The UK Court of Appeal didn’t bother with any of these niceties in their decision overturning Bell vs. Tavistock.
In December 2020, the UK High Court ruled that transgender youth under the age of 16 were not competent to consent to treatment with puberty blockers. This was shocking, because in the UK previous case law had established that people under that age of 16 were capable of giving medical informed consent, under what is known as Gillick Competence.
The Gillick case was decided in 1985, and found that people under 16 could consent to taking birth control in the UK.
The UK High Court decided in Bell, however, that trans youth were the only class of people (aside from those with profound developmental delays) incapable of giving medical consent.
The decision was appealed immediately, but the harm was done. Professionals who work with trans youth in the UK described their patients internalizing a message that “the world hates them”, and the anger they felt at being treated as mental defectives incapable of knowing themselves. Some had puberty blocker treatment discontinued; others waiting on treatment were placed in limbo while the appeals process played out.
Transgender people (rightly) pointed out that Keira Bell had been 17 when she received blockers, and that the ruling would have had no effect on her (people 16 and over don’t fall under Gillick Competence). It was also noted that the panel of experts brought in by Bell’s legal team didn’t include anyone who actually works with trans youth, but did include a veterinarian, two doctors who work with the American anti-LGBT hate group Alliance defending freedom, and two Australian proponents of conversion therapy.
Additionally, Bell’s legal team was led by Paul Conrathe, who has spearheaded the religious right push in the UK to roll back abortion rights and ban LGBT content from schools. Trans people also pointed out that correlation is not causation when Bell’s team made the accusation that going on blockers causes youth to later go on to hormones.
The Court of Appeal took note of these things, and more. The decision handed down on Friday, September 17th 2021 was a stinging rebuke of the lower court, finding that the original decision should be overturned for at least nine different reasons.
First, the Appeals Court noted that the case should never have been taken up in the first place, given that the treatment was always lawful. It also noted Bell’s age, pointed out that she was never a patient of the Tavistock Gender Identity Development Service, and that they doesn’t administer blockers either.
The Appeals Court also found that Tavistock was providing sufficient information for informed consent under Gillick Competence and that this by itself was sufficient to overturn the original decision. They also found that the lower court overstepped its bounds by involving itself in medical matters it wasn’t equipped to understand, nor legally allowed to intervene on. It found that blockers are not dangerous (based on actual expert testimony),that correlation is not causation, and noted that it’s likely clinicians have gotten better at diagnosis over the past 20 years.
The Court of Appeal notes that under UK law, it is not the place of the court to come between a patient and their doctor, and that they have no intention of overturning Gillick, which clearly applies to transgender people being offered these treatments. They essentially conclude that the case should have been thrown out day one, and the High Court had overstepped its bounds in ways that strain credulity.
The original Bell decision was so bad that the Appeals Court literally gave up after describing the 9th reason it was wrong, noting that they hadn’t even gotten to the civil rights implications of the original decision, and that Bell would probably lose on those grounds too.
Essentially, the Appeals Court invoked the mercy rule usually reserved for lopsided T-ball games where one side is being so badly beaten the referees stop it to prevent one side from being further humiliated. The effect is that the UK Supreme Court is highly unlikely to take up this case on further appeal.
Bell’s team recognized this was the end, and promptly announced that they would appeal because, “The Gillick competency test is no longer fit for purpose.” Gillick underlies much of UK law on reproductive rights, and undermining it is a holy grail of the religious right there, the same way overturning Roe v. Wade is in the US. Given the ties Bell’s team has to the global religious conservative movement, this development is unsurprising.
The Court of Appeals decision is great news for trans youth in the US. As Chase Strangio of the ACLU noted on Twitter:
“State legislatures repeatedly cited to the decision in Bell v. Tavistock in support of bans on care for trans minors here in the US. In defense of their law banning care, Arkansas repeatedly cited to the High Court decision in court.”
The SCOTUS Event Horizon for the LGBT Movement
Stop for a moment. Imagine how bad it will be…