So we are currently seeing a bill in progress in parliament over convention therapy. Here's Dennis to explain a few points and why it's very relevant to this thread:
Dennis Noel Kavanagh AT Jebadoo2
1/ I've completed a legal analysis of the Commons Private Member's Bill I did for GMN from the perspective of how the legislation works (or doesn't) as a criminal statute. You can read the somewhat detailed analysis here on my substack.
^dennisnoelkavanagh.substack.com/?utm_source=navbar&utm_medium=web&r=rdu7p^
2/ The final draft of the bill (version 7) is available here and there's a copy of the text of the bill as Annex A to the substack piece.
^www.russell-moyle.co.uk/conversion/^
3/ My basic conclusion is this. This bill is very different to its House of Lords or Scottish counterparts and it clear that real listening and discussion has taken place with many legitimate concerns reflected in the draft and efforts made to address them.
4/ While these efforts are a great sign and very welcome, I leave the draft with serious reservations in a number of respects. First, core terms like "sexual orientation" and "transgender identity" are not defined and they ought to be.
5/ Second, the words "supress" and "identity" in the conversion practices offence definition in clause 4 are very wide and potentially cast the net of criminal liability into places no one really intends that it should land.
6/ Third, that the statutory defences in clause 1(2), while well intentioned, are sometimes ineffective because of circularity or clear lacuna in law (such as the familial exemption being predicated on exercising parental responsibility.
7/ This is my first draft of this advice as the final bill was only released today, I plan to return to this subject specifically from my home territory as a practitioner, that is to say the interface between criminal law and human rights.
8/ On a positive note, I should say the commons debate is markedly different to Scotland and the Lords. I'm hopeful as there is a real sense legitimate concerns are being taken seriously and it's positive to see attempt to address them.
9/ Finally, I emphasise this analysis is confined to the efficacy of the bill as a criminal statute, the wider politics (about which there is a lot to say) are a subject for another document, one I will work on this weekend :)
See points 4 and 5 and think about the consequences of 'open' definitions.
When you read the details of his article which is difficult to understand as a layman not versed in law it's really quite alarming in a number of ways.
My selected highlights given that Jess tells us that pronouns are merely polite and respectful and it's not about power whilst she will be voting on this Bill at some point.
3. Outside of classic criminal offences (such as gross negligence manslaughter[2]), it is unusual for criminal liability to be countenanced by legislators for clinical, familial or social interactions without demonstrable clear harm and a consensus around that harm (see, for example the Female Genital Mutilation Act 2003). Criminal statutes ordinarily feature a higher harm threshold beyond the sort of conduct that would be dealt with via a professional regulator. Such statutes are also ordinarily drafted with Human Rights obligations in mind and the risk of a party seeking a “declaration of incompatibility” from the High Court via s.4 of the Human Rights Act 1998. The creation of criminal statutes is one of the most serious and important matters legislators deal with, for this reason criminal offences (and defences) are overwhelmingly contained in statute and not secondary legislation such as statutory instruments.
Define harm. What is harm? Is it only psychical? Psychological harm. How do you measure it and fairly assess the impact? We already have this social debate amongst generations about the pathologising of a lack of resilience and resistance to the word no as 'hurt'
4. Given the above, the draft bill is an unusual piece of legislation in four respects. First, it exposes a wide range of people in otherwise lawful settings to potential criminal liability. Second, there is no harm requirement at all. Third, it is far from clear how the bill can be reconciled with the following articles 6 (fair trial), 8 (respect for private and family life), 9 (freedom of thought, conscience and religion) and 10 (freedom of expression). The bill contains a wide “Henry VIII” clause which allows a Secretary of State to modify (and therefore delete if he/she wishes) the proposed “carve outs” at clause 1(2). This represents a highly unusual and undesirable transfer of power from the legislature to the executive in the formation of a criminal offence.
Ooo Henry VIII clauses. Those of you familiar with Brexit may understand the implications here. For those of you who don't, it means a singular minister, without parliamentary or public scrutiny, can come in after the fact and change them. They are fundamentally undemocratic and are risk of abuse by anyone who gets that position using them in a dictatorial or authoritarian way.
What's are the carve out clauses?
10. Clause 1(2) lists a number of circumstances where a Defendant could rely on a statutory defence to rebut the Prosecution case. These defences reflect areas of concern raised with similar legislation and represent an effort to confine the width of the core offence. While the carve outs make some progress in this area as compared to other similar bills, there are still highly problematic areas, some of which render the carve outs ineffective or limited in scope.
So in essence they are exemption clauses which layout defences that can be used. There are quite a few of them but I'll pick out a couple that have caught my eye from what Dennis has said.
