Trans Rights In Family Law - Is The Law Evolving Too Slowly?

• Published date: 24 February 2021
• Subject Matter: Government, Public Sector, Family and Matrimonial, Family Law, Human Rights
• Law Firm: Burgess Mee
• Author: Ms Vikkie Chetcuti

LGBT+ History Month takes place every February, to promote equality and diversity and increase awareness of the LGBT+ community. We thought it would be useful to put a spotlight on two recent cases affecting the transgender community. Family law is an area which continues to evolve, although it is often criticised for not doing so fast enough to keep up with modern families. In particular, the family courts in England and Wales have been criticised in their treatment of the transgender community, and two recent decisions are explored below.

The case of Bell & Anor v The Tavistock and Portman NHS Foundation Trust [2020] EWHC 2374involved the Tavistock and Portman Gender Identity Development Service ("GIDS") and their referrals of children under 16 and young people under 18 with gender dysphoria to NHS Trusts for the prescription of puberty blockers.

The case was brought by Keira Bell, who was a former GIDS patient, and the mother ("Mrs A") of a 15-year-old autistic child who was on the GIDS waitlist. Ms Bell had transitioned while she was a patient of GIDS, but later de-transitioned as an adult. Mrs A's concern was theoretical in nature as her child would not have passed the GIDS criteria for the prescription of puberty blockers.

Ms Bell and Mrs A argued that those under the age of 18 should not be referred for puberty blockers because they are not competent to consent to such treatment. They further argued that puberty blockers had life changing significance and almost always led those who received them down a path towards further irreversible treatment. GIDS argued against this, stating that those who had the treatment were capable of giving consent and that their procedures and policies ensured that if a child did not have sufficient understanding and intelligence to comprehend the nature of their treatment, they would not proceed with it.

The court did not consider the advantages or disadvantages of prescribing puberty blockers. The legal issues for the court to consider concerned identifying circumstances where a child could be held competent to give valid consent. It held that it was highly unlikely that a child aged 13 or under would be able to give such consent. It also placed doubt on whether a child aged 15 or 16 would be able to sufficiently understand the long-term risks and consequences of such treatment. Even in children over 16, the court questioned whether authorisation from the court should be sought before starting treatment. However, no...