Setting the minimum age for a GRC: a question of responsibility
One of the most contested issues in relation to the Gender Recognition Reform (Scotland) Bill concerns the proposal to lower the minimum age for acquiring a Gender Recognition Certificate (GRC) from 18 to 16 years, based on a statutory declaration, without any form of medical oversight.
In this blog we look at how this issue has been considered in the Scottish Parliament so far, relevant amendments that have now been laid by MSPs, the shifting position of the Children’s Commissioner over time, the wider context of the Cass Review and to what extent Scottish policy making is responding to that. We highlight very recent evidence of an emerging legal risk to the NHS here and consider how well that risk has been evaluated to date. We argue that issuing GRCs to 16 and 17 year olds may act as a powerful form of social transition for some young people and that MSPs need to be acutely aware of all the possible risks here, to individuals and to the NHS.
Note on definitions
Affirmative model: ‘A model of gender healthcare that originated in the USA which affirms a young person’s subjective gender experience while remaining open to fluidity and changes over time. This approach is used in some key child and adolescent clinics across the Western world’ (Interim Cass Review, 2022: 78).
Social transition: This does not involve medical treatment and broadly refers to a person living in role as the opposite sex. This may involve a change of name and adopting different pronouns. The Interim Cass Review states ‘it is important to view it [social transition] as an active intervention because it may have significant effects on the child or young person in terms of their psychological functioning. There are different views on the benefits versus the harms of early social transition. Whatever position one takes, it is important to acknowledge that it is not a neutral act, and better information is needed about outcomes’
(Interim Cass Review, 2022: 62-63).
Stage One Report
The Equalities, Human Rights and Civil Justice Committee (EHRCJ) Stage One report set out a range of arguments put forward by witnesses arguing for and against lowering the minimum age (see paras. 233 to 273). Those supporting the proposal often cited rights already available to 16-year olds, including the right to get married, join the army, work, and vote in Scottish Parliamentary and local elections. Others, ourselves included, expressed concerns about maturity and capacity, and noted that other rights are restricted to 18. The Stage One report concludes:
The majority of Committee members, while acknowledging concerns raised, on balance, considers that this age limit accords with existing rights in terms of the Age of Legal Capacity (Scotland) Act 1991. They believe that, based on the evidence gathered, it is clear that most young people reach decisions about their gender identity long before they consider applying for a GRC. They therefore support lowering the age of eligibility from 18 to 16.
SP 2022: para. 275
This view was not however unanimously held, with a minority of members citing concerns about maturity, and the ‘potential influence of additional factors such as puberty and peer pressure’, coupled with the removal of any medical safeguarding.
Reflecting wider concerns about a lack of support or guidance for younger applicants, the report stated:
The Committee as a whole agrees that support should be in place for all applicants for a GRC but that this is particularly important for younger applicants. The Committee calls on the Scottish Government to commit to ensuring appropriate support and signposting to resources will be available.
SP 2022: para. 278
Stage One debate
Picking up on the last point, during the Stage One debate, Cabinet Secretary Shona Robison indicated that the Scottish Government would seek to ‘to ensure appropriate support and signposting to resources for all applicants, and particularly those aged 16 and 17’ and that ‘[i]n line with the recommendation that was made by the Children and Young People’s Commissioner Scotland, young people will be involved in development of the process and guidance’.
Despite this assurance, MSPs from different parties continued to express concerns, including those otherwise broadly supportive of the Bill. These included SNP MSP Christine Grahame:
The Cabinet Secretary knows that I support the bill in principle, but I have some concerns about people in the 16 to 18 age range, notwithstanding the issue of guidance, which I know has been discussed. I am also concerned about people in that age range being required to have lived in their acquired gender for only three months.
SP 27 October 2022: col. 72
Scottish Conservative MSP Jamie Greene, one of only two Conservative MSPs to support the Bill’s general principles at Stage One, said:
I also have wider problems more generally with inconsistencies in how the law treats those aged 16 and 17. The law says that they can vote but cannot gamble, and that they can serve in the Army but cannot drink alcohol to celebrate that; and now we are being asked that they should be able to self-identify their gender and seek medical intervention and the lifelong implications that that sometimes brings. Professionals have emailed me to say, “This is utter madness. You cannot let that happen.” However, equally, many young trans people have written to me, begging and pleading, “Please support this. We need this, and we have the right to do it.”
