The lovely Maria Fletcher asked me to write for the University of Glasgow School of Law celebration of 100 years of women in law. Here’s my contribution.
What does it mean to carry out acts of love in 2020 Higher Education in the post-Brexit UK? This blogpost – which you can tell from its opening sentence already has too many ideas in it to be an effective use of the medium – is a response to an invitation from the Lacunae team in Australia. Catriona, Jenni, Jennie and Natasha (only one of whom I know in person) ask for reflections on a 2020 piece in Higher Education Research and Development. The piece is entitled ‘Love acts and revolutionary praxis: challenging the neoliberal university through a teaching scholars development program’.
Here is my response to their Valentine’s Day invitation.
Love isn’t a word commonly associated with Higher Education. In my own life, I think of love as a private, family matter (encompassing biological family, close friends who are socially and emotionally equivalent to family, and pets*); and as a matter of a faith-based understanding which I struggle to express in rational thought, much less words, but remains a real and very different way of knowing for me. That latter, in particular, experiences (and strives, but always fails, to express) love as boundless and unrestrained. By contrast, work contexts and relationships have nothing to do with love: they are about professional boundaries and expectations.
But the 13 authors of this paper define love as ‘enactments of caring passionately’, and that’s an idea that does resonate with my blended approach to work and life. The authors further suggest that love acts are a form of revolutionary praxis. And they embody the notion of revolution in the paper itself. Rather than a standard linear textual account, they offer a rhizomatic and multi-textual approach, including images (provided by Banksy) as well as text, including a whole section using metaphors. I was excited about this, because metaphor (and narrative) is central to our Health Governance after Brexit project. What there isn’t, though, is a section about the method of using metaphors in this paper (or in any other research project that reports on human emotions through the language used to express responses to an event or phenomenon). That is disappointing. (At this point, I hope you will not judge me harshly for wondering how on earth this paper got through peer review.)
I confess I’m not naturally drawn to revolution as a change-mode. If things need to change (and it would be hard to find anyone in contemporary UK Higher Education who doesn’t think that things need to change, though there’s plenty of disagreement about how), I’m more inclined to suggest evidence-led incremental, evolutionary change, not the violent and painful disruptions associated with revolutions. But I am drawn to the idea, central to the paper, that ‘a love for and of teaching’ can provide a mode of being that is resistant to much that debases and sucks the joy out of contemporary Higher Education. I would suggest, though, that a better formulation is a love for and of learning – for it is the collective striving to extend the boundaries of human knowledge that endows universities with the beguiling promise that draws me back, again and again, to give of myself, despite the inevitable pains of rejection and the frustrations of misunderstandings. As I’ve written elsewhere, learning with, from, and alongside students is one of the greatest pleasures of my job.
I thought the paper, for all its opening promise, was actually distinctly light on examples of ‘enactments of caring passionately’. There are allusions to the courage that it takes to do this, and to the temporal and emotional costs; to care as an interpersonal encounter, involving (physical) presence; and to relationships between love acts and leadership/change agency.** But much of the content of the paper reports on the experiences of a group of scholars in whom their university has invested the opportunity to participate in a development programme for teaching scholars.
So here, in no particular order, and without naming names, are a few of many ‘enactments of caring passionately’ that I have observed or experienced recently.
- An email: ‘it was a sad moment to read your editorial correction of the number of EU Member States’;
- Feedback on a student essay: ‘If you are to achieve your potential, next time, you should …’;
- The acts of the secret baker who regularly leaves free home-bakes in the Multi-faith Chaplaincy in Sheffield University;
- All the steps that led to a student’s summer research, co-produced with me and a small charity, being chosen to be showcased in an event in Parliament;
- A private message by text: ‘I noticed X … hope you are not spending all weekend marking?’;
- A phone call: ‘I had five minutes, so I thought I would check in and see how you are doing’;
- A hug from a retired colleague, on meeting up for the first time in a while;
- Many invitations to continue to be present – to teach, to research – in universities in EU Member States, including my current trip to Amsterdam’s Centre for EU Law and Governance.
The bottom line take-home message of the paper is that the participants in the programme on which the paper reports loved ‘access to a community of scholars who really care about teaching’ (p 92). Meh. That’s exactly what I would expect: nothing new or challenging there. I think that the promise of universities is not that some scholars ‘really care about teaching’, and (implicitly, or sometimes explicitly) others ‘really care about research’. The promise of universities is that those two things are not in separate boxes. They are blended. And that makes me think that every time I insist on that blending, every time I fight the institutional structures that want to put them in separate silos, every time I say ‘I am a scholar who cares passionately about both and I do not see them as entirely distinct‘ (and I know many scholars who agree); every time – that is a love enactment. To insist on that conviction, despite the contemporary attempts to divide and measure separately those things, is to love the very thing that universities have always embodied.
*Ok, specifically, the current and previous desk cats, see the pictures at the top.
**Not a phrase that I like much, but their phrase, p 85.
Literature, Myths and Stories
Finally, let’s bring in a rather different way to understand the ‘foreign’: through fiction. Here I want to reflect on two very different books: Kalypso Nicolaidis’ Exodus, Reckoning, Sacrifice: Three Meanings of Brexit (London: Unbound 2019) and Timothy Pachirat’s Among Wolves: Ethnography and the Immersive Study of Power (Abingdon: Routledge 2018). In the end, neither is directly fiction that helps me to understand the ‘others’ that I am seeking to understand, but they are helping me make sense of our project in different ways.
Nicolaidis’ book is an enormously impressive undertaking, to which I really cannot do justice here. It’s a reading of the different possible meanings of Brexit through (European) mythology: Greek and Roman myths, the Old Testament canon, and so on, interspersed with evocative works of art, symbolising the different accounts of meaning and ways of making sense of (post-EU referendum/post Brexit) realities. I have heard (and told) so many stories about Brexit and what it means and will mean, and to whom, that it becomes dizzying. This book puts them into a highly nuanced yet comprehensible order and structure: Brexit as British exceptionalism; Brexit as an indictment of the EU and an exposition of its ‘dark side’; Brexit as the salvation of the EU (including the possibility that the sacrificial lamb of the UK, at the eleventh hour, Isaac-like, is spared).
I loved that Nicolaidis calls for a ‘do no harm Brexit’ (p 14): ‘a kind of Hippocratic oath to be applied to the societies involved. I hope that such an imperative will come to pervade the future relationship between sides which are bound to remain intimate rivals’ (p 14). One can read that hope as about between the ‘sides’ of the UK (perhaps without Northern Ireland, perhaps without Scotland?) and the EU-27; but I am also reading it as about the ‘sides’withinthe UK, which we are studying: the Quitlings and Remoaners, the London ‘intelligensia’ and the ‘ordinary, ignorant people’, to use some of the pejorative language which would be utterly inconsistent with ‘do no harm’, which I record here because I have observed it first hand, and which ethical and respectful ethnographic practice otherwise totally precludes.
For the project, though, what is most illuminating is Nicolaidis’ claim for the epistemology of storytelling and metaphorical expression. ‘The purpose of telling stories is not to present an objective picture of the world as it is, but to express our understanding of ourselves in the world in which we live.’ (p 183). ‘As our shared imagination, metaphorical shortcuts or paradigmatic clutches, myths can create meaning by distorting and deepening reality at one at the same time. They help us to make sense sensitively and provide structure to a fragmented narrative’ (p 184-185). Thinking through myths, argues Nicolaidis, allows us a critical distance from the stories that we tell ourselves ‘by placing question marks around our collective self-righteousness’ (p 182). I permit myself a wry smile when reading those words, reminded of McGarvey’s account of the anguished Guardian readers’ responses to the ‘crisis’ of the referendum vote. Nicolaidis also suggests that mythical stories can play a role in democratic process:
‘If these mythical stories can serve as compass, they cannot chart a destination, but only take us to an open sea of meanings where we may accept the incompleteness of our narratives and open them up to each other. If we appear to be inconsistent in the process, we can console ourselves with the banal thought that consistency is the virtue of small minds. Better still, let’s recognise inconsistency in all its glory, as the primary material of the pluralist democratic encounter. True democracy is about all of us accessing the overlapping and contradictory meanings of the stories we tell each other. In this, no answer should have to power to silence the questionners’ (p 187).
With Pachirat’s Among Wolves, we return to the device of the trial. But this is a different take from Lubet’s or Duneier’s – though both appear in Pachirat’s book. It’s a story: in fact, a story recounted as a play. The more I think about it, the more I think that it’s a story about the meanings of ethnography, or of social science, or perhaps even of research and knowledge creation and circulation more generally.
The introduction tells us that Pachirat was invited to publish a book about ethnography. With enviable chutzpah, he agreed, but only on the condition that he would do so in the form of play in which representatives of key positions in ethnography interact with each other. The book, like Harrison’s and Jerolmack & Kahn’s, does indeed provide a primer, on both practical, how-to, and on ethnography’s relationships with deeper conceptual questions. It’s a book one could easily use in teaching contexts. But it does so in a way that makes me want to say out loud I would so love to write a book like this, that is at once of its discipline and shakes the accepted practices of its discipline.
The opening Act, set in a barn in the Finger Lakes of New York State (which I’m hoping to visit next week, as it happens), introduces the mysterious character of a ‘one-eyed wolfdog’ (p 1), and the author as the sort of narrative voice of the play. We learn that Pachirat, along with 9 other well-known ethnographers, has been mysteriously summoned to a secret ethnographic trial. The ethnographers include Alice Goffman, who is to be tried for her On The Run (2014). The ethnographers’ works are introduced through a series of dreams, which the wolfdog recounts. I’ll come back to the device of the wolfdog in the story in a minute.
In Act 2, we learn more of a vial and documents that the wolfdog has brought. It is a ‘fieldwork invisibility potion’, developed to ‘advance United States military, political, economic and social interests’ by allowing researchers to study non-American countries and cultures, without marring the research by introducing the presence of the researcher (p 10). Act 3, in the form of a radio show, explores the ‘fieldwork invisibility potion’, its relations to positivism and interpretivism, and introduces some of the themes that recur in the book: co-generation rather than mere collection of data; the relations of researcher positionality to research design or framing, and to ethical requirements of contemporary research; and the superiority of ethnography because it surfaces these matters where other methods do not. This latter theme recurs throughout: eg ‘TIMOTHY … every method draws extensively on an unspoken … wellspring of tacit knowledge … ethnography is unique in the degree to which it underscores and calls attention to [this] dimension of tacit knowledge’ (p 94). Indeed, one of the meanings of the story Pachirat’s play tells us is that ethnography is a practice under threat: the trial is a powerful device to get across that meaning. It is not Alice Goffman’s On the Run (2014) that is on trial: it is ‘ALICE: …. the entire enterprise of ethnography’ (p 139). I was struck by the thought that every academic method/ology or discipline that I know of regards itself as under threat: even the (to me) most powerful natural sciences. I guess the whole Higher Education sector feels under threat, perhaps justifiably.
A long Act 4 follows. This consists of a conversation between the 10 leading ethnographers assembled in the story, interspersed with interactions with the wolfdog, who is ‘nearly lifeless at their feet’ (p 23). First up, we learn that each has consented to come having been summoned by The Prosecutor ‘KATHERINE BOO: … wearing “[a] flowing black cloak woven with the strands of truth and carrying an oak staff fashioned from justice”.’ (p 23) At the end of Act 4, The Prosecutor duly arrives on a Harley Davidson, presumably meant to signify a kind of masculine wealth, power and insouciance in the face of danger, in contra-distinction to the femininity of the relatively powerless wolfdog. In some sense, the 10 ethnographers are there in the service of the future of their practice, because The Prosecutor has been ruining ‘ALICE: … many promising intellectual futures’ (p 23) and putting off others from doing ethnographic work.
On one level, Act 4 is a didactic device. It goes through – with seamless transitions – all of the key points one would seek to get across in a conceptual course on ethnography, or an ethnography primer. A quick summary of at least some of these, as presented in Act 4, is in order:
- Taxonomies of ethnography (p 27-33)
- Writing conventions within ethnography (p 33-35)
- Ethnographies’ relations with other methods, and other disciplines, including journalism and fiction writing; are the roots of ethnography in anthropology or sociology? (p 35-41; 54-57)
- Links between modern ethnography and global capitalism, and state power; contemporary ethnography disavowing its colonial and imperialist past (or not); the ethics of the relatively powerful academic ethnographers studying those with less power; ‘studying up’, ie studying those with more power (p 42-45; 48-53; 57-61)
- The contrast between a ‘hermeneutic of trust’ and a ‘hermeneutic of suspicion’ adopted towards those being studied; the types of truths found in stories (p 46-47)
- Researcher positionality, and the obligations it brings, as well as the coincidences implicated (p 62-67).
- How can one ‘relate small facts to large issues’ (Geertz, 1973: 22) (p 36-41, but this theme recurs throughout the text, and is the ‘Among Wolves’ of the book’s title)
Act 5 continues in didactic mode. Much of it is a conversation between three of the characters (Timothy Pachirat, Piers Vitebsky and Karen Ho), out for a walk with the wolfdog, in which they reflect on how they teach ethnography. In playful mode, Pachirat adopts the role of ‘professor’, with the others as ‘students’. There is a discussion of the boundaries (or lack thereof) between research and the rest of life; of the ‘good old days’ when people just went into the field and learned there; and then a long discussion of a stylised life cycle of ethnographic research:
‘TIMOTHY: … negotiating a research question; defining “the field’; reflecting on the project’s ethical considerations and gaining Institutional Review Board (IRB) or other ethics committee approval; gaining access; building relationships; navigating the field and dealing with improvisation, serendipity and ambiguity; writing fieldnotes; and leaving the field’ (p 79).
