Last Friday, the High Court of the UK reversed the practical effects of the Bell vs. Tavistock case, which determined that puberty blockers were exempt from the usual rules concerning children’s capacity to consent to medical treatment. Though that decision remains in place, a case brought by the Good Law Project successfully argued that, in the absence of patient consent, parental consent to medical treatment should apply. The practical effect of this latest decision will negate the decision in Bell vs. Tavistock, because the patients being seen at the Tavistock were all presumed to be treated with parental consent anyway––neither the latest decision, nor indeed the Tavistock Clinic itself, has any bearing on trans kids who may need treatment but who lack parental consent.
A couple of days ago, I spoke with Jolyon Maugham, the founder of the Good Law Project, about Bell vs. Tavistock, the rise of transphobia in the UK, and the implications of the latest decision for trans kids seeking competent treatment. What follows is a lightly edited transcript of our conversation.
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GRACE LAVERY: I thought maybe the first thing I could ask you was just to tell us a little bit about the background of the Bell vs. Tavistock case.
JOLYON MAUGHAM: Well it’s a case I’ve been following right from when it, sort of, launched, and I took quite an interest in it. I first read about it in The Guardian––it sounded a bit like a joke, to be honest. No one—certainly I couldn’t see any legal basis for the court to decide the matter in Keira Bell’s favor. And, indeed, I took advice from a leading public law lawyer, I mean, formal advice, as it happens, and, her view too was that the case was dead in the water. As time went on, I got more and more nervous about it because the court seemed to be behaving in ways that I just couldn’t understand. I didn’t understand why none of the organizations or individuals from the trans community who sought to intervene in the case were given permission to do so. I couldn’t understand why the court was adopting such a relaxed stance in relation to the evidence that was being produced by Keira—evidence that was from quite weird marginalized figures in the medical establishment, by and large. Where it was from more mainstream figures they were speaking outside their area of expertise.
GRACE LAVERY: Can you give me a couple of examples of that?
JOLYON MAUGHAM: So I haven’t got the names to hand, but I commissioned a little bit of an investigation into all of the witnesses. And there are lots and lots of—I mean, there’s a very odd collection of people: one of them is a vet, some of them are lawyers, some of them are sort of international traveling advocates for—or rather against—affirming trans kids. Very, very few of them sit—few or none—sit inside the sort of mainstream of opinion.
GRACE LAVERY: Ok.
JOLYON MAUGHAM: But there was no real challenge to the evidence they gave. I mean I tweeted out some of the conclusions, some of the evidence I found of who those people were and what their expertise was, because it struck me as just completely remarkable that the court was listening to them. The court made a rather odd order that their evidence should not be published. And that I found really, really striking because in England, as in the states, we have a sort of presumption [inaudible] of justice. And it struck me as distinctly odd that this testimony that seems to have swayed the court should be hidden from public view. We’re trying to overturn that order, as it happens.
Once you recognize that diversity is important because the law is a human instrument, you necessarily logically have also to recognize that judges bring their own biases to decision-making. I can’t think of a worse example of that happening in English law in recent times.
Jolyon Maugham, QC
GRACE LAVERY: Do you have a sense of why that might have been instated?
JOLYON MAUGHAM: Yeah, I do. I’m a practicing Queen’s Counsel, so I’m a practicing trial lawyer, and so I have to choose my language carefully.
GRACE LAVERY: I realize that.
JOLYON MAUGHAM: But I mean it’s pretty clear that the divisional court brought to that decision and indeed to the trial process a series of preconceptions about gender incongruence and about ways to treat gender incongruence. And that those preconceptions were articulated in the procedural decisions the court made and in the substantive decisions that eventually the court arrived at. If you’re a lawyer, it’s heresy to say something like that. To say it as nakedly as I have. But it’s also completely orthodox. Because we as lawyers talk all the time about the importance of having a diverse judiciary. We do that because we recognize, at some level, that the law is a human instrument. Once you recognize that diversity is important because the law is a human instrument, you necessarily logically have also to recognize that judges bring their own biases to decision-making. I can’t think of a worse example of that happening in English law in recent times.
GRACE LAVERY: These are really strong words that you’re using, I’m really struck by that. I’ve had dealings with British lawyers before, and they don’t usually speak so frankly about these things. And it sort of answers a couple of the questions that I have. But I guess the next one that I was wondering about was that some journalists seem to report that the legal team Keira Bell had assembled were connected with some kind of religious organizing or there was some kind of connection with religious advocacy? Was it your sense that anything of that nature played a role in the trial?
