Fri 8 Apr 2022 — 18 min

Florence Ashley is a transfeminine jurist and bioethicist based in Toronto, where they are a doctoral student at the University of Toronto Faculty of Law and Joint Centre for Bioethics. Their new book, “Banning Transgender Conversion Practices: A Legal and Policy Analysis”, carefully analyses the effectiveness of potential conversion therapy regulation, outlining the legal steps needed to ensure maximum effectiveness. It is a compelling read, importantly centring the question of ‘how’ bans can be successfully implemented, rather than just ‘why’ they are necessary.

In a political climate where the UK government has proposed a ban on conversion therapy which specifically excludes trans people, this book is more necessary than ever. The book lucidly explains how such bans pose not just a threat to trans individuals, but the LGBT+ community as a whole due to the intertwined nature of such practices.: one cannot be effectively banned without the other The brilliant ‘model law’ provided and richly discussed by Ashley provides a perfect starting point for our onward fight, and to ensure that we concentrate our efforts on passing legislation which actually protects the trans community.

You take a deliberately trans-affirming stance from the outset of your book, refusing to extensively debate the harms of conversion practices. Was this a difficult decision in the current political climate of backlash against trans existence, and did you feel pushed to do otherwise at any point?

I definitely was pushed by reviewers. I mostly stuck to my guns, I did have to add a little bit more signposting and references for people who wanted to delve more into that debate, but to me this isn’t that book. This is a policy book, I’m not here to try to re-hash trans health 101. So, I found that not taking a trans-affirming stance would have been a distraction from what the book does.

Of course, it’s not like I don’t engage with the debate very extensively in my other works: I don’t think anyone can accuse me of shying away from that debate. I definitely do it in my other publications, including my current dissertation where I go very extensively into research and trans health science. It just wasn’t for this book.

But you know, I do recognise that it will have an impact on who is interested in this book, but at the same time, not every book is for everybody, and I didn’t want to add 50 pages to the book to re-hash debates that I don’t think were particularly relevant to the task of the book

You say that the book obviously isn’t targeted at everyone - there are significant aspects of it that are more legally focused and more policy focused and are going to be more relevant to people thinking about policy specifics than necessarily every trans person. But what aspect of your book do you think is the most useful for less legal trans minds to engage in?

I think the hope is that the book will have a little bit of something for everyone. That is, for everyone that generally agrees with this trans-affirming stance and this idea that conversion therapy is bad and that we need to stamp it out – which is my foundational premise.

In terms of what’s of interest to trans people, it’s going to depend a lot on the trans people, I think the annotations and explanatory notes to the model law are very interesting for people who want to learn more what conversion practices are like, because I go quite a lot in depth around different practices so even though it’s a model law, and thus positions itself as more of a legal thing, you know each section has its own backgrounder, and that backgrounder is really packed with information.

The other thing I think is really this policy and constitutional debates, because that where lots of opposition comes in, in terms of when people are raising free speech or religious freedom and things like that- knowing how to respond to that is helpful.

I think that at the advocacy level what is also useful is the pros and cons. I really go into the pros and cons of different aspects of bans, which can hopefully help people figure out what we’re getting into when we’re doing those bills – what they can do and what they can’t do. There is a tendency to assume that having a ban is the end-all-be-all and the reality is that it’s really not. It’s a first step, and that’s assuming that you get the ban right which in practice so far has not really been the case. I think having that discussion just out there can really help advocates think about how they want to approach and deal with conversion practices.

We’ve seen significant discussion around the exploratory model by anti-trans groups, and this innocuous sounding term of course can act as a euphemism for what is actually conversion therapy. Where and how do you think we should draw the line between genuine exploration of identities, something fundamental to the affirmative model, and forced exploration as conversion?

So, I mean, you’ve kind of pointed it out which is that the forced aspect of it - is this something that the person sought out or something you imposed upon them?

However, I think also sometimes there are questions as to the details: because what they call gender exploratory therapy really begins from a position and understanding of transness as pathological and often times as fundamentally inauthentic. That is a major difference because you’re saying, we’re doing this gender exploration not because of some neutral concern for supporting people’s exploration but really because we think there’s something suspect and even wrong about being trans or having gender dysphoria in a way that’s not true of being cisgender and not having gender dysphoria. In this distinction we see what the real goal is: to ensure that as few people as possible transition or live out their life being trans, and that’s when we get to conversion practices.

Now of course there are conversion practices in law and conversion practices in how we talk about them outside of that. It’s one thing to know to something is conversion practices, it’s another to prove it in court. The law doesn’t have a monopoly on calling things conversion therapy or conversion practices, so to the extent we are talking in a non-legal way, it mainly doesn’t matter that much right? Like we don’t have to draw perfect and hard lines because we are putting out messages in the social sphere to have discussions, which is different from having a criminal ban.

