* NB: For non-UK readers. The original Gillick case in 1985 addressed the issue of the capacity of young people under 16 years in England and Wales to consent to medical treatment (Gillick v Norfolk AHA ). It determined that young people under 16 could consent, without requiring parental knowledge or consent, if they demonstrated ‘sufficient understanding’ of the treatment and its likely consequences.
The Tavistock court cases have thrown law, therapy and medical treatment for transgender young people into crisis. The court judgments call into question the practice adopted by the main service for transgender youth in England and Wales, i.e. the Gender Identity Development Service (GIDS). This is part of the prestigious Tavistock Institute, currently celebrating its centenary. The courts’ decisions have challenged the rickety consensus on affirmative therapy, now embraced by a wide range of institutions and professions. This process throws into doubt this model’s underpinning assumptions about adolescent autonomy for transgender children and young people regarding social and medical transition. This article focuses on ethical, legal and professional issues related to counselling for transgender children and young people. It does not seek to directly address issues relating to transgender adults, although there may well be some element of crossover on key points.
How did we get to this point?
To understand the roots of the current crisis and the subsequent debacle at the Tavistock, we need to retrace our steps, if only briefly. The origins of current transgender practice were effectively laid by Michel Foucault, in the form of Queer Theory. Foucault, the authentic voice of post-grad miserabilism, developed his theory in the context of the defeats of the French Left in the 1960’s and 70’s. His epistemology (or theory of how we know what we know) is based on a recurring, cyclical process of radical redefinition (“the critique of what we are”). This is followed by a continuous testing and transgression of boundaries (“an experiment with the possibility of going beyond…”) (Foucault, 1986, in Spargo, 1999: 69). This is all in pursuit of a somewhat ill-defined personal liberty (see Figure 1: Schematic model of Foucauldian Practice). Or, as reframed by one trans commentator, “Anything that can subvert gender norms is a huge, beneficial thing for any questioning person” (Faber, 2021: 33).
Transgender politics thus translate as the application of Foucault (or, at least, one particular interpretation of his approach) to everyday gender norms. At a societal level, this has been reflected in the rapid growth of a transgressive, post-liberal, political movement of a new type. In practical, everyday terms, this approach informs the enormous energy applied to contesting apparently innocuous terms, such as sex, breast, and woman, and helps to explain the ever-expanding list of trans groups originally encompassed by the ‘T’ in ‘LGBT’. Boundaries are therefore to be ignored, subverted, challenged, or overturned. The first part of this paper briefly notes several key marker points in this developing process of institutional neutralisation, or capture, namely the restriction of debate applied by the BACP journal, Therapy Today, and the misrepresentation of the Memorandum of Understanding on conversion therapy by other parties.
These developments also have particular implications for the law relating to therapy. In fact, it could be said that the transgender approach represents the single most serious issue facing therapists concerning the law, ethics and professional practice, since the false memory controversy in the 1990’s (Jenkins, 2002). This is precisely because the law is a heavily boundaried system. It relies on binary definitions and distinctions, e.g. between civil law and criminal law, and the distinction between being found innocent, or guilty. Age-based legal boundaries are also crucial here, as they protect children and young people under 18 years from potentially harmful activity, such as certain forms of employment, inappropriate decision-making, and from legal sanctions applicable to adults. The crucial issue here relates to age-based criteria for capacity and consent to medical treatment. This is based on the Gillick case *(discussed more fully in Part 2 of this article). Breaching legally established boundaries established for the protection of children and young people necessarily entails serious and life-changing consequences for clients, counsellors, parents and citizens alike.
Therapy Today and the power of trans online lobbying
In December 2017, Therapy Today published an article, which was broadly supportive of the trans child model, by Catherine Jackson, then editor of the journal (Jackson, 2017). This was followed, in a later issue, by a letter from Stephanie Davies-Arai, spokesperson for Transgender Trend, which was critical of this stance (Davies-Arai, 2018). Davies-Arai’s letter was, in turn, the subject of intense online lobbying, resulting in an editorial apology and the rapid apparent removal of her letter from the BACP website (Charlesworth, 2020: 13). The incident may well have been overlooked by many BACP members at the time. However, it presents a worrying development in terms of the BACP’s stance on transgender issues, and indeed of its apparent restriction of publication of legitimate views on this strongly contested topic.
The petition of 647 signatures protesting against the letter by Transgender Trend made a number of points (Open letter, 2018). These were, namely, that Transgender Trend is an organisation hostile to trans rights; that the author of the letter is not a member of BACP; that the concept of Rapid Onset Gender Dysphoria referred to in the letter is not to be found in the DSM-5 or ICD-11 psychiatric manuals, and, apparently conclusively, that this is not a free speech issue.
