Gender Identity, Gender Reassignment and the Equality Act: A Parent’s Guide

Roger Kiska, of the Christian Legal Centre, has contributed an article to the most recent 'Affinity Bulletin: News and Reports from the Social Issues Team'. In it, he gives parents a guide to how they might best love their children through a gender identity crisis, arguing that, “real love requires more of us than to merely affirm a child in their gender confusion”. You can also read the full Affinity Bulletin on their website.

Introduction

As the tolerance agenda has evolved at a rate faster than legislation can keep up, everyday people are left unsure of what legal obligations apply to them. This is particularly true of gender assignment, which the Equality Act 2010 defines as a protected characteristic. The term is unhelpfully merged with other terms and ideas, such as gender identity, which is part of the gender theory school of thought, or gender identity disorder, which is a psychological condition present in individuals who may or may not later become gender reassigned.

For Christians this is a particularly difficult subject given the Biblical truths about the unalterable nature of sex.[1] This belief recalls that God created humankind in His image, male and female; biologically and sexually different but with equal personal dignity. They therefore view any rejection of one’s biological sex and any attempt to physically change, alter or disavow one’s biological sex from conception as condemning of God’s Word and creation order.

This article will examine what the law actually says about gender reassignment, analysing it alone, and then in conjunction with other legislation and case-law which helps to more clearly define it. It also looks at the corresponding issues relating to gender confusion, those being the medical, psychological and pastoral questions involved.
 

Case Study: ‘Bethany’’: Parental Rights Under Attack

The story of ‘Bethany’ first came to the attention of the Christian Legal Centre when she was 14. ‘Bethany’ is the daughter of committed Christian parents. She exhibited many of the troubled behaviours prevalent in a high percentage of gender confused children including self-harming and suicidal thoughts. She was also rebellious towards her family and had settled in with friends at school which were likely doing her far more harm than good. ‘Bethany’ was convinced that all of her depression and social anxiety would go away if she were recognised as a boy. She began asking her school, friends and parents to call her ‘Gary’ and treat her as a boy. She also altered her physical appearance and mannerisms to look more male than female.

Her parents, knowing ‘Bethany’ better than anyone else, and loving her more, believed her problems did not stem from a genuine case of gender identity disorder. They believed that given time and treatment, she would pass through this stage and settle into her biological sex. Importantly, they also hoped that that she would no longer self-harm or initiate other self-destructive forms of behaviour.

The school which ‘Bethany’ attended, and even the social workers who became interested in her case, all acquiesced to her desires to be treated as ‘Gary’, despite her parent’s wishes that she continue to be treated in accordance with her biological sex. Matters escalated to such a point that social services suggested that by refusing to call ‘Bethany’ by her desired boy’s name, the family was acting in a manner tantamount to child neglect. The family naturally became concerned that if they did not yield to the pressure being posed by social services, they might lose custody all together.

Nonetheless, the family stood firm, and with the support of Christian Concern and an independent expert counsellor, ‘Bethany’ began receiving treatment for the various physical and mental health difficulties associated with her gender confusion. While the situation is not completely resolved, ‘Bethany’ nonetheless began making excellent progress in settling into her biological sex and coping with her self-harming behaviour.

Had the family not stood their ground, the outcome may have been very different. The reality is that in the vast majority of circumstances neither social workers nor school officials love and understand a child more than their parents do. This is why the law so robustly protects parental rights. Neither can a third party, such as a social worker or teacher, who is engaged with any number of families or other children at any given time, have the insight into what a child is going through in comparison to that child’s parents.

Too many schools and social workers have taken on the tolerance agenda with zeal and unquestioned devotion. It is far too easy for them to ignore the real underlying problems a child may be facing. In fact, they may be unwittingly punished for doing so given the politically sensitive climate surrounding the issue of gender confusion.

As parents who may be dealing with a gender confused child, it is important to know the facts regarding what the law says, what science and biology say, and what psychology and leading psychologists say. The more parents who know and exercise their rights, the fewer occurrences there will be of social workers or schools questioning a parent’s desire to raise their child in accordance with their biological sex.

