Quality of Scrutiny

Sonia Sodha writes:

The government published its draft conversion practices bill ten days ago. The bill was a manifesto commitment and purports to ban something bad - abusive conversion practices aimed at changing someone’s sexual orientation or transgender identity. If only that’s all there was to it.

The reality is that this bill is a Trojan Horse that smuggles in a whole host of dangerous unintended consequences that gender activists could use to pursue people who don’t comply with their ideological demands. First, that men who believe they are women should be treated as women for all purposes in society, and second, that gender-questioning children should be affirmed as trans and funnelled onto irreversible medical pathways that come with lifelong risks for their fertility, bone health and brain development.

Abuse, assault and coercive control are already criminal offences in England and Wales. The key question about this bill remains: what does this bill criminalise that isn’t already criminal and which ought to be criminalised? Its proponents - including government ministers - have not been sufficiently clear on this, a worrying sign of just how badly thought through it is. The research on which the draft bill is based - undertaken or commissioned by third-party campaigning organisations like Stonewall and Galop - is threadbare, and does not come close to establishing the extent to which there is a problem with specific conversion practices that should be, but are not, criminal under existing law. Meanwhile, the bill risks criminalising parents and child professionals who don’t accede to children’s demands to be recognised as the opposite sex, with significant chilling impacts, and in a way that represents an unacceptable incursion by the state into parent-child relationships.

The background

Gender activists who hold the quasi-religious beliefs that everyone has an inner ‘gender identity’; that trans people have a different gender identity from the reality of their sexed bodies; and that it is gender identity rather than the scientific fact of someone’s sex that determines whether or not they are a man or a woman, have long campaigned for a statutory ban on what they term ‘conversion therapy’.

For them, ‘conversion therapy’ goes beyond incredibly harmful - and already criminal - practices to try and change someone’s sexual orientation through assault, abuse or coercive control. It means trying to change someone’s ‘gender identity’. They believe that it is abusive not to immediately recognise or affirm a gender-questioning child who says they have a gender identity associated with the opposite sex. This belief is based on the false assertion that ‘gender identity’ is a fixed characteristic like sexual orientation. In fact, as highlighted by the independent review undertaken by the experienced paediatrician Hilary Cass, gender distress in children and young people - many of whom are autistic or grappling with their emerging same-sex attraction - is likely to be transient and naturally resolve in the majority of cases. Gender activists see the key thrust of the Cass review - that gender-questioning children should be treated through holistic, exploratory therapy that explores the underlying reasons why they may be experiencing distress related to their bodies, rather than just take it as read they will grow up to have a lasting trans identity in adulthood - itself as a form of ‘conversion therapy’. The former chief executive of Stonewall has appeared to openly endorse this view.

You cannot understand the conversion practices bill without understanding these roots. It is primarily a tool for campaigners to smuggle in the means to impose their ideology on the rest of society - an ideology that has harmed women and children through its erosion of sex-based rights - using the criminal law, under the guise of banning things that are already criminal. The pledge to criminally ban ‘conversion therapy’ in the Labour manifesto was made to keep these campaigners happy, not on the basis that there is a significant problem with abusive practices not covered by existing criminal statute. We can see this in the fact that the government’s draft impact assessment neither gives clear examples of conduct that should be but is not already criminal, nor establishes that there is a problem new legislation is needed to address.

1. The bill’s potentially harmful consequences

The bill will hopefully be subject to extensive legal analysis by experienced criminal, family and human rights lawyers in the coming months. But here are just a few problems that have been highlighted since its publication.

The bill seeks to create a new legal definition of gender identity, using criminal statute

The concept of a transgender identity or gender identity is nowhere defined in law; what currently exists is the protected characteristic of ‘gender reassignment’ in the Equality Act 2010. The draft bill seeks to create a new legal definition of ‘transgender identity’:

(8) The circumstances in which an individual has a transgender identity include (but are not limited to) where—

(a) the individual is undergoing, is proposing to undergo or has undergone a process of gender reassignment,

(b) the individual is transsexual,

(c) the individual identifies as neither male nor female or as not solely male or female.

This is an incredibly slippery definition. The bill says transgender identity is not limited to the circumstances it lists. So what else does it include? Does it protect people who identify as animals, or inanimate objects, as the wording of 8(c) seems to suggest? Even the often-invoked concept of ‘non-binary’ is elusive is yet to be authoritatively defined in law. This legislation appears to be trying to create a new and unlimited legal definition of what it is to be trans, that goes way beyond the protected characteristic of gender reassignment that can invoke civil liability. How can you create a criminal offence that hinges around attempting to change someone’s ‘transgender identity’ when the relevant law doesn’t even meaningfully define what it means to have such an identity in the first place?

2. The bill adopts a wide definition of abusive conduct, drawn much more broadly than in other criminal legislation

In the bill, the proposed criminal offence of carrying out an abusive conversion practice has three elements:

1. The act must be a ‘conversion practice’. The bill defines this as

any conduct carried out by a person towards an individual with the intention of—

(a) causing the individual—

(i) to have or not to have,

(ii) to believe that they have or do not have,

 a sexual orientation or a particular sexual orientation; or

(b) causing the individual— 

(i) to have or not to have,

(ii) to believe that they have or do not have,

a transgender identity or a particular transgender identity.

The conversion practice must constitute ‘abuse’ of an individual:

(5) The question whether conduct amounts to an abuse of the individual is a question of fact to be determined by reference to all the circumstances of the case, including in particular the nature of the conduct.