I will be honest. I do not know what the answer is, because everyone is an individual. However, the Government must be led by evidence. It must do the right thing for young people, which both protects them—as it must—and respects their soundness of mind.
SP 27 October 2022: col. 91-92
And Scottish Labour MSP Michael Marra added:
The bill proposes a reduction in the age restriction for applying for a gender recognition certificate from 18 to 16 years. The Government has made a very poor job of answering critical questions that have been posed about that, including questions from the Equalities and Human Rights Commission. I believe that, given the risks, significant development of the case for the change is necessary before it can command the widespread public and political support that it needs.
SP 27 October 2022: col. 106
Age was not specifically mentioned in the speech by Scottish Liberal Democrat leader, although Mr Cole-Hamilton made clear the party fully endorsed the Bill. The Scottish Green Party threw its unequivocal support behind the age drop, with Maggie Chapman MSP arguing that this should be lowered further.
I am determined that appropriate gender recognition for under-16s and for non-binary people will be part of our shared future. To them I say, “You are not forgotten”.
SP 27 October 2022: col. 101
Ms Grahame has since tabled amendments (numbers 38 to 44 here) that seek to extend the period of ‘living in the acquired gender’ from three to six months, and require 16 and 17 year old applicants, at the time of application, to ‘confirm to the Registrar General that the applicant has discussed the implications for the applicant of obtaining a gender recognition certificate with an individual who— has a role which involves giving guidance, advice or support to young people, or is aged at least 18 and knows the applicant personally.’
In practice, this appears to be a moot gesture, given that the Scottish Government has failed to clarify what is meant by ‘acquired gender’, nor does the Bill require any evidence to support it. Commenting on Ms Grahame’s proposals, For Women Scotland Co-Director Trina Budge stated: “This is yet another randomly-chosen waiting period, seemingly plucked out of thin air with no consideration given to the time needed by clinicians to have a chance to find the root cause of a child’s distress and recommend a course of treatment.”
Alternative amendments tabled by Rachael Hamilton MSP (numbers 18 and 19 here) reverse the proposed reduction in age, re-setting the minimum age to 18.
Stakeholder support
MSPs defending the proposed age drop may have been reassured by a number of submissions to the two Scottish Government consultations and EHRCJ Committee call for views.
Most notably, these include the Children and Young People’s Commissioner in Scotland, whose submission to the 2017 Scottish Government consultation supported in principle lowering the minimum age to twelve. However, significantly, a subsequent submission in early 2020 to the second Scottish Government consultation took a more cautious approach, raising concerns about capacity and how this might be assessed, and avoided taking a clear position on whether the minimum age should be lowered.
There is no mechanism in the proposed reforms for setting out how an individual child’s understanding of the process and its consequences would be assessed. The Scottish Government has not set out the way in which the process of statutory declaration would seek to balance these considerations for 16 and 17 year olds…
The Scottish Government has not proposed that the Bill will provide any guidance to define what is meant by “living in an acquired gender”. Currently the Gender Recognition Panel sets out the criteria, but the proposed Bill seeks to remove the involvement of the Panel. If there is to be a process which applies to children (under 18) there is a need for these criteria to be set out in order that the professional required to supervise the process can make an assessment of a child’s understanding of it. It also provides no assistance to the court on the evidence required to determine the truthfulness of a statutory declaration. This is particularly significant for individuals given the criminal consequences of making a false declaration.
Children and Young People’s Commissioner Scotland 17 March 2020
In relation to the draft Children’s Rights and Wellbeing Impact Assessment, the Commissioner’s Office stated:
… we do not believe the draft CRWIA evidences any assessment of the potential negative impacts of these proposals on different groups of children and young people, nor does it address the need to balance participation and autonomy rights with protection rights and the effect of any proposed mitigation to assessed negative impacts.
Children and Young People’s Commissioner Scotland 17 March 2020
The Commission’s submission in Spring 2022 to the EHRCJ Committee call for views largely reiterated the same concerns. In responding to a direct question on whether the minimum age should be reduced from 18 to 16 years (page 2 of the response), the Commissioner did not state a view either way, although the response reads at first sight as arguing that in reducing the age below 18 there are, at minimum, still substantial issues that remain to be properly addressed.
