March, 2021 -

Defining Domestic Violence: An Urgent Note of Concern regarding the Domestic Violence Bill

SUMMARY

1. There are deficiencies in the drafting of the Bill that; a) could prove counter-productive and allow the use of protection notices to be weaponised against the real victims of domestic violence; and b) create a risk that vulnerable people who lack capacity or who have a mental impairment may be unfairly criminalised.

2. The definition of “domestic abuse” is insufficiently defined and likely to result in inconsistent and ineffective policing.

3. There are a lack of procedural safeguards to address the following:

i. To ensure that the complainant is at a genuine risk of suffering emotional or physical harm;

ii. To prevent abusers from making false or exaggerated reports in order to obtain a powerful mechanism by which to control their victim;

iii. To prevent abusers from claiming they are being subject to psychological or emotional abuse in respect of behaviour on the part of their victim which is engendered only by the abusive behaviour (the ‘nagging wife’ complaint);

iv. To prevent the criminalisation of vulnerable adults who for reason of a disability (such as a learning disability or mental health condition) may be unable to comprehend that their behaviour is abusive or to moderate their conduct.

4. It is proposed that significant changes be made to the Bill to address these problems. In addition:

i. s 30(5) additionally should prevent the making of a protection order against a person who for reason of their disability is unable to understand the consequences of, or to moderate their behaviour.

ii. s 34(1)(a) to comply with the Equality Act 2010 and the Human Rights Act 1998 additionally should prevent the imposition of restrictions that conflict with a person’s “other protected belief”.

SUMMARY OF THE PROCEDURE

5. Legal Feminist is concerned by the process for the making of a domestic abuse protection notice and a domestic abuse protection order under Part 3 of the Bill. This provides for a procedure as follows:

i. A domestic abuse protection notice may be issued where a senior police officer has ‘reasonable grounds for believing’ that abuse has occurred and that it is necessary to issue a notice to protect the victim from domestic abuse (s 20(3)&(4));

ii. Where a notice has been issued, the police must within 48 hours make an application to the magistrates for a domestic abuse protection order (s 26(3));

iii. The magistrates will make such an order when satisfied, on the balance of probabilities, that the abuse complained of did occur and that it is necessary and proportionate to make the order to prevent domestic abuse or the risk of domestic abuse from occurring (s 30(1)&(2));

iv. Before making a notice or order the wishes of the victim and views of the alleged perpetrator must be considered but are not determinative of the decision (s 22(1) & s 31(1));

v. It is not necessary for the victim of the abuse to consent to the making of the notice or order (s 22(4) & s 31(3)).

vi. As to the content of an order, s 33(1) provides that:

“A court may by a domestic abuse protection order impose any requirements that the court considers necessary to protect the person for whose protection the order is made from domestic abuse or the risk of domestic abuse.”

vii. A person commits an offence if without reasonable excuse they fail to “comply with any requirement imposed by the order” (s 37(1)). The offence is both summary and indictable, with a penalty of a fine and/or maximum of 12 months imprisonment for the former and 5 years for the latter (s 37(5)).

6. The definition of “domestic abuse” is set out in s 1. This section contains the totality of the definition.

1 Definition of “domestic abuse”

(1) This section defines “domestic abuse” for the purposes of this Act.

(2) Behaviour of a person (“A”) towards another person (“B”) is “domestic abuse” 5 if—

(a) A and B are each aged 16 or over and are personally connected to each other, and

(b) the behaviour is abusive. 

(3) Behaviour is “abusive” if it consists of any of the following—

(a) physical or sexual abuse;

(b) violent or threatening behaviour

(c) controlling or coercive behaviour;

(d) economic abuse (see subsection (4));

(e) psychological,  emotional or other abuse; 

and it does not matter whether the behaviour consists of a single incident or a course of conduct.

PROBLEMS

7. We consider this section to be problematic, for the following reasons:

i. Defining “abusive” behaviour as “other abuse” is circular in its reasoning;

ii. There is no necessity for proving that the ‘victim’ of the behaviour finds it abusive;

iii. There is no requirement that the ‘perpetrator’ understands (or should reasonably understand) that the behaviour is abusive;

iv. There is no requirement to show that any further instance of domestic abuse has occurred following the making of an order, as the offence lies only in breaching the conditions of the order; such conditions may be ‘any’.

