The Unintelligibility of Conversion Therapy Directed at Gender Identity

An alternative basis for challenging conversion therapy laws

Photo by Marek Studzinski on Unsplash

The United States Supreme Court just heard argument in the case of Chiles v. Salazar, which is a challenge to a Colorado law prohibiting “conversion therapy” directed at sexual orientation and gender identity in minors. Court watchers such as Amy Howe, say that the majority of the justices seem to be looking for a way to strike down the law. The plaintiff in the case is a licensed counsellor who works with both gender dysphoric youth and youth who want to reduce “unwanted sexual attraction.” The basis of her challenge is that the law infringes on her freedom of speech under the First Amendment. This has caused concern even among people who oppose banning conversion therapy for gender identity in principle.

Since talk therapy consists almost entirely of speech, a ruling that anything therapists say to their clients is protected by the First Amendment would make it harder to regulate professional therapists in any way. This leads to the concern that the free speech argument does not sufficiently distinguish between sexual orientation and gender identity. Glenna Goldis argues that the harm of sexual orientation change efforts is well established. Sexual orientation cannot be changed by any known form of therapy, and efforts to change it have been exposed as fraudulent and harmful. Gender identity, on the other hand, is ill-defined and fluid. Gender affirmation often becomes a backdoor form of conversion therapy where gays and lesbians attempt to deny their sexual orientation by identifying as the opposite sex.

There is an alternate means of challenging conversion therapy laws that avoids these problems. The concept of conversion therapy for gender identity is so vaguely defined that the laws which attempt to ban it are unintelligible and thus fail to meet the requirements of fundamental justice.

The Vagueness Doctrine

The vagueness doctrine requires that criminal law must give reasonable notice of what conduct it prohibits. It was stated by the U.S. Supreme Court in Kollender v, Lawson as follows:

As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.

American courts have found that vague laws violate the requirements for due process of law under the Fifth Amendment and the right to be informed of the “nature and cause of the accusation” under the Sixth Amendment. Vague laws give excessive powers to the police and transfer to judges and juries functions that should be exercised by the legislature.

In Canada, it is possible to argue that an excessively vague law violates the guarantee of fundamental justice under Section 7 of the Charter of Rights and Freedoms, but there are no cases where a law has been struck down on this basis.

What Conversion Therapy Laws Say

There is no doubt what the proponents of conversion therapy bans for gender identity believe conversion therapy means. Any therapy that does not start from the assumption that a self-declared gender identity is innate, stable and unconnected with any other psychological process may be characterized as conversion therapy. This can include hesitancy in recommending a patient for hormonal or surgical treatments. This view is implicit in the accusations of practising conversion therapy that have been directed against therapists associated with Therapy First. This is explicit in the writings of academics such as Florence Ashley, who offers this definition of conversion practices:

Transgender conversion practices aim to alter, discourage, or suppress a person’s gender identity and/or desired gender presentation, including by delaying or preventing gender transition. Conversion practices are heterogeneous and wide-ranging. They include not only wanting to help individuals “reconcile with their natal body,” but also attempts to identify the cause of the person’s expressed gender — including under the pretext of gender exploration — pursuant to the belief that it may be caused by social contagion, trauma, mental illness, internalized homophobia, and flight from womanhood. Tying together these heterogeneous practices is the belief that transitude — being trans — is suspect, and that cisgender identities are more desirable, legitimate, or authentic.

Ashley agrees that existing conversion therapy laws are unclear and has proposed a model conversion therapy law that provides a comprehensive list of what practices are prohibited. However, no legislature has adopted Ashley’s code, probably because more politically astute activists realize that being too explicit about their real intentions would not serve their interests. Instead, most laws follow a standard pattern. The Colorado law is a typical example:

(a) ‘Conversion therapy’ means any practice or treatment by a licensee, registrant, or certificate holder that attempts or purports to change an individual’s sexual orientation or gender identity, including efforts to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attraction or feelings toward individuals of the same sex.

(b) ‘Conversion therapy’ does not include practice or treatments that provide:

(I) Acceptance, support, and understanding for the facilitation of an individual’s coping, social support, and identity exploration and development, including sexual orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practice, as long as the counseling does not seek to change sexual orientation or gender identity; or

(II) Assistance to a person undergoing gender transition.

The wording varies from place to place but the key element is a prohibition on efforts to change gender identity. This raises the question of how gender identity is defined. Many laws do not provide a definition gender identity and in those that do, the definition is not helpful in explaining the scope of the law.

What is Gender Identity?

