On 18th January this year, the Tavistock and Portman NHS Trust was granted leave to appeal the decision made by the High Court in December last year that if a clinician wishes to prescribe ‘puberty blockers’ – drugs that pause puberty – to someone under sixteen diagnosed with ‘gender dysphoria’- feelings of acute discomfort or distress over a perceived mismatch between their natal sex and gender identity – they must in future apply to the courts.
The issue of how best to help children and young people who suffer such distress has become highly charged, both emotionally and politically. The debate is presented as a battle between left and right, between those who support trans rights and the transphobic. I would argue that this is a misrepresentation.
It is clear that people who identify as transgender or non-binary face shocking levels of violence, harassment and discrimination. A report by Stonewall in 2018 based on research conducted by YouGov found 1 in 8 employees had been physically attacked by a colleague or customer in the last year and more than a quarter had experienced homelessness. Transphobia represents a real and present danger for trans people in this country as elsewhere.
However, to accuse of transphobia those who feel that there are legitimate questions to be raised around the specific issue of children and young people is unhelpful. The contention of this article is that the High Court judgement offers the best way forward for all young people struggling with gender identity issues at the present time.
The ‘gender affirmative’ and ‘gender critical’ positions
The use of puberty blockers is just one of the issues, albeit an important one, that divides the young people, parents, pressure groups and professionals involved in the debate. Although an oversimplification, one can usefully distinguish two sides in the debate: the ‘gender affirmative’ and the ‘gender critical’ position.
Essentially, those who support the gender affirmative position, such as Mermaids, Stonewall, Gendered Intelligence and GIRES, argue that the best approach is to ‘affirm’ the gender that children wish to identify with because this will lessen the level of distress the child will feel. Indeed, they claim that it reduces the risk of such children suffering from related mental health problems and, in the worst case scenario, contemplating suicide. Moreover, they claim that the effects of puberty blockers, should the adolescent change their mind about treatment, are ‘fully reversible’.
In addition, supporters of the gender affirmative position argue both that gender identity is not tied to one’s sex, but is free-floating and that a trans identity is innate – an essential part of who you are that can’t be changed (Stonewall). This is why any questioning of a person’s subjective gender identity – child or adult – is regarded as transphobic by supporters of this position.
Those who support the gender critical position, such as Transgender Trend, LGB Alliance, Fair Play for Women and Gender Health Query, argue that the problem for gender non-conforming children and young people is not that they’ve been ‘born into the wrong body’, but that they are confronted by a society in which restrictive and harmful gender stereotypes continue to operate. If children and young people were able to wear what they want and do what they want irrespective of their sex, the problem of gender dysphoria would largely disappear. For these groups, recourse to a medical solution for adolescents who experience distress around their gender identity represents the over-medicalization of gender nonconforming youth.
In addition, gender critical groups reject the idea that gender has no connection to sex and is free-floating. They also argue that there are many possible reasons why puberty can be a difficult time and that diagnoses of gender dysphoria may have missed underlying problems associated with sexual abuse, autistic spectrum disorders, homophobia or mental health.
(It is worth pointing out that all these gender critical organisations explicitly state their support for the right of adults to transition and for trans-equality.)
The High Court hearing
While some of the points of disagreement between these two positions were addressed by the court, many were not. This was because the primary issue under consideration was whether young people under eighteen were Gillick competent to make decisions about the administration of puberty blockers for gender dysphoria.
The case was initiated by Susan Evans, a former clinician at the Gender Identity Development Service (GIDS), the only specialist clinic in England and Wales for children experiencing gender dysphoria, run by the Tavistock and Portman NHS Trust. Evans had resigned because she felt GIDS was too readily referring children on for puberty blockers and had crowd-funded an application for judicial review of the policy.
In a lengthy and tightly argued judgement, the judges expressed the view that the treatment of gender dysphoria with puberty blockers represented an ‘experimental’ treatment because too little was known for sure about their long term effects. Up to June, 2020 the NHS website had informed readers that the effects of GnRH analogues (puberty blockers) are considered to be fully reversible. Since June, 2020 however readers are informed that little is known about the long-term effects of …puberty blockers in children with gender dysphoria. (I)t is not known what the psychological effects may be (nor how they may) affect the development of the teenage brain or children’s bones.
The judges dismissed the claim that the information provided by GIDS was misleading and insufficient, arguing that the quality of information provided was not really the issue. Never mind how detailed and age-appropriate it was, the problem in their view was that children simply were not capable of fully comprehending the long term implications of taking medication which would impact on their future fertility and sexual functioning. They also argued that, in practice, research indicated that taking puberty blockers more or less inevitably led on to taking cross-sex hormones. GIDS had carried out a study of this very issue, but did not have the results available for the court. However, the day after the court’s judgement was released they finally published the results which vindicated the judges’ opinion: 43 out of 44 children aged between 12 and 15 who had been enrolled on the GIDS programme in 2011 and who had been prescribed puberty blockers subsequently chose to start treatment with cross-sex hormones.
The High Court concluded that: It is highly unlikely that a child aged 13 or under would be competent to give assent to the administration of puberty blockers (and) it is doubtful that a child aged 14 or 15 could understand and weigh the long term risks and consequences…
However, the court did not outlaw the prescribing of puberty blockers to children under sixteen. Instead, exercising the precautionary principle, it ruled that, in future, clinicians who wished to prescribe puberty blockers to such children must seek a ‘best interests’ ruling from the courts and, in addition, suggested they may wish to do this even for 16 and 17year olds.
