Could this legal opinion change the climate of fear that clinicians are experiencing when talking about gender identity?
This paper is in response to Paul Thistoll’s correspondence to professional bodies regarding a conference organised in New Zealand by Genspect in November 2023. Mr Thistoll is the CEO of the recently formed Countering Hate Speech Aotearoa. Mr Thistoll suggested that health professionals attending the Genspect conference would be in breach of ethical obligations, The Free Speech Union sought a legal opinion from Nicolette Levy KC, regarding Mr Thistoll’s assertions and this letter contains excerpts from that opinion. I am a therapist and a member of one of the professional bodies Mr Thistoll wrote to.
At present, the psychotherapy and counselling community routinely shuts down views that question or oppose the affirmative treatment of gender dysphoria. Many clinicians have rushed to adopt the model known as gender affirming care when working with young people with gender dysphoria, and this approach is actively endorsed by some professional bodies.
At least two professional bodies offer courses that present gender affirming care as a treatment option. In training sessions presenters share their frustrations about the barriers to young people getting puberty blockers, and recommend that young people be informed that having mental health problems won’t be a barrier to the prescription of puberty blockers. There is a façade that curiosity and questions are encouraged, but the reality is that these courses are not an environment in which genuine debate or discussion about treatment options is permitted.
I have observed colleagues being shut down, accused of bigotry, and called TERFs, for raising doubts about gender affirming care, or favouring a more cautious, non medicalised approach to gender dysphoria. Their posts have been removed from professional social media pages. Speakers have pulled out of presenting their views at conferences because of pressure and threats to their reputation. Many in the profession are scared to speak up, and so the numbers sharing their concerns are not known.
The irony that some therapists are afraid to speak up, when professionally our purpose is to encourage clients to feel free to speak, is surely obvious.
Our colleagues in the psychiatry profession have adopted a far more nuanced response to this complex area.
The Royal Australian and New Zealand College of Psychiatrists position statement on Gender Dysphoria (last updated August 2021) says:
There are polarised views and mixed evidence regarding treatment options for people presenting with gender identity concerns, especially children and young people. It is important to understand the different factors, complexities, theories, and research relating to Gender Dysphoria.
The Genspect conference
One such attempt to understand gender dysphoria and its complexities was the Genspect conference. Genspect New Zealand says it promotes respectful and open discussions regarding sexuality and gender in the light of current scientific and clinical evidence, and its conference will address questions such as: How strong is the evidence base for gender transition in NZ? Do children have the capacity to consent to gender treatments? Do we do more harm by giving or withholding treatment? Are puberty blockers safe and reversible?
Jan Rivers of Genspect New Zealand has stated:
Genspect’s purpose is a healthy approach to sex and gender. It has members in 26 countries including professionals, trans people, detransitioners, and parent groups who work together to advocate for a non-medicalised approach to gender diversity. It was founded in 2021 and its rapid growth is testament to the international concern about medicalising gender non-conforming children. The object of the conference is to advocate a precautionary approach. Research shows that social transition of children and adolescents to the opposite sex is not a neutral act, and this often leads to a prescription for puberty blockers. Treatment with puberty blockers then invariably lead to cross sex hormones and surgical interventions. However strong evidence shows puberty resolves feelings of gender incongruence for the majority of young people. Social transition and puberty blockers – although considered safe and reversible in New Zealand (puberty blockers are currently undergoing a systematic review process by the Ministry of Health) - reinforce the likelihood of concretising the mistaken idea of ‘being in the wrong body’ in the children and adolescents who receive them.
In response to this conference, and indications that a medical doctor would be speaking at it, Mr Thistoll wrote to the Royal New Zealand College of General Practitioners and other related professional bodies, asking them to fire a warning shot to members about attending or speaking at the conference. He cited professional ethics, the Conversion Practices Prohibition Legislation Act 2022 and hate speech as supporting his position. The Free Speech Union was approached about this attempt to silence health professionals and sought a legal opinion from Nicolette Levy KC, about Mr Thistoll’s assertions.
In her written legal opinion to the Free Speech Union, Ms Levy discussed the issues and precedent cases and said:
My opinion is that a doctor speaking at the Genspect conference, intending to contribute to an evidence-based discussion on the issue of treatment of childhood gender dysphoria, would not be in breach of any ethical standard or guilty of professional misconduct likely to bring discredit to the profession. Likewise, my view is that any health professional attending the conference to listen or contribute on the same basis would not be in breach of any ethical standard.
Mr Thistoll’s assertions about gender exploratory therapy were that it was a therapeutic practice with a very low evidence base that falls well outside the mainstream of gender-affirming practices, and is highly likely to be prohibited under the Conversion Practises Prohibition Legislation Act 2022.