Approval/disapproval
13. Clause 1(2) (b) provides that no offence is committed where “a person expresses to another person their disapproval of, or acceptance of, that person’s sexual orientation or transgender identity or lack thereof”. Acceptance and disapproval are not defined within the bill, and it is very difficult to see how an instance of “acceptance” could possibly meet the definition of a “conversion practice” given that concept is predicated on an intent and purpose to change or supress a status. It is likely the word “acceptance” here is otiose.
14. The word “disapproval” in this defence sits in tension with the word “supress” in the interpretation section. By way of an example, a parent of an autistic child wishes them not to privately source puberty blockers and is prosecuted for an activity which is intended and has the purpose of supressing a transgender identity. At trial, the parent relies on the Clause 1(2) (b) defence and invites the tribunal of fact to acquit on the basis they were simply showing “disapproval”. It is unclear how that fact pattern would be resolved by this draft legislation. Accordingly this defence is vague and potentially either very wide such that it would provide a defence in these circumstances or it is very narrow and would extinguish a parent’s rights in these circumstances. In the latter case, such a situation would raise clear Article 8 issues around the right to respect for private and family life.
And then we have health where he details a few points which I summarise a few here:
Health practitioners
15. Clause 1 (2) (b) provides that no offence is committed where:
a health practitioner takes an action in the course of providing a health service, provided that—
(i) the health practitioner complies with regulatory and professional standards and considers in their reasonable professional judgement that it is appropriate to take that action, and
(ii) there was no predetermined outcome in terms of sexual orientation or transgender identity or lack of it at the start of any course of
treatment
This is a complex defence which consists of three concepts, first the meaning of “health practitioner, second the clause 1 (2) (b) (i) requirement of reasonableness and compliance and third the clause 1 (2) (b) (ii) requirement that there be no predetermined outcome.
His key points are
- Clause 4 of the bill provides that a “Health Practitioner” “a person who is a member of a body overseen or accredited by the Professional Standards Body for Health and Social Care
It is important to note that none of the bodies mentioned here regulate counselling or therapy, while the Health and Care Professions Council (ix above) regulates practitioner psychologists the wider fields of counselling and therapy are not regulated in the UK and would fall outside this defence
By way of example, a private counsellor who told a young patient to their professional view was that they were suffering internalised homophobia and manifesting a transgender identity as a result could in theory be prosecuted for a single activity intended and having the purpose of supressing a transgender identity. Given the interim Cass report[15] emphasises the importance of multi-disciplinary intervention, counselling and therapy, it is surprising that such services are placed in jeopardy of criminal prosecution
17. It is a defence for a “Health Practitioner” meeting the definition in part 1 to show that they were complying “with regulatory and professional standards and considers in their reasonable professional judgement that it is appropriate to take that action”. Placing a requirement on a Defendant in a criminal matter is known as a “reverse burden of proof” (because the burden of proof ordinarily rests with the prosecution). Reverse burdens are generally considered undesirable as a matter of principle, though it is correct to say that despite this many offences do impose them. Reverse burdens in crime are discharged by a Defendant if they meet the civil, rather than criminal standard of proof, that is to say a Defendant would succeed in discharging this burden where they can prove that their case is more likely than not (“the balance of probabilities”
Reverse burden of proof is a huge one here, when we've had a bunch of cases which have used litigation as a form of harassment. Or when you consider that it's been for women to take others to court to assert their rights / obligations / duties in law. A social worker or councillor nstead of having to demonstrate she was treated unlawfully in a civil job tribunal could instead be taken to criminal court for acting in certain ways.
It gets worse
19. Many private providers in this field follow the WPATH model, NHS practitioners are expected to follow the NHS ISS. The draft bill presently fails to say which standard is intended to ground the Health Practitioner defence. If WPATH service standards constitute a defence, the bill risks entirely undermining the Cass review and thwarting the objective of criminalising a situation in which a young person is subject to a conversion practice whereby cross sex ideation is induced or cultivated. If the NHS ISS service standards are intended to constitute the defence this should be stated in terms, (though it would have the effect of making non-NHS approved practice in this area subject to potential criminal liability, rather than it being a regulatory matter). The second limb of this part of the defence requires that the judgment of the Health Practitioner be reasonable. This is likely to be duplicative and add very little to the first requirement that a Health Practitioner be acting according to regulatory and professional standards.
20. A Health Practitioner completes this defence where they show, on reverse burden, that “there was no predetermined outcome in terms of sexual orientation or transgender identity or lack of it at the start of any course of treatment”. This is a potentially stringent requirement both in the case of clinicians subscribing to the “affirmation only” approach and those adopting the NHS ISS “watchful waiting” approach. In the former case an adherent to “affirmation only” will conceptualise a child’s self-diagnosis as definitive and seek to accelerate progress onto puberty supressing drugs and cross sex hormones, they will in other words have in mind that predetermined outcome. Conversely, a clinician following the NHS ISS may quickly come to the conclusion that diagnostic overshadowing and comorbidities are at play and have the predetermined outcome of avoiding precisely such a medical pathway
If you haven't worked out this is absolute car crash of a bill yet you aren't paying attention. And given that pronouns are a key point of an affirmation only model, they absolutely aren't merely polite - and we have a bill which is currently incoherent at best, contemplating something which might have an impact on the legality or illegality of the use of pronouns with the sword of criminality hanging over it. I have no idea what the implications for teachers are here.