Biology

The biology behind sex is simple and straightforward. Sex is permanent. The genetic information directing development of male or female gonads (testis and overies) and other primary sexual traits, are encoded on chromosome pairs “XY” and “XX”, which are present at conception. As early as eight weeks’ gestation, endogenously produced sex hormones cause prenatal brain imprinting that ultimately influences postnatal behaviours.[2]

This means that biological sex is a fixed principle, determined at conception.[3] More than 20% of the genes in the human genome are specific to one sex or the other.[4] In most tissue, there are over 6500 protein-coding genes with specific sex-differential expression.[5] Men and women differ in their predisposition to certain diseases precisely because of this genetic architecture in our tissue.[6] Simply, this means that a person’s sex is far more than just the sex organs they have been born with: it is inherent in every tissue of their being. None of this is altered by gender reassignment surgery: not one’s chromosomal make-up; nor the sex-differentiation in their tissue. Those who undergo gender reassignment surgery will need to continue taking hormones their entire life to mask their biological reality.

The rare exception to this rule relates to those individuals who are born intersex: that is that they are born with a reproductive or sexual anatomy that does not fit either the biological definition of male or female. This condition is biological and does not relate to the psychological condition of gender identity disorder.
 

Pastoral and Medical Issues Involved

There has been a troubling intersection in today’s culture between political correctness, where tolerance is used as a sword to silence debate (rather than the shield it was perhaps intended to be), and the real life issues behind gender confusion and gender reassignment.

Individuals suffering from gender identity disorder have higher rates of psychological problems and psychiatric disorders, such as negative self-image, low self-esteem, adjustment disorders, depression, suicidality and personality disorders when compared to other groups within the population.[7] Diagnosis of genuine cases of gender identity disorder are often difficult due to the significant number of physical and mental health problems associated with it.[8]Therefore, policies which affirm a child in their gender confusion without requiring psychological evidence are highly damaging to the children involved. Case in point, Stonewall has suggested that despite a 1/3 decrease in HBT (homophobic, biphobic and transphobic) bullying, 84 percent of young people who identify as transgender self-harm,[9] while an additional 45 percent have attempted to take their own lives.[10] Leading experts in the area of psychiatry and paediatrics argue that abundant scientific evidence exists showing that gender-affirming policies do none of the children they are meant to serve any real or lasting good; that it harms the vast majority of them; and that it leads to catastrophic outcomes for many such afflicted children.[11]

According to the American Psychiatric Association, and the Diagnostic and Statistical Manual of Mental Disorders (5^th ed.), 98% of gender confused boys and 88% of gender confused girls eventually accept their biological sex after naturally passing through puberty.[12]That equates to only 2 out of 100 boys who identify as being of a different gender continuing to believe so after puberty.[13]Studies also evidence that gender confusion can persist as a result of family and peer dynamics including parental and school reinforcement of cross gender behaviour; not as a result of actual gender dysphoria.[14]

The American College of Paediatricians has consequently warned:

There is an obvious self-fulfilling nature to encouraging young [gender-dysphoric] children to impersonate the opposite sex and then institute pubertal suppression. If a boy who questions whether or not he is a boy (who is meant to grow into a man) is treated as a girl, then has his natural pubertal progression to manhood suppressed, have we not set into motion an inevitable outcome? All of his same-sex peers develop into young men, his opposite sex friend develop into young women, but he remains a pre-pubertal boy. He will be left psycho-socially isolated and alone.[15]

Melissa Midgen, a gender clinician at the Tavistock, in a book review on gender issues in children, stated the problem in very similar terms: “the current socio-cultural situation is one which has permitted an inflation of the idea, and that we are indeed co-creating the very notion of the ‘trans kid’.”[16]  The result has been an increase in cases of gender confusion among children which amounts to a public health crisis. According to a 2013 article in The Times, the United Kingdom saw a 50% increase in the number of children referred to gender dysphoria clinics from 2011 to 2012,[17]It is also reported from the same study that in 2012, 208 children were referred, whereas only 64 were so referred in 2008.[18]

