A Response To Foreign Policy's Deeply Misleading Article, "A High Court Decision in Britain Puts Trans People Everywhere at Risk" (Updated)
|Jesse Singal||Dec 17, 2020|| 28||4|
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Also check out the podcast I cohost with Katie Herzog, Blocked and Reported, where our next episode (available for free on Monday morning, Eastern time) will cover this issue, and hey, while you’re here why not pre-order my book?
(Updated, 9:05 p.m. — There’s a pretty egregious error — and instance of deceptive editing — I didn’t notice when I was writing this post, so see the very end for information on that.)
(Update, 12/23/2020 — Two more errors added to the bottom under a second update notice. One involves the fact that Lupron is not the drug usually used as a puberty blocker in England, so just keep that in mind whenever you see a reference to Lupron.)
One thing I’ve complained about regularly in this newsletter and elsewhere is that mainstream media coverage of youth gender dysphoria is completely abysmal. Debates that are in fact morally complicated and which suffer from a lack of solid scientific evidence are presented as straightforward, and anyone on the left who advocates for caution or critical thinking with regard to kids and teenagers taking puberty blockers or hormones is likely to encounter fierce pushback, unfair insinuations, and career or reputational damage. Things are really, really heated.
So heated, in fact, that most progressive outlets are either too scared to cover this issue with any of the nuance and rigor they would apply to most other scientific debates, are staffed by true believers who hold that the only ‘controversy’ here is a phantom one contrived by bigots and reactionaries, or both. I’ve tried to point out some of the most glaring examples of the low quality of journalism and punditry on this subject when I’ve been able to, criticizing pieces in/on The New York Times, Rolling Stone, Psychology Today, Vox, Stonewall, Slate, and Science Vs. (some of those links are paywalled), and responding to some critiques of my own work. In reality, I could run a full-time newsletter devoted solely to critiquing scientifically illiterate, ideologically driven coverage of this subject, but that wouldn’t be much fun at all.
I say this all as someone who believes that well-diagnosed young people with gender dysphoria, including some who are well below the age of 16, should go on puberty blockers and cross-sex hormones. The story I am most infamous for among some trans activists, published in The Atlantic, highlights cases of young people whose physical transitions have gone well (though it also highlights detransition stories — hence the controversy), and I really hate the idea of depriving them of what they view as life-altering, if not life-saving, medical treatment. And the headline of one of my longer recent-ish posts on this newsletter, “Why The Hard Age Caps On Youth Gender Transition Being Proposed By Conservatives Are A Very Bad Idea,” is self-explanatory. But even in the clearest-cut cases, there are tradeoffs to blockers and hormones, there are situations where they should be approached with a great deal of caution, and scientists are not anywhere close to having established the comprehensive understanding of this subject implied by the certitude of so many pundits and journalists addicted to moral righteousness but allergic to doing any basic homework.
The latest example of lackluster coverage of this issue was published in Foreign Policy, and it’s bad enough to warrant a pretty thorough dissection. Written by the UC - Berkeley English professor Grace Lavery, a trans woman, it’s headlined “A High Court Decision in Britain Puts Trans People Everywhere at Risk.” The decision in question, known as Bell v Tavistock (PDF, and the document I’ll be referring to throughout), is what the Brits call a “judicial review,” or, as one website puts it, “a kind of court case, in which someone (the ‘claimant’) challenges the lawfulness of a government decision.”
In this case the claimants are Keira Bell, a young detransitioned woman who regretted the transition services she received at England’s National Health Service gender clinic for young people, the Gender Identity Development Service, and later an adult NHS clinic, and “Mrs. A.,” the mother of a teenage girl with mental-health problems, who told the court she was worried her child would be referred to GIDS and subsequently to puberty blockers (this hasn’t happened, so the court notes that her “interest in this action is therefore largely theoretical” and doesn’t pay her much mind in the ruling, to be honest).
