v. Tavistock (2020) argues that because most of the GIDS patients who use puberty blockers subsequently move onto irreversible gender-affirming hormone therapy (GAHT), that the blockers may somehow reinforce their (trans)gender identity. It is not made clear why this is more problematic than the reinforcement of a gender identity aligned with the sex assigned at birth. Informed consent to puberty blockers, they argue, therefore requires the patient to also comprehend all of the possible risks and consequences of GAHT as well as PBs. This misinterprets the evidence: the fact that most patients prescribed PBs choose to proceed to GAHT indicates that PBs are generally prescribed to individuals who will benefit from them (given that GAHT is not currently an option before age 16). The existence of a small minority who discontinue their treatment supports the rationale for PBs – that they provide time for the young person to consider their choices regarding permanent treatments like GAHT without the urgency that the onset of a gender-incongruent puberty would otherwise produce. Urgency both in terms of clinical and social outcomes, and subjective feelings of urgency that might make calm, informed decision-making more difficult. Thus it seems PBs are beneficial whichever decision they ultimately facilitate. The judgement also argues that the remaining scientific uncertainties around the longer-term effects of GnRHa would be difficult for an under-18 to adequately comprehend, even though a similar level of uncertainty existed around hormonal contraception when the court ruled in Gillick that under-16s were capable of providing adequate informed consent to access hormonal contraception without the need to seek parental consent.

A continuing identity 

There is a long and sad history of trans people not being believed when we disclose our identities. This is especially true for those who are less normative than the binary categories of feminine women and masculine men – butch trans women, femme trans men, nonbinary, genderqueer, genderfluid or agender people are all less likely to be believed (Riggs et al., 2019). The so-called 'desistance' myth, arising from four shoddy papers that shouldn't have made it past peer review, claimed that 80 per cent of trans-identified children would grow up to be cisgender. 

Children who identify as trans are in fact extremely likely to continue to identify as such, as beautifully explored in a paper debunking the 'desistance' myth (Temple-Newhook et al., 2018), which recently deservedly won the Gender Identity Research and Education Society Research Prize. (See Ansara & Hegarty, 2012, for an analysis of how the psychological literature on transgender people came to be dominated by a small number of extremely cisgenderist authors, by exploiting flaws in the peer review system.) The term 'desistance' is taken from criminal psychology – it entered the psychological lexicon as an antonym to recidivism, and had not changed from that use until its appropriation for this context (Temple-Newhook et al., 2018). Applying the term here casts merely being transgender as a crime, which is, to say the least, stigmatising.

In debunking the 'desistance' myth, Temple-Newhook and colleagues (2018) quote the lead author of two of the four articles which established the myth: 'explicitly asking children with [gender dysphoria] with which sex they identify seems to be of great value in predicting a future outcome' (Steensma et al., 2013, p. 588). In other words, kids who say they identify as a particular gender, continue to identify with that gender. This isn't surprising – cisgender youth tend to continue to be cisgender into adulthood, too. 

Valuing authenticity and agency

Let's think about this from the point of view of clinical science and the efficacy of 'tests'. Diagnostic tests rarely get things 100 per cent right 100 per cent of the time, especially where the mind is concerned. Sensitivity is the ability of the test to reliably give a positive result when the entity being tested for is present – the 'hit' rate divided by the 'miss' rate. Specificity is the ability of the test to reliably give a negative result when the entity is absent – the 'correct rejection' rate divided by the false-positive rate (Fawcett, 2006). As diagnostic tests go, the test for assumed-cis youth to be permitted to undergo a gender-congruent (i.e. congruent with their stated or assumed identity) puberty seriously lacks specificity – I am a woman, and I was a girl – but I had an androgen-driven puberty because (quite understandably) nobody bothered to check if it was right for me. 

The 'desistence' myth, and society's general animosity towards transgender people conspire to make sure the diagnostic test for identified trans youth to be permitted to undergo a gender-congruent puberty has a terrible lack of sensitivity. Furthermore, it is an onerous process and surely puts a terrible strain on the child's sense of self, always being expected to 'prove' their identities. Study after study shows how harmful it is to undermine the gender identities of trans people (McLemore, 2015; 2018; Russel et al., 2018; Gridley et al., 2018; see Connelly et al., 2016 for review). My own experience in an adult service felt like a sceptical interrogation – 'oh, you really think you're a woman?!' – sadly, my conversations with trans youth and their parents have convinced me that GIDS patients' experiences are only slightly better, if at all, which is why I have been a (reluctant) critic of GIDS for some time now.

