**7. Bell v Tavistock and consensus on treatment**

More recently, gender affirming models of care have come under the medicolegal scrutiny and now the issues of consent to gender altering treatments are being regular debated as part of legislative agendas in English, European, American, Canadian, Australian and New Zealand's' family courts.

#### **7.1 Court case details**

This came on foot of highly publicised UK-based Bell v Tavistock high court ruling in December 2020 that found against Tavistock NHS trust in relation to their gender affirming clinic providing "potentially misleading" advice around hormone therapy and therefore jeopardising the integrity of informed consent' gathering, thus making consent process legally invalid [7]. This case was brought by Keira Bell, a 23-year-old woman who was commenced on puberty blockers at the age of 16 before desisting and de-transitioning, and who was joined by the unnamed mother of a 15-year-old girl with autism who is on the waiting list for gender affirming treatment [7]. In their decision, the Rt Hon Dame Victoria Sharp, Lord Justice Lewis and Mrs. Justice Lieven, ruled that it unlikely that children under the age of 16 who were considering gender reassignment treatment were mature enough to give informed consent to be commenced on puberty-blocking drugs [7].

#### **7.2 Specific findings**

More specifically, the high court determined that:


**49**

**7.6 Desisters**

*Autism and Gender Identity*

**7.3 Examining outcomes**

their families.

**7.4 Gillick competence**

**7.5 Lack of consensus**

*DOI: http://dx.doi.org/10.5772/intechopen.97517*

starting treatment with puberty blocking drugs [7].

3.trans persons under the age of 16 will likely need a court authorisation before

In a more nuanced examination of evidence on treatment outcome, the court highlighted the finding that the overwhelming majority of patients taking puberty blocking drugs proceed to the first step of actual gender reassignment by taking cross-sex hormones, in some cases 100% of eligible transgender individuals who received puberty suppression proceeded to cross-hormone treatment [65]. Reflecting on this trend, some critiques of puberty suppression treatment have even suggested that puberty blockade 'locks' a child into a permanent state of gender incongruence [66]. Therefore, describing puberty blockers as simply a "pause button," "completely reversible" or "life-saving" is misleading to young patients and

In the context of gender reassignment treatment, the Bell v Tavistock ruling takes a different view of the Gillick competence and reassesses how a consenting right of a person under 16 years of age operates in practice. While considered fundamentally progressive and encompassing the right to self-determination and autonomy, the Gillick competence could be detrimental to minors and to, so-called, vulnerable populations. The high court was also critical of what it characterised as the Tavistock's "surprising" lack of investigation into the steady rise in referrals of native girls and of individuals with autism spectrum disorder [8]. Social factors, in particular peer influence, social contagion, parent–child conflict, and maladaptive coping mechanisms may be significant contributing factors in cases of adolescent onset gender dysphoria in natal females, recently termed 'rapid onset gender dysphoria', a socially mediated subtype, the validity of which was disputed by scientific community [67, 68].

The issue of a lack of consensus on current early medical treatment was another issue of concern highlighted by the court. Indeed, the clinical guidelines for the management of adolescents with GD differ widely with no clear agreement that has the backing of the colleges of psychiatry or other leading medical colleges. The Royal College of Psychiatrists in the UK takes a conservative view by stating the following: "The College acknowledges the need for better evidence on the outcomes of prepubertal children who present as transgender or gender-diverse, whether or not they enter treatment. Until that evidence is available, the College believes that a watch and wait policy, which does not place any pressure on children to live or behave in accordance with their sex assigned at birth or to move rapidly to gender transition, may be an appropriate course of action when young people first present" [69]. The Royal Australian and New Zealand College of Psychiatrists is currently reassessing their position statement by engaging with a working group of relevant experts and representative groups, which provides little in the way of direction right now.

In addition to raising the consent issues, the premise of the Bell v Tavistock court case also shines the light on the transgender youth who choose to de-transition, as

3.trans persons under the age of 16 will likely need a court authorisation before starting treatment with puberty blocking drugs [7].

### **7.3 Examining outcomes**

*Autism Spectrum Disorder - Profile, Heterogeneity, Neurobiology and Intervention*

gender affirming treatment is optional.

**7.1 Court case details**

**7.2 Specific findings**

the age of 13.

