Campaigners lose High Court case over waiting times for trans healthcare

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Campaigners have lost a High Court challenge against NHS England over waiting times for gender dysphoria treatment.

Four people, along with charity Gendered Intelligence and legal campaign group The Good Law Project, brought legal action over the “extreme” wait for a first appointment with a specialist.

They argued that the body is failing to meet a duty to ensure that 92% of patients referred for non-urgent care at services commissioned by NHS England – including gender dysphoria clinics – start appropriate treatment within 18 weeks.

However, in a ruling on Monday, Mr Justice Chamberlain dismissed the claim, finding that this is a duty to “make arrangements” and applies to patients as a whole, rather than individuals.

He said: “Indeed, because the cohort is comprised of all patients referred to the services under NHS England’s responsibility, it would be possible for the standard to be met even if no child or adult referred for gender identity services were treated within 18 weeks.”

The judge also said that ordering the organisation to ensure it meets the standard by a particular time “would impose a legal obligation on NHS England to divert resources from elsewhere”.

Mr Justice Chamberlain added: “The court is not equipped, in terms of the information available to it or in terms of expertise, to form a judgment about whether such a diversion would be optimal.”

At a hearing in November, the High Court was told that, as of August 2022, 26,234 adults were waiting for a first appointment at a gender dysphoria clinic, with 90% of these waiting longer than 18 weeks.

The court in London also heard that, by the end of the same month, around 60.8% of all NHS patients referred for treatment had been waiting up to 18 weeks, with 39.2% waiting over 18 weeks.

In his ruling, Mr Justice Chamberlain said: “NHS England has provided a detailed account of the steps now being taken and a cogent explanation of the reasons why it is expected that these steps will be successful in reducing waiting time, albeit not immediately.

“In my judgment, it is impossible to stigmatise these steps as unreasonable or inadequate ones.”

The judge later said it was important to note “the serious effects” of long waiting times on two of the people bringing the claim, who are both children.

He continued: “Their distress and fear, as described by their parents, is particularly affecting because its source lies in their own changing bodies.

“It is a matter of great regret that many other children and adolescents waiting for children’s gender identity development services must face the same distress and fear.”

Mr Justice Chamberlain also ruled that the waiting times were not directly discriminatory.

He said: “In my judgment, the claimants have not established that NHS England treated them, because of their protected characteristic of gender reassignment, less favourably than they treat or would treat others.”

In a statement following the ruling, Gendered Intelligence said the charity “has been clear from the start of this case that, while any legal outcome is important, of equal importance is raising awareness of the dire straits in which trans healthcare finds itself in the UK”.

The statement continued: “We understand that this judgment will be difficult for many people, particularly those trying to navigate horrendous and unjust waiting times themselves.

“We too are disappointed, and we send solace and strength to everyone fighting an uphill battle just to access basic healthcare.”

The Good Law Project said it will seek to appeal over the ruling, calling the result “a deep disappointment”.

An NHS spokesperson said: “The NHS notes today’s judgment, which saw the claim dismissed on all grounds and acknowledges steps already being taken to reduce waiting times for gender healthcare services.”