Keira Bell, gender dysphoria and the story of a judicial blunder
Editor's note - this article has been updated with a footnote relating to Dr John Whitehall. See below.
It should surprise no-one who read the original UK High Court judgement on the Keira Bell case that it has now been consigned to the legal scrap heap.
When it was handed down last December, it ignited an explosion of excitement among those who believed there was something dark and malign in the mainstream treatment protocols for children diagnosed with gender dysphoria.
And that was because of the plight of Keira Bell herself.
The woman at the centre of the case captures all that haunts the imaginings of the critics of the trans movement.
The 23-year-old had a troubled and complex childhood. She identified as male when young, was administered puberty blockers at age 16 and underwent a double mastectomy four years later — only to deeply regret the decision.
With the court’s declaration that it was "highly unlikely" that any 16-year-old could be assessed as Gillick competent to consent to puberty blockers came a vindication.
Puberty blockers were an experimental, highly unusual treatment, the court said, and vulnerable children were incapable of understanding the full implications.
But if it was a legal vindication, it was precarious, built on legal and evidentiary sandcastles.
The UK’s Court of Appeal threw it out last week, and by doing so, exposed the dubious reasoning the original judges had employed; the partial, selective evidence they had relied on; and the way this resulted in bizarre legal overreach by senior judicial figures.
The first thing to note is the job the court was actually tasked with.
Despite surface appearances, the judges’ findings were not part of an appeal process resulting from a civil negligence case.
This was not about whether clinicians and staff at the Tavistock gender clinic who supported Bell through her transition had failed in their duty of care by referring her to treatments to which she could not, given her age, provide consent.
The High Court judges sat as an administrative court, not a civil court.
Their remit therefore was to conduct a judicial review to determine whether "the acts or omissions of a public body" — in this case, the Tavistock and Portman NHS Foundation Trust — were in line with its legal obligations.
What happened to Bell, the circumstances of her treatment and the legitimacy of the consent she gave (or otherwise) was irrelevant.
In legal terms, her fate was a sideshow; her interest, as the court itself put it, was “largely theoretical”.
The judges decided early on that none of the policies and practices of Tavistock were unlawful; the claimants lost their case.
However, for reasons which have never fully been explained, the judges decided it was their task as an administrative court to make a legal declaration on whether persons under 18 diagnosed with gender dysphoria were Gillick competent when it came to puberty blockers.
The answer to this had a legal aspect, clearly.
But it was also an empirical question because the ability of a child to provide informed consent would be determined, in part, by the uncertainties and risks around the proposed treatment.
Most doctors would assume at this point that a court would turn to testimony from independent expert witnesses to determine the facts on which the judges would make their ruling.
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But this is not how administrative courts work. They do not (with rare exception) allow oral evidence, and critically, they do not allow cross-examination of witnesses, expert or otherwise.
The three High Court judges involved in the case went through witness statements and written evidence. But it was evidence limited to submissions made by two sides involved in an adversarial legal dispute.
The judges lacked any mechanism to establish areas of agreed facts, specifically on the clinical issues surrounding the efficacy and safety of puberty blockers, which in the wider world, had become so politically charged.
As the Court of Appeal noted, the “expert” evidence supplied by Bell's legal team, for instance, was only served shortly before skeleton arguments were due to be lodged.
“None of it complied with the rules regarding expert evidence, and a good deal of it [was] argumentative and adversarial,” the appeal court said.
It continued: “Such evidence is rarely admitted, but a particular difficulty here was that there was no way of resolving evidential disputes.”
The evidence from Bell’s team was “controversial”, and importantly, under the UK justice system’s rules of engagement, it “would not … ordinarily be preferred over that of a defendant [in this case, the Tavistock and Portman NHS Foundation Trust] in judicial review proceedings”.
The expert witnesses
The cast-list of witnesses supplying statements on behalf of Bell included Sydney paediatrician Professor John Whitehall, a doctor regularly quoted in The Australian in its coverage of gender dysphoria.
A former deputy president of Fred Nile’s Christian Democratic Party, he has always denied that his religious beliefs influence his clinical opinions on a treatment he regards as harmful and unnecessary .
But Professor Whitehall concedes he has never treated a child with gender dysphoria.
Another expert was Michael Biggs. He provided written evidence on the use of puberty blockers and children’s mental health.
But he is not a medical doctor or a psychologist. He is an associate professor of sociology at the University of Oxford, a controversial academic embroiled over the years in various conflicts with the transgender movement, who once vilified him for apparently claiming that young lesbians were vulnerable to aggressive pursuits by transwomen.
His academic research has mainly focused on the sociology of social protest.
There was also an “internationally recognised neuroendocrinologist”, a Professor Neil Evans, who turned out to be a professor of integrative physiology at the school of veterinary medicine at the University of Glasgow.