**7. Bell v Tavistock and consensus on treatment**

Canadian, Australian and New Zealand's' family courts.

determine their gender-nonconforming identity. It is especially valuable to discriminate if ASD' influence is long-lasting with no alternative gender preferences, especially in light of reports that highlighted the desistence pattern of gender variance among young people with ASD [54, 63]. The results of these studies should be viewed with caution owing to the lack of robust evidence underpinning the conclusions. Gender transition is a complex multi-stage procedure that could be difficult to achieve by individuals with neurodevelopmental disorders, including autism and ADHD, as their treatment decisions, planning and follow through may be compromised due to a deficit at a higher-level executive functioning. Typical ASD' cognitive profile also implies a certain level of inflexibility and a highly selective hyper-focus; these qualities are likely to reduce an individual's ability to set and complete goals [64] and may compete with their care needs and treatment priorities. Having a rigid cognitive set may make it hard for a young person with ASD to recognise gender fluidity and to see gender expression as a spectrum; rigid thinking may also lead some to assume that having gender incongruence means that they must seek affirming medical treatment. These more vulnerable individuals may need additional help in navigating the care system and deciding on appropriate service and management plan, its important to ensure that they understand that

More recently, gender affirming models of care have come under the medicolegal scrutiny and now the issues of consent to gender altering treatments are being regular debated as part of legislative agendas in English, European, American,

This came on foot of highly publicised UK-based Bell v Tavistock high court ruling in December 2020 that found against Tavistock NHS trust in relation to their gender affirming clinic providing "potentially misleading" advice around hormone therapy and therefore jeopardising the integrity of informed consent' gathering, thus making consent process legally invalid [7]. This case was brought by Keira Bell, a 23-year-old woman who was commenced on puberty blockers at the age of 16 before desisting and de-transitioning, and who was joined by the unnamed mother of a 15-year-old girl with autism who is on the waiting list for gender affirming treatment [7]. In their decision, the Rt Hon Dame Victoria Sharp, Lord Justice Lewis and Mrs. Justice Lieven, ruled that it unlikely that children under the age of 16 who were considering gender reassignment treatment were mature enough to give

1.informed consent in the legal sense cannot be given by young persons under

2.the court was also doubtful that a young person aged 14 or 15 could fully understand the immediate and long-term consequences of the treatment in

informed consent to be commenced on puberty-blocking drugs [7].

More specifically, the high court determined that:

physical and psychological sense.

**48**

In a more nuanced examination of evidence on treatment outcome, the court highlighted the finding that the overwhelming majority of patients taking puberty blocking drugs proceed to the first step of actual gender reassignment by taking cross-sex hormones, in some cases 100% of eligible transgender individuals who received puberty suppression proceeded to cross-hormone treatment [65]. Reflecting on this trend, some critiques of puberty suppression treatment have even suggested that puberty blockade 'locks' a child into a permanent state of gender incongruence [66]. Therefore, describing puberty blockers as simply a "pause button," "completely reversible" or "life-saving" is misleading to young patients and their families.

## **7.4 Gillick competence**

In the context of gender reassignment treatment, the Bell v Tavistock ruling takes a different view of the Gillick competence and reassesses how a consenting right of a person under 16 years of age operates in practice. While considered fundamentally progressive and encompassing the right to self-determination and autonomy, the Gillick competence could be detrimental to minors and to, so-called, vulnerable populations. The high court was also critical of what it characterised as the Tavistock's "surprising" lack of investigation into the steady rise in referrals of native girls and of individuals with autism spectrum disorder [8]. Social factors, in particular peer influence, social contagion, parent–child conflict, and maladaptive coping mechanisms may be significant contributing factors in cases of adolescent onset gender dysphoria in natal females, recently termed 'rapid onset gender dysphoria', a socially mediated subtype, the validity of which was disputed by scientific community [67, 68].

