Conversion Practices (Prohibition) Bill

Debate between Neale Hanvey and Nick Fletcher

2nd reading
Friday 1st March 2024 Commons Chamber

[Neale Hanvey]

Yes. As I was saying, the document points out that the use of the Sentencing Acts definitions is “problematic” because the definition of

“‘sex’…is not settled in law and a Supreme Court Case on the subject is pending. ‘Transgender Identity’ is similarly problematic because the concept of ‘identity’ is wider than the equivalent protected characteristic”

in the Equality Act.

The document moves on to the ineffectiveness of statutory defences, saying:

“While Clause 1(2) of the bill makes serious efforts to deal with concerns around prosecutions each defence raises serious issues in the following terms:

a. The religion defence is not a statutory defence at all because it cannot apply where a conversion practice has taken place. This means it is not an excusatory defence in criminal law.

b. The ‘approval/disapproval’ defence is vague and ‘disapproval’ is not defined

c. The ‘health practitioner’ defence is a complex three-part defence which places the ‘reverse burden’ on a Defendant. The definition of a ‘health practitioner’ at Clause 4 covers most but not all clinical roles, (unregulated therapists, counsellor, helpline operators or online forum moderators would not qualify). To rely on this defence, a health practitioner must also prove to the civil standard (i) they were complying with regulations (this term is not defined) (ii) that the action they took was reasonable and (iii) that there was no ‘predetermined outcome’. Placing reverse burdens on Defendants (particularly clinicians or similar) is generally considered to be undesirable because Defendants are not expected to prove their innocence. Legitimate clinical practice will sometimes have a predetermined outcome where a confident and clear diagnosis is made.”

I can think of examples where that would apply in clinical practice.

The document continues:

“d. The ‘assisting’ defence is unclear and undefined.

e. The ‘exploring or questioning’ defence suffers from the same flaw as the religion defence, it applies only where a conversion practice is not proved and so is not a statutory defence at all.

f. The ‘parental responsibility’ defence applies only where a person having parental responsibility (i) is exercising it and (ii) where they prove on reverse burden that the welfare of the child was their paramount consideration. As children get older parental responsibility in law is ‘exercised’ less and less. Requiring a parent to prove that welfare was not simply a consideration, but a ‘paramount’ consideration is onerous and likely impossible for a Defendant parent to prove.”

The Gay Men’s Network also addresses the human rights issues we heard about from the two KCs earlier:

“We take the view that the bill as drafted is not compliant with the Human Rights Act 1998 and would likely be declared incompatible with the convention for the following reasons:

Right to a Fair Trial (Article 6)

A prosecution alleging a parent supressed an identity by regulating clothing would require a parent to accept that such an identity exist. That is contrary to Article 6 which requires criminal tribunals be independent. It would also compel belief in the criminal sphere in such a concept while disbelief in such a concept is a protected characteristic in the civil sphere. That would create a serious inconsistency in law.”

That is very clear. The document continues:

“The bill leaves key terms undefined which is contrary to the Article 6 right that a Defendant understand the case against them in ordinary and clear language. The reverse burdens in clause 1(2) impose significant and onerous burdens on Defendants and in some cases do not amount to statutory defences at all.

Right to respect for private and family life (Article 8)

The bill makes significant incursions into family life by potentially criminalising parental guidance or regulation that touches on sexual orientation or ‘transgender identity’. Difficult conversations that parents have”—

as we spoke about some time ago—

“as a matter of course would potentially be criminalised. Further, a parent can only rely on the relevant defence as outlined above. This is highly likely to be viewed as significant state overreach by domestic and supra national courts.

Right to freedom of conscience (Article 9) and expression (Article 10)

This bill would significantly curtail both religious and political expression. A similar bill passed in Victoria, Australia, led to the domestic human rights body regulating public prayer. The fact that criminal liability can trigger from a single incident and the wide meaning of the term “supress” casts the net of criminal liability so widely the offence is likely to be declared incompatible with the convention.”

The document concludes:

“While the member for Brighton Kemptown has made significant efforts to deal with such concerns our position is that a bill based on the self-reported phenomenon of ‘identity’ and the wide term ‘supress’ might, despite best efforts, perversely fuel the very problem that it intends to solve.”

