It’s been two weeks since three High Court judges in London ruled that trans children would not be able to consent to the reversible treatment of puberty blockers, a landmark decision that sent waves of anxiety through the trans community.
It also caused shock at the Good Law Project, a non-profit campaign group launched in 2019 with the objective of using legal scrutiny to challenge abuses of power and injustices.
“None of the lawyers that I had spoken to thought that the case had a snowflake’s chance...and no one expected it to win,” says Jolyon Maugham QC, the Good Law Project’s founder. “Because these questions that the court has decided around…are not questions in relation to which judges have any expertise, right? The notion that a treatment should be denied by judges...just seemed like madness.”
The Good Law Project has garnered attention this year for its work scrutinising the awarding of lucrative government contracts for PPE during the pandemic, but now is using its legal expertise to combat the erasure of trans rights in the UK.
Maugham is a prominent lawyer, prolific tweeter, and sometimes unfortunate over-sharer. He acknowledges that trans rights is a slightly unusual cause to fight for as a member of what he calls “his tribe”.
“I've moved a long way in my conceptualisation of what privilege really means, and quite how extraordinarily stupid and thoughtless and arrogant my tribe can be,” he says over a Zoom call. “[They] always think they know better and never fucking listen.”
Maugham is referring to the prevalence of transphobia amongst an affluent and loud minority of middle class women and men, something the High Court’s ruling effectively institutionalised in England and Wales. The case, bought by Keira Bell, a 23-year old woman who detransitioned, and the mother of a trans child, will bolster those voices, and have a damaging impact on the lives of young trans people across the country, who will now have to seek a judge’s approval in order to access reversible treatments. Practically speaking, this ruling will simply stop trans young people from being able to access these treatments legally.
In response to the ruling, the Good Law Project reopened a legal crowdfunder campaign for trans issues, raising over £80,000 in its first five days (the current figure is £116,195). The organisation had already helped a trans teenager launch a legal case against the NHS for failing to see trans people in the legal time limit of 18 weeks (waiting times for trans people can sometimes be years). Now, the organisation plans to help charities coordinate a legal response to the ruling, stop the same thing happening in Scotland, and help trans kids access medical treatment abroad.
Maugham says the ruling is having an immediate impact on the lives of young trans people. “The data is unequivocal,” he says. “There is a very strong correlation between affirming the gender of trans young adults and reducing their risk of attempting or committing suicide, and the consequence of that data is that there will be children who kill themselves in consequence of this judgment.”
Trans children who experience gender dysphoria will feel an extreme discomfort in their body, which can be intensified by the onset of the puberty of that “wrong” gender. Young trans people have said it feels like, “a deep discomfort and almost a repulsion in your own body.” Not that the judges who made the decision would have fully understood that – one of the key issues Maugham noticed was that the High Court refused to take input from charities like Stonewall and Mermaids, and no trans children were spoken to throughout the ruling, something campaigners criticised at the time.
This detail is a key aspect that the Good Law Project hopes to seize upon to appeal against the ruling.
“The court legally and morally wrongly denied trans young people, any voice at all in that hearing, [and] we hope that we might persuade the Court of Appeal to allow that community – which was shut out of the first instance – to have a voice in the Court of Appeal.”
“You effectively find yourself in a world where a child and a parent, both of whom want that child to have access to puberty blockers, have to go and ask some judge for permission,” says Maugham. “So if you're a parent, the court is saying to you, some judge knows better than you what is in the interest of your child. That's an astonishingly morally offensive and logically nonsensical position for the law to find itself in.”
But effectively banning this treatment won’t stop trans young people trying to stop the process of puberty.
“For me, there is a profound irony that people who say that they care about children are going to cause, through this case – because the statistics are unequivocal – a significant rise in child suicides and child suicide attempts, and they are going to also lead to profoundly unsafe self-medication on the dark web.”
“They will go and they will buy hormone blockers on the internet,” Maugham says, explaining in some detail how Bitcoin can be used to secure common puberty blockers. “God knows whether you administer the right amount – you obviously can't test your hormone levels afterwards. So it becomes very, very dangerous, and that is what we are driving children to with this judgment.”
But it’s not just young trans kids who will be affected by this ruling. The argument that under-16s cannot consent to medical treatment has wider implications, especially for those trying to seek abortions, Maugham says.
“The read across from that judgment to a child's right to consent to an abortion is obvious, right?,” Maugham asks. “It's not gonna be that difficult to find somebody who regrets having had an abortion. The evidence will show that the vast majority of women who have had abortions think they made the right decision. But the evidence also shows that the vast majority of trans young people who took puberty blockers and then cross sex hormones are pleased that they did.”
So why haven’t more feminist charities been more vocal on this? For a debate over a relatively small section of the population (it is estimated that trans people make up around 1 per cent of the UK population), the debate over trans rights can be particularly toxic and oversized, aggravated by a false dichotomy presented by a minority of women and men of a certain generation, who have popularised the myth that trans rights are incompatible with women’s rights. It’s not a sentiment shared by feminists or the left in the US, prominent theorists like Judith Butler, or, in fact, the majority of the population. Nonetheless, the aggression faced by those who publicly support trans rights can often be enough to quieten down the debate, perpetuating the idea both sides hold equal weight. It’s also a problem in UK media, where an insistence to represent “both sides” of the argument has misrepresented the general attitude towards trans people.
“What’s pretty troubling to me is that those charities which I understand to be really worried about this stuff aren't coming out and speaking,” Maugham tells me, “and they're not coming out and speaking because they're afraid of what a small influential vocal group of feminists will say about that stance.”
“I think that the generation of feminists in the UK, that finds amongst it a lot of transphobes, has forgotten its privilege,” Maugham says, delicately. “It's forgotten its relative privilege compared to the trans community general”
Maugham may not be an obvious spokesperson for this fight, but when 27 per cent of trans young people – that’s more than one in four – have attempted to commit suicide and nine out of ten have thought about it, prominent voices need to speak up about supporting trans rights.
“I want to be speaking to those children and their parents,” he says. “I wanted to be giving them reason to think that this will change.”
It won’t be an easy fight, both inside and outside the court. “I can't say that we are optimistic, but I do think there are reasonable grounds for thinking we might overturn the decision of the Court of Appeal or the Supreme Court.
“It will be difficult, but it is definitely a worthwhile exercise to try.”