The Good Law Project has published advice by Dan Squires QC on the government’s proposed Conversion Therapy Bill. The GLP asked Squires to consider whether legislation seeking to protect people from conversion therapy aimed at changing sexual orientation, but not gender identity, would be lawful, having regard to Article 14 (non-discrimination) of the European Convention on Human Rights read together with Article 8 (respect for private and family life). Squires concludes that it would not.
At the heart of Squires’ reasoning is the claim that in protecting those at risk of measures seeking to change their sexual orientation, but not those at risk of measures seeking to change their gender identity, the proposed legislation would treat those with the “statuses” of sexual orientation and gender identity differently, and that is impermissible direct discrimination contrary to the ECHR. He also argues that if it is not direct discrimination, it is likely to put trans people at a disproportionate and unjustifiable disadvantage, and therefore be unlawful indirect discrimination.
Squires argues that the Bill treats trans people and homosexual people differently, because it protects the latter but not the former from conversion therapy. We think there are two problems with the analysis in this section of his advice. First, Squires falls victim to a ruse used by some of those campaigning in this area. Second, the concept of direct discrimination relied on is novel and, in our view, legally heretical.
The ruse is explained – with surprising candour – in the notorious “Dentons report”.
Tie your campaign to more popular reform
“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.”
On this occasion, campaigners have not merely tied their campaign to a more popular reform: they have sought to make the visible difference between the more popular reform and their campaign goal disappear entirely. They have done this by giving the thing they want to ban the same name as something else – something that is in reality profoundly different, which most people agree is bad. They have sought to characterise “conversion therapy” as a single indivisible evil from which all groups deserve equal protection.
Squires duly analyses the proposed ban as something that confers a benefit (protection from a specific bad thing, namely conversion therapy) on one group of people, but withholds it from another group. But “conversion therapy” is not a single evil that may be visited on homosexual or transgender people alike. It is two radically different things, depending on whether it is therapy directed to changing someone’s sexual orientation, or therapy directed to relieving their gender dysphoria without recourse to surgery or medication.
Sexual orientation and gender identity are different kinds of things. Sexual orientation is a well-established aspect of human nature capable of an objective and non-circular definition, and very likely capable of empirical proof. If you are sexually attracted to people of the opposite sex, you are heterosexual. If you are sexually attracted to people of the same sex, you are homosexual. And if you are sexually attracted to members of both sexes, you are bisexual. Homosexuality has not been defined in the DSM as a “disorder” since 1987, and there is no sensible reason why it should be: it does not in itself cause distress and it requires no medical treatment.
What is called a “transgender identity” appears to have one or both of two main manifestations: a belief that you have a gendered inner essence that does not align with your sexed body; and gender dysphoria – a profound dissatisfaction with your sexed body. It is possible to assert a transgender identity without feeling any distress about your body, or any desire to change it. If that’s the form your transgender identity takes, clearly you don’t need any treatment or therapy: you’re not suffering any distress, and you don’t think your body needs fixing. What kind of treatment could you need?
But if you are suffering from gender dysphoria, then you do need treatment, at least if you are not simply to be left to suffer. There’s a choice here between two possible approaches. Treatment can address the mental distress while leaving the body alone, or it can seek to bring the body into alignment with the identity. In other words, the choice is between treating the body and treating the mind.
By this point the problem with speaking of “conversion therapy” as a single phenomenon should have become clear. If you leave the body alone and try to resolve the distress, are you attempting to “convert” the patient’s gender identity? But if so – if you leave the mind alone and concentrate your efforts on changing the body – why is that not equally an attempt to “convert” the patient from his or her sex? If banning conversion therapy for sexual orientation but not gender identity is discriminatory, why isn’t it also discriminatory to ban conversion therapy in relation to sexual orientation and gender identity but not in relation to sex? Conversion therapy in relation to sex may more usually be called “gender reassignment” or “gender affirmation” therapy; but it is in truth much more literally an attempt to “convert” the patient – from one sex to the other (a doomed attempt, of course, because it is not possible literally to change a person’s sex) – than a talking therapy that seeks to relieve their dysphoria by helping them to come to terms with their sexed body.
The second, related, problem is that Squires’ analysis relies on a radically novel conception of discrimination.
If a government announced an intention to make it unlawful for parents to require their children to do household chores, but then tweaked the draft legislation so that it applied only to boys, that would undoubtedly be sex discrimination: the legislation would confer on boys a benefit – protection from being required to do chores – that it withheld from girls. A declaration of incompatibility under section 4 of the Human Rights Act 1998 would seem inevitable.