Every one of these is problematized. This includes the idea that one can even ‘teach’ ethnography:
‘PIERS: Well, I don’t think you can actually teach it [‘that kind of spirit, that kind of sensibility’]. All you can do is create an environment in which students who are already inclined to it can be nurtured, nourished and encouraged to take risks.
‘TIMOTHY: That is so opposite to the environment of a lot of graduate education in the social sciences, which produces a slow anesthetization through inducing timidity and safety’ (p 83).
The Act ends with the dramatic device of the wolfdog growling, then howling, and sprinting off back towards the barn.
The penultimate Act 6 comprises the trial, being held in the barn’s upper room. The remaining 7 ethnographers agree to play the key roles in a trial: judges; defendant; counsel for the defence; witnesses. The Prosecutor’s role is obvious, and he disavows that it can be described as a ‘role’ (p 135), claiming that he is there in a realist sense to represent the public interest and the integrity of science (p 138). Loïc Wacquant and Mitchell Duneier begin by objecting to the very notion of a trial, and Duneier points out that his ‘How Not to Lie …’ is ‘intended solely as a thought experiment that ethnographers might apply to their own work’ (p 137), not as a justification for a literal trial.
There follows Goffman’s explanation of why she has consented to the trial: many of the critiques of her work have evoked the notion of a trial. Lubet’s Interrogating Ethnography, at the time not yet published but in the public domain as the subject of a conference, is explicitly discussed.
‘ALICE: … So yes, reflecting on the ubiquity of courtroom tropes in both the public and academic treatments of my book, the figure of The Prosecutor does seem an apropos way of synthesizing all of these critiques in a single person and of asking whether a legal framework is an appropriate oe for the judgment of ethnographic work, and of scholarly work more broadly.’ (p 139)
The remainder of the Act consists of a summary of the critiques of Goffman’s work (and by extension that of all ethnographies) (p 140-147) followed by a carefully elaborated summary of the defences (p 147-157). But before judgment can be given, the characters are interrupted by Vibetsky, Ho and Pachirat, ‘their panic palpable’ (p 157). The wolfdog is missing: and sounds offstage tell us that the vial of fieldwork invisibility potion and the formula have been destroyed, and the wolfdog is howling. Because the trial is interrupted here, and because the defence has followed the prosecution, the author’s intention must be to leave the reader/audience on the side of ethnography.
A one page Act 7 concludes the play. The wolfdog, no longer visible, lets out ‘a long chilling howl’ (p 160). Terrified, ‘[e]veryone involuntarily shivers with fear, and The Prosecutor holds out his staff like a weapon.’ (p 161).
‘THE PROSECUTOR: They’re real? The wolfdog and the invisibility potion are real?’
[A sudden, hair-raising growl followed by a piercing scream as Piers Vitebsky throws up his left arm to shield himself against a ghostly attacker before he is thrown backwards onto the dirt.]
Growling diminishes in volume as lights fade to darkness. All goes silent.
End of Act Seven
END OF PLAY’ (p 161)
This final Act must be deliberately equivocal on the part of the author. My preliminary reading is this. With the destruction of the fieldwork invisibility potion, the wolfdog become less corporeal, more ghostly. But, even as a ghost, she is able to floor Vitebsky, and to silence all ethnographers’ speech. So, the wolfdog is ultimately shown to be more powerful than ethnography: or at least capable of temporarily silencing its practitioners.
Acts 4 and 5 are where the book responds most directly to the question I posed at the outset of these reflections: how can one (purport to) understand the ‘other’? That question is also touched on in Act 6.
‘ANNA … Under what circumstances, if any, is it legitimate for people to conduct research on and represent the lives of those who are different, sometimes radically, from themselves?
‘These are difficult questions, and the answers are surely as messy as the realities that shape them … (p 155)
But the idea that ‘the rich cannot conduct research on or with the poor (or vice versa) should be rejected, so long as differences of power are neither denied nor erased. On the contrary ‘ANNA: … there is much to be learned … from the strangeness that comes with being a near-total outsider to a situation, but this strangeness must be accompanied by an abundance of reflexivity and humility’. (p 155).
Ethnography is more visibly problematic than other ‘MITCH: … enterprise[s] of knowledge creation’ (p 45):
‘JIM: … Because ethnography takes as its stated aim the understanding of the other from the perspective of the other, it creates a much more tangible and palpable tension than other kinds of projects of knowledge creation that do not make those kinds of claims’ (p 45)
This, and other, tensions implicit in the practice of ethnography are the ‘wolves’ among which ethnographers must live. On another level, then, as well as being an overtly didactic device, Acts 4, 5 and 6, in particular, use the device of the play to explain something profound about ethnography through an extended metaphor.
Ethnographers must live ‘among wolves’.
‘KAREN: … These wolves, these enduring tensions between small facts and large issues, are pesky, dangerous and evil …’ (p 38)
We could just try to kill them off, but,
‘KATHERINE … instead of thinking about an antagonistic relationship, pitting humans against wolves, we might think of the ethnographic sensibility as offering the possibility of living among wolves.’ (p 39).
‘TIMOTHY: This is where the magic of ethnography happens, in this uncomfortable but generative tension between local and object … – ethnography asks its practitioners to live in the creation tension between locus and object … to live among wolves.’ (p 39)
‘KAREN: We’ve noted the ethnographic maxim that you can’t know what is there to explore until after it’s been explored. How does this tension get reconciled?
‘TIMOTHY: You know, that’s such an excellent question and such a difficult one. There is no formula to resolve this tension. … it’s an inherent part of living “among wolves”.’ (p 94)
‘KAREN: So one implication [of the insight that observation, inscription and analysis are not distinct or distinguishable] is that even the act of writing fieldnotes is itself already interpretative. … I suppose that’s really where a positivist and an interpretivist might part ways on what fieldnotes are about. There are some positivists who really do believe in not just the possibility but also the necessity of capturing “mere reality”, whether it is in fieldnote form or in the form of survey responses or coded variables. So, for a positivist, this kind of answer from Geertz is deeply discomfiting. It suggests that data are not reliable, not replicable and if data are not reliable and not replicable, then what is the science in our enterprise of scientific knowledge production really all about, anyway?’
‘TIMOTHY: Better to acknowledge that than live in denial of it. We don’t gain anything by creating an alternative universe in which data are declared to pre-exist interpretation. So an interpretivist response to these positivist concerns is that they are hardly unique to ethnography as a method. It’s just that ethnography calls attention to the inescapable inevitability of interpretation in ways that other methods do not.
‘KAREN: Back to the wolves again’ (p 113)
What do we gain by substituting the word ‘tension’ for the metaphor of wolves? Wolves evoke a sense of danger. We evoke an allusion to old folk tales (Peter and the Wolf; Little Red Riding Hood; The Three Little Pigs) where the wolves are the dangerous ‘other’ ‘in the forest’, outside the safety of ‘home’, and might destroy our homes, swallow our grandmothers, or us. We evoke an allusion to the concept of werewolves: the idea that there are humans among us, unknown to us, who are sometimes in wolf form and are out of control. Ethnographers are in danger, and they may not even know where the danger comes from.
But we also evoke an allusion to excitement, to the frisson of the wild, the untameable. Ethnographers, we are being to encouraged to learn, live among the undomesticated, and as such, we are being encouraged to see them as heroic figures in the academy, constantly ‘ANNA: … opening up spaces of possibility’ (p 39).
What to make of the mysterious character of the wolfdog? I tried to track all the instances where the wolfdog, mainly inert or mute, growls or otherwise interacts with the human conversation. I couldn’t glean any sense from that, perhaps because I don’t know the literature well enough. What I understood Pachirat to mean in this character includes the following. The wolfdog is the ultimate ‘other’ in the story. She is, and is not, simultaneously, ‘real’. She symbolises a different way of knowing than Western academic thought. When we observe the wolfdog, as ‘other’, we deprive her of all meaning (p 7; p 26), because her ways of knowing and being known are not our ways of knowing and being known. The very act of understanding, with our Western eyes, seems to kill off that which we seek to understand.
The wolfdog is not only a female. She is also disabled: she is one-eyed. The double disadvantage surely is meant to evoke more than an intersectional disadvantage: being one-eyed also resonates with ‘seeing’, a near metaphor for ‘understanding’. Is the idea that the wolfdog can only see (ie, understand) in one way? If so, that is to suggest that she is unlike those of us with two eyes, who claim to see, at least in some sense, in more than one way. Is the implicit claim that ethnographers, and perhaps all who study ‘others’, can learn to ‘see’, and thus to represent, however conditionally, however partially, however humbly and reflexively, not only their own realities, but also those of others?
And, finally, how does the story told in Among Wolves represent law and legality, and indeed my own discipline of legal scholarship? It is here that the story most disappoints: what it tells me is something I’ve already experienced, which is that many from across social sciences deploy a distinctly flat, unproblematized and uni-dimensional notion of law and legality. Not only is law/socio-legal studies missing from the list of disciplines in which ethnography is practised (p 62) and the hermeneutics of law are absent from a possible method which could be mixed with ethnography (p 35-36); but law itself is reduced to the binary: guilty/not guilty, as opposed to the heroic problematized discursive notions associated with ethnography. This – among other things – is what we seek to redress in our project.
Let’s turn now to a different route to understanding ‘the foreign’: ethnography. The form of ethnography that we are using in our project has been described as ‘hit and run’ (Rhodes, Everyday Life in British Government, OUP 2011). Rhodes used the method in an elite context (Westminster): we are using it in streets and shopping centres in towns in the north of England and Northern Ireland.
Ethnography seems to me an overwhelming field or method, perhaps because it’s not one with which I am directly familiar, although plenty of legal scholarship deploys it. So one of the things I’ve been doing is reminding myself about the legal ethnographies that I have read in the past, and revisiting them with an eye on their methodological accounts, and where they situate law or legality in their enquiries.
So, for instance, in Order Without Law, (1991/1994) Robert Ellickson combines law and economics theory with ethnographic data gathered over several years in Shasta County, California. Although law is decentred in Ellickson’s account, it is very much present, especially in his description of his positionality, and the research design. Ellickson describes himself as a law professor who had become increasingly dissatisfied with ‘doctrinal’ work. His is a multi-disciplinary work: it couldn’t have been conceived, much less written, by someone who didn’t understand the intricacies of legal doctrine, as well as the economic theory. The law led the choice of field site: it had to be a place where both ‘open’ and ‘closed’ approaches to cattle owners’ liabilities were co-existing geographically. And the opening sentence of the book tells us immediately how Ellickson grapples with the generalizability question:
‘Events in a remote corner of the world can illuminate questions about the organisation of social life’ (p 1).
By contrast, John Heinz and Edward Laumann (Chicago Lawyers 1982/1994 Northwestern University Press) makes no claims to generalisability: it is unashamedly an interview-based, quantitative systematic description and analysis of the legal profession in one major US city. So it’s not really an ethnography in the ordinary sense. As we learn from their reflection in Simon Halliday and Patrick Schmidt’s Conducting Law and Society Research (CUP 2009), Heinz and Laumann were also seeking to develop conceptual or theoretical accounts, inductively rather than deductively. There’s a great description there too, of how they built their working relationship, starting by ‘catching up with each other’s disciplinary understandings’ and about how they built their team of graduate student research assistants.
Probably most encouraging was reminding myself of Patricia Ewick and Susan Silbey’s The Common Place of Law (University of Chicago Press 1998). In the authors’ own words, the book ‘uses stories of everyday life to discover the different ways in which people use and think about law’ (p xi). Almost ruefully, the authors continue ‘ “Collecting stories” and “having conversations” is not the usual way of describing social science research (p xii). Again, Ewick and Silbey work across disciplines, and use both textual interpretation and survey data alongside their ethnographic data. Again, they develop theoretical and conceptual accounts that are generalizable from the specific conversations and interactions that ground the book:
‘By illustrating the diversity of law’s uses and interpretations, we hope to demonstrate that legality is an emergent feature of social relations rather than an external apparatus acting upon social life. As a constituent of social interaction, the law – or what we will call legality – embodies the diversity of the situations out of which it emerges and that it helps structure. … Legality is not sustained solely by the formal law of the Constitution, legislative statutes, court decisions, or explicit demonstrations of state power such as executions. Rather, legality is enduring because it relies on and evokes commonplace schemas of everyday life. Finally, we argue that the multiple and contradictory character of law’s meanings, rather than a weakness, is a crucial component of its power’ (p 17).
I had forgotten that this book deploys the methodological appendix device, explaining that it is like the moment in The Wizard of Oz when the curtain is pulled back to reveal the true nature of the ‘wizardry’.
The other thing I’ve been doing is dipping in to some overviews or primers on ethnography. The field is crowded, but the ones I’ve chosen are all published in the last couple of years, and one is specifically focused on law. I want to highlight three here:
- Anthony Kwame Harrison’s Ethnography: Understanding Qualitative Research (OUP 2018)
- Colin Jerolmack and Shamus Kahn’s Approaches to Ethnography (OUP 2018)
- Steven Lubet’s Interrogating Ethnography: Why Evidence Matters (OUP 2018)
Anthony Kwame Harrison’s book is a reflective guide for those new to ethnography, bringing together practical advice with an introduction to ‘how to think about and understand ethnography as a research, writing and representational practice’. This was – for me anyway – an excellent short overview of the contemporary field; its historical roots in anthropology and sociology; the concerns and orientations that animate its contemporary practice; and its paradigm orientations.