As I mentioned earlier, like section 28, the Bill would likely prevent a young person from securing an explorative conversation with even the most supportive and receptive trusted adult, due to its chilling effect. I have also raised the question of who would then provide the approved therapy.

Moving on to therapists, in a recent paper, educational psychologists Dr Claire McGuiggan, Dr Peter D’Lima and Lucy Robertson highlight the assumption that psychologists will be the ones who will guide the response and who have the skills to do so, but observe that psychologists are divided on this issue, too. They note the following:

“In response to the interim findings of the Cass review…the Association of Clinical Psychologists-United Kingdom…published a statement demanding a radical shift in the support for young people with gender concerns. They called for more comprehensive multi-disciplinary assessments and increased consideration of sociocultural factors, such as homophobia. The ACP-UK also strongly conveyed the uncertainty about how best to intervene related to the dearth of robust and high-quality data on the safety and effectiveness of medical transition, and the inability of clinicians to ascertain clearly who will persist or desist in their gender dysphoria…The ACP-UK statement was met with a rebuttal from a group of clinical psychologists in an open letter to the ACP-UK…They disassociated themselves from the ACP-UK response…Within educational psychology professions, however, only two educational psychologists have publicly referenced the concerns reflected in the Cass review.”

Apart from those two voices, the psychologists claim that there is silence, avoidance and suppression.

Silence: there is no response from the Association of Educational Psychologists or the Division of Educational and Child Psychology, and no guidance or caution, despite it being reported that educational psychologists are expertly placed to support trans-identified young people. Avoidance within the profession: it almost appears as if the Cass review did not happen at all, and that there is clear consensus on how best to support trans-identified youth. Their approach is affirmation, and that is the problem. Alongside that, there is suppression. That is being enacted on social media, where clear messages have been put out that if anyone asks a difficult questions, they are to be shut down and reported to the regulator and will face disciplinary action. That is the culture at the back of all of these pieces of legislation. That is the risk: professionals cannot become activists. That is happening in education and in educational psychology.

The paper led the authors to raise the fundamental position—I absolutely agree with it, and it applies to so many disciplines—that surely a healthy profession, a profession which prides itself on child-centred, evidence-based reflective practice, cannot continue to avoid, ignore or suppress the issue any longer. It must openly, explicitly and deeply engage with it. Disagreement must be tolerated and explored. The alternative is avoidance of the issue to protect educational psychologists from discomfort at the expense of the needs of children.

[Nick Fletcher (Don Valley) (Con)]

The hon. Gentleman is making a fantastic speech. I live by this quote of Thomas Sowell:

“There are few things more dishonorable than misleading the young.”

It has stuck with me ever since I read it. The House needs to remember that. Does the hon. Gentleman agree that if we can only affirm a child’s choice, to believe that they are in the wrong body, we are in a desperate situation and would be in a place where we were misleading the young? That would be absolutely tragic for every child, every parent, every teacher, every member of the clergy and every practitioner, not just in this country, but across the world.

[Neale Hanvey]

I thank the hon. Gentleman for making that important point. This is a question that every single Member of the House needs to bear in mind: what will they do in five or 10 years’ time, when a sea of people who were affirmed and rapidly put on to a pathway of irreversible treatment, come to the politicians and say, “You did this to me. You said this was okay. You made this policy. You stopped me from accessing therapy. I needed therapy”?

We have had the warning signs from Keira and others. We know that that is a real risk and we know that detransitioning is under-reported. A lot of people are out there, suffering in silence. They are not being listened to. No services are reaching out to them. They may feel completely lost and at sea. We have to think very carefully about facilitating that and putting a new tranche of young people on to that irreversible pathway.

The EPs made a really important point, and I will take up another point from the intervention of the hon. Member for Don Valley (Nick Fletcher). My professional background is in working with young people in cancer care. I worked with older paediatric patients from the ages of 11 upwards and sometimes into young adulthood. It is quite amazing how young people can accommodate some of the most difficult information. They can face challenges that would humble most of us and make well-informed decisions, but the reality is they have no choice in that situation, because they have cancer, and nobody can make that go away. I know that young people can make courageous decisions, but there is a fundamental difference between helping and guiding a young person through those types of choices and affirming a young person on an irreversible pathway of medical surgical intervention that is completely unnecessary. I cannot for the life of me understand how any professional can say, “I did a good job today because I have allowed this young person to go down this irreversible pathway,” knowing full well the later effects of those types of treatments.