(6) In assessing the nature of the conduct, consideration is to be given (among other things) to the question whether it involves any of the following—

(a) words or behaviour of a sexual nature;

(b) violent or threatening words or behaviour;

(c) controlling or coercive words or behaviour;

(d) use of economic pressure;

(e) use of psychological or emotional pressure.

The abusive conversion practice causes serious harm, or serious alarm or distress, to an individual.

(1) A person commits an offence if the person carries out an abusive conversion practice on an individual which causes—

(a) serious harm to the individual’s physical or mental health, or

(b) serious alarm or distress to the individual which has a substantial adverse effect on their usual day-to-day activities.

As the criminal barrister Dennis Noel Kavanagh has argued, these three elements create an offence that is much broader than the offence of controlling and coercive behaviour, which needs to take place in the context of an intimate or family relationship. Controlling and coercive behaviour explicitly excludes parent-child relationships where the child is under 16, reflecting the fact that parental relationships can involve an element of control, and that separate criminal offences already exist for child cruelty and neglect. There is also no requirement for a duty of care to exist between the alleged offender and the individual subject to abusive conversion practices, such as that that would exist between lecturer and student, or that might exist between religious minister and congregant. The bill risks paving the way for any conduct by anyone that

• denies person X their ‘gender identity’ - a highly-contested belief system, the denial of which is itself a protected belief under the Equality Act, and 
• involves behaviour that X believes constitutes psychological, emotional or economic pressure, including one-off incidents, and 
• causes what X regards as serious harm (the legal threshold for conviction under the bill is actual bodily harm) or serious alarm or distress (a lower threshold)

to become the subject of criminal allegations of ‘abusive conservative practices’. Even if the courts were to interpret these broad statutory definitions quite tightly, the bill lends itself to being weaponised by individuals who threaten to report others to the police simply for not respecting their ‘gender identity’. That includes children coached online to weaponise such threats against their own parents who may not wish to buy their child harmful breast binders (financial pressure?) or to treat their child as though they are of the opposite sex, because they believe it is harmful. Unproven criminal allegations can themselves cause huge problems, in the context of someone’s public reputation, family court proceedings, or social services investigations, for example - particularly given the ideological capture of some state agencies in this area.

The bill also creates conversion practice prevention orders intended to operate to prevent conversion therapy practices from taking place; again, such orders could be weaponised against parents simply seeking to act in their child’s best interests by challenging their belief they are born in the wrong body.

And as Dennis has also pointed out, there are unusually no statutory defences to this criminal offence, so it is irrelevant if a parent believes - based on their own understanding of child development - that denying their child certain things might be very much in their best interest. It is hard to see how this criminal offence, broadly interpreted, would be consistent with the right to a private and family life established by Article 8 of the European Convention of Human Rights.

There is an important carve out for clinical professionals: the provision of health care services will not constitute an abusive conversion practice unless the professional in question acts in a way that falls far below the standards reasonably expected of a person in their position. The government says this is the same high threshold that is applied in gross negligence manslaughter, which would provide a significant degree of protection. However, the threat of private prosecutions taken by individuals backed by well-funded campaigning organisations that do not have to meet a public interest test (see below) could impact the extent to which clinicians are willing to work with gender-questioning children and young people. This was a significant risk of any conversion practices bill that was highlighted by Hilary Cass. The bill also creates a separate offence of encouraging or assisting an abusive conversion practice performed outside England and Wales.

3. The bill allows private prosecutions, with no effective safeguard 

Dennis Noel Kavanagh sets out the issues with private prosecutions in this thread. In a nutshell: the default position is that any either-way offence in England and Wales can be prosecuted privately, by an individual or body other than the Crown Prosecution Service (CPS). The CPS faces a public interest test for any prosecutions it might bring. That test does not apply to private prosecutions. Dennis argues the normal practice with politically contentious areas of criminal law, or serious offences, is to include a statutory requirement for private prosecutions to proceed only with permission from the Attorney General or the Director of Private Prosecutions.

Previous drafts of private members’ bills on conversion practices have included a similar safeguard. But the government bill does not. It is easy to see how private prosecutions could be used vexatiously to target and threaten parents, individuals, clinicians and employers who do not abide by the tenets of gender ideology. There are have already been a number of unsuccessful civil claims on the basis that it is discriminatory not to treat someone as though they were of the opposite sex, including men who want the right to use female changing rooms. Given the toxicity of this debate, do we really want to open up the door to potential private criminal prosecutions that would come nowhere near the threshold for public prosecution by the CPS?

Conclusion 

Just as a medical consensus is finally emerging that it has been deeply harmful to treat gender-questioning children as though they have a fixed ‘gender identity’ that necessitates unquestioning affirmation and irreversible medicalisation, a conversion therapy bill has come along that threatens to criminalise parents, teachers and schools, and other adults who are seeking to act in a child’s best interest. It does this by embedding the undefined concept of ‘transgender identity’ into the criminal law, as the basis for a serious criminal offence of trying to change someone’s undefined identity, that could result in imprisonment. 

The bill will also be undoubtedly used to try and prevent people expressing and acting on their protected belief that sex matters in society and law, and that men who identify as women do not have the right to demand to be treated as women in a way that undermines women’s privacy, dignity and safety by eroding their hard-won access to single-sex facilities, services and sports. That a significant number of ministers and MPs could be gullible enough to fall for this ruse tells us a lot about the current quality of law-making and scrutiny.