This latter discussion of paradigms was particularly useful in animating a line of thought about the type of knowledge we hope to produce in our project: where do we sit in a choice between positivism (which underpins much legal and political science scholarship); interpretivism; and critical paradigms? I think we may be able to make explicitly critical contributions to the literature (in particular, Ivanka is already working in critical disability studies), and that we have already published what are essentially positivist analyses of post-Brexit health governance (Fahy et al 2017, 2019); but that our predominant paradigm for this project will be interpretivist. In looking at the language deployed by people with whom we engaged in conversation in the street, during particular weeks, in northern English and Northern Irish towns, we are seeking to understand their realities through their meaning-making, meaning being spatially and temporally contingent (p 155). This may present some challenges when seeking to publish our work, in that we will have to exercise care not to present our data as inherently generalizable, yet we will want to offer insights that are broad enough to be publishable.
Harrison’s book explains some of the giants of the field (Malinowski 1922/1966; Geertz 1973; the Chicago School and urban ethnography) and some of its more recent causes célèbres (especially Goffman 2014, of whom more later; but also Harrison’s own work 2009). I learned a lot from the strong emphasis on writing as an ethnographic practice: from ‘scratch notes’ taken in the field, through to longer-from written fieldnotes, which are reflections captured soon afterwards, and finally to polished narratives and analyses presented for publication. ‘For the ethnographer, writing is simultaneously a means of recording data, analysing data, and representing social life’ (p 118). I began to understand the ways in which some ethnography centres embodiment (where the ethnographer picks fruit alongside migrant farm workers (Holmes 2013) or learns to dance (Hancock 2013)) rather than discourse or text. I noted Harrison’s idea of credibility, as encompassing reflexivity, transparency and sincerity (p 183-184), and that we should expect a certain degree of messiness in a credible anthropological account: ‘the absence of unexpected twists and turns tends to generate skepticism’ (p 184). And I reflected on the idea of ethnography as ‘bricolage’ (p 123, drawing on Lévi-Strauss 1966): ‘cobbling various data and utilizing different modes of representation in such a way as they hang together through a sense of narrative coherence – and occasionally through intentional, effective disjuncture’ (p 123). I don’t know of any law publisher which accepts that kind of approach to data and its analysis: this is going to be a challenge for us.
What I didn’t find was anything on ethnography as a team effort: the underlying assumption seemed to be of lone scholarship, which is very far from what we are trying to do in our project. Also, for anthropology-based ethnographers, what we are doing will barely count as ethnography, because we simply are not ‘in the field’ long enough.
Colin Jerolmack and Shamus Kahn’s Approaches to Ethnography (OUP 2018) isn’t a ‘how to’ manual on ethnography, but a reflection on how different approaches to ethnography work out in different contexts. By ‘approaches’, Jerolmack and Kahn mean this:
‘To make fieldwork manageable in a way that is methodologically defensible (ie, not arbitrary), the ethnographer must decide what aspect of social life will be privileged in data collection or analysis … That is, she must select what we call an approach to ethnography.’ (p xii)
They distinguish three schema of approaches: micro/meso or organizational/macro; people & places / processes & mechanisms; dispositions / situations. Reading the contributions to the book, which are descriptions of existing ethnographies in extremely varied contexts, leads me to provisionally place our project in the macro; and in people & places; and the situational rather than the dispositional.
Although their fieldwork is temporally long-form, and ours is ‘hit and run’, like Leslie Salzinger and Teresa Gowan, (in Jerolmack and Kahn 2018: 89-90), we are seeking to make visible strands that resonate in our field data, and draw out their links to larger structures. We are interested in at least one aspect of subjectification: the meanings people make of their social conditions (Salzinger and Gowan: 91). Of course our research sites are complex, and the cultural structures embedded therein flow “all the way down” (Geertz 1973: 28-29): that’s a way to make sense of the idea that ‘all micro is macro, and vice versa’ (Salzinger and Gowan: 92). I absolutely loved the account of a reflexive relation between theory and data analysis, and a scholarly flexibility, that is summarised as Burawoy’s (1998) “Be Bold, Be Wrong!” (Salzinger and Gowan: 70).
Douglas Harper (in Jerolmack and Kahn 2018: 110) reminds me that we need to create some rich evocations of the places that we studied; and to place them in the times in which we studied them. We chose significant dates for our fieldwork, such as the week leading up to ‘Exit Day 1’ (29 March 2019) and the week of the European Parliamentary elections (23 May 2019). Harper also reminds us that early anthropological work, such as Malinowski’s ( 1961) seminal work in the western Pacific, ‘appeared to be steeped in respect for difference’, but actually, as the publication of his diary eventually revealed, really was not. I know that my co-investigators and I have deep respect for the people we seek to draw into our conversations: I can only hope that those people understand that and don’t misinterpret our intentions.
The book ends with a discussion of abductive reflexivity (Forrest Stuart, ‘Reflexivity: Introspection, Positionality, and the Self as Research Instrument – Toward a Model of Abductive Reflexivity’, in Colin Jerolmack and Shamus Kahn Approaches to Ethnography: Analysis and Representation in Participant Observation(OUP 2018)): a process where ethnographers embrace their otherness, and uses ‘both inductive and deductive models of inference. In other words, it is both “bottom up” (data driven) and “top-down” (theory driven).’ (p 221) I think we can deploy that kind of approach, although our ‘hit and run’ limitations mean that testing and re-testing initial hypotheses will have to come through reflection on the data we have, rather than returning to the field to gather more data.
Steven Lubet’s short Interrogating Ethnography: Why Evidence Matters (OUP 2018) is – at heart – a plea for accuracy in social sciences (p 137), especially ethnographic work. These points resonate with Harrison’s ‘credibility’ and ‘ethnographic comportment’. Lubet tells the story of how his infuriation with Goffman’s (2014) acclaimed book, and what, to him as a law professor must have been inaccurate claims, led him on a forensic journey of checking the veracity of the truth-claims made in a range of ethnographic work, from the point of view of a lawyer, checking the evidence. His test throughout is ‘would a judge in a criminal or civil trial accept this claim, without corroboration?’. Essentially, this is a detailed and compelling application of Mitchell Duneir’s (2011) imaginary ‘ethnographic trial’: the researcher imagines themselves accused of standing trial for malpractice, in offering a reader an unreliable rendering of the social world.
In natural, and social, sciences, replication of results is the ‘gold standard’. But the study we are doing, which is both temporally and spatially contingent, cannot be replicated. This will mean that we will need to think carefully not only about the specificity of the claims we make (a point I’ve made already, above), but also about how to present as reliable an account of the meaning-making that we found as possible.
Of course, we know that, even in the natural sciences, false claims are made from data which is incomplete, or in either honest or dishonest interpretations that turn out to be mistaken (Horton 2015; Smith and Roberts 2016; Ionnidis 2005, all discussed p 129-130). As Richard Horton of the Lancet puts it, ‘the quest for telling a compelling story” too often leads researchers to “sculpt data to fit their preferred theory of the world”.’ (p 130). So here, we need to be careful in our project that the ‘inconvenient’ (for a line of thinking or theory that has emerged) (p 66) phenomena that we encounter in our fieldwork are not suppressed.
How do you study a culture that is far from your own? I don’t mean, in this instance, geographically far. The cultures that I’m trying to understand are close to home: in the north of England, Scotland and Northern Ireland. But they could be – as I physically am as I write from the University of Toronto – thousands of miles away from my reality, as a comfortably-off professor of EU law in a northern English university, and from the realities of the people whom I know and love. What I’m talking of is social distance, and in particular the distance that is labelled, fuzzily, social class.
Of course, one answer to this question is that it is impossible, in any meaningful sense, to understand someone or something that is too ‘foreign’, removed, or remote from what I already know. I think – and I hope that I am right – that this answer is overly defeatist.
There is a valuable warning in it, though, that goes to the ethics of claiming to understand any ‘other’. We can’t ever claim to really understand, not from the inside. And so it behoves us to be circumspect with our claims, and explicit about our biases and assumptions – at least, as explicit and self-aware as we can be, as well as constantly seeking to check and question what we perceive we have discovered or understood. In ethnography, ‘the ethnographer – a living, breathing, feeling individual – is the primary instrument of data collection and interpretation’ (Forrest Stuart, in Colin Jerolmack and Shamus Kahn Approaches to Ethnography: Analysis and Representation in Participant Observation (OUP 2018) p 211). Further, we need to attend to the relational in our research: to understand that knowledge ‘draws from relationships, interactions, interpretations , and appreciation of the Other’ (Douglas Harper ‘People and Places’ in Colin Jerolmack and Shamus Kahn Approaches to Ethnography: Analysis and Representation in Participant Observation (OUP 2018) p 113). To do otherwise would be unethical – it would be to lean on our privilege in order to claim a hegemony of knowledge that is not rightfully ours.
But I want to insist– this ethical obligation of reflexivity or ‘ethnographic comportment’ (Anthony Kwame Harrison, Ethnography (OUP 2018) p 28-33 and throughout the book) aside – that we in the social sciences and humanities (and I include law here) can and should seek ‘to discover and understand’ as my university’s motto has it. One of the things Mark Flear, Matt Wood, Ivanka Antova and I are studying in our ESRC Health Governance after Brexit project is communities in the north of England and Northern Ireland, and how people there feel about Brexit, the NHS and what a legitimate post-Brexit health law and policy would look like to them.
Let’s start with one way of ‘discovering and understanding’, reading the words of the ‘foreigner’. I’m thinking here of memoires such as McGarvey’s Poverty Safari (London: Picador, 2017). This isn’t the only memoire about social class I’ve read in recent years (I learned a lot from Lynsey Hanley’s Respectable (London: Allen Lane, 2016)), but this one is explicitly about politics, and about (lack of) communications across the class divide. Writer and rap artist McGarvey (aka Loki) takes us through a biting and visceral account of poverty in Glasgow’s south side. One of the things I liked best about this book is how explicit and honest McGarvey is about the compromise that it costs him to communicate with his (middle class) audience, and about himself as a reflexive learner. The account of the interaction with artist and activist Ellie Harrison (pp 183-195), and McGarvey’s eventual realisation that ‘in all her middle class glory’ (p 195) Harrison is in fact an ally, not an enemy, is compelling in its ruefulness. Its opening pages describe McGarvey’s inability to read books. In a bizarre way, it reminded me, in reverse, of the parlour game in the David Lodge novel Changing Places, where you win by admitting that you haven’t read one of the most classical of ‘the classics’. McGarvey writes about the feelings of harsh judgement that come from his early interactions with other social classes.
‘Those botched attempts to move among the affluent became the germinal events that eventually led to my deep sense of grievance with anyone I perceived as well-off … my simmering resentment … lay with those in society who appeared to be doing much better than the rest of us … those who were gliding through life unimpeded by the constraints of poverty … ’ (p 29)
McGarvey is thoughtful about the way that jargon, especially the jargon of government, reinforces assumptions driven by social class. These assumptions are held on either side of the social divide. He writes,
‘Whichever side of the track you come from, it is likely that you harbour unconscious beliefs or attitudes about the issue of class: about yourself and the people across the way. For me it was this idea that middle class people have it easy, are born with a silver spoon in their mouth and benefit from a plethora of unseen advantages that I do not. For you, maybe it’s a belief that poor people stay poor because they don’t work hard enough, or that the system is fair and it’s people’s negative attitudes that are holding them back.’ (p 50)
Now, I don’t subscribe to either of those assumptions, but of course the people in the communities that I’m trying to understand may well believe that I do, and that I’m ‘exploitative and patronising’ (p 50) or a ‘chancer, careerist or charlatan’ (p 115). They may believe all kinds of things about my intentions in seeking to understand the world as they see it. These kinds of beliefs, perpetuated through generations, are what makes dialogue, especially in the realm of political participation, so difficult. ‘When attempting to express our thoughts and opinions across vast gulfs in social and cultural experience, nuance gets lost in translation’ (p115).
And, as McGarvey points out forcefully, botched attempts at dialogue make matters even worse (p 51; p 79; p 115). People involved in well-meaning third sector interventions into working class communities run the risk of acting ‘like an imperial power; poorer communities are viewed as primitive cultures that need to be modernised, retooled and upskilled.’ (p 79). This insight weighs heavily on me. I have found myself, when ‘in the field’, or reading the team’s fieldwork notes from our project, repeatedly thinking thoughts to the effect of ‘this person would be more effective/better off if they had a better understanding of the EU/the NHS/domestic politics’.
McGarvey’s account concentrates on interactions between material deprivation, (mental) ill-health, addictive behaviour, and criminality. But there is a running thread through it about democratic legitimacy – not just about political activism (which is very much part of the book), but about not being heard, and the political apathy that ensues.