Two of these four points, i.e. namely that Transgender Trend is hostile to trans rights; and that this is not a free speech issue, are assertions, without substantive, independent evidence. The claim that Stephanie Davies-Arai, the author of the offending letter, is not a member of BACP is correct, but irrelevant. Membership of BACP is not a requirement for submitting letters to Therapy Today for
* The original Gillick case in 1985 addressed the issue of the capacity of young people under 16 years in England and Wales to consent to medical treatment (Gillick v Norfolk AHA ). It determined that young people under 16 could consent, without requiring parental knowledge or consent, if they demonstrated ‘sufficient understanding’ of the treatment and its likely consequences.
publication. Indeed, by the same criteria, then the petition would also largely invalidated, as of the 647 claimed signatories, no more than 119 appear to be current members of BACP, as indicated by the letters ‘MBACP’ appearing after their names (Letter to BACP, 2018). Finally, it is, of course, correct that the diagnosis of Rapid Onset Gender Dysphoria does not appear in the current issues of DSM-5 or ICD-11, but this does not invalidate it as a valid psychological construct of real pertinence to current debate.
Research into contested or sensitive topics
This hostile response to the original letter raises a number of separate issues. The first relates to the status of Littman’s work on Rapid Onset Gender Dysphoria as research. Hers is an exploratory study (n: 256), not of trans young people, but of their parents. This is, presumably, a legitimate sphere for research, which was ethically approved by an Institutional Review Board (Littman, 2018). Her research covered primarily the perceptions and lived experience of parents of trans teens, where their children’s trans condition did not arise in earlier childhood, but just before puberty. The sharp disjuncture between the lived experience of trans teenagers and of their parents is striking. One of the tasks of therapists and of researchers in exploring sensitive topics like this, is to try to hold in focus apparently contradictory states, or experiences, and to tease out how these may relate to each other. For the signatories of the petition to Therapy Today, the way to resolve such a conflict between different sets of lived experience is to privilege solely the lived experience of trans subjects, and to deny that of their parents. In therapeutic terms, this can be described as ‘splitting’, which may have some relevance in explaining their categorical rejection of Littman’s research.
For therapists, the real risk is of uncritically adopting one side in an ongoing, conflicted debate, one, moreover, informed by strong emotions. These processes can be usefully explored using the concept of the Drama Triangle, where individuals and groups, therapist or not, adopt a stance of Rescuer to a Victimised individual or group (trans teens), and identify a Persecutor (non-affirmative parents) (see Figure 2: The Drama Triangle).
However, the Drama Triangle can rapidly turn on its emotional axis, so that the therapist, as Rescuer, can then quickly be experienced by parents as becoming their Persecutor. Therapists, who may quickly identify with an apparently victimised group, run the appreciable risk of stepping outside their proper therapeutic role, and breaching essential boundaries, put in place for the protection of therapists and clients alike
Parent blaming, past and present:
This unquestioning stance of denying certain kinds of parental experience has a long and troubling lineage. It vividly recalls the experience of parents of children subjected to sexual exploitation over the past decade. All too frequently, parents seeking help from the authorities for their sons and daughters, who were repeatedly trafficked and raped by their abusers, found that agencies were slow to help. However, professionals could be all-too-quick to blame the parents for their allegedly defective parenting, as the root cause of the abuse. As one parent said of Children’s Social Care: “They come in and blame and it’s absolutely devastating” (Pike et al, 2019: 19). This culture of parent-blaming unfortunately extended well beyond statutory agencies, to also embrace powerful third sector agencies (Smeaton, 2013; Jenkins, 2015).
This consistent pattern of parent blaming can include:
- denial, or minimisation, of the harm or detriment caused to children and young people by exploitation, or transition;
- a focus on the alleged deficiencies of parenting (failure to protect from trafficking, or lack of affirmative support);
- a stance that renders illegitimate the behaviour, or ascribed values, of parents (i.e. as racist, or transphobic);
- overestimation of the capacity of young people to manage risk of significant detriment or harm (exploitation), or to manage complex and life-changing decisions (transition);
- underestimation of the power of external agencies (traffickers, social media) to influence adolescent behaviour in making critical life choices.
Restricting research and free speech?
