Conversion therapy ban – a legal opinion

legal

Keira Bell and Transgender Trend asked Jeremy Hyam QC for a legal opinion on the government’s proposed legislative ban on conversion therapy for ‘gender identity’ particularly in respect of children and young people. We include the judgment in full here.

Jeremy Hyam found there was a “substantial risk of unlawfulness” in a legislative ban on conversion therapy for ‘gender identity’ due to the wide and contested meaning of the term, the lack of a reliable scientific or evidential basis to justify a ban and incompatibility with the right of parents to choose an appropriate treatment for their child in line with their beliefs (such as ‘watchful waiting’).

This judgment is also available as a pdf.

Introduction

  1. I am asked by Keira Bell and Transgender Trend to advise on whether a proposed
    legislative prohibition of “conversion therapy” for gender identity is likely to be
    unlawful specifically in terms of :
    (i) The provision of treatment for children by fettering the ability of
    clinicians to provide appropriate therapeutic input;
    (ii) The ability of parents to help their children navigate the
    development of their personal identity;
    (iii) The rights of children to be protected from inadequate therapeutic
    services and experimental medical treatment;

Summary of Advice

  1. For the reasons set out below, it is my view that any proposed UK legislation which
    seeks to ban conversion therapy in respect of children and gender identity is likely to
    give rise to a substantial risk of unlawfulness because of incompatibility with rights
    protected under Article 8, 9, 10, 11 and possibly also Article 2 of the First Protocol on
    the European Convention on Human Rights.
  2. The risk of unlawfulness may be mitigated by exceptions or exemptions from the
    ban, but in general terms any proposed legislation that includes a proscription of any
    attempt to cancel, change or suppress ‘gender identity’ in terms similar to that
    proposed, in say, the Australian Capital Territory definition below, is likely to be
    unlawful since it would deny to a cohort of consenting patients treatments such as “watch and wait” aimed at allowing the natural pubertal process in children to take effect and allow natural desistance of the underlying condition.
  1. Moreover, from what I have seen from my instructions it is far from clear that such a
    wide proscription has any firm scientific or evidential basis such that any such
    legislation would be justified as proportionate in meeting a pressing social need.
    There is a justifiable concern that the motivation for the inclusion of ‘gender identity’
    in both the MOU 2017 and the proposed draft legislation is grounded in a political
    viewpoint of gender identity not on scientific evidence of harm caused by such
    therapy.

Background to the concerns

5. Keira Bell is one of the two Claimants in the current litigation against the Tavistock
clinic. She underwent gender reassignment treatment at the Tavistock but has
subsequently regretted undergoing such treatment and brought proceedings in the
High Court to ventilate her concerns. These cover the manner in which she was
treated, in particular concerns over the reliance on her ‘consent’ while she was still at
a vulnerable and impressionable age and suffering not simply from gender
dysphoria but other co-morbid conditions as well which she says were never fully
explored.

6. Transgender Trend is a UK organisation advocating for evidence-based care of
gender dysphoric children and science-based teaching in schools. It is an interested
party in those proceedings.

7. A summary of the concerns raised by those instructing are that:-
(i) there is an inadequate evidence base from which to ban conversion
therapy;
(ii) a ban would be more harmful than the problem it seeks to remedy

(iii) there is no agreed approach to gender identity per se, with many people disavowing they have one.

(iv) there is dispute within both the Royal College of Psychiatrists and the British Psychological Society over the definition of conversion therapy. In particular, the inclusion of “gender identity” in any definition.

Proposed legislation to ban conversion therapy

  1. I have been provided for the purpose of this advice with a table of actual or proposed
    legislation in other jurisdictions where “bans” on CT have been sought to be
    imposed. This legislation varies, both in its definition of CT and the extent to which
    exemptions are made to the ban. I do not go through each and every one of those
    definitions but identify four for the purposes of this advice, which show how,
    through a process of definition, scope of application and exceptions or exemptions
    the proposed or actual ban is achieved.

Australian Capital Territory

  1. The Australian Capital Territory definition is as follows:
    “In this Act: sexuality or gender identity conversion practice means a treatment or
    other practice the purpose, or purported purpose, of which is to change a person’s
    sexuality or gender identity”
  2. The exceptions:
    “However, sexuality or gender identity conversion practice does not include a
    practice the purpose of which is to—
    (a) assist a person who is undergoing a gender transition; or
    (b) assist a person who is considering undergoing a gender transition; or
    (c) assist a person to express their gender identity; or
    (d) provide acceptance, support or understanding of a person; or (e) facilitate a
    person’s coping skills, social support or identity exploration and development”
  3. I understand this legislation to be of broad application, including whether or not the
    recipient consents to the practice.

Queensland Australia

  1. The Queensland Australia definition is:
    “Conversion therapy is a treatment or other practice that attempts to change or
    suppress a person’s sexual orientation or gender identity.”
    Examples—
    • conditioning techniques such as aversion therapy, psychoanalysis and
    hypnotherapy that aim to change or suppress a person’s sexual orientation or gender
    identity
    • other clinical interventions, including counselling, that encourage a person to
    change or suppress the person’s sexual orientation or gender identity
    • group activities that aim to change or suppress a person’s sexual orientation or
    gender identity
  2. Exceptions to that definition are:
    “Conversion therapy does not include a practice that:
    (a) assists a person who is undergoing a gender transition; or
    (b) assists a person who is considering undergoing a gender transition; or
    (c) assists a person to express their gender identity; or
    (d) provides acceptance, support and understanding of a person; or
    (e) facilitates a person’s coping skills, social support and identity exploration and
    development.
    Also, conversion therapy does not include a practice by a health service provider that,
    in the provider’s reasonable professional judgment, is necessary to—
    (a) provide a health service in a manner that is safe and appropriate; or
    (b) comply with the provider’s legal or professional obligations.”
  1. My understanding is that the scope of the legislation limits the application to health
    service providers only.

Canada Nova Scotia

  1. In Canada Nova Scotia, the term “change effort” rather than conversation therapy is
    is used, thus:
    “The purpose of this Act is to protect Nova Scotia youth from damaging efforts to
    change their sexual orientation or gender identity.
    In this Act, (a) “change effort” means any counselling, behaviour modification
    techniques, administration or prescription of medication or any other purported
    treatment, service or tactic used with the objective of changing a person’s sexual
    orientation or gender identity
    ;

16. The relevant exceptions to that legislation read:-
“Subsection (1) does not apply where the person receiving the services is over the age
of sixteen years, capable of consenting to the services and consents to the services. […]
For greater certainty, the services and change efforts referred to in Sections 4 and 5,
subsection 6(1) and subsection 7(1) do not include (a) services that provide
acceptance, support or understanding of a resident or the facilitation of a resident’s
coping, social support or identity exploration or development; and (b) gender-confirming surgery or any services related to gender-confirming surgery

17. It may be noted that the Nova Scotia legislation only applies to minors (I presume
because they not able to consent) and in terms of scope it applies to regulated health
professionals or anyone ‘in a position of trust or authority towards a young person”.

