This is the text of my talk at the Middle Temple LGBTQ+ Forum Inaugural Annual Dinner last night (unchanged apart from the addition of some links).
How do we arrive at good law making a new criminal offence? Robin says good law needs legal certainty, clarity, enforceability, practicability. But those all assume an affirmative answer to the prior question – do we need the proposed new law at all? I don’t share that assumption, so I have a rival four things I say we need:
- evidence of harm
- a convincing case that the harm is amenable to legislation
- clear proposals
- open public debate
Starting with the last: debate.
The proposed ban is one aspect of what we can call the “gender wars” where there has been a strong pressure for “no debate”. Those who have tried have been shouted down, no-platformed, compared to Nazis, and hounded out of their jobs.
Debate informed by evidence is how we test ideas and proposals: if they’re any good, they’ll stand up to being poked with pointed questions. If they don’t stand up to being poked, they’re no good. This idea underpins our whole profession.
So this evening’s discussion is an encouraging development. To find the CEO of Stonewall on a platform with me signals a welcome change of heart. Thank you Nancy – we need to have this conversation.
Evidence of harm
The evidence-base for this proposal is thin.
The government has made the proposal for law without waiting for Dr Hillary Cass to complete her independent review of gender identity services for young people. Instead it relies on 30 interviews and a review of existing studies by academics at Coventry University.
The Coventry review admits that for the UK, it only found 2 studies relating to gay conversion therapy, and none on gender identity.
The consultation also relies on the government’s 2017 LGBT survey where 5% of respondents said they’d been offered conversion therapy, and 2% that they’d received it.
But if you look at that survey itself, you find this killer line:
We did not provide a definition of conversion therapy in the survey
- We don’t know how many of those 2% were lesbians who were recording social pressure to accept trans-identifying males as potential sexual partners.
- We don’t know how many were teenagers whose parents or therapists counselled watchful waiting in place of treatment with puberty-blockers.
- We don’t know how many were gender non-conforming children whose homophobic parents or peers had suggested to them that they must be trans.
- We don’t even know the sex of the respondents, because the survey didn’t ask.
We don’t have a clue what these responses mean: they’re not evidence of anything.
The consultation admits that there’s no real evidence of harm. It says:
While the exact prevalence of conversion therapy is challenging to establish, it is the view of the government that one incident of conversion therapy is too many.
In other words, the government is saying – we just don’t know whether this is a real problem that needs legislation, but we’re going to legislate anyway.
Case for legislation
Even if there were evidence of harm, not every harm can be put right with legislation; sometimes the cure is worse than the disease. You’d hope a proposal for legislation would address cost and benefit.
But this consultation doesn’t get to that point. Having failed entirely to identify a credibly-evidenced or even defined kind of harm that is its target, it can’t hope to explain why criminalising it is a good idea – and it doesn’t even try.
Last element – clear proposal
The government’s core proposal focuses on children and vulnerable adults, and criminalises a talking therapy delivered
with the intention of changing their sexual orientation or changing them to or from being transgender
This muddles two different things.
Being gay or bisexual isn’t a medical condition. It doesn’t require treatment. We can all agree that practices that try to change people’s sexual orientation are wrong and futile.
Gender dysphoria sufficiently severe to make you seek radical alterations to your healthy body undoubtedly is a medical condition. There are two clues. The word: dysphoria – profound unease or dissatisfaction. And the demand for medical treatment.
Let’s run a thought experiment. Say you’re a therapist. You see an unhappy 10-year-old girl. She wears baggy clothes, and has short hair. She says she’s sure she’s a boy really. She hates her developing breasts, and dreads the onset of periods. She despises all things “girly.”
Your duty as a therapist is clear. You need to get to the bottom of the child’s distress. Is she struggling to come to terms with the beginnings of same-sex attraction in a homophobic environment? Is she traumatised by exposure to porn? Have her parents let slip that they’d have preferred a son? Has she suffered abuse or other trauma? The heart-breaking stories of detransitioners should be enough to make it clear how important it is to let you do that duty carefully and conscientiously.
The proposed law contains a safeguard for therapists treating people questioning their gender identity. But it won’t help you: this child isn’t questioning, she’s telling you she’s sure. So the government’s proposals threaten to lock you up for doing what your conscience and your professional duty both tell you you must do.
Gender non-conforming children often grow up to be gay adults. The bitter irony of this proposal is that it entrenches the idea that people can escape being gay by changing sex. This is a lie. Everyone in this room knows that it’s impossible for a human being literally to change sex. But the attempt will exact a terrible price in painful surgeries, loss of sexual function, sterility, and other complications.
This is the most savage conversion therapy ever invented.
It’s homophobia that creates the conditions for this conversion therapy: homophobia that tells gay children they are defective. Many of us here grew up in a profoundly homophobic society. Clause 28 was passed in 1988, when I was 22 and my elder brother was 23. My brother was gay. He killed himself on 13 January 1989. I believe that he died, in part, from the toxic effects of homophobia. Those problems of homophobic bullying haven’t gone away. There is still work to be done, and this is Stonewall’s proper mission.
Conclusion: the Denton’s playbook
In 2019, law firm Dentons and others published a guide to campaigning strategy for gender self ID. The report says:
In Ireland, Denmark and Norway, changes to the law on legal gender recognition were put through at the same time as other more popular reforms such as marriage equality legislation. This provided a veil of protection, particularly in Ireland, where marriage equality was strongly supported, but gender identity remained a more difficult issue to win public support for.Only Adults? Good Practices in Legal Gender Recognition for Youth, p.20
That is exactly what we see here. This is a proposal to criminalise something everyone agrees is bad – gay conversion therapy – but to use that as a veil of protection whose real purpose is to criminalise what should be routine responsible therapeutic work.
This is fundamentally dishonest. It is certainly not the path to good law.