Precise Definition: The MoU on Conversion Therapy
The Memorandum of Understanding (MoU) on Conversion Therapy (Version 2, 2017/Updated 2021) is a voluntary, non-statutory agreement between over 25 UK health and therapy organisations (including the BPS). It defines “conversion therapy” as any model or viewpoint that assumes one sexual orientation or gender identity is “preferable” to another and seeks to change or suppress it. Crucially, Paragraph 5 states that the MoU is not intended to prevent exploratory therapy. It claims to support therapists in helping clients “explore” and “clarify their sense of themselves.”
THE BPS AND THE BACP: The central tension, which I have identified in their Guidance (and the stance of the Public Affairs Board) effectively treats any exploration that doesn’t end in “affirmation” as “conversion practices.”
In fact, the BACP’s position is often seen as more “ideologically locked” because their Ethical Framework is frequently interpreted as a mandate for validation over investigation. Their guidance on the MoU version 2 has threatened therapist autonomy, by suggesting that any therapist who does not affirm a client’s self-identified gender may be practising “conversion therapy.” This is the same “chilling effect” as with the BPS.
In their view, gender misalignment is a normal variation of human experience, not a mental disorder. They explicitly align themselves with the WHO’s ICD-11, which moved “Gender Incongruence” out of the mental health chapter and into a chapter on sexual health.
The Logic of the Therapy Organisations promotes De-Pathologising of Trans Yearnings and Respect as the Primary Goals.
The Council of Europe aligns with the therapy organisations in assuming that if a phenomenon like thinking or wishing to be the sex you are not, is “normal” (like being gay), the primary role of the therapist is not to “treat” or “diagnose” it, but to: Affirm: Support the individual’s self-identification as a matter of human rights. Mitigate Minority Stress: Focus on the distress caused by society’s reaction to the person, rather than any internal pathology. Remove Barriers: Ensure that the path to transition is as smooth and “respectful” as possible which involves medical and surgical transition.
THE THERAPIST MANDATE
Under the MoU we must surrender the goal of getting a gender questioning person to accept their body/sex, even where we are convinced that sex is binary and immutable, a Protected View supported by the Supreme Court Ruling on Sex and Sex Based Rights. There are other requirements, such as we must accept their “gender identity” if it differs from their biological sex, as valid- as explained above under the Code of Respect. When a male says he is female, (or vice versa) we must accept this as a normal variant of human identity, in the same way as accepting that gay and lesbian identity is NOT pathology.
YOU MUST USE THEIR PRONOUNS?
The Guidance requiring us to use the person’s chosen pronouns is for good manners and any departure would be harming the patient (misgendering). Thus, affirming, via pronoun use, is the necessary clinical intervention to reduce “minority stress.” You may not be forced to do this, see the legal comments below.
DO NOT PATHOLOGISE OR EXPLAIN?
The Guidances issued by the Therapy Associations suggest that if we try to link their identity to a mental health condition such as autism, or childhood trauma, as a way to “disprove” the “flawed” identity, the BACP/BPS will likely view this as “reparative” logic. It may become a conduct issue or reframed as “conversion therapy”. You can argue against this, as I explain below.
THE FAILURE OF LOGIC
The Supreme Court Ruling on sex puts therapists in conflict with the MoU and with the Ethics Codes of their Associations.
The Code of Respect ; Respect goes both ways and it may be unlawful if a therapist is coerced against their choice to use common language that defines biological sex (calling he “she”) and is then forced to agree that a client is what they are not, in the Law. Coercion is a breach of your Association’s Public Sector Equality Duty. And may be unlawful.
The Code of Do No Harm ; Certain conditions give rise to problems with embodiment and identity. Anorexia is a good example. One way to avoid present and future harm is to rely on a client’s”capacity” to understand the considerable risks, socially, emotionally and physically, of transition.
Where eating disorders are comorbid with gender questioning, dietary chaos BOTH affects capacity to make life-changing decisions, AND magnifies physical risk. Capacity in eating disorders is affected by pre-existing neurological confounders (cognitive inhibition, set shifting difficulties / rigidity). These neural factors are worsened where there is dietary chaos.
The risk of harm is strong if powerful hormones are given to a person already compromised by malnutrition. But as far as I know, the risks of eating disorders in a gender questioning person have never been evaluated. We hence require extreme caution for gender treatment in the eating disorder patient at any age. This is because their capacity to understand the risks of transition may be impaired by pre existing difficulties with thinking exacerbated by nutritional impairment. In such people, medical interventions will add to existing harms.
DUTY OF CARE AND TRANSITION REGRET
Capacity, physiology and Transition Regret intersect with failure to do holistic, evidence-based evaluations – none of which are proposed by our professional bodies. The current malpractice cases such as Fox Varian in the USA and R Herron in the UK, make this need for clarity compelling.