Malta

18. The Maltese definition (proposed) is as follows
“In this Act, unless the context otherwise requires: “conversion practices” refers to
any treatment, practice or sustained effort that aims to change, repress and, or
eliminate a person’s sexual orientation, gender identity and, or gender expression; “

19. The exceptions are:
“Such practices do not include –
(a) any services and, or interventions related to the exploration and, or free
development of a person and, or affirmation of one’s identity with regard to one or
more of the characteristics being affirmed by this Act, through counselling,
psychotherapeutic services and, or similar services; or
(b) any healthcare service related to the free development and, or affirmation of one’s
gender identity and, or gender expression of a person; and, or
(c) any healthcare service related to the treatment of a mental disorder
;

  1. In terms of scope the prohibition applies to ‘professionals’ – broadly defined to
    include counsellors, medical practitioners, youth workers, etc. conducting conversion
    therapy, regardless of whether the services are paid for or not. It only applies to
    vulnerable individuals (including minors) or where someone has been coerced.
    There is a prohibition of advertising conversion therapy practices.

General observations on actual or proposed legislation

  1. In general terms the common features of the proposed or actual legislation
    summarised above are:
    (a) a definition of “conversion therapy” or ‘change effort’ which includes
    gender identity as well as sexual orientation. Indeed a common general
    definition would appear to be on the following lines: “conversion therapy
    means any treatment or practice that seeks to change or suppress a person’s
    sexual orientation or gender identity”
    .
    b ) limitations on scope, which can include a limitation to vulnerable persons
    or minors only – the rationale being presumably that over 16’s and non-vulnerable persons have the capacity to consent to treatment or therapy
    of their choosing and should not have it prohibited by legislation.
    (c) while prohibiting therapy which attempts to change, suppress or repress
    a person’s gender, any therapy or surgery which confirms self-identified
    gender, (e.g. affirmation, social transition, puberty blockers, cross sex
    hormones, gender reassignment surgery) is excepted from the
    prohibition.

Background to Conversion Therapy

  1. In order to understand these definitions when applied to the UK context, I set out
    briefly below what I understand to be the background to the proposed ban.
  2. “Conversion Therapy” at least in its initial use, refers to scientific / pseudoscientific
    practices that are deployed to attempt to change and individual’s sexual orientation –
    historically from homosexuality or bisexuality to heterosexuality using
    psychological, physical or spiritual interventions. Invasive techniques that have been
    historically associated with CT include ice-pick lobotomies; chemical castration
    alongside hormonal treatment and clinically aversive treatments such as ‘electro-shock therapy’. The term ‘reparative therapy’ is sometimes deployed as a synonym.

24. More recently the phrase has come to be used to apply to practices concerning
Gender Identity although the evidence of what such practices consist in is sparse.

25. In particular, within the UK, a Memorandum of Understanding (MOU) (Version 2 –
2017) exists that has been signed by the NHS, regulatory bodies and counselling
associations stating that ‘conversion therapy in relation to gender identity and sexual
orientation (including asexuality) is unethical and potentially harmful
’. The relevant
introductory text to the Memorandum seeks to explain the terms it uses to make this
wide-ranging statement as follows:-
“Purpose and Overarching Position:
1 The primary purpose of this Memorandum of Understanding (MoU) is the protection of the
public through a commitment to ending the practice of ‘conversion therapy’ in the UK.

2 For the purposes of this document ’conversion therapy’ is an umbrella term for a
therapeutic approach, or any model or individual viewpoint that demonstrates an assumption
that any sexual orientation or gender identity is inherently preferable to any other, and which
attempts to bring about a change of sexual orientation or gender identity, or seeks to suppress
an individual’s expression of sexual orientation or gender identity on that basis. These efforts
are sometimes referred to by terms including, but not limited to, ‘reparative therapy’, ‘gay
cure therapy’, or ‘sexual orientation and gender identity change efforts’, and sometimes may
be covertly practised under the guise of mainstream practice without being named.
i) For the purpose of this document, 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.
ii) For the purposes of this document, gender identity is interpreted broadly to
include all varieties of binary (male or female), nonbinary and gender fluid
identities.

3 Signatory organisations agree that the practice of conversion therapy, whether in relation
to sexual orientation or gender identity, is unethical and potentially harmful.

4 For people who are unhappy about their sexual orientation or their gender identity, there
may be grounds for exploring therapeutic options to help them live more comfortably with it,
reduce their distress and reach a greater degree of self-acceptance. Some people may benefit
from the support of psychotherapy and counselling to help them manage unhappiness and to
clarify their sense of themselves. Clients make healthy choices when they understand
themselves better.

  1. This 2017 MOU may usefully be compared with the previous 2015 version which
    referred only to ‘sexual orientation’ and did not include any reference to gender
    identity. The relevant similar text without the addition of “or gender identity” (only
    six years old) read as follows:-
    “ There has been a long history of medical and psychological professions seeing homosexuality
    as a form of arrested sexual development. Up until 1974 the American Psychiatric
    Association classified homosexuality as a mental illness. In 1992 the World Health
    Organisation declassified homosexuality as a mental disorder.
    Awareness of the prevalence of conversion therapy in the UK grew following the publication
    of research in 2009 which revealed that 1 in 6 psychological therapists had engaged clients in
    efforts to change their sexual orientation.
    Several professional bodies have reviewed the evidence around conversion therapy and
    concluded there is no good evidence that it works, while there is evidence that it has the
    potential to cause harm.

