Critical thoughts on Bell v. Tavistock

Florence Ashley
Dec 1, 2020 · 5 min read
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I have a million thoughts to share on Bell v. Tavistock, the decision from the UK High Court which stated that by-and-large youths 13 or under must ask courts if they want puberty blockers, and that most youths aged 14–15 will also need to ask courts to allow them to take blockers. The decision will be appealed by the Tavistock. Let me write down some of these thoughts.

First, the Court confuses consent to puberty blockers and consent to hormone therapy. Though the latter often follows, it is independently consented to at a later time. Full knowledge of the latter shouldn’t be required.

Second is the related confusion of the Court as to the purpose of puberty blockers. Puberty blockers serve at least three purposes: (1) alleviate gender dysphoria, (2) prevent bodily changes that would have to be reversed, and (3) gives time. It isn’t one or the other — if blockers weren’t about giving more time to the youth (a goal I disagree with), then we would just prescribe hormone therapy directly and skip over blockers. After all, waiting until 16 for hormones significantly delays puberty compared to peers!

Third, the Court considers extensively the question of puberty blockers’ reversibility and ability to fully appreciate its consequences, but does not consider how endogenous puberty is non-consensual for the youth, and equally hard to fully appreciate. This is a feature of the law of informed consent, but it is a deeply cisnormative feature that privileges what society considers natural development regardless of youths’ actual autonomy. Given this, it’s not surprising that the Court speaks of blockers ‘promoting persistence’ as though it’s a negative thing, as though there is something wrong with being trans. There, they selectively cite from the DSM-5 (and only perfunctorily acknowledge critiques) but fail to mention that the WPATH Standards of Care specifically state that being transgender is part of normal human variation. And I would add: healthy.

Fourth, the Court inadequately handles the question of scientific uncertainty, privileging speculative unknowns over the known reality of these youths. They do so by asking for incontrovertible evidence of positive mental health impacts. Notwithstanding the fact that various forms of evidence of blockers’ positive impacts exist, this fundamentally misconstrues blockers as a treatment akin to anti-depressive medication, rather than one related to personal autonomy and self-actualization as with birth control. Asking for that sort of statistical evidence clashes with the Gillick test for birth control, which asked for no such evidence. The only place where ‘effectiveness’ on mental health is referenced is when the parents won’t be informed. In that case, birth control can be prescribed confidentially if the person’s mental health is likely to suffer without it. Note how the standard is not only individual, but the threshold is merely ‘likely to’. That threshold is met under current evidence on puberty blockers.

The Court gets around engaging with that thorny precedential difference by folding the question of blockers’ impact on mental health into the question of capacity to consent. Yet, it’s unclear how that’s relevant. Youth are coming in asking for puberty blockers because they see bodily changes during endogenous puberty as being in some sense contrary to their bodily self-image, which is related to their gender identity. They want their body to reflect how they understand their own gender. That’s the primary experience, and blockers’ effectiveness is best understood in terms of whether they actually do block endogenous pubertal development. Mental health effectiveness is important but secondary. This apparently understanding of gender dysphoria as a typical mental illness akin to depression, treated by drugs with unclear effects, and requiring careful differential diagnosis underlies much of the Court’s surprise at data not collated by GIDS. If we understand puberty blockers as an option for individualized bodily self-actualization among a population that’s part of normal human variance, then it’s no longer surprising that clinic-wide statistics weren’t gathered: it’s not relevant to the individualized process.

Fifth, I’m concerned that the Tavistock gave up too much. Its evidentiary showing may have been weak, but I’m particularly puzzled by the concession that parents couldn’t offer surrogate consent. Why not? Of course, puberty blockers shouldn’t be offered contrary to the child’s well-considered request. However, if the child falls just shy of the bar of full capacity to consent, why isn’t their informed assent sufficient to let parents offer surrogate consent? Let us remember that if parents aren’t allowed to offer surrogate consent, it becomes a question for courts to decide whether the treatment is granted. It’s unclear to me why it’s better to have courts make that decision rather than specialized clinicians. If parents consent, youths meaningfully assent, and clinicians believed that it’s in this particular youth’s best interest, why should the decision have to go before courts? They’re not well-equiped, let alone better equipped, to make that decision. All it will do is unduly burden families and the court system. This very approach was rightfully rejected in Australia in Re Kelvin, but UK courts are driving backwards. The Tavistock’s approach in this respect seems overly conservative, leading to an ill-advised concession.

Sixth, the decision is unduly dismissive of teenagers’ psychological capacity — a problem that has long been noted in child studies. It’s true that 12 year-olds aren’t fully mature. But neither are many 30 year-olds! And if the law’s understanding is that a 16 year old is fully mature no matter how complex the decision might be, then it’s questionable that a 12 year old will be too immature to give consent to puberty blockers. While the decision is certainly not simple, it’s not at all out of the ordinary and is arguably simpler than consent to such things as cancer care and other decisions that involve the contemplation of death.

Youth understand far more than we give them credit for at 12 years old. If you’re having trouble imagining what level of psychological maturity that involves, there are interviews with Jazz Jennings at 11. You’ll see that she’s articulate and nuanced in her words. Does someone have perfect understanding and capacity at 12? No. Neither at 16 or 30, for that matter. Perfect understanding and capacity are impossible to ever achieve. But if the threshold is such that all 16 year-olds have capacity by default, regardless of relative maturity and the complexity of the decision, then 12–15 year-olds should generally be able to consent to blockers. They’re teenagers, not infants.

Seventh and last, contrary to what the Court asserts, the fact that the treatment goes to the heart of an individual’s identity INCREASES rather than UNDERMINES capacity to consent. Why? Because the heart of a individual’s identity is far more within their realm of intimate understanding than other decisions. This is where I circle back to the fact that the Court inappropriately treats puberty blockers as if they were antidepressants. They’re not, because they’re about gender identity. Gender identity, frequently lying at the heart of an individual’s identity and sense of self, is something we have particular epistemic authority over. As a result, the youths are better positioned to give consent, not less!

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Florence Ashley

Written by

Transfeminine jurist and bioethicist and doctoral student at the University of Toronto. https://www.florenceashley.com/

Empowered Trans Woman

Highlighting the experience of women of trans experience. Transition, Womanhood, Feminism, Intersectionality, Transphobia, Marginalization and Assimilation, and more.

Florence Ashley

Written by

Transfeminine jurist and bioethicist and doctoral student at the University of Toronto. https://www.florenceashley.com/

Empowered Trans Woman

Highlighting the experience of women of trans experience. Transition, Womanhood, Feminism, Intersectionality, Transphobia, Marginalization and Assimilation, and more.

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