8. Legal Feminist highlights two potential scenarios in which the lack of requirement to prove either the perception of the ‘victim’ or of the ‘perpetrator’ could result in unintended and unjust consequences:

i. Use by perpetrators of domestic abuse to further persecute their victims.

9. Members of Legal Feminist are familiar with the current use and misuse of Domestic Abuse protections and how domestic abusers manipulate the system so that victims often end up re-victimised by the very system which was designed to help them. [2]

10. Not all victims of domestic abuse are silent victims. Many women[1] do shout back, argue, complain etc or even at times attempt to defend themselves physically. Such attempts at resistance do not reflect the power imbalance or mean that they are not ‘properly’ victims of abuse at the hands of their violent male partner.

11. It would become possible in this scenario for the abuser to report to the police that he has been struck on one occasion by his female partner and to persuade the police to issue a protection notice. Whilst the police are obliged to take into account any representations made by the alleged perpetrator (in this case the woman), they are not obliged to seek out any representation or to properly investigate or challenge the account given by the alleged victim (in this case the man). On production to court, the magistrates can proceed to issue a protection order even if the man does not attend (it is not possible to for a summons to be issued for his attendance s 26(8)(b)). They can find on the balance of probabilities that abuse has occurred without any investigation as to whether the man truly suffered any emotional or physical harm, and without there being any investigation as to the background of the relationship that may have caused the woman to react as she did. The making of a protection order would then be a powerful tool that the abusive man could use to control the actions of the woman.

12. This risk of misuse becomes increasingly difficult to guard against when the ‘abuse’ complained of is “psychological, emotional or other abuse”. Complaints of controlling behaviour may in fact be explained by the fact that the man is frequently absenting himself without explanation because he is being sexually unfaithful, or is spending scarce family money on gambling, alcohol etc. Women writing for organisations such as transwidowsvoices.org have recorded that when transitioning to a female identity their male partners have accused them of emotional abuse when they have referred to them by their male name or allowed their children to call him ‘dad’.

13. Where a woman is a victim of domestic violence, she may not be ready to reveal that this is the case, fearing for her own or her children’s safety, or due to financial or accommodation worries. She may prefer to take the consequences of accepting the protection order rather than incur the wrath of her male partner by revealing to the police or magistrates the truth of their relationship. The proposed procedure risks pushing her into a situation for which she is not ready and which may in fact be harmful to her interests.

14. Procedural safeguards need to be built in to ensure that the alleged victim is truly at risk of suffering emotional or physical harm and to prevent the process from being abused.

Criminalisation of Vulnerable Adults

15. The combined factors of the lack of requirement of intent to abuse and the negation of a requirement for consent by the victim leads to the potential for the criminalisation of vulnerable adults with behavioural or learning disabilities.

16. For many adults with such disabilities, home is a safe place where they can vent their feelings of anxiety and frustration that they have to work hard to conceal from the outside world. This often is expressed by verbal outbursts and other behaviour that may in other be considered to be abusive. Whilst there is certainly more scope for providing support to the family members who live with such vulnerable adults, it is unlikely to be in the interests of either party to criminalise the vulnerable adult and may cause considerable upset to the family members.

17. We recommend that at s 30(5) the wording is amended to state “or who for reason of disability is a) unable to comprehend that their behaviour is abusive, or b) is significantly impaired in their ability to moderate their behaviour to refrain from the abusive conduct.”

Legal Feminist

15 March 2021

[1] We recognise that people of either sex can be a perpetrator or victim of abuse, but for simplicity give examples here of typical patterns of male abusive behaviour against a female partner.

[2] One of the barrister members of the Legal Feminist collective has been involved in four separate public law cases involving the existing Domestic Violence Prevention Notice (“DVPN”) regime. She stresses that these cases may not be typical or representative of the use of DVPNs; as in general few DVPNs end up as public law cases.