“The sole legal issue in the case is the circumstances in which a child or young person may be competent to give valid consent to treatment in law and the process by which consent to the treatment is obtained,” explains the court in the ruling, the treatment in question being puberty blockers. After running down the evidence it received from both sides, it explains in its conclusions that, as the BBC put it, “Children under 16 with gender dysphoria are unlikely to be able to give informed consent to undergo treatment with puberty-blocking drugs.” As a result of the ruling, the Tavistock and Portman NHS Foundation Trust, which oversees youth GD treatment for the NHS, “immediately suspended such referrals for under-16s,” though one could still get these services from a private clinic, if my understanding is correct.
I actually agree with Lavery that this is too conservative a policy and hope some wriggle room is reintroduced — as we’ll see, nowhere does the Court rule that under-16s can never meaningfully consent to these procedures, so perhaps there’s hope — but that’s another post for another day. For now, I want to focus on just how seriously her article misrepresents the nature of Bell v Tavistock, getting important things wrong and committing major sins of omission that are guaranteed to mislead lay readers. As always, all these errors and questionable editorial judgments point in the same direction: casting aspersions on anyone who has any questions or qualms about minors being prescribed puberty blockers or cross-sex hormones.
There are large chunks of the article I am not going to engage with, because they have nothing to do with the decision itself. Lavery argues that Bell v Tavistock “reflects a disturbing escalation of anti-transgender policy across the United Kingdom,” and then basically just pins the decision on her own personal enemies list. She presents the ruling as being somehow connected to a whole cast of nefarious characters — TERFs (trans-exclusionary radical feminists), gender-critical feminists (that is, feminists who don’t trust currently in-vogue essentialist concepts of gender and gender identity, and who often view trans women as men and trans men as women), and Janice Raymond (!)(?) — who in fact have almost nothing to do with it, except in the most tenuous way, and she barely bothers trying to build any of the connective tissue that would render this a serious analysis of the ruling. Lavery’s goal, I think, is to present the very idea of suggesting 15-year-olds might not be competent to make major medical decisions as so radically wrongheaded that only a bigot (or a TERF) could possibly believe it, which, well, good luck to her convincing normal people of that.
It’s genuinely jarring to read Lavery’s summary of Bell v Tavistock, a ruling she describes as an “unprecedented juridical attack on the LGBT community in the U.K.” fueled by the “the eliminationist fever dreams” of the trio of judges who penned it — eliminationist! — and to then read the ruling itself, which is based almost entirely on testimony from a small army of experts and patients on both sides of the puberty-blockers debate, plus a hefty dose of legal analysis pertaining to the British concept of “Gillick competence,” or the question of when minors are competent, in the eyes of the law, to meaningfully consent to medical treatment. Lavery’s article is written as though radical feminists who despise trans people are the one secretly pulling the strings of the British legal system — a belief evidenced nowhere in the text of this particular ruling — and as a result large swaths of her piece end up resembling a bulletin board from a particularly fanciful episode of The X-Files.
All this in one of the leading foreign-policy outlets.
Lavery Doesn’t Seem To Have Read The Ruling Or To Quite Understand What It Is
Some of the key bits of misinformation Lavery passes on to readers stem directly from the fact that she has apparently not read Bell v Tavistock. I know this is a serious accusation, but I really don’t think she did, at least not thoroughly. She makes errors that someone who read the ruling would not have made, so the only real alternative is that she is lying about the ruling’s content. I’ll go with the slightly more charitable of the two interpretations.
Lavery provides us some evidence of her unfamiliarity with this case in the very second sentence, when she writes,“In effect, the British courts intervened in the transition-related care of any children in the United Kingdom experiencing gender dysphoria, putting those children and their families in the position of having to seek care abroad.”
As Helen Lewis pointed out on Twitter, this is incorrect:
The Times Scotland @thetimesscot"Are Scottish children really more competent than their English counterparts? Or, as must surely be more likely, is the Scottish NHS and the Scottish government guilty of a startling and even reckless insouciance?" — @alexmassie https://t.co/ZmKULPiJFM
Lavery did change this…
...but Foreign Policy didn’t post a correction, instead opting for a stealth edit that hides from the reader the fact that Lavery, despite being presented as enough of an authority on this subject to write a long and searing article about it, didn’t initially understand the basics of where the ruling did and didn’t apply. (The sentence now reads “In effect, the courts intervened in the transition-related care of children experiencing gender dysphoria, putting those children and their families in the position of having to seek care abroad.”)
