"We are just people too"

by Good Law Project

"We are just people too"

by Good Law Project
Good Law Project
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Latest: Dec. 21, 2021

Update: We’ve filed for judicial review

We have now filed our claim for Judicial Review against NHS England over its long-standing, lengthy and unlawful delays to meeting trans people’s healthcare needs. 

The shape of the case ha…

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England is an international outlier in trans healthcare - but sadly, not in a good way. 

With just one NHS gender identity service for young people serving the whole of England, and only a handful of centres for adults, it’s almost impossible for people to get the treatment and support they are entitled to. 

Legally, patients should be offered their first appointment within 18 weeks of a GP referral. But children are waiting on average 18 months, and some as long as three years. Of the adults referred in October 2017 some are only now having their first appointment - four years later. Waiting lists stretch into the thousands. 

Such long waits mean trans adolescents are missing the short window of time in which puberty blockers are useful. Without them, their bodies will change in ways that they know they will have to live with for the rest of their lives. 

To force teenagers to contemplate this, when a safe treatment is available which would give them breathing space to think, is unimaginably cruel. No wonder it correlates closely with increased suicide risks or self-harm. No wonder some feel they have no choice but to self-medicate with drugs purchased on the dark web

While adults don’t face the same ‘window of opportunity’, the denial of treatment restricts the lives trans people are able to lead and has hugely harmful consequences for their mental health. 

Delays have been getting worse and worse for some time. This cannot continue.

We are supporting two adults, Eva and Alex, as well as two young people to take cases against NHS England for these unlawful delays. 

They explain the significance of this better than we ever could: 

Eva said: “After spending so much of my life coming to terms with who I am, I took the decision to face it and I came out as transgender. But that liberation was short-lived when I discovered the extent of the gender clinic waiting times.

I've waited four years for my first appointment…I am still waiting. This has impacted my personal life in so many ways, and I feel so let down. It's like we're an afterthought in a service that's become complacent to its own astronomical waiting times. 

Being trans isn't a choice. Let's face it - who would choose being hated, attacked, discriminated against? We are just people too.” 

Alex adds: “Trans people are just trying to live their lives and feel comfortable and safe. We're not trying to trick you. We're not trying to get into your bathrooms. We're not trying to see how many people per day we can fool. We're not a puzzle, or a quiz, or a game. 

For many of us, this is probably one of the few things we are certain about. We know we are trans and we know we need help - because right now, the lack of support is having such a negative effect.”

We’ve asked NHS England to explain why they are failing to meet their legal obligation to ensure patients are seen within 18 weeks, and to set out the steps they are taking to secure alternative provision and bring waiting lists down. We don't think they are doing enough, so are launching full legal proceedings. 

The bottom line is waits for treatment are leading to the loss of lives and things are getting worse, not better. This cannot continue unchecked. 


We are launching a new crowdfunder for this case as we have used a large proportion of the Trans Legal Defence Fund on our interventions in the Bell v Tavi appeal and a case about parental consent - both of which were successful - along with initial work on the present action. We have also carried out extensive work on Clinical Commissioning Groups’ refusal to fund fertility preservation for trans people and expect to do more when a suitable test case emerges. You can see an account of our spending here

All funds raised will be governed by the same rules as our community-led Legal Defence Fund for Transgender Lives and any surplus will go towards future cases that protect trans and non-binary people.

Details:

Good Law Project has instructed David Lock QC, Jason Pobjoy and Rook Irwin Sweeney to act for it. They are acting at significantly below market rates.

10% of the sums raised will go to Good Law Project so that we can continue to use the law for a better world. It is our policy to only raise sums that we reasonably anticipate could be spent on this litigation. If for some reason we don’t spend all the money raised on this case, for instance if the Government backs down or we win, the donations will go towards supporting other litigation we bring.

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Update 2

Good Law Project

Dec. 21, 2021

Update: We’ve filed for judicial review

We have now filed our claim for Judicial Review against NHS England over its long-standing, lengthy and unlawful delays to meeting trans people’s healthcare needs. 

The shape of the case has changed slightly since our last update in October, so we wanted to tell you what’s new. 

We’re bringing this claim alongside two adult claimants, two child claimants and trans-led grassroots charity Gendered Intelligence. The claim now focuses on six key problems with NHS trans healthcare provision. 

We argue: 

  1. NHS England has failed, under regulation 45(3) of the 2012 Regulations, to ensure that 92 per cent of trans patients who are referred for medical treatment begin that treatment within 18 weeks of referral.

  2. NHS England has failed, under section 3B of the National Health Service Act 2006, to provide services for children needing puberty blockers that they can access before starting puberty.

  3. NHS England have failed, under the NHS Constitution, to uphold the rights of adult patients with gender dysphoria to begin treatment within 18 weeks of referral.

