Why the Department of Health is wrong to defend gender reassignment for children
The Department of Health has preemptively responded to an online petition calling for a ban on gender reassignment for under-18s. The petition, which is still open, was set up by Christian campaign group Voice for Justice, and has attracted over 9,000 signatures. The Department of Health and Social Care published an announcement in response to it last Tuesday 20 February.
The Department of Health’s announcement is particularly concerning in that it basically defends gender reassignment for children and teenagers and undermines parents’ rights to refuse such treatment for their children.
Gender reassignment as an aspect of ‘children’s rights’
The Department of Health starts its response by saying that
‘patients have a fundamental legal and ethical right to determine what happens to their bodies. Valid consent to treatment is therefore central to all forms of healthcare.’
Indeed the first half of the announcement focuses exclusively on patients’ consent to and right to medical treatment. This is really a way of justifying gender reassignment for children by reference to a radically individualistic interpretation of ‘children’s rights’.
It is very important to realise that no other ethical considerations are given any attention by the Department of Health at all. There is no discussion as to the medical validity of gender reassignment for children and adolescents, or the psychological factors and risks involved. There is no reference at all to the reality that many people subsequently regret undergoing gender reassignment.
Doctors left out of the picture completely
The Department of Health does not even mention doctors once, as if they have no part to play in medical ethics. Ignoring doctors is useful here because effectively it makes gender reassignment for children an absolute ‘right’, one that the medical profession as a whole should not be able to refuse without threats of litigation from transgender rights activists.
This underlying fear of litigation goes back to the Court of Appeal judgment against North West Lancashire Health Authority back in 1999, which ruled that NHS trusts could not write policies excluding gender reassignment. This made gender reassignment a treatment that the NHS could not refuse. The three activists who brought the case were adults and the assumption at the time would have been that treatment was for adults only. How wrong and how naive that assumption was is increasingly becoming apparent.
Undermining shared decision-making by both parents
The Department of Health goes on to say:
‘If a child is not competent to give consent for themselves, consent should be sought from one person with parental responsibility.’
This statement is deeply troubling for two reasons. First if a child is not competent to give consent they should not undergo such radical and controversial treatment as gender reassignment. In fact as the clinical benefits of this treatment are seriously in doubt, and as the legality of gender reassignment for children is also in doubt, this statement by the Department of Health is completely unacceptable.
Second, the Department of Health’s statement undermines the good practice of shared decision-making involving both parents on behalf of their children. As such it also undermines the nature and stability of marriage.
By requiring only one parent to give consent to treatment, the Department of Health is making it easier for children to be put through gender reassignment. This arguably increases the likelihood of parental disputes over the matter which will end up in court and possibly precipitate divorce.
It is important to recall here a well-publicised case before the Family Division of the High Court of England and Wales in 2016, where a mother who was bringing up her son as a girl lost custody of him to his father, who was no longer living with her. After the judgment several fathers were reported to have contacted lawyers because their female ex-partners who had custody of their children were bringing up their children as members of the opposite sex.
Gender reassignment for children as ‘necessary’
Chillingly, the Department of Health says this of parents who refuse to allow their children to undergo gender reassignment:
‘Where necessary, the courts can overrule a refusal by a person with parental responsibility.’
Why would it ever be ‘necessary’ for a court to overrule a parent’s refusal to allow a child to undergo gender reassignment? Is gender reassignment for children deemed transgendered compulsory now?
Increasing danger of parents losing child custody
The Department of Health’s claim that the courts ‘needing’ to overturn parental objections to gender reassignment for children leads us into the territory of child custody battles.
In August 2015 the High Court ruled that a female-to-male transgender teenager was allowed to cut of all contact with adoptive parents as they refused to use the teenager’s preferred male name and pronouns. Although this was a case regarding gender recognition, the parents’ refusal to use the opposite-sex name and pronouns logically implies they would also have refused to allow gender reassignment treatment. This in turn implies that the courts could similarly allow a child to cut off all contact with parents who refused to allow gender reassignment.
Then in October 2016, Christian Concern intervened in a case elsewhere in England where Christian parents of a girl who suddenly wanted to be a boy were worried social services might take her away from them because they were not treating her as a boy. The mother complained that she and the father were being considered ‘emotionally abusive’. However thanks to Christian Concern’s intervention the girl received proper psychiatric help and is now making progress towards living as a girl again.
What the law actually says about gender reassignment
The announcement by the Department of Health is exploiting the apparent discrepancy between Section 1(1) of the Gender Recognition Act, which makes 18 the age for gender recognition and closely aligns this with undergoing physiological treatment, and Section 7(1) of the Equality Act 2010 which does not mention a lower age limit.
Section 1(1) of the Gender Recognition Act requires applications for a Gender Recognition Certificate (a legal requirement to being treated as a member of the opposite gender) to be at least 18. This Section has never been amended or repealed by Parliament. Section 3 (3) requires applicants to provide two reports from either two medical doctors or a registered psychologist and a doctor. At least one of these reports has to include details of either treatment the applicant has received or is receiving ‘for the purpose of modifying sexual characteristics’, or of treatment to this end that ‘has been prescribed or planned’.
Physiological treatment, be it intended or undergone, as a legal requirement for being considered a ‘transsexual person’ is upheld by Section 7(1) of the Equality Act 2010. Existing case-law on the subject of what "intended" means makes it clear that an overt and significant step towards gender reassignment must be undertaken in order for anti-discrimination law to begin to attach. The courts have held, in this respect, that anatomical sex does matter in any determination of whether someone has the characteristic of gender reassignment.
Time to tighten up the law on gender reassignment for under-18s
When Joshua Sutcliffe was dismissed from his post as a maths teacher in a secondary school for calling a girl a ‘girl’, he received overwhelming public support for his stance. In general most people do not warm to gender reassignment for children. It was very telling how Joshua Sutcliffe said on Good Morning Britain on ITV that the other students in the school also did not know how to handle a girl who said she identified as a boy. Most of these students would not have been Christians so this goes to show how lack of support for gender recognition and gender reassignment for children is widespread and not confined to practising Christians.
Many MPs cheered last year in Parliament when David TC Davies, MP for Monmouth, called for the law to be tightened regarding puberty suppression and cross-sex hormones for under-18s. The time is ripe for MPs and Lords to get together and to campaign publicly to clarify the law and tighten it.