By the token gesture of apparently removing the Transgender Trend letter from its website, BACP seems to provide implicit endorsement of this parent-blaming stance. If so, the BACP’s approach to be seems to be inconsistent with its own professional stance, as required by the Ethical Framework, of “improving the quality of relationships between people” (2018: 10). It is also rather at odds with the recent rebadging of one of its key divisions as ‘Children, Young People and Families‘ (emphasis added: PJ). For those intent on labelling Littman’s research as transphobic, a perhaps more reasonable, evidence-informed and empathic stance would be to recognise that apparently questioning or unsupportive parents of trans teens represent an important subset of parents of trans teens more generally. In the UK, this group might be represented by the Bayswater Group (https://bayswatersupport.org.uk). This is, in research terms, clearly an important subset of parental responses to gender dysphoria, worth fully investigating rather than simply condemning out of hand.
The apparent withdrawal of the Therapy Today letter has further a potentially serious, if so far unacknowledged set of political consequences for the BACP as a professional association. It appears to mark a discrete area of academic research and debate as being off-limits to its membership; it affords the active power of current and future veto to largely external and unaccountable lobbying; and it compromises the independence, integrity and professional credibility of the BACP as an interested observer in a key, ongoing judicial case of international importance.
Revisiting the Memorandum of Understanding
The second waymarker concerns the Memorandum of Understanding on Conversion Therapy. This originally grew out of the painful experience of therapeutic, medical and psychiatric responses to the punitive treatment of gay and lesbian people in the past (Jenkins, 2017). The Memorandum has since emerged as a key point of reference in relation to the contested issue of therapy for transgender people. The original Memorandum of 2015 focused on the issue of conversion or reparative therapy for gay people. The revised version included transgender people within its remit for the first time (MoU2). Crucially, neither Memorandum makes any reference to the generally accepted protective boundary between therapy for adults and that for children and young people under the age of 18. (Comparethis with the exemplary stance adopted by the BACP Ethical Framework (2018), for example). The Memorandum sets out a minimum requirements for therapists working with clients experiencing gender distress.
Briefly summarised, the Memorandum requires members of signatory organisations to commit to awareness of ethical issues, appropriate training, informed and ethical practice, plus adequate knowledge and understanding of gender and sexual diversity. Therapists are required to be free from any agenda that favours one gender identity, or sexual orientation, as preferable to other gender and sexual diversities. They may perform a clinical assessment of suitability prior to medical intervention; and explore therapeutic options to help people who are unhappy about their sexual orientation, or their gender identity, live more comfortably with it, reduce their distress and reach a greater degree of self-acceptance. An essential requirement is for therapiststo acknowledge the broad spectrum of sexual orientations and gender identities and gender expressions (BPS et al, 2017). All of this may be appropriate, and non-pathologising practice, but it certainly does not amount to requiring that that all therapists practise affirmative therapy as such.
The Memorandum and affirmative therapy
However, this is where misunderstanding (or a partisan view) of the Memorandum can all-too-easily arise. According to Dr Bernadette Wren, then associate Director of the Tavistock GIDS, the Memorandum does, in fact, signify a commitment to affirmative therapy (Wren, 2019). (This assumption is specifically denied by the current Chair of the MoU2 (Jackson, 2021)). The authors of the letter to Therapy Today claim that “in signing the Memorandum of Understanding on Conversion Therapy-2, BACP agreed not to promote non-affirmative stances” (Letters, TT, 2018). Furthermore, it claims that “non-affirmative stances are incompatible with membership of BACP”.
However, there is a distinct and rather obvious problem here. The Memorandum of Understanding, even in its revised form, makes absolutely no reference to the problematic concept of affirmative therapy, or even to the rather tortuous concept of ‘not promoting non-affirmative stances’, where a double negative can supposedly produce a desired positive outcome, i.e. affirmative therapy. Instead, BACP members are simply required under the terms of their Ethical Framework (2018) to:
“(22e): challenge assumptions that any sexual orientation or gender identity is inherently preferable to any other and will not attempt to bring about a change of sexual orientation or gender identity or seek to suppress an individual’s expression of sexual orientation or gender identity”.
Or, as rather more simply expressed, earlier in para (21): “We will respect our clients’ privacy and dignity”.
So, here we have at least two concerning aspects of the Memorandum of Understanding version 2. The Memorandum has been wrongly characterised as requiring affirmative therapy for certain client groups, when this is clearly not the case. Secondly, there is an absence of reference to any protective age limits regarding its remit. This is entirely consistent with a political approach which seeks to deny or erode any boundaries or constraints to its own power and influence. Both factors have contributed significantly to the Tavistock GIDS decade-long experiment with affirmative therapy, and the subsequent shock of the successful 2020 judicial challenge, which are explored in Part 2 of this article.