#### **7.5 Lack of consensus**

The issue of a lack of consensus on current early medical treatment was another issue of concern highlighted by the court. Indeed, the clinical guidelines for the management of adolescents with GD differ widely with no clear agreement that has the backing of the colleges of psychiatry or other leading medical colleges. The Royal College of Psychiatrists in the UK takes a conservative view by stating the following: "The College acknowledges the need for better evidence on the outcomes of prepubertal children who present as transgender or gender-diverse, whether or not they enter treatment. Until that evidence is available, the College believes that a watch and wait policy, which does not place any pressure on children to live or behave in accordance with their sex assigned at birth or to move rapidly to gender transition, may be an appropriate course of action when young people first present" [69]. The Royal Australian and New Zealand College of Psychiatrists is currently reassessing their position statement by engaging with a working group of relevant experts and representative groups, which provides little in the way of direction right now.

#### **7.6 Desisters**

In addition to raising the consent issues, the premise of the Bell v Tavistock court case also shines the light on the transgender youth who choose to de-transition, as

the complainant Keira Bell is certainly not alone in the so-called 'desisters' camp. According to the Amsterdam outcome study of 77 individuals who were followed up from a young age of approximately 9 years (mean age 8.4 years) until adulthood (mean age 18.9 years), most children with gender dysphoria will not remain gender dysphoric after puberty [70]. This is represented by 43% of original cohort that belonged to desistance group who no longer had a desire for gender reassignment, as opposed to 27% of persistence group who remained cross-gendered [70]. Many children who experience GD will not continue to experience dysphoria into adolescence and adulthood.

The qualitative data that was generated in the same study sample was analysed by Steensma and colleagues and represents insightful interpretation of influences that determined gender identification for desisters and persisters. Interestingly, all subjects representing both groups pointed towards the changes in their social environment, physiological and biological changes that were either anticipated or took place, and their first experiences of falling in love and developing sexual attraction as major influences in their gender related interests and behaviour [71]. Taken together, the prior research supports the notion that persistence of childhood GD is most closely linked to the intensity of early GD, as well as the amount of gender diverse behaviour and body discomfort as a result of the feeling of the incongruence between the bodily characteristics and gender identity. There are also recognisable differences in motives or cognitive constructs of the dysphoria. Although, both persisters and desisters in Steensma et al. study [71] reported a desire to be the other gender during their childhood years, the underlying motives of their desire differed between persisters who explicitly indicated that they believed to be the "other" sex and the desisters who only wished to be the "other" sex. Interestingly, the desisters also indicated that their incongruence was more likely to be caused by the perceived mismatch of their bodily representations and the desired social gender role. In line with these findings, Drummond et al. [72] found that girls with persisting GD recalled significantly more gender-variant behaviour and GD during childhood than the girls classified as having desisting GD. Another study of 139 natal boys with gender identity disorder by Singh [73] confirmed the link between the intensity of childhood GD and adolescent and adult persistence of GD; Singh also linked the desistence of GD with a higher social class.

#### **7.7 Seven points of difference**

The high court judgement reads like a cautionary tale remining us that overconfidence in new treatments is dangerous. With this ruling, the High Court has set up an expectation of accountability of the health professionals engaged in the provision of paediatric and adolescent medical transition. The issue of consensus on best treatment was explored by the recent Dutch empirical ethical study that generated seven points of difference that needs resolving before the views on treatment could be unified [74]. Among these seven contentious points are following themes:

**51**

*Autism and Gender Identity*

*DOI: http://dx.doi.org/10.5772/intechopen.97517*

bodies and their own destiny.

right treatment for GD's sufferers.

**8. Perth experience**

6.the implications of medical treatment, and finally

tional consultation and developing adequate skill base.

ment to be considered medico-legally sound.

Australia and internationally.

7.the validity of consent, recognising complexities around parental rights to consent and ability to understand where the person is on their transgender journey, believing in people trusting themselves and being in charge of their

Most of these queries remain either unexplained or fraught with controversy at present, hence, we require more strict system of checks and balances to deliver the

The Gender Diversity Service (GDS) located at Perth Children's Hospital (PCH) in Western Australia, has been specifically designed as a dedicated tertiary specialist service for children and adolescents who present with clinically significant forms of GD. The author's first-hand experience of working in GDS gives her additional insight into the benefits and challenges of operating of such Tier-4 clinical service. GDS is a state-wide service that that has been set up in 2015 as part of local child and adolescent mental health services to provide assessment, consultation and gender-affirming treatment for young people under 18. From the outset, this recently established public service has been committed to embedding research in everyday care by developing a longitudinal cohort database "The GENder identiTy Longitudinal Experience" (GENTLE) and attracting research staff to their multidisciplinary team [13]. GDS has been conceptually developed with so-called Dutch model of care in mind after the process of comprehensive national and interna-