These false 'desistance' figures are sometimes quoted at parents to discourage them from permitting even the most basic parts of a social gender transition, such as changes of name, pronoun and/or clothing. This doesn't happen at GIDS, but it certainly happens in the media and I've heard anecdotal reports that it occurs at a number of clinics in other parts of northwestern Europe. Clearly, given the unreliability of the methodologies in the papers that Temple-Newhook and colleagues (2018) criticise, this assumes that even interrupting a cisgender identity with a voluntary, self-initiated period of self-exploration is a worse approach than one in which the child has the opportunity to explore gender expression freely.

The superficial appearance of a cisgender childhood is preserved by denying children agency, shoving them into a box marked 'boy' or 'girl' when at the very least, they'd prefer that didn't happen at the moment please. This framework sees any case of a child living a transgender life when they 'could have been' cisgender as a bad outcome – and the lengths some clinics will go to, to prevent this outcome make that transgender life much less liveable. The slimmest possibility of the child being cisgender is protected – at the expense of the child's most fundamental agency – that over their identity and their body. A hypothetical cisgender child seems to matter more to the current GIDS system than the very real transgender children GIDS is supposed to be helping. Of course, GIDS also receives referrals of cisgender children and children who know that they don't yet know, and works to support them as they explore and develop their gender and sense of self. However, there are also children who are very clear in their gender identification and will explicitly assert that identity when given the opportunity to do so. It is these children for whom these repeated assessments present problematic delays.

This is a pattern. When it comes to sex and gender (and many other areas of selfhood; see, for example, work around neurodiversity), medical professionals and parents alike prefer normativity to authenticity. Some may say that declining to treat is a neutral option, but when the demands of normativity go the other way, in the case of intersex children, treatment has all too often been inflicted against their wishes (Carpenter, 2016), often in part because of how clinicians have framed their advice to parents (Roen & Hegarty, 2018).

I'm certain that a huge majority of professionals make these decisions from a place of genuinely desiring to do what is in the child's best interests. But while the struggles associated with being openly trans may be obvious and visible to the outside world, the struggles associated with being trans and closeted are largely hidden. Time and again the literature shows that undermining a trans person's true gender does enormous harm. Clinicians must be expected to follow evidence-based best practice. Exactly what that means is up for debate, and I'm sure the GIDS team are following that debate closely to work out how best to serve their patients. 

Reducing harm

However, I want to say to GIDS, to everyone: the evidence is clear. When children want to explore a social transition, the potential for harm in letting them choose clothes, pronouns and even a name that make them feel comfortable, is dwarfed by the harm of stopping them and undermining their identity. In one study, for example, simply using an identity-congruent name, chosen by a trans child, in one additional context reduced suicidal ideation by 29 per cent and suicidal behaviours by 56 per cent (Russel et al., 2018). By the time medical interventions become relevant, the likelihood of a child ultimately identifying as cisgender is very small – regret is usually related to a more binary transition than was appropriate for them. This could perhaps be the product of a desire to be perceived as 'trans enough' to access treatments, or simply the relative invisibility and unintelligibility (Nicholas, 2018; Walsh & Einstein, 2020) of nonbinary people in our society.

Even for children who are given access to blockers, the system is already painfully slow. Imagine at age 12 your body starts changing in ways you find terrifying, knowing that these changes aren't reversible, and will lead you to be more visibly trans, more likely to be misgendered or attacked, and cause you to experience increasing distress about the way your gendered embodiment is perceived by yourself or others. Now imagine you can pause it – fantastic news! (Ignoring the waiting lists and assessments which together add up to a minimum of 28 months' wait before GIDS will consider referring you for blockers – which will now require the extra step of securing the authorisation of a court.) Then they tell you, 'OK then, now wait four years and then you can start asking about resuming puberty, this time in a gender-congruent way'. Those four years are going to seem long. By the time you're 16, you've spent a quarter of your life paused in early puberty, waiting for the gender-affirmative (hormone) treatment you know will make life so, so much better. Developing on a timeline close to peers is important to trans teens (Gridley et al., 2018). While your friends are going on dates and undergoing this crucial stage of psychosexual development together, you have to wait until they've overtaken you by four years. Forcing children to choose between delaying puberty until age 16, or returning to the endogenous puberty that horrified them seems absurd, even cruel to me. 