But to me what really distinguishes conversion is first this forced nature, and secondly the aspect that is grounded in negativity to being trans.

In your book you focus a lot on what I would describe as ‘formal’ conversion practices - so psychotherapy, accessing specific professional services designed for this purpose. But what does the law have to say, if anything, on conversion practices that are happening in less typically therapeutic ways? So, for example, thinking about parents who choose to home-school their child and control what kind of gendered practices the child engages in.

Yes, so there’s kind of a spectrum of homophobic and transphobic practices that goes from light negative attitudes all the way to very structured and intense attempts to change someone’s gender or sexuality - there’s a lot of language to describe different things along that spectrum.

When I think about conversion practices, I’m generally focussing on something that has a degree of systematicity that would be akin to certain psychotherapies or talk therapies, which may not be done by a psychotherapist, but it’s things that are like that in terms of structured aspects. That’s sort of baked into the language that I propose. However, that’s not to say that, for instance, religious conversion practices or parent-initiated practices aren’t falling under the law, it just means that they have to be of a particular kind and of a particular approach. That’s the first part.

The second part is that just because something isn’t prohibited under that law doesn’t mean that it’s suddenly allowed. A lot of what’s done by parents may be better handled through other mechanisms. For instance in Canada, the child welfare system is extremely violent, but compare that to the criminal justice system and the idea of just criminalising parents, and it is less of a blunt instrument and much more fine-tuned, allowing for interventions that include support in the family and things like that, de-emphasising throwing people in jail. These are things that can address practices on the less formal side of the spectrum.

Another reason why I focused on licenced professionals is not necessarily that I don’t think the law would apply to people who aren’t licensed, because it absolutely does, but they are the ones who the law is most likely to work on. Parents and religious settings, because of privacy, and also because they are less state-regulated, tend to be much harder to discourage through law. You can close the largest institutions that are doing conversion practices but most of it is just not organised enough to really be captured by that, and they’re not that dependent upon the system that they would necessarily be deterred by law. Whereas, the same is not as true of licenced professionals. Some will absolutely ignore the law, but for the most part they are relying on their licence to practice, and licensure is a huge part of what gives them the credibility to get people to conversion practices.

So there is this sense that the laws should cover relatively broad practices but should be tailored primarily toward licenced professionals because those are the ones that the laws are going to work on. Whereas the other less formal types of practice need other approaches, non-legal approaches, to really be effective. Again, this isn’t to say that the laws need not apply to them, but also I hold no illusions as to the ability of the laws to actually to have the desired effect on them, and if we really want to address those practices, no amount of fine-tuning laws will do. We really have to take different kinds of approaches in the first place.

Your annotated model law is particularly powerful. What can and should trans activists be doing to get this model legislation on the statute books?

So, I think it can be promoted right? This is something that you can send to your politicians, say ‘hey, look at this, we want this’. It’s something that can be officially endorsed by organisations and I do try to emphasise in the introduction of the model law and at various points during it that I really do stand by the draft, but this is a starting point because with different social contexts need you need to slightly change your touch. So promoting this model law, endorsing it, but also looking into doing regional variations on it, and see how it needs to be tweaked to really work within a particular legal system.

For that I’m especially thinking about the things that aren’t definitions of conversion practices but also the enforcement part. For example, one of the things I include is saying that conversion practices are discrimination. So, from a Canadian standpoint and a lot of other countries, once something is discrimination, you can appeal to a human rights tribunal or commission to make complaints, but different countries have different mechanisms. In some countries, there might be even more efficient mechanisms to engage other than human rights commissions.

Also, some countries don’t use the same legal language, for instance the language of negligence which gives rise to a cause of action which means you can sue somebody. Not every country is going to use that language of negligence, I know that very well coming from Quebec and being trained in both civil law and common law. So things need to be adapted.

Moreover, different cultures are going to have very different experiences of conversion practises and there is a need to supplement and adapt. While I think that most of how I define conversion practises is going to apply, it is important to contemplate the fact that there are forms that are regional and just not captured by the way I’ve defined them because I’m coming at this from a particular cultural and sociohistorical background - primarily being grounded in English and American psychological traditions and psychoanalytic French traditions - and that has a huge impact on what conversion practices look like in Canada and the US and much of western Europe, but that doesn’t mean it will apply everywhere. Of course with the globalisation of psy disciplines a lot of those forms and logics of conversion practises have been very much been exported, but you’re still going to have differences and I think that’s where I think it’s really important to engage with the model law carefully. In many contexts it might well be just a simple, just simply call for a simple endorsement or just straight up adoption and in other contexts it’s not going to, and so what I want people to do is to look at it and think what they want to do with it, whether they want to take it up as is, or change it in a way that best suits them.

I really think there is a lot of potential for generating a lot more creativity both in trans-advocacy but also among legislatures because they’re all copying each other’s laws and making variants of each other’s laws that all have the same fundamental flaws and I think my model law can really, hopefully can be used to break that rot and really get people thinking creatively about what we’re trying to do here.