‘This is the other deficit we rarely talk about or acknowledge. The deficit in our respective experiences when we come from lower class or higher class backgrounds. The deficit in how that experience is represented, reported and discussed. This deficit, which appears to be widening, has led to a culture that leaves many people feeling excluded, isolated or misrepresented and, therefore adversarial or apathetic towards it. And it’s often based on people living in run-down social conditions, with little money, in stressed-out, violent communities, turning on the television and making observations [about people from upper/middle classes]. It’s the belief that the system is rigged against you and that all attempts to resist or challenge it are futile. That the decisions that affect your life are being taken by a bunch of other people somewhere else who are deliberately trying to conceal things from you. A belief that you are excluded from taking part in the conversation about your own life. This belief is deeply held by people in many communities and there is a good reason for it: it’s true.’ (p37)
In the parts of the book where he reflects directly on the EU referendum vote, McGarvey wonders whether it can be understood as what happens ‘when people who are rarely heard decide to grab the microphone and start telling everybody how it is’ (p 119). McGarvey describes the disjuncture between the investments for the Glasgow Commonwealth Games (public WiFi, multilingual signage and so on) and the deprivation of nearby Glasgow communities (summarised as the library having ‘a WiFi service that would make the 90s blush’ p 127). He goes on:
‘People sitting in their homes watching the carnival on television could have been forgiven for thinking: am I living in the same world as these people? … When you live in these communities, it always feels as if your concerns are regarded as narrow-minded, short-sighted and parochial; the story that ascends is the story that meets the needs of the many. Which, coincidentally usually aligns with what many in those areas would regard as ‘middle class’. …
‘Perhaps that would explain why some people, in the aftermath of Brexit [sic] began referring to an ‘elite intelligensia’. … They were, perhaps clumsily, trying to describe the phenomenon whereby the accepted culture, comprising news, politics and entertainment, which they were presented with every day, was contradicted and undermined by the reality of their own lives. Perhaps they were trying to express how the vast contrast between the world they were being presented with as reality and the one they were actually living in was so stark that they could only conclude it was a deliberate fabrication.’ (p 128)
‘Brexit Britain, in all its disfunction, disorder and vulgarity, is perhaps a glimpse of what happens when people start becoming aware of the fact they haven’t been cut into the action but have no real mechanism to enfranchise themselves beyond voting … When people vote against their own interests because they don’t think it’s going to matter either way. People who are then called ‘arseholes’ and ‘scum’ by middle class liberals for expressing genuine shock that their vote actually did bring about change – for the first time in their lives. … When the full wrath of working class anger is brought to bear on the domain of politics, sending ripples through our culture, it’s treated like a national disaster.’ (p 129)
‘The morning of Brexit [sic] multiple crises were announced simultaneously by middle class liberals, progressives and radicals, who were suddenly confronted with the vulgar and divided country the rest of us had been living in for decades. A country filled with violence and racism. A country where people had become so alienated by the mainstream conversation that they were beginning to create their own parallel cultures and even their own ‘alternative facts’. It was infuriating to witness one hyperventilating Guardian subscriber after another, lamenting how a once-great nation had gone to the dogs.
Of course, by ‘dogs’ they meant the working class.’ (p 130)
McGarvey goes on to describe how, for the communities he visited in late June 2016, after the referendum vote, it was calm ‘business as usual’. Violence and racism are part of everyday reality. Yes, there was anxiety from foreign nationals about what their position in the UK would be. Many BME people were on the receiving end of racial abuse, who used the vote as an excuse for such behaviour. In another part of the book, McGarvey captures this unthinking racism perfectly, describing a conversation with two challenging teenagers in an additional needs school (p 146-147). He doesn’t shy away from tackling racism and immigration in the book, pointing out that the conditions of poverty and exclusion from political voice feed racist feelings towards migrants and that a politics of shaming such lack of inclusion simply won’t be enough to change people’s emotions (p 148-153). But in the context of the referendum, ‘[i]t was perfectly appropriate that communities moved quickly to acknowledge those fears and to show unconditional solidarity with those affected. But much of the outrage that was flying around had nothing to do with what immigrants actually thought or felt; it was about people using those issues to conceal their own naked classism’ (p 130). In fact, for McGarvey, Brexit, like Trump, is ‘just another side-show that detracts’ (p 142) from poverty.
McGarvey doesn’t believe poverty can be solved by politicians, party politics, or the political system as it stands. For him, this is because it has become too politically difficult to have an honest conversation about what it will require. That really resonated with me: an honest conversation from the Labour leadership about the costs of Brexit to the poor, and whether their policy is to be a poorer, but more equal, country, is something I’ve been hoping for in vain for months.
The issue of poverty is ‘far too complex to blame solely on ‘Tories’ or ‘elites’.’ (p 107). In fact, no one group can be the scapegoat for poverty, although political conversations are structured so that the blame for poverty is apportioned to the ‘outgroup’ that enables and benefits from poverty. Left wing circles, in McGarvey’s experience, don’t want to hear that they are also complicit. Communities like McGarvey’s are ‘just as hacked off with the left as they are with everyone else’ (p 142). He calls for a ‘new leftism’ which goes beyond ‘railing against the system’ to scrutinizing its own thinking and habits, and which reclaims ‘the idea of personal responsibility from a rampant and socially misguided right wing that has come to monopolise it’ (p 112), recognising that ‘part of the solution lies with the individual’ (p 177). When I read that, I thought about the data from our street conversations about responsibilities and the NHS.
Some of the people we talked with very much agreed that individuals need to take more personal responsibility for their own health, rather than thinking of health as a collective responsibility, institutionalised through the NHS. One example McGarvey discusses is Castlemilk Against Austerity, a community group which ‘doesn’t spin a ‘poor us’ narrative. Instead, as well as organising to resist the system, they challenge the community to examine its own shortcomings and false beliefs. Whether it is blaming immigrants for social problems or paying lip-service to wanting change while sitting on your hands and doing nothing, CAA are on the front line, calling out bull***t wherever it is found’ (p 143). Bullshit reminded me that this metaphor recurs in our street conversation data: whatever one might think, the ability of working class communities to spot it and call it is clearly present in the places we are studying.
One of the things we are doing in the Health Governance after Brexit project is engaging honestly with people with a range of views on Brexit. I thought I had found a place to do this on social media. Turns out I was mistaken. Here’s the story.
On 11 May 2019, I noticed that a Facebook closed group (UK in the EU referendum, originally set up by Prof Eleanor Spaventa) that I followed closely in the run up to the referendum, and for some time thereafter, renamed itself ‘Brexit without Tears’ and began posting comments again.
Like ‘Labour Leave’, which I also follow on Facebook, the group had been dominated by Leave voters, but Dr Aris Georgopoulos, a public procurement lawyer at the University of Nottingham (whom I know a bit) often commented with corrections of misinformation and to put Remain views. I would sometimes add something to back him up, but mainly just ‘like’ his posts, as I felt that was all I had capacity to do.
I decided to engage with the group, thinking that it would be a space in which to discuss how Brexit might be managed ‘without tears’ – ie recognising that it will be harmful and even emotionally draining for some (many) people, but thinking about how we can nonetheless work towards a legitimate future for the UK. This is consistent with the underlying aim of Health Governance after Brexit: to think about what legitimate post-Brexit governance would mean for health and the NHS.
The group’s rules of engagement seemed promising, as they talked of civility.
And it would seem that I wasn’t the only person who was looking for this kind of discussion, as someone asked ‘it is actually possible to have Brexit without tears’?
However, I was very quickly disillusioned. The first thing I noticed was that pro-Remain academic commentators were first personally insulted, and then blocked. There was a comment to the effect that ‘a Greek guy’ (Aris) used to post lots – he has now been blocked. During the first days of ‘Brexit without Tears’, this also happened to Professor Dagmar Schiek, a Professor of EU law at QUB. She offered factual examples of what’s good about EU membership. She cites free movement and the EU moving against large corporations like Apple (the EU’s capacity to ‘tame global capitalism’). She shares an official source (admittedly an EU one rather than an ‘independent’ one) for her point. She’s accused of ‘fighting for her job’ by one of the admins. She calls the admin on reverting to personal insults. When she is accused of being anti-democratic for not respecting the referendum result, she points out that around 37% of the eligible electorate voted Leave. She leaves the group.
There is no respect for evidenced claims of expertise. In fact, they are treated as being suspect. Dagmar’s comments are explained by her ‘fighting for her job’. When I point out that this is hardly fair, as Dagmar will have a job whatever happens, this comment is ignored.
Any questions about the claims being made are rejected, or met with irrelevant or down-right misleading sources or responses. In one example specifically about health, someone shares a WHO source as evidence that we should leave the EU as immigration is bad for public health. I read the source, and point out that it actually praises the EU as the only international entity that is really tackling communicable diseases as effectively as WHO would like. This statement – including direct quotations from the WHO report – is contradicted as inaccurate, with no justification.
One of the things I engaged with was the terms of the debate. I asked whether the group was a place for having civilised discussions. And I explained that I perceived a significant difference between people saying ‘there is nothing good about the EU’, and people recognising that the EU is not perfect, but still wanting to discuss how to compensate the detriments that come from leaving the EU. Pretty soon, one of the admins was telling me that I don’t get to ‘set the terms of the debate’. I pointed out that I wasn’t trying to set them, only commenting on what I see.
At least one Leaver posting also (at least arguably) tries to ‘set the terms of the debate’, by saying ‘don’t use the words free and EU in the same sentence’. I (slightly tongue in cheek) point out the admins’ inconsistency of approach here, and am chastised for making ‘snide remarks’. The admin then turns off all comments for that post.
Then there was a long thread about a racist/anti-Semitic comment, in which it is denied that the comment is at all offensive. Here we have the ‘snowflake’ trope: the idea that people are far too sensitive and should realise that what amounts to deeply offensive and racist/anti-Semitic/Islamaphobic language is ‘just a joke’. We have the trope of ‘black people call themselves niggas, so it’s ok for white people to do so too’. The person who suggests that the post is anti-Semitic is blocked or leaves the group.
The discussion also fails (despite the title of the group being ‘Brexit without Tears’) to acknowledge negative emotional responses to leaving the EU. A comment to the effect that I feel ‘tearful’ and I do regard leaving the EU as a loss is totally ignored.
In fact, the idea that leaving the EU will affect people’s lives in any way is disputed.
And the personal insults follow, including the ‘snowflake’ comment when I object.
Before too long, any semblance of rational debate had totally disappeared.
I’m not the only person I know having this experience this week.
I suggest that no one I know thinks that the EU is perfect, but that it has contributed to peace and security in Europe, given individuals rights (eg workers rights), and given free movement. All of these comments (which are demonstrable facts) are rejected. The free movement one is met by the assertion that people will be able to move post-EU membership, they will just need visas etc, and my reply to the effect that this makes free movement much harder than with the protection of EU law is ignored. The workers’ rights comment is met by the statement that we had workers rights before EU membership, and I concede that but point out that they are enhanced by EU membership and enforceable despite the whim of any particular UK government. That point is also ignored. The peace and security claim is met by the assertion that the EU is a Nazi conspiracy theory – the so-called von Ribbentrope project. I have seen this theory before, and it has been totally debunked. When I draw the distinction between facts and a (conspiracy) theory, I’m accused of not being interested in facts. There appears to be an inability of the person posting to distinguish between facts and theory.
The whole tenor of the discussion prompted the following reflections.
I am engaging with the group (and with social media generally) on the basis that I am engaging with human beings who are genuinely posting their views. I recognise that this may not be the case, and that Facebook or Twitter profiles may be fake ones, set up to perpetuate these kinds of views and tropes, irrespective of the person who is actually doing the posting who may be being paid to do it. Indeed, while I was writing this note, I discovered that ‘Brexit without Tears’ had already been exposed by Aris Georgeopoulos as taken over by the troll account ‘Tamarisk Tolcarne’. And the Guardian reported on this kind of unaccountable infiltration of Brexit discussion spaces on social media a while ago. I reported the group to Facebook but they found no infringement of their policies.
I don’t know what to do about this. Social media exists: we cannot un-invent it. There are at least some – if not many – real people who want to discuss Brexit on Facebook, and presumably some in the ‘Brexit without Tears’ group. Some are personally known to me (indeed some dozen of my IRL friends are listed as group members at the time of writing). So even if the people who are engaging are not representing real views, others may be reading them and having their views informed by them. If we give up on the idea that we can have rational debates, and that this is the way to run a country, then we really are in a time of despair.
I am seeing many recurring tropes of discussion, to which I really don’t know how to respond. These are, not exclusively, the idea that the UK was fine before we joined the EU and therefore leaving won’t make things worse (a logical fallacy); the idea that the UK can be global outside the EU (logically correct, but ignores ‘the law of gravity’ and actual patterns of UK trade); the idea that migrants ‘take jobs, take up capacity in the NHS/schools etc’ (not true across the board, in fact an EU national in a hospital is more likely to be giving treatment than receiving it, but of course felt reality in some parts of the country); the idea that ‘the EU needs us more than we need them’ (it is true that the EU and especially some parts of it will suffer from Brexit, but by far the worst effects will fall in the UK); the idea that things haven’t fallen apart so it must have been ‘project fear’ (er, we haven’t left the EU yet); the idea that Brexit will be good for the UK economy as a whole (really not, no serious economist believes this and the government’s own analysis admits that it won’t, but a few maverick economists’ views are re-circulated over and over again on this one); the idea that objecting to personal abuse is a sign of weakness and ‘all that is wrong with this country’.
Thinking about my engagement, and writing this blog, prompted me to wonder whether there is academic literature analysing these tropes. Michael Dougan and Charlotte O’Brien have written in The Law Teacher about the campaigning tactics of Leave: tell lies (big lies); sell fantasies; suppress and abuse opposition; blame scapegoats. They explain how these impact on people in law schools who engage with the Brexit debate. I found this article, analysing the ‘Twitter mood’ in the run up to the referendum. But I’m sure there is more literature that I need to read, as I reflect further.