The most influential of the witnesses, at least in terms of the judges' eventual findings, seems to have been Dr Paul Hruz, an associate professor of paediatrics, endocrinology and diabetes at Washington University.
Four years ago, he wrote a long article on gender dysphoria and children called ‘Growing Pains’ in a US non-peer-reviewed journal called The New Atlantis.
It makes for fascinating reading. It carries eloquence — even if it's highly selective in the evidence it quotes.
But it draws many of the conclusions that loom so large in the High Court’s own ruling: that puberty blockers could drive the persistence of gender dysphoria, that children cannot consent to their use, that there are serious uncertainties around their long-term effects and that — in stark contradiction to the view of treating clinicians — their use is experimental.
But again, he too has never treated patients with gender dysphoria. His special interest is diabetes mellitus and intermediary carbohydrate metabolism.
The issue for the Court of Appeal was not so much that the evidence submitted by Bell’s legal team was factually wrong, incomplete or biased — it may have been — but the court was deliberately agnostic.
It was simply that it could never be adequately tested through a judicial review process.
Establishing the facts
Beyond their contentious declaration that puberty blockers should be classed as "experimental", the most important ‘fact’ the judges claimed to have identified was that “practically all children/young people who start puberty blockers progress on to cross-sex hormones”.
It was this that radically increased the complexities facing children, they argued, because it followed that, to achieve Gillick competence, the child would have to understand not simply the implications of taking puberty blockers but those of progressing to cross-sex hormones.
For the judges, what clinicians had widely assumed to be two separate treatments became, in legal terms, essentially one, based on their apparent assumption that the administration of puberty blockers rendered a child incapable of refusing treatment with cross-sex hormones once they reached 16.
Therefore, the judges continued, the relevant information a child would have to understand, retain and weigh up in order to have the requisite competence in relation to puberty blockers, would be as follows:
- The immediate consequences of the treatment in physical and psychological terms.
- The fact that the vast majority of patients taking puberty blockers go on to cross-sex hormones and therefore that s/he is on a pathway to much greater medical interventions.
- The relationship between taking cross-sex hormones and subsequent surgery, with the implications of such surgery.
- The fact that cross-sex hormones may well lead to a loss of fertility.
- The impact of cross-sex hormones on sexual function.
- The impact that taking this step on this treatment pathway may have on future and lifelong relationships.
- The unknown physical consequences of taking puberty blockers.
- The fact that the evidence base for this treatment is, as yet, highly uncertain.
This extensive checklist was why the judges came to the view that it was “highly unlikely” that a child aged 13 or under would ever be Gillick competent to consent to puberty blockers and that it was “very doubtful” that children aged 14 or 15 could consent either.
“The decisions in respect of [puberty blockers] have lifelong and life-changing consequences for the children," they said.
"Apart perhaps from life-saving treatment, there will be no more profound medical decisions for children than whether to start on this treatment pathway. In those circumstances, we consider that it is appropriate that the court should determine whether it is in the child’s best interests to take [puberty blockers].”
But what was the evidence that “practically all children/young people" administered puberty blockers progress on to cross-sex hormones?
The little that they did cite was contradictory and inconclusive.
Witnesses for the Tavistock gender clinic had referred to evidence from the Netherlands — the Amsterdam Cohort of Gender Dysphoria Study — that only 1.9% of children prescribed puberty blockers discontinued treatment.
This was meant to show that regret rates were low following treatment rather than raise concerns about children being on a therapeutic treadmill they couldn't stop.
But then the director of the clinic, Dr Polly Carmichael, also said, after reviewing a random sample of 49 of its patients, that only 27 (55%) had progressed to cross-sex hormones.
The appeal court said the judges had misunderstood the implications of these statistics.
To have justified their concerns about the links to cross-sex hormones, it would have been necessary not only to look at this limited data but also to evaluate evidence as to how patients were chosen for puberty blockers, the progression of the treatment and multiple issues affecting progression between treatment pathways, including the consent processes for subsequent treatment stages.
And this is because the actual proportion of those who move from one treatment to another is irrelevant.
The judges were confused. They didn't distinguish between a causal connection and an association.
The high correlation may have been an indication of therapeutic success rather than therapeutic failure – the result of effective identification, diagnosis and treatment of children who would go on to transition as adults without any future regrets.
It may not have been, but it could have been.
The Court of Appeal again stressed that the judicial review proceedings could not “provide a forum for the resolution of contested issues of fact, causation and clinical judgement”.
“This is one example of the difficulty in drawing conclusions from statistics which are not fully explained or explored in an evidential context where they were peripheral to the legal dispute before the [judges] and where any apparent differences were not capable of being tested forensically,” it said.
The rationale for Gillick
The other bizarre element is that this courtroom saga is not just about the senior judges’ entanglements with clinical evidence but with legal aspects of the Gillick ruling itself.
The Court of Appeal pointed to what Lord Scarman — the UK judge who formulated the famed legal concept that has guided medical practice for nearly 40 years — actually wrote.