I'm not alone in this. The 'affirmative' model, in which the child's gender identity and right to assert that identity is affirmed, is much more common in much of the USA and Canada, for instance. This is also known as the 'informed consent' model (mostly in adult contexts), because rather than having to 'prove' their identities (to a 'gatekeeper'), patients are instead only required to show they understand what the treatment will do and what the risks and side effects are – it is then up to them to decide whether, when and how to proceed. This approach sees consistently excellent mental health outcomes (Olson et al., 2016) with miniscule rates of regret or desistance (Pullen Sansfaçon et al., 2019). 

Seeing fluidly

It seems to me that the younger generation no longer see identity in the same fixed way that older generations do. Gender (and sexuality) to them is as fluid as other dimensions of identity, such as one's profession, rather than relatively fixed like race might be. Of course in practice only a very tiny number of people transition more than once in a lifetime, but if we saw multiple transitions as valid (indeed perhaps if we saw gender-transitions in general as valid) we might come to realise that a child who is happy and healthy and transitions twice, is a far preferable outcome to a child whose identity wasn't adequately supported through a period of flux, whose sense of personal agency was trampled over, and who grows up to be, at least superficially, cisgender.

But what about the fact that they're still developing cognitively? The limited evidence we have so far indicates that trans youth understand their genders in the same way that cisgender youth do – albeit maybe more deeply (Conron, 2008). Even prepubescent children show the same pattern of explicit and implicit gender cognition, regardless of whether their expressed gender was congruent with assigned sex. For example, one way in which children express their genders is social imitation, wherein preferences for particular objects are biased by the preferences they see in other children of the same gender. Trans and cis girls both tend to express greater preference for objects when told that a child with a female name liked that object, and less preference when the endorsement came from a child with a male name, and the inverse applied to trans and cis boys (Olson et al., 2015). (I always refer to girls and boys based on their identities, not assigned sex; please do the same!)

Speaking up 

So trans children know their own gender, yet refusal to provide access to GAHT until age 16 is currently a hard and fast rule in GIDS, and now they'll likely need a court's permission to prevent the harms of a gender-incongruent puberty. All of this is to 'protect' the child from their own decisions. This is the real scandal in paediatric gender-care, this is the unproven treatment protocol, and this is how GIDS have consistently failed to deliver care on a truly informed-consent basis. 'Protecting' people from their own bodily autonomy hasn't gone well in the past. Criminalising consensual sex, withholding contraception from unmarried women, legislation against interracial marriage – and now, trans children's genders. Why isn't this the trans healthcare issue in the newspapers, on Panorama and in the courts?

We know why. Trans children's parents, unless they can afford to go overseas or can find some other alternative route to treatment, have to rely entirely on GIDS, so they daren't rock the boat. They cannot litigate this issue because to do so would put them in direct conflict with the people who hold the only key to their child's wellbeing. GIDS staff are constantly portrayed in the media as dangerous for the essential care they provide to children; it's no wonder they end up taking overly conservative approaches, and even then they face litigation. If the court cares about the alleged 'unknown potential risks' of GnRHa, why didn't they ask why children are required to wait so long before being permitted a gender-congruent puberty? 

Unless they see a trans life as of inferior moral worth to a cis one?  

So, I am asking you, dear reader, to speak up on behalf of trans kids. When GIDS is attacked for the many important things they do get right – speak up. When GIDS gives in to pressure to value hypotheticals over real children – speak up. When the people whose job it is to protect trans children, to care for them and to help them cope with a world that would rather they didn't exist, when the people trans children and their families are supposed to trust, fail them – speak up. Whether it's the Minister for Women and Equalities, a judge, doctor, teacher or psychologist, or even their parents – don't be a bystander.

-       Reubs Walsh, PhD candidate, Vrije Universiteit Amsterdam

Editor's note: The full judgement, which has been linked from the first sentence of this piece, is also available here.

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