Yet in giving oral evidence to the EHRCJ Committee in May 2022, the Commissioner appeared to take a less cautious position, reverting more to the tone of his response to the first Scottish Government consultation in 2018. Whilst reiterating the need for stronger support mechanisms and guidance, the Commissioner stated categorically:
We support the move to lower the age to 16. Protection and participation rights are not mutually exclusive, and we are looking for a process that recognises not only the growing autonomy of young people but the need to support and protect them.
Adamson, 24 May 2022: col. 13
In response to a question about the removal of safeguards and risk of abuse by bad-faith actors, the Commissioner stated:
I am not an expert, but I have looked at the issue in detail, and I feel that the concerns that people would use the bill in that way have not been evidenced internationally.
Adamson, 24 May 2022: col. 9
We submitted a Freedom of Information request to ask for information held by the Commissioner’s office to support this statement. In response, we received a lengthy list of references to a range of literature. This gave no indication of which of the many sources listed underpinned the view expressed, and how any that did had been critically appraised.
A follow-up request confirmed the Commissioner’s office held no analysis or assessment of the literature, bar some comments on the Scottish Government Child Rights and Wellbeing Impact Assessment on the Bill, which the Commissioner’s office withheld, on the grounds that it was not in the public interest to publish these. Among the reasons cited, the Commissioner’s Office stated:
To enable our office to be able to effectively discharge our statutory functions, we need to provide a safe space for staff and the Commissioner to review and consider evidence on challenging and polarising matters of human rights. Regarding Gender Recognition Reform and its impact on the human rights of children and young people, a safe space is essential due to the extremely and unusually toxic nature of the debate in Scotland.
Children and Young People’s Commissioner Scotland, Freedom of Information response 12 July 2022
The response also added to the previous list an Appendix setting out the Scottish Government’s understanding of legal gender recognition processes for children in other countries.
Other supportive organisations include the Law Society of Scotland, whose respective submissions to the two Scottish Government consultations endorse lowering the minimum age, with caveats about providing guidance and support (see here and here). With surprisingly simplistic logic, the 2018 submission asserts:
If 16 is considered an age at which people can marry or vote in some circumstances, then it must follow that those who have attained that age are deemed to have sufficient maturity to make such decisions.
Law Society of Scotland, March 2018: 4 (our emphasis)
And, as cited in the Stage One report, the Scottish Human Rights Commission also support lowering the minimum age:
We find that the age of 16 is in line with Scots law in terms of the Age of Legal Capacity (Scotland) Act 1991, which permits young people to enter into significant legal transactions. If the bill were to lower the age to 16, it would be in line with existing Scots law, which permits children to make decisions of such a nature.
SP 2022: para. 238
There is also strong support from children’s charities such as Children in Scotland whose submission to the Committee states that the requirement for applicants to have lived in their acquired gender for three months and three month reflection period should be removed from the Bill entirely, and that ‘future consideration should be given to the rights of children under 16 in this area’.
The elephant in the room
The debate on the minimum age of legal recognition is playing out against a backdrop of increasing unease about what it means to affirm a young person’s self-declared gender identity, and relatedly, clinical approaches to children with gender incongruence or dysphoria.
The last decade has seen an extraordinary increase in the number of young people presenting to gender identity services, the majority of whom are female. Data for referrals to the England is available here and here. Adolescent girls aged 12-17 years dominate the referral activity. MSPs should be aware that equivalent data does not appear to be available in Scotland (see further below).
In autumn 2020, NHS England and NHS Improvement commissioned the Independent Review of Gender Identity Services for Children and Young People, led by Dr Hilary Cass, the former President of the Royal College of Paediatricians and Child Health (‘The Cass Review’) to make recommendations about the services provided to children and young people.
The Cass Review
The Interim Report of the Cass Review, published in March 2022, raised serious concerns about gender identity services in England, many of which are relevant to Scotland. The report found the evidence base for an affirmation-only model to be lacking, and that the clinical approach in the UK ‘has not been subjected to some of the usual control measures that are typically applied when new or innovative treatments are introduced’ (para. 1.2). It was unclear whether puberty blockers ‘locked’ young people into a medicalised treatment pathway (para. 3.31) and that the best way to support young people experiencing gender distress had not been determined.
The report stated, ‘primary and secondary care staff have told us that they feel under pressure to adopt an unquestioning affirmative approach and that this is at odds with the standard process of clinical assessment and diagnosis that they have been trained to undertake in all other clinical encounters’ (para. 1.14) and that ‘GPs have expressed concern about being pressurised to prescribe puberty blockers or feminising/masculinising hormones after these have been initiated by private providers’ (4.41).
