The charity Mermaids released a press statement on Saturday ahead of an article published in the Mail on Sunday which revealed details of a Mermaids school training session. The report concerned a governor of the Church of England school, the Reverend John Parker, who was moved to resign after his reasonable questions about the law and biology were dismissed out of hand by the Mermaids trainer. He later expressed his fear that children were being ‘sacrificed on the altar of trans ideology.’

The Mermaids press statement can be viewed here. It includes this statement:

“all of the scientific and legal information we offer is publicly available and well-tested”

We decided to test Mermaids’ scientific and legal claims against this publicly available information. Their statement is split into two subjects “Legals” and “Science” so we have done the same. We are told that

” Mermaids is constantly reviewing scientific literature and research”

So this should be an interesting and challenging exercise. We will address their claims point-by-point.

Legals

On the law, we stand by our understanding of all the relevant law. Transphobic speech is capable of being a criminal offence, as can any hate speech. It is not legal to “out” somebody, nor should it be and this is protected in a number of ways by civil courts. In certain circumstances, it can even be a criminal offence.

It is not clear what these statements are in response to, although the tone is rather threatening.

There is no actual law against hate speech itself in the UK, legal protection is provided under various statutes such as the Public Order Act. The intention of hate speech is to harass and distress the intended target, or incite violence. A hate crime is when someone commits a crime against someone because of their protected characteristic. There has to be a crime committed; it could then lead to a longer sentence if the crime can be shown to have been motivated by hate for a specific group.

In a democracy there is also the right to freedom of expression. Article 10 of the Human Rights Act safeguards the right to free expression, which includes the freedom to hold opinions and to receive and impart information and ideas without State interference. So holding and stating opinions in opposition to Mermaids, for example, is not hate speech or ‘transphobia,’ but a difference of views. ‘Misgendering’ in itself is not hate speech but freedom of thought and expression. Likewise, not believing that a boy is a girl because he ‘feels like’ a girl is a valid belief protected by Article 10, as is the belief that he actually is a girl. Beliefs are protected equally.

‘Outing’ someone is an emotive term associated with maliciously revealing that somebody is gay in order to hurt them or damage their reputation. It is not synonymous with the kinds of words associated with safeguarding in schools – words such as ‘disclosure’ or ‘sharing information.’ In fact ‘outing’ may be a really unhelpful concept in schools in certain circumstances, as it may make teachers afraid to exercise their duty of care in the normal way.

This is a sensitive and complicated issue, which is not helped by aggressive legal threats. In order to protect everyone’s rights, a school has a duty to consider, for example, how parents may feel if their daughter was expected to get changed in the presence of a male classmate and they were not informed. A school must hold the trust of parents and balance the rights of everyone, which can be achieved only by thoughtful consideration of all potential scenarios. A trainer should be facilitating that level of discussion, not shutting it down.

The Equality Act 2010 means that anyone, including children and young people, is protected if they identify as trans, and this protection is extended to them everywhere, including within their homes, in education and within the wider community. The Equality Act also makes it clear that schools have a duty to ensure that trans children aren’t treated less favourably than other students.

This is correct, children are included under the protected characteristic ‘gender reassignment’ and must not be treated less favourably than other children who do not share that characteristic.

The Equality Act 2010 allows for the provision of separate-sex and single-sex services where this is “a proportionate means of achieving a legitimate aim” (a form of words intended to require the application of an objective standard of justification). The Act also effectively permits service providers not to allow a trans person to access separate-sex or single-sex services—on a case-by-case basis, where exclusion is “a proportionate means of achieving a legitimate aim”. The term “a proportionate means of achieving a legitimate aim” is not a blanket rule and cannot be applied as a matter of policy. It is intended solely in respect to the impact of one individual by another individual in that specific situation at any given moment in time.

The Equality Act 2010 does not say this.

Provision of single sex facilities is lawful under the Equality Act, which provides exactly the same set of ‘legitimate and proportionate’ reasons for excluding all biological males from women-only facilities whether they have the protected characteristic of ‘gender reassignment’ or not.

The Equality Act is very clear throughout that the criterion for inclusion in single-sex spaces is the protected characteristic ‘sex,’ not ‘gender’ or ‘gender identity.’ People of the opposite sex are, by default, the group who are excluded from single-sex provisions, no matter what other protected characteristic they may have. The Equality and Human Rights Commission published a statement of clarification on this issue in July 2018:

Protected characteristics include sex (being a man or a woman) and gender reassignment (an individual who is ‘proposing to undergo, is undergoing or has undergone a process or part of a process to reassign their sex). In UK law, ‘sex’ is understood as binary, with a person’s legal sex being determined by what is recorded on their birth certificate. A trans person can change their legal sex by obtaining a GRC. A trans person who does not have a GRC retains the sex recorded on their birth certificate for legal purposes. A trans person is protected from sex discrimination on the basis of their legal sex. This means that a trans woman who does not hold a GRC and is therefore legally male would be treated as male for the purposes of the sex discrimination provisions, and a trans woman with a GRC would be treated as female.

