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Artillery Row

A bill must be a scalpel

The new “Conversion Therapy Bill” must be precise and accurate

The Government has recently announced another delay in publishing a draft Conversion Therapy Bill. This will give the Government time to carefully draft legislation that minimises unintended consequences and can survive scrutiny in both Houses of Parliament. This Bill proposes to introduce a new criminal offence, a significant intervention. It must be precise, clear, and proportionate.

Intuitively, one would assume a ban on conversion therapy is an unqualified good. This is partially because talk of conversion therapy conjures images of gay people being strapped to tables and electrocuted. But if this legislation is not carefully drafted, it could criminalise the provision of vitally needed support for vulnerable children and adults struggling with sexuality and gender identity issues.

When and if the Government produce a draft, for legislation to deserve support, it must ensure that therapists are still able to do their jobs without committing crimes, and patients are able to receive appropriate care, tailored to them which keeps their physical and mental wellbeing in focus.  

It must clearly define “sex”, “sexual orientation”, and “gender identity”:

If the last year has proven anything it is that confusion around these terms makes it impossible for legislation to be implemented effectively. The precise definition of sex is currently hotly contested, in court as much as elsewhere. This Bill cannot responsibly compound that confusion.

There must also be precise definitions of both sexual orientation and gender identity. We currently have no statutory definition of gender identity. This cannot be avoided. If a criminal offence attaches to attempts to change or suppress the expression of one’s gender identity, there must be a definition.

It will be important to clarify whether the Bill envisages people to have one fixed gender identity or whether it is possible for an individual’s gender identity to change over time. If the Bill recognises this, it will mean that the act of affirming someone’s new gender identity may be a criminal offence because it will constitute an attempt to change gender identity from their old one. There must be clarity and appropriate legislative provision here. If there isn’t, therapists may be criminalised for using preferred pronouns, for not using preferred pronouns, for cautioning against hasty surgery or for recommending surgery.

Therapists must be able to discuss the individual needs of their patient and shouldn’t fear a sword of Damocles hanging over their head if they advocate patience and informed consent to irreversible medical procedures. 

It will be vitally important that the Bill identifies what constitutes a conversion practice, including whether this will cover work done in clinical settings or whether consent is in any way relevant for the criminal offence. 

It must carefully consider the relationship between gender identity and sexual orientation:

A change in gender identity may constitute a change in sexual orientation. For example, a lesbian who changes gender identity to identify as a boy will likely also change sexual orientation to become heterosexual. 

This will mean that affirming a changed gender identity could constitute conversion therapy on the basis of either gender identity or sexual orientation, suppressing the manifestation of a female lesbian identity and encouraging a male heterosexual one. Indeed, this is precisely what some ex-NHS staff have experienced, fearing that a cavalier attitude toward childhood transition could be the result of internalised homophobia. This has led some staff to comment that at times this “feels like conversion therapy for gay children”.

There is a growing concern that a cavalier attitude toward affirming transition may inadvertently enable and encourage those suffering from internalised homophobia to “trans away the gay”. These concerns are particularly salient given that several studies have indicated that between 60 and 80% of gender distressed children will desist if not placed on a medical pathway[1] and up to 80% of them will grow up to be homosexual or bisexual[2]. This legislation must take that concern seriously and carefully draft this Bill to be alive to risk that hasty medical intervention including the prescription of puberty blockers and cross-sex hormones could constitute sexual orientation conversion therapy. 

It must not create a chilling effect:

Therapy is not a crime, and this Bill must not make it one.

Mental health and gender identity services are critically overstretched. Any legislative intervention which could lead to more people leaving the sector or which would prevent people from joining it must be treated with extreme caution. 

In all other areas of mental health provision for children, the standard approach is one of watchful waiting, with talking therapy being the key intervention. The fact that affirmation has become the norm in cases involving gender distress in an anomaly; one which is being rowed back in several jurisdiction that are world-leaders in gender related healthcare.

There is a real danger that this Bill could discourage clinicians or those working with LGBT people, including vulnerable minors, from providing appropriate care that is tailored to the individual in question. The Bill must be drafted to guarantee that those working with people experiencing distress over their gender identity or sexual orientation are free to provide care without the fear that they will be committing a criminal offence for doing their job. Appropriate care must ensure that there is informed consent to any medical interventions, something which cannot be done if professionals cannot speak openly about the risks involved and the possibility of regret or even detransition.

This is particularly important in light of the Cass Review which noted that social transition or affirmation of a minors changed gender identity is not a neutral act but an active medical intervention which likely sets them on the path to surgery and hormones.

It must respect Human Rights to freedom of expression, association and religion:

Any legislation that criminalises speech must be cognisant of the human rights implications. The Bill must be carefully tailored to ensure that it does not criminalise the expression of truth about biological sex as someone sees it. It must not criminalise consensual prayer between adults. It must not criminalise the right of lesbians and gay men to associate together.

The Government’s stated intention is to introduce a sweeping criminal offence that has the potential to have wide reaching effects across multiple areas of law, touching upon several contexts where a delicate balance is needed between various competing concerns. This Bill must be a scalpel. It cannot be a sledgehammer.

Dr Michael Foran is a Senior Fellow at Policy Exchange and lecturer in Law at the University of Glasgow. His Policy Exchange paper The Scottish Gender Recognition Reform Bill: The Case for a Section 35 Order can be read here.

[1] Devita Singh, Susan J Bradley and Kenneth J Zucker, ‘A Follow-Up Study of Boys with Gender Identity Disorder’ 12 Frontiers in Psychiatry (2021); A Korte & Ors, ‘Gender Identity Disorders in Childhood and Adolescence’ 105(48) Dtsch Arztebl Int (2008) 834-41; T.D. Steensma & Ors, ‘Factors associated with desistence and persistence of childhood gender dysphoria: A quantitative follow-up study’ 52 Journal of American Academy of Child and Adolescent Psychiatry (2013) 582-590.

[2] Devita Singh, Susan J Bradley and Kenneth J Zucker, ‘A Follow-Up Study of Boys with Gender Identity Disorder’ 12 Frontiers in Psychiatry (2021).

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