Similarly, it is suggested that if the government makes it unlawful to subject homosexual people to conversion therapy, but withholds the same benefit from transgender people, it is discriminating against the latter.
Discrimination law focuses, in domestic law, on the protected characteristics exhaustively defined in the Equality Act, and under the European Convention on Human Rights, on “grounds such as sex, race, colour… birth or other status”. In both cases the idea is the same: you should not suffer discrimination on grounds of sex – because you are male as opposed to female, or female as opposed to male – or because you are of one race or another, or because you have a disability, and so on. In other words, the comparisons are within a particular protected characteristic. (NB: This is so whether the protected characteristic is of a sort that everyone has, like sex and race, and offers symmetrical protection, or is of the sort – like disability, pregnancy or gender reassignment – that only some people have, and protects those with it but not those without it.) Are women as well treated as men? Homosexual people as heterosexual people? Black people as white people? People with disabilities as well as those without? The young as well as the old?
Squires’ argument seeks to blow up the concept of discrimination into a whole new dimension. If he is right comparisons can be made, not simply between people with and without one or other protected characteristic or status (sex – male or female; young or old; Christian, atheist, Muslim, ethical vegan, and so on), but between the nature and extent of legal protection from discrimination on grounds of one protected characteristic compared with another. In other words, as well as asking “Are women treated as well as men?” or “Are older people treated as well as younger people?”, discrimination law would ask “Is the protection from discrimination on grounds of age as beneficial as the protection from discrimination on grounds of sex?” and “Is the protection from discrimination on grounds of race as beneficial as the protection from discrimination on grounds of religion or belief?”
This is not merely novel; it is unworkable. The Equality Act 2010 sets out an intricate scheme of differently configured protections for the different protected characteristics, with different exceptions, and for good reason. The nine protected characteristics are different kinds of things: some immutable biological characteristics (like sex and some disabilities); some temporary (like pregnancy); some volitional and/or cultural (like religion or belief); some administrative/legal (like marriage and civil partnership).
To take a few examples: direct discrimination on grounds of age can be justified, although there is no general defence of justification for direct discrimination on any other ground; and a right to equal pay for work of equal value is available only in relation to sex, not age, race, sexual orientation or any other protected characteristic. The law recognises a need for people of one sex to have physical privacy from people of the other, but there are no comparable accommodations for religion or belief, race, marital status and so on. Beyond the Equality Act, the Sentencing Act 2020 makes hostility based on some (but not all) protected characteristics an aggravating factor to be taken into account in sentencing.
Those are just a few of many examples that could be given of protections and exceptions tailored to the peculiarities of specific protected characteristics. Squires’ analysis, if correct, would necessarily treat each one of those variations as prima facie breaches of Article 14.
Squires touches on this objection at paragraphs 29 and 30 of his advice, but dismisses it as “technical disputes about how exactly discrimination should be characterised”, with which he considers the Strasbourg court is unlikely be troubled. We disagree: these are fundamental objections. If Squires’ argument prevailed, that would represent the most radical shake-up of discrimination law since discrimination law was invented. We also think it would leave it in an irremediably confused and confusing state
Squires deals briefly at paragraph 34 with an alternative attack on the proposed legislation as indirect discrimination. He suggests that the proposed legislation is likely to disproportionately disadvantage trans people compared to others. His reasoning here is that a measure that seeks to protect people from “therapies seeking to change fundamental parts of their identity”, but leaving out gender identity, will have a greater impact on people with trans identities than those without, because conversion therapy seeking to change people’s gender identities is more likely to be used to suppress than to promote trans identities.
Squires makes this factual claim without evidence, in the manner of someone stating the obvious (he makes a similar claim at paragraph 31). We have serious doubts. There are convincing anecdotal accounts of clusters of cases of gender dysphoria in friendship groups, and of dysphoria arising after periods of intense online activity in girls who had previously shown no sign of it. And gender identity theory has taken a firm hold in the teaching profession. There must be a possibility, at the least, that something very like “conversion therapy” to produce and entrench cross-sex identities is being practised by young people on each other through online forums, peer pressure and so on, and on children by adults – including clinicians – who are terrified of doing anything but affirming the first sign of a cross-sex identity for fear of being accused of conversion therapy. Rocketing rates of referrals of young people to the GIDS at the Tavistock Clinic over recent years, together with the intense pressures brought to bear on clinicians to affirm cross-sex identities (including through the Memorandum of Understanding on Conversion Therapy signed by all the major health, counselling and psychotherapeutic organisations), suggest that at present there may well be much more active conversion therapy to produce than to suppress cross-sex identities.