Other conditions that may affect capacity to assess present and future risks of medical interventions, include Mitochondrial Disease, which “mimics” autism. Therapists wishing to protect themselves from malpractice charges, as well as to protect a vulnerable client, have a Duty of Care to do extended and holistic assessment. Our Duty of Care requires us to consider all adverse or social experiences that have culminated in gender incongruence. A therapist’s first duty is to the Law of Consent, not your Association’s Guidance. Should your Association be insisting that you must ignore a “material risk” (like the impact of starvation on the brain or neurological “impairments”), they are telling you to commit a TORT* OF NEGLIGENCE. In other words, they could be forcing you to act outside the law.
AFFIRMATION VERSUS THE MONTGOMERY DUTY 2015
The Montgomery v Lanarkshire Health Board [2015] UKSC 11 ruling – is one of the most significant Supreme Court judgments in the history of UK medical law. It mandates the investigation and disclosure of all “material risks” of any intervention. It was first applied to medical procedures but the Principle is extended to psychological practice too.
These risks include the physiological and cognitive impact of co-morbidities like Eating Disorders, comorbid mental health problems, or metabolic problems. Furthermore, by discouraging the rigorous investigation of the “starving brain’s” role in gender distress, which can also arise in cases of mild metabolic disorders, the MoU policy places members in direct breach of their statutory obligations under the Children Act (1989/2004), where a child’s physical welfare and safeguarding must remain paramount.
IGNORING OR NOT ASSSESSING a client FOR CURRENT AND FUTURE RISK IS THAT TORT OF NEGLIGENCE. Since the counselling authorities have as yet to provide evidence-based guidelines for assessing that risk, their ideological stance places members in direct breach of their statutory obligations under the Children Act (1989/2004), where the child’s physical welfare and safeguarding must remain paramount. As things stand now with all the Authorities aligned with the MoU under their “social justice” position, ignoring or not requiring testing for that current and future risk is a Tort of Negligence as identified above.
YOU ARE NOT COMPELLED TO AFFIRM : Being compelled to affirm is a breach of the Dignity at Work Guidance, and a breach of your Protected Beliefs if you are a gender realist. You may “affirm” that a client believes that they are a sex they are not, or “feels” like a member of the sex that they are not. But you may not be compelled to agree that they are the sex that they are not – because the legal framework for sex is enshrined in law. If you work in a professional environment where you are belittled for this position, or you are are accused of being unprofessional, you may seek lawful protection against harassment or victimisation.
RISK CANNOT BE EVIDENTIALLY ASSESSED: The current “Affirmative” framework imposed upon therapists, suggests that you must support and not question clients in accessing medical interventions if they shout loudly enough for them. It is your lawful duty to firmly establish the risks. But in the absence of formal evidence-based guidance – I have asked for it, but have never received it – how is this possible? I have yet to find any Supervisor who can tell me how the risks of say – infertility- can be appraised by a person who is not at the age where such motivations become compelling. We know many young people seeking transition are at the stage where they are neurally primed to prioritise escape from emotional discomfort rather than engage in rational thought. Any external mandate from your counselling authority requesting you to follow their Guidance, effectively requires practitioners to act ultra vires (beyond or in conflict with their legal duties). By prioritising identity validation over holistic clinical assessment, the guidance compels a practitioner to bypass the Montgomery Duty (2015).
The Montgomery Ruling mandates the investigation and disclosure of all “material risks”. These risks including the physiological and cognitive impact of co-morbidities like Eating Disorders. Furthermore, by discouraging the rigorous investigation of the “starving brain’s” role in gender distress, which can also arise in cases of mild metabolic disorders, the Society’s policy places members in direct breach of their statutory obligations under the Children Act (1989/2004), where the child’s physical welfare and safeguarding must remain paramount. IGNORING OR NOT ASSSESSING FOR CURRENT AND FUTURE RISK IS THAT TORT OF NEGLIGENCE.
LEGAL CHALLENGES TO THE MoU AND RECEIVED GUIDANCE FROM OUR PROFESSIONAL OVERSEERS
Legally, a professional body should not issue guidance that overrides a clinician’s common law duty to prevent negligence to the client, put themselves at risk of financial claims for malpractice by the client, or fail their statutory duty to protect a vulnerable person from the “impairment of health.” The time for arguing about current regulatory guidance is done. In the absence of scientific evidence, I have alerted my Insurers about these matters and may use my professional judgment, take supervision from a professional who knows the law and who is not motivated by ideology. Then I will meet my duty of care to clients and validate the protection of my indemnity insurance, in the event of any sanction.
POSTSCRIPT * In English law, a Tort is a civil wrong that causes someone else to suffer loss or harm, resulting in legal liability for the person who commits the act. Unlike criminal law (where the State punishes a person), Tort law allows an individual (the “Claimant”) to sue for compensation.