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.