But whether our suspicion or Squires’ claim is ultimately better-founded could be established with confidence only on the basis of empirical evidence. We hope that the final report of the Cass Review will shed some much-needed light, and encourage further careful and rigorous research. Meanwhile, we think a litigant would encounter great difficulty in marshalling evidence to persuade a court that “conversion therapy” is at present more commonly employed to suppress cross-sex identities than to produce them.
Squires says this:
“If it is unacceptable for therapy to take as its starting point that it is preferable to be heterosexual and then to seek to ‘change’ those with different sexual orientations, it is impossible to see how it is not equally unacceptable for therapy to take as its starting point that it is preferable not to be trans and to seek to change those who are trans.”
We find this extraordinary.
It is well established that sexual orientation tends to be fixed from an early age, and is rarely if ever subject to change. Therapy that seeks to “cure” a person of homosexuality is both cruel and almost certain to be futile. There is a dearth of evidence that conversion-therapy practices seeking to change people’s sexual orientation are currently a problem in the UK of a sort to require additional legislation, but we can at least all agree that conversion therapy to change sexual orientation is a bad idea.
Gender dysphoria, on the other hand, is a distressing psychological condition. All the evidence suggests that when it manifests in children, it more often than not resolves with adolescence. It should be obvious that the better outcome for a pre-pubescent child who presents with gender dysphoria is that the dysphoria resolves, and he or she is able to mature naturally into a well-adjusted adult man or woman requiring no ongoing medical treatment. Puberty blockers, cross-sex hormones and radical surgery may perhaps sometimes represent an individual’s best hope of a flourishing life, but the risks and costs are undoubtedly high. Sterility and loss of sexual function are likely, and a host of other serious and in some cases life-limiting side-effects are possible. At the very least, lifelong patienthood is a given. Those costs should never be incurred – especially not for a child – while there is any reasonable hope that the underlying dysphoria can be resolved.
This bears reiteration. We have been told so often that it is bigoted, or even genocidal, to seek to cure “trans identities” that the statement above may strike some readers as shocking.
So do the thought experiment. Imagine you are the parent of a ten or eleven-year-old daughter. Imagine that you love her and want the best for her with all your heart. Now imagine that your daughter has recently cut her hair boyishly short, and taken to wearing baggy, shape-concealing boys’ clothes. Imagine she tells you that she thinks she is really a boy. She’s horrified by the first signs of puberty; she says she’s terrified that she’s about to go through the “wrong” puberty; she can’t bear the thought of growing up to be a woman. She tells you her new name. She begs you to find her a doctor who can prescribe her puberty blockers and tell her school that her social transition is to be recognised there. She says she wants to have her breasts surgically removed as soon as possible. When you try to explore with her where these feelings have come from, she weeps and rages, and says that you are emotionally abusing her if you don’t unquestioningly affirm her new identity as a boy.
What is the future you hope for, for this child of yours? A life of medication, surgery, sexual dysfunction, probable sterility, and the physical and psychological impacts of menopause in adolescence? Or do you hope that she may get over these feelings as puberty progresses, and grow up to be a healthy, happy and physically intact woman? Isn’t it obvious that the latter is the better option? If you think these questions betray bigotry, can you identify where precisely the error lies? Do you dispute the factual premise – that gender-affirmation treatment is likely to harm fertility, sexual function and general health? Or do you know a priori that those things can’t register in the balance against the infinite value of affirming identity?
Squires’ claim that it is impossible to see how it can be acceptable for therapy to take as its starting point that it is better not to be trans suggests that neither his instructions from the GLP nor his general reading had yet acquainted him in any detail with the risks and harms of childhood transition, or the heart-breaking testimonies of detransitioners, or the complete absence of any satisfactory evidence base for the social and medical transitioning of children. (Anyone similarly placed would do well to start by studying the many carefully researched and evidenced resources at Transgender Trend.)
Now run the same thought-experiment for a child who tells you that she has strong feelings for girls, and none for boys, and she thinks she is a lesbian. What’s the future you hope for, for this child? She’s only ten or eleven, remember – she may grow up lesbian, or she may not. But isn’t your hope just that she’ll grow up happy, either way? The crucial point is that nothing is required of you, apart from taking the news calmly.
In truth, there is no fair or rational comparison between the two supposed harms of sexual-orientation conversion therapy, on the one hand, and seeking to relieve the distress of gender dysphoria without recourse to medication or surgery, on the other.
We think Squires’ legal analysis in this advice is fundamentally flawed, and any challenge to conversion-therapy legislation as currently proposed along the lines he suggests would be doomed to failure.