Tag Archives: transgender

The Crown Prosecution Service in the Classroom

This is a post by Sarah Phillimore

On Friday January 24th 2020 I was alerted to the recently launched ‘Commentary on the LGBT Bullying and Hate Crime Schools Project Classroom activities and guidance for teachers’

This is for key stages 3 and 4 – i.e. children aged 11-16.

The CPS initially said this pack could ONLY be seen by teachers.

I found that extremely alarming. I have a child of my own in the school system so my alarm extends far beyond my professional criticism of guidance that is in places muddled or plain wrong.

I set out at the end of this post my detailed comments on the text in the pack. I could not access the videos or PowerPoints and did not seek them out as the CPS were apparently saying this was the reason the pack may not be shared with parents, because it involves ‘sensitive’ case studies of – I assume – ‘real life’ children.

I will put aside for now the wisdom of attempting confidentiality around such private data in a pack that is presumably sent to every secondary school in the country. This is the least of my worries right now.

I emailed the CPS to ask them if I may publish the guidance and my commentary. They emailed me on January 27th to ask if they could see my commentary. I emailed it the same morning. EDIT They then replied on the 29th with a link to the text of the guidance which was now public. But not the videos or powerpoints. I don’t flatter myself that my decision to blog or not to blog made any difference to their decision – but I suspect the telephone calls from numerous journalists made them realise they could not continue to keep the text hidden from parents.

If they had not done this, I would have published the guidance in any event. It is a matter of public interest. I have not shared the videos or PowerPoints and therefore I hope that risk to vulnerable children is reduced. But putting vulnerable children in official school guidance and using that as a reason to keep parents from seeing it, would be a bizarre and unacceptable state of affairs and I very much hope that is not what has happened here.

Perhaps the CPS would like to explain what prompted their change of heart.

TL:DR Summary of concerns


As the table below indicates, I am very concerned about this guidance. But if I was asked to pick my Top Three, they would be these.

  • At page 25 there is an alarming list of behaviour, some of which is trivial or undefined which is offered as examples of ‘hate’ – this is particularly concerning as the Guidance repeats throughout that there is no statutory definition of homophobia or transphobia, and a ‘hate’ crime or incident relies entirely on the subjective perception of the alleged victim or bystander. This list includes ‘ostracising from a friendship group’ and separately (and undefined) ‘rejection’.
  • At page 33 there is an apparent attempt to create a ‘hierarchy of rights’ and to place LGBT+ at the top. This would seem to be unlawful as it discriminates against other characteristics protected by the Equality Act, such as race and disability. Surely schools should be developing robust policies against bullying which apply to all children, not attempting to set up one minority group as more deserving of protection.
  • I note that section 4 has as ‘activity 1’ ‘identifying potential criminal charges’. I am troubled by the implications of this, in the context of guidance that purports to help teachers and students ‘identify and report’ hate crime. Nor am I clear what a teacher is supposed to do if they or a student identify another classmate as having displayed ‘hateful’ behaviour. Where will it be recorded and to whom will it be disclosed?

Given that the guidance is very clear about how seriously such hate crimes and incidents should be taken, I am worried that a clear incentive is being set up here to encourage students to report one another’s behaviour or for a teacher to feel under pressure to refer it on to the police.

It is giving a very clear message to girls that anyone can be any ‘gender’ they like (including ‘pan’ ‘omni’ and ‘a’ sexual, none of which are defined anywhere in the guidance) and that it is ‘hate’ to object to anyone in your space, or to ‘reject’ them – again undefined but clearly means something other than social ostracism as that is given its own separate mention. So what DOES ‘rejection’ mean in this context? It has to mean sexual rejection. There is no other way children can ‘reject’ each other. They aren’t offering employment prospects.

I am therefore very troubled that this guidance was initially being kept from parents in its entirety – although they may now, after media pressure, see the text of it.

As is sadly common with all documents I have read which purport to promote the rights of the ‘trans child’, I can see no acknowledgment of or discussion about parental responsibility or Gillick competence in this guidance. As it is aimed at 11 year olds I consider that is a potentially serious omission.

I hope that a legal challenge will be made to this guidance. The influence of Stonewall etc is clear to see.

The time to speak up is now.

I will leave you with this quote from mumsnet user michelleoftheresistance

It’s already known the massive comorbidities going on with children presenting with gender identity issues, pretty much the same comorbidities coming up over and over again for other vulnerable kids. Treating one group as more privileged and better served than others is going to create resentment, particularly at a time when mental health care and SEND provision is dire and many families are angry and struggling. It will do nothing to meet the Code of Practice or Equality Act’s requirement to promote good relationships between groups: this will actively damage it. It does nothing to address the root problems underlying why children are becoming confused and distressed about their identities and bodies. It’s also inevitably going to incentivise transitioning. And that’s on top of the always there, bald insensitivity and rejection of female kids with history of abuse and sexual trauma, female kids whose religions don’t allow for going along with personal choice of sex over reality, female kids whose disabilities won’t bend in that direction, etc etc. 

Further reading

Thread on mumsnet discussing the CPS Pack

The Safe Schools Alliance have written a template letter for parents to send to the CPS

Detailed comments on the CPS pack

My commentary is in italics

HOW TO USE THIS PACK
How to use this pack – it is directed at ‘gay bisexual transgender and questioning people’ BUT NOTE at page 16 it includes ‘asexual’ ‘pansexual’ and ‘omnisexual’ people but gives no definition, then says definition of terms may change in any event. What is meant by ‘questioning’ people? How are they identified or defined?

The Glossary of Terms says (p19) ‘the process of exploring your own sexual orientation and/or gender identity’.
How is this different from ‘being a teenager’?

P7 Section 4 deals with identifying criminal charges ‘these are optional and additional. Teachers can use as many or as few of them as they wish… However we strongly recommend teachers consider them as they will deepen the students’ understanding of impact of anti LGBT behaviours…’ Unhelpful phrasing. So if this section is ‘optional’ all others are compulsory?
Clear indication given that teachers are to devote time to this
WHO is identifying criminal charges and why is this the job of a teacher?