On a more personal note, writing this book must have required engaging with a lot of incredibly upsetting material. How did that affect you, and how did you manage it?

Yeah it’s definitely rough. Surprisingly, it’s really not that high up among the worst projects I’ve engaged in. The worst was probably my Rapid Onset Gender Dysphoria paper. Another paper for which I have conditional acceptance is on Gender Exploratory Therapy, which was also pretty tough. My doctoral dissertation is also very difficult because it requires me to read so many transphobic legal judgments - not as transphobic as conversion therapy, but because these people have so much power - I can only think about the kid in 2003 who was sent to conversion therapy by a Canadian judge.

It’s tough, and there’s really no easy way. I have to take it step by step and be careful not to exhaust myself. I try to surround myself with good people, and that’s been a tough one, especially being mostly single nowadays! I tend to derive my energy from investing in loving and caring for someone, and with that missing over the last few years I have lost some of the tools I have for resilience.

One thing is to let myself just do self-care projects - like writing an article about funny case names. It’s important not to hold myself to high a hope or expectations in terms of productivity.

You publish so much though!

Well... that’s true. I feel that’s more to do with effectiveness. In terms of pure workload I’m not working as much as people think! People have really warped impressions of how much I work. I work very intensely, but I need a lot of rest time.

The thing is there’s really just no solution for dealing with upsetting research. Really what we need is structural changes and institutional investment in scholars.

I have also found it beneficial to live in an environment where I have a lot of good friends who don’t on trans issues or are really even that aware of what is going on - when things are going worse than other times we can spend time together and they might not even know. I can tell them and of course they’ll be supportive, but it avoids that mutually reinforcing sadness that happens around other trans people who are also burdened by societal transphobia. Having a circle of trans friends, and a circle which is much less trans or less invested in trans politics helps me manage exposure. It’s kind of the equivalent of not going on social media!

There aren’t really any solutions, and sometimes you just have to stay in the sadness - it’s necessary for your research. It is what it is, but you just make sure you do the small things you need to do to keep going.

I’m impressed you’ve carried on so long, I know I struggle with my own research.

That’s the tragic thing, I know I’m getting to the point where I am bordering on being considered an elder by some, because I’ve been out 6-7 years, and been activism for 6 years. And everyone I started activism with - almost everyone has left. There’s very few of us still fully immersed in the scene. Some have fully withdrawn from activism and even from public life, others have gone into much lower visibility work where they can live largely not around activism and being trans. It just gets too heavy. It says a lot that there’s so little continuity in trans activism - and I am certainly not blaming any of the people who are withdrawing - I am blaming the society that’s making them do that. But it’s very sad and it speaks to how bad things are.

To me it still feels like yesterday when I was the baby trans who was talking to the media for the first time. Sometimes it’s just a little bit weird thinking about how far I am from that and how much people look up to me nowadays. I often feel like I don’t really know what I’m doing - not that I think anyone knows what they’re doing ever! But you expect more.... I don’t know... it can be a weird experience.

Other than the obvious - the harms of conversion practices - what made you want to write a book on this specific topic?

I’ll be honest, I don’t actually fully remember the moment which clicked it. I was planning to work on gatekeeping in trans healthcare for my masters thesis, and I ended up switching to conversion practices after writing an essay on it during one of my classes. What made it critical for me was the social context of me starting my masters soon after a bill passed in Ontario, right at the beginning of the Canadian political context of pushing for a ban. On top of that, I had a lot of friends and colleagues and romantic partners who has experienced conversion practices. I felt like they were not listened to because they were trans and there was little awareness of that issue, alongside an almost total absence of legal work on the issue. I knew I wasn’t a survivor and so couldn’t give full representation, but as one of the very few trans legal scholars it was a way of bringing light to these experiences of trans people and creating a set of tools which could be used to help them.

I’m always very problem focused in my research - I write papers not because a given topic interests me, but because I think what I write could have a positive impact. I’m trying to contribute to addressing a problem, I don’t care for academia for academia’s sake. This is a big part of why I publish so much - to me there’s this need. I’m writing a paper because it needs to be here yesterday. It’s already a paper I wish I’d had.

So that’s really what motivated me. I’ve done a lot of work with survivors over these years, and had the great honour of a lot of them confiding in me about their experiences. I got a lot of feedback from them about my work on my book. I just hope that my book can honour their experiences, and appease and help their healing process, but also prevent the same happening to other trans people in the future. If there is a single trans person who doesn’t experience conversion practices because of my work, it will have been more than worth it.

Florence's amazing book is now available in EPUB and PDF format.

You can also buy a hardback copy of Banning Transgender Conversion Practices: A Legal and Policy Analysis. These copies are primarily designed for libraries and institutions - if you can’t afford one, ask your local or institution library to get a copy.