Posted: 30/06/2022
According to the British Psychological Society, conversion therapy tries to change a person’s sexual orientation or gender identity. This can include pseudoscientific counselling, prayers and ingesting ‘purifying’ substances but also extreme practices such as exorcism, ‘corrective’ rape, physical violence and deprivation of food and/or financial support.
Amongst the various aims set out in the Queen’s Speech this year are plans to ban conversion therapy aimed at changing a person’s sexual orientation. However, the government has decided that, due to the complexity of the issues involved, transgender conversion therapy will not be included in the ban.
The exclusion of transgender people from the proposed ban has caused public upset and a petition, garnering around 150,000 signatures, was recently set up to ensure transgender people are fully protected under any conversion therapy ban.
A well-attended parliamentary debate held on 13 June 2022 discussed the issue. The main concern about banning transgender conversion therapy that arose was it could inadvertently prevent people with gender dysphoria from seeking legitimate support.
This is linked to the concern that it could make family members, healthcare professionals and religious institutions worried about having conversations with people with gender dysphoria in case they are penalised or even prosecuted in the future for engaging in conversion therapy activities. For example, a parent of a child with gender dysphoria, may fear discussing and/or exploring the topic with their child in case this is perceived as a form of conversion practice in and of itself.
However, tightly drafted legislation including a detailed list of what is/is not caught by the ban could clarify this and allay this fear. The example of a parent discussing gender identity with their child would not be discouraged or penalised. A full or partial ban has been achieved in other countries such as Canada and Germany, which demonstrates that it is achievable.
The British Psychological Society and other professional bodies, including NHS England and the Royal College of Psychiatrists, believe that conversion therapy is unethical and potentially harmful. MPs speaking at the parliamentary debate called conversion therapy “abhorrent” and “abuse”. As such, it is hard to understand why a practice which is acknowledged by the majority as abhorrent can be banned for some and not for others. By deliberately excluding transgender people from the ban, it arguably sends out a message that such practices are acceptable against that community.
Parents can face complex legal issues in relation to treatment of a transgender child or a child with gender dysphoria. While developments in the law surrounding transgender people affect the transgender community as a whole, the potential impact on children in this community is particularly striking as children often lack a voice and the legal status to protect themselves.
For example, in Tavistock v Bel [2020] the High Court decided that it was ‘highly unlikely’ that a child aged 13 or under would be able to give informed consent to taking puberty blockers, and it was ‘very doubtful’ that a 14 or 15 year old child would fully understand the implications of such treatment. However, in reality this issue is not clear cut. In the UK, children under 16 can consent to their own medical treatment if they are believed to be Gillick competent; ie if they have enough intelligence, competence and understanding to appreciate what is involved in the treatment. The decision is very fact specific. It is difficult to see why the same principle would not apply to treatment for gender dysphoria. The High Court decision in Tavistock v Bell imposed a serious restriction on the rights of transgender children and their ability to access treatment.
The Court of Appeal’s decision in the case was welcomed by many as it held it was inappropriate for the High Court to issue this guidance and overturned its decision. Doctors can now exercise their judgement on whether a child under 16 has capacity to consent to puberty blockers.
Children are heavily influenced by the adults in their life such as their parents. Under current UK law, parents can decide that their child should undergo certain forms of conversion practices. Extreme practices like ‘corrective’ rape and physical violence are not tolerated by the family courts or criminal courts and prompt the immediate involvement of the police and local authority. However, more subtle conversion practices like prayers and pseudoscientific counselling are not prohibited. These practices can be very detrimental to a child’s psychiatric health and sense of identity, yet the law in its current form does not protect children from this risk.
If there is disagreement between parents on how to approach their child’s gender dysphoria, for example, if one parent wishes the child to have pseudoscientific counselling, the current legal status quo would leave the child vulnerable. Where parents have separated, the risk is higher: the child could be subjected to pseudoscientific counselling when they are in the care of one parent, while the other parent does not agree that it is in the child’s best interests and does not allow it.
In the event of a disagreement between the parents, they can engage in mediation as a first step unless the situation requires urgent court intervention. If an agreement cannot be reached, a parent can apply for a specific issue order, or a prohibited steps order to decide whether the child can or cannot undergo some form of conversion therapy. The court would use its judicial discretion to decide what is in the best interests of the child which inevitably means that the outcome is not guaranteed. This would expose children to the risk of some forms of conversion therapy. Banning transgender conversion therapy would remove this risk.
Conversion therapy is widely seen as an abhorrent and damaging practice in our modern society. A person should not be discriminated against because of their gender identity. The law needs to keep pace with these views otherwise it fails to protect the transgender community, including transgender children.
Despite the limitations of the proposed ban, it is positive to see the growing appetite for change. Many attendees at the parliamentary debate supported banning transgender conversion therapy and it will be interesting to see whether this will persuade the government to include protections for transgender people.
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