Legal Defence Fund for Transgender Lives

by Good Law Project

Legal Defence Fund for Transgender Lives

by Good Law Project
Good Law Project
Case Owner
Good Law Project's mission is to achieve change through the law. We uphold democracy, protect the environment and ensure no one is left behind.
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Latest: April 19, 2021

The response from NHS England

You may by now have seen the response from NHS England to the AB Judgment funded by the Trans Defence Fund. The Judgment establishes that the Tavistock should accept parental consent in circumstances…

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No one is left behind.

That’s a strand of work Good Law Project is especially proud of. Under it we are challenging new rules to deport those who lose their jobs and become homeless, working up litigation to protect children in care and challenging the Home Office’s hopeless compensation scheme for the victims of Windrush - and many others.

On most of these issues there is a kind of progressive consensus. But not on the rights and dignities of the trans community. If you are trans your very existence is apparently for up grabs.

The data also shows you will face daily injustice, discrimination and violence. In Britain, today. In the streets, at work, in public life and in healthcare. And you will find yourself under attack in the media from a peculiar astro-turfed coalition funded, in part, by investment from anti-gay, anti-abortion, anti-assisted dying US hate groups. And often abandoned by the progressive media.

In the last few years we’ve seen attempts to throw out school guidance aimed at preventing LGBT+ hate crime, an employment tribunal case brought by a provocateur arguing for her right to misgender, a legal challenge to stop trans women being able to run for office in all-women shortlists, and another to close the door to treatment that is commonplace around the world. Those who want to roll back the rights of trans and non binary people are turning to litigation to do so. You can view some of the recent legal challenges here.

It’s time to push back. We at Good Law Project want to do what we can to help trans and non-binary people live their lives free from inequality. So we are launching a Legal Defence Fund for Transgender Lives to work in partnership with others where litigation can protect and defend the rights of transgender people to live as themselves.

Our first case challenges NHS England over its persistent breaches of the law requiring young people with gender dysphoria to be seen within 18 weeks. Whatever you think about the treatment regime it can't be right that they face lengthy waiting lists - on some reports up to four years - for a first appointment. Children are losing the opportunity to be seen within a window in which they can secure effective treatment and so are, in practice, being denied access to treatments which are correlated with reduced suicide risk.

All of the costs to date have been borne by Good Law Project - as we generally bear the costs of developing litigation in this strand - and they will not be recouped from this fund. Any future costs, however, will be funded from the pot. We will also use the fund to fund other legal action that advances the basic rights and dignities of the trans community. Enough is enough.

From the President-elect of the United States, Joe Biden, to companies like Lloyds Banking Group and Unilever, more and more people are stepping up to defend the rights of trans and non-binary people. We want to play our part and we hope that you’ll join us.

Details: 

Good Law Project uses litigation to achieve change. Funds raised through this campaign will go towards litigation that protects and defends the rights of trans and non binary people, including our case to ensure NHS England meets its statutory obligation to young people. 

When selecting other litigation, Good Law Project will consult with organisations working with the transgender community. In common with our general practice we will retain ten percent of the fund to help cover our running costs. 

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Update 9

Good Law Project

April 19, 2021

The response from NHS England

You may by now have seen the response from NHS England to the AB Judgment funded by the Trans Defence Fund. The Judgment establishes that the Tavistock should accept parental consent in circumstances where, for so long as the Bell decision remains good law, a minor cannot consent to taking puberty blockers.

What in substance the response does is restore the Tavistock’s ability to make new referrals for puberty blockers without the need for a court order - and it establishes a new panel to review the processes by which those decisions are made. 

The response seems to us both confused and disingenuous. And we have received no substantive response from NHS England to our correspondence. We also have concerns about the new risks the procedure creates to patient health. We are taking further legal advice from our team and will report back to you when we have devised a plan of action.