But for now, I have removed myself from the group, first posting about what I’ve found.
And this is what happened when I did – my post was removed and I was prevented from making further comments anywhere in the group.
A version of this blog with screenshots illustrating all my points is here: Fieldwork notes Brexit without Tears Facebook Group week beginning 13 May 2019 TKH
I’ve now joined this group, which looks much more promising, If you’d like an invitation, just message me.
… and what it means for young transgender people in the UK.
This is a blog that we’ve* kind of written twice. This first part is a summary of what we want to say and why.
What comes after that is a detailed academic commentary drafted in response to an article written by Bernadette Wren. Wren’s article was published in an academic journal in 2014. We raised concerns with the journal. They invited us to submit a full commentary. Ultimately they declined to publish: this topic is relevant only to England, and the original article had been published in 2014. Wren has not published any comparable work since, and this source suggests none at all since 2016.
Wren is the Head of Psychology at the Tavistock Clinic, which is England’s only NHS Gender Identity Development Service (GIDS) for children and young people. As such, Wren occupies a highly influential position.
As allies, we want to understand transgender thinking and practice. We read a lot of “soft” information via social media, but are aware of its limitations. We were delighted to find a free-to-view, peer reviewed article, written by a leading name in the field in the UK, in a respected journal, on the very topic we are interested in.
Our delight was, unfortunately, short-lived.
We were struck by what we saw. Fundamental deficiencies in all of the following:
- research design and analysis,
- theoretical considerations,
- questions over ethical and clinical behaviour,
- discussion of power relations.
Wren’s article lacks a basic academic rigour, and her position at the Tavistock means this matters to trans youth in practice.
We have done our best to summarise the article.
Wren sets out with one key question: if we do not believe in gender as a fixed concept, “how do we justify supporting trans youngsters to move toward treatment involving irreversible physical change?” She includes some general ideas about the role of clinicians working with young people at the Tavistock.
Her understanding of postmodernism, and how it links to gender and clinical practice is:-
- Postmodernist thought rejects the idea of gender as fixed; this depathologises being a trans person.
- A clinician “cannot always claim to be right,” but a client must be “prepared” to “live with conflict and contradiction”.
- “Psychic turmoil” resulting from questioning narratives “must be weathered”.
Wren identifies four possible grounds on which a clinician might seek to “justify” treatment for trans youth. She concludes that none of the following:
- actually listening to young people,
- neurobiological research,
- normative developmental accounts,
- psychological adjustment research,
provide “strong or evidential support” for treatment.
Wren states a “good” clinician must consider “ways in which services may present medical interventions as a way to side-step psychological dilemmas” (our emphasis).
Wren’s seems to think she is steering a neutral and reasonable middle course between mainstream clinical opinion on UK adults, the gender critical ideology of a vocal minority of theorists, and gender affirmative practice, mainstream in Australia, Canada and the USA. She isn’t.
This article’s research design, its claims, and the practical consequences for the lives of vulnerable young people are of concern. Clinicians could regard this work as authoritative. But the design of the article is muddled and lacks analytical sharpness. Any claims made by the article are therefore highly problematic.
1.1 Epistemological Considerations
Throughout the article there are hidden mergers of categories. Wren doesn’t think “enlightenment” thought and “postmodern” thought are comparable. But she proceeds to compare them in clinical practice. So, for Wren, the incomparable is comparable?
1.2 Practical Impact
Wren’s academic narrative is dismissive of young people’s rights, identities, and narratives. All young people attending a clinic of this kind within the English NHS will have had a long wait time and several months of exploration. Cisgendered young people are not expected to spend months explaining their settled gender.
Also, Wren’s lack of discussion of her role as gatekeeper (mentioned once), and also as a champion and advocate for transgender youth (not mentioned at all), misses important implications of her position.
2.1 Ethics and Justice
Wren’s argument is based on clinicians’ ethical behaviour. But not discussing what kind of ethics she has in mind is fatal to the research design. An undergraduate student who wrote an essay in this way would be asked to rewrite it.
Wren suggests there is “received wisdom” about trans narratives, that “ethical” clinicians should therefore be suspicious of when they hear them. Following this logic would involve a return to the 19th century notion of the patient/clinician relationship, leaving power with the personal preferences of the clinician. Patient autonomy addresses (gendered) power imbalances between patient and clinician. Wren’s approach turns the clock back.
There is a place for theoretical as well as empirical work, but it is striking that Wren offers no evidence from her own clinic about the effectiveness or otherwise of her approach, or any tracking of her patients’ outcomes.
2.2 Practical Impact
Wren treats “do nothing” as a neutral option. Exploration of outcomes for young people for whom no clinical action is taken is absent. A clinician must seek justification for starting a young person on hormone blockers or cross-sex hormones, but Wren doesn’t question the decision to withhold such treatment.
Everything rests on the clinician’s assessment of the right course of action, which is why Wren’s code of ethics should be made explicit, to ensure a “good” clinician is being advised to act on anything other than their own feelings.
Also missing from Wren’s account is any sense of the pain and sadness that most trans youngsters experience. A reader could think a clinician’s role in the Tavistock clinic is to facilitate fascinating, leisurely discussions with ungrateful teenagers.
The reality faced by many trans youth and their families is of sadness, shame, isolation, bullying, assault, suicidality, self harm, lost education and missed opportunities.
Wren’s account undermines and dismisses the voices and experiences of trans youngsters. She describes young people as demanding and entitled, playing games, trying to manipulate.
According to Wren, postmodernist thinking has helped de-pathologise “non-normative” practices such as being trans.
However her thinking stops there. She might have asked, if being trans is not a mental illness, what could this mean for clinicians? If being trans is part of the spectrum of normal human behaviour in adults, how should children who say they are trans be treated? If trans adults tell us they knew they were trans as youngsters, is a period of dysphoric misery necessary? Could a clinician do better?
The practical impacts here are plain: continued “do nothing” often means continued sadness, increased risk and untreated dysphoria.
Power is central to Wren’s article, and the structures she draws on within her writing. It is extraordinary therefore that it is either absent, or muddied, throughout the article. Power is recognised in her account of binaries of modernist/enlightenment thought. But it is missing entirely from the article’s abstract, and the parts towards the end of the article about clinical practice. There are four main problems with this approach
- The undermining way Wren describes young people is an attempt to silence them. There is no consciousness of the imbalance between the clinician’s power and the powerlessness of young trans people and their families.
- The power dynamic between cisgender clinician and gatekeeper, and the ‘other’ of the patient/client is never discussed.
- Wren contradicts herself by failing to talk about how power influences client/clinician relationships.
- The opacity of the language used throughout the article should be considered a power-play. Communication that is not readily understandable becomes an exercise of dominance.
3.2 Practical Impact
Wren’s tone-deaf narrative, that as a clinician she favours a “playful, creative”, philosophical and academic approach contains no sense of urgency for a group of young people at high risk.
Stating that medical interventions close the door on the “rich and creative possibilities of self-invention in a gendered life”, Wren doesn’t address what this means in terms of power. The young person should unpack their gender identity, have it examined and left in a state of uncertainty. The clinician – especially the cis clinician – will never be expected to do the same.
Wren chooses not to examine the power inherent in a monopoly service such as the one she heads. In a state-funded NHS, a second opinion is not allowed, accessing private medical care means you lose your NHS entitlement. The clinician has almost all the power, a young person who is trans or gender-non-conforming has almost none.
Influential authors, such as Wren, are respected in their academic fields, and in practice. That respect is why we must talk about Wren’s article. Her position could be taken as accurate, and left unquestioned. But even as non-experts in the field of gender studies we found inconsistencies, errors and a fundamentally flawed research design.
In the UK, the outcomes for most trans young people are the responsibility of clinicians like Wren and those who work for her. This kind of writing will form the basis of future decision-making on behalf of our transgender youth.
It is imperative that it is clear, conceptually sound, ethically rigorous, attentive to power balances and imbalances, and contains at least an acknowledgement of its potential real-world impact.
*Who are we? We are allies and parents of trans and non-binary children and teenagers with academic backgrounds, but none of us specialise in gender studies. Tamara Hervey, LLB PhD FAcSS PFHEA, is Jean Monnet Professor of EU Law at the University of Sheffield, UK; Josella Hervey, BA, BPhil, is a specialist teacher of children and young people with visual impairment; Stella Hervey Birrell, BA, is a writer.
**Photo credit https://www.publicdomainpictures.net/en/view-image.php?image=264113&picture=abstract-art-5
Full Commentary on Bernadette Wren, Thinking postmodern and practising in the enlightenment: Managing uncertainty in the treatment of children and adolescents, published in Feminism and Psychology/ 2014, Vol. 24(2) 271–291. Originally submitted to Feminism and Psychology on the invitation of its general editor, following correspondence.
Tamara Hervey, Josella Hervey, Stella Hervey Birrell.*
*The authors of this commentary are allies and parents of trans and non-binary children and teenagers. We all have academic backgrounds, but none of us specialise in gender studies. Tamara Hervey, LLB PhD FAcSS PFHEA, is Jean Monnet Professor of EU Law at the University of Sheffield, UK; Josella Hervey, BA, BPhil, is a specialist teacher of children and young people with visual impairment; Stella Hervey Birrell, BA, is a writer.
In a world where fake news, cod science and click-bait headlines are easy to produce and circulate, the search for “hard”, authentic information becomes ever more fraught. In this context, the role of the peer reviewed journal article is crucial. Peer review is the gold standard of authenticity. It warrants that the theory, methodology, data and analysis in a published work are reliable, in the view of independent experts in a particular field of study. Research published in academic journals is, of course, primarily aimed at academic audiences: scholars in all disciplines write for their peers. Academic research is often published behind a pay-wall, making it inaccessible in practice to those who do not have an institutional affiliation that gives access, or significant independent resources. But the world of the academy does not sit outside of “the real world”: its “ivory towers” inhabit the same space as that of non-experts. Indeed, in many countries, including our own, and indeed that of Wren, academics’ work is expected to have an impact outside of academia.
As non-experts in gender studies, but as allies, who seek to understand the “state of the art” in trans scholarship and clinical practice, we readily admit to being avid readers of “soft” information that circulates through social media and other virtual channels. We are acutely aware, though, of the limitations of that type of information, and we treat it accordingly. So it was a particular delight for us to come upon a free-to-view, peer reviewed article, written by a leading name in the field in the UK, in a respected international journal, on the very topic in which we seek to educate ourselves.
That delight was, unfortunately, short-lived.
We were so struck by what we see – even as non-experts – as fundamental deficiencies in Wren’s research design, and thus analysis, that we took the unusual step of writing to the journal’s editors. They have generously suggested that we explain our views in a commentary. In what follows, we attempt to summarise Wren’s argument, and then to explain three fundamental and interlocking problems with it. These are epistemological considerations; the question of ethical or just clinical behaviour; and power relations. For each, we draw out the implications for real-life clinical situations and explain why it matters in practice.
Our summary of Wren’s argument
Bernadette Wren is the Head of Psychology at the Tavistock Clinic, which is England’s only NHS Gender Identity Development Service (GIDS) for children and young people. She has been involved with GIDS on and off since the 1990s, and as such occupies a highly influential position.
In this section we do our best to summarise the article. We say “do our best” because this is not an easy task. We return to the significance of the opacity of the prose below, but for now we observe that anyone who seeks to communicate does not succeed if it is difficult for an educated reader to understand. Academic communication is no different, and although we of course acknowledge that it is aimed at specialists, it fails in terms of impact outside of the academy if it cannot be understood outside that narrow audience.
Wren sets out to explore postmodernist theories as they pertain to the gender identity clinician working with young people. In particular she aims to engage with one key question: if we do not believe in gender and gender norms as being any kind of fixed concept, “how do we justify supporting trans youngsters to move toward treatment involving irreversible physical change?” She also uses the article to outline some more general ideas about how she sees the role of clinicians working with young people who are trans.
Wren begins by outlining her understanding of postmodernist thought, with a particular focus on what this means for theories about gender and for clinical practice. It seems to us that the key ideas she highlights include:-
- Postmodernist thought encourages the questioning of accepted ideas about gender; a rejection of the idea of gender as fixed, monolithic and linear; and the welcome ways in which this can help to depathologise being a trans person, and challenge harmful ideas about what constitutes “deviant” behaviour.
- The clinician is at one and the same time to bear in mind both that they “cannot always claim to be right” and also that their clients must be “prepared to accept ambiguities and indeterminateness” and “live with conflict and contradiction”. Clinicians and clients must both accept that there are “multiple plausible accounts of what is happening for the client”.
- “Psychic turmoil” resulting from the clinician’s duty to put narratives “relentlessly in question” (rather than simply “trying to help the client create some order in his or her [sic] narrative”) “must be weathered”.
Wren goes on to identify four possible grounds on which a clinician might reasonably seek the “certainty” to “justify” physical treatment for trans youth. She tackles each in turn, examining strengths and weaknesses, but ultimately concludes that none can provide “strong or evidential support” for such treatments.
The first ground, as we understand it, is what Wren calls “privileged access”, in which a clinician relies on listening to what she is being told by the young person. Because Wren does not agree that trans people are “the ultimate authority on their gender and their relationship to the body”, and because a young person’s story is necessarily subjective, their views are to be seen as, at best, one “story amongst many, with no privileged access to the truth” and at worst “moves in a dialogic game where [the young person] wishes their agenda to dominate”. Wren also claims that “gender and adolescence are characterised by fluidity, changeability and uncertainty”, implicitly more so than other stages of life, such as toddlerhood or menopause.