So we’re not off to the best start.
But Lavery commits a more serious error when she criticizes the ruling for straying too far from the facts of the Keira Bell case:
First, and most consequentially, the decision had almost nothing to do with the case it sought to address. The complainant in that case, Keira Bell, brought a case based on a gender transition she regretted, and which she now feared had negatively impacted, in particular, her fertility. But the remedy that the court proposed would have had no bearing on those damages: Bell began taking hormone replacement therapy (HRT) as an adult, at 18, and obtained her top surgery at 20. Bell’s lawyer argued in court that her decision to seek treatment with HRT was caused by her having been prescribed Lupron, a puberty blocker, at an earlier age. It is unusual for courts to be swayed by this kind of “slippery slope” fallacy, especially when Bell was also, and contradictorily, arguing that her interest in transition was caused by “the internet.”
(See second update below for an explanation of why Lavery was wrong to mention Lupron throughout her piece.)
Lavery makes a basic error of fact here: As the ruling notes explicitly, Bell went on testosterone at 17, not 18. More importantly, though, this is a pretty fundamental misunderstanding of what this court ruling is (and isn’t). Again, it is a judicial review. There is no sense in which the Court “sought to address” the Keira Bell situation. There are at least three times in the ruling when the Court explains precisely what it is doing, twice saying that it is not trying to resolve (or ‘address’) the merits of any individual medical decision made about puberty blockers:
This is a claim for judicial review of the practice of the defendant, the Tavistock and Portman NHS Foundation Trust, through its Gender Identity Development Service (GIDS) and the first and second Interveners (the Trusts) of prescribing puberty suppressing drugs to persons under the age of 18 who experience gender dysphoria.
The court is not deciding on the benefits or disbenefits of treating children with GD with PBs, whether in the long or short term. The court has been given a great deal of evidence about the nature of GD and the treatments that may or may not be appropriate. That is not a matter for us. The sole legal issue in the case is the circumstances in which a child or young person may be competent to give valid consent to treatment in law and the process by which consent to the treatment is obtained.
The first claimant [Bell] was born a female. In her witness statement in these proceedings she set out her experience of being prescribed PBs and then CSH. It should be noted that some of the details relating to her treatment and the information she was given (at GIDS and the first defendant) is disputed. This case is a judicial review of the GIDS policy, not a tort action relating to the specific facts surrounding the first claimant’s treatment and it is not necessary therefore to resolve any factual dispute. We simply record the first claimant’s account.
You can’t read these paragraphs and then come away thinking either that the point of this ruling was to ‘address’ the Keira Bell situation in particular, or that it’s strange or questionable for the court’s decision to (arguably) not be directly applicable to her story. Bell’s testimony was designed to help the court make a decision about puberty blockers, not to address the particulars of her case. (Plus, Bell was in fact prescribed puberty blockers, so while Lavery might not buy her causal account of that leading to the transition she regretted, and in fact dismisses it out of hand without any evidence, of course Bell’s story is potentially relevant to the core question the Court is evaluating, whether or not the judges accept her account.)
In her next paragraph, Lavery attempts to cast aspersions on the court’s reasoning with regard to a controversial question at the heart of this debate: What percentage of kids who start puberty blockers continue on to cross-sex hormones? One reason this matters is that blockers have been presented, in many contexts (some of which the Court references), as a means of simply “buying time” for kids questioning their gender to figure out their identity without having to go through a puberty that will potentially exacerbate their situation. But if, as some critics of youth transition claim, almost everyone who goes on blockers continues on to cross-sex hormones, this would be useful information for parents and youth themselves to know. After all, there is an important difference between “This reversible treatment will give you a year or two to try to better understand your gender identity and decide whether you want to medically transition” and “Almost everyone who starts this reversible treatment continues on to a treatment that is not reversible” (though more on the reversibility question in a moment).