    ‘Conversion therapy’ is the umbrella term for a type of talking therapy or activity which
    attempts to change sexual orientation or reduce attraction to others of the same sex.
    It is also sometimes called ‘reparative’ or ‘gay cure’ therapy.
    The purpose of this memorandum of understanding (MoU) is to set out an agreed framework
    for activities by the parties concerned to help address the issues raised by the practice of
    conversion therapy in the UK. The MoU is informed by a position that efforts to try to
    change or alter sexual orientation through psychological therapies are unethical and
    potentially harmful. This position is not intended to discourage clients with conflicted
    feelings around sexuality seeking help. Psychological therapists routinely work with people
    who are struggling with inner conflict. ‘For people who are unhappy about their sexual
    orientation – whether heterosexual, homosexual or bisexual – there may be grounds
    for exploring therapeutic options to help them live more comfortably with it, reduce
    their distress and reach a greater degree of acceptance of their sexual orientation”.
  1. The inclusion of “gender identity” as being a concept comparable to “sexual orientation
    and deserving of an equivalent approach in respect of prohibiting “conversion
    therapy
    ” in the 2017 MOU and more widely, was and remains highly controversial –
    especially in light of the decision in R(Bell) and another v Tavistock. [2012] PTSR 593
    which underscores that children under 16 are unlikely to be able to understand the
    ramifications of some gender conversion procedures, such as puberty blockers
    followed by cross sex hormones. This is particularly important as can be seen from
    the above examples of actual or proposed legislation in other jurisdictions where the
    focus of a ban is directed at the treatment of minors, or vulnerable persons. The
    implication of the Divisional Court’s ruling is that persons under 16, are unlikely to
    be able to give consent to change effort/conversion therapy which confirms self-identified gender where that does not correspond with their biological sex because of
    the life-long consequences and the experimental nature of the treatment.
  1. The depth of the controversy may be seen from a letter written in June 2020, by a
    number of eminent psychologists written to the Chief Executive of the British
    Psychological Society about the Guidelines for Psychologists Working with Gender
    Sexuality and Relationship Diversity (which are expressly referred to and required to
    be read alongside the 2017 MOU1 [1]) making the points that:-
    (i) the Guidelines/MOU only represents a trans-affirmative ideological
    position and does not rehearse competing views from, for example, gender
    critical feminism [2] or versions of scientific realism;
    (ii) the singular focus on gender affirmation implies that psychologists
    disagreeing with it are in some way ethically deficient in their practice
    (iii) the document is dominated by assertion and moral injunction but does
    not address the evidence for (or its lack) for gender affirmative practices.
    (iv) It is not clear why gender, sexuality and relationship diversity are being
    discussed together when they are separate concepts with no self-evident
    connection from a psychological perspective.
    (v) the guidance may inhibit psychologists from raising concerns and giving
    appropriate treatment tailored to the individual.

29. All these criticisms apply equally to a definition of conversion therapy which is to be
found in the Royal College of Psychiatrists Position Statement: Supporting
Transgender and Gender-Diverse People as follows
:-
“The term ‘conversion therapy’ has also been used to describe treatments for transgender
people that aim to suppress or divert their gender identity – i.e. to make them cisgender – that
is exclusively identified with the sex assigned to them at birth. Conversion therapies may
draw from treatment principles established for other purposes, for example psychoanalytic or
behaviour therapy. They may include barriers to gender-affirming medical and psychological
treatments. There is no scientific support for use of treatments in such a way and such
applications are widely regarded as unacceptable.”

30. More fundamentally there is a very real concern expressed by those instructing as to
meaning and scope of the concept of ‘gender identity’. It is not defined in the MOU 2017. Rather it is simply stated that there should be broad interpretation of the
concept.

31. In understanding its meaning, some light is shone on the meaning of gender identity
by first looking at the condition of gender dysphoria, and then on how gender
identity has been dealt with by the courts.

Gender Dysphoria

32. Closely connected to the concept of gender identity is the condition of gender
dysphoria. Gender dysphoria was, but is no longer recognised as a mental illness.
Rather it is defined as follows in the Diagnostic and Statistical Manual of Mental
Disorders (DSM-5) which provides for one overarching diagnosis of gender
dysphoria with separate specific criteria for children and for adolescents and adults:
“In adolescents and adults gender dysphoria diagnosis involves a difference between
one’s experienced gender and assigned gender, and significant distress or problems
functioning. It lasts at least six months and is shown by at least two of the following
:

  1. A marked incongruence between one’s experienced / expressed gender and
    primary and / or secondary sex characteristics

2. A strong desire to be rid of one’s primary and / or secondary sex
characteristics

3. A strong desire for the primary and / or secondary sex characteristics of the
other gender

4. A strong desire to be of the other gender

5. A strong desire to be treated as the other gender

6. A strong conviction that one has the typical feelings and reactions of the
other gender.


In children, gender dysphoria diagnosis involves at least six of the following and an
associated significant distress or impairment in function, lasting at least six months:

  1. A strong desire to be of the other gender or an insistence that one is the
    other gender

2. A strong preference for wearing clothes typical of the other gender

3. A strong preference for cross-gender roles in make-believe play or fantasy
play

4. A strong preference for toys, games or activities stereotypically used or
engaged in by the other gender

5. A strong preference for playmates of the other gender

6. A strong rejection of toys, games and activities typical of one’s assigned
gender

7. A strong dislike of one’s sexual anatomy

8. A strong desire for the physical sex characteristics that match one’s
experienced gender.”

  1. It may be seen that in this definition of gender dysphoria, gender identity is
    expressed in binary terms e.g. “the other gender”, and is explained by a comparison
    between ‘experienced gender’ (a subjective and personal experience) and biological
    primary or secondary characteristics.
  2. But even this understanding of gender dysphoria itself is far from uncontroversial.
    As was pointed out by one of the Claimants’ key witnesses in the Tavistock case,
    Professor Levine, there are at least three very different ways of understanding
    gender dysphoria:
    a. A curable illness that causes suffering, to be treated through medical
    intervention. The difficulty with this conceptualisation is there is no known
    biological cause of gender dysphoria and so it is a psychiatric rather than a
    physical condition. This means that “since doctors gave up performing lobotomies
    to treat psychiatric disorders many decades ago, gender dysphoria is the only
    psychiatric condition that doctors ultimately treat by surgery.

b. A developmental paradigm, in which gender dysphoria is a manifestation of
various underlying issues and events in the child’s life, to be treated primarily
through psychological therapy.
c. An issue of sexual minority rights, where if a child claims to ‘be’ the opposite
gender to their birth sex, any response other than agreement and affirmation
by society and medical professionals is a violation of the individual’s civil
right to self-expression. The difficulty with this conceptualisation for the
purposes of evidence-based medicine is that it is not a medical or scientific
understanding at all, but a political one.

  1. An additional feature of the scientific evidence in relation to gender dysphoria is
    evidence as to its persistence and that in the majority of cases gender dysphoria
    desists over time and particularly during puberty. According to DSM5: “in natal
    males, persistence of [gender dysphoria] has ranged from 2.2% to 30%. In natal females,
    persistence has ranged from 12% to 50%.