P8 Before using this pack teachers are advised to ‘inform themselves’ by visiting a number of websites. Including Gendered intelligence and Stonewall. Clear evidence of bias in linked materials. Stonewall and Gendered Intelligence are well known for promoting narrative that questioning GI is ‘transphobia’. Other sites – Proud Trust and Schools Out I had not known about, but brief glance at their websites indicate they are in the Stonewall mould.
Why no reference to Transgender Trend or Safe Schools Alliance?

P9 ‘LGBT issues are best addressed in a school environment which explicitly supports and includes students’ What does this mean? Is asking questions about biology/GI to be seen as not supportive or inclusive and therefore frowned upon?

P9 All staff need to know how to challenge students demonstrating hostility to LGBT people What is the definition of hostility?

P9 Teachers must be especially mindful of the fact that some students in their groups will be LGBT and must be protected whether they are out or not Protected from what? Questions? Challenge?

P9 Make sure the students understand that anti LGBT behaviour is not caused by LGBT people; it is caused by people with homophobic attitudes. Trans people are not necessarily homosexual. Transgender is NOT a sexual orientation. This is setting up potentially corrosive expectations – that anyone who asserts anti LGBT bullying will be telling the truth and therefore presumably no investigation of their allegations will be required.

P9 Teachers should bear in mind that the most important thing is for students to discuss, think about and understand the issues This is not an appropriate exhortation when there is little clarity about what constitutes appropriate questioning and what will be seen as homophobia or transphobia. What ARE students allowed to discuss?

P10 STARTING TO USE THIS PACK
When an act is classed as a hate crime, the courts can impose a tougher sentence on the offender under the Criminal Justice Act 2003 It is odd for this sentence to immediately follow the exhortation that it is discussion that is important.

P10 What does the CPS mean by hate crime?
ANY criminal offence which is perceived by the victim or any other person to be motivated by hostility or prejudice based on race, sexual orientation, disability, or person being transgender Exactly the problems identified in the Fair Cop JR – Subjective definition of crime Protected strands do NOT mirror the protected characteristics of the Equality Act Being transgender in any event is NOT a protected characteristic. The actual protected characteristic is gender re-assignment “the process of transitioning from one gender to another.”

P10 What does the police mean by LGBT hate incidents? There is no statutory definition of a homophobic or transphobic incident Again – definition of ‘crime’ or ‘hate incident’ entirely subjective. Teacher has no objective standard by which to judge the behaviour of students.

P14 The CPS and the role of the police
P14 ‘It is more likely that prosecution is required if the offence was motivated by any form of prejudice against.. race, gender, disability age, religion, sexual orientation or gender identity’ Again, does not reflect the protected characteristics of the Equality Act. Why not?
Again, ‘gender identity’ is NOT in any event a protected characteristic.

P16 AIMS AND OBJECTIVES
What do we mean by LGBT+? … represents other sexual identities including pansexual, asexual and omnisexual and questioning people exploring their sexuality. Where will we find the definition of these terms?
Is there a universally accepted definition?
I note the Glossary at p19 does NOT contain a definition of ‘asexual’ ‘omnisexual’ or ‘pansexual’

Pg 19 defines ‘intersex’ as ‘When a group of conditions cause people to be born in between male and female. Sometimes this does not show up at birth.’ This is an inaccurate and offensive attempt to define disorders of sexual development.
P19 ‘transition’ is defined as ‘a process through which some transpeople begin to live as the gender with which they identify, rather than the one assigned at bdeirth’. ‘Gender’ plays no part in the birthing process. ‘Sex’ is observed and recorded at birth unless a baby is one of the tiny percentage who have ambiguous external genitalia, due to a DSD.
P19 Transphobia is defined as ‘discrimination against and/or dislike of trans people’ This is NOT the definition of a ‘phobia’. The NHS defines a phobia as “an overwhelming and debilitating fear of an object, place, situation, feeling or animal”
Again – WHAT constitutes discrimination or dislike? Any questioning of the assertion that a transwoman is a woman for e.g? Any reference to humans as sexually dimorphic species?
How can a mere ‘dislike’ of any person’s characteristics, possibly constitute a ‘phobia’ And absent any accompanying discrimination, can it become a hate crime or hate incident?

P20 ‘This glossary is not a definitive list and it is important to remember that people should be referred to in the way that they wish to be referred to. It is also important to note that definitions can vary and can change over time’. In the context of guidance offered under the mantle of identifying hate crimes, this simply isn’t good enough. How will the teacher know the definitions have changed? Who changes them? How is knowledge of this change disseminated?

P 21 SECTION ONE Activities and worksheets
P23 Everyone has a sexual orientation … it is the part of a person’s identity that describes who people experience attraction to, commonly based on gender… gender identity is a person’s sense of themselves as being a boy/man woman/girl both or neither. Gender identity is not necessary dictated by a person’s physiology. This is nonsense. Sexual orientation is a protected characteristic. [EDIT For gay people] It means sexual attraction to the same sex. This definition effectively erases lesbians by saying that a male bodied person can identify as a woman even if retaining penis and testicles.
If a teenage lesbian then objects to a sexual encounter with a male bodied person – is that sufficient ‘dislike’ or ‘discrimination’ to warrant a referral to the police?

P24 Students should be told that the behaviour in school is dealt with through education, the school disciplinary procedures etc.. it would be rare for incidents to be reported as crimes. Explain then the circumstances in which an incident WOULD be reported as a crime.