Of direct relevance to the Bill, as noted above, the report states that social transition is not neutral, but an active intervention that has psychological consequences (para. 5.19).
As a result of the findings, the Tavistock and Portman NHS Foundation Trust’s Gender Identity Development Service (GIDS), which is based in London with a satellite site in Leeds, will be closed in spring 2023, to be replaced by a regional model that is more integrated with other NHS services. NHS England is currently consulting on revised treatment guidelines for specialist gender dysphoria services for children and young people. These state that gender incongruence may be a ‘transient phase’ and that a range of options should be considered (2022: 2). The guidelines also note that approaches to support social transition should only be considered when persistent gender dysphoria is diagnosed, any associated needs and risks have been addressed, and the young person fully understands the implications of affirming a social transition (2022: 15).
This cautious direction is also evident in other countries. Finland has issued guidelines that state psychotherapy, rather than puberty blockers and cross-sex hormones, should be the first-line of treatment. The National Academy of France has warned against over-diagnosis, noting there is no test to distinguish between persisting gender dysphoria and transient adolescent dysphoria. Recent guidelines from the Swedish National Board of Health and Welfare (NBHW) advise a cautious approach with strict restrictions on hormonal interventions.
What about Scotland?
In Scotland the government appears largely unmoved by the developments outlined above and continues to endorse an affirmative approach that encourages social transition as an unproblematic act.
So, for example, in guidance to schools it states ‘if a young person in the school says that they now want to live as a boy although their sex assigned at birth was female, or they now want to live as a girl, although their sex assigned at birth was male, it is important to provide support and listen to what they are saying’ (2022: 13). The guidance also advises secrecy from families in some contexts, advising that ‘it is best to not share information with parents or carers without considering and respecting the young person’s views and rights’ (2021: 35), to the concern of some teachers.
The only provider of gender identity services for young people in Scotland is the Sandyford Clinic (see para. 292 here), which is part of NHS Greater Glasgow and Clyde.1 In finalising the Bill, the Scottish Government seems to have treated the response to the its second consultation from NHS Greater Glasgow and Clyde as irrelevant to the Bill’s explicit provisions, even for those under 18. The Board argued that issuing a person with a GRC risked increasing their expectation of, and demand for, treatment, and that this risk would need some mitigation, not least as some GRC holders would not be eligible for such treatment under the NHS.
NHSGGC’s Gender Identity Clinic Team considered the proposed provision of GRCs without a requirement to undergo medical supervision may lead to raised patient expectations that clinical services will follow once a GRC is provided. The team expressed the importance of highlighting the separation between successful application for a GRC and the application of robust governance standards for gender identity treatment. The team envisaged situations where patients with GRCs would not meet the required supervised standards for GIC services.
NHS Greater Glasgow and Clyde (our emphasis)
There is meantime increasing unease about Scotland’s approach to treating children and young people presenting with gender incongruence. A recent press article notes ‘the First Minister has refused to launch an investigation into Sandyford despite critics highlighting its services are nearly identical to those offered by the Tavistock clinic in London’. In contrast to the exploratory direction in England, the Sandyford clinic website states in terms that ‘The service primarily assists people who are transgender to facilitate medical and surgical treatments, enabling greater comfort in the face of gender non-conformity.’
WPATH
The EHRCJ Committee Stage One report clearly explains that:
Gender identity treatment at Sandyford is monitored and run in accordance with the World Professional Association for Transgender Health (WPATH) guidelines: ‘Standards of Care’, and in the Gender Reassignment Protocol for Scotland (2012), which is currently under review.
SP 2022, para. 290
This detail should seriously worry MSPs. The latest WPATH Standards of Care (SoC) (v8) state that, despite some risks, the benefits of breast binders include ‘increased comfort, improved safety, and lower rates of misgendering’ (2022: S54). Police Scotland has said by contrast that the use of breast binders is a “potential child protection matter”, while the charity LGBT Youth Scotland has been reported to the Office of the Scottish Charity Regulator (OSCR) for sharing information on the practice.
