Final Act of Bigotry: Tories’ Last Stand Targets Trans Kids with Puberty Blockers Ban
UPDATE: On 29th May, the Atkins made the emergency banning order and laid it before Parliament just minutes before the Palace of Westminster office closes. I’m reviewing the order.
On 23rd May, the Health Secretary Victoria Atkins announced, “today, I want to set out my clear intention to introduce a banning order on puberty blockers, with limited exceptions, under section 62 of the Medicines Act 1968.”
The announcement came after the general election was called so it is likely they will make an emergency order. It’s almost cartoonishly evil that they’ve chosen to wrap up their time in government with a grand finale of transphobia.
The law
Section 62 of the Medicines Act empowers the ministers to ban the sale, supply, or importation of medicines.
Before making a permanent banning order, the ministers must consult the appropriate committee (either the Commission on Human Medicines or an ad-hoc expert committee appointed by the ministers) and organisations representative of interests likely to be substantially affected by the ban. In this case, trans rights charities, specialist clinics (NHS or private), patient support groups, pharmaceutical manufacturers, and the endocrinology profession are some of the obvious representatives.
It seems they originally planned to make a permanent order, but Parliament will dissolve on 30th May, so they do not have time to go through the consultation process.
Alternatively, the ministers may make a temporary emergency order without consultation if, in their opinion, a ban with immediate effect is essential to avoid serious danger to health. An emergency order expires three months after commencement.
Analysis
The minister’s power is limited in a number of ways.
Scope
The ministers cannot designate puberty blockers as the subject of the ban. They have to name the medicines. Since all puberty blockers have other use they will have to make exceptions. For example, Nafarelin is used in the treatment of endometriosis and early puberty. It is not clear what the minister’s approach may be in formulating the exceptions.
It is interesting that the Health Secretary mentioned the ban will come “with limited exceptions.”
It is hard to demonstrate that an emergency banning order satisfies the condition of being essential to avoid serious danger to health when there are wide exceptions and it discriminatorily targets trans people. Therefore, I suspect the ban may affect cisgender people as much as trans and gender-diverse people in order to circumvent the rules.
This approach seems very close to being Wednesbury unreasonable, meaning it is so irrational that no reasonable person acting reasonably could have made such a decision.
Commencement and expiry
An emergency banning order must take immediate effect; the ministers may not designate a later date for commencement. A banning order is a statutory instrument. The Statutory Instruments Act 1946 provides that a statutory instrument must be laid before Parliament before being made, so the commencement date will be 28–30th May. The order will therefore expire by the end of August.
If they miss the deadline, the ministers can still make the order, but it appears to be against constitutional convention to do so. Of course, if the incoming administration chooses not to carry it over, the order will lapse a bit earlier.
Application in Scotland, Wales, and NI
The ministers must consult with the devolved administrations. Since none of them have adopted transphobic policies, the ban may end up being applicable only in England. However, the ministers may attempt to force it through and give it UK-wide effects.
The next administration
Most polls and election models predict an outright Labour majority. The shadow Health Secretary, Wes Streeting, may become the Health Secretary in six weeks. Streeting is an annoying, awkward, affectless careerist, and he recently said he regrets saying “all trans women are women.” He also praised Hannah Barnes for her effort to destory Tavistock.
In response to Atkins statement in Commons, Streeting said “I also welcome what she said about the justifiably cautious and responsible approach she is taking in relation to puberty blockers in the light of the Cass review.” In all fairness, he did not welcome her move. He only welcomed what she said and hid behind the now discredited Cass review.
His handling of the banning order will be a litmus test to see if the next administration will become truly transphobic, not just in words, or if it will become a good ally of the LGBTQ+ community.
The incoming Health Secretary has 3 options: let the emergency banning order expire in August, revoke it proactively, or let a backbencher ally annul it.
As the election approaches, it’s crucial to engage with candidates on issues that matter deeply to our communities. I encourage you to reach out to candidates, ask them about their stance on this issue, and urge them to commit to policies that protect trans kids. Your voice can make a difference in ensuring that the next administration stands against bigotry and supports the LGBTQ+ community. Let’s hold our future leaders accountable and ensure they represent the values we stand for.
The author is a former lawyer and specialises in international trade, and public law. She is an entrepreneur helping to make the world more sustainable.