JOLYON MAUGHAM: Certainly, I mean, I was making the point in the summer of 2020, repeatedly, that the lawyer that Keira Bell had retained was using was someone with links to the religious right. He himself has said so. And you can look at the cases he has brought. They’re attacks on abortion rights. They’re attacks on gay rights. And he has associations with organizations that have attacked assisted dying. And he appears on the sort of tv channels of organizations who are religious conservatives, let me put it that way. So I didn’t think he would deny that he comes from that background. His name is Paul Conrathe. (STEALTH EDIT: an earlier version of this misspelt Conrathe’s name as “Conrad.” That was my mistake, not Jo’s. — GL) It’s certainly abundantly clear that he does. The barristers, I don’t have any reason to suggest that they come from that standpoint. And the judge who is believed to have written that judgement—a judge called Natalie Lieven—doesn’t come from that background. She is simultaneously a hero amongst the Good Law Project’s overwhelmingly female staff team for the work that she’s done as a judge protecting the right to an abortion. And now, a sort of fallen hero for what we all regard as the work that she’s done to roll back trans rights, to empower transphobia and transphobes in domestic public discourse. She comes from a very particular place, and I don’t know whether this is mirrored around the world, but in England there is a very, very dominant…strand of feminism. Not dominant numerically but dominant because it’s a feminism of privilege that is deeply opposed to trans rights. And that demographic is the demographic that she fits perfectly in. I’m not saying she’s a transphobe. I’m just saying that she is in that demographic.
GRACE LAVERY: Yeah—that’s a really helpful and careful clarification, and these are questions that I wanted to ask you about as well, if you have any hunches about. Why do you think anti-transgender activism is so dominant in the UK domestically and why do you think—maybe this is a different question, maybe it’s a related one—why is it that British…the British style of anti-transgender activism has become so globally important to the kind of emerging global anti-transgender movement?
JOLYON MAUGHAM: Well, these are broad questions that require a broad social sweep, and I think there are a number of things going on. One is that we have a really poor media in the UK. We don’t have real media pluralism. Rupert Murdoch is a very important figure, and he is obviously not a trans ally. And the BBC occupies an almost monopolistic place in our media. And although that which people abroad see of the BBC is largely positive, the content that the BBC serves up to its domestic audience is very different and is very transphobic.
GRACE LAVERY: Yeah—
JOLYON MAUGHAM: So, I think one of the answers to your questions is that there are a number of powerful—well, our sort of mainstream media is overwhelmingly transphobic. Another thing that has happened is that it appears as though the religious right has pumped large amounts of money into the UK through a number of astroturfed organizations who have very real influence and very real money despite no one being clear as to the sort of legitimacy of source of that influence or the source of the money. And what’s happening on social media is really, really interesting. There’s an awful lot of sort of bots or sock puppet activity that weaponizes questions around trans’ rights. Anyone reading your newsletter will know that J.K. Rowling complained bitterly of the abuse that she received on social media––and I think she’s entitled––right indeed––to complain about that. But much of it wasn’t genuine abuse. It came not from member of the trans community but from accounts that were set up, I believe, to discredit the trans community. And what I was particularly angry with J.K. Rowling about, somebody who I’ve spoken to privately in the past and previously had a good relationship with was that I thought that she weaponized in a rather mischievous way the abuse that she received. But it’s happening in both directions.
So I’m accused, not infrequently, of having an unhealthy interest… an unhealthy sexual interest in children. I’m accused, not infrequently, of being motivated by a desire to gain personal access to women’s toilets. And it becomes difficult for you, if you’re on social media—this is the point really I want to make—to separate out the abuse that you receive from accounts that are deliberately creating mischief and divide from accounts that belong to people who are, I would say, wrong but well-meaning participants. And so in one’s head a rather unfortunate thing happens. You find that you dislike everyone on the other side, unless you are extremely careful. And you tar everyone on the other side of the debate—whether you be on the trans’ side of the debate or the gender critical side of the debate—with the same brush. And I know how powerful and dangerous a force that is. Because I’ve been working to serve a feminist agenda for literally decades. So above my desk is a photo of me, from the ‘90s, in The Daily Mail, talking about discrimination against women. I’ve don’t that work for literally decades. And I found myself, at times, feeling a sort of an inclination to lump together all feminists, despite knowing that that strand of gender critical feminism is not particularly numerically dominant in England. And it was when I saw that happening to myself that I worked out quite how powerful is that activity on social media. A very long answer to your question, but—
GRACE LAVERY: No, but a very full one. And, you know, I think the observation that the kind of psychic trance that social media puts us in, the kind of absolutism that it—absolutism and Manichaeism—that it seems to instill in everyone who participates in it is tricky, and I’m certainly aware of some of these feelings myself, having also been accused of some of those same things as you, and also very recently just sort of being a target of some of the worst actors on the other side. Maybe I could just ask you what is the latest qualification to the judgement changed? And maybe I’d be especially interested to hear about why the Good Law Project pursued a legal strategy based on parental consent?