In examining this debate, there are a number of recent social changes that need to be looked at which have, arguably, had a major impact on both the number and the demographic characteristics of children and young people presenting with gender dysphoria.
Firstly, there is the rapid increase in recent years in the numbers of youngsters experiencing gender identity problems, evidenced by the 400% increase in referrals to GIDS between 2015 and 2020. Secondly, there is the reversal in the gender ratio of referrals from roughly equal numbers of boys and girls to substantially more girls. In its first year of operation as part of the NHS (2009/10), 40 boys and 32 girls were referred, but in 2018/19, there were 624 boys and 1740 girls, nearly 3 times as many.
Clearly there is more going on here than simply increased coverage of trans issues in the media in recent years and the consequent increase in awareness around issues relating to gender dysphoria. A range of factors have been suggested as relevant.
First, young people appear to be more accepting of identities that do not conform to traditional gender binaries (male/female) and heterosexuality. Whilst gender identity and sexual orientation are distinct, raising questions about one tends to impact on the other. Evidence about young people’s changing attitudes towards gender identity in the UK tends to be impressionistic (a situation that may shortly be remedied as it has recently been announced that the 2021 UK Census will include a question on gender identity). But there is survey evidence regarding changing attitudes towards both gender and sexuality in the USA and sexuality in the UK.
A survey by the Harris polling organisation of a nationally representative sample of over 2000 adults in the USA reported in Time magazine in 2017, found 20% of ‘millenials’ said they were something other than straight (heterosexual) and cis-gender ( a gender identity that matches natal sex) compared to only 7% of ‘baby boomers’. Moreover, more than three-quarters of the respondents said it feels like “more people than ever” have “non-traditional” sexual orientations and gender identities. Similarly, an on-line survey carried out in 2017 by the anti-bullying charity Ditch the Label of 1006 young people in both the USA and UK found that whilst 43% identified as exclusively heterosexual and 10% exclusively homosexual, 47% placed themselves somewhere on a continuum between these two poles.
Secondly, in relation to the rapid rise in the number of young females being referred to GIDS, a number of factors have been suggested. One is the impact of celebrity culture and social media on young women’s ideas about how they should look and their increasing willingness to use both surgical and non-surgical cosmetic procedures to ‘enhance’ their appearance. Another is the growing level of body image concerns, in young women particularly. A poll carried out by Plan International UK in 2019 of over 1,000 14-21 year olds found that a large majority (89%) felt pressure to fit an ‘ideal’ face or body type, a quarter (25%) felt ‘ashamed or disgusted’ by their body and over a third (39%) worried about their appearance in school ‘every day’. A third is the explosion of on-line sites supporting the idea of transitioning – similar to the growth of ‘pro-ana’ (anorexia) sites for young women some years ago. Finally, there is the increasing amount of time young women spend on-line. The millennium cohort study in the UK which is following a large group born in 2000 found that whilst two fifths of girls spend more than 3 hours a day on social media, the figure for boys is one fifth.
The gender critical position argues that these societal changes have produced an upsurge in the number of young people, particularly girls, who are susceptible to the idea that transitioning would solve their problems. This, indeed, was the conclusion of a paper written in 2018 by an American academic, Lisa Littman, who coined the term ‘Rapid Onset Gender Dysphoria’ to refer to a new phenomenon she had observed where multiple, or even all, members of a group of friends became transgender-identified around the same time through immersion in social media. Supporters of the gender critical position also argue that girls who would previously have gone on to identify as lesbians are now being persuaded that they are ‘really’ trans.
These societal changes strongly suggest that among those children and young people recently and currently presenting with gender dysphoria are likely to be at least some who would later go on to regret taking puberty blockers. In essence, the court had to make a choice between two scenarios. In one, children who are desperate to begin the process of transitioning and would subsequently experience no regret are forced to wait longer to do so. In the other, children who claim to be desperate to transition but subsequently would regret starting down this road are saved from themselves. The judges chose the latter option, in my opinion the right one given the literally life-changing consequences of taking puberty blockers.
Gender affirmative activists have complained that this will impose a further delay for those in the first scenario, given that there is already an inordinately lengthy waiting time for children referred to GIDS to actually get an appointment. In 2020, there were over 4600 young people on the waiting list and young people were waiting over two years for their first appointment.
This was not GIDS fault, however, but the fault of NHS England who commissions their services and had not been prepared to fund the service adequately. In September, 2020 the NHS announced that it had commissioned an independent review into gender identity services for young people to be led by Dr Hilary Cass. The report is due sometime this year. Hopefully, it will address the issue of inadequate funding.
Why are trans activists so unwilling to accept that the rapid growth in numbers of children referred to GIDS in recent years is likely to include children whose commitment to transitioning is equivocal, many of whom if left untreated are likely to eventually identify as lesbian or gay?
I believe there are a number of reasons, but the main one perhaps is that, given the existence of transphobia in society, trans activists are likely to feel under endless pressure. When you feel your back’s to the wall, you are reluctant to concede any ground to your opponents for fear that it would be seen as a sign of weakness and lead to a worsening of your already fraught situation.
Understandable as such a stance would be, however, it seems to me that the trans rights movement could only benefit from an acknowledgement of the possibility of misdiagnosis. It would demonstrate to the public at large that this was a movement that was both socially responsible and merited respect.
Tim Davies is an Associate Lecturer in social science with the Open University.