In each of these four cases, a DVPN was served upon a woman. In each case, the woman had previously been the complainant in a domestic violence case in the criminal courts, or the beneficiary of a non-molestation / occupation order in family law, or both.

In two of the cases, the service of the DVPN meant that both the woman and her child(ren) had to leave their home immediately to go to a hotel or hotel. In the other two cases, the woman left alone (one had no children, in the other case, the teenage children remained at home). It is noteworthy that the police had not completed the paperwork properly in two of the cases. In one case, no reason was given for the issue of the DVPN at all

Legal Feminist holds serious concerns that in at least some cases, the police have issued a DVPN against a woman who has already been a victim of domestic abuse, affecting children as well as women.

Sex Based Rights: A Remedy To Sex Based Wrongs

What are “sex based rights”? What do women mean by the phrase – and do we even have them?

A pithy answer is that they are the remedy to sex based wrongs, perhaps – depressingly – a far more readily identifiable set.

What is usually meant by “sex based rights” are the exceptions set out in the Equality Act allowing services and public functions to offer a single or separate sex service, and to offer this on the basis of biological sex, as well as allowing employers to recruit for only a member of one sex where there is a genuine occupational requirement, women only membership associations, and women only sports.

They are exceptions because they do not arise in the course of the mundane, or in the course of most recruitment. The word “exception” here simply means that you cannot separate by sex “except” where you can – it does not denote that you must have an “exceptionally impressive” reason for doing so.

Blackadder misinterprets the Equality Act when Baldrick relies on the single sex exceptions

So if you run a greengrocers you cannot insist that you only provide your service to men, and if you run a pub you cannot have a ladies’ room separate to the men, as used to be common. If you are recruiting an admin assistant it would be unwise to ask for women only. If you are the proprietor of a golf club you must not only allow men into the bar.

So the ordinary rule for services is that everything is mixed sex, except where

“only persons of that sex have need of the service,” s.27(2) Schedule 3 Equality Act – for example, a lesbian support group;
“The service is also provided jointly” and “would be insufficiently effective were it only to be provided jointly,” s.27(3) Equality Act – for example, a mental health group which offers both a mixed group and a men’s group catering to men’s specific needs;
“A joint service would be less effective” and “the extent to which it is required by persons of each sex makes it not reasonably practicable to provide separate services,” s.27(4) Equality Act – for example, a feminist society in which consciousness raising sessions are held;
The provision is at a hospital or similar establishment providing special care, supervision or attention, s.27(5) Equality Act;
The service is likely to be used by two or more persons at the same time and a person of one sex might reasonably object to the presence of a person of the opposite sex, s.27(6) Equality Act – for example a changing room;
There is likely to be physical contact between service users and a person might object if that were from a member of the opposite sex – for example a single sex martial arts class, s.27(7) Equality Act.

S.28 to Schedule 3 goes on to clarify that providing a single sex or separate sex service can extend to excluding a person on the basis of gender reassignment – if the conduct in question is a proportionate means of achieving a legitimate aim.

It should perhaps be noted here that not all exceptions in the Equality Act are sex based. There are a number of age based exceptions for example – and as far as services go, s.30 Schedule 3 provides a general dispensing power allowing service providers to provide a service to those who share a particular protected characteristic if the provider “reasonably thinks it impracticable” to provide the service to others.

In addition to the exceptions for service providers, employers may, if justified, require an employee to have a particular characteristic, s.1 Schedule 9 Equality Act. In the context of sex based rights, that might mean recruiting a female carer to provide intimate personal assistance to a woman, or a female counsellor for a rape crisis or domestic abuse centre.

Membership organisations may restrict membership to persons who share a protected characteristic (s.1, Schedule 15 Equality Act).

(There are also single sex provisions for sports, which this post, already too long, doesn’t touch on further.)