JOLYON MAUGHAM: So the Tavistock—the Bell case—was about whether children had the ability—had the sort of mental capacity—to consent to puberty blockers. And the court couldn’t really change the law on that because the law set out, in effect, a supreme court—a UK supreme court—decision (small s, small c) called, basically known by the shorthand of “Gillick.” What it became was a self-appointed, judge-led public inquiry into the usefulness of puberty blockers in which that self-appointed, judge-led public inquiry heard from no trans people at all. The Tavistock called witnesses who were patients of the Tavistock, but they didn’t speak in their own name, they spoke in the name of the Tavistock. And which heard from an enormously unrepresentative sample—an enormously unrepresentative subset of medial opinion—an extreme subset of medial opinion. And the decision did two things really. It created this awful mood music around what gender incongruent kids need. And it also removed, in particular for kids whose family sit lower down the economic pyramid, any real possibility of being able to access puberty blockers. And it did that not by saying that puberty blockers were unlawful because the court couldn’t do that but by preventing kids from accessing puberty blockers without having a court order. And the conjoined effect of that judgement and the practice of the Tavistock, which was only to treat on the basis of a child’s consent, ie treating parental consent as irrelevant, was to create a world in which, even when you had an expert doctor who wanted to treat, a child who wanted to be treated, and parents who wanted their child to be treated, you still had to go and ask a judge whether that treatment could take place. And, another question derived out of that: what does a judge bring to the party? A judge doesn’t know the child, and a judge isn’t a medical expert. So, what is it—what function is the judge supposed to be performing there? What legitimate interest do they have in that scenario where they’re not the expert, they’re not the child, and they’re not the child’s parent.
GRACE LAVERY: I mean, for me, the implication of that question is that their only role is to retard the process of getting kids the treatment that they need.
JOLYON MAUGHAM: Well—
GRACE LAVERY: I know you can’t really say that necessarily, but I think it’s such an obvious question, as you say. If the state is imposing itself between patient and doctor and parent—
JOLYON MAUGHAM: Well, the reason I’m slightly pushing back is not as you’ll now have gathered from having spoken to me because I’m disinclined to say something that I believe to be true. It’s because that outcome was the consequence not purely of the decision but of the conjoined effect of the decision and the practice of the Tavistock, which was to treat parental consent as irrelevant. But if you are able to force the Tavistock to adopt a different practice so that if a child couldn’t consent, the Tavistock could instead take the parent’s consent as sufficient basis for treatment, you would, in effect, remove almost all of the practical effects of the Bell decision because, um, so high are the bars—the practical bars—to getting treatment to the Tavistock, that only—that in practice—there may not be any, there certainly won’t be many—kids who are able to leap that hurdle without the support of loving parents. And so, it basically, in practical terms, it restored the status quo ante such that if you were a kid and you got treated at Tavistock, which you could only do with your parent’s consent, the Tavistock, if it thought appropriate, could once again prescribe puberty blockers.
What does a judge bring to the party? A judge doesn’t know the child, and a judge isn’t a medical expert. So, what is it—what function is the judge supposed to be performing there? What legitimate interest do they have in that scenario where they’re not the expert, they’re not the child, and they’re not the child’s parent.
Jolyon Maugham, QC
GRACE LAVERY: That makes a lot of sense, and it makes me want to get into the weeds of the apparently controversial treatment at the center of this case. Can you explain to me—I’ve never quite understood why—the prescription of puberty blockers is thought to be so potentially dangerous that it outweighs Gillick’s competency, as established by the supreme court? What is it about this treatment that has produced this you know, this very dramatic reversal of a long-standing policy or assumption of competency?