  4. NHS England has unlawfully discriminated against trans people because waiting times for gender identity services are longer than for the vast majority of other healthcare services.

  5. NHS England’s decision to introduce and maintain a ‘Multi-Professional Review Group’ as part of puberty-delaying treatment for trans children is unlawfully directly or indirectly discriminatory. We also think the Service Specification unlawfully requires both the child and their parents to consent to treatment, contrary to the principles established in Gillick and AB v CD

  6. NHS England has failed to comply with its public sector equality duty to ensure trans people can access acute services by setting up the Multi-Professional Review Group for trans children and in the arrangements it makes with providers.  

Eva Echo, one of the adult claimants in this case, explains the impact of waiting so long for treatment: "I would describe being on the waiting list as torture, and there were times when I felt that I may not even be alive long enough to receive my first appointment. Being on the waiting list was no comfort; I desperately needed help. 

"My mental health was worse than it had ever been; coming out had allowed me to recognise my gender dysphoria, but I was left completely alone to manage it. I felt, and still feel, completely let down by the system that I thought was there to save me."

For too long, the NHS has failed to prioritise trans healthcare. We, alongside many affected individuals, medical professionals, families and campaigners for trans rights, believe the current system is not fit for purpose. The available services simply aren't meeting the needs of the people they should be helping. 

Too many trans people have died waiting for the treatment they were entitled to. Many more suffer in ways that are entirely preventable. The bottom line is that trans people have a right to access essential care, just like everyone else. 

You can read witness evidence from Gendered Intelligence, Eva Echo and Jo Maugham. Read our main grounds here

You can also read the expert witness statement from academic specialist Dr Michael Toze, which provides an important background to the case. 

If you are able, please donate to support our fight for trans healthcare rights. Thank you. 

Update 1

Good Law Project

Oct. 28, 2021

Update: We’re issuing proceedings

We are now preparing to issue judicial review proceedings against NHS England over long-standing, lengthy and unlawful delays to meeting the trans community’s healthcare needs.

The NHS is in breach of regulations 45, 47 and 48 of the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012. NHS England accepts it is in breach, and says the issue is not funding constraints. It also claims to have done everything possible. 

We do not accept this analysis. Trans people have heard this story repeatedly, the situation continues to deteriorate, and the hostility on the part of the NHS to trans healthcare speaks for itself. We intend to put the matter before a judge to decide.

Separately, Good Law Project is also preparing to issue judicial review proceedings against NHS England for its unlawful service specification for healthcare provision for trans children. 

Within an hour of the Bell decision being handed down in the Divisional Court in December 2020, the NHS halted all referrals to endocrinology without a court order. 

But when the Court of Appeal overruled Bell in September 2021, NHS England refused to update their rules for service provision until we sent our pre-action letter, when they finally amended it. But they did so in a way that we think is still unlawful: firstly, because they require treatment decisions made by qualified specialists to be reviewed by a Multi-Professional Review Group and secondly, because parental consent is still required.

We have written back to NHS England pointing out that the first of those two limitations is discriminatory. Why should the treatment of trans people by qualified specialists be subject to review, while the treatment of cis people is not? The process they’ve put in place also adds substantially to the delays trans people face for treatment. 

As the letter says:

“Our clients remain dismayed at the hurdles that NHS England is continuing to put in place to allow trans children to be assessed by an endocrinologist for puberty blockers. This hurdles exist (a) after clinical professionals at the Tavistock have reached the view that a trans child should be referred to an endocrinologist to consider prescribing puberty blockers and (b) prior to the endocrinologist taking a decision whether it is clinically appropriate for a child to be prescribed puberty blockers. These are hurdles which directly interfere with the clinical relationship between the child’s clinicians and the child. They are not replicated elsewhere within the NHS and cannot be justified solely for trans children.”

Requiring parental consent is unlawful too. It ignores the decision in Bell in the Court of Appeal, it ignores the decision of Gillick in the House of Lords, and it ignores the rights of competent young people to make decisions about their own lives. 

We have, without optimism, given the NHS 14 days to correct their service specification but we are also preparing to issue proceedings.

Standing back, NHS England’s stance on trans healthcare seems increasingly to follow the “political” rhetoric rather than treatment realities. Treatment protocols for trans adolescents are well-established and have existed for decades. Providing puberty blockers to delay puberty is a reversible form of medical treatment which creates time to reflect before any prescription of cross-sex hormones. 

Denying puberty blockers, whether through deliberate decision or neglect, results in inevitable changes to a trans young person’s body. Some of these changes are only reversible with serious surgery later in life, and some of them are entirely irreversible. 

Puberty blockers pause those changes and create space for the young person to reflect. Denying them to a young trans person is arguably an act of cruelty.

Trans people need healthcare from the NHS – not politics.

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