A particularly tragic element of transgender advocacy towards young people has been the push for puberty suppressing treatment and hormones from increasingly younger ages. As the American College of Paediatricians has repeatedly stated, such treatments treat puberty as a disease.[19]Instead, puberty should be welcomed as the natural and healthy progression from childhood to adulthood. These treatments inhibit growth and fertility and will have life-long effects on any child taking them.[20]Children who take hormone inhibiting drugs are unlikely tobe able to conceive any genetically related children even through artificial reproductive technology.[21]

These treatments are neither fully reversible nor harmless.[22] Puberty suppression hormones prevent the development of secondary sex characteristics, prevent bone growth, prevent full organisation and maturation of the brain, and inhibit fertility.[23] Cross-gender hormones increase a child’s risk for coronary disease and sterility.[24] Oral oestrogen, which is administered to gender dysphoric boys, may cause thrombosis (blood clots that can be life-threatening), cardiovascular disease, weight gain, hyperglyceridaemia (increased levels of fat in the blood), elevated blood pressure, decreased glucose intolerance, gall bladder disease, prolactinoma, and breast cancer.[25] Testosterone administered to gender dysphoric girls may negatively affect their cholesterol; increase their hepatoxicity and polycythaemia (an excess of red blood cells); increase their risk of sleep apnoea; cause insulin resistance; and have unknown effects on breast, endometrial and ovarian tissues.[26] Girls may also eventually get a mastectomy, which carries its own unique set of problems and is irreversible.[27]

Based on the invasiveness of these treatments, and the psychological and health consequences stemming from gender confusion, we as a society must really take a good hard look if ‘tolerance’ and gender affirming policies are really the answer to this issue.

It is undoubtedly a difficult and life changing thing to have one’s child go through gender confusion. It is natural for a parent to want their child to be happy. But any short-term happiness that is gained by placating a child’s desire to dress and be identified as being of the opposite sex is outweighed by the significant and sinister outcomes that face so many of these children.

It is an unpleasant and unpopular thing to suggest, but the reality is that much of the existing policy regarding gender confused children is the direct result of very successful advocacy done by transgender campaigning groups, and has no basis in either mental health, binding law, or safeguarding concerns. Proverbially speaking, transgender advocates have shouted the loudest and therefore have been the ones who have dictated how this issue is treated. Those who dare to challenge this zeitgeist are quickly labelled as bigoted, hateful and transphobic.

As was discussed above, this narrative that a transgender child is a healthy and happy child has no bearing in psychology or social science. As this article has already shown, outcomes for ‘transgender children’ are almost universally poor. Let us now turn to the law and see why the current status quo is also not supported by current legislation.
 

Equality Act 2010

The Equality Act 2010 defines the protected characteristic of “gender reassignment” thus: “A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex.”[28] The Act neither defines what is meant by the ‘process’ envisioned or “the proposal to undergo” gender reassignment. Importantly, no binding case-law whatsoever exists which applies such an expansive definition of what is meant by a ‘proposal to undergo gender reassignment’ as to include young children, particularly where no medical or psychological evidence has been adduced as to the state of mind of these children.

Nor can children of such a young age, in accordance with UK domestic law and the United Kingdom’s obligations to the United Nation’s Convention on the Rights of the Child[29], be deemed to have the maturity or mental capacity to make a decision which so massively impacts their future psychological and physical well-being as to change their gender surgically or to alter their physiology through hormone blocking treatments. Neurologically, the adolescent brain is immature and lacks the adult capacity for risk assessment prior to the early mid-20’s.[30]

            The Convention dictates that any action taken in relation to a child, whether by a public or social welfare body, must be in the best interests of that child.[31] While some researchers have reported that they have identified some factors associated with the persistence of gender dysphoria into adulthood,[32] there really is no evidence that any clinician can identify perhaps the two percent of children for whom gender dysphoria will persist with anything approaching certainty. Given how radical gender reassignment is, including the use of puberty inhibiting hormones, the last thing social workers and schools should be doing is exacerbating the problem by affirming children in their gender confusion and forcing others to do the same by threat of punishment.

