On the prospect of writing something about the Cass review, Olivia Rodrigo’s voice keeps coming into my mind: ‘I should probably, probably not…’1 Yet I am very much alive to the risk that, like Rodrigo, my passion will get the better of me and I will declare ‘fuck it, it’s fine’. As a compromise between first- and second-order desires, then, I will try to dance around my strongest opinions on the Cass review; my feelings can hardly be hidden but I can at least try to keep them mostly implicit in this post.2 But I do want to use Cass’ report, and specifically its controversial recommendations regarding treatment of under-25s, as a jumping-off point for a broader discussion.
For those who haven’t followed the story, Hilary Cass has (inter alia) recommended that young people in England not be allowed to access adult gender services on the NHS. Trans adults will initially have to stay on a ‘a follow-through service’ to GIDS, the children’s service, until they turn 25 or perhaps 26.3 There is a significant lack of detail in the report on what exactly this means, but the assumption on both sides of the debate seems to be that the ‘follow-through service’ will not give patients access to the same treatment options (or not give them the same level of access) as adult services. In my view, this is the right interpretation, because it’s the only interpretation consonant with Cass’ reasoning: she argues that currently care is too ‘discontinuous’ and data is split up between child and adult services; the only obvious solution to these problems is to end ‘discontinuities’, by providing the same services for a longer period of time.
This recommendation was not rooted in any clear or obvious data. Rather, it is based in a methodological decision. Throughout the review, Cass uses the fundamental category of ‘children and young people’ (meaning ‘under 25’, or sometimes ‘25 and under’), rather than ‘children’ (under 18). To be fair to Cass, ‘children and young people’ was the remit set for her review by the NHS. Yet that needn’t have stopped her from considering ‘under 18’ and ‘18-25’ separately, so long as she did actively consider both categories of patient. Instead, she largely chose to consider everyone up to age 25 as part of a single continuous category.4 This applies to much of her data and is also pervasive throughout the analytical, qualitative, and argumentative parts of the review. As far as I can see, there was no justification given for this methodological choice.
Of course, to some degree, of course, all possible choices are arbitrary; age is a continuum, there’s no natural biological break at one age rather than another, things like puberty and ‘maturity’ arrive at different ages for different people. But this is a special case, because in the middle of the ‘under 25’ category is an age that is arbitrary in purely biological terms but deeply significant in social and political terms: 18, the age of majority, the line that English society has designated as the beginning of adulthood.
Many of Cass’ main sources were deeply aware of this: she draws on many data sources that concern themselves with under-18s as the fundamental category, even as her own data is built around the ‘under 25’ category. And indeed, at some points, she evinces a familiarity with the significance of the age of majority (albeit only ever implicitly or in passing)—because of course she knows about its significance!5
Yet in spite of this very obvious point, Cass chose ‘children and young people’, meaning under-25s, as her fundamental category. This led her to the complaint that there was insufficient data relating to this category as a whole (as the data was split up into ‘children’ and ‘young adults’), and that care was ‘discontinuous’ within this category. And so, never mind that such ‘discontinuity’ is (obviously!) justified by the fact that some people in this category are adults and some are children, she has demanded more ‘continuity’. This demand for continuity is entirely based in an arbitrary methodological decision, which Cass does not once question or attempt to justify in the review.
So why did Cass make the decision to lump everyone under 25 in together? Well, one answer is a standard line used by trans groups: ‘it was never about kids’; the intended effect of the recommendation is mission creep, towards the goal of denying gender-affirming care to adults as well as children, whether by explicit policy or by implicit bureaucratic design.
If you think there’s nothing to this answer, you have clearly forgotten section 28 too quickly. But despite my sympathies, I do not think this is the whole story or even the primary explanation. There’s a revealing line in the review that comes immediately after Cass makes her ‘follow-through’ recommendation: ‘This would be consistent with other service areas supporting young people that are selectively moving to a ‘0-25 years’ service to improve continuity of care.’