P25 Categories of hate crime or hate incidents As a general point, some of the examples given are filmsy and particularly dangerous when coupled with the existence or not of ‘hate’ being determined by the alleged victim or bystander.
‘ridiculing and stereotyping comments’ Unclear what this means.
Ostracising and excluding from friendship groups So it is enough that the ‘victim’ or any bystander simply perceives this ostracism as being by virtue of being trans
How can schools sensibly police friendship groups?
Rejecting someone or not wanting to work with them because of their sexual orientation, trans identity or perceived trans identity So a lesbian teenager is compelled not to ‘reject’ another student who alleges they are a transwoman?
What IS included in this word ‘rejecting’?
Showing or distributing anti LGBT+ leaflets comics or other propaganda’ Define propaganda! On this definition the recent episode of South Park would constitute ‘hate’
Wearing Anti LGBT+ Symbols – for eg badges or Tshirts What will count as ‘anti’? The LGB Alliance? Fair Cop?

P33 LGBT Bullying ‘worse’ than all other forms of bullying I think this is the core of my concern with this document. Primacy is being given to LGBT rights on a false basis. For example claims this bullying is ‘different’ because people get killed. Well, so do disabled children! So do black children! This is a very concerning document. It is unlawful to give primacy to right group over another. That in itself risks discrimation.

The person being bullied or attacked because of their sexual orientation will be afraid that other members of their community might also be attacked and are at risk WHAT IS THIS DRIVEL
Most of the ‘examples; here apply equally to race hate.

P36 It is never appropriate to ask a gay person to use separate changing facilities Really? So where does the gay transwoman go, if in reality she is visibly male bodied with penis and testicles and makes girls uncomfortable when sharing a space? Presumably if any girl objects she is guilty of ‘hate’.
P67 Tell the students that no one should put up with bullying, whether its happening to them or they are drawn into a situation where it is happening to someone else. So provide an impetus to escalate any complaint?

P90 We will not tolerate bullying or harassment and if we see it we will report it and see that it is dealt with. Sinister in context. Report to who?

P101 SECTION FOUR IDENTIFYING POTENTIAL CRIMINAL ACTIVITIES
Inside and outside school – on the bus So children are to be on the look out for crimes even beyond the school.
P104 In the final class they can discuss the possible charges they have identified and what the potential consequences would be Sinister in context
Tell the students that guidance from the EHRC generally encourages organisations and service providers to be trans inclusive. This means treating trans people according to their gender identity and only excluding trans people from facilties in exceptional circumstances where this can be justified. Unhelpful and confusing fudge of existing law.
Worksheets to ‘train’ children as investigating offices and to decide what charges to bring Dear Lord.

Further commentary on the videos by a colleague at Fair Cop

SP : I have not seen the videos, but from these comments I am concerned. The use of language such as ‘henchperson’ seems utterly bizarre and deliberately pejorative.

  1. Videos: FEAR acronym – False Evidence Appearing Real – does not distinguish between justifiable fear and baseless prejudice. Conflating the two, and reducing fear to the category of baseless prejudice .is gaslighting girls into accepting boys into their toilets and other single-sex facilities.
  2. Definitions of homophobia, transphobia, etc. Interesting to note that the definition of homophobia does not extend to those perceived to be gay, but the definition of transphobia does extend to those perceived to be trans.
  3. The definition of hate crime/incident: this includes not merely acts that are objectively negative (where it is perceived that the perpetrator is motivated by hate), but also omitting to do something (where it is perceived that the perpetrator is motivated by hate). This omission does not need to be something that an individual reasonably and legitimately expects, or that the law demands is provided (e.g toilets). The omission could also be something that the LGBT+ person simply desires (e.g. the girls toilets, or admission to a particular girls friendship group). The only necessary factor is that it must be perceived by someone that the decision has been motivated by hate.
  4. Video: Transition.
    The questions in and of themselves are actually quite valid. Here we see the attitude of the girls (which is aggressive) conflated with the content (which includes that which is reasonable) with the result that the content is also positioned as unacceptable and a hate incident.
  5. Video: Toilets.
    The girls merely correctly identified him as a male.
  6. Discussion of, much less asserting of, sex-based rights under the EA becomes impossible and falls into the category of hate bullying/hate incident/hate crime. This is because any discussion of these rights, that permit the exclusion of trans individuals where it is a proportionate means to a legitimate end, must make reference to people’s biological sex whatever their felt gender identity may be. Thus it involves misgendering, upsetting people, being seen as offensive and may out people as trans against their wishes. It simply cannot be the case that discussion of existing rights enshrined in law, and the protection and needs of the members of a protected category become hate incidents or hate crime and liable to criminal prosecution.
  7. Where are the other 2 in the series of 3 resource packs developed to increase awareness of identity-based bullying and hate crime? Are these similarly forbidden to parents? (This is different from edition 1 of this document).
  8. The definition of transgender on page 19 means that a male who has neither socially nor medically transitions should still be fully accepted as a girl purely based on his say so.
  9. Use of the term ‘henchperson’ is extremely sinister. This entire document is designed to install fear and to train children to police each other’s behaviour, friendship groups, speech etc.

The interplay of ‘Gillick competence’ and ‘parental responsibility’

This is a post by Sarah Phillimore

And what are the dangers for children of ignoring this?

TLDR: Any guidance which ignores or downplays the importance of both Gilick competence and parental responsibility is probably unlawful and probably harmful to children and should be challenged, for all the reasons that I set out below.

Safeguarding Children.

As a general point, safeguarding of children demands robust risk analysis. Failures in child safeguarding usually involve an inadequate risk assessment which has failed to either understand or share relevant information. Risks approached on the basis of untested assumptions are unlikely to be properly assessed. The welfare of children is generally held to be the paramount concern in most situations pertaining to decisions that concern a child, but this does not by itself absolve an individual or organisation from considering the impact of its decisions or actions on other legal rights.

Any guidance which asserts that it promotes safeguarding of children in the context of choices children aspire to make, ought to be clear about two very important issues:
a. ‘Gillick competence’
b. Parental responsiblility.

Gillick competence

Gillick competence refers to the recognition that the capacity of a child to make serious decisions pertaining to his or her welfare will increase as does the age and understanding of that child. It derives from the decision of the House of Lords in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112,

Most – but not all – 14 year old children would be ‘Gillick competent’ to make decisions across a wide range of issues. Most – but not all – 7 year old children would not. Determining ‘Gillick competence’ is fact specific and depends on the circumstances of each individual child.