The WPATH SoC v8 state further that adolescents should be able to access sex hormone treatment ‘as part of gender-affirming treatment’, even without parental support. Healthcare professionals are advised to challenge unsupportive parents, and clinicians are advised that not all mental illness ‘can or should be resolved’ (S63) prior to prescribing irreversible medication or surgery. Most extraordinarily, the guidelines include a new chapter on eunuchs, which are viewed as falling under the ‘gender diverse umbrella’ and links to a website with graphic fictional depictions of child castration and sexual abuse (see here for further analysis of WPATH v8).
Following media revelations that the National Gender Identity Clinical Network for Scotland (NGICNS)2 had uploaded draft chapters of the v8 WPATH guidelines to its website, the entire NGICNS website was taken down and the child abuse imagery (which remains accessible via the link in the finalised guidelines) reported to Police Scotland.
NHS Scotland and the Scottish Government have since sought to distance themselves from WPATH. On 23 June this year, NHS Scotland told The Telegraph ‘it is incorrect to state that the gender clinics follow the WPATH guidance’ and said there were no plans for the updated WPATH guidelines ‘to be incorporated or followed either’. On 28 September the Scottish Government stated ‘NHS Scotland will not be adopting these guidelines.’
Given the extent to which WPATH is embedded in clinical practice in Scotland, as confirmed in the Stage One report, these statements are confused and confusing, deliberately or otherwise. In 2021 the Chief Medical Officer wrote to NHS Scotland Chief Executives stating that Scotland’s updated Gender Reassignment Protocol (which sets out the clinical pathway for accessing treatment) ‘should also take into account relevant international guidance including the World Professional Association of Transgender Health (WPATH) guidelines’. NHS Greater Glasgow and Clyde has stated that Sandyford’s gender identity service is ‘modelled and informed’ by WPATH guidelines’.
David Parker, lead clinician at the NGICNS is a WPATH member. The NGICNS written submission to the Scottish Government’s 2019 consultation quotes substantially from the WPATH position statement to justify support for removing a medical diagnosis for a change of legal status, while in oral evidence Mr Parker stated that trans and non-binary people were “the experts in their own experience” and should be “recognised as their authentic selves” (2022: col. 30)
To understand how NHS Scotland has found itself in this position, this first-hand account by the former manager of the Scottish Trans Alliance provides useful insights:
Scottish Transgender Alliance engagement in [WPATH] meant we knew when version seven of the international Standards of Care (SoC) was likely to be released and how it would differ from version 6. Therefore, we strategized during the protocol development that if we encouraged NHS Scotland to quote extensively from WPATH SoC version six, rather than write their own wording, then we would be better placed to get them to quickly improve the protocol once the new version became available.
As it happened, WPATH Standards of Care version seven was released in September 2011, just a few days before the NHS Scotland gender reassignment protocol was due to be signed off as complete. The Scottish Transgender Alliance created a tracked-changes version of the protocol overnight and then circulated it to the NHS Scotland Protocol Working group asking them to please accept the updated quotes from version seven. Some of the NHS clinicians did not see any need to make the changes so we involved the Equality and Human Rights Commission and the Scottish Government point, pointing out clearly that by accepting the changes, NHS Scotland could receive international praise as being the first country globally to implement a protocol upholding current WPATH SoC best practice, while not bothering to do the update, would mean embarrassingly publishing an already out of date protocol. It took several tense phone calls and emails, but, at the eleventh hour, the updated version of the NHS Scotland gender reassignment protocol was approved. To our surprise, in 2013, NHS England announced plans to adopt the Scottish Protocol Assets Interim Protocol, which came into force in 2014.
James Morton in Trans Britain (ed. Burns) 2018 pp. 235-236 (our emphasis)
This blog from 2012 further helps to explain the current situation, noting ‘the new Scottish guidance has been shaped by trans activists working with key figures within Scottish equality bodies and NHS Scotland’, adding ‘If a protocol such as this had been in place in England when I came out as a teenager, I could have gained a referral (or even referred myself!) to a GIC at the age of 16. Even with the massive waiting list for the GIC, I might have been on hormones at 17, and had surgery at 18.’
Gender identity services for young people
A leaked recording reported in The Telegraph last month documented a senior consultant at the Sandyford clinic acknowledging that its methods are not backed by ‘robust evidence’, and that Scotland’s gender clinics follow advice issued in WPATH guidelines. The consultant noted significant gaps in the evidence base and asserted it was not the role of the service to undertake detailed mental health assessments.