No child under the age of eighteen has a Gender Recognition Certificate; a child who is legally male may therefore be lawfully excluded from facilities which are female-only. Schedule 3, Part 7 of the Act says that single-sex provision is lawful where a person of one sex might reasonably object to the presence of a person of the opposite sex (e.g. changing rooms or any service involving intimate personal health or hygiene).

Without a GRC a trans person is protected from discrimination or less favourable treatment on the basis of their legal sex (and even with a GRC may be excluded from some single-sex services). This means that a male child with the protected characteristic ‘gender reassignment’ may not be treated unfavourably compared with another male child, and not in comparison with a female child (which is where perhaps the misunderstanding lies.)

Mermaids have possibly taken the following passage out of context. It clearly applies only to trans people who have a Gender Recognition Certificate, as those who don’t are lawfully excluded by virtue of their legal sex anyway.

Certain exceptions in the Act set out circumstances in which it is permissible to treat someone differently because of their sex or gender reassignment, for reasons of public policy or to protect the rights of others. The use of such exceptions generally needs to be justified as being a proportionate way to achieve a legitimate objective. This will often require a case-by-case approach to determine what is legitimate and proportionate in any given circumstance.

It is true that the EHRC has published some misleading guidance in the past, extending the provisions of the Equality Act way further than what is actually written down in the Act. However, they are now amending and clarifying their guidance to be in line with the Equality Act and schools must be informed of current advice.

Government statutory regulations for single-sex provision in schools is clear:

Separate toilet and washing facilities must be provided for boys and girls aged 8 years and over pursuant to Regulation 4 of the School Premises (England) Regulations 2012, which falls within the exemption provided for in Schedule 22 of the Equality Act 2010. With regards to boarding accommodation, Schedule 23 of the Equality Act 2010 allows for separation by sex providing the same standard of accommodation is provided for both boys and girls. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/719398/Gender-separation-guidance.pdf

And the EHRC technical guidance for schools, Chapter 3 ‘Access to Services’ specifically states that alternative facilities must be provided for a child who identifies as transgender, not the facilities of the opposite sex:

3.20 The way in which school facilities are provided can lead to discrimination. A school fails to provide appropriate changing facilities for a transsexual pupil and insists that the pupil uses the boys’ changing room even though she is now living as a girl. This could be indirect gender reassignment discrimination unless it can be objectively justified. A suitable alternative might be to allow the pupil to use private changing facilities, such as the staff changing room or another suitable space. https://www.equalityhumanrights.com/en/publication-download/technical-guidance-schools-england

Science

The section headed ‘Science’ attempts to provide evidence for the claims made by the Mermaid trainer. The first topic addressed is the evidence base for the use of puberty blockers. Let’s take the first claim:

The citation here is to a 2013 press release from the Endocrine Society ‘Medical intervention in transgender adolescents appears to be safe and effective’ (our emphasis). However a 2015 paper (Klink, 2015) cited by Professor Heneghan showed that bone density declined and did not catch up in male to female patients:

‘Klink 2015 found that lumbar spine bone mineral density scores fell during puberty suppression with GnRHa for transgender adolescent females but did not increase following oestrogen treatment.’ https://blogs.bmj.com/bmjebmspotlight/2019/02/25/gender-affirming-hormone-in-children-and-adolescents-evidence-review/

On brain function, Mermaids cite Staphorsius 2015 which Heneghan points out is one of the studies funded by the pharmaceutical industry. They do not cite more recent evidence which shows continuing effects on brain function after puberty blockade is stopped. There is evidence from animal models that pubertal hormones promote cognitive maturity. Early results from ongoing studies on sheep (Hough et al 2017) indicate that long-term spatial memory performance remains impaired after blockers are discontinued:

This result suggests that the time at which puberty normally occurs may represent a critical period of hippocampal plasticity. Perturbing normal hippocampal formation in this peripubertal period may also have long lasting effects on other brain areas and aspects of cognitive function. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5333793/?fbclid=IwAR2h0I3WI4GzJXefjuAMVEfDvy1WF9TJl4NuzM5U1NAfA3t2Sk8JrOzkOIo

Mermaids continue:

‘The few negative effects of puberty blockers do not change children’s minds.’

The reference here is to a 2016 study of 13 adolescents. Yes, 13, but as Heneghan (2019) points out, tiny numbers are typical of the existing studies into puberty suppression:

‘The numbers in the ten studies are small and most are retrospective case reports or small case series.’