Next, neurobiological explanations are examined, where Wren puts forward a number of moot points in addition to her observation that, as this work is in its infancy, it can hardly be relied upon by clients or clinicians to justify any course of action.
Normative developmental accounts of trans identity are also rejected as a basis for any kind of action by the clinician. However, Wren observes that although clinicians should be “suspicious” of such narratives, they “should not necessarily be dismissive” of them.
Lastly, Wren suggests that empirical research into young people’s psychological adjustment is also deficient as a guide to the best course of action. For Wren such studies are “vulnerable to postmodernist critiques of modernist science”. Wren does acknowledge that many such studies “are useful in providing support for the practices of more liberal gender identity clinics”. Within this section, Wren can be understood as criticising “liberal ‘pioneering’ gender identity services” for young people, arguing that they will end up “privileging” those who wish to transition “at the expense” of other trans or gender fluid youth, despite what she describes as their “rhetoric” about “the value of exploration and the toleration of uncertainty”.
Wren argues that “from a postmodernist perspective” empirical psychological methods “can be seen to inappropriately mimic the natural sciences, thereby concealing the social processes crucial in their production”. She quotes Gergen (1992), that such findings can operate as “truth warrants for a priori commitments to particular forms of value-saturated description” and that, moreover, “no psychological study can rise above moral, ethical and ideological considerations”. As far as we are able to tell, whether Wren similarly discards the findings of psychological research into other areas is not explored.
Wren goes on to offer her suggestions for the clinician. It is her “passionate” belief that the “good” clinician must consider “ways in which endocrinological and other clinical services may present medical interventions as a way to side-step complex psychological dilemmas” (our emphasis). She comments on young people “apparently suffering from disrupted and unreliable attachments” whilst simultaneously calling for clinicians to “be alert to the dangers of a professional preoccupation” with causal and developmental narratives. She seems to be insisting that the clinician must “challenge the attraction of fixed categories and meanings” and compel clients “to try and evolve new meanings”. She laments the “struggle for effective communication” caused by “impoverished” linguistic resources for talking about trans experiences.
Other points she makes include her wish to promote an awareness of trans identities as being varied, in order to “challenge a passive relationship to diagnosis and classification”. It is unclear to us who is being criticised as “passive” and why.
Wren’s overall belief appears to be that she is steering a middle course between mainstream clinical opinion in the UK as it pertains to adults, the gender critical ideology of a vocal minority of theorists, and the gender affirmative practice which is now mainstream in Australia, Canada and the USA. But within the article there is no explicit exploration of her vision of what constitutes a “good” ethical clinician.
We are concerned about this article’s research design, its claims, and the practical consequences for the lives of young people who are being treated by clinicians who could regard it as authoritative. Overall, the research design of the article is muddled and lacking in analytical sharpness. The claims that the article makes, which rest on this design, are thus highly problematic.
In our position as allies, some of whom have experience of the system within which Wren works, we thought it would be helpful to parse the impacts of this article in a practical sense. Although we recognise that there is a place for academic thought and discussion, we believe strongly that clinicians should be aware of the practical results of their findings for vulnerable transgender youth. (We include young people who identify as non-binary or gender fluid under this heading.) We also know that critical theorists, including those on whom Wren draws, call for attention to the very practical aspects of power dynamics in the phenomena which they study.
1.1 Epistemological Considerations
Throughout the article, there is a certain hidden elision of categories that is represented at various points in the analysis. The article purports to set up as incommensurable “enlightenment” thought and “postmodern” thought. But its analysis also proceeds on the basis that they are somehow commensurable, in that they are in conflict or tension with each other in clinical practice. There is a hidden elision in Wren’s thinking, to the effect that she maintains that the incomparable are actually comparable. The hidden elision is represented, for instance, here:
“People with clinical responsibilities may experience a troubling tension between what influential postmodern theory suggests about the undecidability and fragmentation in sex and gender categorisations, and the need of trans people for a coherent and settled sense of self.”
That sentence sets in conflict/tension with each other a postmodernist concept (“undecidability and fragmentation in sex and gender categorisations”) and an enlightenment concept (“the need of trans people for a coherent and settled sense of self”). But they cannot be in tension or conflict: they are entirely different types of concept. The latter is – according to the former – a construction – a perceived “need” that comes from the structures that prevail in social interactions and even internal thinking. Postmodernist thinking does not recognise this as a “need” in an objective sense. It conceptualises it as a constructed “need” – one that might well be felt earnestly if we are talking phenomenologically, but which can nonetheless be deconstructed as another binary with “norm”/“other”, and the power relationships that this implies. So people with a “settled coherent sense of self” (the clinicians in this instance) are in positions of power over “others” who do not share that settled coherent sense of self, or who seek it, but for whom clinicians are the gatekeepers to finding it.
The consequence for the overall analysis, and what it means for clinical practice, is significant.
“The young people coming to the service where I work assert passionately uncompromising narratives about their self-identity as male or female, despite the conflicting ‘evidence’ of their sexed bodies. And for the clinician, charged with the responsibility of accepting a young teenager onto a physical treatment programme, it is especially tempting to want some grounding in certainty to justify one’s support of a client in gaining access to hormonal or surgical interventions. But where might this certainty be sought?”
Again, “grounding in certainty” is an “enlightenment” concept. By definition, one cannot find it in a poststructuralist concept.
1.2 Practical Impact
We would go as far as to say that Wren’s academic narrative throughout the article is airily dismissive of young people’s rights, identities, and narratives, and indeed the idea each young person will be seeking a different thing from Wren’s clinic. To understand this, we must explain a little of the context. All young people attending a clinic of this kind within the English NHS will have been subject to a long wait time and therefore will have already had several months of exploration. For some young people, to be expected to wait longer while a clinician grapples with academic concepts of postmodernism is unfair, not least because cisgendered young people are not expected to spend months explaining their settled gender. Wren’s lack of discussion of her role as gatekeeper, mentioned just once at the beginning of the article, but also as a champion and advocate for transgender youth, not mentioned at all, misses important practical implications of her position. Her failure to explain that at least some, and possibly many, trans young people are not attending her clinic for therapy, but for medical assistance, is misleading. Her insistence that the therapist should “help” or “offer” services is disingenuous in a monopoly service such as the Tavistock. It would be more accurate in practice and more honest to describe her actions as “to compel” or “to force” as this is the practical reality which her clients are facing. Even the word she uses – “clients”, rather than “patients” – is revealing: she does not think of her work as a medical professional treating her patients.
2.1 Ethics and Justice
Wren’s overall argument rests – in the end – on a notion of ethical or just behaviour on the part of the clinician. But there is no discussion of what notion or notions of ethics or justice she has in mind. We cannot stress this point enough. It is fatal to the research design. It is compounded by the missing or obfuscated discussions of power (already alluded to, and see further below). An undergraduate student drafting an essay in this way would be asked to rewrite it, bringing front and centre a discussion of ethics and justice, so that the reader can understand what standard/notion/concept of ethical and just behaviour sits behind the analysis and the practical advice that follows.
In the final sections of the article, Wren argues that in their clinical work, practitioners like her “narrate” emergent new “norms” (“the typical adolescent trans person”). In a state-funded service (as explained above, and further below, the significance of this is seriously underplayed throughout: it is barely mentioned), the positioning of such norms has practical implications. As Wren herself notes, clinicians like her are not the only discipline offering/claiming to narrate norms in this space. Without any discussion until the closing sections of the article of questions or notions of justice or ethics, Wren nonetheless argues that clinicians have a duty to practise ethical behaviour that promotes justice. And she claims that behaviour is achieved (this is implicit in the argument, though never made explicit) by following the bullet points set out by Wren, which have to do with recognising contingency of experience. If that happens, then decisions about access to treatment are somehow just/ethical: again without any explanation of how or why that might be so.
What Wren does in effect in this article involves using her privileged position to turn poststructuralism against the “enlightenment” accounts offered by young people – noting that there is a “received wisdom” about those narratives and what they are “supposed to” sound like. If we were to follow through the logic of that position, it would potentially involve inverting virtually all current practice about who gets access to hormones and other treatment. More worryingly, it would involve a return to a 19th century notion of the patient/clinician relationship, which predates all regulatory oversight of clinical decisions, and leaves the power solely with the clinician and their “professional” notions of ethics and justice (i.e. their personal preferences). Whatever difficulties might arise about the turn to patient autonomy in modern medicine, it has helped to address in some small way the (gendered) power imbalances between patient and clinician. Wren’s approach turns the clock back.
As mentioned above, authors of studies from the Netherlands are cited in the article as “… useful in providing support for the practices of the more liberal gender identity clinics”, but ultimately “vulnerable to the postmodern critiques of modernist science”. But there are vulnerabilities in Wren’s position in the same terms. It would have been more intellectually honest for Wren to recognise that her position is equally subject to such vulnerabilities.
While we accept that there is a place for theoretical as well as empirical work, we note that Wren offers no evidence from her own clinic about the effectiveness or otherwise of her approach, or tracking of the outcomes from her patients.
2.2 Practical Impact
Throughout the article, Wren treats “do nothing” as a neutral option. Her failure to explore the outcomes for young people for whom no clinical action is taken is noticeably absent from the article. In the context of Wren’s service, in practice, the medical interventions under discussion are the use of hormone “blockers” to prevent or pause physical changes caused by puberty, and cross-sex hormones to enable puberty in line with a young person’s gender identity. The relevant NHS England clinical commissioning policy notes the importance of balancing the harms of cross-sex hormones against the potential benefits, and states that a key consideration is the ability of the young person to “weigh in the balance the benefits and drawbacks” (NHS 2016:18). Harm caused by the use of blockers alone can include temporary problems with bone density and impaired growth, and social difficulties arising from a suspended puberty while, physically, peers are moving on: they have “largely been considered free of long-term harm” (NHS 2016: 13). Benefits include a “reduction in puberty-related anxiety” with all the social and psychological benefits this can bring, and a reduction in the desire for later interventions to undo pubertal changes, such as voice training, electrolysis, facial and tracheal surgery and mastectomy. Harm caused by cross-sex hormones can include sterility and, if a young person decides to change gender again, some effects which are either partially or completely irreversible, such as breast growth with oestrogen use, or a permanently lowered voice caused by testosterone. The benefits of the use of cross-sex hormones lie in their track record in treating gender dysphoria which puts young people at risk of “self-harm, despair.. relationship difficulties, social isolation and stigma” (NHS 2016:6) and in enabling a person to “pass”, reducing risk of assault and homicide by a stranger. Both treatments run the risk of causing harm if they are used in a young person who later decides to change their mind, although the level of harm caused is open to question where a purely social transition has been supported by the use of blockers. If withheld, however, harm may also be caused, “exacerbat[ing] distress.. depression, anxiety and suicidality, [and] social withdrawal” (Telfer et al 2018:5). In both cases, possible future harm might also usefully be set against harm in the present, given that young people have only one childhood and (in the UK) one chance at a free education.
Wren appears to argue that the clinician must seek justification for starting a young person on one or both of these medical interventions, but that she need not question a decision to withhold such treatment. There are of course both benefits and drawbacks to medical interventions. There can be a range of answers to the question “does the good outweigh the bad?” – perhaps a different answer for every young person – but the failure to even ask the question is surely inexcusable in a “good” clinician.
Central to Wrens’ argument – though not explicitly stated – is the notion that a “good”, ethical clinician should be at the heart of decision-making. Wren’s insistence that clinicians must let go of the notion of “always being right” is not sufficient to override the fact that, in her view, all other grounds for “certainty” or “justification” are inadequate, and that therefore everything rests on the clinician’s assessment of the right course of action.
It is all the more important, then, for the reader, that Wren’s code of ethics should be made explicit. And yet it never is, at least not in its entirety. Indeed the central role of the clinician’s own sense of what is right could be said to have disappeared from Wren’s view. Without any explicit discussion of the ethical standpoint on which the analysis rests, it is impossible for a reader (or anyone else, for instance, a regulator or professional association) to assess whether a “good” clinician acts on anything other than their own personal preferences.
What can we discern from the article about Wren’s view of the ethical clinician? Some elements seem at least implicit in the narrative. It seems that central to the role of Wren’s good clinician is the idea that she should go beyond the “narrow” scope of “assessing, diagnosing, classifying, referring for specialist treatment”. The clinician should be doing more than “coming up with an increasingly ‘accurate’ description of gender variant identity and then working out how best to manage it”.
Here we again want to bring to the fore that which Wren has not said rather than what she has. Missing from Wren’s account of the good clinician’s role is any sense of the pain and sadness that most trans youngsters still experience. The reader of Wren’s account would be forgiven for thinking of the clinician’s role being to facilitate fascinating, leisurely, philosophical and theoretical discussions, albeit with teenagers who at times seem remarkably ungrateful for them. There is no sense of urgency and any “psychic turmoil” is apparently shared equally between clinician and client. There is nothing in the article of the reality faced by many trans youth and their families: sadness, shame, isolation, bullying, assault, suicidality, self harm, lost education and missed opportunities. Wren’s good clinician is not encouraged to remember that families are turning to her, a physician, for help in what may well feel to them like an emergency in their child’s life.
