Opposing the return of gay conversion therapy: a lawyer’s view

On 16 November 2021, writes Sex Matters Chair Naomi Cunningham, I gave a talk at the Middle Temple LGBTQ+ Forum’s inaugural annual dinner, to an audience of barristers and Bar students, and their guests. Middle Temple is one of the four ancient Inns of Court: aspiring barristers must join one, and attend a number of its training events. This event carried credit as a student “qualifying session”. 

The event had generated some controversy. When it was first announced, the pre-dinner discussion was billed as “The Fight to Ban Conversion Therapy”, with contributions from Robin Allen QC and Stonewall’s Head of Policy, Kieran Aldred, followed by an after-dinner speech from Nancy Kelley, Stonewall’s CEO. A number of gender-critical lesbian barristers and their allies wrote to the organisers, remonstrating with them for fielding what appeared to be a wholly one-sided selection of speakers on an intensely contentious subject.

To their immense credit, the organisers saw the point. They tweaked the title and invited me to join the panel – now including Nancy Kelley in place of Kieran Aldred and adding Jayne Ozanne, a campaigner against conversion therapy, as well as me. The event was now called “Banning Conversion Practices: the Path to Good Law.” 

What follows is a slightly expanded version of the talk I gave. 

The question

How do we arrive at good law making a new criminal offence? Robin Allen QC said in his introduction that good law needs legal certainty, clarity, enforceability, practicability. But those all assume an affirmative answer to the prior question – do we need the proposed new law at all? I don’t share that assumption, so I have a rival four things I say we need: 

• evidence of harm 
• a convincing case that the harm is amenable to legislation
• clear proposals 
• open public debate.

The last first: debate 

The proposed ban is one aspect of a cluster of bitter controversies that we can call, collectively, the “gender wars”. This term encompasses debates about the right of men and women to request same-sex intimate care; about access to single-sex spaces; about whether it is fair to let biological males compete in women’s sports; about housing male offenders who identify as women in women’s prisons; about the best model of care for children with gender dysphoria; about the collection of data about sex; and many others besides.

In these areas, there has been a strong pressure for “no debate”. Many of those who have tried to have the conversation have been shouted down, no-platformed, compared to Nazis and hounded out of their jobs. 

As a lawyer – and as a citizen – I am convinced that debate informed by evidence is the best available method for testing new ideas, or proposals to change the law. If they are any good, they’ll stand up to being poked with pointed questions. If they don’t stand up to being poked, they’re no good. 

So this evening’s discussion is an encouraging development. To find the CEO of Stonewall on a platform with me signals a welcome change of heart. Thank you, Nancy – we need to have this conversation.

Evidence of harm 

The evidence base for this proposal is thin. 

The government has made the proposal for law without waiting for Dr Hilary Cass to complete her independent review of gender-identity services for young people. Instead it relies on 30 interviews and a review of existing studies by academics at Coventry University. 

The Coventry review admits that for the UK, it only found two studies relating to gay conversion therapy, and none on gender identity. 

The consultation also relies on the government’s 2017 LGBT survey where 5% of respondents said they’d been offered conversion therapy, and 2% that they’d received it. But if you look at that survey itself, you find this killer line: 

“We did not provide a definition of conversion therapy in the survey. ”

That means: 

• We don’t know how many of those 2% were lesbians who were recording social pressure to accept trans-identifying males as potential sexual partners.
• We don’t know how many were teenagers whose parents or therapists counselled watchful waiting in place of treatment with puberty-blockers. 
• We don’t know how many were gender non-conforming children whose homophobic parents or peers had suggested to them that they must be trans. 
• We don’t even know the sex of the respondents, because the survey didn’t ask. 

We don’t have a clue what these responses mean: they’re not evidence of anything. 

The consultation admits that there’s no real evidence of harm. It says: 

“While the exact prevalence of conversion therapy is challenging to establish, it is the view of the government that one incident of conversion therapy is too many.”

In other words, the government is saying this: 

We just don’t know whether this is a real problem that needs legislation, but we’re going to legislate anyway.

The case for legislation 

Even if there were evidence of harm, not every harm can be put right with legislation. Sometimes the cure is worse than the disease. 

Take parenting. Parenting is really, really difficult. Most parents do okay, but all parents get things wrong sometimes, and getting things wrong can cause harm. Think about the huge range of ways parents can harm their children: 

• letting them have unrestricted access to sugary foods
• excessively controlling their access to sugary foods so that they crave them
• failing to ensure they take school work seriously
• over-prioritising school work to the detriment of play
• letting them spend too much time online
• damaging their social functioning among their peers by restricting their access to social media
• over-protecting them so that they don’t learn to manage risk
• under-protecting them so that they are exposed to serious injury or worse
• bringing them up in squalor
• bringing them up in such a sterile environment that they risk immune disorders
• modelling poor conflict-resolution
• exhibiting sexism, racism or homophobia. 

