Breaking up Is Hard to Do: Why the UKCP Is Right to Leave the Memorandum of Understanding on Conversion Therapy
Introduction
The United Kingdom Council for Psychotherapy (UKCP) is one of the main leading professional associations of therapists within the UK, together with the British Psychological Society (BPS), and the British Association for Counselling and Psychotherapy (BACP). The UKCP, with 11,000 members, is a federal organisation, bringing together over 50 training and practitioner associations, grouped together in 10 colleges based on therapeutic modality, such as existential, psychodynamic, humanistic, etc. It is currently locked in dispute with some members over its recent decision to withdraw from a policy commitment to end conversion therapy.
Background to the Memorandum Of Understanding on Conversion Therapy
The origins of the dispute lie in an undercover sting by a journalist, Patrick Strudwick, who saw a BACP therapist to him overcome his supposed trauma of being a gay man. He secretly taped the session. He then published an article in the Independent (Strudwick, 2010), alleging conversion therapy by the therapist, in attempting to change his sexual orientation. This led to a successful professional complaint being upheld against the therapist. The BACP then joined the UKCP and other professional associations in agreeing a Memorandum of Understanding on Conversion Therapy in 2015. At this stage, the agreement was limited to opposing conversion therapy on the grounds of sexual orientation. This was a voluntary, non-legal policy statement, requiring compliance from signatory bodies, which was enforced via their relevant codes of ethics. In 2017, in a highly controversial move, the MOU was extended to cover gender identity (Charlesworth, 2021). It has since been signed by most therapy associations, medical and psychiatric associations and by major employers of therapists, such as NHS England, NHS Scotland, and MIND.
Problems with the MOU as a policy document
There are major concerns, however, about the MOU.The MOU document itself is widely misunderstood as requiring therapists to affirm a trans client’s gender identity, but there is no actual mention of affirmative therapy as such in the whole document (BACP, 2022). However, this would be a reasonable assumption to make, given the general stance of the document in endorsing the concept of gender identity. The MOU was used, for example, to justify the widespread use of gender identity affirmative therapy at the Tavistock GIDS. The MOU itself as an organisation does not seem to publish its accounts, or details of its staffing and funding. It would therefore appear to lack public accountability. Its recent change of policy to apply the MOU to children under 18 was seemingly taken in 2022, but UKCP did not learn of this until much more recently.
In addition, the MOU is strongly influenced by WPATH (World Professional Association for Transgender Health). Thus, key MOU members were members of WPATH until recently. WPATH has been recently exposed in The WPATH Files (Hughes, 2024) and further challenged by the Cass Review, for making claims for its Standards of Care which lack robust evidence. MOU practice appears to be one of ‘No debate’. Signatory organisations seem to have applied a policy of no debate at all, or very limited internal debate about conversion therapy within their professional journals. The MOU as a document has also clearly influenced recent attempts at legislation prohibiting conversion therapy, judging by the similarity of wording. There are, however, major concerns that the term ‘gender identity’ and alleged attempts to change it via conversion therapy are undefinable in strict legal terms. These proposals therefore would seem to be unworkable for the purposes of criminal prosecution.
Background to the current UKCP/MOU dispute
In 2021, James Esses, a trainee psychotherapist and barrister, raised safeguarding concerns about gender questioning young people with his therapy training association and with his placement. He was then dismissed from both his psychotherapy course and his training setting. He brought a legal case against his training organisation and against the UKCP. The UKCP settled the case with James out of court. In November 2023, the UKCP issued a key statement to the effect that exploratory therapy was not equivalent to conversion therapy. It is likely that the UKCP’s decision to settle was based on legal advice, following a tranche of successful legal cases which confirmed that gender critical beliefs are explicitly protected under the Equality Act 2010. In early 2024, the UKCP withdrew from the MOU. A counter-move to sack the entire UKCP Board was then launched by an activist group, Therapists Against Conversion Therapy and Transphobia (TACTT).
This has led to a bitter dispute within the UKCP. If the UKCP’s Board is voted out and the decision taken to rejoin the MOU, this will give a significant boost to future legislation to ban alleged conversion therapy in the UK. However, if the UKCP’s decision is upheld, in what is likely to be a narrowly decided vote, echoing the Brexit outcome, then the MOU will suffer a major loss of face. This will increase the chances of further defections, perhaps particularly by the psychoanalytic member societies, who are already becoming restive on this issue.
There are some major potential legal and policy problems with TACTT’s attempt to overturn the UKCP decision to leave the MOU. There are three main factors to consider here:
The UKCP’s defence of exploratory work within therapy;
The developing clash between the MOU and the Cass Reforms;
The potential conflict between MOU policy and the law.
The UKCP’s defence of exploratory work within therapy
In November 2023, the UKCP issued a statement clearly stating that “Exploratory therapy should not in any circumstances be confused with conversion therapy.” The MOU provides only very grudging acknowledgement of the central role of exploratory therapy with gender questioning clients, i.e. for those who are unhappy, uncertain, or in distress (Jenkins, 2021a). The MOU Chair has made further claims that “the extended exploration of someone’s traumatised history is really a way of preventing them from being able to live their life and have the gender or sexual orientation that they wish to have” (SP, 2021: Col. 30).
Exploratory work within therapy is a core part of every therapy modality. The Cass Review clearly recognises that for gender-questioning young people, “Exploration of these issues is essential to provide diagnosis, clinical support and appropriate intervention” (2024: 150). While it can be argued that the MOU does not explicitly require that therapists apply gender identity affirmative therapy, the MOU was used at the Tavistock Gender Identity Service to legitimate the adoption of a largely affirmative model of care. The Interim Cass Report described this process as ‘diagnostic overshadowing’, namely that a self-declared gender identity meant that further exploratory therapy would be considered unnecessary in many cases. This led to rapid medicalisation and potentially devastating longer-term health consequences for many young clients.