Update 8

Good Law Project

March 26, 2021

NHS England must reverse ban on new prescriptions of puberty blockers

Following the decision by the High Court earlier today, lawyers for Good Law Project have written urgently to NHS England requiring that it reverses the ban it introduced following the decision in Bell on new NHS prescriptions of puberty blockers. If it does not, further judicial review proceedings will follow. 

The Judgment made it clear that, where a clinician at the Tavistock is of the view a trans child will benefit from puberty blockers, parents have the right to consent on behalf of the child.  In light of this, it would clearly be unlawful to continue to prevent new patients from receiving puberty blockers. The rationale for the ban that was introduced following Bell – no one but the Court can validly give consent – has entirely fallen away. 

This could not be more urgent. 

Trans children have been denied puberty blockers since 1 December 2020. The consequence is that hundreds or thousands of children have experienced permanent and irreversible changes to their bodies, changes inconsistent with their gender, which will require serious surgery to ameliorate and which have caused very real distress.

NHS England moved with surprising haste to introduce the ban when the Bell judgment was handed down. We see no reason why it should not move equally promptly to remove it now the rationale for the ban has fallen away. 

We have given NHS England 7 days to confirm that, in cases where there is parental consent, changes will be made to the Service Specification to remove the need for the Tavistock to go to court in all existing cases – and to allow new cases to commence treatment.  

We are publishing our letter to NHS England in full and will let you know when we receive a response.

Update 7

Good Law Project

March 26, 2021

Our parental consent case against the Tavistock has succeeded

If a child cannot consent to taking puberty blockers their loving parent can consent in their stead. That is the outcome of the decision of the High Court, earlier this morning, in the case of AB v Tavistock and Portman NHS Foundation Trust (full decision below), the first case funded by Good Law Project’s Trans Defence Fund.

The effect of the decision in the Bell case earlier this year, when read together with the practice hitherto of the Tavistock to treat on the basis of a child’s consent only, was that even when a specialist doctor wanted to prescribe puberty blockers, a child wanted to receive puberty blockers, and their parents believed puberty blockers were in the best interests of the child, an application would still need to be made to the High Court. 

Good Law Project’s lawyers were unable to identify any precedent in English law for this situation. What role is there for a judge – what expertise would they bring or function would they fulfil – in circumstances where the child, parents and doctor all agreed on the right course of therapeutic treatment?

The decision is hugely significant. The barriers to accessing puberty blockers through the Tavistock were already enormous. Very few children were able to overcome them without parental support. The decision means that children with that support will no longer be barred from accessing puberty blockers by the Bell decision. It is not unreasonable to describe this morning’s decision as in large part reversing the practical effects of Bell.  

The decision does leave a number of problems unresolved. Trans children without parental support – who are especially vulnerable – will remain disadvantaged. The Bell case poses threats to teenagers wishing to access contraception and abortion care. Bell represents a profound rolling back of the rights of the child. And this morning’s decision, from one of the same judges as sat in the Bell case, perpetuated the highly unorthodox approach to international treatment norms advocated for by the notionally expert witnesses for the Claimant in Bell.

Obviously, we hope some of these difficulties will be ameliorated by the appeal against Bell which begins on 23 June 2021 and in respect of which the Trans Defence Fund has funded an intervention on behalf of the Endocrine Society (the international professional body for those specialising in hormones), Brook (the Charity which works to give young people control of their sexual health, enjoy healthy relationships and and explore their identities) and Gendered Intelligence (a Charity that exists to increase understanding of gender diversity and improve trans people’s quality of life).

Good Law Project will write, later today, to NHS England asking it to reverse the ban it introduced, with ugly and undue haste following the decision in Bell, on new NHS prescriptions of puberty blockers. If it does not, we will initiate further judicial review proceedings against it.

The hostile climate which shamefully predominates in the English media means we are not expecting to do any reactive media but we do expect to appear in several outlets that speak to the trans community in the coming days.

But today, we celebrate some progress, and some recognition, of what has been a painful and often lonely fight for some in the trans community and their families. Solidarity with you all.

