R. (on the application of AA (A Child)) v National Health Service Commissioning Board (NHS England) [2023] EWHC 43 (Admin)
Background
The demand for young people receiving gender identity development services (‘GIDS’) and for adults receiving gender identity disorder services (also, helpfully, ‘GIDS’) has increased substantially from 2012 to 2017, and the NHS is struggling to meet this demand. In May 2022, young people seen for the first time following a children’s GIDS referral waited on average for 1066 days (i.e. nearly three years), see [32]. The reality is that many trans patients feel forced to have treatment privately, often resorting to ‘crowdfunding’ to cover their private medical expenses. For many young trans people, such long waiting times for treatment have a significant detrimental impact on their mental health and in the process, many undergo irreversible physiological changes.
This challenge was brought by six Claimants. The first two are children who were referred to the Tavistock and Portman NHS Foundation Trust (‘the Tavistock’) which is currently the sole provider of children’s GIDS. One Claimant had been waiting 18 months for a first appointment and another had been waiting nearly three years. The third and fourth Claimants are both adults, one had been waiting over two years for a first appointment, the other for over four years. The effect of the long waiting times on the Claimants is described in the judgment at [35-38].
The fifth Claimant, Gendered Intelligence, is a trans-led charity. The sixth Claimant, the Good Law Project (GLP), readers will no doubt be familiar with, and is a not-for-profit campaign organisation which brings strategic litigation. Gendered Intelligence and the GLP were also involved in the Bell v Tavistock case in the High Court [2020] EWHC 3274 (Admin), written about here, and in the Court of Appeal [2021] EWCA Civ 1363 written about here).
The Claimants pursued five grounds of challenge. The first three alleged that NHSE were in breach of its statutory duty:
Under reg. 45(3) of the NHS Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 (‘the 2012 Regs’) to ensure that 92% of NHS patients referred have commenced appropriate treatment within 18 weeks of referral; and
Under s.3B of the National Health Service Act 2006 by delaying puberty blocking treatment in such a way that children are unable to access the services before the onset of puberty; and
Under s.2 of the Health Act 2009 by failing to have regard to the right of adult gender dysphoria patients under the NHS Constitution to commence treatment within 18 weeks of referral.
The Claimants also alleged that NHSE directly, or alternatively, indirectly, discriminated against the first to fourth Claimants with regard to their protected characteristic of gender reassignment and also failed to comply with its public sector equality duty to make arrangements for the provision of services for people seeking treatment for gender dysphoria.
The decision
On the first ground, Chamberlain J held that the duty under reg.45(3) “is a duty to make arrangements with a view to ensuring that the 18- week standard is met […] the regulation does not regard failure to achieve that standard, without more, as a breach” [99]. He continued that the question of whether NHSE was in breach of reg.45(3) fell to be answered against the background of what it was presently and pointed to a number of factors affecting waiting times including (i) the marked increase in demand for services (ii) recent clinical controversy surrounding GID treatment (iii) the difficulty in recruiting and retaining specialists and (iv) and the need to redesign the commissioning model, see [101].
Earlier in the judgment, the Court summarised the steps NHSE are taking in light of the findings of the Cass Review. Namely, NHSE are planning to decommission the children’s GIDS at the Tavistock by the spring of 2023 and replace it with two main centres in Alder Hey Children’s Hospital in Liverpool and GOSH in London, as well as a number of other regional services, combined with a significant increase in funding [22 – 23]. Chamberlain J found NHSE’s account of efforts made to reduce waiting times “impossible to stigmatise […] as unreasonable or inadequate”, such that it was impossible to say NHSE was currently in breach of its duty, at [102].
For similar reasons, the High Court held that the Claimant’s second ground failed, see [108-111]. The High Court dismissed the third ground on the basis that the NHS Constitution does not impose any additional duties on NHSE beyond those set out in the 2012 Regs, see[115].
Chamberlain J did not find that waiting times amounted to direct discrimination on the basis of gender reassignment, because there were factors specific to GIDS which resulted in longer waiting times which did not apply to other specialist services, as described above, see [145]. Chamberlain J concluded:
“if there were evidence that the long waiting times for GID services were the result of a decision about the allocation of resources which was related to the shared protected characteristic of many services users (gender reassignment), a direct discrimination claim would succeed. The difficulty for the claimants is that there is no such evidence. On the contrary, as I have said, the evidence shows that the long waiting times have increased despite NHSE’s willingness to increase very substantially the resources available for this service area” [147].
The Judge also dismissed the Claimants’ indirect discrimination argument, because the Claimants had not identified a PCP which applied to those who were not seeking GIDS, at [151-153]. The public sector equality duty challenge was also dismissed, see [172-173].
Comment
Despite a recent decision concluding that GLP did not have standing to bring a COVID-19-related ‘public interest’ judicial review (see R (Good Law Project & Runnymede Trust) v Prime Minister and SSHSC [2022] EWHC 298), NHSE did not challenge the GLP’s standing. Interestingly, Chamberlain J observed that it was not obvious to him why there was any need to add Gendered Intelligence and GLP as Claimants when the first four Claimants plainly did have standing. He stated: “the availability of a better placed, directly affected challenger will generally tell against according standing to an individual or organisation seeking to litigate in the public interest” see [175], making reference to two other High Court decisions he made on standing in relation to the GLP. The author’s reading is that, had NHSE challenged the GLP’s standing in this case, they would have been successful.
Recently, the employment tribunal has tended to be the arena in which transgender people (and those who encounter them)’s rights are contested. In my view, this judgment contains welcome clarification from the High Court on the scope of the protected characteristic of ‘gender reassignment’ under s.7 of the Equality Act 2010. The High Court upheld the definition adopted in the Employment Tribunal decision of Taylor v Jaguar Land Rover Case No 1304471/2018, namely that this includes those who are ‘gender-fluid’ and ‘transitioning’, see [129]. The High Court went further to find that those with the protected characteristic of gender reassignment do not need to have undergone any form of medical transition, see [129], and do not need to have started their process of transition but must simply ‘propose’ to undergo at least part of any such process – distinguished from a ‘passing whim’, at [131]. The High Court observed that not every child referred to GIDS will have this protected characteristic but there is no reason in principle why they cannot, provided they have made a settled decision, at [131-132].
The Claimants are appealing this decision.