We will carry on:
The “parental responsibility” defence
(Italics start) 24. By clause 1(2) (f) no offence is committed where a Defendant is “a person is exercising parental responsibility for a child” so long as they discharge a reverse burden of showing that “the child’s welfare is the person’s paramount consideration”. There are three clear issues with this defence. First, not all those with caring responsibilities have parental responsibility[18], by law all mothers do, a father will obtain parental responsibility either by marriage prior to the birth or if listed on the child’s birth certificate[19]. It follows that family members outside of the concept of parental responsibility may not rely upon this defence which raises clear Article 8 issues as to respect for private and family life. Second, the defence requires that parental responsibility be “exercised”, parental responsibility is broadly speaking the duty to provide a home for and maintain a child and see to their day-to-day welfare. As children get older, they become more and more competent at law to look after themselves and parental responsibility is thus exercised less. It follows from this that not all Defendants who have parental responsibility under the relevant legislation will necessarily be exercising it
(Italics end - MN being an arse)
Imagine two parents who disagree about their child's care. One wants watchful waiting and the other wants private care on the WPATH pathway. The burden of proof is on the defendant to prove parental responsibility applies and the child isn't gillick competent. And have the funds to match the other parent. Those fucking pronouns matter in a criminal case...
And so we go on with farce of a bill being written by fuckwits who don't comprehend much at all about this subject nevermind how the law works in practice
8. A “conversion practice” is defied in clause 4 of the bill in the following terms.
“conversion practice” means a course of conduct or activity, the predetermined purpose and intent of which is to change someone’s sexual orientation or to change a person to or from being transgender, including to suppress a sexual orientation or transgender identity so that the orientation or identity no longer exists in full or in part
Any bill criminalising an activity, the purpose and intent of which is to supress a transgender identity presumes (prima facie) such an identity exists or is capable of existing. This is a radical departure in law from the present position in the Equality Act 2010 where such identities are not protected characteristics. Following Forstater, it is also clear that such identities are contentious political concepts. It would therefore be a radical departure in terms of the independence of domestic criminal tribunals to try cases on the basis such identities are capable of existing and impermissibly contravene article 6 by compromising the political character of the court. In requiring a court to embrace a politically contested concept where one side of the debate believes in the existence of that concept and one does not, the court becomes, in effect a religious court siding with those who have such a belief. This poses grave and serious questions regarding Articles 9 (freedom of belief) and 10 (expression).
There are serious practical implications to the inclusion of a contested belief in criminal courts. The following points arise:
(i) No juror or Magistrate with the protected characteristic in Forstater could fairly try the proposed offence because they would reject any contention “identity” existed, if such were excluded this would skew the tribunal such that only those believing in the concept of “transgender identity” would be try such cases. That would represent a political selection of a tribunal which is unheard of in law.
(ii) The Crown at law must prove a case beyond a reasonable doubt/so that a jury is sure. As identity is a self-reported phenomenon, only the evidence of a complainant could directly speak to this fact. The defence would be incapable of challenging this evidence beyond obvious instances of self-contradiction or concession. This is highly unusual. The Defence in a criminal trial are ordinarily entitled to call evidence on “facts in issue” as fairness demands both Crown and Defence have an opportunity to be heard on the relevant matters.
(iii) It is unclear whether the Defence might be entitled to call evidence to suggest that “transgender identity” exists or not. If the Defence were so permitted, and called, for example, gender critical authors or thinkers, the jury would be left with the political question as to whether the contested concept were proved. If the Defence were not so allowed, the court would, in effect, be directing the Defence that belief in gender identity ideology was mandatory (and if so the Defendant themselves would be prevented from giving evidence on the point according to the principles of relevance). Both are highly unusual outcomes in criminal courts.
(iv) The bill contains no definition of transgender identity at all. That is highly unusual for a criminal offence to feature a contested and key term and not to define it.
Yes folks. It's that bloody bad. Open ended and riddled with badly defined phrases which make the issues with the Equality Act look miniscule despite the mountain of court cases piling up.
While this is still a bill and not law, I'm struggling to see how it's remotely fixable tbh in the context of fuzzy understanding and willingful ostraiching by politicians intent on saying that pronouns are merely polite and don't contain power. Labour are committed to it, even if the Conservatives don't manage to pass it by the end of this parliamentary session.