All that is important, because comprehending one’s adult self as a child is different from dealing with difficult questions that cannot be avoided. While children have aspirations and ideas about who they want to be when they grow up, based on their experiences and observations, their understanding is limited by their cognitive, emotional and physical development. Proponents of queer theory often claim that Gillick competence allows all children to consent to any treatment or process, but that is a complete misunderstanding of what Gillick competence is. It is a name conferred to a legal principle established in the UK with Gillick v. West Norfolk and Wisbech Area Health Authority, which states that minors under the age of 16 can consent to medical treatment without parental consent if they demonstrate sufficient understanding and intelligence to comprehend the nature and implications of the treatment.

I refer back to the comments I just made: that is simply not possible, because that is not something a young person can do. Children cannot grasp the full complexities of adulthood in the way that adults can, and they do not have the ability to project themselves into their as yet unformed future adult self. However, children can still develop a sense of their future selves, which may evolve and change as they mature. The best way to deal with that is to build a relationship with them, talk about how they feel about things and themselves and have that dialogue. This legislation limits that, and that is important parenting.

Piaget’s theory of cognitive development highlights how children’s understanding of themselves and the world evolves as they mature, and other researchers have also looked into childhood development. We know the science behind all this, and the Bill gets in the way of allowing children to actualise and become their authentic selves by limiting their exploration of these important and defining facets of who they ultimately will become.

All the above leads me to my final argument: the inversion of John Stuart Mill’s harm principle. Articulated in his work “On Liberty”, it asserts that the only justification for society or the state to interfere with an individual’s liberty is to prevent harm to others. According to Mill, individuals should have the utmost freedom to act as they please, as long as their actions do not harm others. That principle rests on the idea of individual autonomy and the importance of personal liberty in a free society, and it has profound implications for the role of Government and the limits of state power. It advocates for minimal interference in the private lives of individuals, allowing them to pursue their own interests and lifestyles without undue constraint, as long as they do not infringe on the rights and wellbeing of others. The Bill unquestionably interferes with the freedoms, rights and wellbeing of everyone, including those whom it claims to protect.

Mill’s harm principle remains a cornerstone of liberal thought, emphasising the importance of individual freedom while acknowledging the need for societal constraints when harm is involved. This Bill ushers in a wholesale redefinition of the harm principle whereby it will be illegal to say the “wrong thing” even if it inflicts no perceivable harm, while simultaneously inflicting a totalitarian queer theory world view on everyone else. That is my fundamental concern about the Bill. I think it important that we address the issue, but now is the wrong time, this is the wrong Bill, and queer theory is absolutely the wrong backdrop. If we really want to protect gender non-conforming and other vulnerable young people, we should recognise that they deserve a robust defence of free speech as a basic right, essential for the exchange of ideas and the pursuit of truth.

Despite the sincere attempts of the hon. Member for Brighton Kemptown to carve out exemptions, we simply cannot ignore the fact that the Bill is the thin end of the wedge of the introduction of queer theory doctrine into UK law, and the survival of those exemptions is contingent on their not being amended or nullified by the insertion of new clauses and amendments. This is not a ban on conversion practices; it provides the ammunition of criminal accusations for radicalised gender activists, many of whom are vociferously homophobic. Any legislation that facilitates a process to “trans away the gay” is deeply sinister and dangerous.

As I said at the outset, legislation is supposed to fix a problem, not create a new one. This proposal does real and foreseeable harm, and it should be rejected by every Member of the House and every LGB and T person who truly values the equality and the fundamental human rights of everyone. This legislation must ultimately be defeated, or we will risk depriving a generation of young LGB and T people from becoming the fabulous, vibrant and unique gender non-conforming people they have every right to be.

I will end where I began my contribution to the recent Westminster Hall debate, by quoting Kierkegaard, who said:

“There are two ways to be fooled. One is to believe what isn't true; the other is to refuse to believe what is true.”