Legal Issues Arising From Transgender Health Care

1. Legal Issues Arising From Transgender Health Care Professor Kenneth McK. Norrie School of Law University of Strathclyde

2. Background Legislation (1) • Gender Recognition Act 2004, c 7 • S. 9: Gender Recognition Certificate (GRC) • Exceptions include titles, sport and gender-specific offences – nothing about health care or services • S. 22: prohibition of disclosure of information (relating to GRC) obtained in “official capacity” • Gender Recognition (Disclosure of Information) (Scotland) Order 2005 (SSI 2005 No 125) • No offence under s. 22 if “health professional” makes disclosure “for medical purposes” AND patient is reasonably believed to have consented OR patient “cannot give consent”.

3. Background Legislation (2) • Equality Act 2010 • S. 4: “protected characteristics”: age, disability, sex, sexual orientation, race, religion and “gender reassignment” • S. 7: “A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex”. • (definition derived ultimately from EU’s Gender Directive 2004/113/EC) • This rather avoids the “intersex” person (Stair’s “hermaphrodite, or other of dubious sort”) • S. 16: it is unlawful discrimination for an employer to treat a transgender person less favourably in terms of sick-leave. • Sched. 3: Separate provision of services for each sex, and services provided to one sex only, are not discrimination.

4. Non-Statutory Recognition • A v. Chief Constable of West Yorkshire Police [2004] UKHL 21 • The words “woman” and “man” in the Sex Discrimination Act 1975 must be read: “as referring to the acquired gender of a post-operative transsexual who is visually and for all practical purposes indistinguishable from non-transsexual members of that gender” • Followed (in relation to pensionable ages): • Grant v. UK (2007) 44 EHRR 1 (ECtHR) • Richards v. Sec. of State for Work & Pensions [2006] All ER (EC) 895 (ECJ) • Timbrell v. Sec. of State for Work & Pensions [2010] EWCA (Civ) 701 (English Court of Appeal)

5. Transgender Health Care Clinical and Practice Guidelines • World Professional Association for Transgender Health (WPATH) Standards of Care (2011) • http://www.wpath.org/documents/SOC%20V7%2003-17-12.pdf • NHS Scotland Transgender Reassignment Protocol (2012) • http://www.sehd.scot.nhs.uk/mels/CEL2012_26.pdf • NHSGGC Transgender Policy (2010) • http://www.equalitiesinhealth.org/documents/NHSGreaterGlasgowClydeTransgenderPolicy.pdf • None of the above requires the obtaining of a Gender Recognition Certificate (though ambiguities arise from use of term “gender status”).

6. Practical Health Issues (1) • Single-sex wards • “Where inpatient wards are divided by sex (female/male only wards), trans people will be offered accommodation that matches the gender in which they are currently living” NHSGGC Policy • Separating trans patients in single occupancy rooms is NOT acceptable: • X v. Turkey 9th October 2012 (appl. 24626/09) (breach of art. 3 for keeping gay prisoners in solitary confinement away from other prisoners)

7. Practical Health Issues (2) • Gender-specific treatment • Prostrate screening for trans women • Breast screening for trans men (“Well Woman” clinic services not available) • Gender reassignment surgery v. aesthetic surgery • Facial feminisation, breast augmentation • Mastectomy, mammoplasty • Vaginoplasty • Penectomy, Phalloplasty

8. Treatment for Children and Young Persons (1) • Re Alex [2004] Fam CA 297 (Family Court of Australia) • 13-year old child (recently commenced menstruation); strongly self-identified as a boy from an early age; practical difficulties at school (use of toilets, changing rooms etc) • Hormonal treatment being considered (“no question of surgical intervention at this stage”) • Could Alex consent for himself? • If not could court consent on his behalf (estranged parent being unwilling to provide consent)? • If so, was treatment in his best interests? • Alex could NOT consent on his own behalf • Doctors could provide him with hormonal treatment if this was in his best interests • HELD: The proposed treatment was indeed in his interests and therefore would be authorised by the court

9. Treatment for Children and Young Persons (2) • Age of Legal Capacity (Scotland) Act 1991, s.2(4): “A person under the age of 16 years shall have legal capacity to consent on his own behalf to any surgical, medical, or dental treatment or procedure where, in the opinion of a qualified medical practitioner attending him, he is capable of understanding the nature and possible consequences of the procedure or treatment”. • Children (Scotland) Act 1995, s. 15(5)(b): Parents lose right to consent once child acquires capacity to consent. • NHS Scotland Protocol prohibits genital surgery before 16 (while at the same time recognising that the under 16 year old can consent on his or her own behalf). Hormonal treatment may be provided pre-16. • Children with gender identity issues tend to grow up as gay adults; adolescents with gender identity issues tend to grow up as transgender adults. • Cf the circumcision cases: Re J [2000] 1 FLR 571 and Re S [2004] EWCA Civ 1257 • In fact, services for the under 16 year old are not available in Scotland (referred to Portland Clinic in London).

10. Pre-surgery life experience • Both WPATH Standards of Care and NHS Scotland Protocol require 12 months real life experience (RLE) in new gender before surgery • “The rationale for a preoperative, 12-month experience of living in an identity-congruent gender role is based on expert clinical consensus that this experience provides ample opportunity for patients to experience and socially adjust in their desired gender role, before undergoing irreversible surgery”: NHS Scotland Protocol. • Gender Recognition Act 2004 requires 24 months life experience in new gender before GRC can be issued • And GRC can be granted only to persons 18 years of age or above.

11. Informed Consent • Risks associated with estrogen treatment: • thromboembolism (such as DVT) • breast cancer • liver dysfunction • Risks associated with testosterone: • breast cancer • uterine cancer • liver dysfunction • Hormonal treatment can lead to irreversible changes • Genital surgery carries normal surgical risks, and destroys reproductive capacity • Case law on informed consent: • Sidaway v. Bethlem Royal Hospital [1985] AC 871(what the reasonable doctor would disclose) • Moyes v. Lothian Health Board 1990 SLT 444 (ditto for Scotland) • Chester v. Afshar [2004] 4 All ER 587 (what the reasonable patient would want disclosed) • Murray v. NHS Lanarkshire Health Board 2012 CSOH 123 (causation point from Chester not followed by Lady Dorian)

12. Access to Services • R v. North West Lancashire Health Authority [2000] 1 WLR 977 • Health board’s policy was to not fund gender reassignment surgery except in exceptional circumstances • Court held: • Allocation of resources, including weighting of priorities, is for the health authority • Leaving “exceptional circumstances” undefined is entirely legitimate • Giving gender reassignment surgery a low priority is not in principle irrational • BUT, applying the policy in a way that made it effectively impossible for transgender people to access reassignment services did not reflect medical judgment and was therefore irrational • Therefore resource allocation policies quashed. • BUT, article 8 ECHR imposed no positive obligations on health authorities to provide gender reassignment treatment. Refusal of treatment does not subject individual to inhuman or degrading treatment contrary to article 3.