The government has had to bow to the inevitable and cancel its own international LGBT conference after more than 100 organisations withdrew their support as a protest against the decision to not ban conversion therapy for transgender people. The die was cast much further back than last week’s botched double-U-turn on a ban on gay conversion therapy: it was when ministers committed to the legislation without thinking it through at all.
This latest row highlights one of the serious problems with the way Westminster deals with legislation. Its focus is almost entirely upon the principles at stake, rather than the impact of the way the laws are drafted. This means that if someone raises concerns about the unintended consequences of a proposed bill, their critics will engage with them not on the point of detail they are concerned about, but on the overall principle.
Surely we want legislation that works, rather than merely claims to work? MPs all too often seem to be happy with the latter
In this case, there were concerns from bodies such as the Equalities and Human Rights Commission about the possibility that the proposed law might accidentally criminalise doctors and counsellors who are helping under-18s to explore whether they are experiencing gender dysphoria or are uncomfortable with their bodies for another reason. The EHRC actually did call for rules on trans conversion therapy ‘once more detailed and evidence-based proposals are available which can be properly scrutinised.’ Former Downing Street director of legislation Nikki da Costa had also raised
worries that ministers were rushing this legislation and were not waiting for the NHS’s Cass Review of gender identity services, which would provide the kind of evidence-based approach the EHRC recommended. Da Costa didn’t object to the principle of banning harmful conversion therapy for trans people: she merely suggested the government slow down, and set up pre-legislative scrutiny of a draft bill to test the policy.
Surely we want legislation that works, rather than merely claims to work? MPs all too often seem to be happy with the latter. Take another hotly-contested policy area. When the Conservatives in the Coalition government of 2010-15 decided to cut housing benefit so that it would only be paid for the rooms a housing association tenant was actually using, they robustly defended the principle of a policy that would save money and also encourage people to move out of big homes they no longer needed when hundreds of thousands of other families were in overcrowded accommodation. The problem, critics pointed out, was that there weren’t enough smaller properties for tenants to move into and the cut didn’t apply to people who refused to move – it hit everyone, even those who had tried their best and couldn’t find a one bedroom flat. Ministers ignored this inconvenient detail and ploughed ahead with what became known as the ‘bedroom tax’ and inflicted a great deal of misery on vulnerable people without saving anything like the original estimated sum. The principle was so important that it didn’t matter whether it would work or not. Many MPs didn’t even notice the problem on paper until people arrived, desperately stressed, in their constituency surgeries (at which point they had some pretty awkward conversations with their local housing associations, who pointed out this policy the MPs were cross about was something they’d actually voted for).
The conversion therapy ban row is just the latest example of the Something Must Be Done instinct in all governments. A bad thing exists, therefore something must happen to stop it. Ministers then often alight on a certain policy without noticing they have made a logical leap to assuming that this is the one Thing that should be done, without checking that it’s the right Thing to do.
Very few people really think it is acceptable that in this day and age counsellors or religious groups should claim to ‘pray away the gay’, often subjecting their charges to humiliating and painful rituals. Very few people think this would be at all acceptable for trans people either. Something must therefore be done to stop these practices. That does not mean that the thing that is being proposed is necessarily the right thing. A diagnosis of gender dysphoria does – and in most cases should – have life-changing consequences for someone. People who have detransitioned often say they wish someone had probed their feelings a little more deeply when diagnosing them with gender dysphoria – not hectored them or prayed over them or made them feel as though they were just going through a silly phase, but gently used their clinical skills to make sure. Some campaigners might argue that detransitioning is rare and shouldn’t be used to distract from the needs of the majority of trans people who already have to jump through far too many hoops. But good government and good legislative scrutiny should make accommodation for rare cases as they too involve people’s lives. And the concern here is that the very people providing the care trans people need could inadvertently be criminalised.
Of course the debate around gender issues has become so toxic that it is difficult for anyone who has boring concerns about detail not to be dragged into one ‘side’ or another. This is, as I’ve said before, in part down to the total absence of leadership on the matter from top politicians who have a responsibility to set the tone, not just bleat from the sidelines about how nasty everyone else is being.
It has made it much harder to have the conversation about unintended consequences that should have happened long before the government made its botched commitment to any kind of conversion therapy ban. Ministers will now be so rushed by similar protests and amendments to the legislation that they are likely to end up with a law that, like so many other Something Must Be Done bills, ends up being corrected repeatedly in years to come after its errors become unavoidably clear.
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