Once children reach 16 they are held by various statutes as able to make their own decisions across a range of issues. These are set out in the judgment of Lady Hale at para 26 of D (A Child) (Rev2) [2019] UKSC 42 (26 September 2019). For example Section 8(1) of the Family Law Reform Act 1969 provides that the consent of a child of 16 to any surgical, medical or dental treatment “shall be as effective as it would be if he were of full age”

Parental responsibility

Parental responsibility is defined at section 3(1) of the Children Act 1989 as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.”

The House of Lords in Gillick approved the following dictum of Lord Denning MR

… the legal right of a parent to the custody of a child … is a dwindling right which the courts will hesitate to enforce against the wishes of the child, and the more so the older he is. It starts with a right of control and ends with little more than advice.

This is a significant matter of status as between parent and child and, just as important, as between each of the parents. (see W (Children) [2012] EWCA Civ 999).

Interplay between Gillick competence and parental responsibility

These two concepts are thus intertwined. The younger the child and the less capacity he or she has to make decisions, the greater the extent of the exercise of parental responsibility. This is important for two main reasons.

  • Most parents, most of the time, have their children’s best interests at heart. Parents are likely to be an important part of decisions around keeping children safe. Who else is advocating for the child?
  • Families are also the ‘breeding ground of diversity’ and entitled to special protection – see Baroness Hale B (Children) [2008] UKHL 35.

Thus the importance of parental responsibility is recognised and protected by domestic and international law.

As was set out by Lady Hale in para 72 of The Christian Institute & Ors v The Lord Advocate (Scotland) [2016] UKSC 51 (28 July 2016):

Many articles in the UNCRC acknowledge that it is the right and responsibility of parents to bring up their children. Thus article 3(2) requires States Parties, in their actions to protect a child’s wellbeing, to take into account the rights and duties of his or her parents or other individuals legally responsible for him or her; article 5 requires States Parties to respect the responsibilities, rights and duties of parents or, where applicable, other family or community members or others legally responsible for the child to provide appropriate direction and guidance to the child in the exercise of his or her rights under the Convention; article 14(2) makes similar provision in relation to the child’s right to freedom of thought, conscience and religion; article 27(2) emphasises that the parents have the primary responsibility to secure, within their abilities and financial capabilities, the conditions of living necessary for the child’s development;

And at para 73:

Individual differences are the product of the interplay between the individual person and his upbringing and environment. Different upbringings produce different people. The first thing that a totalitarian regime tries to do is to get at the children, to distance them from the subversive, varied influences of their families, and indoctrinate them in their rulers’ view of the world. Within limits, families must be left to bring up their children in their own way.

I would therefore expect to see any guidance directed at the safety and welfare of children to give due consideration to both these issues. A failure to do so, risks diluting the effectiveness of advice around safeguarding, and being an unlawful infringement of parental responsibility.

The younger the child in question, the more serious both these failings.

Safeguarding concerns around transitioning children need careful assessment. These could involve:

  • parental pressure to transition due to homophobia or wish for attention
  • lack of parental support or understanding for a child who wishes to transition
  • failing to consider risk to other children of ‘gender neutral’ spaces, either within a school or on residential trips
  • failing to involve parents in discussions about the safety of children
  • a younger child who wishes to take puberty blockers

It is neither ‘kind’ nor ‘inclusive’ to pretend that risks don’t exist and to fail to have a clear eyed and open minded approach to how to deal with them. On the contrary, it is both dangerous and stupid – and, I assert, unlawful.

Children aged 4 are very different to children aged 14. Children are not kept safe by a refusal to discuss – or even admit – this quite basic fact. Any guidance or advice that does not deal clearly with the interplay between Gillick competence and parental responsibility should be approached with caution.

Be wary: guidance and commentary which fails

Trans Inclusion Tool Kit for Schools and Educational Settings 2019 – makes only superficial reference to Gillick competence and only one glancing reference to parental responsibility at page 15. Is explicitly aimed at primary school children.

No one, no issues is off the table when it comes to safeguarding – ‘advice’ from a social worker published in the BASW journal that issues around transition are ‘not’ safeguarding issue. No mention of either Gillick competence or parental responsibility.

Only adults? Good practices in legal gender recognition for youth – explicitly urges for removal of any minimum age requirement for access to services around transition.

When should a trans child’s identity be permitted to be a material issue in a family case? – blog by the legal adviser to the charity Mermaids. The answer is – rarely. If a child of any age says they are trans, they are trans.

Please do let me know of any other examples you can find.

And support the Safe Schools Alliance in their legal action against the Trans Inclusion Took Kit.

If you tolerate this – then your children will be next

This is a post by Sarah Phillimore.

The end of safeguarding for children?

Young children do not have capacity to make decisions

A child is a person between the ages of 0-18. Older children may be considered ‘Gillick competent’ and able to make serious decisions about their welfare needs which may then override parental objections and give adult doctors etc the necessary lawful consent to treatment or other interventions etc.

A very broad approach is this. A child under 6 is vanishingly unlikely to have the capacity to make serious decisions. Children between 6-12 will vary in their ability to understand and weigh information. Children approaching their teenage years are likely to be ‘Gillick competent’ and able to give consent to medical treatment etc but even the wishes of a ‘Gillick competent child’ are not automatically held to be determinative of every case.

Parents have a legal obligation to protect the children in their care.

Parents have ‘parental responsibility’ for their children. This is set out at section 3 of the Children Act 1989

In this Act “parental responsibility” means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.

In Christian Institute v Lord Advocate [2016] UKSC 512017 SC (UKSC) 29, paras 71 to 74, the Supreme Court recognised the responsibility of parents to bring up their children as they see fit, within limits, as an essential part of respect for family life in a western democracy.