36. Thus it is a natural feature of the condition of gender dysphoria that it may desist
over time. There is a concern that treatment such as GnRHa (puberty blockers) may
in fact increase persistence rather than allow the natural pubertal process to cause
the gender dysphoria to alleviate. The point is made by the authors Brik et al :
Archives of Sexual Behavior (2020) 49:2611-2618 as follows:-
“Some state that adolescents may be unable to make far-reaching decisions at a
young age, especially in the presence of comorbid psychiatric conditions, which are
common among youth with gender dysphoria (Korte et al., 2008; Laidlaw et al.,
2019; Vrouenraets et al., 2015). Furthermore, gender identity develops and may
change during adolescence. Concerns have been raised that the use of GnRHa
may infuence this process and might increase the likelihood of persistence
of gender dysphoria
(Korte et al., 2008; Laidlaw et al., 2019; Richards et al.,
2019; Stein, 2012; Vrouenraets et al., 2015). It is unknown if the use of GnRHa
prevents resolution of gender dysphoria (Korte et al., 2008). Many prepubertal
children with gender dysphoria no longer experience gender dysphoria in
adolescence, and the experience of romantic and sexual attraction is
thought to play an important role in this process
(Steensma, Biemond, de
Boer, & Cohen-Kettenis, 2011). Some may come to understand themselves as
homosexual or bisexual (Steensma et al., 2011). GnRHa, by blocking sexual
development, might interfere with this process (Korte et al., 2008). Another
concern is that although GnRHa treatment is to be used as an extended
diagnostic phase, the start of it may lead the adolescents and parents to
assume that transgender outcome is the only possible outcome which may
prevent exploration of other possibilities
(Leibowitz & de Vries, 2016)

(emphasis emboldened)

Gender Identity in law

Against this backdrop I turn to how the concept of gender identity is most commonly
used in the UK and Strasbourg Jurisprudence. Essentially, it is used as a relational
concept which describes an individual’s self-perception in relation to society. It
relates to the social attributes of sex, or those social characteristics generally
associated with being female or male [3] A helpful explanation of Gender Identity used
in this sense is given at first instance in Elan- Cane by Jeremy Baker J.

Although at one time the terms “sex” and “gender” were used interchangeably, (and
confusingly still are on occasions), due to an increased understanding of the
importance of psychological factors, (albeit these may be due to differences in the
brain’s anatomy), sex is now more properly understood to refer to an individual’s
physical characteristics, including chromosomal, gonadal and genital features,
whereas gender is used to refer to the individual’s self-perception.

The established concepts of both sex and gender are based upon a binary
differentiation between male and female. Certainly, as the defendant points out, this is
the basis for current UK legislation relating to gender, hence the effect of a
recognition certificate under the Gender Recognition Act 2004 enables the individual
to acquire for all purposes either the male or female gender
.

Of course, the notion of an individual not conforming exclusively to one or other of
the binary categories of male or female is of ancient lineage, going back at least to the
Greeks and the figure of Hermaphroditus; albeit this was based upon incongruency
between the individual’s physical sexual characteristics, which is now normally
referred to as “intersex”. More recently however, since the recognition of the
importance of psychological factors influencing gender, it has become clear that there
may also be incongruency between an individual’s physical characteristics and their
psychological ones.

The most common and certainly well-known form of this latter type of incongruency
has become known as transsexuality or transgenderism, where the individual’s
physical sexual characteristics oppose that of their psychological ones; for which
medical assistance has been available for some time, and in respect of which there is
now the ability to obtain full legal recognition under the Gender Recognition Act 2004. Although this has largely resolved the legal difficulties faced by this group, it is
still based upon the binary concept of gender, with the individual becoming
recognised as being either male or female, usually in accordance with their
psychological gender identity.

38. Thus whatever its precise description (i.e. whether viewed in a binary sense, or a
wider, more fluid sense) gender identity is undoubtedly an aspect of personal
identity and as such is protected by Article 8 of the ECHR. As the Court of Appeal in
Elan-Cane held:
There can be little more central to a citizen’s private life than gender, whatever that gender
may or may not be. No-one has suggested (nor could they) that the Appellant has no right to
live as a non-binary, or more particularly as a non-gendered, person. Indeed, a gender
identity chosen as it has been here, achieved or realised through successive episodes of major
surgery and lived through decades of scepticism, indifference and sometimes hostility must be
taken to be absolutely central to the person’s private life. It is the distinguishing feature of
this Appellant’s private life.

39. Thus in legal terms, the safeguarding and preservation of gender identity and the
ability of the individual to understand and determine that identity are fundamental
aspects of private life, and Article 8 protects against interferences by the state with
aspects of personal identity. These include for example, an individual’s right to
determine his or her dress or appearance: –McFeeley v United Kingdom (1980) 30 EHRR
161, ECtHR; Sutter v Switzerland (1984) 6 EHRR 272, ECtHR. Being a qualified right
the State has a margin of appreciation in respect to restrictions on such a right which
are deemed to be necessary in a democratic society in the interests of public safety,
for the protection of public order, health or morals, or for the protection of the rights
and freedoms of others.

40. Examples from the European Court of Human Rights are cases where the Court has
held that failing to provide for the full recognition of post-operative reassigned
gender identity is a breach of Article 8 and has emphasised the relationship between
identity dignity, autonomy and privacy: Goodwin v United Kingdom (2002) 35 EHRR
447, 13 BHRC 120, ECtHR; I v United Kingdom (2002) 36 EHRR 967, [2002] 2 FCR 613,
ECtHR. See also Bellinger v Bellinger [2003] UKHL 21, [2003] 2 AC 467, [2003] 2 All ER
593 (declaration of incompatibility re. the Matrimonial Causes Act 1973 s
11(c) (repealed) preventing transsexuals from marrying).

Framework for considering whether a ban is compatible with human rights.

41. By Section 6(1) of the HRA it is unlawful for a public authority to act in a way which
is incompatible with an ECHR right. Section 4 of the HRA gives the court power to
make a declaration of incompatibility.

42. As noted above, the right which is most obviously engaged by parents and children
in relation to a ban on conversion therapy is Article 8, although it is also likely that,
Article 9 (Freedom of thought, conscience and religion); Article 10 (Freedom of
expression) [4] ; Article 11 (freedom of peaceful assembly and freedom of association
with others) may apply to specific groups or in particular circumstances, and Article
2 of the First Protocol with respect to the right of education and the right that a
child’s upbringing be in accordance with a parents religious and philosophical
convictions.

Article 8 provides:-
Article 8

  1. Everyone has the right to respect for his private and family life, his home and
    his correspondence

2. There shall be no interference by a public authority with the exercise of this
right except such as is in accordance with the law and is necessary in a democratic
society in the interests of national security, public safety or the economic
wellbeing of the country, for the prevention of disorder or crime, for the protection
of health or morals, or for the protection of the rights and freedoms of others.”

44. As already explained rights protected by Article 8 (and 9, 10, 11) are qualified rights,
This means that a public authority (e.g. through legislation) may interfere with them
in certain circumstances. But any interference must be:-
(a) prescribed by law;
(b) pursue a legitimate aim; and
(c) be necessary in a democratic society.

