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First Minister Responds to Legal Case in England

Today, the First Minister responded to a question in the Scottish Parliament regarding a case in the High Court in England which ruled that young people lack the capacity to make decisions regarding their treatment provided by NHS Gender Identity Services:  

 

“Decisions on treatment pathways are best made by clinicians in consultation with patients, and following all the appropriate guidelines. It is not the role of the Scottish Government to intervene in such decisions. Young people can be considered for puberty blockers only after thorough psychological and endocrine assessment, as per the clinical guidelines, and anyone who commences them continues to receive regular psychological review and support appointments.

It would not be appropriate for me to comment on court actions or decisions that have occurred in England. As a matter of fact—it is not a matter of opinion—last week’s ruling from the High Court has no formal status in Scotland.”[1]

- Nicola Sturgeon, First Minister of Scotland

 

The High Court in England concluded that young people under 16’s ability to consent to treatment should be assessed within a court of law rather than by clinicians. This decision specifically applies to England and Wales, as Scotland has a separate legal system. The First Minister stated that “last week’s ruling from the High Court has no formal status in Scotland”. We’re devastated for trans young people and their families, who may now face further delays in accessing much-needed support from medical professionals. More information on the case is available here.

Alarmingly, this legal decision was made without hearing from trans young people and their families who benefit from the treatment provided by the NHS. Instead, the case focused on examples of young people who express regret or detransition[2] following treatment. Care should be taken by Gender Identity Services to consider the specific cases noted in court, however, less than 1% detransition[3] or express regret following treatment[4]. This ruling, therefore, ignores the experiences of the vast majority of young people who use Gender Identity Services.

There is powerful evidence from around the world that access to gender affirming treatment improves transgender young people’s wellbeing and can limit suicide risk[5]. This evidence was not scrutinised in this case. We understand that the Sandyford NHS Gender Identity Clinic in Scotland (which has a specialist child and adolescent service) has a waiting time of approximately 3 years for an initial appointment[6]. This can be unbearable for young people and their families. There is no evidence that further delays imposed by the courts will be helpful.

This ruling singles out young trans people as being uniquely unable to have capacity to make decisions about their healthcare and lives, and it does not robustly acknowledge the rights of young people, parents, or carers. It is contrary to clinicians’ long held autonomy to make decisions and give advice in the best interests of their patients. Indeed, if it is upheld, it may have an impact on established principles regarding all young people’s capacity to make medical decisions (Gillick Competence[7]) in a wide range of areas for years to come, including young people’s access to reproductive health care.

An appeal of this decision has been made by the Good Law Project. Our understanding is that the legal effect of this decision is therefore suspended until the appeal has been concluded.

For any young person who is worried about the treatment provided by the NHS in Scotland or has been affected by any negative content online, please get in touch: Our services for young people.

 

Notes

[1] Scottish Parliament - First Minister’s Questions – 10/12/20: Official Report (parliament.scot)

[2] ‘Detransitioning’ refers to the process whereby people who have undergone gender transition later identify or present as the gender that was assigned to them at birth. Transgender people may also go on to retransition, that is, to identify or present with a different transgender identity. Most studies indicate very low rates of detransition.

[3] 3rd Biennal EPATH Conference Inside Matters. On Law, Ethics and Religion, Page 118. Detransition rates in a National UK Gender Identity Clinic. Link to content.

[4] The Amsterdam Cohort of Gender Dysphoria Study (1972–2015): Trends in Prevalence, Treatment, and Regrets. Link to content.

[5] Pubertal Suppression for Transgender Youth and Risk of Suicidal Ideation. Link to content.

[6] Scottish Trans website. Gender specialists. Link to content.

[7] NSPCC website. Gillick competence and Fraser guidelines. Link to content.


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