A consultant clinical psychologist at Sandyford openly admitted at an online NHS event in June that there were huge gaps in evidence around trans healthcare and claimed that work was ongoing to find “a robust evidence base for the treatment that we offer”.
The clinic’s mental assessment of patients was based almost entirely on their own self-diagnosis, she said, with clinicians “basically just going on what they [the patient] tell you”.
She said that the vast majority of her patients rejected steps which could have allowed them to have children in future before undergoing treatments that could render them infertile, as they were “desperate” to quickly access hormones.
The consultant insisted that it was not the role of gender identity clinics to conduct detailed scrutiny of a patient’s mental health and that life-altering treatments were ethical, as even if a patient later changed their mind, information they provided had been “correct at the time of writing”.
She claimed it was a “misconception” to view Sandyford as a mental health service and said that she instead saw its role as to “assess people for their readiness for treatment and to get them on treatment”, despite acknowledging high rates of mental health issues among trans patients.
The Telegraph, 26 October 2022 (our emphasis)
The vulnerabilities of young people presenting with gender incongruence put the implications of these observations into even sharper focus. A study by clinicians based at the Sandyford and Department of Paediatric Endocrinology, Royal Hospital for Children documented high level of co-morbidities among young people referred to Paediatric Endocrinology for puberty suppression:
Mental health problems remain one of the major co-existing concerns in transgender young people, as more than one-third of those attending our clinic have a diagnosis of a mental health disorder. Anxiety, eating disorders, depression, self-harm and suicidal ideation have been well documented in adolescents and adults with GD, with a much higher than the expected prevalence in the general population. The vast majority of the young people with mental health problems in our clinic were birth-assigned females…
Our study confirms the disproportionate number of young people with autistic spectrum traits or a diagnosis of autistic spectrum disorder (ASD) within the young people attending the gender service, much higher than expected in the general population, and this requires special recognition…
McCallion et al. 2021: 2973 (our emphasis)
The age-range of children prescribed puberty blockers ranged from nine to 18 years. Consistent with the comments reported in The Telegraph, the study also notes the poor take-up of fertility preservation services:
We found that the majority of young people, after appropriate informed consent, opted not to proceed with fertility preservation, despite this service being fully funded in the national health system. There appears to be incongruent numbers of those individuals who wish to have children in the long term and those who pursue fertility preservation. The reasons behind the poor uptake are largely unknown, but are likely related to the young person’s prioritisation of medical treatment to halt transition.
McCallion et al. 2021: 2974 (our emphasis)
Psychiatrist Dr David Bell has called for the Sandyford clinic to close because the model is similar to the Tavistock regime.
Joining the dots
The situation described here, particularly compared to the more careful direction of travel in England and other jurisdictions, should trouble MSPs in its own right. It is also directly relevant to the proposal to introduce a system of self-declaration for 16 and 17 year olds.
The issue at stake hinges on what it means for the state to issue a certificate that affirms a young person’s self-defined gender: whether this constitutes a form of social transition and if so, whether this might encourage some young people further towards the pursuit of a medical pathway.
It is hard to think of a more psychologically powerful form of social transition than the affirmation of a person’s self-declared gender identity by the state, backed by the issuing of a new birth certificate in the opposite sex. In relation to medical pathways, any risks here are exacerbated by the clinical context in Scotland. As the Interim Cass Review notes, in other clinical contexts more is known about at-risk populations, new or innovative treatments are subject to robust quality controls, and robust data is collected on outcomes and pathways.
But this is not the case here. It is still unclear why so many more young people, in particular girls, are now presenting with gender distress. This is exacerbated by a lack of standardised data. Rudimentary information on who is accessing Scotland’s services is unavailable. A Freedom of Information request shows the number of referrals to the Sandyford young person’s clinic increased from 37 to 298 between 2013 and 2018, with referrals for 33 children aged four to ten years old in 2018. NHS Greater Glasgow and Clyde (NHS GGC) which runs the Sandyford clinic, could not however provide a breakdown of referrals by sex, nor provide data on the number of young people prescribed puberty blockers as this would require a review of individual case notes. No robust data exists on the number of detransitioners, despite assertions from some witnesses that the number is ‘small’.
A matter for the courts?
The Tavistock Clinic in London is already facing possible clinical negligence claims by former patients of its Gender Identity Development Service, and litigation may well be brought in relation to the Sandyford clinic, which has followed the same affirmative approach.