The problem with gender identity is that it does not have any generally agreed definition and those definitions which exist are partly circular or dependent on social stereotypes. The difficulties start with the ambiguity of the term gender. In Material Girls, Kathleen Stock identifies four separate meanings for gender:

1. A polite synonym for biological sex;

2. The norms, expectations and stereotypes of masculinity and femininity which are attached to each sex in a given culture;

3. The division of people into two groups based on the social norms of masculinity and femininity projected onto them; and

4. An individual’s private experience of their gender role (also sometimes called gender identity).

Stock refers only to masculine and feminine genders but this no longer reflects the current use of the term as the list of gender categories is continually growing and changing. The website Choosing Therapy lists 20 genders, MedicineNet lists 72 and Disabled World lists 107. Others say that gender is a spectrum with an infinite range of possibilities.

While the term “gender” is ambiguous because it can be used to describe different concepts, the ambiguity of the term gender identity relates to the shifting meaning of the underlying concept. Alex Byrne has traced the shifting meaning of gender identity from its origin in a 1964 article by psychiatrists Robert Stoller and Ralph Greenson to the present. The definition proposed by Stoller and Greenson was “a fundamental sense of belonging to one sex.” However, Bryne notes that this clear definition has now been lost.

Current definitions of gender identity are derived from the preamble to the Yogyakarta Principles (2006):

UNDERSTANDING ‘gender identity’ to refer to each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms…

The term gender is not defined.

The World Professional Association for Transgender Health Standards of Care, Ver. 8 (WPATH SOC8) has a slightly different definition:

GENDER IDENTITY refers to a person’s deeply felt, internal, intrinsic sense of their own gender.

There is also a definition of gender:

GENDER: Depending on the context, gender may reference gender identity, gender expression, and/or social gender role, including understandings and expectations culturally tied to people who were assigned male or female at birth. Gender identities other than those of men and women (who can be either cisgender or transgender) include transgender, nonbinary, genderqueer, gender neutral, agender, gender fluid, and “third” gender, among others; many other genders are recognized around the world.

Unlike Stoller and Greenson’s original definition, the WPATH version contains no reference to sex. Alex Byrne points out that if gender is taken to mean gender identity, the definition becomes circular. Furthermore, Byrne points out that there is a contradiction between referring to gender identity as internal and intrinsic while gender relates to cultural understandings and expectations.

Statutory definitions of gender identity are inconsistent and generally unhelpful. While gender identity appears in human rights codes and other legislation in every province of Canada, none of them provide a definition. However, the Canadian Department of Justice has proposed the following non-binding definitions:

Gender: A person’s status in society as a man, woman, or as gender-diverse. A person’s gender may be influenced by several factors, including biological features, cultural and behavioural norms, and self-identity.

Gender identity: A person’s internal and deeply felt sense of being a man or woman, both or neither. A person’s gender identity may or may not align with the gender typically associated with their sex.

Australian states have a variety of definitions in their conversion practices laws. New South Wales has the following definition:

“gender identity” means the gender-related identity of an individual, which may or may not correspond with the individual’s designated sex at birth.

The Australia Capital Territory conversion practices law refers to the definition in the Discrimination Act, 1991:

“gender identity “means the gender expression or gender-related identity, appearance or mannerisms or other gender-related characteristics of a person, with or without regard to the person’s designated sex at birth.

The definition in the Victoria law reads:

“gender identity” means a person’s gender-related identity, which may or may not correspond with their designated sex at birth, and includes the personal sense of the body (whether this involves medical intervention or not) and other expressions of gender, including dress, speech, mannerisms, names and personal references…

Queensland provides the most extensive definition:

213G Meaning of gender identity

(1) “Gender identity” , of a person, is the person’s internal and individual experience of gender, whether or not it corresponds with the sex assigned to the person at birth.

(2) Without limiting subsection 1, the “gender identity” of a person includes

(a) the person’s personal sense of the body; and

(b) if freely chosen modification of the person’s bodily appearance or functions by medical, surgical or other means; and

(c) other expressions of the person’s gender, including name, dress, speech and behaviour.

Many American states, including Colorado, do not include a definition of gender identity in their conversion practices legislation. Maine provides the following definition:

Gender identity. “Gender identity” means the gender-related identity, appearance, mannerisms or other gender-related characteristics of an individual, regardless of the individual’s assigned sex at birth.

Massachusetts provides a very comprehensive definition which ends up raising as many issues as it resolves:

“Gender identity”, a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth. Gender-related identity may be shown by providing evidence including, but not limited to, medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity or any other evidence that the gender-related identity is sincerely held as part of a person’s core identity; provided, however, that gender-related identity shall not be asserted for any improper purpose.

