Image Credit: Ted Eytan
Content warning: this article mentions transphobia and gender dysphoria.
Underneath the storm of the pandemic, transgender rights in the UK have yet again been put under threat, this time via legal action concerning access to healthcare and public facilities. Trans rights have made headlines over the last year, from J.K. Rowling’s online essay defending her transphobic online activity, which was denounced by fans and critics alike, to the government’s dismissal of gender recognition reform. The latest legal motions passed push back against the progress made with trans rights since the turn of the millenia.
Last year, Keira Bell, a former patient at the Tavistock and Portman Trust, took legal action against the NHS gender identity clinic in the controversial Bell v Tavistock case. She claimed that she should have been challenged further by medical staff over her decision to transition to male as a teenager. Under the care of Tavistock, Bell received puberty blockers, and a year later was prescribed testosterone.
In December, the High Court ruled that children under eighteen years were not able to give informed consent to receiving puberty blockers, with Dame Victoria Sharp stating that, “it is doubtful that a child aged 14 or 15 could understand and weigh the long-term risks and consequences of the administration of puberty blockers.”
In response, NHS England updated their service specification to rule that anyone under 16 would have to obtain a court order to access hormone blockers and that those aged 16 or 17 would also need a court order. Puberty blockers are instrumental in preventing puberty for young trans people, which can take a traumatic toll on their mental health. They prevent irreversible bodily changes which can make transitioning harder further down the line - for example, breast growth or voice dropping.
Luis Asquith, director of policy and legal for the transgender youth charity Mermaids said that the ruling “may potentially open the floodgates towards other questions around bodily autonomy and who has the right to govern their own body.” In their official response, the charity heralded hormone blockers as “life-saving care” with the decision failing to reflect “overwhelmingly positive outcomes gained via hormone blocker treatments within the NHS.”
However, the Good Law Project funded a group ‘intervention’ by Stonewall and other LGBT+ organisations to appeal the High Court ruling. This appeal was successful. On 29 January, it was agreed that the Order should be stayed pending appeal, with the legal consequences for young trans persons suspended. The High Court’s decision will be reviewed by the Court of Appeal by March 2022.
Despite this, referrals for hormone treatment remain suspended, so young trans people’s access to treatment remains under threat, with the High Court ruling impeding access. With many young people having already waited for a year or more for treatment, this will undoubtedly exacerbate the issue of extensive waiting lists, which is an especially pressing issue given that many young trans people will begin to undergo irreversible changes in puberty while they await treatment.
The government has begun the process of reviewing publicly accessible toilets in England. They have called for a “proper provision of gender-specific toilets,” with a “clear steer” in building guidance to avoid gender-neutral toilet facilities and to encourage those facilities with existing gender-neutral facilities to adapt these back to gender-specific where possible.
This review was announced on 31 October as it was announced that England would enter a second lockdown, ostensibly drawing public attention away from the measures.
Campaigner Susie Cunningham argued that women require “separate same-sex facilities for their safety and security and comfort” and the government likewise said that women need “safe spaces” given their “particular health and sanitary needs,” such as menstruation or pregnancy.
Last year, Mermaids told The Independent that “we know from our 25 years of experience how difficult and distressing it can be for gender-diverse people to use single-sex facilities.” The spokesperson also used the term “trans bladder” to describe the experience of having to wait for hours on end to use a toilet without feeling unsafe or unwelcome.
As the review has been conducted covertly with little media coverage, most of the opposition has been voiced online by members of the LGBT+ community and allies. One Twitter user described the measures as an “utterly shameless attack on non-binary people and also nonsense in terms of legislation.”
With these measures coming into force under the shadow of both Covid-19 and Brexit, attention must be drawn to the lasting and transformative impact these legislative developments will have on the transgender community.
Trans rights campaigners have called for those who wish to take action against the public facilities review to write to their local MPs, urging them to take action. You can also email your opinions to firstname.lastname@example.org.
Those that wish to follow the ongoing Bell v Tavistock review can keep up-to-date with proceedings via Mermaids’ blog.