Linked to this element of a good clinician’s role is the idea that their work should “[help] to construct the idea and the concept of transgender”. This strand runs through Wren’s argument and she goes so far as to state that clinicians “should be accountable in a process of finding and inventing new ways to think about gender and transgender”. Wren does not go into enough detail to allow the reader easily to evaluate this idea. It could be argued for example that clinicians are only in a position to take a lead in this insofar as they provide a platform for the real stakeholders, in this case trans people themselves. But far from appearing as their advocate, Wren’s account undermines and dismisses the voices of trans youngsters. At worst, Wren describes young people here as demanding and entitled, they are playing a game, they are trying to manipulate. This renders her call for good clinicians to “configure transgender in our time” deeply problematic, certainly in terms of accounts of ethics and justice that call for the powerful to listen to the less powerful. But of course, without knowing what conception of ethics and justice underlie Wren’s account, it is impossible for the reader to assess.
Wren praises the ways in which postmodernist thinking has helped de-pathologise “non-normative” practices such as being trans, and addressed “important social and ethical issues” such as what constitutes normal and “deviant” behaviour. However for Wren the thinking stops there. There is nothing here to suggest that a clinician should apply the theory and get to grips with what it means for young people who are trans. For example, she might from this point have asked, if being trans cannot be seen as a mental illness or a type of deviance, what does this mean for my role as a clinician? If we now see being trans as part of the spectrum of normal human behaviour in adults, what does that mean for the ways in which a good clinician should respond to a child who says they are trans? If trans adults are telling us that they knew they were trans as youngsters, is a period of dysphoric misery a necessary part of the diagnostic procedure, or could a good clinician actually do better than this?
For Wren, though, at least by implication, a good clinician neither asks nor answers such questions. The practical impacts are plain: continued “do nothing” often means continued sadness, increased risk and untreated dysphoria.
The concept of power is central to mainstream postmodernism and poststructuralism. It is surprising therefore, that it is either utterly absent or obfuscated in much of Wren’s analysis. Power is recognised in her account of the binaries that characterise modernist/enlightenment thought. But it is missing entirely from the article’s abstract; and it is missing from the parts towards the end of the article which purport to be the consequence for clinical practice of the analysis that has gone before. Here we make four points about how power is hidden in the analysis.
First, and most strikingly, on reflecting on the absence of power from the analysis, we noticed that an especially troubling aspect of this article is the language Wren uses when writing about her young clients and their families, and her attitude towards them that it suggests. The way Wren describes young people could be construed as an attempt to silence them by undermining the worth of what they have to say. When she writes in this vein, there appears to be no consciousness on Wren’s part of the imbalance between the clinician’s power and the de facto powerlessness of young trans people and their families who use the NHS.
By setting the therapy she provides in opposition to the determination of young people – who she describes as “otherwise rational and reflective” [our emphasis] – to “define themselves irreversibly with the help of powerful chemicals and … surgery” makes the young people she is tasked with helping sound headstrong and lacking in intellect. It is worth noting that this reference to surgery has no place in this article except as a rhetorical device – since the Tavistock can and will never refer a young person for surgery as this is solely the domain of adult services. Incidentally, even mentioning surgery rhetorically in this context (which Wren does more than once) could be constructed as a power-play: Wren knows that it is not a reality, but the reader, for instance from another country (or discipline), may not.
When she states “I especially recognise the comforts of certainty and coherence when I see young people apparently suffering from…disrupted and unreliable attachments [our emphasis]”, this suggests that a desire for help to secure certainty and coherence of the self is framed by Wren as a lazy, cowardly, infantile search for “comfort”. Yet this certainty is the basis on which, for example, reforms to the Gender Recognition Act are based, and is a cornerstone of trans rights. Attachment disorders are implied here as an explanation for a trans identity, but never stated or justified.
Second, power is noticeably absent in the discussion of epistemologies:
“One kind of grounding is based in the confidence of the young people that their own subjective experience is the best guide to making irrevocable decisions about treatment. Three kinds of grounding have a basis in empirical research work, versions of which have found their way into the public discourse about transgender and may be drawn on by young people and their parents who are often avid consumers of internet-based sources of information.”
The power dynamic between the cis/settled identity “norm” of the clinician (who is also a gatekeeper to treatment) and the “other” of the patient/client has disappeared entirely from the author’s account. Which means that, when Wren goes on to write about the conviction her clients express/experience, as a particular “kind of knowing”, the power aspects of claiming that this “kind of knowing” is deviant/“other” in some way are also absent from the analysis. For Wren, when her young clients “report a prolonged and intense experience of the wrongness of the body, this can hardly be understood as a kind of evidential knowing”. [our emphasis: but the way Wren writes suggests here that it seems unlikely]. By referring to the “subjective experience” of the young people themselves, Wren’s postmodernist awareness that everything is subjective disappears, as the way she writes suggests that she means this in a pejorative sense.
Moreover, Wren’s description of the knowledge brought to her clinic by her clients and their families suggests she is dismissive of their efforts. She states, as quoted above, that empirical research studies “may be drawn on by trans young people and their families who are often avid consumers of internet-based sources of information” [our emphasis]. Families and young people who try to gain some agency by doing their own research may not agree with Wren’s position, but it does not make their informed debate less relevant, or the “way of knowing” they bring any less or more subjective than the “way of knowing” of Wren’s “good clinician”. But there is no recognition of this in Wren’s account. Implicitly, the clinician’s knowledge is “real”: again a hidden power-play.
Third, Wren often appears to contradict herself within the article when failing to talk about how power influences client/clinician relationships. For instance,
“In my experience, most trans young people are not interested in the possibility of a complex, more or less speculative, developmental account of their gender identity – unless this unequivocally underpins the legitimacy of their wish for, and entitlement to, help to physically transition. Many will acknowledge the impact of early experiences or particular relational patterns (traumatic or otherwise) on their sense of self – but not on their gendered identity,”
This implies intellectual dishonesty on the part of the young people. But it also sits uneasily with Wren’s insistence elsewhere that complex developmental accounts should not be assumed to be relevant or necessary. She claims that a simplistic model of this kind should not be applied – but when young people don’t want to apply such a model, they should be viewed as suspect and probably trying to avoid the truth.
Fourth, while we do not wish to make too much of this point, the opacity of the language used throughout the article could also be considered a kind of power-play. Especially if it is brought into the clinic, to communicate in a way that is not readily understandable to others can be an exercise of dominance.
In her failure to discuss or acknowledge a power imbalance between clinician and client, and the silencing of trans voices throughout the article – despite her unrivalled access to those narratives – Wren’s argument is fundamentally lacking.
3.2 Practical Impact
Wren makes no reference to the lengthy waiting times experienced by all young people who seek clinical assistance for their gender dysphoria. This may seem overly simplistic, but to treat the narratives of young people who have waited several months for an appointment with this kind of disrespect fails to acknowledge the process that a young person will have been facilitating on their own or with their family for some time before they meet the clinician.
Wren’s tone-deaf narrative, that as a clinician she favours a “playful, creative”, and indeed philosophical and academic approach, contains no sense of urgency for young people in dysphoric misery, who are at a high risk for a range of unfavourable outcomes.
Wren is aware that, as Harris (2004, 2005) has it, gender identity is an important “frame” helping us in the business of “doing various psychic and relational tasks”. She also comes back repeatedly to her clients’ need for “a settled sense of self” and the necessity of “various kinds and degrees of stability” which are “required to sustain a liveable life”. She fails, however, to examine two key ways in which the power imbalance inherent in the relationship between GIDS clinicians and their clients renders these assurances almost meaningless when they are taken in the context of the whole article.
Wren repeatedly stresses the desirability of ensuring the clinician “always… resist[s] speaking one-dimensionally”. She states that medical interventions can be criticised as closing the door on the “rich and creative possibilities of self-invention in a gendered life”. For Wren, clients “must” accept that there are “multiple plausible accounts of what is happening” for them. In fact, she asserts, “treatment is likely to aim towards helping clients … to bear uncertainty and … develop the capacity for critical reflection”, and should “promote the idea of tolerating and living with conflict and contradiction.” The difficulty here is that, as Wren herself notes, “… young people may prefer to assert their gender identity as a ‘given’, not something to be unpacked and potentially reassembled”. Wren’s failure is not fully to address what this means in terms of power. The young person must submit to having their gender identity unpacked, examined and, if possible, never fully “reassembled” but left in a state of contradiction and uncertainty. The clinician – especially the cis clinician – will never be expected to do the same. If the clinician (or anyone else with a cis identity) wants to explore the “rich and creative possibilities” of living outside accepted gender norms, that will be entirely a matter of their own choice. There is a fundamental imbalance of power between those whose cis identities allow them to inhabit the world as it currently is with ease, and those with trans identities whose experiences of the world are conditioned by the cis norm.
Wren also fails entirely to examine the power inherent in the clinician’s position in a monopoly service such as the one she heads. In practice, this is a situation where almost all of the power lies with one party in a clinical relationship. In a state-funded NHS, where to ask for a second opinion is not allowed, and to access private medical care means you are ejected from the NHS service, the clinician has almost all the power, and a young person who is trans or gender-non-conforming has almost none.
For Wren, the clinician will “help,” “offer” or “promote” certain ways of living with a trans identity but in practice, in a monopoly service, clients are compelled to live in these ways only. The clinician who will “challenge the attraction of fixed categories and meanings to help clients to try and evolve new meaning” or “offer a reflexive and thoughtful space to help clients explore the architecture and borders of their gendered world view” will in fact be insisting that clients go on a journey that they (the clinicians) themselves never have to face. The client is of course free to refuse, but not if they want access to the medical care that is the accepted treatment for gender dysphoria.
Influential authors, such as Wren, are rightly respected both in their academic fields and in practice. That respect is at the heart of our desire to provide commentary on Wren’s article. Wren’s position and arguments may be taken as accurate, and left unquestioned. But as we noted in our introduction, we were disappointed to find inconsistencies, errors and a fundamentally flawed research design in a publication in this peer-reviewed academic journal. These deficiencies were obvious to us, even as non-experts in the field of gender studies, once we had overcome the initial difficulty of understanding the argument that Wren advances.
In the UK, in the context of NHS care (rather than the private sector where considerable expense deters all bar a small minority), the outcomes for trans young people are the responsibility of clinicians like Wren and those who work for her. As Head of Psychology of the UK’s only Gender Identity Development Service, Wren’s power as de facto gatekeeper of treatment is considerable. If the treatment available on the NHS for trans young people in the UK is based on a professionally determined ethic of continued “playful” provisionality, that should be defended on its own terms, rather than implicitly justified by a postmodern approach to gender as a constructed category. In practice, therefore, there is more urgency than this article suggests to ensure that the thinking and academic writing which will form a basis for future policy and clinical decision-making is clear, epistemologically sound, ethically rigorous, attentive to power balances and imbalances, and containing at least an acknowledgement of the real-world impacts they should effect.
Gergen K (1992) Towards a postmodern psychology. In: Kvale S (ed.) Psychology and Postmodernism. London: Sage, pp. 17–30.
Harris A (2004) Gender in Linear and non-linear History. Journal of the American Psychoanalytic Association 53(4): 1079–1095.
Harris A (2005) Gender as Soft Assembly. Hillsdale, NJ: Analytic Press
NHS (2016) Clinical Commissioning Policy: prescribing cross-sex hormones as part of the gender identity service for children and young people, at https://www.england.nhs.uk/commissioning/wp-content/uploads/sites/12/2016/08/clinical-com-pol-16046p.pdf
Telfer, M M, Tollit, M A, Pace, C C, & Pang, K C (2018) Australian Standards of Care and Treatment Guidelines for Trans and Gender Diverse Children and Adolescents Version 1.1. Melbourne: The Royal Children’s Hospital; 2018 https://www.rch.org.au/uploadedFiles/Main/Content/adolescent-medicine/australian-standards-of-care-and-treatment-guidelines-for-trans-and-gender-diverse-children-and-adolescents.pdf
Wren, B (2014) Thinking postmodern and practising in the enlightenment: Managing uncertainty in the treatment of children and adolescents. Feminism and Psychology 24(2): 271-291
A Leave.EU Tweet on 3 August 2018 claims that “EU regulations currently prevent doctors from qualifying before five years of training. Just one of countless examples of EU “market building” that do nothing of the sort, instead causing disruption and impairing UK policymakers.” It’s citing Health Minister Steve Barclay, and a ‘Westmonster’ blog.
This is yet another example of pro-Brexit propaganda that sounds beguilingly simple and obvious but turns out to be nothing of the sort.
It is so for four main reasons:
First: It is wrong about the causal relationships between EU law and current UK practice. It forgets that the UK has been a powerful and influential member state of the EU for decades. As such, the UK has had important influences on the way EU law is in this area – as in many other areas. Current UK law on medical qualifications does indeed comply with EU law. But effects of EU law on routes to medical qualification are limited, and mainly indirect. The vast majority of the detailed contents of medical curricula are determined nationally. The length of time it takes to qualify for a particular medical profession differs in different EU member states.
It’s true that doctors qualifying in the EU need to undergo a certain agreed amount of training: the UK agreed those rules as an EU member state. If the UK wanted to make changes to the rules on medical qualifications as a member of the EU it could. Indeed, the UK already did, particularly in the reforms that led to the new EU laws adopted in 2005.
So there’s no new opportunity here, at least not in the sense implied in the minister’s statements.
Second: This kind of statement vastly over-simplifies rules about qualifications of different types of medical professionals. EU rules about doctors are on one model, where there is a set amount of time and a broad brush agreement on the content of what they need to learn in order to qualify. This isn’t the case for other medical professionals. For them, there is significantly more control by the home state, subject to the obligation to recognise equivalent qualifications from other EU countries (and the corresponding duty of other EU countries to recognise UK qualifications). The UK – along with every EU member state – is permitted to check linguistic competency of medical professionals working in the UK.