The Court’s ruling notes, convincingly, that there has been some mixed messaging from gender clinicians about the basic question of what blockers are for (“buying time” for kids who aren’t sure what they want versus forestalling puberty for kids who already have severe and persistent dysphoria), which is of course crucial. And while Lavery disagrees, the Court also notes that some experts have claimed that puberty blockers could solidify a child’s sense of gender dysphoria (which goes away on its own pretty frequently, according to the evidence we have and notwithstanding flimsy arguments otherwise). The degree of correlation between taking blockers and going on to fully transition can’t answer this question definitively — correlation does not equal causation — but it does have some evidentiary value, since obviously if only one out of 20 kids who went on blockers proceeded to hormones, say, it would be hard to argue the former causes the latter.
Anyway, here’s what Lavery says about the ruling’s approach to this question:
But it was especially bizarre for the court to argue that the puberty blockers “pave the way” for the later, adult interventions because of the high percentage of patients who advance from puberty blockers to HRT (though the court did not in fact collect any evidence on what that percentage actually is). If that percentage is high, it would only be because the number is low—only 161 children were treated for gender dysphoria with puberty blockers in the year 2019-2020, implying that there are, despite much propaganda to the contrary, significant screenings of children before they are prescribed Lupron.
(See second update below for an explanation of why this statistic is actually wrong.)
Setting aside the fact that the court itself doesn’t use that “pave the way” language, but uses it to sum up Bell’s lawyer’s argument (and then endorses a version of it later), the reader would come away, again, confused and misinformed. Lavery is clearly arguing that the court claims there is a tight correlation between blockers and hormones despite not having data to support this: “[T]he court did not in fact collect any evidence” on this question, she asserts, and she then uses the language “If that percentage is high,” which implies we don’t have much of a clue. (This is another place where I don’t think her analysis makes much sense — is 161 children a low number? Were they screened sufficiently? You can’t just proclaim the answers to be ‘yes’ and ‘yes’ without any evidence — but I’m going to focus on the more straightforwardly factual issues.) (Update: There is actually another error in the above paragraph. The ruling notes that “for the year 2019/2020, 161 children were referred by GIDS for puberty blockers (a further 10 were referred for other reasons).” So 161 were referred for puberty blockers, not treated with them. There is an obvious and important difference between those two claims.)
But the ruling contains a fairly lengthy section explaining exactly what evidence was provided to the Court on this front, and the fact that GIDS, to the Court’s surprise, initially seemed to lack basic data on this question:
No precise numbers are available from GIDS (as to the percentage of patients who proceed from PBs to CSH). There was some evidence based on a random sample of those who in 2019-2020 had been discharged or had what is described as a closing summary from GIDS. However the court did have the evidence of Dr de Vries. Dr de Vries is a founding board member of EPATH (European Professional Association for Transgender Health) and a member of the WPATH (World Professional Association for Transgender Health) Committee on Children and Adolescents and its Chair between 2010 and 2016, and leads the Centre of Expertise on Gender Dysphoria at the Amsterdam University Medical Centre in the Netherlands (CEGD). This is the institution which has led the way in the use of PBs for young people in the Netherlands; and is the sole source of published peer reviewed data (in respect of the treatment we are considering) produced to the court. She says that of the adolescents who started puberty suppression, only 1.9 per cent stopped the treatment and did not proceed to CSH. We were told that the defendant [meaning GIDS] did not have any data recording the proportion of those on puberty blockers who progress to cross-sex hormones.
We were told that in part this resulted from the fact that some would have progressed to adult services and would not be recorded by the defendant. Ms Swarbrick had carried out an analysis of a random sample of 312 of 1648 files of patients discharged from GIDS from 1st March 2019 to 4th March 2020. Dr Carmichael summarised this as:
“…based on a random sample of those referred to GIDS who had been discharged or had a closing summary from GIDS in 19-20 (analysis B) 16% of patients (49 individuals) had accessed the endocrinology service during their time with GIDS. Of those 16%, 55% (27 individuals) were subsequently approved for or accessed cross-sex hormones during their time with GIDS. This number represents 8.7% of all the patients discharged from GIDS that year. We also know that of the 49 patients who were referred to endocrinology for GnRHa whilst at GIDS, two did not commence GnRHa treatment, and a further five were discharged from GIDS without being referred on to another gender service.”