For the purpose of this publication, the author wanted to use Western Australian

example in order to illustrate how does influential Bell v Tavistock ruling affect other jurisdictions. The Australian legal system historically takes a very respectful view of advances in English law, and it is assumed that an Australian judge would be expected to give significant weight to the Bell v Tavistock ruling. Australian services, such as PCH GDS, are following the recommendations from Bell v Tavistock ruling and there is a sense that Australian health practitioners would be viewed in a negative light if they were aware of the Bell v Tavistock ruling but continued to practice in a way that is not consistent with court's recommendations. The Court authorisation is intended to take into consideration the young person's best interests as well as the court's view of their capacity and will provide some validation to the consent gathering process and lend some additional support and security for treat-

From now on, all young people under 18 who wish to start new puberty suppression treatment or cross sex hormone treatment will need to go through the Family Court via Legal Aid and gender service providing necessary mental health and endocrinology reports to the court. Regardless, if both parents consent, or/ and if the gender clinician determines that the young person does have capacity to consent, the decision to treat is to be taken to the Family Court to provide a further level of authorisation. On a positive note, it could be opportunistic that a new body of case law, arising from young people's cases, may establish Australian precedents which could support young people in accessing gender affirming health care in

5. an issue of social contagion


5. an issue of social contagion

*Autism Spectrum Disorder - Profile, Heterogeneity, Neurobiology and Intervention*

cence and adulthood.

the complainant Keira Bell is certainly not alone in the so-called 'desisters' camp. According to the Amsterdam outcome study of 77 individuals who were followed up from a young age of approximately 9 years (mean age 8.4 years) until adulthood (mean age 18.9 years), most children with gender dysphoria will not remain gender dysphoric after puberty [70]. This is represented by 43% of original cohort that belonged to desistance group who no longer had a desire for gender reassignment, as opposed to 27% of persistence group who remained cross-gendered [70]. Many children who experience GD will not continue to experience dysphoria into adoles-

The qualitative data that was generated in the same study sample was analysed by Steensma and colleagues and represents insightful interpretation of influences that determined gender identification for desisters and persisters. Interestingly, all subjects representing both groups pointed towards the changes in their social environment, physiological and biological changes that were either anticipated or took place, and their first experiences of falling in love and developing sexual attraction as major influences in their gender related interests and behaviour [71]. Taken together, the prior research supports the notion that persistence of childhood GD is most closely linked to the intensity of early GD, as well as the amount of gender diverse behaviour and body discomfort as a result of the feeling of the incongruence between the bodily characteristics and gender identity. There are also recognisable differences in motives or cognitive constructs of the dysphoria. Although, both persisters and desisters in Steensma et al. study [71] reported a desire to be the other gender during their childhood years, the underlying motives of their desire differed between persisters who explicitly indicated that they believed to be the "other" sex and the desisters who only wished to be the "other" sex. Interestingly, the desisters also indicated that their incongruence was more likely to be caused by the perceived mismatch of their bodily representations and the desired social gender role. In line with these findings, Drummond et al. [72] found that girls with persisting GD recalled significantly more gender-variant behaviour and GD during childhood than the girls classified as having desisting GD. Another study of 139 natal boys with gender identity disorder by Singh [73] confirmed the link between the intensity of childhood GD and adolescent and adult persistence of GD; Singh also linked the desistence of GD with a higher

The high court judgement reads like a cautionary tale remining us that overconfidence in new treatments is dangerous. With this ruling, the High Court has set up an expectation of accountability of the health professionals engaged in the provision of paediatric and adolescent medical transition. The issue of consensus on best treatment was explored by the recent Dutch empirical ethical study that generated seven points of difference that needs resolving before the views on treatment could be unified [74]. Among these seven contentious points are follow-

2.the heterogeneity and the diagnostic construct' stability of GD

**50**

social class.

ing themes:

**7.7 Seven points of difference**

1. a sound explanatory model for GD

4.the recognition of normal gender variation

3.the role of comorbidity


Most of these queries remain either unexplained or fraught with controversy at present, hence, we require more strict system of checks and balances to deliver the right treatment for GD's sufferers.
