The High Court of United Kingdom has upheld the Tory government’s emergency ban on ‘puberty blockers’ to children with gender dysphoria, calling it lawful.

For the unversed, ‘puberty blockers’ are medicines that prevent puberty from happening by suppressing the natural sex hormones estrogen and testosterone. The ‘banning orders’ to be effective temporarily from 3 June to 3 September 2024 were imposed on May 29th by the then Health Secretary, Victoria Atkins, as a final act of the Conservative government to “address risks to patient safety’’. The said ban was challenged by a young person whose name is withheld and a campaign group called ‘TransActual’ on the grounds that “it lacked rigour and was motivated by the personal views of the health secretary Victoria Atkins at the time”.

The ban was imposed pursuant to a review on gender medicine by Dr Hilary Dawn Cass, a paediatrician known as the chair of the British Academy of childhood Disabilities. The independent Cass review on gender identity services for children and young people criticised the lack of evidence surrounding the benefits and risks associated with puberty blockers, detailing “very substantial risks and very narrow benefits of the treatment’’. The Review’s letter to NHS in England (July 2023) advised that “puberty blockers only have clearly defined benefits in quite narrow circumstances, and because of the potential risks to neurocognitive development, psychosexual development, and long-term bone health, they should only be offered under research protocol’’.

Before the ban, private clinics could prescribe puberty blockers, although they were not available on the NHS in England, with the exception of being used strictly only on those children who were participating on clinical or research trials. Arguments were heard that such a ban should not have been introduced because secondary legislation that is already in place prevents prescription of puberty blockers from European or private prescribers, and restricts NHS provision within clinical trials. Arguments were also heard on a ban on private prescriptions of drugs to treat under 18’s and determine if these were unlawful. The Department of Health and Social Care (DHSC) and the Department of Health in Northern Ireland stated that the case should be dismissed.

On July 29th, 2024, Justice Beverly Lang, dismissing the case, said that ”Atkins had acted in accordance with the law’’. The Judge further said, “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’’. The Court also heard that the “temporary ban had had “a very real human cost’’ on more than 1000’s under-18’s”. 

Delivering the order, the judge said, “In my view, this is essentially an issue about achieving a successful implementation of the new scheme, not the lawfulness of the order. NHS and the DHSC (Department for health and social care) should consider how implementation can be improved as soon as possible, and in any event, before the next order is imposed’’. Justice Lang also observed that she considered it very unlikely that the Order and Regulations would be found to be in breach of Claimant 2’s substantive ‘Article 8 rights’. The Judge noted that Claimant 2’s submission, if upheld, would mean that the Government would have to undertake a public consultation exercise whenever it proposed to legislate in a way which potentially affected the Article 8 rights of individuals.

Welcoming the Court’s decision, Labour Health Secretary Wes Stressing, who proposes to make the ban permanent, said, “Children’s healthcare must be evidence-led. Dr Cass’s review found there was insufficient evidence that ‘puberty blockers’ are safe and effective for children with gender dysphoria and gender incongruence. We must therefore act cautiously and with care when it comes to this vulnerable group of young people’’

The order of Justice Beverly Lang may stir a hornet’s nest in United Kingdom, but it has left us something to think about. The future of vulnerable age groups and the health challenges before them.

Case Details: Transactual CIC v. Secy. of State, [2024] EWHC 1936

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