A parent who fails to exercise parental responsibility for their child may find their children removed from their care by the State or even that they face criminal charges of cruelty or neglect. For example, The Children and Young Persons Act 1933 deals with ‘cruelty to a child under 16’

If any person who has attained the age of sixteen years and has responsibility for any child or young person under that age, wilfully assaults, ill-treats (whether physically or otherwise), neglects, abandons, or exposes him, or causes or procures him to be assaulted, ill-treated (whether physically or otherwise), neglected, abandoned, or exposed, in a manner likely to cause him unnecessary suffering or injury to health (whether the suffering or injury is of a physical or a psychological nature), that person shall be guilty of an offence, and shall be liable—

It therefore remains very surprising and alarming to see a constant stream of ‘advice’ and even court proceedings which appear to start from a very different basis entirely. That for one issue alone – that of ‘gender identity’ – a child of ANY AGE should be given the power to make decisions, this cannot be a safeguarding issue and any parent who stands in the way of this should find themselves the subject of legal censure.

If you are talking about children’s rights – which children do you mean?

The state of ‘childhood’ covers a very wide canvass. Children of 6 are not the same, on any level, as children of 16. I have written about this before. See:

No one, no issue is off the table when it comes to safeguarding – I discussed my alarm at a social worker suggesting that parents supporting a child around issues of gender identity was ‘not’ a safeguarding issue.

You had better make some noise; Abusers will eploit bad laws and poor safeguarding

So it was with enormous unease that I read about the latest comment on parental responsibility via issues of gender identity for children. Because this appears to be spearheaded by a major law firm, Dentons.

Roll on Friday reported on November 29th 2019 about the production of a document headed : ‘Only adults? Good practices in legal gender recognition for youth’. This purports to be a ‘report on the current state of laws and NGO advocacy in eight countries in Europe, with a focus on rights of young people’.

The authors of the report recognises with thanks whose who have contributed to it.

IGLYO and Thomson Reuters Foundation wish to extend their thanks and deep gratitude to the legal teams and activists who contributed their time and knowledge to create this report.

The report was prepared by Dentons Europe LLP with the assistance of Dentons UK and Middle East LLP, and the NextLaw Referral Network. Our special thanks to Dentons trainee lawyers Jennifer Sim, Anna Mackinnon and Madeleine Macphail and to the Dentons Europe Pro Bono Trainee, Margaux Merelle.

There is a disclaimer:

This report does not constitute legal advice and should not be relied on as such. Readers wishing to act upon any of the information contained in this report are urged to seek individual advice from qualified legal counsel in relation to their special circumstances.

This report does not necessarily reflect the personal views of any of the lawyers, staff or clients of Dentons, Thomson Reuters Foundation or other lawyers, law firms or organisations that contributed to the development of this report.

Regardless of such disclaimers. this report is clearly intended to be used as a significant lobbying tool with the aim of changing the law. That is the explicit aim of the report.

GLYO’s aim was to create user-friendly resource for itself, its members and the broader advocacy community for use in campaigning efforts for better gender recognition laws across countries in the Council of Europe.

The report wishes to eliminate protections for children based on their age and understanding.

I went through the report to see what mention was made of children by age. There is no attempt to distinguish between the preschool child or the teenager. This is not surprising when you come to page 15 which calls to end the legal minimum age requirement.

Eliminate the minimum age requirement.

Where legal recognition procedures require prior medical treatment or investigation, these are often only available at the legal age of maturity and thus discriminate based on the age of the applicant. In other cases, where there is no medical requirement, minors are barred from legal recognition unless they have parental authorization. This remains a huge hurdle for young trans people who are yet to reach the age of maturity.

See also Page 9: Children and teenagers need to be allowed to define themselves however it suits them, both in social and legal terms

Page 13: The best interests of the child should be a primary consideration in legal procedures, and the child’s view should be given proper weight, taking into account their individual maturity and development. A child’s best interests must include respect for the child’s right to express their views freely and due weight given to said views in all matters affecting the child. In practice this would mean, for example, that a statement from a public authority suggesting that children of a certain age are too young to be aware of their identity is contradictory to the “best interest” principle and the right to be heard. 

There is no doubt that the authors of this report see protections for children based on their age and understanding, do not apply when it comes to the issue of gender identity.

I can find no understanding or assessment of the impact this has on the legal and moral obligations of parents to protect their children, apart from a few vague references to the welfare of children. I can see no mention of the Article 8 rights to respect for family life.

The report wishes to punish parents who want to take responsibility to protect their children

Not only does this document appear to be ignorant of or uncaring about the young child’s lack of capacity to make serious decisions about their physical or mental health, there is even a call for parents to be punished if they do not accede to the demands made by their child – regardless of age or understanding – see page 14.

For example, states should take action against parents who are obstructing the free development of a young trans person’s identity in refusing to give parental authorization when required.

This is confusing, particularly when Norway – a country lauded for its progressive approach – sets out clearly the age restrictions considered important.

Norway is the most liberal, with legal gender recognition being available at any age, although with certain conditions for different age groups. For example, minors under the age of 6 can only have their legal gender altered if they are intersex. For minors between 6 and 16, it is available with parental consent, and for those over 16 a self-determination model operates. In contrast, in Belgium, legal gender recognition is unavailable for minors under the age 16, and for those between 16 and 18 years old parental consent is required.

Do the authors of this report agree there is a distinction between a 6 year old and a 16 year old? I am not sure they do. Rather, this distinction becomes irrelevant as their work is ‘to educate the public that legal gender recognition is a purely civil process’.

This is probably the most dangerous fudging of reality of all. The main reason many share my fears about removal of any age limits when considering transition is that the current model of engagement in the UK is ‘affirmation’ only – and a child set along a pathway of puberty blockers, cross sex hormones and surgery. These issues and the frightening lack of clear understanding about what is motivating every increasing numbers of children to want to change sex were recently investigated by Newsnight and File on Four, when looking at those who now wish to ‘detransition’.

What does it say when you want to keep your arguments hidden?

