TransActual UK, which challenged the order made by the Secretary of State for Health and Social Care to ban puberty blockers for young trans people, condemns today’s decision by the High Court to uphold that ban. We have asked the judge for leave to appeal, and will decide whether to do so subject to the advice we receive.
Director for Healthcare, Chay Brown said: “This is a disappointing result. Defence evidence makes clear that they decided on an emergency ban first and sought ways to justify it second.
“The judgement leans heavily on the widely discredited Cass Review. This – never forget! – is the work of someone with no experience of trans healthcare. It excluded trans researchers from the review team, on grounds of potential bias, while including several clearly identified anti-trans academics; and it was led by an individual appointed from a shortlist of one – and since elevated to the House of Lords by the outgoing Conservative administration.
“The Cass review has been roundly dismissed by a range of experts in this area, including the world-class Yale School of Medicine. They conclude that the review ‘repeatedly misuses data and violates its own evidentiary standards by resting many conclusions on speculation’.
“We are seriously concerned about the safety and welfare of young trans people in the UK. Over the last few years, they have come to view the UK medical establishment as paying lip service to their needs; and all too happy to weaponise their very existence in pursuit of a now discredited culture war.
“It is essential that NHS England and the Department of Health and Social Care now take urgent steps to reverse this perception.
“To the wider trans community we say:
“Despite this appalling decision, we and our partners in the LGBTQ+ sector and beyond will continue working to advocate for the needs of trans people of all ages. The emergency ban will expire in September, and a consultation process is required to make any ban permanent. We will be strongly advocating for the voices of trans young people and their families to be listened to.
“If you’re trans, or you’re the parent or carer of a trans young person, talk to your MP and ask them to speak out against the ban.
“To trans young people: you are loved and you are special. What is happening to your healthcare in this country is appalling, and we will keep working until all trans people can access the healthcare they need when they need it.
“Our thanks to Good Law Project, to everyone who has donated so far and to our legal team.“
We fight on.
Further Information
For further information, email press@transactual.org.uk.
Litigation
The challenge to the puberty blocker ban, was brought forward by TransActual and a second anonymous claimant, in partnership with the Good Law Project. It was heard before Mrs Justice Lang on Friday 12 July, in the High Court of Justice, King’s Bench Division.
Russell-Cooke solicitors and senior barristers David Lock KC, Jason Coppel KC, Rob Harland and Charles Bishop acted on the legal challenge to the ban.
Wider principles
This ruling allows a Secretary of State to create an inquiry to give the results they want; and then rely on that inquiry to ban any medication on an ideological basis. Do we want politicians meddling at this level in medical treatments?
We remain unsure how a medication can only be deemed unsafe for a small group of target users. If someone is trans but also has another medical need such as precocious puberty for puberty blockers, then which one wins out – the safety because of precocious puberty or the danger because they’re trans?
If a medication is dangerous to the point where it needs to be banned, it should be clearly and uncontroversially so.
Key paragraphs from the ruling
“180. The Defendants were entitled to rely upon the precautionary principle when making their judgments under section 62(1) and (3) MA 1968. The First Defendant expressly stated at the meeting of 19 April 2024, that the level of risk she was prepared to tolerate, in the context of protecting the health of vulnerable children, was low. In my view, the guidance in Alpharma, set out above, accords with a rational and balanced approach to the assessment of risk in this context, where there remains scientific uncertainty.”
“184. I accept the Defendants submission that a margin of appreciation is appropriate for a responsible decision-maker who “is required, under the urgent pressure of events, to take decisions which call for the evaluation of scientific evidence and advice as to public health risks, and which have serious implications for the…general public”: R v Secretary of State for Health ex p Eastside Cheese Company [1999] 3 CMLR 123, at [50], per Lord Bingham.”
210. In my judgment, the Cass Review’s findings about the very substantial risks and very narrow benefits associated with the use of puberty blockers, and the recommendation that in future the NHS prescribing of puberty blockers to children and young people should only take place in a clinical trial, and not routinely, amounted to powerful scientific evidence in support of restrictions on the supply of puberty blockers on the grounds that they were potentially harmful. Although the Cass Review did not state in terms that puberty blockers cause “a serious danger to health”, that was not the question that the Cass Review was asked to consider. That was a matter for the Defendants to determine on all the evidence before them. It would have been premature to do so before the Final Report had been published.”
“218. In regard to timing, the First Defendant reasonably considered that it was essential to make the Order as soon as possible to protect children and young people from irresponsible prescribing of puberty blockers by EEA providers, such as GenderGP, contrary to the recommendations of the Cass Review. The standard procedure, under which the CHM would conduct a consultation procedure and then provide advice, was estimated to take between 5 and 6 months. In my view, it was rational for the First Defendant to decide that it was essential to adopt the emergency procedure to avoid serious danger to the health of children and young people who would otherwise be prescribed puberty blockers during that 5 to 6 month period. Under the emergency procedure, there is no requirement to hold a consultation procedure.”
“219. DHSC officials believed that, if there was a delay between the announcement of the Order and the date it came into effect, patients would rush to “beat the ban” and try to initiate treatment, knowing that they would be allowed to continue once treatment had begun. In my view, it was reasonable for the First Defendant to accept this advice. It would be an obvious reaction by supporters of puberty blockers to the news of an impending ban.”
“228. In conclusion, applying the heightened test of anxious scrutiny, I am satisfied that the decision to make the emergency Order on 29 May 2024, was a rational one, for the reasons set out above. Parliament has entrusted the Ministers to exercise the powers in section 62 MA 1968, in the exercise of their discretionary judgment. This decision required a complex and multi-factored predictive assessment, involving the application of clinical judgment and the weighing of competing risks and dangers, with which the Court should be slow to interfere.”