Are these truly “sex based rights”? As armchair pedants will be swift to point out, these are exceptions to the rule of indiscriminate provision rather than rights. The Equality Act does not seek to confer rights; it ensures protections. But what it does recognise is that equality in its purest form – whereby no service provider was allowed to distinguish between child and adult, man and woman, belonging or not to a particular faith – would lead to injustice. In particular, it reflects that equality does not always mean treating everyone the same. Sometimes it also requires removal of barriers, or making provision to address particular disadvantages. What makes the exceptions actionable rights are the provisions of s.19 which prohibits indirect discrimination and the Public Sector Equality Duty (PSED) contained in s.149. A body which declined to consider using the exceptions would be vulnerable to a claim in the County Court for indirect discrimination or to judicial review in the case of a public sector organisation which failed to properly apply the PSED.

And where state bodies are concerned, it also works alongside the Human Rights Act, which does confer (or confirm) rights – controversial at the time of the introduction of the HRA, because of the spectre of a precedent of a benevolent government ‘granting’ rights to citizens which could then be snatched away by a despotic successor. The HRA includes freedom from degrading treatment, the right to privacy and dignity, and freedom of association, all of which are relevant to the provision and retention of single sex services.

So why are they controversial, in a way that corresponding exceptions for other protected characteristics such as age or disability are not?

The answer seems to lie not in our attitude to sex based rights, but in our attitude to sex based wrongs. It is by no means novel to suggest that such wrongs are historic and now cured by our supposedly perfect and equal society: the surge in ‘men’s rights activism’ of the 90s and 00s was predicated on the idea that women had already gained all the rights we could legitimately expect, that the playing field was entirely level, and any further progress was “demanding special treatment.”

The nineties were a particular hotspot for such arguments, as the marital rape case (R v R [1991] UKHL 12) was argued and ultimately won. On 23 November 1991, Neil Lyndon produced an article entitled “On how civilised society is being corrupted by feminists and their mad doctrines” in the Spectator, complaining that the “Spare Rib hoods” had infiltrated the law: “The Law Lords tipped their wigs in the direction of the hoods when they reinterpreted the law on rape to include acts between a married couple… they acceded to and gave established respectability to the idea that normal men are rapists.”

The following year, on 17 October 1992, Barbara Amid expressed horror that the government is now “dancing to the tune of radical feminists.”… “In the past 20 years, our society has gone a good way towards becoming a matriarchy… And just as I, being a supporter of liberal democracy, would fight a patriarchy, the fight now must be against matriarchy.”

Indeed, men’s rights activists such as Diana Thomas (writing in 1993 as David) insisted that it was really men who suffered sex based oppression – including by being ‘provoked by neurotic women into committing date rape’.

None of this, of course, was exclusive to the 90s. As far back as 1953, the Lady column in the Spectator magazine was complacent: “The time has at last come when the self-respecting intelligent woman need no longer call herself a feminist… The battle is over. The women have won.”

What is new, though, is that such strictures are no longer the preserve of the conservative. Helen Pluckrose wrote in October 2020 in this thread that “I don’t believe sexism against women is a mainstream thing.”

This is not a criticism of Helen, whom I have always found to be a lucid and interesting thinker, whether or not I agree with her. The point is that many, many people did agree with her that while virtually all other forms of prejudice continue to exist and should be countered, sexism against women does not – or at least not in the ‘mainstream.’

For those who take this position, increasingly not just conservatives but also those who would regard themselves as social justice connoisseurs, there is no point to sex based rights because there are, by that definition, no sex based wrongs.

If male violence is not targeted at women by sex, but the random violence of a few ‘bad apples’ misbehaving, then women do not need special measures to ensure their protection from it. If there is no sexism, then there is little basis upon which to rest a belief that a joint service would be less effective than a single sex one, and no basis upon which a member of one sex might ‘reasonably object’ to the presence of a member of the opposite sex. If there is no sexism, no barrier to female participation, then women only shortlists are a narcissistic indulgence, women only associations unnecessary and suspect, women only occupational requirements nothing more than special treatment for whingers.

For those who do see sexism, sex based rights – the recognition within the Equality Act that single sex spaces and provision are sometimes necessary – are crucial.