JOLYON MAUGHAM: Well what’s reversed it is an intellectual sleight of hand. An intellectual dishonesty. And that sleight of hand or dishonesty is that it arises from the fact that almost everyone who takes puberty blockers at the Tavistock goes on to have cross sex hormones. And so the argument in the divisional court was this: it was…because almost everyone who takes puberty blockers goes on to have cross sex hormones, when you are prescribing puberty blockers, you are, in effect, prescribing cross sex hormones. And cross sex hormones, on any view, have partially irreversible consequences. But the reason I describe that reasoning as a sleight of hand or intellectually dishonest is because there is a perfectly good alternative candidate explanation for the fact that almost everyone who get puberty blockers at Tavistock goes on to take cross sex hormones. And the alternative candidate explanation, I don’t think it’s only reasonable, I think it’s right. The fact that the Tavistock has such high barriers to prescribing puberty blockers has as a consequence that, in effect, they are mis-prescribing puberty blockers because they’re not using them to create this so-called time to think for gender incongruent kids. They’re treated as a sort of place holder until you can have cross sex hormones. If Tavistock had a lower barrier to prescribing puberty blockers, you wouldn’t have seen that same statistic where substantially everyone who takes puberty blockers at Tavistock goes on to take cross sex hormones. But, but, but…there was that sort of conflation—I say a sleight of hand or intellectually dishonest—between the two different stages of the process. And it was that, coupled with the absence of any consideration—any proper consideration—of reasons why it is important that kids do get puberty blockers that caused the divisional court, I think, to push so fiercely against what in most of the world is entirely conventional analysis.
GRACE LAVERY: Yeah. You know, this is…it’s reassuring to hear you offer that argument, partly because I wrote an essay that was published in Foreign Policy—
JOLYON MAUGHAM: I saw.
GRACE LAVERY: Yeah. That essentially kind of made that argument. Because it seemed self-evident to me that keeping the number of people on blockers low would ensure that the percentage of people who go onto HRT is high, so you have to decide, you know, in some way whether that percentage is really a problem. That seems to me to be a kind of…a fairly obvious response to Tavistock and Bell. But it’s one that—
JOLYON MAUGHAM: Well, it took me about 30 seconds to spot it when I read the skeleton article in the case.
GRACE LAVERY: Yeah—
JOLYON MAUGHAM: Well, I mean the problem is, fundamentally, that our legal system is set up to constitute judges as independent arbiter acting in accordance with rules, acting fairly. And I don’t think one can say of the divisional court that it performed its function. The consequence of that, as is always the consequence when one part of an enormously important but complicated governance process drops the ball, and it’s—you know, that injustice happens. You know, if you’re the Tavistock and you’re bobbing along, and you think to yourself, “well, this is a case about a child’s ability to consent—all perfectly normal, all perfect rational, no practical basis for saying the Gillick rule doesn’t apply here.” You don’t ball up and make those arguments about why puberty blockers are important. All of a sudden you find that you’re involved in, as I described it, a sort of de facto, judge-led public inquiry into the utility of puberty blockers, not knowing that you were going to, you didn’t turn up with the right evidence and the right witnesses and the right arguments.
GRACE LAVERY: Can you think of any other cases where the notion of a medical pathway has been used in this way? The notion that prescribing one course of treatment necessarily, or kind of prejudicially, implies the prescription of a second course of treatment?
JOLYON MAUGHAM: I can’t, but then I wouldn’t expect to, because it’s just not my area.
GRACE LAVERY: Yeah, ok, fair enough. The last question I have on this, then, is what’s your sense of the future of the Tavistock? What happens next? Do you think that there’s any hope in the medium term of restoring Gillick competency in the case of puberty blockers?
JOLYON MAUGHAM: Yeah, Gillick—I mean, what’s going to happen in divisional court is that there will be some reversion to the mean. In other words we will have something closer to an orthodox understanding of Gillick competence, and we’ll get there maybe in the court of appeal—although I don’t feel particularly optimistic in the court of appeal—or we’ll get there in the supreme court, and I feel more optimistic in the supreme court. And what we will be left with, which will be really damaging, is not a legal…a practical legal impediment to the prescription by the Tavistock of puberty blockers. What we will be left with, I fear—I hope, you know, I desperately hope I’m wrong—but what we will be left with, I fear, that transphobia will have been institutionalized by that decision. Transphobic views will now find support from not a place of marginalization but from a center of power and notionally a center of independence, and that is the, I think, long-lasting and profoundly damaging consequence of the Bell decision. I think, reversing that is a generation’s work.
GRACE LAVERY: That’s a really great place to call it. Thank you so much, Jo. This has been a fabulous conversation. I’m really grateful to you. Thank you for your work.
This conversation has been edited lightly for clarity.
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