Prescribed by law

45. “Prescribed by law” is helpfully explained in: R (Bridges) v Chief Constable of
South Wales Police
[2020] 1 WLR 5037, where the Court of Appeal approved the
following summary of the relevant legal principles on this issue (§55):
(1) The measure in question (a) must have ‘some basis in domestic law’ and (b) must be
‘compatible with the rule of law’, which means that it should comply with the twin
requirements of ‘accessibility’ and ‘foreseeability’: Sunday Times v United Kingdom
(1979) 2 EHRR 245 ; Silver v United Kingdom (1983) 5 EHRR 347 ; and Malone v
United Kingdom (1984) 7 EHRR 14 .

(2) The legal basis must be ‘accessible’ to the person concerned, meaning that it must be
published and comprehensible, and it must be possible to discover what its provisions
are. The measure must also be ‘foreseeable’ meaning that it must be possible for a person
to foresee its consequences for them and it should not ‘confer a discretion so broad that
its scope is in practice dependent on the will of those who apply it, rather than on the
law itself’: Lord Sumption JSC in P [2019] 2 WLR 509 , para 17
.
(3) Related to (2), the law must ‘afford adequate legal protection against arbitrariness
and accordingly indicate with sufficient clarity the scope of discretion conferred on the
competent authorities and the manner of its exercise’: S v United Kingdom, 48 EHRR
50, paras 95 and 99.

(4) Where the impugned measure is a discretionary power, (a) what is not required is
‘an over-rigid regime which does not contain the flexibility which is needed to avoid an
unjustified interference with a fundamental right’ and (b) what is required is that safeguards should be present in order to guard against overbroad discretion resulting
in arbitrary, and thus disproportionate, interference with Convention rights’: per Lord
Hughes JSC in Beghal v Director of Public Prosecutions [2016] AC 88 , paras 31 and 32. Any exercise of power that is unrestrained by law is not ‘in accordance with the
law’.

(5) The rules governing the scope and application of measures need not be statutory,
provided that they operate within a framework of law and that there are effective means
of enforcing them: per Lord Sumption JSC in Catt at para 11.

(6) The requirement for reasonable predictability does not mean that the law has to
codify answers to every possible issue: per Lord Sumption JSC in Catt at para 11.

Legitimate aim

46. In the present context a likely legitimate aim of any proposed legislation is likely to
be said to be the protection of health and the protection of the rights and freedoms of
others.

Necessary in a democratic society

47. A key issue will be whether any interference by way of legislation with the rights of
parents or children with respect to the therapy they may wish to receive is whether
the measure (in our situation a legislative ban) is “necessary in a democratic society”. It
will only be so if it responds to a “pressing social need” [5] and if it is proportionate,
having regard to the aims pursued.

In considering whether an interference is proportionate the court will usually apply
Bank Mellat v HMT (No.2) [2014] AC 700 (§74) criteria:
a. Whether the objective of the measure is sufficiently important to justify the
limitation of a protected right;
b. Whether the measure is rationally connected to the objective;
c. Whether a less intrusive measure could have been used without unacceptably
compromising the achievement of the objective;

d. Whether, balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter. In essence, this question asks whether the impact of the rights infringement is disproportionate to the likely benefit of the impugned measure.

49. The context of any proposed legislation would need to have regard to the established
law on medical treatment and consent. I therefore summarise this briefly below.

Consent to medical treatment

50. For treatment to be given lawfully by a doctor, two things must be satisfied in all
cases:
i. The treatment must be determined by the doctor to be in the best interests
of the patient (or at least not harmful to the patient); and
ii. Unless the patient is incapacitated, the doctor must receive effective legal
consent to the treatment.

51. Children aged 16 and 17 years old are presumed to have capacity to consent. Section
8(1) of the Family Law Reform Act 1969 provides:
“The consent of a minor who has attained the age of sixteen years to any surgical, medical or
dental treatment which, in the absence of consent, would constitute a trespass to his person,
shall be as effective as it would be if he were of full age; and where a minor has by virtue of
this section given an effective consent to any treatment it shall not be necessary to obtain any
consent for it from his parent or guardian.”

Children under the age of 16 can only lawfully consent to treatment if they are
considered Gillick competent: the judge-made test which requires that the child:
(i) Understands the nature of their medical condition and the proposed
treatment;
(ii) Understands the moral and family issues involved;
(iii) Possesses the necessary ‘experiences of life’;
(iv) Is not fluctuating between a state of competence and incompetence; and
(v) Can weigh the information appropriately to be able to reach a decision.

As explained by Lord Scarman at p189:
“It is not enough that she should understand the nature of the advice which is being
given: she must also have a sufficient maturity to understand what is involved.”

54. In Re R (a minor) (wardship: consent and treatment) [1992] Fam 11 at p26 the Court of
Appeal emphasised the need for full understanding of the treatment in question:
“What is involved is not merely an ability to understand the nature of the
treatment… but a full understanding and appreciation of the consequences both of the
treatment in terms of intended and possible side effects and, equally important, the
anticipated consequences of failure to treat”

Legal analysis and summary

55. I specifically now consider the questions in the request for advice and seek to give a
legal analysis of the relevant issues.

56. First, it is necessary to appreciate that Gender identity is not identified as a protected
characteristic in the Equality Act 2010. Gender identity (whatever its precise
meaning) is conceptually different from both “sex” and “sexual orientation” which
are protected characteristics.

57. Second, in law, “sex” does not mean or include self-identified sex or gender identity.
Sex in legislation such as the Census Act 1920, or the Gender Recognition Act 2004,
or the Equality Act 2010 means legal sex: that is to say, birth sex, or by reason of the
operation of section 9 of the Gender Recognition Act, the sex one becomes as a result
of being issued with a Gender Recognition Certification.

58. Sex in law is a binary and (save for legal mechanism of s.9 of the Gender Recognition
Act [6] which treats a person with a gender recognition certificate in law as possessing
the sex of the acquired gender [7]) a biological concept, there is a male and a female sex
and no in between. Which side of the binary division one falls on is determined by
“[one’s] individual’s physical characteristics, including chromosomal, gonadal and genital
features” (R (Elan-Cane) v Secretary of State for the Home Department
[2018] EWHC 1530
(Admin); [2018] 1 WLR 5119 [96]; see further Corbett v Corbett [1971] P 83).”
[8]

59. Sexual orientation is a relational concept by definition in s.12 of the Equality Act 2010
and is a protected characteristic. i.e. discrimination on grounds of sexual orientation
is unlawful. It is defined by reference to sexual orientation or attraction to another
person’s sex (i.e. male or female) not gender. It is possible to be sexually orientated to
both males and females and this is reflected in terms of the Act. There are thus only
three possible answers to the question: what is your sexual orientation (to what sex
are you attracted)?: male, female or both.

