“Everyone favours abolishing the expert statement, including the experts themselves.” A much-heard argument in the discussion about the new transgender law. But is this evident from the one study from 2017 that is constantly cited? Short answer: no. A critical analysis of 'Doing justice to gender identity. Evaluation of three years of transgender law in the Netherlands 2014-2017.’"
Peter Vasterman
Soon, the Netherlands will have a new law allowing anyone to change the gender on their birth certificate without any verification. One administrative act will say that you did not come into the world as a boy or girl but as a girl or boy.
The most significant change in the new transgender law is cancelling the so-called expert statement. In it, an expert, usually a psychologist from a gender clinic, states that someone has "the lasting conviction of belonging to the opposite sex from that stated on the birth certificate." Now that this declaration is to be dropped, the only thing that counts to change your passport is the “lived gender identity”: whether someone “feels” male or female inside.
Consensus on abolishing the expert statement?
In the debate on the Act, frequent reference is made to an evaluation study from 2017, which allegedly shows that this expert statement can be abolished, because the gender experts themselves, who issue these statements, would not see the point. That study, Recht doen aan genderidentiteit. Evaluatie drie jaar transgenderwet in Nederland 2014-2017 (Doing justice to gender identity. Evaluating three years of transgender law in the Netherlands 2014-2017), was commissioned by the Ministry of Justice and Security and carried out by Marjolein van den Brink, lecturer in law at the University of Utrecht.
This "conclusion" is also repeatedly put forward by advocates of the law as the main argument for dropping the expert opinion. Thus Brand Berghouwer, chairman Transgender Netwerk Nederland, and Astrid Oosenbrug, chair of COC Nederland, in De Telegraaf (10 februari 2022): “At present, trans persons still need an 'expert statement' to change their registration. But according to the experts themselves, the statement adds nothing and can be abolished. This has emerged from a scientific evaluation commissioned by the government.”
Minister Dekker, the proposer of the law, also argued that the declaration could be dropped according to the experts consulted, based on the evaluation study. Both in the Memorie van Toelichting and in the answers by the minister to parliamentary questions, Dekker states: “According to the researchers, there is a considerable consensus among transgender persons, parents of transgender children, experts and officials that the expert statement, at least for adults, can be dropped.”
Appearances can be deceptive
So the gender experts and all the groups consulted would argue in favour of abolishing the declaration. Although the report literally states this, appearances can be deceptive. The experts are “ambivalent” towards the declaration and are divided among themselves, but the civil servants are largely in favour of the declaration. Even among the various groups surveyed (parents of transgender children and visitors to the TNN website), a minority favours abolishing the declaration. Only the representatives of interest groups are unanimously in favour: Transgender Netwerk Nederland, COC Netherlands, patient organisation Transvisie and Nederlands Netwerk Intersekse/DSD (NNID).
Moreover, on closer examination, the study shows numerous scientific and methodological flaws: not only were only three (!) gender experts interviewed, but the four surveys intended to serve as evidence are also seriously flawed. Samples are unclear, questionnaires are brief or incomparable, results and tables with percentages are missing, and in one case, only nine participants took part in the survey. This makes it difficult to check whether the results are balanced in the report, especially since Van den Brink reproduces answers from interviews and surveys rather selectively.
Amazingly, new legislation is based on an evaluation, more like a quick scan than thorough scientific research.
The question posed in evaluating the research
The study aimed to evaluate the previous law from 2014. In that law, the expert statement remained the only condition for adjusting the gender in the birth certificate. The central question in the evaluation was to what extent: does that law "meet the objectives of the law, namely simplification of the procedure and respect for human rights, and are there opportunities - partly in light of experiences abroad - to bring the law even further in line with those objectives, without compromising enforceability or leading to an increase in (identity) fraud?” (p.5).
The question makes it clear that it is mainly about further simplifying the procedure and "respecting human rights". By the latter is meant especially the right to self-determination to decide about their gender identity. Interest groups of transgender people consider the expert statement as an infringement of the right to self-determination. Researcher Van den Brink considers its abolition only from the perspective of the practicability of the law and the risk of identity fraud. For this reason, civil servants were interviewed for the evaluation and experiences with identity fraud in four countries where it was already possible to change the gender registration solely on the basis of the personal statement of the person involved.
So the study did not examine the substantive value of the expert statement, which in practice is strongly linked to the diagnosis of gender dysphoria but is formally separate from it. In other words, even without a diagnosis of gender dysphoria, someone can receive an expert statement from a psychologist if they can establish that the desire to live as the opposite sex is "a lasting conviction". But the question is whether maintaining the statement can contribute to careful consideration in the treatment of young people with gender dysphoria. Can a professional refuse treatment if someone has already legally changed sex? This aspect is not addressed.
Therefore, the evaluation study is limited in scope, which also explains why other abuse risks were not examined. For example, sex offenders born as men can force a transfer to a women's prison if the threshold of the expert statement is lifted. While meanwhile, there are dozens of examples of this abroad with all the risks that entails.