The developing clash between the MOU and the Cass Reforms
The Cass Review rightly opts for a public health approach to the question of developing services for gender questioning young people. This approach uses an evidence-based model, relying on systematic reviews of the available moderate to high quality evidence, caution in using medical approaches, and a key, primary role for therapy and psychological interventions. Cass has identified a major barrier to reforming gender identity services, arising from practitioner fears of being subject to allegations of practising conversion therapy. This arises from the apparent fluidity of gender identity and the hostile perception by activists that mainstream exploratory work within therapy is in fact either an overt or a covert form of conversion therapy. This anxiety is likely to hamper and deter many therapists from working with this client group. It is now leading to problems in staffing the regional hubs designed to replace the Tavistock GIDS.
The MOU is itself strongly influenced by the World Professional Association for Transgender Health (WPATH). WPATH Standards of Care version 8 were criticised by Cass as lacking robust evidence. WPATH sees only a very limited role for therapy for gender questioning clients, i.e. “counselling or psychotherapy specifically focused on their TGD [Transgender and Gender Diverse] identity is not a requirement” (Coleman et al, 2022: S31). The Cass Review’s defence of exploratory work within therapy has potential implications for all therapists working with gender questioning clients, and not simply those seeking to undergo social, medical or legal transition.
The potential conflict between MOU policy and the law
The UKCP decision to withdraw from the MOU is based on a number of factors, ie
The need to protect UKCP therapists undertaking exploratory work within therapy from charges of conversion therapy;
The failure of the MOU to acknowledge concerns about safeguarding clients under the age of 18 years;
The need to fully acknowledge the rights in law of UKCP therapists holding and expressing gender critical beliefs.
The application of the MOU to therapy with children under 18 raises key legal questions about the role of capacity, informed consent and safeguarding for this vulnerable group of clients. There are additional questions and complexities about therapy with children under 18 years, which are not addressed by the MOU at any point. Theses complexities are not satisfactorily resolved by referring either to the Gillick decision on adolescent autonomy in England, Wales or Northern Ireland, or by the Age of Legal Capacity Act 1991 in Scotland (Jenkins, 2021b).
The UKCP has acknowledged that its decision has also been directly influenced by legal concerns about recent case law and by the escalating costs of legal insurance cover in the light of this. There has been a tranche of key legal decisions from Employment Tribunals, up to Appeal level, which have emphatically supported the rights of therapists to hold and express gender critical views, even where others might consider these to be offensive. After Forstater, there is now an evident conflict between the rights in established case law of therapists who do not accept the concept of gender identity, and the policy and contractual requirements imposed upon UKCP members by its previous endorsement of the MOU. The MOU is simply a non-legal document of inter-professional agreement. It is difficult to see how this policy could be imposed in law on dissenting gender critical therapists, without being robustly challenged in the courts. The UKCP, perhaps very sensibly, can see which way the law is clearly developing on this issue, and wishes to avoid unnecessary expense and unwinnable future litigation in the courts.
This article first appeared at Critical Therapy Antidote.
References
British Association for Counselling and Psychotherapy (BACP) (2022) Memorandum of understanding on conversion therapy. https://www.bacp.co.uk/events-and-resources/ethics-and-standards/mou
Cass, H. (2022) Independent review of gender identity services for children and young people: Interim report. https://cass.independent-review.uk/publications/interim-report
Cass, H. (2024) Independent review of gender identity services for children and young people. https://cass.independent-review.uk/home/publications/final-report/
Charlesworth, S. (2021) Captured! The full story behind the memorandum of understanding on conversion therapy. https://www.transgendertrend.com/product/captured-the-full-story-behind-the-memorandum-of-understanding-on-conversion-therapy/
Coleman, E. et al. (2022) Standards of Care for the Health of Transgender and Gender Diverse People, Version 8. International Journal of Transgender Health. 23:sup1, S1-S259. https://www.wpath.org/publications/soc
Hughes, M. (2024) The WPATH Files: Pseudoscientific surgical and hormonal experiments of children, adolescents and vulnerable adults. Albany, California: Environmental Progress. https://environmentalprogress.org/big-news/wpath-files
Jenkins, P. (2021a) Through the looking glass: Making sense of the MOU Parts 1: Critical Therapy Antidote: https://criticaltherapyantidote.org/2022/03/25/through-the-looking-glass-making-sense-of-the-mou-part-1
Jenkins, P. (2021b) Calibrating Gillick in the age of gender wars: Part 2: The curious case of the Tavistock. Critical Therapy Antidote: https://criticaltherapyantidote.org/2022/01/02/calibrating-gillick-in-the-age-of-gender-wars-part-2-the-curious-case-of-the-tavistock/
Scottish Parliament (SP): Equalities, Human Rights and Civil Justice Committee (2021) Conversion Therapy. 21 September. https://www.parliament.scot/chamber-and-committees/committees/committee-official-reports/ehrcj-21-09-2021?meeting=13321
Strudwick, P. (2010) “The ex-gay files”, Independent, 1st February, pp. 2-5.
UKCP (2023) Guidance regarding gender critical views. https://www.psychotherapy.org.uk/news/ukcp-guidance-regarding-gender-critical-views/#:~:text=Case%20law%20has%20confirmed%20that,therefore%20not%20be%20discriminated%20against
Legal references
Forstater v. CGD UKEAT/0105/20/JOJ. Maya_Forstater_v_CGD_Europe_and_others_UKEAT0105_20_JOJ.pdf (publishing.service.gov.uk)