Supporting Transgender Children

Supporting Transgender Children

26 September 2017 Mary McEvoy

In the last two years, there was an increase from 87 to 216 of children aged 10 or under being referred to the NHS because they were unhappy in their biological gender.

Some sources of support:

Gender Identity Development Service (GIDS) (was known as Tavistock Clinic) – help children and young people with gender identity issues

Mermaids – a charity helping children and their families with gender identity issues

General considerations:

  • Important to assess that the child is genuinely gender dysmorphic rather than simply preferring to do things “stereotypically” done by the opposite gender
  • School:
    • Talk to teachers (GIDS often will do this) to explain additional support child might need at school/get teachers keeping an eye on them/let teachers know they aren’t just being “difficult” or that it should not be treated as definitely just being a “phase” etc.
    • Might also need school’s support to call child by their preferred name in class
    • Need teachers to be your “eye” as a parent whilst they are not with you, and they can help report to you if they think your child is displaying any worrying signs e.g. of being bullied etc.
    • Teachers might also need to educate the other children on the subject
    • Toilets/changing rooms/uniform dress code
    • It is also possible for exam certificates to be issued in the preferred name of the child, although any result will be linked with a Unique Pupil Number (linked to legal name)
    • Any school should remember that they owe a duty of care to their pupils and not acknowledging these needs can subject a child to significant mental distress
  • Some parents recommend “trying out” the “new” gender i.e. living at the weekends as the other gender and seeing if the child does identify
  • Parents might also want to seek their own support or counselling – even the most supportive parents will have questions and being able to have those answered will help them better support the child. Mermaids and GIDS can help put families in touch with other families who are going through/have gone through the same thing which might provide additional support

Legal considerations, including what might happen in the future:

Medical

    • Hormone blockers (i.e. to block puberty before major physical changes take place) can be given in UK to child from age 12 (or younger if puberty onset is sooner) (lowered from age 16 in 2011) – obviously subject to assessments and medical advice
    • One can stay on hormone blockers for some time before then taking actual hormones and having an operation i.e. “thinking time” to be sure. Before blockers, the NHS offer counselling and support sessions
    • Effects of hormone blockers are fully reversible so can be stopped anytime
    • Usual position is that you cannot have surgery or cross-hormones (i.e. the ones which make you go through puberty in the “new” gender) until you are no longer a minor i.e. over 18
    • Since 1992, courts have applied special rules to transgender medical cases (as they have such serious consequences)
      • Parents do not have the authority to provide consent for such medical procedures
      • Doctors also do not have authority to determine that a child is competent to make the decision themselves
      • Children who are “Gillick competent” (see below) can consent, but can only be determined to be competent by the court in these instances
      • = the court have to decide.
      • This means families have to make applications to the courts to authorise treatment even where everyone else agrees it can go ahead
      • Obviously strong arguments against this: stress, expense etc. but if reform occurred it is likely that doctors would have to determine the child’s competence which may lead to more doctors erring on the side of caution and being less likely to say the child was able to decide, which may cause more stress to the child/their family. If the child was not competent then the parents would likely need to consent (all with Parental Responsibility) which has its own challenges and if there were difficulties, the court would have to become involved anyway to do what was in the best interests of the child

Cases and legislation

  • In contrast to some systems elsewhere in the world, the UK’s Gender Recognition process does not require applicants to be post-operative. They need only demonstrate that they have suffered gender dysphoria, have lived as the “new” gender for two years, and intend to continue doing so until death
    • Recent High Court “custody battle” involved boy of 7 years old living as a girl with mother, but then being removed by the judge to live with his father and concluding that the mother “had caused significant emotional harm to the boy in her active determination that he should be a girl”. Controversial case as mother had been convinced that boy wanted to be a girl, but shows how court can get involved
    • Another case reported that a family took action against a local authority for backing their 14 year old daughter’s change to a boy’s name as they thought she was too young to make her own mind up and that parents should be able to veto this (these parents were Christian and also had concerns about the erosion of Christian values in the UK legal system)
    • Sex Discrimination Act 1975 made it illegal to discriminate on the ground of anatomical sex in employment, education, and the provision of housing, goods, facilities and services
    • Equality Act 2010 officially adds "gender reassignment" as a "protected characteristic”
    • Human Rights Act and European Convention on Human Rights: rights begin from birth: right to a private life (Article 8) and right to not be discriminated against (Article 14) (on the basis of them being transgender) cannot be breached
    • Gender Recognition Act 2004 effectively granted full legal recognition for transgender people
    • Can change child’s first name “formally” by entering into change of name deed, but hoops to jump through, and whilst reversible can still affect the child if the decision is not entered into after considerable thought/“trying out"
  • Once a child is capable of making a choice about their first name, they then have just as much liberty to change their name as an adult does
  • “Capable” means “Gillick competent” (named after a case establishing the principle):
      • “Whether or not a child is capable of giving the necessary consent will depend on the child’s maturity and understanding and the nature of the consent required. The child must be capable of making a reasonable assessment of the advantages and disadvantages of the treatment [here: change of name] proposed, so the consent, if given, can be properly and fairly described as true consent.”
      • = if a pupil wants their name changed on a school system, and they are capable of making that decision, this should be respected.
      • Children over 16 = generally “Gillick competent”
      • (see also:http://www.neves-solicitors.co.uk/site/blog/changing-a-childs-surname)

Future considerations

    • There are many cases of adults who now regret transitioning
    • Becoming a parent
      • Transgender patients can have eggs and sperm stored for longer than the normal law provides for – (normal = 10 years, but transgender people (because of earlier harvesting) can have this period extended every 10 years up to 55 years)
      • Transgender parents – if a person changes their legal gender, they do not lose their legal status as “mother” or “father” of an existing child BUT if they conceive after having transitioned, it is not clear what the position is – arguably the same rule applies
    • Marriage
      • Can marry someone of the opposite or same gender to their acquired gender BUT if a transgender person doesn’t have a Gender Recognition Certificate, they are legally considered to be the gender that is on their original birth certificate
      • In England and Wales, since 29 March 2014, same sex couples can marry. Same sex couples can marry in a civil ceremony, but can only get married in a religious ceremony if the religious organisation agrees (not possible in Church of England)
      • Since Marriage (Same Sex Couples) Act in 2014, there are changes to the way GRCs are awarded. If you are married, you no longer need an annulment of your marriage in order to get a GRC. If their spouse agrees to the application, the transgender person can remain in their marriage and get a GRC. If their spouse doesn’t consent, transgender person cannot get a GRC unless the marriage is annulled
      • In civil partnerships, both parties have to be transitioning before either can get a GRC because civil partnerships are only for same-sex couples. If only one party is transitioning the civil partnership needs to be converted into a marriage and then the GRC applied for.

 

All information correct at time of initial publishing.