The study cited (Vrouenraets, Lieke Josephina Jeanne Johanna et al, 2016) notes ‘the lack of data on the long-term effects of puberty suppression’ but reports that ‘Most adolescents stated that the lack of long-term data did not and would not stop them from wanting puberty suppression’. It’s hardly a surprise to discover that adolescents are relatively unconcerned about the long term future. What Mermaids do not say here is even more significant. There is now strong evidence that puberty blockers increase persistence. We know this from a 2016 WPATH conference presentation by GIDS staff:

Persistence was strongly correlated with the commencement of physical interventions such as the hypothalamic blocker (t=.395, p=.007) and no patient within the sample desisted after having started on the hypothalamic blocker. 90.3% of young people who did not commence the blocker desisted. http://wpath2016.conferencespot.org/62620-wpathv2-1.3138789/t001-1.3140111/f009a-1.3140266/0706-000523-1.3140268

The next claim is that:

The link here is to De Vries 2012, a paper published before the exponential rise in gender referrals (which started in 2011). This paper does say that puberty suppression ‘has been used for over 20 years now in the treatment of precocious puberty and there is evidence that gonadal function is reactivated soon after cessation of treatment’.

Mermaids hope that Shumer Nokoff Spack (2016) says that ‘this has happened successfully in the past before’. Alas, all the paper says is that ‘GnRH agonist medications have been used extensively in the pediatric age group for treatment of precocious puberty for more than 25 years. They are considered safe and reversible medications’. Note the word ‘considered’. Note also that both these quotes from Mermaids refer to blockers used for precocious puberty, not for gender dysphoria at the time of normal puberty.

The citation for the claim that ‘No clinically significant effects on physiologic parameters were noted’ is to Olson-Kennedy et al, 2018, a paper about ‘Physiologic Response to Gender-Affirming Hormones Among Transgender Youth’. There is nothing here about puberty blockers at all. We might expect that with half a million pounds at their disposal, Mermaids could get someone to check their citations.

After that it’s a relief to report that the claim that ‘Both the Endocrine Society and WPATH recommend puberty suppression for transgender children’ is correct. These are, after all, activist organisations. They also assume the ability to identify ‘transgender children’. We’ll return to the value of this endorsement at the end of this section where we look at the conclusions reached by Professor Heneghan.

Because there is little evidence for the safety of puberty blockers used for gender dysphoria, Mermaids then concentrate on the use of these drugs for precocious puberty which is well established. But even here the evidence cited often does not support the claims that Mermaids makes. To evidence the claim that ‘GnRH is safe in children with precocious puberty’ Mermaids cites a 2008 paper (Carel and Léger, 2008) which offers a ‘case vignette’ on precocious puberty occurring in a 6 year old girl. Carel and Legér describe the side effects:

Treatment may be associated with headaches and menopausal symptoms (e.g., hot flushes). Local complications, including sterile abscesses at injection sites, occur in 3 to 13% of patients. Fat mass tends to increase with treatment, whereas lean mass and bone density tend to decrease.

A paper from 2000 is used to evidence the claim that ‘There is no negative impact on bone mineral density or reproductive function and the treatment did not cause or aggravate obesity.’

There is certainly evidence emerging for the harmful effects of one such puberty blocker, Lupron, on the long-term health of women who took the drug for precocious puberty:

“We are currently conducting a specific review of nervous system and psychiatric events in association with the use of GnRH agonists, [a class of drugs] including Lupron, in pediatric patients,” the FDA said in a statement in response to questions from Kaiser Health News and Reveal from the Center for Investigative Reporting. The FDA is also reviewing deadly seizures stemming from the pediatric use of Lupron and other drugs in its class. While there are other drugs similar to Lupron, it is a market leader and thousands of women have joined Facebook groups or internet forums in recent years claiming that Lupron ruined their lives or left them crippled. But the FDA has yet to issue additional warnings about pediatric use, and unapproved uses of the drugs persist.

The issue, however, is whether this intervention improves the lives of children with the different condition of gender dysphoria. To back up their claim that ‘There is significant evidence that puberty blockers can improve children’s quality of life and in some cases, save children’s lives.’, we are directed to Giordano 2008. But this paper, which offers a rather florid and emotional discussion of the ethics of pubertal suppression conjuring the potential harms such as prostitution, murder, HIV and suicide, offers no evidence. This is a theoretical evaluation of ethical considerations which maps current distress against potential future suffering.