The report is clear that those campaigning must ‘fly under the radar’ to avoid uncomfortable scrutiny:

The most important lesson from the Irish experience is arguably that trans advocates can possibly be much more strategic by trying to pass legislation “under the radar” by latching trans rights legislation onto more popular legal reforms (e.g. marriage equality), rather taking more combative, public facing, approaches. 

Advice is given about activism ‘behind the scenes’:

Another technique which has been used to great effect is the limitation of press coverage and exposure. In certain countries, like the UK, information on legal gender recognition reforms has been misinterpreted in the mainstream media, and opposition has arisen as a result.

What of any benefit is done in the dark? This says to me loud and clear that the authors of this report know that what they are recommending cannot stand up to scrutiny. It says to me that they risk being motivated by something other than the welfare of the children they profess to be fighting for. When you bring in slick professionalism from law firms and others motivated by profit, it rings some very, very loud alarm bells for me.

Always ask yourself – who stands to benefit from from any change to the law? If the people pushing this are seeking professional or financial validation, always be wary. If the people pushing it wish to ‘fly under the radar’ – always ask yourself why.

There are clear parallels between the recommendations of this group and how cults and predators operate. Those who are to be successfully recruited into the cult must be isolated from friends and family who do not share the cults aims and beliefs.

Unless and until there is a significant body of evidence that the ‘affirmation’ model is one that operates in the best interests of children, we should all be extremely wary and worried about this.

And parents should continue to take responsibility for their children and protect them from making potentially harmful decisions with life long consequences – regardless of what is threatened by lobby groups who do not appear to know or care about the law.

Further reading

Working with young people questioning their gender? Ditch the label and understand the child’s world CAFCASS website March 2018 Anthony Douglas CEO – fails to distinguish between Gillick competent and non Gillick competent children and contains alarming phrase We have to understand whether we should support a fast track transition, which can for example mean we recommend immediate use of hormone blockers so that transitioning does not become more complicated biologically if there is delay.

NHS staff being advised to ignore parents’ wishes if children self-declare as different gender, guidance shows The Telegraph January 2019

Dentons campaigns for kids to switch gender identity without parental approval Roll on Friday 29th November 2019

The document that reveals the remarkable tactics of trans lobbyists The Spectator December 2nd 2019

No one, no issue is off the table when it comes to safeguarding

This is a post by Sarah Phillimore.

I was sent a copy of an article this evening. It appears in the October edition of ‘Professional Social Work Magazine’ which I am told is a publication for those who belong to the British Association of Social Workers (BASW) a powerful and influential organisation which claims over 20,000 members, ‘committed to the highest standards of practice and ethics’.

The article was written by someone who did not want to reveal their identify, in order to protect that of their child, which I can quite understand. The article is titled ‘Listen to children on gender – what being the parent of a trans child has taught me’.

It is the account of a teenager who struggled with a ‘gender identity’ that did not ‘match the sex they were assigned at birth’ and how the parents supported the child to transition from female to male after the child made his wishes known at 12 – having spent ‘months, if not years’, ‘thinking about his body as wrong’.

It is a sensitive account from a parent about how they responded to their child who, on this account clearly did appear to be expressing strong views that had been held over time. I have absolutely no difficulty with this. It is clear that ‘gender dysphoria’ does exist and a small percentage of people will benefit from surgery to bring their physical body more into alignment with what they believe their body should be.

However, there will, I am equally sure, be those who profess a wish to ‘change sex’ who have other issues and difficulties that medication or surgery will not alleviate. Such intervention may have permanent and life long consequences and should not be entered into lightly. Enormous caution should be taken around ‘supporting’ a child who is not Gillick competent into making any serious decision about their lives.

And this is where the article began to make me feel very uneasy. Far from restricting it to an account of one child’s journey, it is clear that the author wishes to offer far more general guidance and does so on the basis of assertions that are – in my view – profoundly misguided and actively dangerous.

The author raises as a ‘myth’ that hormone treatments are given to children under the age of 16 or surgery is considered only at 18. Possibly she or he is unaware of the activities of Dr Helen Webberley and what appears to be a growing number of activists who demand that ‘puberty blockers’ should be available to children as young as 12. Ironic also is the fact that the CEO of Mermaids Susie Green took her child abroad for surgery when the child was only 16.

Offering up these age limits of 16 and 18 as some kind of inviolate barrier beyond which people cannot pass is simply naive – particularly given the inevitable ‘drive’ for increased intervention at a younger age as that will make it easier for a child to ‘pass’ – particularly a boy who wants to become a girl.

But my real fears are raised by the ‘bullet points’ at the end of the article

  • Just because a child is telling you they are transgender, does not mean they are too young to know this
  • Its not possible to force a child or young person to be trans
  • parents supporting their child in their gender identify is not a safeguarding issue

I wonder if the author of this article has read the judgement in Re J?  I wrote about this in more detail in this post – In whose best interests? Transgender children: choices and consequences – and the issues around bear repeating here.

This is an important case – J (A Minor), Re [2016] EWHC 2430 (Fam) (21 October 2016).

The Transparency Project wrote about the case and the media response here and summarised the court’s approach in this way:

Mr Justice Hayden heard the case over a number of days in the summer and, based upon the experts and professionals whose evidence he heard (along with that of the mother herself), the judge concluded that J was a little boy whose mother’s perception of his gender difference was suffocating his ability to develop independently – and was causing him significant emotional harm. He was placed with his father, where he quickly began to explore toys and interests that were stereotypically “boys”. The judgement is very clear that the father had brought “no pressure on J to pursue masculine interests” and that his interests and energy were “entirely self motivated” (pa 47). So, not forced to live “like a boy” (whatever that means) – but choosing (there is more detail in the judgment).

Importantly, Hayden J acknowledged that there are genuinely children who are transgender or gender dysphoric, and who present in this way from an early stage, but – and here is the crux of it – this child was not one of them. This was all about the mother’s position.

