I am a doctor who has been acutely aware throughout my career of the possibility of doing harm with good intentions. The world-famous Dr Spock sold millions of books from the 1950s which recommended putting babies to sleep on their front. It seemed sensible at the time – surely they would be less likely to choke on vomit? But while the advice might have been well intended it was wrong. We now know, through research, that it is safer if babies sleep on their backs. Thousands of babies died from sudden infant death syndrome because of this wrong advice. We did not test Dr Spock’s assumption for years – and we did not know we were doing harm until we did the research.
Good intentions are not enough – we also need to interrogate policies for potential harms
In a similar way, the Scottish government has now passed the Gender Recognition Reform (Scotland) Bill in order to, as they put it, make it easier and quicker for transgender individuals to change their legal sex. The Bill will remove the medical panel who used to screen applications, and the need to have a diagnosis of gender dysphoria before a certificate is granted.
Changing legal sex – a paperwork exercise – does not change the physical body. But we seem to have become confused as to the difference between sex and gender. After a ruling by the Scottish judge Lady Haldane in December, sex and gender now seem to mean different things, legally, in different contexts. This is not helpful. In medicine, we need to be clear about both meanings and their limits. We should also want to be compassionate – people with gender dysphoria can suffer a great deal. Yet it is not kind or compassionate for doctors to give false promises and the impression that medical intervention can change an individual’s sex. We cannot. Appearances can be changed, hormone levels can be altered, organs can be removed – but none of this changes someone’s sex.
What does this mean in practice? Sometimes it is sex, and not someone’s self-identified gender that matters. This can have real impacts. Single-sex services – for example, rape crisis centres – need to be assured that the ability to exclude males will be protected. Women should be able to request female-only care (a request often made by women with a history of sexual assault). Yet, watching the debates in the Scottish Parliament, and having seen the impact of self-identification in women’s sports over the last few years, it is unclear to me that we are seeking ways to ensure that trans people have respect and dignity while also upholding women’s rights – and while acknowledging the limits of medical intervention and the immutability of sex.
There is no doubt that many people pressing for change have good intentions. But good intentions are not enough – we also need to interrogate policies for potential harms. A small number of applications for a gender recognition certificate are rejected – at the last count in 2021, this was 7 per cent. I asked the Scottish government via a Freedom of Information request why that was. I was told I could not have any information, even in broad terms. So we do not know whether these people were rejected because of a minor error with paperwork, or if some were bad actors seeking a gender recognition certificate in order to access spaces designed only for women and were prevented from doing so. We do not know, and nor do the MSPs who have voted on this Gender Recognition Bill. What we do know is that sex offenders are devious, determined and will exploit loopholes. Why would we not want to exclude these individuals from changing their legal sex? We need certainty that female only spaces – like rape crisis centres – can be single sex.
The other major change in the Bill is reducing the age that someone can apply for a gender recognition certificate from 18 to 16. One of the most troubling aspects of recent years has been the steep rise in young people, especially girls, referred to the Gender Identity Development Service. The fact that adolescents, particularly girls, sometimes hate their bodies is, sadly, nothing new. Anorexia, eating disorders and self-harm also occur around the same time as puberty and profound changes in the body are experienced.
We support young people with these conditions to see past their misperceptions – not validating a young person’s view that their body is as awful as they fear. The model for gender dysphoria – validation – is quite different. Sweden has recently made clear that it firstly recommends psychosocial support for young people with gender dysphoria, and only offers medical intervention rarely. Indeed, the vast majority of young people with gender dysphoria will recover without medical intervention – and this includes young people who were completely certain of their wishes at the time.
What does this mean for the young person who changes their legal sex after this Bill is passed? Will it make it harder for them to change back their gender – especially since the government have said that a false declaration will be a criminal offence? These young people are not criminals in any sense and need support, not uncertainty.
Nor have the potential impacts been examined on the pressure young people may feel to have medical intervention after a change in legal sex. Medicine does not exist in a vacuum – it responds to social changes and pressures.
It is also troubling how many MSPs do not seem familiar with the Interim Cass report, where she writes that social transition is ‘not a neutral act’.
I repeatedly hear MSPs in support of the Bill say that this has been a long consultation, implying that this infers high quality. But quality would mean having properly looking at the potential harm the Bill may cause, considering this, and mitigating against these harms. The fact that so many amendments were submitted by MSPs is a clue this hasn’t been done. There is a large difference between having evidence that something is not harmful – a study which looked for harms and reported on not finding them – and not having evidence at all. Reem Alsalem, the UN special rapporteur on violence against women and girls, explained this week that, with an absence of systematic research, reports internationally of harms resulting from similar self-identity laws rely on media reporting. This should have led to the Scottish Parliament investigating the matter with high quality research. Solutions are possible – for example, allowing people who wish to add a gender marker to their legal sex on official documents. This would recognise someone’s preferences while also maintaining medical and legal accuracy, as well as making it easier to ensure sex-based rights. Medicine has had to learn the hard way about unintended consequences – we need our lawmakers to ‘do no harm’ as well.
Comments