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Exclusive: NHS England given two weeks to amend ‘discriminatory’ transgender specification

Exclusive: NHS England given two weeks to amend ‘discriminatory’ transgender specification
By Jess Hacker
28 October 2021

Exclusive NHS England has been asked to amend a ‘discriminatory’ service specification for transgender children within weeks or face the threat of a legal challenge, Healthcare Leader has learned.

The challenge from the campaign organisation Good Law Project comes a month after the Court of Appeal overruled a case that said transgender children under 16 cannot consent to puberty blockers: medicine that pauses puberty for the duration it is being taken.

The initial ruling meant that all trans children had to present to a judge to access the medication, with all new referrals frozen for nine months.

Although the service specification was amended in October to reflect the Court of Appeal’s overruling, Good Law Project suggests that several of the requirements set out in the service specification for NHS Gender Identity Development Service (GIDS) are ‘unlawful direct discrimination’.

The requirements being contested include the use of multi-professional review groups to assess referrals for endocrinological clinics, and the need for parental consent.

Good Law Project argues that the need for parental consent ignores Gillick competence, the legal criterion that allows under-16s to consent to treatment independent of their parent or guardian.

If a child is deemed by a clinician to be Gillick capable then they are entitled to make their own decision and to decide whether that information is shared with their parents, Good Law Project claims.

The organisation also argues that the review groups are ‘ “less favourable” treatment’ as the review process is ‘only applied to trans patients’ with ‘no other patients treated this way’.

Delays to starting puberty blockers – such as those potentially caused by these two steps, in addition to the three-year waiting list – would result in the child undergoing unwanted, permanent pubertal changes.

Jo Maugham, director of Good Law Project, told Healthcare Leader: ‘If you are a qualified specialist who is treating a trans adolescent, even one who has the support of both of their parents, your treatment decisions have to be subjected to the oversight of the review group. But that is not true of anyone else.

‘In society, everybody else gets treated by their doctor, without that treatment being subjected to some formal oversight process before the treatment can commence. That is directly discriminatory and is inexplicable.’

In letters seen by Healthcare Leader, dated 18 October, the organisation invited NHSE to amend the service specification within 14 days, or legal action would proceed.

NHSE’s response

In response to Good Law Project’s claims, an NHS spokesperson said: ‘The Tavistock and Portman NHS Foundation Trust has welcomed the independent multi-professional group’s role in providing assurance to patients about their processes.

‘Requiring support for treatment from both children and parents is good clinical practice in difficult decisions, and has been in place since requirements for this service were published in 2016.’

Referrals suspended

This follows the AB v Tavistock and Portman NHS Trust case, which considered whether young transgender people can give informed consent to puberty blockers.

The case was brought against the Tavistock, which oversees the GIDS: a national specialised service, based in London and Leeds, and the only gender identity service of its kind for children in England. The Tavistock is currently seeing young people who were referred in 2018 for their first GIDS appointment.

In December 2020, the High Court ruled in favour of the claimants, with judges saying it was ‘doubtful’ that children aged 14 to 15 could understand ‘the long-term risks and consequences’ of taking puberty blockers, leading to NHSE pausing all referrals from GIDS for blockers.

As of September 2021, no one approved for treatment by the GIDS had been given an appointment with an endocrinologist.

However, the AB v Tavistock case was fully overruled last month (17 September) by the Court of Appeal.

In its ruling, the judge said that the High Court was ‘not in a position to generalise about the capability’ of transgender people to consent to puberty blockers.

It added that there is no ‘real distinction’ between children using Gillick competence to take puberty blockers and under-16s being Gillick competent to access contraception.

Importantly, the judges claimed that the claimants only served ‘some expert evidence’ and that ‘none of it complied with the rules regarding expert evidence and a good deal of it is argumentative and adversarial’.

Good Law Project said: ‘Despite that, it appears that NHSE remains swayed by uninformed views and has allowed those to take precedence over the informed views of those who are genuinely experts in this field.’

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