Ms Levy’s view was different. She said:
In my opinion this is incorrect.
One of the stated purposes of this Act is to promote respectful and open discussions regarding sexuality and gender. Exploratory therapy was referred to by MP Ginny Anderson (in Committee) during the progress of the Bill. She said:
The definition [of conversion practice] would not capture, for example, a parent not supporting their child to seek support for gender dysphoria, withholding consent for the administration of puberty blockers, or advising a wait-and-see approach to gender-affirming care.
[...] people who are struggling with their sexuality or gender should be able to receive the support they need, including that ability to explore their identity or to reconcile their faith and sexuality. However, rather than being supportive or exploratory, conversion practices are external attempts to achieve a predetermined outcome of changing or suppressing a person's sexual orientation, gender identity, or gender expression.
This reference to exploratory treatment being outside the scope of the Bill is supported by the wording of the Act which provides that a conversion practice is any practice, sustained effort, or treatment that—
(a) is directed towards an individual because of the individual’s sexual orientation, gender identity, or gender expression; AND
(b) is done with the intention of changing or suppressing the individual’s sexual orientation, gender identity, or gender expression”.
Mr Thistoll also claimed that a speaker at the Genspect Conference had a long history of making gender-critical and highly transphobic remarks, and recently ran as a list candidate for the Women’s Rights Party, and that a Fellow of the RNZCGP was going to speak anonymously with a gender-critical Australian psychiatrist who recently lost her position because of her transphobic beliefs.
Ms Levy’s response:
Mr Thistoll refers to speakers being gender-critical, in a way which implies that speech by such speakers will necessarily be hate speech, and listeners guilty by association.
In the United Kingdom an Employment Appeal Tribunal has held that gender-critical views are worthy of respect in a democratic society, and in New Zealand the High Court has said that a prominent gender-critical group, Speak Up for Women, could not rationally be called a hate group.
Dr Charlotte Paul
Dr Charlotte Paul, an epidemiologist and emeritus professor at the Department of Preventive and Social Medicine at the University of Otago recently wrote an article in the magazine North and South, outlining her concerns about puberty blockers and approaches to treating gender confused youth. She notes currently there is a review by the Ministry of Health into the efficacy of puberty blocker and she is frustrated that this review is taking so long.
Professor Paul has previously written in the Listener about her concerns about these medications after being urged by younger colleagues who were too afraid to speak up. She quotes one such colleague:
Like others I am very afraid that in the guise of helping, medicine may risk doing considerable harm.
Professor Paul also wrote of colleagues that had contacted her, to say that they doubted there was sufficient psychological assessment before children were prescribed puberty blockers - to help distinguish between those few who will remain transgender from those who it is a phase or whose distress has another cause.
Professor Paul continues:
A youth worker told me that his experience of working with marginalised teens closely aligned with what I had written. These teens had “complex histories of trauma, and an unusually high prevalence of trans-gender identification”.
Dr Hilary Cass, senior paediatrician who conducted the Cass review at the Tavistock Clinic gender identity service in the UK also noted that these young people are vulnerable and have complex needs. Her review took place after staff at the Tavistock Clinic blew the whistle over their concerns that children were being rushed into social and medical transition. Her recommendations included that the Tavistock Clinic should be shut down, there should be regional teams connected to local mental health services, and that a more holistic approach was appropriate for these children. Dr Cass proposed that use of puberty blockers be for a subset of those with early onset gender dysphoria, and prescribed only in a research setting.
The history of psychotherapy is one where theories and treatment approaches evolve.
While evidence shows some therapeutic models are more efficacious for particular presentations, it is widely acknowledged amongst therapists, that one size doesn’t fit all.
Many therapists are wedded to the particular model they have specialised in. However, debate and discussion about different treatment approaches should always be welcomed, even if uncomfortable. After all, debate and discussion has allowed therapy to evolve, leading to better outcomes for clients.
Unfortunately, respectful debate and discussion are largely absent in the therapy community when discussing approaches to working with young people with gender issues. My experience is that some professional bodies are fostering this “no debate”, “one size fits all” approach to troubled young people with complex needs. I call on all professional bodies to reflect on this. And to reflect on the words of one de-transitioner that Professor Paul quotes in her article.
Nobody asked me questions. No therapist, no doctor, nobody stopped to ask me, are you sure this is what is right for you? Nobody searched for underlying causes for what I was feeling. Nobody tried to dig deep into my emotions to pinpoint what was really wrong with me, because it wasn’t really gender dysphoria.. Everyone I saw simply affirmed me. They told me, yes you are transgender. You are really a man…