British Association for Counselling and Psychotherapy (2018) Ethical Framework for the Counselling Professions. Lutterworth: BACP. https://www.bacp.co.uk/events-and-resources/ethics-and-standards/ethical-framework-for-the-counselling-professions/
British Psychological Society et al (2017) Memorandum of Understanding on Conversion Therapy in the UK. Version 2. (Updated 2019).
Charlesworth, S. (2020) Captured! The full story behind the Memorandum of Understanding on Conversion Therapy: How UK professional counselling bodies were hijacked by an unaccountable activist network. Transgender Trend. https://www.transgendertrend.com/product/captured-the-full-story-behind-the-memorandum-of-understanding-on-conversion-therapy/
Davies-Arai, S. (2018) “Letter: Ideology over reality.” Therapy Today, March. 29(2) https://docs.google.com/forms/d/e/1FAIpQLSeP_K4vrSiTqsXpxNqYjyXAvZgQLKiApRIrC7rlgI71RxL-HA/viewform
Faber, T. (2021) “‘In the game, I knew myself as Hannah’: the trans gamers finding freedom on Roblox”, Guardian, 24 April. https://www.theguardian.com/games/2021/apr/24/in-the-game-i-knew-myself-as-hannah-the-trans-gamers-finding-freedom-on-roblox
Foucault, M. (1986) “What is Enlightenment?” In Rabinow, P. (Ed), The Foucault Reader. Harmondsworth: Penguin, p. 50; In Spargo, T. (1999) Foucault and Queer Theory. Duxford: Icon.
Jackson, C. (2017) “Putting gender on the agenda”, Therapy Today, December, 28(10), https://www.bacp.co.uk/bacp-journals/therapy-today/2017/december-2017/putting-gender-on-the-agenda/
Jackson, C. (2021) “Interview with Igi Moon”, Therapy Today, June, 32(5), pp. 22-25.
Jenkins, P. (2002) “False memories or recovered memories? Legal and ethical implications for therapists”, pp. 144-164, In Jenkins, P. (Ed) Legal Issues in Counselling and Psychotherapy. Sage: London.
Jenkins, P. (2015) “The politics of research into child sexual exploitation”, Healthcare Counselling and Psychotherapy Journal, July, pp. 22-25. https://www.bacp.co.uk/bacp-journals/healthcare-counselling-and-psychotherapy-journal/july-2015/the-politics-of-research-into-child-sexual-exploitation/ (BACP login required)
Jenkins, P. (2017) Professional Practice in Counselling and Psychotherapy: Ethics and the Law. London: Sage.
Letter to BACP concerning Transgender Trend (2018) bit.ly/2FjpjdS
Littman, L. (2018) “Parent reports of adolescents and young adults perceived to show signs of a rapid onset of gender dysphoria.” PlosOne, 13(8), e 0202330 https://journals.plos.org/plosone/article?id=10.1371/journal.pone.0202330
Karpman, S.B. (1968) “Fairy tales and script drama analysis”, Transactional Analysis Bulletin, 7(26), pp. 39-43. https://karpmandramatriangle.com › DramaTriangle
NHS England et al (2015) Memorandum of Understanding on Conversion Therapy. https://www.psychotherapy.org.uk/media/cptnc5qm/mou2-reva_0421_web.pdf
Open letter (2018), Therapy Today, April: 29(3) https://www.bacp.co.uk/bacp-journals/therapy-today/2018/april-2018/letters/
Pike, N., Langham, M. and Lloyd, S. (2019) Parents’ experiences of the Children’s Social Care system when a child is sexually exploited. Leeds: Parents Against Child Exploitation. http://paceuk.info/wp-content/uploads/2020/01/Parents%E2%80%99-experiences-of-Children%E2%80%99s-Social-Care-Report-digital.pdf
Smeaton, E. (2013) Running away from hate to what you think is love: The relationship between running away and child sexual exploitation. Ilford: Barnardo’s.
Wren, B. (2019) Ethical issues in the provision of medical interventions for gender diverse children and adolescents. Association for Child and Adolescent Mental Health, 14th June (Powerpoint presentation, ACAMH Conference). https://www.acamh.org/app/uploads/2015/06/16_05_Dr_Bernadette_Wren.pdf
By Peter Jenkins who is a UK-based counsellor, supervisor, trainer and researcher. He has been a member of both the BACP Professional Conduct Committee and the UKCP Ethics Committee. He has published a number of books on legal aspects of therapy, including Professional Practice in Counselling and Psychotherapy: Ethics and the Law (Sage, 2017). His Sage website provides access to a range of free resources on legal and ethical issues in counselling and psychotherapy, including video clips, and articles for download: https://us.sagepub.com/en-us/nam/author/peter-jenkins