The Scottish Government NHS gender identity services: strategic action framework 2022–2024 states that it will ‘commission Healthcare Improvement Scotland [HIS] to develop national standards for adult and young people’s gender identity services’. In August 2022 HIS told The Times that at no stage had it inspected, reviewed or carried out improvement work at the Sandyford young person’s clinic. HIS also confirmed that ‘there are currently no national standards of care for gender identity services in Scotland. The aim of the standards is to improve access and delivery of gender identity healthcare to support the best outcomes and experiences for people accessing them.’
Earlier this month, a law firm specialising in large scale group litigation began seeking clients from former Tavistock and Sandyford patients. In its pitch to potential Sandyford clients, the firm placed particular weight on the HIS statement above.
In a response to an FOI request asking for all assessments undertaken by NHS National Services Scotland to scope the potential financial risk from litigation brought by former Sandyford patients, NHS NSS stated that no relevant information was held.
NHS GGC which is responsible for the Sandyford admit that they “hold information relating to concerns raised by staff under whistleblowing policies” but has refused to disclose on what grounds.
Conclusion: questions of responsibility
In June 2022 the Equality and Human Rights Commission (EHRC) wrote to the EHRCJ Committee, copying in the Scottish Government, advising that ‘it would be prudent to await the [Cass] Review’s final conclusions and recommendations before moving to make legal gender recognition available to 16 and 17 year-olds.’ In a tersely worded response, the Scottish Government stated:
As you know, the Cass Review is focussed on the provision of NHS gender identity healthcare for young people in England. The Bill reforms the process of obtaining legal gender recognition in Scotland, and as you say in your letter has the effect of removing the current link between the ability to gain legal recognition and the requirement for evidence of a clinical diagnosis of gender dysphoria. There is no direct link between the Cass Review and the Bill.
Cabinet Secretary for Social Justice, Housing and Local Government Shona Robison MSP to EHRC, 27 June 2022 (our emphasis)
Given this, I would welcome clarification of why EHRC believe reform of legal gender recognition in Scotland should be dependent on a review of NHS services in England.
The government line is reiterated by the majority of Committee members in the Stage One report on Bill:
The majority of the Committee shares the position of the Scottish Human Rights Commission and others that the Cass Review’s findings do not relate to Scotland, being focussed on England only and concern the provision of gender identity healthcare there.
SP 2022: para. 287 (our emphasis)
In our view, this position is reckless and naïve. It fails to recognise that providing a route to a change of status in law is a form of social transition and therefore is not a neutral undertaking. The Scottish Government and the majority of the Committee appear determined to deny any risk that affirming a young person’s self-declared gender identity may encourage them onto a medicalised pathway, in a setting where the evidence base is scant at best.
Given the stakes here, MSPs should not uncritically rely on reassurances and assertions made by organisations close to the Scottish Government, particularly when these do not appear to be supported by robust analysis. We think that there are hard questions about Scotland’s gender identity services for young people here, the role of activists in shaping these, and the lack of robust data on clinical outcomes. In the absence of better information about the cohort of sixteen and seventeen years olds experiencing gender incongruence, MSPs are being asked to make a very significant decision affecting a vulnerable group, based largely on some young people’s strongly and no doubt genuinely expressed desires, and the amplification of those by adults strongly committed in principle to an affirmation-based approach. The basis appears shaky for assuming decisions here will have no spillover effect on NHS services, and that any legal risks emerging there can be ignored.
It does not look unreasonable that MSPs should decide that NHS Scotland needs time to consider the final Cass Review recommendations before any lowering of age for a GRC is considered. As the Bayswater Support Group for parents has put it, ‘Our children deserve the same level of care and safeguarding as their English counterparts and it is incumbent on our lawmakers to consider the needs of vulnerable young people when considering this bill.’
Notes
- The Stage One report notes: ‘There are four gender identity clinics in Scotland. They are in Glasgow, Edinburgh, Aberdeen and Inverness. The Sandyford Clinic in Glasgow caters to the largest number of patients in Scotland and is the only provider of gender identity services for young people in Scotland. it offers services for adults and young people. There is a four year waiting list for adults and a three year waiting list for young people’ (2022: paras. 291-292).
- The National Gender Identity Clinical Network for Scotland (NGICNS) was established on 1 April 2014 to support the Gender Reassignment Protocol for Scotland.