Cass then quotes a segment from a passage in the NHS’ current Long-Term Plan, a broad strategy document for the entire NHS. It’s a deeply relevant passage, so I will quote it more fully than Cass does:
Selectively moving to a ‘0-25 years’ service will improve children’s experience of care, outcomes and continuity of care. Currently children can ‘transition’ to adult services from as young as 12 years old. [Peter’s note: don’t confuse this with ‘transition’ in the sense familiar from the debate over gender care.] Failure to achieve a safe transition can lead to disengagement, failure to take responsibility for their condition and ultimately poorer health outcomes. By 2028 we aim to move towards service models for young people that offer person-centred and age appropriate care for mental and physical health needs, rather than an arbitrary transition to adult services based on age not need. [NHS Long-Term Plan 2019, paragraph 3.47, emphasis in original.]
Here I think we find Cass’ primary motivation: the NHS as a whole is moving towards using ‘under 25’ (or ‘under 26’) as a fundamental category in clinical practice.6 To a large degree, Cass’ recommendation is just one instance of a wider NHS ambition.
At first glance, this passage might seem unobjectionable to some readers. Surely care should be based on patients’ needs? And yes, this is true. But the question is: what are patients’ needs? As the context of the Cass review should make abundantly clear, there is very little agreement across the population or even among medical experts about the needs of (for example) a twenty-one year old patient presenting with gender dysphoria. The question of what a patient needs will always be at least somewhat ‘subjective’, subject to the burdens of judgment, and essentially contested.
I do not mean to suggest that evidence-based science has no role to play in making decisions about needs. But it can never be decisive. All choices in science and medicine come with inductive risk; and like much of life, medicine is a trade-off between type 1 and type 2 errors. For any given intervention, there will be risks associated with providing it and risks associated with not providing it. Even with good-quality data about these risks, they will typically be qualitatively different and not directly commensurable. (Again in the Cass review context, consider the question of whether children are in more of need of protection from the side-effects of puberty blockers, or from the social and psychological consequences of going through what they perceive as ‘the wrong puberty’. This trade-off is as much about social and philosophical questions as it is about medical evidence.) The direction of ‘protection’ is never predetermined; what counts as a risk demanding precaution, and what counts as an unfortunate omission, is not a fact handed down by medical science.7
Ultimately, then, decisions about ‘needs’ require a judgment call. This is not necessarily a problem: all of life requires judgment calls, it shouldn’t be surprising or scary that medicine is the same. But in the context of a total state monopoly on free-at-the-point-of-use healthcare, moving to treatment based on need means that the state (in particular, the wing of the state called ‘the NHS’) becomes the sole arbiter of what patients need and what they need protected from. And that is a problem, above all for those who do not fit the state’s preconceived notions. In many contexts such people are a minority, even a small one. But it is dangerous to assume this is always the case. Doctors’ preconceptions can be inaccurate, formed by stereotype or bigotry, or just by small-c conservatism. Many people (and especially, many young people) can find themselves on the wrong end of their judgment calls.
This is why the bioethical consensus—a consensus ostensibly accepted even by doctors themselves, no matter how brittle their commitment is in practice—is that when it comes to adult patients, the judgment call of what they need must be made by the patient themselves as much as possible. Of course, such a principle quickly runs into the problem that children exist; and so there is a need for law, policy, and medicine to demarcate those who can make their own decisions and offer their own consent, from those who are not mature enough to do so and must have their needs decided for them by others.
It’s theoretically possible for the state to make individual case-by-case decisions on the maturity of everyone it comes into contact with. It’s often observed that this would be impractical. But equally important is that it would be dangerous. It would give the state immense power to wield over people, to declare them immature and incompetent because (say) they make lifestyle choices that are seen as unwise or shameful. It would, in effect, allow the state to declare any adult to be a child. Anyone who saw Killers of the Flower Moon last year should know that this is not merely a hypothetical, nor is it solely the preserve of totalitarian nightmare states and communist dictatorships.