60. By contrast “Gender Identity” is much wider relational concept than sexual
orientation. For those whose identity aligns with their biological sex, a person’s
gender identity will be the same as their biological sex, e.g. male or female
(sometimes called cis-gender). For those whose gender identity is wholly that of the
sex opposite to their biological sex, they may be described as transgender or trans.
But there are other gender identities which do not fit into this binary divide. Gender identity is capable of encompassing non-binary, gender-fluid, genderqueer, pangender, and other identities.

Application to children and conflict with parental rights and responsibility

61. Whether gender identity, as an aspect of personal identity, is protected under Article
8 (an aspect of private and family life) or the other potentially relevant qualified [9]
rights, the application of such rights to children and the conflicting rights of parents
with parental responsibility is complex.

62. The Tavistock case itself has considered the question of the extent to which children,
some aged as young as 10, can lawfully give consent to medical intervention aimed
at blocking puberty and changing the physiological characteristics of their biological
sex. Applying Gillick to the facts of the instant case the Divisional Court has held that
most children under 16 are unlikely to be capable of giving consent to such
treatment.

63. In the course of argument in that case, the scope of parental responsibility with
regards to the growing autonomy of the child was considered, particularly by
reference to the cases of Gillick itself, and Hewer v Bryant, and Lord Denning’s dictum
(approved by the majority in Gillick) to the effect that:-
“ the legal right of a parent to the custody of a child ends at the eighteenth birthday; and even
up till then, it is a dwindling right which the courts will hesitate to enforce against the wishes
of the child, the older he is. It starts with a right of control and ends with little more than
advice.”

64. It is therefore an open question and likely to be child-specific and decision specific, at
what age a child has sufficient autonomy to determine their own gender identity
under Article 8 for any particular purpose. That said, some general statements may
be capable of being made. Ordinarily one would not expect a five-year old’s
assertion (however naïvely or sophisticatedly expressed) that their physical sexual characteristics were in opposition to, or incongruent with, that of their psychological identity, to be determinative of that child’s gender identity at any given time. On the contrary it is the very nature of gender identity that it may be fluid and liable to change over time particularly though the process of puberty.

65. Yet is clear from DSM V, and the facts of the Tavistock case that certainly for children
as young as 9 or 10, clinicians have taken the view that expressions of gender
identity by such young children are sufficiently permanent (i.e. lasting at least 6
months) that a diagnosis of gender dysphoria is appropriate and even that treatment
for such dysphoria by means of puberty blockers may be given based on that child’s
consent to treatment.

66. For reasons examined in the Tavistock case, treatment given on such a basis to young
children is highly controversial particularly because of the irreversible effects of cross
sex hormones which the vast majority of children who commence puberty blockers
go on to take.

67. If it is accepted that children of such a young age do not have capacity to determine
their own gender identity for specific decisions, then the responsibility for those
decisions falls within the sphere of parental responsibility [10]. Indeed a parent of a
child, just as much as the child, has a right under Article 8 to respect for private and
family life home and correspondence and sometimes those rights may be in conflict.
Generally speaking it is usual (and lawful) to accept a parent’s consent for decisions
with regard to medical intervention for children who are not Gillick competent to
make the decision for themselves. In such circumstances the parent will be
exercising both a right and a duty as a parent.”. This provision is a reflection of the
view that parents do have protection of rights with respect to how their children are
brought up and educated. Those qualified rights should not be interfered with unless
the interference is necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

68. These general concerns therefore inform the approach to the question of whether a
prohibition on ‘conversion therapy’ as it has variously been described is likely to be
lawful, or in fact conflict with, the rights of others, including parents, exercising the
rights and duties of parental responsibility over their children.

Answers to specific questions

(1) Is there is an inadequate evidence base from which to ban conversion therapy;

69. It may be seen from the above range of definitions that “conversion” therapy may be
cast extremely widely and includes any intervention which seeks to change the
sexual orientation or gender identity of a person. It may include all adults and
children, or be restricted to children under 16 and vulnerable persons. But clearly
the wider the scope for the ban, the more pressing must be the social need and the
more robust the evidence must be to justify it as proportionate.

70. Against that backdrop, it is entirely unclear what the evidence base is said to be to
support the prohibition of therapy designed to cancel or suppress gender identity. On
the contrary, as DSM V makes clear, desistence of gender dysphoria (incongruence of
gender identity with biological sex) through puberty is a natural phenomenon which
occurs in the majority of cases. Can it really be the intention of legislation to prohibit
and render unlawful the natural pubertal process which has the effect of suppressing
the perceived gender incongruence? Yet that is what “watch and wait” therapy, (an
entirely respectable and evidence based psychological therapy) is intended to
achieve.

71. Moreover as noted above, the literature reports that:-
(i) Many prepubertal children with gender dysphoria no longer experience
gender dysphoria in adolescence, and the experience of romantic and sexual attraction is thought to play an important role in this process
(Steensma, Biemond, de Boer, & Cohen-Kettenis, 2011).
(ii) Some may come to understand themselves as homosexual or bisexual
(Steensma et al., 2011). This is extremely important. It may be that by
prohibiting “conversion therapy” as so defined with only the exception for
treatment directed at achieving gender transition (e.g. puberty blockers
and cross sex hormones) that children growing up are actively prevented
from developing into homosexuals or bisexuals.
(iii) GnRHa, by blocking sexual development, might interfere with this
process (Korte et al., 2008).
(iv) Another concern is that although GnRHa treatment is to be used as an
extended diagnostic phase, the start of it may lead the adolescents and
parents to assume that transgender outcome is the only possible outcome
which may prevent exploration of other possibilities (Leibowitz & de
Vries, 2016)

72. It is difficult therefore to accept that there is a sufficient evidence base to justify a
widely drawn prohibition of gender identity conversion therapy as a pressing social
need. Such legislation is likely to prohibit treatment which is clinically indicated and
appropriate and which the child (or parent on her behalf if not Gillick competent)
may wish to undergo voluntarily and without coercion. If the concern of those who
put forward the legislation is to prohibit coercive, unethical inhumane practices,
wording which is unnecessarily wide and liable to result in treatment being
prohibited which is entirely appropriate and lawful is clearly inappropriate. It is not
easy to see how this problem is overcome by the kind of exceptions listed in say, the
Canada Nova Scotia example, since even if limited to children under 16, the issue in
relation to parental rights and treatment and upbringing in accordance with parental
religious and philosophical convictions remains.


(2) there is no agreed approach to gender identity per se, with many people disavowing
they have one.

73. The second point to make is that a definition of gender identity would be required.
While not insurmountable, a problem is that once gender identity is not seen as a
binary concept but as an expression of a person’s social relations and self-perception,
it is very difficult to be precise as to what conversion therapy in such context might
include, rendering such a provision void for uncertainty, or not “in accordance with
law”. Equally how permanent or otherwise such gender identity must be before it
must not be subject to conversion therapy, is open-ended. That too is a recipe for
confusion and runs the risk of criminalizing or rendering unlawful the provision of
therapies that are designed to ameliorate suffering in the individual, and reconcile
them to their biological sex.