We find it surprising that GIDS did not obtain full data showing the figures and the proportion of those on puberty blockers who remain within GIDS and move on to crosssex hormones. Although neither Dr Carmichael nor Professor Butler could give the equivalent figures in the United Kingdom to those from the Netherlands, the language used in their witness statements suggests that a similarly high proportion of children and young people in the United Kingdom move from PBs onto CSH. [emphasis mine]
It’s totally false to claim that “the court did not in fact collect any evidence on what that percentage actually is.” The court collected some evidence, including solid evidence from the Dutch, and was hindered from collecting better British data solely by the fact that GIDS — the institution whose previous practice of prescribing blockers to under-16s Lavery is defending — didn’t track this statistic and had only a bit of evidence, which the court did (in fact) collect. This is, again, impossible to miss if you actually read the decision closely.
I want to attempt to be super-mega-charitable here. An ardent fan of Lavery’s might say, “Well, she said they didn’t in fact collect any data, not that they didn’t try to, and she was referring to GIDS, not to other evidence such as from the Dutch clinic.” This argument is tripped up by that pesky ‘any,’ anyway, since clearly the court collected some (albeit non-comprehensive) GIDS data, but even setting that aside, this is nuts. Imagine if I said, of an article Lavery wrote, “She didn’t include any quotes from Carl,” ignoring a line from the article in question which reads “Carl didn’t respond to a request for comment.” “She didn’t include any quotes from Carl” would basically be a true lie: strictly, literally true, but in context clearly implying to the reader, dishonestly, a lack of any attempt to contact Carl.
On top of all this, Lavery leaves out that not long after the ruling came out, GIDS released exactly the data the court had been seeking, and that it ran contrary to Tavistock’s own past messaging on this subject. “All but one child treated for gender dysphoria with puberty-blocking drugs at a leading NHS clinic also received cross-sex hormones, a study has shown,” reported the BBC. “The Tavistock and Portman Trust has argued the treatments are not linked.”
Foreign Policy readers will be completely misinformed by this, because Lavery has distorted the reality of what happened into a fictional version that makes the Court’s performance look worse. This is quite dishonest. It’s also unnecessary, because Lavery is actually right that the correlation on its own doesn’t definitively prove anything! But Foreign Policy readers deserve to have basic information about the Court’s competence and what evidence it did and didn’t have access to or bother considering.
Lavery Also Commits Important Sins Of Omission That Seriously Oversimplify The Story And The Court’s Reasoning
Jumping backward, here’s the second paragraph of Lavery’s piece:
To some children experiencing gender dysphoria, puberty—a difficult experience at the best of times—can be especially painful because it enacts changes to the body that may be irreversible without painful and costly surgeries. That’s why the British Medical Association recently affirmed its position that transition-related care for minors should focus on delaying puberty. Doctors recommend prescribing a medicine called leuprolide acetate, sold under the brand name Lupron, which has been used to hold off premature puberty, a condition known as “central precocious puberty,” since 1993. As with other puberty blockers, the effects are reversible. [emphasis mine]
The lay reader will come away from this paragraph believing that puberty blockers are proven to be a safe and relatively minor intervention for gender-dysphoric youth because they are 1) reversible; and 2) have been used for decades. But in fact the validity and relevance of both these points are contested in the very ruling Lavery is writing about, which can partly explain why the court came down the way it did (rightly or wrongly).
While Lavery ignores it entirely, there’s a whole short section in Bell v Tavistock subtitled “The impact of Puberty Blockers and their reversibility” that lays out, in some detail, the sorts of concerns parents and clinicians might want to weigh.