While male violence continues to be targeted at women by sex, some survivors will need places where they can breathe, speak and recover freely, without the hypervigilance arising from hearing a male voice or seeing a male person – however delightful that person may be. Post traumatic stress reactions do not pause to reflect on “not all men.”

While sexism persists, women will need privacy and dignity when changing, when in need of personal care, or in any of the myriad situations envisaged by the Equality Act’s exceptions when a single sex service can be justified.

While women are subject to FGM, sexual violence, forced marriage, honour killing, corrective rape, military rape, forced pregnancy, forced abortion, selective abortion, sexual harassment, prostitution, pornography, objectification, sex trafficking, maternity discrimination, unequal pay, disproportionate caring responsibilities, domestic violence, financial exploitation and control, political underrepresentation, inadequate healthcare, limited control of their own bodies and reproductive choices, systemic barriers to occupational progress and promotion, silencing, belittling or any of the other ways in which sexism, misogyny and patriarchy are enforced, “sex based rights,” however inadequate a shorthand that may be, are a hallmark of a civilised society. Until sexism is eradicated, sex based rights are indispensable.

Suspended sentencing: the case of Javed Miah

This is a blog about sentencing, and outrage, and outrageous sentencing.

In particular, it’s about this case of sexual assault perpetrated by a stranger, reported in the Mirror as “Dad who attacked woman walking home at night avoids jail as he ‘would lose his job.’”

The facts are thrown into particularly sharp relief this week, in the wake of the abduction and murder of Sarah Everard. The defendant, Javed Miah, walked behind the victim and bumped into her, asking her the time. After following her for a minute, he groped her bottom, pushed her to the ground, and moved his hand from her crotch up to her chest. The victim managed to connect an emergency SOS call on her mobile phone at which point he ran away.

Miah was given a six month sentence, suspended for two years. He will also have to complete 250 hours of unpaid work, complete the sex offenders rehabilitation programme, and sign the sex offenders register for seven years.

Women are justifiably outraged. How can a man push a woman to the ground, commit a sexual assault, seemingly intent on worse and yet walk free from court?

Other commentators can point you towards the Sentencing Guidelines and point out that the judge has followed them. The Mirror reported that the judge called the attack ‘sustained.’ That would make it a Category 2, Culpability B offence, carrying a one year starting point with a range of a community order to two years custody. With both the logic and the emotion of a Sudoku puzzle, the starting point of one year is then adjusted up for location and timing (alleyway, after dark), then down for previous good character and remorse, ending at a 9 month sentence. A further 30% off is applied for a guilty plea, bringing it down to six months. The judge must then consider mitigation and whether or not the sentence can properly be suspended. Any sentence of 2 years or less is capable of being suspended – and there are good reasons for this: if someone loses their home, job, relationship and future prospects they are more, not less, likely to reoffend. Feed the data here into the OASys machine and we have a defendant who has a secure relationship – ding! – with a job – ding! – and a home – ding! – and children, meaning community ties – ding! – which all feeds into the assessment of a low risk of reoffending.

So yes, assuming from the limited information in the reports that it was correctly categorised, the magistrate has applied the guidelines correctly. The defendant pleaded guilty, so we don’t even need to get into whether the prosecutor has done their job well: plainly they have. Defence lawyers are often blamed for ‘getting their client off the hook,’ but since this defendant had pleaded guilty, we can blame the defence for nothing more sinister than effective mitigation, which is the right of the most egregious criminal in the land. And of course, it would be absolutely wrong to suggest the judge was entitled to sentence the defendant for what he (probably) would have done if not for the victim’s actions, rather than for what he did do. We do not sentence people for things they didn’t do – even if we think they might have done had they had the opportunity. This is fundamental to the rule of law.

And yet.

The purpose of this blog is not to reassure readers that the system is infallible. It is to make plain that the disquiet felt by women at sentences like this is not because women have failed to understand how the guidelines work, but because the guidelines do not reflect the terror that this type of offending causes to women going about our daily lives. We can reassure readers that such sentences are not the result of outright bias or corruption – but we would, ourselves, prefer an assurance that the Sentencing Guidelines will be updated and improved.

