On 29 July 2024, the UK High Court upheld former Conservative Health Secretary Victoria Atkins's ban on puberty blockers.
In June 2024, TransActual UK, a transgender rights advocacy group (First Claimant) and an anonymous transgender young person (Second Claimant) issued judicial review proceedings against the former Health Secretary (First Defendant) and the Minister of Health for Northern Ireland (Second Defendant) challenging the emergency legislation that restricts access to puberty blockers for young transgender people.
As a judicial review focuses on the process followed to reach a given decision, rather than its merits, the case concerned the fairness of the procedure followed by the Defendants in relation to the legislation, rather than the safety of puberty blockers as medication.
What are puberty blockers?
Puberty blockers delay puberty in children and young people aiming to alleviate gender incongruence (the discrepancy between one's experienced gender and the sex they were assigned at birth) and gender dysphoria (the distress caused by gender incongruence) and to allow time for exploring gender identity before considering further gender affirming care. Puberty blockers may also be used to treat children and young people suffering from precocious puberty, wherein puberty occurs at an unusually young age.
The Legislation
The legislation, enacted on 29 May 2024, includes:
- the Medicines (Gonadotrophin-Releasing Hormone Analogues) (Emergency Prohibition) (England, Wales and Scotland) Order 2024/727 (“the Order”) made under the Medicines Act 1968 (“MA 1968”); and
- the National Health Service (General Medical Services Contracts) (Prescription of Drugs etc.) (Amendment) Regulations 2024 (SI 2024/728) (“the Regulations”) made pursuant to section 88 of the National Health Service Act 2006,
(together, the "Legislation").
Background
The Legislation relied on the April 2024 publication of the "Cass Report", which outlined the findings from an independent review of NHS England gender services for children and young people commissioned by NHS England in 2020. The report recommended increasing the promotion of mental health support in place of medical treatment for transgender youth. In response, NHS England has updated its policies, moving away from "routinely" using puberty blockers outside of clinical trials.
Meanwhile, the report was met with criticism from LGBTQIA+ organisations and academics, including by the Yale School of Medicine, who raised concerns about its methodology and evidentiary standards.
The Order
Under section 62 MA1968, the Order restricts the sale and supply of puberty blockers from 3 June 2024 until 2 September 2024, paving the way for a permanent ban.
The effect of the Order is to:
- Completely prohibit the sale or supply of puberty blockers under an overseas prescription issued on or after 3 June 2024;
- Prohibits the sale or supply of puberty blockers under a private UK prescription for the treatment of gender incongruence and/or gender dysphoria; and
- Prevent patients not yet in treatment for gender incongruence and/or gender dysphoria from accessing puberty blockers unless as part of an authorised clinical trial.
Breaching the Order is a criminal offence and may lead to up to 2 years in custody and an unlimited fine.
Normally, section 62(5) MA 1968 requires consulting an "appropriate committee" prior to making secondary legislation. However, if the prohibition is deemed essential to avoid immediate and serious danger to health, an "emergency procedure" outlined in section 62(3) MA 1968, which permits the bypassing of the consultation requirement. The First Defendant argued that the Cass Review's findings raised sufficiently urgent and grave concerns about the safety of puberty blockers to justify the use of the emergency procedure.
The Regulations
The Regulations prohibit puberty blocker prescriptions for gender incongruence and/or gender dysphoria by the NHS for new under-18 patients after 26 June 2024 unless part of an authorised clinical trial.
Together, the Legislation effectively bans private, overseas, and NHS prescriptions of puberty blockers.
Claimants' submissions
The Claimants argued that:
- The Health Secretary unlawfully bypassed the required "appropriate consultation" under section 62 MA 1968 by using the emergency procedure without proper evidence that puberty blockers posed a serious and immediate danger to health.
- Even if the use of the emergency procedure was justified, organisations representing the rights and interests of patients, such as TransActual UK, should have been consulted. Their exclusion rendered the consultation "partial, unfair, and unlawful".
- The Health Secretary's decision-making breached the Second Claimant's Article 8 ECHR rights (the right to respect for private and family life) by failing to consult her or organisations that represented her rights.
Judgment
The Court dismissed the application on all three grounds, upholding the ban as "rational" overall.
Ground 1: The Court demonstrated reluctance to interfere with ministerial decision-making in the healthcare sector. It deferred to the Ministers' discretion and allowed for a wide margin of appreciation, upholding the applicability of the precautionary principle in the context of remaining scientific uncertainty. The Court found the Cass Report to constitute "powerful scientific evidence" of the potential risks posed by puberty blockers, justifying the use of the emergency procedure to mitigate their materialisation.
Ground 2: The Court distinguished between the duty to carry out a "proper" consultation, triggered when a public body initiates a voluntary consultation (we cover the developments in this area in our recent article), and the First Defendant's process, which it characterised as an "exchange of views" between stakeholders. The latter did not meet the threshold of a voluntary consultation and therefore did not trigger the duty for it to be carried out "properly" by involving the First Claimant or similar organisations. It held that the exemption from consultation duties allowed by the emergency procedure in section 62 MA 1968 prevented a common law duty to consult from being implied.
Ground 3: The Court acknowledged that the Second Claimant's Article 8 ECHR rights were engaged but held that Ministers had a wide margin of appreciation in authorising medical treatments and that the emergency procedure under the MA 1968 exempted Ministers from consultation duties.
Future legal action
TransActual UK announced that it will not appeal the decision due to a lack of funds.
However, further legal challenges may arise, as Labour Health Secretary Wes Streeting has expressed support for the ruling, extended the temporary ban until 26 November 2024, and expanded its scope to cover private prescriptions in Northern Ireland, potentially with a view to making the ban permanent. It is yet unclear whether the Government intends to use the extension period to consult with relevant stakeholders and representative groups. We will continue to keep you updated as new developments arise.
The use of the Cass Report as scientific evidence, on which both the defence and the judgment heavily relied, remains contentious. Following the judgment, the British Medical Association (BMA) called for the ban to be lifted and for the implementation of the Cass Review to be paused to carry out an independent investigation of the review's findings, which received a mixed response from the medical community. This ongoing debate regarding the evidentiary basis supporting the ban could serve as new evidence in future legal actions.