Poor wording in the draft bill which gives rise to questions:
No offence is committed under this section where—
(c) 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,
It says "regulatory and professional standards". The 'regulatory' is the problem here since , as it says on the PSA website "Not everyone working in health and social care is regulated by law which is why it is important to choose practitioners from registers we have accredited".
Counsellors and therapists are not "regulated" but most professionals choose to be members of accredited registers which means they will "comply with professional standards".
So, does the wording in this Bill actually mean only those health practitioners who come under a regulatory body (which would, as Dennis has said, exclude counselling/therapy) or should the 'and' in "complies with regulatory and professional standards" actually be "and/or" which would make more sense?
In paragraph 18 where you comment on the defence of showing compliance with regulatory and professional standards you talk about two general "standards of care" (WPATH and that advised by the Interim Service Specification.)
There is also the Memorandum of Understanding signed by 25 organisations including medical and therapy organisations. Might this also be considered a "professional standard" so that a practitioner who did not comply with the MOU would not have a defence? The MOU employs a definition of conversion therapy which is open to wide interpretation, and uses similar vague language such as "suppression" as in the draft bill, and also refers to the therapist's "viewpoint", suggesting that a lack of belief in "gender identity", or even the belief that one outcome is preferred to another (for example the belief that a positive outcome is one where a person becomes reconciled to their sexed body and no longer wants to embark on the medical affirmative treatment pathway), indicates the intention to undertake a conversion practice. If this bill becomes law could the MOU be used in court to undermine a practitioner's defence?
"2 For the purposes of this document ’conversion therapy’ is an umbrella term for a therapeutic approach, or any model or individual viewpoint that demonstrates an assumption that any sexual orientation or gender identity is inherently preferable to any other, and which attempts to bring about a change of sexual orientation or gender identity, or seeks to suppress an individual’s expression of sexual orientation or gender identity on that basis."
Proofreading comment: In paragraph 9 you state that "(iv) Clause 4 and 1(2) criminalises an activity, the purpose and intent of which is “to change a person to or from being transgender”. It further provides that the word “transgender” has the same meaning as in the Sentencing Act 2020. In this case the sentencing act does define the term “being transgender” as follows, “references to being transgender include references to being transsexual, or undergoing, proposing to undergo or having undergone a process or part of a process of gender reassignment[9]”." then later on "(vi) Clause 4 states that the term “transgender identity” has the same meaning as that contained in the Sentencing Act 2020. The Sentencing Act contains no definition of this term."
Excellent and very useful. Just one thing that isn't quite right - at least some psychotherapy and counselling organisations' registers are accredited by the Professional Standards Authority, so I think that would be covered. https://www.professionalstandards.org.uk/what-we-do/accredited-registers/find-a-register/detail/uk-council-for-psychotherapy
Many thanks for this Alice, will look into this point
Please do keep the comments coming if there's any other points, very much treating this as a quick turn around draft 1
Poor wording in the draft bill which gives rise to questions:
No offence is committed under this section where—
(c) 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,
It says "regulatory and professional standards". The 'regulatory' is the problem here since , as it says on the PSA website "Not everyone working in health and social care is regulated by law which is why it is important to choose practitioners from registers we have accredited".
Counsellors and therapists are not "regulated" but most professionals choose to be members of accredited registers which means they will "comply with professional standards".
https://www.professionalstandards.org.uk/what-we-do/accredited-registers/find-a-register/-in-category/categories/professions/counselling
So, does the wording in this Bill actually mean only those health practitioners who come under a regulatory body (which would, as Dennis has said, exclude counselling/therapy) or should the 'and' in "complies with regulatory and professional standards" actually be "and/or" which would make more sense?
Either way, it obviously needs to be clarified.
In paragraph 18 where you comment on the defence of showing compliance with regulatory and professional standards you talk about two general "standards of care" (WPATH and that advised by the Interim Service Specification.)
There is also the Memorandum of Understanding signed by 25 organisations including medical and therapy organisations. Might this also be considered a "professional standard" so that a practitioner who did not comply with the MOU would not have a defence? The MOU employs a definition of conversion therapy which is open to wide interpretation, and uses similar vague language such as "suppression" as in the draft bill, and also refers to the therapist's "viewpoint", suggesting that a lack of belief in "gender identity", or even the belief that one outcome is preferred to another (for example the belief that a positive outcome is one where a person becomes reconciled to their sexed body and no longer wants to embark on the medical affirmative treatment pathway), indicates the intention to undertake a conversion practice. If this bill becomes law could the MOU be used in court to undermine a practitioner's defence?
https://www.bacp.co.uk/events-and-resources/ethics-and-standards/mou/
This is the relevant bit in the MOU
"2 For the purposes of this document ’conversion therapy’ is an umbrella term for a therapeutic approach, or any model or individual viewpoint that demonstrates an assumption that any sexual orientation or gender identity is inherently preferable to any other, and which attempts to bring about a change of sexual orientation or gender identity, or seeks to suppress an individual’s expression of sexual orientation or gender identity on that basis."
Really excellent analysis, Dennis, thanks.
Will cross post
Dusty
Proofreading comment: In paragraph 9 you state that "(iv) Clause 4 and 1(2) criminalises an activity, the purpose and intent of which is “to change a person to or from being transgender”. It further provides that the word “transgender” has the same meaning as in the Sentencing Act 2020. In this case the sentencing act does define the term “being transgender” as follows, “references to being transgender include references to being transsexual, or undergoing, proposing to undergo or having undergone a process or part of a process of gender reassignment[9]”." then later on "(vi) Clause 4 states that the term “transgender identity” has the same meaning as that contained in the Sentencing Act 2020. The Sentencing Act contains no definition of this term."
Is this an error, or am I missing something?
Not an error (I hope). The sentencing act defines "transgender" but it does not define "transgender identity".
Ah - thanks. Bloody good work, anyway.