(3) whether a ban would be more harmful than the problem it seeks to remedy

74. If the ban is as wide as the Australian Capital Territory definition, then no proper
account is given of consent. As summarised above, for treatment to be given lawfully
by a doctor or other care-giver, two things must be satisfied in all cases:
i. The treatment must be determined by the doctor/care-giver to be in the
best interests of the patient (or at least not harmful to the patient); and
ii. Unless incapacitated, the doctor must receive effective legal consent to the
treatment – either from the patient, or if a child, his/her parent.

75. It is not usual for the law to trespass into the sphere of medical judgment as to what
treatments are or are not in a patient’s best interests in the specific circumstances of
the case. This is usually best left to the medical profession and the appropriate
professional regulatory bodies. There is, so far as I am aware no credible evidence
that the absence of legislation governing the use of medical treatment for gender
dysphoria, has resulted in improper ‘conversion’ treatment being given against any
patient’s consent, save for the facts of the Tavistock case itself where the Tavistock
have relied on the supposed consent of a children as young as 10 for the
administration of highly potent medication by way of puberty blocker treatment
later to be followed by cross sex hormones which are irreversible in their effects. I have been shown a copy of the controversial “2020 ‘Conversion Therapy’ andGender Identity Survey ‘ recently published by GIRES, the LGBT Foundation, Mermaids, the Ozanne Foundation and Stonewall. The survey says that it contains “ground breaking data on the effects of Gender Identity Conversion Therapy in the
UK”, however, I understand serious concerns have been raised about its methodological reliability and conclusions. A letter from Professor Michael Biggs raising these concerns is attached to this Opinion.

76. The law’s usual approach to treatment which is of a highly invasive nature, or may
be required compulsorily is to regulate such treatment by stipulating age
requirements, making capacity to consent mandatory, and requiring an independent
second opinion. A good example is Electro Convulsive Therapy, in the mental health
context. There the law provides protections to ensure that if the treatment is
provided it is done so in the patient’s best interest and on the advice of at least two
qualified professionals. It is instructive to look at the wording of the Mental Health
Act 1983, in particular s.58A and to note that key components of the relevant
legislation require the patient (i) to be suffering from a mental disorder; (ii) be of a
particular age (18); (iii) have of a level of understanding in respect of the treatment;
and (iv) a second opinion from an appointed independent doctor that such treatment
is in best interests.

77. There must be a real risk that by imposing a blanket ban on conversion, children and
adults may be improperly deprived of treatment which:-
(i) is likely to be in their best interests
(ii) is a medically respectable intervention
(iii) is a treatment which they wish to receive and give consent to.
The most obvious example would be a person who voluntarily wishes to receive
treatment from a doctor or therapist to help them reconcile their individual
perception of gender with their biological sex. It is clear, even from the MOU 2017,
that this cannot be intended:-
“ For people who are unhappy about their sexual orientation or their gender identity,
there may be grounds for exploring therapeutic options to help them live more comfortably with it, reduce their distress and reach a greater degree of self-acceptance. Some people may benefit from the support of psychotherapy and counselling to help them manage unhappiness and to clarify their sense of themselves. Clients make healthy choices when they understand themselves better”
.

78. Yet a ban on conversion therapy as so defined would prohibit or deter such
treatment being accessed by individuals.

(4) there is dispute within both the Royal College of Psychiatrists and the British
Psychological Society over the definition of conversion therapy. In particular, the
inclusion of “gender identity” in any definition.

79. I have alluded to this concern above. The concern is that the inclusion of ‘gender
identity’ in the any legislation in respect of conversion therapy is highly controversial
and not evidence-based. The justification for its inclusion does not seem to be based
on empirical evidence, but is the product of a political viewpoint.

Summary

80. I therefore summarise my conclusions on unlawfulness of a proposed ban on
conversion therapy along the lines of comparable legislation in other jurisdictions. I
do so in the context of the legal framework identified above, namely would it be
compatible with convention rights, by being in accordance with law, introduced for a
legitimate aim, proportionate and necessary in a democratic society.

(1) Does it risk denying provision of appropriate treatment for children by fettering the
ability of clinicians to provide appropriate therapeutic input;

81. Clearly yes. To legislate to ban any treatment designed to change, cancel, convert or
suppress gender identity would clearly prohibit or deter such treatment being given
by clinicians and care-givers even though such treatment e.g. watch and wait, talking
therapy etc. is ethically based, supported by respectable medical literature and the
child or adult is willing to receive it. Legislation which prohibits such treatment may
well be unlawful/declared incompatible, because it is a disproportionate and
interference with the Article 8 (or related) rights of the individual patient who may
otherwise be entitled to seek and obtain such treatment or counselling. There is also a real question whether the evidence base for the ban (concerning gender identity in
particular) would be sufficiently cogent for such a ban to be in accordance with law.

(2) The ability of parents to help their children navigate the development of their
personal identity;

82. Again the answer is a clear yes. A prohibition in the terms of the proposed
legislation would hinder the ability of parents to navigate the development of their
child’s personal identity. Even though it may be a ‘dwindling right’ as the child
grows to maturity, no one could deny that parents have rights and responsibilities
towards their children as they grow up. Legislation in the terms proposed would
inhibit parents from seeking to assist their children from navigating the discovery of
their personal identity as they grow up through puberty. This is a real rather than
fanciful concern. A legislative provision drafted in the terms suggested would have a
chilling effect on the ability of parents to discharge their responsibilities for fear of
being referred to social services or even the police for indulging in “conversion
therapy” as so widely defined. It would be an unjustifiable interference with the
private and family life of the parents and their relationship with their children. It is
hard to see how even the exceptions in the example legislation cited above overcome
this problem.

(3) The rights of children to be protected from inadequate therapeutic services and
experimental medical treatment;

83. This concern is the very concern identified by one of the key proponents of puberty
blocking and cross sex hormones Dr Annelou De Vries, in the De Vries and Leibowitz
article mentioned above.

84. GnRHa treatment (puberty blocking) is used as an extended diagnostic phase. The
phrase used by the Tavistock GIDS service is “time to think”. It is experimental and
controversial. The start of it may lead the adolescents and parents to assume that
transgender outcome is the only possible outcome which may prevent exploration of other possibilities (Leibowitz & de Vries, 2016). It may result in the individual
subjected to such treatment to commence a course of treatment at an early stage
(perhaps as young as 10) and persist with such treatment (the evidence is that very
nearly all who commence puberty blockers go on to take (irreversible) cross sex
hormones). As the Divisional Court in the Tavistock case concluded, it is unrealistic to
consider that children as young as 10 or even of 15, are likely to be Gillick competent
to take such life changing decisions particularly when the treatment is experimental,
the evidence of effectiveness is almost non-existent, and the long term outcomes
unknown. Yet it is this treatment that is exempted from prohibition in all the
example legislative texts provided.