Here’s one key paragraph from that section which quotes some experts:
Both [the World Professional Association for Transgender Health] and the Endocrine Society in their documentation describe PBs as fully reversible. Professor Butler says that “we do not know everything about the blocker and as far as we know it is a safe reversible treatment with a well-established history.” Dr Alvi also referred to the history of the use of PBs as showing that they are fully reversible. However, it is important to note that apart from the Amsterdam study, the history of the use of PBs relied upon in this context is from the treatment of precocious puberty which is a different condition from GD, and where PBs are used in a very different way. [emphasis in the original]
So the evidence for blockers being ‘reversible’ stems mostly from situations in which kids who went on them eventually proceeded to their natal puberty, not in which they took cross-sex hormones and went through a partial version of the ‘other’ puberty (‘partial’ because if you are born male/female, you don’t experience each and every element of a natal female/male puberty when you take cross-sex hormones). And there’s far less evidence, overall, for the safety and reversibility of puberty blockers in this latter use-case. It’s a distinction that matters a great deal.
Bell v Tavistock goes on to lay out some evidence that blockers shouldn’t be presented as reversible in an unequivocal manner. For example, it quotes testimony provided to the court by Annelou de Vries, a leading Dutch clinician, who wrote, “Ethical dilemmas continue to exist around … the uncertainty of apparent long-term physical consequences of puberty blocking on bone density, fertility, brain development and surgical options.” (Fertility is an excellent example of how the drugs’ ‘reversibility’ hinges entirely on what comes next, natal puberty or cross-sex hormones. If you take puberty blockers and go on to your natural natal puberty, you’ll likely be fertile, while if you instead proceed to cross-sex hormones, you likely won’t be.)
The decision also notes that the National Health Service itself recently reversed course on this question. Specifically, its webpage on puberty blockers changed in June 2020 from:
The effects of treatment with GnRH analogues [a type of blocker] are considered to be fully reversible, so treatment can usually be stopped at any time.
Little is known about the long-term side effects of hormone or puberty blockers in children with gender dysphoria.
Although the Gender Identity Development Service (GIDS) advises that is a physically reversible treatment if stopped, it is not known what the psychological effects may be.
It’s also not known whether hormone blockers affect the development of the teenage brain or children’s bones. Side effects may also include hot flushes, fatigue and mood alterations.
Lavery doesn’t explain any of this. She simply states that “the effects are reversible,” linking to an activist website, and notes that they’ve been used in another context, but without pointing out that many experts themselves believe the two use-cases to be quite different. There is no way a reader of Foreign Policy — someone who might have to make a decision along these lines in the future given the major uptick in kids being referred to gender clinics — will come away from Lavery’s summary with anything like a comprehensive understanding of this aspect of the controversy.
That’s not accidental: The whole point of this subgenre of journalism and punditry is to deny there is any controversy here. But you can’t do that without sweeping certain rather important pieces of inconvenient evidence under the rug. The Court eventually rules that because “there is real uncertainty over the short and long-term consequences of the treatment with very limited evidence as to its efficacy, or indeed quite what it is seeking to achieve,” using blockers on gender-dysphoric youth is, “in our view, properly described as experimental treatment.” Of course this goes completely unmentioned by Lavery.
Now, surely Lavery disagrees with the Court’s assessment here, as is her right, but that’s not the point: instead of engaging with the argument, she obscures this aspect of the ruling from readers entirely, telling them that blockers are reversible, full-stop, when in fact this claim is hotly contested and its veracity a pivotal aspect of the Court’s reasoning. (To be clear, and to echo something the Court writes, I don’t think ‘experimental’ means “shouldn’t be used at all.”)
Also in the sins-of-omission department, Lavery writes:
Finally, the particular concern over “fertility” that the court adduced in many places (the word appears 23 times in the decision, versus eight times for “transgender”), reveals the clearly conservative social project at the core of this decision. The court determined that “there is no age appropriate way to explain to many of these children what losing their fertility or full sexual function may mean to them in later years.” But talking to children about fertility and sex was already routine in the decisions over contraception, surgery, and other treatments that were a key part of Gillick competency in the first place. In any case, the medication in question, Lupron, has no effect on fertility or sexual function.
But perhaps we shouldn’t be surprised that ‘transgender’ doesn’t come up that much in Bell v Tavistock, given that puberty blockers aren’t prescribed to treat “being transgender,” but rather the well-established condition known as “gender dsyphoria” (some trans people have clinically significant GD, while others do not). And “gender dysphoria” and ‘GD’ appear in the document 63 times, by my count, which is far more often than ‘fertility.’