It is notable that although advocates of the gender affirming model of medicine claim that gender identity is an internationally recognized scientific concept, no two legislatures seem to be able to agree on what it means. All the definitions refer to but do not define the term “gender” and may therefore be at least partly circular. Most of them also rely on stereotyped assumptions about the appearance and behaviour associated with each sex.

A court which attempted to apply the WPATH or Yogyakarta definitions would have to determine whether a person’s identity is in fact “deeply felt.” This terminology implies that some people may declare a sense of identity which is not deeply felt or internal. The only way a therapist can make this determination is by engaging in the kind of exploratory psychotherapy that advocates of conversion practices laws want to prohibit.

A further problem is that regardless of the definition used, there is no way for a therapist to know what interventions might lead to a change in a client’s gender identity and therefore be unlawful. For example, a therapist might suspect that a client’s transgender identity is a maladaptive response to childhood trauma. The therapist encourages the client to explore these issues, and the client eventually stops identifying as transgender. Has the therapist been engaging in conversion therapy? The answer will be complicated because there will almost always be other factors influencing the client besides therapy. It also raises the question of whether an identity which shifts because of external factors was an internal and deeply felt identity in the first place.

The vagueness of the term gender identity is not something that can be dealt with by better legal drafting. The whole underlying concept is ill defined. Gender identity has been defined as an individuals’ internal and unfalsifiable relationship to shifting social and cultural standards. This is not something which can be made a reliable basis for penal laws.

Consequences

While there is a strong case, in theory, that bans on conversion therapy directed at gender identity are void for vagueness, there are practical obstacles to bringing a case to court. Courts can be vague and inconsistent in the application of the vagueness doctrine. Furthermore, many conversion therapy laws are enforced by professional discipline tribunals where the rules generally allow for more discretion. The most likely outcome of an actual hearing would be that the court would find that the charges had not been proved without ruling on the constitutional validity of the law.

To the best of my knowledge, there have been no charges of practicing conversion therapy that have gone to trial. This is probably partly because prosecutors recognize that the laws have serious flaws and are reluctant to test them in court. However, even the threat of prosecution can be a serious deterrent. A criminal charge or professional discipline proceeding, even if it ends in acquittal, carries major financial and personal costs. The same vagueness that makes prosecutors reluctant to bring charges makes it difficult for lawyers to advise therapists on what practices are legal. Where there is a conversion therapy law, therapists who do not strictly follow the affirmative model of care do so at their peril.

Anxiety about accusations of conversion therapy constrains the ability of therapists to work with patients. Psychiatrist Roberto D’Angelo refers to a “prohibition on knowing” which constrains therapists from discussing the relationship between their client’s gender identity and other areas of distress or from considering the harms of medical transition.

An article from 2024 entitled “Ethical Care in Secret”: Qualitative Data from an International Survey of Exploratory Therapists Working with Gender-Questioning Clients by Peter Jenkins and Dwight Panozzo describes the results of a survey of members of Therapy First on their experiences in working with gender-questioning patients. The respondents worked in several countries, primarily English speaking, with varying degrees of restrictiveness in their conversion therapy laws. While only a small minority had experienced a complaint, a substantial proportion felt that they worked in a hostile environment and experienced anxiety about the possibility of a complaint. Coping strategies included target marketing and careful client selection, which often meant not working with minors.

What Happens Next?

The United States Supreme Court’s decision in Chiles v. Salazar will restart the legislative debate on conversion therapy laws in the U.S.A. The court is likely to invalidate most existing laws but still leave room for states to adopt some form of regulation. This will create an opportunity to make the case that gender identity and sexual orientation are separate matters. One consequence will be a split in the coalition that has formed to support bans on pediatric gender medicine between religious conservatives who want to end restrictions on conversion therapy for both sexual orientation and gender identity and the members of the LGB community who would like some restrictions on sexual orientation change efforts to remain.

However, there is little prospect of legislative change in other countries which have recently adopted conversion therapy bans. The most promising way forward in those countries is by working with medical and mental health associations to develop standards of care which endorse exploratory psychotherapy for gender-related distress. The vagueness of existing conversion therapy laws will be helpful here. If the medical and mental health professions develop a consensus that certain forms of therapy do not amount to conversion therapy, the courts are very unlikely to overturn it.

The legislative debate is ongoing in the United Kingdom. The Labour government has pledge to introduce a “trans inclusive” conversion therapy law but has not yet introduced a bill. However, the Cass Review strongly recommended against conversion therapy legislation. The Final Report found that clinicians expressed concern about “potential accusations of conversion practice when following an approach that would be considered normal clinical practice when working with other groups of children and young people (par. 17.20).” This left many clinical staff fearful of accepting referrals of gender-questioning young people. There is still hope that the government will follow this advice.