Looking forward

Looking forward we plan, if we are able to secure funding, to bring our planned judicial review of NHS waiting times for trans children – and indeed waiting time for trans adults. The time-sensitive nature of a treatment that suspends puberty to give a child time to think about changing their gender means that waiting times of up to four years are effectively a denial of treatment. Wealthy households can and do take their children abroad for wrap-around treatment. Middle-income households fund a sub-optimal patchwork of treatment through a combination of foreign prescriptions and domestic delivery. Low-income households often feel compelled to buy puberty blockers from unlicensed suppliers in a manner reminiscent of backstreet abortion clinics. 

We also expect to make further announcements shortly regarding litigation against public bodies who are directly discriminating against the trans community. It is easy to forget, amongst the relentless and often dishonest transphobia of our right-wing media, that gender reassignment is a protected characteristic under the Equality Act 2010.

We are so grateful to everyone who has supported us thus far. Thank you. 

Update 6

Good Law Project

Jan. 29, 2021

Permission granted - we've cleared the first hurdle

The High Court has granted permission for Brook, Endocrine Society and Gendered Intelligence to intervene. 

The voice of trans young people and the voice of the experts who prescribe puberty blockers should have been before the Divisional Court.

By working in unity across children and young people’s organisations, reproductive health organisations and international medical bodies we have climbed the first hurdle. 

Our work continues now to ensure the experience and expertise of each of these sectors is fully represented in the ongoing appeal.

The Court confirmed the next hearing would be scheduled as soon as possible and we were pleased that the urgency of this is appreciated by all parties. The Judge recommends that all parties are ready to go - completely - by the end of April. We will keep you posted with developments. 

Solidarity with you all. 

Update 5

Good Law Project

Jan. 26, 2021

We have filed our intervention

We are pleased to announce that we have now filed our intervention in the Tavistock's appeal against the Bell judgment.

The intervention is made on behalf of a small group of NGOs  - Stonewall, Endocrine Society, Gendered Intelligence and Brook - and has the backing of many other organisations in the LGBT, children's rights and reproductive rights sectors, alongside international medical bodies. 

The NGOs speak for the voices that were not directly heard in the original Court judgment, in particular the voice of the child and the voice of prescribing doctors with expertise in the medical evidence and standard of care for transgender health.

It is based on 3 main grounds: (i) the need to hear the voice of teenagers affected, (ii) the issues the judgment raises around the role of parental consent and, (iii) the wider implications, in particular for access to contraception and abortion care, of the Divisional Court’s ruling. 

The Interveners have closely coordinated and formed a wider coalition across their sectors to ensure that all the affected groups are represented and that the relevant evidence and expertise are before the Court, without duplication. We hope therefore that there will not be other interventions, which could damage the prospects of this one.

There will be a short court hearing this Friday 29th January to determine whether any outside parties should be granted permission to intervene. We will of course keep you posted on the outcome.

Solidarity with you all.

Update 4

Good Law Project

Dec. 23, 2020

First meeting of the Advisory Group

Earlier this afternoon, the Advisory Group to the Legal Defence Fund for Transgender Lives met for the first time. The fund was set up on 22 November, and on 8 December, when the fund already exceeded £100,000, Good Law Project announced that it was setting up an advisory group to help it administer the fund.

We have published the names of the members – and brief biogs. We’ve also published the terms of reference of the Advisory Group. Because Good Law Project raised the money in its own name and is accountable to those who donated to it, it needs to have a veto right over spending but, of course, it is highly unlikely to exercise that right and the advisory group could publish the exercise of that veto. 

We also agreed on two spending commitments. 

The first is that a legal team including David Lock QC, Jason Pobjoy, and Isabel Buchanan (acting either pro bono or at heavily discounted rates) will seek to ‘intervene’ in the Tavistock’s appeal against the Bell judgment. An intervention is where other parties with an interest ask to be heard in a case – alongside the main parties. 

