A court ruling that restricted the use of puberty-blocking drugs among under-18s in England was based on “partisan” evidence that mixed fact and opinion, lawyers for the country’s only youth gender clinic told an appeal hearing on Wednesday.
Doctors at the London-based clinic stopped prescribing the drugs to new patients, aged below 18, after last year’s High Court ruling, which said young patients were unlikely to be able to give informed consent to the drugs.
The December 1 judgment added fuel to a global debate about the age at which a child can transition gender.
Launching their appeal, lawyers for the Tavistock & Portman NHS Foundation, which runs the gender clinic, said the High Court decision constituted “unjustified discrimination” against transgender children.
“The Court reached these radical conclusions having relied upon partisan expert evidence … given by those without relevant experience,” Fenella Moris and Nicola Kohn said in a written submission to the England and Wales’ Court of Appeal.
They said two experts, whose evidence was submitted, were specialists in the endocrinology of sheep and dyslexia respectively, and claimed that another had “presented no distinction between facts and opinion”.
A lawyer for Keira Bell, who brought the case after regretting taking puberty blockers at 16 and cross-sex hormones at 17, told the appeals court the ruling had been justified, given that the drugs’ long-term consequences were unknown.
The High Court judges said in their ruling that it was based on evidence the Tavistock itself had used in favour of puberty blockers. They also said the drugs lacked “a firm evidence base”, Bell’s lawyer Jeremy Hyam told the appeals court.
“(The court) did not ‘rely’ on the impugned evidence for the purposes of determining the issues but by way of background and context to the decision they had to make,” Hyam and two other lawyers said in a separate written submission.
The Bell vs Tavistock case stoked global debate over what age a child can medically transition gender, and has been cited by US Republican lawmakers seeking to ban the provision of puberty blockers and hormones for minors.
The case comes as rising numbers of adolescents globally seek to change gender, dividing those who fear the prescribing of puberty blockers and cross-sex hormones is too hasty, and those worried about access to medication they deem life-saving.
Tavistock figures show a nearly 30-fold rise in child referrals to the clinic in the past decade, to about 2,560 in 2019.
Following December’s ruling, the High Court ruled in a separate case in March that parents could give consent for their children to take the medication, without having to gain a judge’s approval.
The Tavistock has not made new referrals to the hospitals that prescribe the drugs since December 1, but is due to resume them soon, a spokeswoman said by phone. She said that she could not confirm an exact date.
Campaigners say the halt in referrals created a limbo for children with gender dysphoria – distress that their body does not match their gender identity.
The appeal is due to continue for a second and final day on Thursday, but the judgment is not expected immediately.
Reporting by Rachel Savage @rachelmsavage – Thomson Reuters Foundation