And so, to as large a degree as possible,8 we ought to draw a single hard line between childhood and adulthood, based on age. Age, not need, should be the basis of treatment, not because age is relevant but because making ‘need’ relevant is dangerous. If some immature adults are given too much free rein, and mature teenagers are overruled, we judge this to be an unfortunate but necessary cost to avoid creating dangerous discretionary powers. But the line should be drawn in such a way as to minimise these costs. As such, the setting of the age of majority is a vitally important decision, and should be chosen in a democratically legitimate manner in full view of the population—either set by the legislature (as in England and the rest of the UK) or written down in the constitution (as in many other countries).
And in fact, this is largely how the line is drawn in law and politics. But in medicine? The doctors are increasingly drawing their own lines. Medical professionals (and this goes double for paediatricians like Cass) have so deeply internalised their role as protector and carer that their natural assumption is that the question of what would protect the patient’s needs is their judgment call to make. This assumption is so natural that typically they do not even notice that they are making it: when a doctor’s judgment about the patient’s needs differs from the patient’s own, the doctor’s automatic impulse is to believe that it is because the patient lacks their expert knowledge. The profession’s journals are full of announcements that the days of medical paternalism are long over. But the Cass review and the NHS Long-Term Plan are two clear examples of the truth: doctors’ natural tendency is to centralise the power of judgment in the hands of fellow doctors, whether that takes the form of explicitly overruling the judgments of adults or (less blatant and thus more insidious) quietly narrowing the definition of ‘adulthood’ beyond what the rest of society could allow.
The adverb ‘quietly’ is important there. The Cass review, and its place in the centre of a major political dispute, has accidentally shone a spotlight on the NHS’ wider ambitions. But before last week, how many of you knew that the NHS was planning to keep patients on children’s services until they turn 25? Exactly zero? The problems the Long-Term Plan raises around ‘failure to achieve a safe transition’ are real, but jumping straight to the ‘solution’ that paediatric services should run from 0 to 25 can only be a symptom of medical arrogance and the erosion of patient autonomy.
It is not inherently wrong to allow medical expertise a seat at the table for decisions about the age of majority, when these are made in the open by a democratically legitimate body. It is inherently wrong to allow the medical profession to make these decisions themselves in private, mentioning them only briefly on page 55 of a technical strategy document most people have no idea even exists. And it is particularly wrong for them to make this decision on the basis of an argument (that the transition to adulthood should be characterised by ‘continuity’, and that ‘discontinuity’ is inherently bad) that explicitly contradicts the fundamental, democratically-endorsed concept behind the age of majority.
The question, then, becomes: how can we prevent doctors from rolling back informed consent as a concrete reality, from replacing patient judgments with their own, from denying adult services to adults? One answer is constant vigilance, watchfulness, and Whiggish near-paranoia about the rights of patients. But as I wrote last week, the tradition of English liberty that might have kept watch over every branch of the NHS for any hint of overreach, crying blue murder at the slightest provocation, is with Harry Willcock in the grave. Another answer might be some kind of general requirement for qualified doctors to provide treatment to any adult who requests it (with exceptions for pseudoscientific stuff and maybe conscientious objection to abortion), modelled on the cab rank rule for barristers. All I would say to any campaigner who tried to get such a rule introduced is: good luck with that.
No, the only real solution would have to rely on, not voice, but exit. The only real guarantee of patient power is the ability to abandon a doctor who treats you like a baby, abandon a service that refuses to accept your decision-making capacities, move on to someone else who will give you what you judge that you need. This is the only realistic institutional basis for genuine patient autonomy. But the entire design of the NHS is oriented around removing this institutional basis, or (rather) ensuring that only those who are wealthy enough for private care can access it. The NHS is given a complete and total monopoly over the provision of public healthcare, and monopsony power in the labour market for doctors. In the absence of any affordable exit except emigration, is it any surprise that British culture also invests the NHS with total authority to make judgments about the health needs of the nation? Is it any surprise that healthcare professionals are uniformly portrayed as morally upstanding and wise ‘NHS heroes’, supposed to be supported and clapped for, not doubted and challenged?
