The Government is considering making an emergency ban on puberty blockers permanent subject to the outcome of a legal challenge, the High Court has been told.
Campaign group TransActual, and a young person who cannot be named, are making a bid to challenge the decision of now-shadow health secretary Victoria Atkins to impose a so-called “banning order” on puberty blockers, which suppress the natural production of sex hormones to delay puberty.
At a hearing on Friday, lawyers for the group and young person told the High Court in London that the secondary legislation made by the previous government on May 29, which prevented the prescription of the medication from European or private prescribers and restricted NHS provision to within clinical trials, was unlawful.
The Department of Health and Social Care (DHSC) and the Department of Health in Northern Ireland are defending the claim and have said the case should be dismissed.
The legislation came after the publication of the long-awaited Cass Review by Dr Hilary Cass into children’s gender services in the NHS, which said children have been let down by a lack of research and evidence on the use of puberty blockers and hormones.
Although the emergency ban was implemented by the previous Conservative government, the High Court was told on Friday that it may be made permanent by new Labour ministers.
In an email on Friday morning after instructions from the DHSC, lawyers from the Government Legal Department said: “The Government supports implementation of the Cass Review and, subject to the outcome of these proceedings, is minded to renew the emergency banning order with a view to converting it to a permanent ban, subject to appropriate consultation.
“The Government is committed to providing young people with holistic care, in line with the recommendations of the Cass Review.”
In a statement after the hearing, Secretary of State for Health and Social Care, Wes Streeting said: “We will always put the safety of children first.”
“Our approach will continue to be informed by Dr Cass’s review, which found there was insufficient evidence to show puberty blockers were safe for under 18s.
“This ban brings the private sector in line with the NHS. We are committed to providing young people with the evidence-led care that they deserve.”
During the hearing, Judge Mrs Justice Lang was told that the emergency order, described by the campaign group’s barrister as a “criminal prohibition introduced with a few days’ notice”, could have a “very real human cost” for more than 1,000 children and their families.
Jason Coppel KC, for the group and young person, told the court that the order was made under an emergency process used to prohibit the sale and supply of medications “with immediate effect to avoid serious danger to health”.
Mr Coppel later said that Ms Atkins “acted on the basis of her personal views about the conclusions of the Cass Review” and said the review did not identify puberty blockers as a danger to patient health but instead concluded there was a lack of evidence about their use.
In written submissions, Mr Coppel said the former minister “proceeded without taking clinical or other scientific advice on those views and overruled officials who had wanted wider consultation and had warned her of serious impacts, including self-harm and suicide, on highly vulnerable children and young persons who had already embarked upon treatment”.
Mr Coppel later told the court that there was no ministerial submission setting out Ms Atkins’ reasoning about why puberty blockers were considered a “serious danger to health”.
He continued: “The predictable, and indeed predicted results… are large numbers of very distressed young people suffering from gender dysphoria either expecting to start a course of treatment with puberty blockers or who have started a course.”
Julian Milford KC, for the two government bodies, said that Ms Atkins “was fully entitled to adopt a precautionary approach in matters concerning the health of vulnerable children”.
The barrister said in written submissions that the shadow health secretary gave her conclusion after a “complex assessment, involving the application of clinical judgment, with which the court should be slow to intervene”.
The court heard that NHS England published a policy in March 2024 which said that puberty blockers were no longer a “routine” treatment option for children with gender dysphoria.
Mr Milford said this had no “direct impact” on the prescription of puberty blockers by private prescribers or online overseas services.
He continued: “This left loopholes through which puberty blockers could continue to be prescribed outside the NHS system and the clinical supervision and safety arrangements that were being set up therein.”
“The Secretary of State was fully entitled to conclude that there was a ‘serious danger to health’ and that the use of the emergency power… was justified,” Mr Milford added.
The barrister later said that the legislation only restricts access to puberty blockers and does not prevent access to “wider gender healthcare pathways”.
Mr Milford also said that having a wider consultation on the decision risked “undermining” the order itself.
He said: “If young people had been aware that the government was consulting on as yet unimplemented restrictions on the prescription of puberty blockers, it would have encouraged them to accelerate the commencement of their treatment in order to obtain prescriptions before the emergency restrictions took effect.”
The hearing before Mrs Justice Lang is due to conclude on Friday with a decision expected in writing at a later date.