The methodology
According to the researcher, it is "an exploration of the experiences with the practice of the law of various stakeholders." Therefore, in addition to desk research, the study mainly consists of a series of interviews and four surveys. Interviews were conducted with five government officials, five representatives of interest groups, three gender team experts and thirteen parents of gender children. In four countries, Argentina, Ireland, Malta and Norway, at least one government official and at least one representative of an interest group were interviewed.
In addition, four surveys were conducted: among civil servants (N=57), transgender children and young adults (N=177), visitors of the website of Transgender Netwerk Nederland (N=97) and visitors of the 'Buiten de Binary Dag' in Nijmegen (N=9). The survey of TNN had already been distributed before the evaluation research started.
In the report, the researcher provides little explanation of all these choices and no justification for the different surveys' design (with different questions each time). The annexes contain the questions from the surveys but not the questions asked during the interviews.
The gender experts
It is astonishing that for such an important study only three psychologists were interviewed from VUmc, LUMC and UMCG respectively. Surely there must have been dozens of psychologists and psychiatrists involved in issuing expert statements in 2017. Their experiences with the law should also have been taken into account. The researcher does not account for this anywhere, while it is evident that such a number (N=3) cannot be deemed to be representative.
The research also fails to mention which questions were asked or how they were answered. The researcher gives the following summary of the viewpoint of the three interviewed experts:
"We can add that the experts are also ambivalent about the usefulness of the expert statement for adults. Their expertise lies in gender dysphoria, and this diagnosis is precisely not an aspect on which the statement is based. The experts can determine whether people understand what they are told about the consequences of their choices. They can also determine whether there are reasons to doubt the person requesting the statement’s conviction. However, they cannot guarantee the durability of that conviction because gender dysphoria can also involve a change of identity." (p. 25.)
On page 55, only one of the three experts interviewed seems to believe "that it is impossible to determine whether a 'lasting conviction' is permanent." After all, there may be "fluidity on the gender spectrum." What the other two experts think of this, we do not know.
We know that they (two of the three?) also see advantages: "The advantages of the statement are that it helps people make an important decision; the condition builds in a certain caution, as it were."
Asked by email (23 March 2022) for an explanation, researcher Van den Brink replied, "About the ambivalence: if I remember correctly, they more or less (not all to the same degree) agreed that the statement had limited usefulness. After all, it is not a diagnosis.”
You can't make a responsible diagnosis in a conversation; that's actually what these experts are saying. But what does that mean? Have they argued for a more thorough process to make an accurate diagnosis before adjusting someone's birth certificate? This is not inconceivable, as gender teams are currently using the diagnosis of gender dysphoria as a condition for signing the expert statement, even though this is not necessary.
But we will never know because, as said, what exactly was asked in those interviews is not in the study, nor can we find out, because as the researcher writes:
"In response to your repeated request to provide research data that we collected at the time in connection with the evaluation of the Trans Act, I must inform you that we are not allowed to provide you with this information to the extent that this would be possible in view of data protection regulations." (Email 30 March 2022).
As if disclosing the questions would be an invasion of privacy, and the answers could not be anonymised to ensure that data protection regulations are not infringed.
So, for such an important study, decisive for important new legislation, only three experts were interviewed, who disagreed among themselves and rather doubted the usefulness of such a statement because it is not a diagnosis. That these experts believe that the certificate should therefore be abolished, as claimed by COC, TNN and other supporters of this law, is not mentioned anywhere in this study. They more or less agreed that the declaration was of limited use.
That is something quite different from what these spokespeople are now claiming. And, worse still, what can be read in the Explanatory Memorandum to this law. Quite apart from the question, why weren't many more psychologists, psychiatrists and medics interviewed who deal with trans care?
Officials positive about expert statement
Remarkably, many civil servants were interviewed, in person (five people) and via an online survey of 57 civil servants. The research report provides no information about the quality of this sample, which was obviously based on self-selection. The size of the population is also unknown: what percentage of the total number of civil servants completed the survey? Researcher Marjolein van den Brink answers my questions about this sample:
"I cannot find the word sample in our evaluation, and do not quite understand what you are referring to." (E-mail 23 March 2022). Van den Brink has no idea about surveys with samples. Then the results of this survey with fifteen questions, including four questions about the abolition of the expert statement. The curious thing is that the report does not provide any tables with percentages of the answers to these questions (often with answer categories: "yes/no/not sure"). However, the author does occasionally mention a few numbers somewhat arbitrarily, such as this one:
"Civil registry officials were also predominantly positive about their experiences with the law (the 2014/PV law). Of the 47 civil servants who answered this question, only two mentioned a lack of clarity." (p. 53)
"Of the different groups consulted, civil servants most often rate the expert statement as valuable. Almost 75% of the civil servants believe that the statement creates a barrier against fraudulent and ill-considered changes." (p. 54)
Unfortunately, we do not find out what the 57 civil servants answered to all the other questions, such as: "Do you foresee any problems - e.g. legal or administrative, but other than fraud or abuse - if the expert statement were to be abolished as a condition for gender reassignment?" (p. 109) But Marjolein van den Brink's conclusion is clear: "Civil registrars are satisfied with the functioning of the law and most of them believe that the expert statement is useful." (p. 40)
So the gender experts are ambivalent and the implementers of the current law, the civil servants, are quite satisfied with it. Yet they are included as supporters in the "considerable consensus" on abolishing the expert statement.