Gender identity and gender reassignment are not synonymous. A very strict legal process is required to obtain a Gender Recognition Certificate following the Gender Recognition Act 2004. The applicant seeking legal recognition of their gender reassignment must be 18 years of age[33] and must have lived in the acquired gender for a period of at least 2 years ending with the date the application is made.[34] Evidence of gender dysphoria is also required, provided either by a medical practitioner practising in the field of gender dysphoria or a charted psychologist in the field.[35] A Gender Recognition Panel must then determine if the evidence provided is sufficient to grant the Certificate.[36]

Far from providing a legal basis for treating perceived gender identity with gender reassignment, holding out gender-affirming policies as best practice contravenes existing case-law. In Re J (A Minor),[37] the family court removed custody from a mother of her 4-year-old child and gave full custody to the father because of her rigid approach to gender identity and the significant emotional harm she was causing her son in her active determination that he should be a girl. The court noted that while in his father’s care he began identifying as a boy and settled well at school.

In Croft v. Royal Mail Group plc[38], the courts ruled that protection for discrimination based on gender reassignment required the process of transitioning to have begun before this complaint could apply. Anatomical sex, it was held, played a factor in determining the applicability of anti-discrimination legislation. Precisely stated, recognition of gender reassignment in the context of non-discrimination law is not automatic and does not flow from merely identifying by a different gender. Neither does the Equality Act protect males who merely identify as females and dress in female clothing.[39]

Comparing the threshold to determine where gender reassignment should apply against another protected characteristic, the House of Lords has ruled that in order for religion or belief to be protected under the Equality Act, the beliefs involved must possess an adequate degree of seriousness, importance, and coherence.[40] The argument that the protected characteristic of gender reassignment should be attached merely by a young child’s desire to sometimes dress in the typical clothes of someone from the other sex does not pass intellectual muster. If in fact the manifestation of that desire is a genuine case of gender identity disorder, it is all the more shocking that a child should be allowed to name his own psychological diagnosis and be affirmed in it, by threat of punishment from local authorities if the parents choose to dissent.
 

Human Rights Act 2010

Article 8 of the European Convention of Human Rights guarantees the right to respect for private and family life. The Court has read gender reassignment into Article 8.[41] However, the right to private life is not absolute, and interference with matters pertaining to an individual’s private life are prescribed in Article 8(2): “There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

It is wholly lawful, and appropriate, for parents to place restrictions on their children dressing or manifesting behaviour which is inconsistent with their biological sex. Schools would also do well do adopt such policies. It is well settled case-law that the right to place restrictions on physical appearance, even where that appearance is meant to be a manifestation of that individual’s sense of self-identity, are both proportionate and lawful: Popa v. Romania[42], Tiğ v. Turkey[43], S.A.S. v. Germany[44], and Gough v. the United Kingdom[45]. While these cases deal with public or state actors, the principle is all the more true where a child’s parents are the decision makers in making any such restrictions.

This article has already detailed the significant health issues related to gender confusion: self-harming and suicide rates, undiagnosed comorbidities, unnatural persistence of gender confusion, and conflation of cases of children referred to gender identity clinics. Article 8(2) specifically mentions the protection of health as a legitimate ground for restricting manifestations of Article 8 rights. The Court has upheld restrictions based on promoting health numerous times.[46]

At the end of the day, when dealing with this sensitive issue, we must remember one very sobering statistic. The suicide rate among those who use cross-sex hormones and undergo sex-reassignment surgery is twenty times higher than among the general population. Prevalence of suicide at this rate is universal, including in countries, such as Sweden, which are among the most LGBT-affirming nations in the world.[47]This statistically debunks the notion that lack of acceptance is the cause of suicide among transsexuals.[48]Individuals suffering from gender confusion, particularly children, need our help and not tolerance.
 

Conclusion

Equality and self-determination are the great governing idioms of the current cultural zeitgeist. The equality agenda has advanced to such a point that now it reaches into the innermost aspects of family life, including childcare. Tolerance however is not love. Real love requires more of us than to merely affirm a child in their gender confusion. Gender Identity Disorder is rarely, if ever, cured by mere affirmation. It is a condition that brings with it serious symptoms including suicidality and self-harming at rates far higher than any other segment of the population. As a society, we can do better by children suffering with gender confusion. For the sake of future generations, we must do better.

Read the full Affinity Bulletin online.