The intervention will be on behalf of a small group of NGOs who we will name in due course. The intention is to make points that were made inadequately or not at all before the Divisional Court around, in particular, (i) the need to hear what teenagers say about their own lives (ii) the role of parental consent and (iii) wider implications (e.g. for access to abortion) of the decision. The Advisory Group believes the decision was wrong and there is a reasonable basis for thinking it can be overturned. 

The second commitment arises from the fact that, presently, the Tavistock does not accept that parents can consent to their children having puberty blockers. And the decision in the Bell case means that children cannot consent either. This leads to the situation where the consent of the Court – itself a huge barrier in practice – needs to be sought even in circumstances where a specialist doctor, parent, and child all agree that a treatment is in the child’s best interests.

The Tavistock will be invited – or sought to be compelled – to review its position in relation to whether to accept parental consent. In practice success on this action would remove, in many or most cases, the practical barrier to treatment posed by the Bell decision.

In line with Good Law Project’s transparency principles, we will publish the documents in this litigation promptly wherever we are able to.

The Advisory Group is open to proposals about possible avenues of strategic litigation to protect or advance the rights of the trans (including non-binary) community. You can send ideas to: legal@goodlawproject.org

Update 3

Good Law Project

Dec. 8, 2020

The way forward

We are hugely grateful for your contributions to the transgender lives legal defence fund. We have reached our first stretch target of £100,000 in extraordinary time.

I have asked Molly Mulready, a well known and widely respected parent of a trans child, to convene an advisory group, comprised of trans parents and trans people, to help administer the fund going forward. The trans community is spoken at, over, through and around but never heard. However, these monies are an asset of that community and should be allocated by it. Molly and that group, in consultation with the Good Law Project, will draw up brief guidelines around how that fund will be spent. There is a huge amount of work to be done to tackle the tide of transphobia -and its legal consequences - that has shamefully engulfed our media. We intend to do that work. Mindful of how much work there is to do, we have raised the target.

Meanwhile, Good Law Project continues to work with two firms of Solicitors and three Counsel to develop various responses to the decision in the Keira Bell case. Amongst those responses is the putting together of a formidable coalition of interested groups to intervene in the appeal against that decision. We will let you know more as that Coalition is finalised. We are speaking, we believe, to all of the groups and hope and expect to put together a single, powerful intervention so that we can speak with one voice.

There is much in that decision that the trans community is justified in feeling angry about. However, there are three points, in particular, that seem to me to be worth noting.

The first is that (unless overturned) it will leave the United Kingdom as an international outlier on the use of puberty blockers. The World Health Organisation, for example, talks of the need to depathologise trans health: "trans-related and gender diverse identities are not conditions of mental ill health, and classifying them as such can cause enormous stigma" and goes on to add that "Inclusion of gender incongruence in the ICD should ensure transgender people’s access to gender-affirming health care." 

The second is that a case about the approach adopted by a particular institution - and one viewed with some suspicion by the trans community because of its continuing pathologising of gender incongruence - was used by the Court as a trial of a particular treatment. This seems to me to answer the wrong question - with hugely damaging consequences for those who benefitted from that treatment.

The third - and I want to say this very clearly - is that it was profoundly and especially wrong of the Court to do this in a case in which no trans voices were heard. The Tavistock took evidence from a number of trans young people to seek to defend its position. But they were denied all independent voice by a series of case management decisions made by the Court. No advocate on behalf of a trans young person - the only group affected by the decision - was permitted to address the Court. In light of the first two points, I believe this state of affairs was shameful.

Alongside that intervention we are also planning a range of other legal actions which we will keep you updated on.

Solidarity with you all,

Jolyon Maugham QC

Update 2

Good Law Project

Dec. 2, 2020

Update in light of the decision in the Keira Bell case

In light of the decision in the Keira Bell case, which we believe to be wrongly decided, we are presently crowdfunding for the costs of two legal interventions. We will update you on those shortly.

Update 1

Good Law Project

Dec. 1, 2020

Important update: fundraising currently paused

We have temporarily paused this crowdfunding page whilst we take time to understand the recent decision in the Tavistock case. We will of course update all the supporters as soon as we have more information.

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