The other surveys and interviews
There is much more wrong with this evaluation study. Besides the previously mentioned survey among civil servants, three more surveys were conducted: an online survey among transgender children and young people up to 26 years of age via TNN with 177 respondents, a written survey distributed on the 'Outside the Binary Day' on 14 October 2017 in Nijmegen with 9 respondents and a short online survey, already conducted earlier by TNN on the evaluation of the transgender law with 97 respondents.
Samples
What is striking about these four surveys is that they are based on self-selection, with no definition or size of the population. Three samples were created through an interest group, namely Transgender Netwerk Nederland. One survey had even been carried out before the evaluation study began.
From a scientific point of view, this impairs the generalisability of the results. It gives an interested organisation a significant influence on the results. Moreover, a survey with 9 respondents cannot be taken seriously scientifically.
Questionnaires
It is striking that the questionnaires for the four surveys show few similarities. While the civil servants' questionnaire contains four questions about the expert statement, this is not explicit in the youth survey nor in the TNN survey. The latter, by the way, consists of only two open questions ("1. Your experience with the transgender law, 2.) Your points of improvement for the transgender law.")
Among the young people, one question might prompt the expert statement ("12. What did you think of the procedure to change your official gender?"). Van den Brink, therefore, indicates that this survey was not specifically about the expert statement: "It should be noted that this survey was mainly aimed at collecting experiences with and ideas about the age limit and not so much about the statement." (p.56)
Of course, specific questionnaires are needed for specific target groups, but these questionnaires are so different that comparing the results is difficult especially if certain questions are not asked explicitly.
Missing tables and percentages
In addition, it is particularly striking that the results of the surveys are not systematically presented in tables with numbers and percentages. The researcher quotes random numbers here and there from the surveys but does not tell us what the answers were to other questions.
An example: "Many young people also reported positive experiences with the law (28 of the 70 who had changed their legal gender; 14 said they were explicitly satisfied with the municipality, and three mentioned the disappearance of the medical adaptation as positive)." (p. 53) The survey of young people consists of 27 questions, most of them with closed answer categories, which can be easily reproduced in tables.
Another example (p. 56): "All organisations involved – TNN, Transvision, COC and NNID – and several transgender respondents reject the expert statement (TNN survey 16, parents 2, Nijmegen survey 3 while 5 say they 'would like it to be different')."
It is hardly noticeable because of this careless way of stating it (“various respondents”). Still, in the TNN survey, 16 out of 97 respondents reject the statement (16.4%), in the parents of transgender children 2 out of 13 (15%) and in the Nijmegen survey 3 out of 9 (33%). That is not exactly a majority, but still, the researcher concludes that there is a "broad consensus". We learn nothing more about the majority of respondents who do not reject the statement. The survey among transgender children and young adults (N=177) is missing here because it did not explicitly ask about the expert statement.
By displaying some results very selectively in this way, it remains unclear what the respondents have answered to all other questions. It is difficult to check the results because the complete tables are missing. That the advocates of the new law present this as “scientific research” is rather misleading. It is more of a first field exploration without much depth.
Research abroad
Discussions were held with representatives of interest groups and government organisations in four countries, Argentina, Ireland, Malta and Norway, where self-declaration-based gender reassignment has been introduced before. The focus was on fraud and ill-considered or abusive changes of the legal gender. No problems were found. It should be noted that in 2017, three of the four countries had only just introduced the change in law (in 2015 and 2016), and only Argentina (2012) had experience of a new law for several years.
But again, this was mainly about enforceability and identity fraud and not about the social consequences of the law that are currently being discussed in those countries. For example, in Norway, where there have been court cases about trans women in women's changing rooms. Also in Ireland, there has been a debate about transferring trans women to women's prisons in recent years.
This part of the evaluation study is also often cited in discussions about the new transgender law to 'prove' that it does not lead to safety risks for women in, for example, changing rooms or women's prisons. For example, three spokespersons of interest groups write in an opinion piece in the Volkskrant:
“The problems sketched by Sommer are not an issue in countries like Norway and Malta, where the expert statement has already been abolished, according to a scientific study commissioned by the government.” But these risks were not investigated by Van den Brink at all.
In conclusion
It is clear that Minister Dekker has allowed himself to be misled by this flawed study. This study does not demonstrate that there would be a “broad consensus” on abolishing the expert statement. The civil servants are positive about this statement, the experts are ambivalent about it, the parents of young transgenders are not explicitly against it, and even the majority of visitors to the TNN website is not. Only the interest groups are in favour.
It is astonishing that in the Netherlands, existing laws are evaluated in this unsound way and that new legislation is recommended on that basis. This legislation carries serious risks that are barely touched upon in the study. It is extremely worrying that our parliament bases its decision making on misleading, one-sided information from stakeholders without sound, objective scientific research that addresses all relevant aspects.
Published on: www.vasterman.nl
7 May 2022.