Third: The statement assumes that quicker is better and cheaper. There is a good reason that it takes time to qualify as a medical professional: medical professionals affect people’s health, dignity and lives. Less well qualified medical professionals might not necessarily be cheaper for the NHS longer term. I hardly need to elaborate further here, surely?
Fourth: The idea that we could gain a ‘Brexit benefit’ from shortening qualification periods for medical professionals is wrong about who our doctors and other health professionals are, and about how medical practice, and bio-science more generally, works in today’s world. Bio-medical science is an international career. The UK does well, at the moment, in attracting professionals from other EU states to the UK. If we depart from alignment with EU qualifications, then we lose an important group of collaborators, and people who could work in the UK as medical professionals.
It is inconceivable that the UK could be ‘self sufficient’ in medical professionals – the numbers just do not add up – as the Nuffield Trust has convincingly shown in its detailed research.
Even if UK were to invest an unprecedented amount in educating medical professionals – and bear in mind that there is no commitment whatsoever from this, or any other, government to attempt to do so – it still wouldn’t give us access to the international collaborations that we currently participate in through the EU.
In short, this kind of misinformation that seems too good to be true is just that: too good to be true.
Parliament (both Commons and Lords) is concerned about any worsening of health post-Brexit and will seek to hold the government to account. The current government itself agreed in the debates on the EU (Withdrawal) Bill that Brexit should ‘do no harm’ to health. These kinds of statements about supposed ‘Brexit benefits’ need to be carefully scrutinized against that standard.
The inestimable Steve Peers has published this on his blog. I’m very grateful to him, and also for his comments and suggestions.
I was invited to speak at the University of Oxford, Faculty of Law’s Brexit Symposium on Friday 23 February 2018. Here’s the text of my talk.
This research is supported by ESRC Brexit Priority Grant ES/R002053/1. Some of the text below will be published by UK in a Changing Europe soon, to support its Brexit and the NHS event. Thanks, as ever, to Sarah McCloskey, for outstanding research assistance.
Why focus on legal and policy aspects of Brexit for health?
Health matters: to the UK population; to the populations of other EU countries; to protect human dignity and as a basic provision of solidarity; some even say as a human right. Health matters to the EU referendum debate and its consequences.
Health is also the perfect microcosm for studying the legal and policy dimensions of Brexit. That’s because, when you consider general legal questions in a specific policy context, they take on a considerably sharper focus. Narrowing the scope of inquiry down to health gives us more specific clarity on what Brexit means, and what legal arrangements will be disrupted.
Health law goes across all the traditional aspects of EU law – thus:-
Legal and policy aspects of Brexit for health also go across all areas of EU law, and of equivalent categories of domestic law.
In this brief talk, I focus on three things: what we know; what we don’t know; and what might happen. All focused on health, but of course also generalisable to other social and economic sectors, or aspects of post-Brexit realities.
In all of this, it matters what kind of Brexit we have. Will there be a Withdrawal Agreement at all? Mixed political messages mean it is difficult to read into legal outcomes. Here are some possibilities. And each of these have different implications for what will be legally possible in the future.
In the unlikely event anyone is thinking, ‘of course there will be a Withdrawal Agreement’ or ‘the UK will be able to negotiate a ‘deep and special relationship with the EU in the future’, remember ‘nothing is agreed until everything is agreed’ for the Withdrawal Agreement. Don’t forget the island of Ireland, which is far from resolved. Further, there is a significant gap between the position of the UK government (e.g. Davies’ speeches last week) and the EU position (outlined in these slides which were published by the European Commission on 21 February 2018).
In all of this, it also matters what the future relationship(s) EU-UK will be. Here is Barnier’s ‘steps of doom’ slide (thanks, Steve Peers, for the description), from 15 December 2017.
The slide shows 7 possible EU-UK relationships. These are real models, in the sense that they are existing trade agreements between the EU and various other states or groups of states. Achievement of the UK government’s desire to enter into a ‘deep and special relationship’ with the EU is of necessity bounded by what is legally and practically possible, both for the EU and for the UK. Existing models, rather than vague, unicorn-like, ‘cake and eat it’ aspirations, strike me as a sensible place to begin.
So, as Steve Peers, and others, including me, put it – the desired ‘deep and special relationship’ is hard to believe in. It has a mythical, unicorn-like quality.
Anyway – to health – First, let’s consider –
What do we know?
In terms of what we know – in the short to medium term, people are the biggest challenge. NHS and social care staffing relies on EU/EEA nationals.
Free movement of people within the EU has had a significant impact on patterns of staffing within the NHS. Approximately 200,000 EU27 nationals work in the wider health and care sectors – about 5% of the total workforce. EU27 staff are pivotal to the operation of the NHS, especially in London, the South East of England and Northern Ireland.
The UK has never trained enough doctors for its own needs – some 28,000 doctors are non-UK nationals, around a quarter of the total. NHS England alone depends on some 11,000 doctors from the EU27, who make up 10% of all doctors. Add in the further 20,000 NHS England nurses and 90,000 social care staff from the EU27 and the sheer scale of reliance on EU migrant workers becomes clear. In anticipation of a “Brexit effect”, the NHS has already invited bids for a £100 million contract to recruit overseas doctors into general practice. And this is in a context in which the NHS already has many unfilled posts. Restrictive rules on recruiting non-EU nationals are already causing severe problems for the NHS; extending these to EU nationals will aggravate the problem.
The uncertainty posed by the Brexit negotiations to date has already affected staffing levels: the Royal College of Nursing reported a 92% drop in registrations of nurses from the EU27 in England in March 2017, and attributed this, at least in part, to “the failure of the government to provide EU nationals in the UK with any security about their future”.
And we know that leaving the EU will be bad for research science and technology too. The loss of EU nationals among NHS and social care staff is also being replicated in other parts of the health sector, including research and innovation. One in six university researchers are non-UK European nationals – their position is equally insecure to that of the NHS workforce.
Potential threats to NHS staffing levels go beyond immediate concerns about immigration. Decisions about future regulatory alignment in services will determine whether the qualifications of medical professionals will continue to be mutually recognised between the UK and the EU27. Some see this as an opportunity to reset national standards. However, this is often based on a misunderstanding of the autonomy the NHS already enjoys. Rules related to linguistic capabilities have been in place throughout the UK’s membership of the EU to secure patient safety.
But there is clearly a trade-off between patient safety as served by restrictions on healthcare professions and patient safety as served by having a workforce sufficient to meet the country’s needs.
EU nationals living in another EU country can access the treatment they need (S1 registration). Around 190,000 British pensioners live in the EU27 and rely on these reciprocal healthcare arrangements. The UK contributes about £500 million annually towards their care and receives £50 million for care provided to EU nationals in the UK. Average treatment costs for UK pensioners in the UK would be about double that of paying for their treatment elsewhere in the EU. If the UK did not conclude a Withdrawal Agreement with the EU, and were all these pensioners to return to the UK, the NHS would need some 900 additional beds to ensure sufficient capacity.
Just over one third of UK citizens in Spain are aged over 65. Retired UK citizens in Spain currently rely on EU law to secure residence, pensions, and, crucially, access to healthcare, with minimum administrative formality and no extra cost to themselves. Under the Spanish legal framework, it is extremely difficult for non-EU/EEA nationals to access the Spanish NHS, unless they are either working or have individually subscribed to an expensive special agreement with the Spanish social security authorities.
Michaela Benson at Goldsmith’s project shows the distress that many of these vulnerable individuals feel, as well as their resourcefulness in tackling the predicament they are in.
Under the terms of the joint report, those already in another EU member state would still be covered by the EHIC. Until a legal text is agreed, it is not clear what will happen on the island of Ireland. For everyone else, the EHIC may not continue, except perhaps during the transition period.
It is possible that the UK will negotiate access to the EHIC as part of a future EU-UK relationship. Should it fail to do so, UK nationals who want to travel to the EU in the future—some 53 million visits from the UK to the EU27 take place each year—will have three options: they can purchase private travel insurance, travel without insurance and risk significant healthcare bills or simply not travel at all. The Association of British Insurers (ABI) has estimated that, if the EHIC is withdrawn, the cost of treating UK citizens abroad will be about £160m. Some patients, e.g., those with long term conditions or disabilities, will not be able to afford travel insurance.
If there’s no Withdrawal Agreement, and even if there is, in the medium term, in addition to people, products are also a big challenge.
Supply chains for pharmaceuticals, medical devices and substances of human origin may be disrupted. For instance, no kidney dialysis tubing is currently made in the UK. If we have a disorderly Brexit, the UK has about four or five months of stock of most drugs, which is not enough to ensure a continuity of supply in the case of emergencies. Stockpile planning may be necessary for substances with a short expiry date, e.g. complex biologics.
The terms on which we trade with the EU for those products will determine the time new products take to reach the UK market, and the cost to the NHS. For instance, Canada and Australia have mutual recognition agreements with the EMA, but wait 6-12 months on average more than EU or US for new drugs to come to market. EU law on ‘parallel trading’ prevents the dividing up of the internal market in pharmaceuticals using IP rights. Parallel trade saved the NHS €986.2 million between 2004 and 2009 …
The UK relies on EU systems for pharmacovigilance, for information sharing on harmful medical devices, for organ sharing, for data sharing where patients are involved in clinical research … I could go on and on.
Legal and policy aspects of Brexit for health have UK facing/inward facing implications too. Here is an attempt, led by the Faculty of Public Health, to make sure that post-Brexit, the new UK legal position is one of ‘do no harm’ to health. It seeks to secure accountability of executive action under the EU (Withdrawal) Bill.
Martin McKee & I wrote about it in the Lancet recently.
And of course, health is a devolved power, so the debate about repatriation of powers to Scotland, Northern Ireland, and Wales post-Brexit applies to health.
So that’s some of what we know. But there’s a great deal that we don’t know.
What don’t we know?
What would happen to health in any of the possible future EU-UK relationships/post-Brexit scenarios? How does health – patients, professionals, products, substances of human origin, services, systems – fare under different types of trade agreements? Here it is really difficult to find clear information about the legal implications of different types of agreements, or about patterns of trade that affect health.
One of the few published empirical studies on health effects of FTAs showed that NAFTA was strongly associated with a marked rise in high fructose corn syrup supply and likely consumption in Canada. Lower tariffs lead to increased imports of energy-dense products like high fructose corn syrup, which lack nutritional benefits: so-called “empty calories.” Lower prices encourage manufacturers to use these products in cheap processed food, with consequences for obesity and the health effects that flow from it. The study provides evidence that even a seemingly modest change to product tariffs in free trade agreements can substantially alter population-wide dietary behaviour and exposure to risk factors.
What’s going to happen?
A ‘bespoke Brexit’ might be the only way politically that the future relationship between the EU and the UK can be achieved or conceptualised. This may well not have any systemic aspects at all – rather than ‘a relationship’ it would be based on a series of relationships in the plural, all governed by ordinary international law. We can legally conceptualise this – these agreements exist between the UK and other countries, and between the EU and other countries.
After all, we can overstate the notion that the EU is a rules-based system – there are plenty of examples of what Deirdre Curtin first named as an EU of ‘bits and pieces’, based on political expediency and practicality. The EU has always held in tension integration and diversity. So maybe we need a new legal conceptual framework to understand this – what Jo Shaw has called an ‘ever looser union’.
In general, perhaps, I think we may want to be thinking in terms of relationships, and how we might broker those. This is certainly the case for an area like health law and policy, which cuts across the ‘standard’ categories of EU law, and which isn’t ‘at the table’ in the Brexit negotiations.
Here is one example.
Northern Ireland and Ireland provide perhaps the best example of how challenging Brexit is to health, health care and social services.
Effectively there is one healthcare workforce on the island of Ireland. People cross the border every day to provide health care services. They can do this easily because their rights to do so are underpinned by EU law. The Common Travel Area’s legal provisions in effect presume EU membership.
Services designed for both sides of the Irish border meet collective healthcare needs in the area. Sexual health, diabetes and eating disorders are all treated in this way, with integrated services offered to patients in both Northern Ireland and the Republic of Ireland. For instance, the radiotherapy centre at Altnagelvin Hospital in Derry/Londonderry is accessible to patients in County Donegal in the Republic who would otherwise have to travel long distances – to Dublin or Galway – to obtain the same treatment.
EU integration has also enabled economies of scale across the Irish border, such as the sharing of key healthcare services, particularly where specific expertise and facilities are not viable in a small region such as NI. In 2014 the NI and Republic of Ireland health ministers agreed that there would be a joint child heart facility established in Dublin. Between January and September 2017, 23 children travelled from NI to Our Lady’s Children’s Hospital in Dublin. Such cooperation is facilitated by the EU Directive on the mutual recognition of professional qualifications and on EU rules on data protection that enable the sharing of patient details.
So the relevant professional organisations for midwives have entered into a formal partnership agreement, which includes shared training, and is explicitly intended to ‘Brexit-proof’ existing collaboration.
Key message: Brexit is bad for health. But, as my colleagues and I found, and published in the Lancet, the risks of Brexit for health systems vary significantly depending on what type of Brexit we have.
The law matters. The ways we have conceptualised EU law – and EU health law – are likely to be changing, as we remove ourselves from the system of EU law, to a looser collection of agreements with the EU on a range of different topics.
All of this will take time.