“Conversion Therapy”: The Trojan Horse Returns

The words ‘conversion therapy’ to most people, evince the spectre of homophobic practices whose purpose is to ‘relieve’ a person of their sexual orientation, and replace it with something more acceptable to others or, occasionally, themselves. It is an attempt to alter an objective fact (sexual orientation) in order to realise a subjective belief (most commonly that homosexuality is a sinful moral choice). Legal Feminist is implacably opposed to such practices.

But current calls for the prohibition of conversion therapy are not confined to the protection of sexual orientation. The phrase has been repurposed. For the purposes of this campaign, the term ‘conversion therapy’ has been extended to include treatment for gender dysphoria, and in particular any treatment that fails to immediately affirm gender identity. This elision of gender identity and sexual orientation is a linguistic sleight of hand, designed to confuse the natures of the two. No discussion can flourish, no debate can find resolution, when the language used between the participants is not shared.

Other than in the most self-conscious academic circles, it is uncontroversial that every person has a sexual orientation. Sexual orientation – whether homosexual, heterosexual, bisexual or asexual – is almost universally accepted as a fact of people’s lives; any moral, religious and political arguments about it relate to its internal diversity rather than any question of whether it exists. A broad consensus has been reached that an attempt to change a person’s sexual orientation is neither realistic nor humane.

It is, however, far from uncontroversial to state that every person has a ‘gender identity’. The concept of gender identity cannot be taken as a commonly agreed fact of human life, any more than the concepts of God, transubstantiation or reincarnation. Those who believe in such things are entitled to hold and express their beliefs without suffering unlawful discrimination, but that entitlement does not confer the status of fact on those beliefs. To approach the rights that attach to belief in any other way would lead to an intractable set of conflicts.

Some people sincerely believe in gender identity. Others have given the matter little or no thought. Still others positively reject it, holding that the concept of gender identity is based on outmoded stereotypical expectations of how women and men should look and behave. The concept of being ‘transgender’ (as opposed to ‘transsexual’ or ‘transvestite’) is a relatively new one, and one whose meaning and scope are problematically vague. It is instructive that in the 2017 Memorandum of Understanding on Conversion Therapy in the UK (Version 2), signed by a number of therapeutic bodies, sexual orientation was defined with commendable clarity:

‘sexual orientation refers to the sexual or romantic attraction someone feels to people of the same sex, opposite sex, more than one sex, or to experience no attraction.’

By contrast, the best the authors could do by way of a definition of gender identity was painfully circular:

‘gender identity is interpreted broadly to include all varieties of binary (male and female), non-binary and gender fluid identities.’

Sexual orientation is a fact, gender identity is an idea. People who identify as trans must be protected from any coercive attempts to change their beliefs. But those who call for a ban on ‘conversion therapy’ in respect of gender identity are seeking to ensure a state mandate for a solely affirmative model of treatment of those presenting with gender dysphoria. That model is predicated on an expectation of interference. It is, if not unique, a peculiar treatment model that accepts, with total incuriosity, a patient’s self-diagnosis. Its foundation is an acceptance that the person has indeed been ‘born in the wrong body’, and must be recognised as the sex they believe themselves to be, without exploration of why they feel that way, or whether social norms are the real problem. It anticipates, and drives the individual towards, medical intervention, in the form of puberty blockers and cross-sex hormones. It frequently leads to irreversible surgical intervention in the form of elective mastectomy of healthy breasts, phalloplasty, the creation of a neovagina, breast implants, facial feminisation and so on.

Sexual orientation conversion therapy is a harmful form of interference, driven by the desire to subjugate reality to a subjective belief; a ban is a prohibition on that interference and the prevention of consequential harm. By stark contrast, a ban on anything other than the affirmative model of gender identity treatment would compel interference with objective fact in order to realise a subjective belief. It is precisely the irreconcilable nature of these two creatures which the misuse of language is designed to conceal.