As for the Gillick part, Lavery is, again, excising context in a manner that makes the ruling seem significantly less fully baked than it is. After explaining that for many kids, there is no way to impart information about puberty blockers in a manner that ensure they will truly understand it, the Court lays out something of a sliding age-scale that certainly doesn’t seem to run contrary to any of the basic principles of the Gillick threshold, and which leaves open the possibility of some under-16s being able to give meaningful consent to go on puberty blockers:
We do not think that the answer to this case is simply to give the child more, and more detailed, information. The issue in our view is that in many cases, however much information the child is given as to long-term consequences, s/he will not be able to weigh up the implications of the treatment to a sufficient degree. There is no age appropriate way to explain to many of these children what losing their fertility or full sexual function may mean to them in later years.
Gillick makes clear that any decision is treatment and person specific. However, for the reasons that we have set out above, we think that it is appropriate in this case to give clear guidance as to the application of the Gillick tests to the treatment and cohort of children in question. The conclusion we have reached is that it is highly unlikely that a child aged 13 or under would ever be Gillick competent to give consent to being treated with PBs. In respect of children aged 14 and 15, we are also very doubtful that a child of this age could understand the long-term risks and consequences of treatment in such a way as to have sufficient understanding to give consent. However, plainly the increased maturity of the child means that there is more possibility of achieving competence at the older age.
In respect of a young person aged 16 or over, the legal position is different. There is a presumption of capacity under section 8 of the Family Law Reform Act 1969. As is explained in Re W, that does not mean that a court cannot protect the child under its inherent jurisdiction if it considers the treatment not to be in the child’s best interests. However, so long as the young person has mental capacity and the clinicians consider the treatment is in his/her best interests, then absent a possible dispute with the parents, the court generally has no role. We do not consider that the court can somehow adopt an intrusive jurisdiction in relation to one form of clinical intervention for which no clear legal basis has been established.
The Court is clearly saying that it is a serious challenge for 13-to-15-year-olds to understand long-term concerns over the effects of puberty blockers, but that some can, and that this question needs to be approached on a child-by-child basis. All this nuance is lost in Lavery’s telling, in which she suggests the Court is deviating in some reckless or unusual way from previous Gillickian reasoning in a manner that unfairly singles out this type of medical care.
It’s a separate issue, but there’s also the frustrating and insensitive glibness with which Lavery discusses other people’s fertility, as something only a “clearly conservative social project” could care about. This, like her attempt to convince people that only reactionary bigots worry about whether young teenagers can consent to major medical treatments, is likely to backfire spectacularly, but it’s still strange to see an argument like this appear in a major, respected outlet whose readers, being mostly normal humans, likely have strong feelings about they and their offsprings’ fertility.
Try To Do Better, Media
I could go on and on, because even beyond the plainly wrong or misleading stuff in Lavery’s article, so many aspects of it struck me as bizarre, wrongheaded, and argumentatively thin (the gymnast analogy! Oh my God). Suffice it to say I think Foreign Policy should correct the most serious errors, and suffice it to say I doubt that will happen.
At the very least, I hope editors understand the effect these sorts of articles likely have on readers. Do you think the average Foreign Policy reader, after having read Grace Lavery’s piece, is more likely to think something like, Huh, this makes me realize how much of a bigot I am for worrying about my 14-year-old’s ability to consent to permanent medical treatment, or more likely to think, What the hell happened to Foreign Policy?
There is a mileswide chasm, driven by perverse social-media incentives, between what gets published in liberal outlets about youth gender dysphoria (or what gets spouted on Twitter) and the conversations liberals have about this subject “behind closed doors,” in both the virtual and physical senses. To be clear, and contrary to Lavery’s ridiculous claim that what’s in dispute here is the very “fact of trans people” itself, these conversations are not geared toward disparaging trans people, trying to force them into the closet, or anything like that. Liberals overwhelmingly support the rights of trans people to live free from discrimination and to have access to health care.