At para 63 of the July judgment, the judge commented on the expert opinion of the mother and how she presented:

When stressed and distressed, [M] becomes controlling, forceful and antagonistic. This reflects her underlying anxiety. She is actually very frightened and upset. She tries to sooth herself by taking control of situations but her interpersonal style is counter-productive. She does not negotiate well. She finds it difficult to compromise and situations become inflamed rather than de-escalated. In situations of interpersonal conflict, she protects herself from loss of confidence or face by unambiguously perceiving herself as correct which means that from her perspective, the other party is wrong. To acknowledge her flaws, even to herself, feels crushing and devastates her self-esteem so she avoids this possibility by locating responsibility and blame elsewhere. When she is unable to achieve the outcome that she wants, she resorts to formal processes and/or higher authorities: complaint procedures, The Protection of Human Rights in Public Law, the European Court of Human Rights, Stonewall and so on.”

It is clear that the mother was insistent with all agencies that J ‘disdained his penis’ and was being subjected to bullying at school etc. She could not provide any proof of this and the school denied it was happening. She was supported throughout by Mermaids who played a significant role in the development of a ‘prevailing orthodoxy’ that J – at 4 years old – wished to be a ‘girl’. That view was found by the court to have no bearing in reality and was a product of both ‘naivety and professional arrogance’

Mr Justice Hayden was highly critical of the local authority for getting swept up in this prevailing and false orthodoxy, commenting at paragraph 20 of the July judgment

This local authority has consistently failed to take appropriate intervention where there were strong grounds for believing that a child was at risk of serious emotional harm. I propose to invite the Director of Children’s Services to undertake a thorough review of the social work response to this case. Professional deficiencies to this extent cannot go unchecked, if confidence in this Local Authority’s safeguarding structures is to be maintained.

No one and no thing is exempt from safeguarding

I am profoundly worried by that last bullet point in the article – “parents supporting their child in their gender identify is not a safeguarding issue”.

The mother in re J was supported throughout by Mermaids, who issued an angry press release after the judgment and said there would be an appeal. There was not. The author of this article refers its readers to Mermaids as a useful resource.

It is surely the antithesis of any responsible social work or safeguarding policy to set up groups of people or particular issues that are immune from examination or critical regard. While the author’s 12 year old child may have thought long and hard about the issue and demonstrated his Gillick competence beyond doubt – I suggest the same certainly cannot be offered with regard to a 4 year old. But is the issue of ‘trans’ now off the table for social workers? Whatever the child’s age or level of understanding – if he or she declares they are trans, then that is that? No further investigation or assessment is required? How can this be right? How is this good social work?

I am really worried about this. I would be interested to hear from other social workers about what they think, and how they would approach a case involving a very young child who wished to embark upon a path of ‘changing sex.’

 

 






You Had Better Make Some Noise – Abusers will exploit bad laws and poor safeguarding

This is a post by Sarah Phillimore

I was delighted to be asked to speak on July 27th 2019 by Make More Noise

As the organisers say:

There has been a surge of Feminist activism across the UK in the past year. Women are agitated and organised. We are finding our voice and our voice is saying NO.

Make More Noise are one such group, created to provide a space for women to talk freely and address uncomfortable truths.

 

Why am I interested in this?

I am a woman. I am a disabled woman. The delusion of self ID as a cure for unhappiness is shown to me, and every other disabled person in the world, every single day. We cannot identify out of ourselves. Every day the people around us and the hostile environments we have to navigate tell us what our reality is. To claim another’s identify is a choice for the privileged – a black woman cannot self Identify as white but Rachel Dolezal can claim to be a black woman and take a Nigerian name.

But I am also a lawyer. Who has worked in child protection for 20 years. I have been campaigning since 2014 for greater openness and honesty in our debate about the family justice system.

So it would seem that my experiences both personal and professional have led me to this moment. There is so much to worry about when we face the erasure of biological sex as a category of identification that I have decided to focus my concerns on the implications for children.

 

My central hypothesis this: people would rather cause pain than feel it.

We have a lack of mature discussion in our society about issues of grave importance to us all. I am quite sure that social media is partly behind this.  I see the law being increasingly used as a weapon to silence people who step out of line, the rights of a few achieving dominance over the rights of many others. I see the efforts of some groups and individuals to push back against this – such as Fair Cop and Maya Forstater – but the fact that such groups have felt compelled to take action is an indication of what a strange place our public discourse has reached. People are sacked for expressing ‘wrong think’, the police are used to enforce one person’s feelings against another person’s Article 10 rights to freedom of expression.

And who suffers most in such a scenario where a legal system is used to prioritise the rights of one minority above others? Those at the very bottom of any pyramid power structure – children.

So what supports my hypothesis?

  • High court decisions only 3 years apart about transitioning pre schoolers
  • The NSPCC debacle and the intervention of Prostasia

The shifting position of the High Court

The case of Re J in 2016 involved a 4 year old, who his mother claimed ‘disdained his penis’ and wished to be a girl. The High Court did not agree and ordered that the child lived with his father. Mermaids supported the mother and issued an angry press release after the judgment saying they would appeal – they did not.  I wrote about this case here which contains links to the judgment and press release.

However, only three years later came the case of Lancashire County Council v TP & Ors (Permission to Withdraw Care Proceedings) [2019] EWFC 30. This involved foster carers who had two unrelated children in their care who decided they wanted to transition – the youngest aged 3 years old. [EDIT apologies – youngest was transitioned at FOUR YEARS OLD. Doesn’t make any difference to my argument] The LA were applying to withdraw care proceedings, so it was a different situation from re J. But even so, its interesting to see how the Judge framed this issue of transitioning pre schoolers:

Notwithstanding even the Guardian’s caution in respect of the openness of [the foster carers] to the possibility of an alteration in the children’s attitude to their gender identity I conclude that Dr Pasterski’s evidence demonstrates that it is obvious that neither of these grounds would meet threshold. Taken together with the panoramic evidence of the child focused approach of [the foster carers] it is overwhelmingly obvious that neither H nor R have suffered or are at risk of suffering significant emotional harm arising from their complete social transition into females occurring at a very young age. The evidence demonstrates to the contrary, this was likely to minimise any harm or risk of harm. The evidence does not support the contention that it was actively encouraged rather than appropriately supported.