The foreseeable legal and practical difficulties with the introduction of any legislation made on the basis of this conflation should give long pause for thought. For most individuals (ie: those who are not bisexual or asexual), the process of transition between a male and a female ‘identity’ will amount to a conversion of that person’s sexual orientation. This is not meaningless, or trivial; it can be seen in action in Iran, where gender transition is used as a ‘cure’ for homosexuality. The fact that the tenets of gender identity ideology are both embraced and legally enforced by a country with as poor a record on freedoms and human rights logically calls into question the endlessly repeated claim that the notion of gender identity is inherently progressive or liberal. It is not.

The law governs our obligations and restrictions, and must be expressed with absolute clarity. It must be readily intelligible to those not burdened with legal expertise and, in its prohibitive aspects, should never seek to rely on a presumed consensus in order to operate properly. A statutory prohibition which elides the fact of sexual orientation with the belief of gender identity is freighted with confusion, internal contradiction and the wholly predictable possibility of long, costly, distressing litigation whose only beneficiaries will be lawyers.

The battle lines have been drawn across the bodies of children. Proponents of the affirmative model advocate a pathway which enjoys the support of little reliable or objective evidence. They brook no contradiction that a child’s preference for toys, clothing and behaviour traditionally attributed to the opposite sex is a proper diagnostic basis for serious, life changing and sometimes irreversible treatment.

With a grey, depressing ineluctability, those juvenile bodies are overwhelmingly female. The recent spike in young people identifying as transgender most markedly affects teenaged girls, already a particularly vulnerable cohort. On the basis of information from the Tavistock NHS Clinic, referrals of young people have increased from 72 in 2009 to 2,590 in 2018, although this cannot represent the overall numbers because so little data is available from private clinics. The paucity of reliable data in this area (including the numbers of people identifying as trans, engagement in any process of transition, medical intervention – whether prescribed or not, surgical intervention, desisting and de-transition) should be treated as a cause for the greatest concern and caution, rather than a basis for legally enforcing an ‘affirmative’ approach.

The proposed restrictions on clinical and therapeutic practitioners will be draconian: treatment to address gender dysphoria will be confined to those who believe in gender identity and are prepared to relinquish any critical enquiry into their patient’s reported difficulties. The enforcement of an exclusively affirmative approach ignores a number of factors which are, or may be, highly relevant in assessing a patient’s suitability for medical/surgical treatment. Girls with neuro-diverse conditions such as autism, ADHD and ADD frequently suffer from profound discomfort with the social behaviour and expectations traditionally regarded as ‘feminine’; compounding this, they are frequently diagnosed late, or missed entirely because the prevalent diagnostic model is still based on male symptoms.

The high incidence of eating disorders and self-harm amongst teenaged girls cannot be ignored when an assessment is being made of a patient’s sense of alienation from their own body. Peer pressure (particularly in the context of a heavy reliance on social media), and social contagion are also highly relevant factors which need a great deal more scrutiny before the purely affirmative approach can be regarded as safe. The decision-making process for people under 25 should also be firmly placed in the context of their neurodevelopment; the frontal cortex of the brain is not fully developed until the early-mid 20s, leaving young people vulnerable to a limited capacity for consequential thought. Decisions which are both life-changing and potentially irreversible need to be taken with the greatest of care and the most reliable and balanced information possible. The affirmative-only approach not only falls far short of fulfilling this need, it advocates away from doing so.

The same voices to call for the affirmative-only approach are swift to dismiss the experiences of those who desist or de-transition as statistically insignificant. It is an easy claim to make, but difficult to back up with anything other than rhetoric. Those who detransition often don’t return to the therapists and doctors who originally treated their dysphoria. Because the experience of transition is treated by proponents of the affirmative model exclusively as a cause for celebration, and is heavily defended from any more enquiring approach, it is likely that vulnerable children and teenagers will feel a powerful reluctance to ‘come out’ about their change of heart, and an even greater reluctance to bring that decision to someone in authority who so clearly advocates for transition as being overwhelmingly beneficial in its nature. Consequently, the gaps in gathering crucial data about those who de-transition or desist are too significant to make any reliable assessment. Enforcing a model when the rates of success and failure are entirely unknown, and the metric of success and failure remains both nebulous and ideologically driven, is reckless in the extreme.