But these conversations do acknowledge that kids are different from and more complicated than adults, that the evidence base for youth GD treatment is limited, and that perhaps it would be best to proceed with caution and compassion and nuance. It’s completely ridiculous, and a disturbing sign of the times, that any of this is seen as controversial, or that anyone has to fear uttering such common sense in public.
Update: So unfortunately I didn’t notice this when I first wrote this post, but initially Lavery had a major error in the first sentence of her article. As a Twitter user who liked the piece posted after it went first online, “Wish that this generally good Grace Lavery piece hadn't opened by stating that Bell v Tavistock rules ‘no children under the age of 16 can meet the standard for informed consent’. It's not true & it overstates the judgement in a harmful way.” The person then included a screenshot of the relevant part of the decision, which if you’ve read this far you are aware very much does not say that under-16s are incapable of meeting the Gillick standard.
A Google search reveals that this opening of the article was indexed in various places, including the newsletter of Lavery’s husband, where it’s still live (archive if it goes down). If you read the live version of the article, you’ll see that the opening words of the story now read, much more accurately, “Earlier this month, the British High Court judged that children under the age of 16 have ‘enormous difficulties in meeting the standard for informed consent…”
There’s no correction explaining this change at the bottom of the story or anywhere else — it’s a stealth edit. To be clear, just about every publication engages in this less-than-ideal practice from time to time. Editors and writers don’t like posting corrections, so it’s justified with reasoning along the lines of, “Okay, whatever, in the second graf we said Bob is 32 when he’s actually 33 — let’s just quickly change that and republish. Hardly anyone has even read the story yet, anyway.” These sorts of minor errors get stealth-edited all the time.
But you really can’t stealth edit an error like this, because it’s quite consequential. It shows, again, that Lavery either didn’t carefully read this ruling she feels so strongly about, or had no compunctions about simply lying to readers about it (I still think it’s more likely she just didn’t read it closely). This error obviously bears on her trustworthiness, and readers deserve access to a transparent explanation of how the story used to read and what was changed. This is an egregious thing to stealth-edit into oblivion — an example of really shoddy journalistic norms in action.
Second update, 12/23/2020: Two more issues have come to light. First, contrary to what Lavery wrote throughout the article, Lupron is not usually used as a puberty blocker in England and Wales (the precise territory covered by the ruling). Rather, as noted in this Freedom of Information Act document sent by Tavistock in response to questions from the organization Transgender Trend:
1. We usually use triptorelin tradenames Gonapeptyl Depot and Decapeptyl SR as these have a licence for children.
2. Leuprorelin (tradename Prostap in the UK) is an alternative second line in case of a drug reaction but doesn't carry a specific child licence or for puberty blockade.
Sure enough, in this testimonial, Keira Bell explains, “Before long I was prescribed hormone blockers (Gonapeptyl)[.]” So Foreign Policy should correct this throughout the piece, including sentences such as “Bell’s lawyer argued in court that her decision to seek treatment with HRT was caused by her having been prescribed Lupron, a puberty blocker, at an earlier age” and “In any case, the medication in question, Lupron, has no effect on fertility or sexual function.”
In addition to a reference to Lupron that should be corrected, the bolded part of this sentence is also false: “If that percentage is high, it would only be because the number is low—only 161 children were treated for gender dysphoria with puberty blockers in the year 2019-2020, implying that there are, despite much propaganda to the contrary, significant screenings of children before they are prescribed Lupron.”
To the ruling: “As it is, for the year 2019/2020, 161 children were referred by GIDS for puberty blockers (a further 10 were referred for other reasons).” So 161 is not the total number of “children [who] were treated for gender dysphoria with puberty blockers” in England and Wales in 2019-2020, but rather the number referred in that span. There is an obvious and important difference between those two figures.
Questions? Comments? Insinuations? I’m at email@example.com or on Twitter at @jessesingal. The lead image is a Simpsons meme Grace Lavery posted ridiculing those who are concerned about the long-term effects of puberty blockers. In the original version, Helen Lovejoy, a reverend’s wife known for her performative piousness and moral grandstanding, sobs “Won’t somebody please think of the children!” Lavery edited it so instead she is sobbing, “Won’t somebody please think of the bone density?”