How on earth is it ‘overwhelmingly obvious’ that a 3 year old will experience no harm from a decision to transition from male to female? I have a difficulty here with such an uncritical acceptance of the evidence of Dr Pasterski. Not merely because I find it extremely hard to accept that any 3 year old has the understanding or the language to communicate a desire to change sex, but I note the approach of Dr Paterski in an earlier case.

Jay v Secretary of State for Justice [2018] EWHC 2620 (Fam) (08 October 2018) considered a man in his 40s who wished to become a woman. While Dr Paterski opined without any reservation that this was a genuine case of gender dysphoria, Dr Barrett struck a more cautious note, given that some of Ms Jay’s reported history was ‘directly at odds’ with documentary records.

“… If collateral corroboration is not convincingly elicited I would have grave doubts and wonder whether [Ms Jay]’s somewhat dependent personality had caused her to unwisely latch onto a change of gender role as a seemingly universal solution to both why her life had gone wrong and how it might be rectified.”

It is worth contemplating, with considerable unease, just what would happen if Re J was being heard and decided this week. Would the High Court have been able to protect a little boy from the mother who was telling everyone he ‘disdained’ his penis? Or would he have been sacrificed to what appears to be compulsive drive to be seen as ‘woke’ and ‘inclusive’ ?

The NSPCC debacle and the intervention of Prostasia

All of you I am sure are familiar with the NSPCC’s public response to people who raised concerns about one of their employees who allegedly filmed himself masturbating at work and published a video online. I am pleased that, belatedly, they had the sense to realise that telling people who raised concerns that they were bigots who should be reported was not an appropriate response and they have referred themselves to the Charity Commission. I await with interest the outcome of that.

What happened to me on Twitter after that was also interesting.

I was discussing that people should consider not making further charitable donations to the NSPCC but consider smaller local charities. An organisation called Prostasia popped up and suggested they might be a worthwhile beneficiary. Which was odd as a quick google showed them to be based in California and advocating ‘sex positive’ child protection, whatever that means.

What I suspect it means is support for men who want to have sex with children. This suspicion was confirmed when another Twitter user found a copy of a mug shot of a man who was active in the conversation and on the Prostasia website. This stated he had been arrested in 2012 for sexual conduct with a child under 13. Prostasia then blocked us all and then tried to blackmail me, which is a whole other story I don’t have time for now – but is a clear indication of the murky ethical waters in which this organisation swims.

 

What does this show me?

The inability or unwillingness of both pro-trans activists and pro-paedophile groups to distinguish teenagers from pre-schoolers.

Because what Prostasia has in common with the views of the legal adviser for Mermaids is a persistent refusal to identify what they mean by ‘a child’.

  • A child is defined as a person aged 0-18.
  • The majority of children under 12 are unlikely to be considered ‘Gillick competent’ to make important decisions about their own lives.
  • We have a difficult and grey area around 13-16 where children may well as individuals have greater capacity than the law allows them. But we have to draw a line somewhere.
  • And for children, sex and the criminal law, that line is firmly set at 13 years.  See the Sexual Offences Act 2003. A child under 13 cannot consent to sex. It is rape.

I therefore consider myself on firm ground to say that the vast majority of children under 12 neither want nor need exposure to adult sexuality. It is important that they are allowed the time and space to develop their own identities and their own sexual preferences; free of the coercion or manipulation of an adult. And once they cross that threshold into adulthood they should be free to live and love as they wish, according to the boundaries of the existing laws. Sexual activities between consenting adults is none of my business or concern.

What I have witnessed developing over the last year or so has caused me increasing concern about the extent to which some men wish to re-frame the discussion about the sexuality of children. They wish to push back the boundaries regarding age and consent. This seems clear to me because of the extent to which they are often coy about stating exactly how they define ‘a child’. The difference between – for example –  a typical 9 year old and a typical 16 year old is vast and in every domain; physical, sexual, social.

And what is the problem with this?

I was alerted to a blog post in March of this year by the Mermaids legal adviser. The author remained anonymous but was arguing that

….someone’s gender identity, at any age, must be respected. A child identifying as trans, whether it has been submitted this is as a result of harm or not, is identifying as trans and that must be respected throughout proceedings…More often than not, if a child says they are trans, they will be trans.

I commented at the time

As I hope I have made clear, any such assertion made without attempting even the barest of analysis of the vast gulf in understanding and capacity between a 6 year old and a 16 year old is an assertion of no value. Worse than that, it is an assertion which attempts to pave the way to leave young children entirely unprotected from their parents.

Most parents love their children and want to do what is in their best interests. A small minority of parents fail to do that. The courts absolutely must be ready, willing and able to step in and to protect such children.

Anyone who is unwilling or unable to see the difference between a child of 6 and a child of 16 is someone who wishes to blur the boundaries around child protection and safeguarding. Why would anyone wish to do this? I can only assume it is to make it easier to secure the eradication of the rights of children to be protected from the imposition of men’s sexual will.  And what is worse, their rights will be eradicated at the same time we are told WE are the villans, WE are the bigots.

The facts are always friendly. That was and will remain my rallying cry. Lets have proper discussion . Not all who wish to transition do so out of realistaion of their ‘essential self’ – a self that no one apparently can define. Some will do so because they are predators. Predators predate. That is what they do. For example, the recent trial of convicted paedophile Carl Beech revealed that he had volunteered at the NSPCC between 2012 and 2015 .

The wolf is no longer at the door. The wolf Is in the kitchen and claiming a legal right to be there.  And I am now too old and too fed up to do anything other than speak up. This will not be done in my name.

 

FURTHER READING

In whose best interests? Transgender Children: Choices and Consequences.

When should a child’s trans identity be permitted to be a material issue in a family case?

Video of talk now on YouTube