Bell v Tavistock quashed on appeal – quick read

Blog by Gendered Intelligence

The Court of Appeal has today reversed the judgment handed down in Bell v Tavistock by the Divisional Court. We are proud to have stood with subject experts Brook, The Endocrine Society, and Liberty, as well as having the backing of legal experts The Good Law Project. Thanks to this intervention, the court heard submissions from GI — the only trans-led organisation given a voice in this appeal — and other experts in reproductive health, young people’s competency, and endocrinology.

The Court of Appeal has stated that “the [original] claim for judicial review should have been dismissed” outright. The Court of Appeal decision is great news for trans youth, and points out that it “was inappropriate for the Divisional Court to provide the guidance” in the first place.

Gillick Competence

The guidance as demanded by the Divisional Court has been found to be “an improper restriction on the Gillick test of competence”. The Court of Appeal’s judgment makes it clear that decisions around Gillick competence are the same for trans youth as for all others, and that no unique restrictions need be placed on a person’s ability to consent simply because they are trans.

What now?

To our knowledge, not a single patient has been put forward to the endocrinology teams since the Divisional Court’s December 2020 decision. The Court of Appeal highlighted that at no point were the Tavistock’s policies and procedures found to be unlawful. There is no reason for NHS England to not return to its original treatment pathways.

Gendered Intelligence believes it is important that NHS England update/revert their guidance to reflect the Court of Appeal’s decision, and we will be writing to them to ask that this is looked at urgently.

Until the NHS England guidance is changed, a court order will still be needed for referral for endocrine services. We imagine that until the guidance changes, there will continue to be no new referrals.

At Gendered Intelligence, we are very happy that the Court of Appeal has reiterated the importance of Gillick competence for all, without restrictions. We remain cautiously optimistic that things will improve for trans youth and that their healthcare needs will be met in a timely fashion.

If you want to know more about Gendered Intelligence’s stance on puberty delaying treatment as a whole, click here for our new position statement (PDF).

For more detail, please see our ‘longer read’ version of this statement here.