In a free society, doctors should not be empowered to entirely follow their own judgment, deciding how to protect patients accordingly. They are supposed to be there to enable patients, within the limits of their medical expertise as well as any other limits set by democratically-legitimate policy. Of course, when patients’ and doctors’ judgments line up, this will just look the same as (what the doctor thinks of as) protecting the patient and serving their needs. But they don’t always line up; in many cases—such as living organ donation, which I have written about at length—the doctor’s role ought to be enabling perceived ‘unnecessary’ risk-taking from informed patients.
But when public healthcare is set up in a fashion with no parallel in the Western world, centralised and monopolised to an almost absurd degree, it is only inevitable that the trend goes in the opposite direction. Doctors’ tendency to substitute their own judgments for their patients’ will have near-total institutional support within the healthcare service, with no offsetting trend of ‘exit’. This tendency may run into difficulties with the wider world of law and policy,9 but steps will still be taken to route round this, and to direct the vaguer world of culture towards the fetishisation of healthcare professionals’ virtue. In such a situation, ‘what do patients need protecting from?’ becomes a question that is only ever answered with reference to a stifling consensus. And, for young patients most of all (as, again, I’ve written about in the context of organ donation), the consensus will more and more converge around one specific answer: ‘themselves’.
This is something that is increasingly obvious to my young trans friends. Good luck to them all.
Not that it’s not an important matter or that it doesn’t demand a response. I will endorse Chris Northwood’s take.
Sidenote: how many of you normal, non-TikTok-addled minds were aware that the Disney Channel show that Olivia Rodrigo got famous off the back of was the same one Jake Paul starred in? That was a revelation to me.
I make no such promise in these footnotes. Here be dragons.
The fact that GIDS was closed down recently (in a not-entirely-independent development that was publicly announced several years ago and which Cass thus could and should have taken into account) adds even more uncertainty to an already uncertain and ambiguous recommendation. But let’s ignore that for now, and pretend GIDS is still operating—after all, that’s what Cass has done in her ‘expert’ review!
Even when she wants to break the ‘under 25’ category down further, she doesn’t break it at 18; she chooses either 16 or 17. Scroll through her tables and data viz and you’ll see this repeatedly.
Now, if Cass had chosen exclusively to break it at 17 this might have been justifiable and non-arbitrary, as 17 is currently the age at which people can access adult gender services in NHS England. Albeit, in that case there would have been further questions about the need for an ‘under 25’ category at all, when 25 is not currently an important age to NHS policy.
But this hypothetical is moot anyway, because she alternates between 16 and 17; it is just arbitrary.
An good example is the reasoning behind Cass’ ‘recommendation 8’, denying hormone treatment to under-18s in all but cases where there is a ‘clear clinical rationale’ justified in the face of ‘supreme caution’. In Cass’ argument for recommendation 8, 18-as-dividing-line is introduced without much fanfare. My sense (note: I’m not a lawyer!) is that if recommendation 8 were to recommend a cut-off of 25 rather than 18, it might be unlawful age discrimination under the Equality Act. This suggests that even in the small number of cases where Cass accepted the importance of 18, she did so basically under duress.
I do not mean to rule out the possibility that Cass or one of her colleagues only went looking for this passage while searching for something to justify a recommendation that was already going to be made on politically-motivated grounds. This seems to be the consensus view of trans groups who tried to engage with the Cass report: by the time they spoke to anyone the conclusions had already been decided, and the review’s work was mostly coming up with and rationalising premises. (Funnily enough, read between the lines and this seems to be the consensus of terf groups too, but for the fact that they’re only too pleased that Cass gave such weight to their ideas when interpreting the evidence.)
It’s notable, and relevant both to my argument and broader questions about the report, that Cass gives exactly zero space to these crucially important considerations in her recommendations around puberty blockers and hormone treatment. See note 6.
The possibility always remains for adults to be declared not to have capacity, but it’s a remote one, hidden behind layers of difficult legal questions. It’s a decision that is rarely made, always contested, and never the default, which is to treat everyone over 18 as a mature adult who has capacity.
See note 5.