“I would hold that, as a matter of law, that the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed."
He then added that it would be a question of fact whether an individual child seeking advice had sufficient understanding of what was involved to give consent valid in law.
For the Court of Appeal, this could not be determined through blanket declarations by a court with no knowledge, as a matter of logic, of the specifics of any future case.
Or as the Court of Appeal puts it: “The ratio decidendi [rationale for the decision] of Gillick was that it was for doctors and not judges to decide on the capacity of a person under 16 to consent to medical treatment.”
The judges’ declarations would force doctors to “suspend or at least to temper” their clinical judgement and defer to the clinical judgement of the court on which key features should inform an assessment of Gillick competence.
This was never what Lord Scarman intended. The Court of Appeal, near the end of its ruling, quoted another senior UK judge, Lord Phillips.
“There are great dangers in a court grappling with issues … when these are divorced from a factual context that requires their determination," he wrote in his ruling on an end-of-life care case in 1986.
“The court should not be used as a general advice centre.
“The danger is that the court will enunciate propositions of principle without full appreciation of the implications that these will have in practice, throwing into confusion those who feel obliged to attempt to apply those principles in practice.”
And that seems to have happened since the judges' declaration was handed down, to much media excitement, last November.
The Tavistock clinic, whose services and leadership have been heavily criticised by regulators, immediately suspended referrals to hospital doctors to prescribe puberty blockers.
For their supporters, this need for a court's sanction was likely to deny access to what they regarded as a safe and effective treatment to children at high risk of suicide.
After the Court of Appeal’s decision to set aside the High Court declaration, Bell’s lawyer said he would go to the UK's highest court, its Supreme Court.
"We are both dismayed and surprised at the decision, which appears to us the epitome of the triumph of legal formalism over justice and common sense," he told Reuters.
"At a stroke, the court's decision removes a sensible, necessary and proportionate protection for vulnerable young children against the poorly evidenced treatment, with lifelong irreversible consequences."
The vexed debate on the rights and wrongs surrounding the treatment of gender dysphoria will continue, no doubt fuelled by the toxicities that seem to contaminate both sides of the so-called culture wars.
But it's worth stressing that, despite all the headlines last year, the High Court’s declaration was never based on robust analysis of the clinical evidence, nor was it based on an assessment of the competencies of those children going through the treatment.
It didn’t examine whether a treatment it dubbed experimental could be justified in the context of the children’s suicide rates, and it failed to ask perhaps the most basic empirical question of all: how many of the thousands of people administered puberty blockers as children have come to regret their treatment in the same way as Keira Bell?
Why such senior judges — no doubt well intentioned — were so blinded to the flaws in what they were doing is a question to which we will probably never get an answer.
Soon after the original High Court declarations came out late last year, I started putting together an article that I ended up shelving.
It was long before the Appeal Court ruling but I wanted to examine the case and what to me seemed glaring flaws in the judges' conclusions. At least that was my intent.
I reached out to Justice Michael Kirby who many years ago had written an editorial for AusDoc on the pioneering role of doctors in Australia during the early years of the HIV epidemic.
I needed help to understand the judicial process leading to the court's declarations - so I thought why not approach someone who may have a little professional experience?
He politely declined, no doubt for the same reasons a doctor would politely decline if asked by a journalist for a second opinion, particularly when offered no more clinical information beyond that used for the original diagnosis.
However, I discovered that he was an old school friend of Professor John Whitehall. In our email correspondence, he wrote warmly of him as a person of sincerity and integrity.
I was a little shocked because it didn’t fit with the way he has often been portrayed in the media, usually as a religious zealot.
I mentioned Justice Kirby to Professor Whitehall when I subsequently interviewed him about his role as a witness for the Bell legal team. The respect was mutual.
So, as I was finishing this article, I asked Justice Kirby if I could add a few lines referring to what he said about his school friend - unfortunately the response came back after we published.
This is a belated footnote, but I hope it serves as a small reminder that despite the toxic politics that has saturated the transgender debate, the majority of people involved have their heart in the right place.
They might be very wrong, but they are not simply goodies or baddies depending on where they sit.
Certainly, Professor Whitehall has been seen by some as a malign influence. But just for the record, here is what Justice Kirby said to me:
"I have known Professor John Whitehall since school days.
"We both attended Fort Street Boys High School in the 1950s. He was a top student and highly respected.
"He went on to become a medical professor with large clinical experience dealing with multiple problems of children and young people. There too he was highly respected.
"We have had differences over how the law should deal with instances of gender dysphoria. I think that, on this, he has stepped away from majority opinion in his discipline.
"However, we have had civilised debates and disagreements. I do not doubt the sincerity of his expressed views.
"Certainly, the issues of how, when, by whom and according to what exact criteria transgender status is to be determined are matters of legitimate debate and disagreement; not vilification."
Paul Smith - editor