The Opinion: The Legal Case?
On Friday, August 20th, Newsroom published an Op-Ed, “Parents of Gender Questioning children in NZ being let down” by Dr. Sarah Donovan. It caught my eye, in part, for the same reasons Dr. Donovan wrote it. Aside from the discussions about the BDMRR and the Conversion Therapy Ban, there’s been a relative lack of gender healthcare coverage in NZ media, especially when compared to the UK.
In an ongoing series I’ll be covering different aspects of this Op-Ed; from the sources it chose (and did not choose to use), the response I proposed to Newsroom and the editing process of that, a complaint that was leveled at the response, and notes on the importance of a critical media literacy, especially when comparing NZ and UK media environments.
The Legal Case That Isn’t (yet?)
What caught my eye was the framing of the piece. It used a Times article claiming that ‘Lawyers expect about 1,000 families to join a medical negligence lawsuit…’ with the firm’s executive saying “We anticipate that at least 1,000 clients will join this action.” It was a curious article to choose, as the law firm Pogust Goodhead was the sole source, they themselves advertised on Google and Facebook for patients to come forward.
On the same day the 1,000 families claim was made, a separate article in the i that quoted Tom Goodhead also gave space for Laura Preston, a lawyer for Slater & Gordon who highlighted that 1,000 families would be a remarkable number and the idea that the case could be filed within six months equally remarkable. In the same article, GIDS confirmed that in the last decade they had seen 19,000 patients and referred 1,000 to endocrinologists for hormone treatment.
In the same way that surely not everybody was kung-fu fighting, surely not every single patient referred to endocrinologists was going to flock to this proposed legal case? Suddenly, the 1,000 families figure become ridiculous, it falls apart under the bare minimum scrutiny. Unfortunately, and for reasons, the bare minimum of scrutiny was not applied to this client-seeking behaviour from Pogust Goodhead.
Bell v Tavistock
Let’s also talk about legal action against the Tavistock GIDS. There have been two key cases, which were rolled into one — the notorious Bell v Tavistock case. Initially, a parent of a 15-year-old and a former GIDS nurse brought a case that informed consent was impossible when it came to hormone treatment. The 15-year-old was on the GIDS waiting list, one of the many thousands. In 2020 the case was handed over to Keira Bell, a detransitioned woman who regretted the choices she had consented to at 16, 17, and 20.
Her solicitor was Paul Conrathe, who described the case as “pressing the case of Gillick to its breaking point”. Gillick is, of course, the precedent case that doctors could prescribe contraception to under-16s without parental knowledge or consent, providing the patient has informed consent. It underpins contraceptive and abortion healthcare for young women. It will not surprise you that Paul Conrathe has a long career of anti-abortion cases, many of which focused on the ability of young women to consent to the procedure. He also, as Jolyon Maugham KC highlights, started out opposing the lowering of the age of consent for homosexuality to 16 — the same as the heterosexual age of consent.
Bell initially won her case, with the court ruling that under-16s could not consent to puberty blockers and other treatments and that those 16 and over need a court ruling to begin treatment. This effectively overturned Gillick, specifically in the case of gender healthcare. However, the Court of Appeal immediately overturned the ruling on the basis that it was not for the High Court to offer guidance. Much more damningly, they ruled that the High Court should have dismissed the case once it was found that Tavistock GIDS guidance was lawful.
On the Court of Appeal’s decision, Paul Conrathe stated
“We are both dismayed and surprised at the Court of Appeal’s decision which appears to us the triumph of legal formalism over justice and common sense. At a stroke the Court’s decision removes a sensible, necessary and proportionate protecton for vulnerable young children against the poorly evidenced treatement with lifelong irreversible consequences which is practiced by the GIDS service at Tavistock. At the same time the judgment demonstrates that the Gillick-competency test is no longer fit for purpose. We shall be seeking permission to appeal to the Supreme Court”
Just check that bold sentence there, and tell me what Conrathe wanted from the Bell v Tavistock case.
The appeal to the Supreme Court was refused in May 2022 “…because the application does not raise an arguable point of law.”
The most significant legal action taken against Tavistock GIDS of the last decade was overturned immediately due to Tavistock GIDS having provided lawful guidance.
An Interesting Choice
Let’s return to Dr. Donovan’s use of the Pogust Goodhead Times article, first as the initially sourced claim in the opinion piece:
In recent days the UK media has reported that up to 1000 families are expected to file a medical negligence lawsuit against the Tavistock Gender Identity Development Service, the National Health Service’s gender clinic for children, young people and their families. Key grievances relate to claims about harmful side effects from puberty blockers, and the view that children and young people were rushed into drug treatment without adequate assessment and counselling.
And later, when bemoaning the lack of coverage of the UK’s healthcare system:
Certainly my ears would prick up if I heard that 1000 families in the UK unhappy with their children’s gender identity treatment were now expected to take a group civil action against the NHS.
Your ears would prick up if you heard that because it’s not actually happening. Every element of both statements, including the grievances, come from Tom Goodhead, whose firm has paid for advertising trying to drum up business, and even set up a dedicated website for claimants to visit.
Dr. Donovan’s claim that “care and treatment being provided for children and teenagers identifying as transgender or non-binary” is not being reported in NZ media is somewhat undermined by including this Times article as a cause for concern. Its inclusion, given the paucity of actual information contained within it compared to the i piece published on the same day, is an interesting choice as it supports the concern-focus of the opinion piece.
It may seem strange to focus on just this one article cited in the op-ed, but it’s an important question of how it then informs future media discourse. For instance, the conservative lobby group Family First heaped praise upon Dr Donovan’s Op-Ed — included this exciting misrepresentation in their own article;
“There are also 1000 UK families now filing a medical negligence lawsuit against the Tavistock Clinic…”
Which, no, there aren’t 1000 UK families now filing. But the ability of those who seek an end to all trans and gender healthcare to take the Pogust Goodhead article, and swiftly use it to either raise ‘concerns’ or outright fabricate evidence to attack the provision of trans and gender healthcare.
You can easily draw a line between Family First’s Bob McCroskie and solicitor Paul Conrathe in their very public attempts to influence legislation on abortion, contraception, and trans and gender healthcare.
We’ve seen this week with the Creative NZ fiasco that a public statement about concerns can swiftly spiral out beyond facts until a self-supporting narrative of concerns, outrage, and demands is established which are completely divorced from the reality of events.
Next up I’ll talk about the Interim Cass Report, what it found and what it didn’t — and how that matters a lot when discussing trans and gender healthcare.
Hey, I’m a cis guy writing about this stuff. If you want to read great trans authors also talking about these issues — I’m going to link to one at the end of each of this series’ entries.
Check out Gemma Stone, here. She covers a LOT of the UK issues in a great way, and is incisive and alert to the opponents of the LGBTQ+ community.