That’s just a short illustrative list – but it’s not an accident that most of my examples are opposites. Parents walk a constant tightrope between harms. The law can’t step in and tell them exactly how to make each judgement call. And if it tried, the first price would be a horrifyingly intrusive level of surveillance.

Campaigners for a ban on “conversion practices” are coy about whether, and in what circumstances, parents might be criminalised by the law they propose. But their flagship Cooper Report says this:

“…a broad definition is necessary to encompass all medical, psychiatric, psychological, religious, cultural, or any other practices that seek to suppress, ‘cure’, or change the sexual orientation or gender identity of a person of any age. The ban must apply generally and not differentiate between secular, religious, or cultural contexts.”

The inclusion of teachers in the first published version of the Easy Reading consultation document among those who commonly practise “talking therapies” needing to be controlled by the proposed legislation suggests that this message had been taken to heart. If a ban is to apply generally, without differentiating between contexts, it is difficult to see why it would not also extend to parenting decisions: decisions such as whether to buy a “binder” for a pubescent girl; whether to agree to use a child’s preferred name and/or pronouns in the home; whether to consent to “social transition” at school; whether to restrict a child’s internet usage; and so on.

One would hope that a proposal for legislation would address costs and benefits. But this consultation doesn’t get to that point. Having failed entirely to identify a credibly evidenced or even defined kind of harm as its target, it can’t hope to explain why criminalising it is a good idea – and it doesn’t even try. 

Last element – clear proposal

The government’s core proposal focuses on children and vulnerable adults, and criminalises a talking therapy delivered 

 “with the intention of changing their sexual orientation or changing them to or from being transgender”. 

This muddles two radically different things. 

Being gay or bisexual isn’t a medical condition. It doesn’t require any medical treatment or therapy at all. We can all agree that practices that try to change people’s sexual orientation are wrong and futile. 

Gender dysphoria sufficiently severe to make sufferers seek radical alterations to their healthy bodies undoubtedly is a medical condition. There are two clues. The word dysphoria – profound unease or dissatisfaction. And the demand for medical treatment. 

Let’s run a thought experiment. Say you’re a therapist. You see an unhappy ten-year-old girl. She wears baggy clothes and has short hair. She says she’s sure she’s really  a boy. She hates her developing breasts and dreads the onset of periods. She despises all things “girly”. 

Your duty as a therapist is clear. You need to get to the bottom of the child’s distress. Is she struggling to come to terms with the beginnings of same-sex attraction in a homophobic environment? Is she traumatised by exposure to porn? Have her parents let slip that they’d have preferred a son? Has she suffered abuse or other trauma? The heart-breaking stories of detransitioners should be enough to make it clear how important it is to let you carry out that duty carefully and conscientiously. 

The proposed law contains a safeguard for therapists treating people questioning their gender identity. But it won’t help you: this child isn’t questioning. She’s telling you she’s sure. So the government’s proposals threaten to lock you up for doing what your conscience and your professional duty both tell you you must do.

Gender non-conforming children often grow up to be gay adults. The bitter irony of this proposal is that it entrenches the idea that people can escape being gay by changing sex. This is a lie. Everyone in this room (or reading this blog post) knows that it’s impossible for a human being literally to change sex. But the attempt will exact a terrible price in painful surgeries, loss of sexual function, sterility and other complications. 

This is the most savage conversion therapy ever invented. It offers gay and gender non-conforming children the unfulfillable promise that they can change their sex, and instead visits on them permanent, grievous harm.

It is homophobia that creates the conditions for this conversion therapy: homophobia that tells gay children they are defective. Those problems of homophobic bullying haven’t gone away. There is still work to be done, and this is Stonewall’s proper mission.

Conclusion: the Denton’s playbook 

In 2019, law firm Dentons and others published a guide to campaigning strategy for gender self-ID. The report says:

“In Ireland, Denmark and Norway, changes to the law on legal gender recognition were put through at the same time as other more popular reforms such as marriage equality legislation. This provided a veil of protection, particularly in Ireland, where marriage equality was strongly supported, but gender identity remained a more difficult issue to win public support for.”

Only Adults? Good Practices in Legal Gender Recognition for Youth, p.20

That is exactly what we see here. This is a proposal to criminalise something everyone agrees is bad – gay conversion therapy – but to use that as a veil of protection, the real purpose of which is to criminalise what should be routine, responsible therapeutic work. 

This is an extraordinarily dangerous moment. The proposed “conversion therapy” ban threatens to criminalise parents, teachers and therapists for acting in good faith in what they believe to be the best interests of gender-questioning children in their care. More insidiously – but perhaps even more dangerously – it threatens to write the unscientific and highly contentious concept of “gender identity” into the law as if it were a reality upon which society is agreed. 

If you can find ten minutes to respond to the consultation, we’ve made it easy for you: