7-day countdown

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The father of a 21-year-old man with autism who is scheduled to undergo transgender surgery in seven days has foreshadowed a challenge to the safety and legality of adult gender clinics in England.

In a formal letter to the National Health Service (NHS), the law firm representing the father, as well as 36-year-old detransitioner Ritchie Herron, argues that the safeguards for minors set out by the Cass review of gender dysphoria care should be extended to cover young adults at least up to the age of 25.

The firm Sinclairslaw—which acted for detransitioner Keira Bell in her 2019-21 litigation against the London-based Tavistock gender clinic for minors—maintains that young adults face the same danger of “diagnostic overshadowing”, whereby a focus on gender issues obscures the role of autism, OCD or mental health disorders and results in real problems going untreated.

NHS England has been given a week to confirm that the review by paediatrician Dr Hilary Cass will be widened to include adult gender clinics before Sinclairslaw files a claim for judicial review in the High Court. (Her final report currently is due by year’s end.)

Flagged as possible interested parties in the foreshadowed litigation are Dr Cass, the United Kingdom’s Secretary of State for Health and Social Care Steve Barclay and Minister for Women and Equalities Kemi Badenoch.

The law firm maintains that the public interest of the judicial review claim would justify an order capping legal costs. It hopes to crowdfund an initial £60,000 for the case.

“At a time when the Cass review is yielding increasing concerns about gender treatment for adolescents, it is deeply concerning that there is such limited protection for young adults—and especially those on the autistic spectrum,” Paul Conrathe, senior consultant solicitor at Sinclairslaw, told GCN.

“Vulnerable young people are steered down a pathway of infertility and lifelong irreversible change. Clinicians who dare challenge the journey risk professional discipline for ‘conversion therapy’.

“The system is profoundly and dangerously broken. This judicial review will shine a light on a deeply concerning medical practice that has evaded scrutiny.”

The law firm’s letter says that “JL”—the young man who identifies as female and has “a turbulent mental health history”—has been booked for surgery on June 10 through an adult gender clinic in England’s north which works under NHS service specifications.

The surgery—castration and the creation of an artificial vagina, also known as “bottom surgery”—had been arranged without JL “being assessed by an expert in autism, nor has the effect of her autism been properly taken into account with respect to her apparent determination to proceed with surgical treatment,” the letter says.

JL was diagnosed with autism at age 7 and his history includes admission to mental health services, anxiety and suicidal ideation.

The letter says it is “simply fanciful” to suggest that JL meets the stated NHS precondition for surgery that mental health concerns are “well controlled”.

Video: detransitioners Keira Bell and Ritchie Herron tell their stories

Widening the lens

The Sinclairslaw letter cites several aspects of Dr Cass’s interim report as relevant to the judicial review—

Some young people may remain “fluid in their gender identity” into their early to mid-20s

Although teenagers can self-refer or be referred to one-size-fits-all adult gender clinics at age 17, this shift may come at “a critical time” for a patient

By contrast, Dr Cass says, “young people with neurodiversity often remain under children’s services until age 19 and some other clinical services continue to mid-20s. Further consideration will be needed regarding the age of transfer to adult services”

Dr Cass also stresses the need for proper follow-up of minors as they transition from paediatric to adult services. And she raises the possibility that minors given puberty blockers may be “locked in” to lifelong cross-sex hormones.

“We are a group of clinicians and academics concerned about the treatment of young people, aged 17-25, in [England’s] adult gender identity services. One fifth of those referred to adult services are still legally children (17), and two thirds are developmentally adolescent (17-25). There is considerable evidence that identity may not settle until the mid-twenties”—letter to The Sunday Times advising caution before referring anyone under the age of 25 for cross-sex hormones or surgery, 28 May 2023.

“Some may argue that once young people are 18 they are adults, so consent is a simple matter. We disagree. Because of the complexity and co-morbidity in such cases, the decision to place these young people on a surgical pathway should be made with caution.”

Brain gain

The Sinclairslaw letter notes that the NHS itself promises a “seamless approach” to mental health care for young people up to age 25, roughly the time when the brain is expected to be fully mature.

JL has the benefit of an Education, Health and Care plan which supports children and young people with disabilities up to the age of 25, unlike gender dysphoria treatment which transitions to adult services at age 17.

The letter says that young people with autism, who are over-represented in gender clinic caseloads, are more at risk of harm because their condition can involve “rigidity of thinking and inability to carefully weigh risks and benefits”, while adult gender clinics do not offer multidisciplinary exploration of the patient’s full range of issues.

“The treatment pathways are usually the same: hormones after two visits, surgery referrals, epilation [removal of body hair], voice coaching, and psychological support, rather than any therapeutic investigation,” the letter says.

It claims that the NHS service specifications prohibit “conversion therapy” in such a way that the contentious “gender-affirming” treatment approach is made mandatory. Consistent with the imperative to “depathologise” trans identity, the service specifications stipulate that psychological interventions should “not be offered routinely or considered mandatory.”

“The affirmative approach that is adopted towards [patients with mental health or neurodevelopmental disorders] by the clinical service providers prevents any proper assessment of the underlying condition or exploration of the reasons or co-morbidities which may be the underlying reason why the patient is seeking treatment,” the letter says.

It contends that young people already vulnerable with autism or OCD are especially at risk under this uniform treatment model because they are more likely to refuse psychological or psychiatric assessment when it is made optional, “which refusal may simply be a manifestation of their underlying co-morbidity.”

“There is consequently an avoidable and unnecessarily high risk of irreversible and life-changing decisions being taken which are later regretted by the person undergoing treatment.”

“The traditional model of care in adult [gender-identity clinics] is based on experience with older transwomen [biological males], not younger transmen or non-binary service users. There is a need to better understand the specific needs of this new, younger generation of service users and shape services accordingly—clinicians at the Exeter gender identity service, cited in the Sinclairslaw letter to NHS England

Immediate regret

The second claimant in the potential action against the NHS, Ritchie Herron, had genital surgery in 2018, and he says he immediately regretted it.

“When he presented to the gender clinic, he had significant mental health issues, co-morbidities and destructive lifestyle practices. He suffered from depression, OCD, anxiety and severe substance misuse,” the letter says.

“He also had undiagnosed autism—which has only recently been diagnosed. These significant and persistent issues were not explored or treated. Rather he was affirmed in his belief that the answer to his distress was in undergoing medical treatment for gender dysphoria.

“Despite multiple follow-up surgeries, his scar lines still weep, occasionally becoming inflamed and causing crippling pain. In the flesh cavity that was created to mimic a vagina, he feels mostly nothing, aside from the occasional stabs of pain as the nerves try and contemplate the damage, even five years on.

“He cannot use the toilet properly; the bent urethra has been constricted time and time again, and no matter how hard he pushes or strains, a dribble merges, which may continue for hours after he has left the toilet.”

The letter acknowledges that Herron is older than the age 25 cut-off at issue, but says he remains concerned about the risk of irreversible physical and psychological harm to young people treated under a model that “affirms rather than challenges the desire for surgery and fails to mandate multi-disciplinary assessment of the propriety of surgery.”

Sinclairslaw claims that the NHS service specifications for adult gender clinics are unsafe, pose disproportionate risks to patients with underlying conditions such as autism or OCD, and are in breach of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014.

The law firm also alleges indirect discrimination against this vulnerable patient group, which is protected under the Equality Act 2010 and the European Convention on Human Rights.

If the judicial review claim goes ahead, orders would be sought declaring the service specifications—or aspects of them—to be unlawful.

Note: GCN has sought comment from NHS England