Conclusion

85. It is my view that any proposed UK legislation in respect of conversion therapy
in respect of children, particularly as it concerns gender identity, is likely to give rise
to a substantial risk of unlawfulness because of incompatibility with rights protected
under Article 8, 9, 10, 11 and possibly also Article 2 of the First Protocol on the
European Convention on Human Rights. Even if exceptions are created such as
those in the Canadian and Queensland example, (for example that the proscription
should apply to minors only) it is my view that the use of a definition of “conversion
therapy” which includes a proscription of any attempt to cancel, change or suppress
‘gender identity’ in terms similar to that proposed, is likely to be unlawful because it is
simply too wide, is not based on any reliable scientific evidence, is uncertain, and
denies appropriate treatment (such as watch and wait) to children for whom such
treatment (assuming they do not have capacity) may be in their best interests, or if
they do have capacity, wish to receive. It would deny proper ethical treatment to
those (children and parents) who may wish to receive it or give consent to it as being
concordant with their wishes, or philosophical or religious beliefs.

86. It is a stark fact that the prime example of conversion therapy with the potential for
irreversible harm in the context of gender identity, particularly in respect of children
is the highly controversial treatment with puberty blocking medication and cross sex hormones for children. Such treatment is designed to affirm and reinforce a child’s perception of his or her gender identity. As the Divisional Court in the Tavistock observed:-

“the combination here of lifelong and life changing treatment being given to children, with very limited knowledge of the degree to which it will or will not benefit them, is one that gives significant grounds for concern.”

  1. Yet it is this treatment which is exempted the legislation examples given, along with
    only such treatment that “assists a person to express their gender identity; or (d) provides
    acceptance, support and understanding of a person; or (e) facilitates a person’s coping skills,
    social support and identity exploration and development”. In other words the only
    treatment that is exempted is that which accepts and affirms the self-identified
    gender, with the consequence that any therapy that questions the person’s gender
    identity or seeks to reconcile that identity with the person’s biological sex is rendered
    unlawful even if the individual consents to such treatment. That is a clear denial of
    the autonomy of the individual’s (and where relevant, parent’s) right to choose what
    treatments (from amongst those which are clinically indicated) [11] they wish to receive
    and would need cogent justification. On the evidence I have seen, there is none.

JEREMY HYAM QC
1st April 2021

This judgment is also available as a pdf.

Michael Biggs’ analysis of the research study can be seen here

Notes

[1] See Clause 17 of the 2017 MOU
[2] Feminists holding a gender critical position: i.e. that sex is a material reality which should not be conflated with gender or gender identity. Being female is an immutable biological fact not a feeling or identity. … and sex matters. Gender does not trump sex and therefore transwomen are not women – see e.g. Forstater

[3] As some commentators have pointed out, there is a real danger that when gender identity is stripped of its natural association with biological sex, it is very uncertain of meaning other that by resort to gender- stereotypes in assessing what the social attributes of a man or woman are: wearing make up, a preference for pink rather than blue, etc. All seem a very imprecise way of identifying a persons gender identity

[4] See in particular with respect to counselling: Open Door and Dublin Well Woman v Ireland (App. 14234/88) 29 October 1992, where the Strasbourg Court held that a law prohibiting pregnancy counsellors from providing information about the availability of abortion in Great Britain was an unlawful interference with the rights of the counselling groups and those receiving the counselling

[5] See e.g. R v Shayler [2003] 1 AC 247, Lord Bingham at §23

[6] Section 9 GRA 2004 provides
9 General
(1) Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).
[7] Note. The language in the Gender Recognition Act 2004 is agreed by many commentators to be muddled as it repeatedly conflates gender and sex
[8] See Karon Monaghan QC: the Forstater Employment Tribunal judgment: a critical appraisal in light of Miller

[9] i.e. a right subject to limitations prescribed by law which are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others

[10] I do not here discuss the controversial decision of AB which suggests that parental responsibility and a child’s ability to consent co-exist so long as the parent and child agree

[11] In Burke [2005] EWCA Civ 1003, the Court endorsed the following propositions from the GMC as to the right of the patient to select the treatment he will receive:
i) The doctor, exercising his professional clinical judgment, decides what treatment options are clinically indicated (i.e. will provide overall clinical benefit) for his patient.
ii) He then offers those treatment options to the patient in the course of which he explains to him/her the risks, benefits, side effects, etc involved in each of the treatment options.
iii) The patient then decides whether he wishes to accept any of those treatment options and, if so, which one. In the vast majority of cases he will, of course, decide which treatment option he considers to be in his best interests and, in doing so, he will or may take into account other, non clinical, factors. However, he can, if he wishes, decide to accept (or refuse) the treatment option on the basis of reasons which are irrational or for no reasons at all.
iv) If he chooses one of the treatment options offered to him, the doctor will then proceed to provide it.
v) If, however, he refuses all of the treatment options offered to him and instead informs the doctor that he wants a form of treatment which the doctor has not offered him, the doctor will, no doubt, discuss that form of treatment with him (assuming that it is a form of treatment known to him) but if the doctor concludes that this treatment is not clinically indicated he is not required (i.e. he is under no legal obligation) to provide it to the patient although he should offer to arrange a second opinion.

This Post Has 3 Comments

  1. RMS

    With the greatest respect, I don’t think this analysis rests on an accurate description of what the Con Doc proposes.

    On the contrary, my reading is that what is intended will very much underpin ‘watch and wait’ type approaches to assessing children with apparent gender dysphoria, and militate against, and quite possibly criminalise, approaches that pre-emptively aim to affirm one sort of gender identity or another without adequate prior open minded assessment.

    1. charles lewis

      I wonder how you ge that out of it. Would you like to explain?

  2. charles lewis

    This is a brilliant exposition of why the proposed ban is illegal. But it also, not so obliquely, covers the ludicrous and unproven nature of the activists’ contentions and even, almost en passant, their political motivation. It is now up to us to convince the government, if they are not already aware of this, of the toxic nature of the activists’ agenda, of their political motives, of the resulting misery that their insane activities bring to society, and also of their method of working, by policy capture and by working beneasth the radar — as explained in James Kirkup’s well known article for the Spectator some time ago.
    Incidentally I wrote much earlier this year to various members of the government (including PM, Trusss, Vicky Ward and others) explaining how totally unacceptable any ban would be in relation to gender dysphoria: I got absolutely no response!

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