Heavyweight citation has not supported the case that Mermaids makes in its training. Through a collection of ill-chosen and sometimes irrelevant papers, Mermaids has attempted to support the case for the safety and efficacy of puberty blockers. We can set this special pleading against the conclusions of two recent papers in the BMJ. Carl Heneghan, reviewing the published evidence base for puberty blockers concludes that:

Problems within these studies […], however, make it difficult to assess whether early pubertal changes regress under GnRHa treatment and whether prolonged puberty suppression is safe. For example, there is a lack of controls, and in one study that included controls, these were inadequate as relatives and friends of the participants were asked to participate, serving as age-matched controls. A lack of blinding was also problematic. https://blogs.bmj.com/bmjebmspotlight/2019/02/25/gender-affirming-hormone-in-children-and-adolescents-evidence-review/

Richards, Maxwell, McCune (2018) describes the use of puberty blockers as ‘a momentous step in the dark’;

To halt the natural process of puberty is an intervention of momentous proportions with lifelong medical, psychological and emotional implications. We contend that this practice should be curtailed until we are able to apply the same scientific rigour that is demanded of other medical interventions.

The blunt conclusion of Carl Heneghan’s research analysis of all “gender affirming” hormonal treatment studies was this:

The current evidence base does not support informed decision making and safe practice in children.

The following sections of the Mermaids press release are not referenced. The section on ‘Fertility Preservation’ is simply a wish list:

‘If young people decide to continue onto further medical interventions, then options around fertility preservation should be made available to them.’

This isn’t surprising, because puberty suppression causes a loss of natural fertility if followed by cross sex hormones. It would have been more truthful to cite Butler et al, 2018:

The initiation of GnRHa therapy halts gonadotropin and gonadal sex hormone secretion, but also suspends gonocyte maturation. Oocytes remain dormant and spermatogenesis is halted. Young people and their families are routinely counselled about fertility loss resulting from the physical treatment. https://adc.bmj.com/content/103/7/631

And when we get on to the contentious topic of gender identity formation we are in the land of baseless assertion: ‘Regarding a child’s gender identity and when this is established, research suggests’ we are told, ‘that children are aware of these gender cues early in development and begin perceiving sex and gender categories at a young age.’ No research is cited, however. Instead we get an account of the ability of young children to recognise gender stereotypes. We are told that:

Young, socially transitioned transgender children between 3 and 5 years old are just as likely as gender‐typical children to: a) prefer toys, and clothing culturally associated with their expressed gender,

(b) dress in a stereotypically gendered outfit,

(c) say they are more similar to children of their gender than to children of the opposite gender

This really does say it all. It should not be surprising that socially transitioning these children encourages conformity to gender stereotypes. When Mermaids used De Vries 2012 in their section on puberty blockers they did not mention that this paper warns against early social transition:

‘we recommend that young children not yet make a complete social transition (different clothing, a different given name, referring to a boy as “her” instead of “him”) before the very early stages of puberty. In making this recommendation, we aim to prevent youths with nonpersisting gender dysphoria from having to make a complex change back to the role of their natal gender’. https://www.ncbi.nlm.nih.gov/pubmed/22455322

De Vries 2012 (unlike the Mermaids trainer recorded by Rev Parker) warns of the danger that a young child who is unduly affirmed may not really understand the concept of natal sex:

‘Another reason we recommend against early transitions is that some children who have done so (sometimes as preschoolers) barely realize that they are of the other natal sex. They develop a sense of reality so different from their physical reality that acceptance of the multiple and protracted treatments they will later need is made unnecessarily difficult. Parents, too, who go along with this, often do not realize that they contribute to their child’s lack of awareness of these consequences.’

A striking absence in the Mermaids press statement is any published evidence for the practice of early social transition and affirmation before puberty.

To conclude the ‘science bit’ Mermaids shoehorns into their evidence something completely different: disorders of sexual development (DSD), taking us into sex-is-a-spectrum land:

There are a number of chromosomal variations. We understand that the total number of individuals with sex chromosomes that are neither entirely XX or XY are currently identified as follows: o XXY has a prevalence of 1 to 2 per 1,000 births

o XXYY has a prevalence of 1 in 18,000-40,000 births

o XXX has a prevalence of 1 in 1,000 births

o XO has a prevalence of 1 in 2,000-5,000 births

We will just leave this one to the expert, intersex advocate and campaigner Claire Graham, who in a Twitter thread simply demonstrated that chromosonal variation does not place you somewhere on a spectrum of indeterminate biological sex:

XXY = male

XXYY = male

XXX = female

X0 = female

Although this exercise felt a bit like marking the paper of a very poor student – with mounting horror – the result (a resounding Fail) is not funny. Mermaids is the organisation awarded half a million pounds by the Big Lottery which they will use to set up ‘support groups’ for young children and their parents across the UK. The Department for Education gave them £35,000 to go into our children’s schools to deliver training to teaching staff, such as the session at the C of E school at the head of this piece.

The care of gender dysphoric children must be based on robust medical evidence which can withstand scientific scrutiny. The press statement from Mermaids proves nothing they set out to prove. It does succeed, however, in exposing how ideological belief can overtake reality. This cannot ever be seen as an acceptable basis for the treatment and care of children and young people.

Report and analysis by Susan Matthews and Stephanie Davies-Arai