Scottish Children’s and Young Person’s Commissioner supports trans children


The Scottish Children’s and Young Person’s Commissioner submitted to the recent Scottish consultation on Gender Recognition outlining the clear legal reasons why transgender children cannot be omitted from a route to Gender Recognition.

The Commissioner’s role is “to protect and safeguard the human rights of children and young people in Scotland, with particular reference to the United Nations Convention on the Rights of the Child (UNCRC)”

The Commissioner provided important context to the consultation

Background of this proposal: It is important to understand what is being proposed by this legislation. This does not impact upon children and young people’s right to affirm their gender identity in day to day life, including in schools. These rights are already enshrined in law via the Equality Act 2010 and many young people in Scotland have transitioned already. Likewise, these proposals do not impact on children’s right to access and consent to medical treatment, which was enshrined in Scots law by the Age of Legal Capacity (Scotland) Act 1991.

The current consultation focuses solely on the legal process through which that transition is formally recognised by the state and it is vitally important to young people who are transgender, non-binary and intersex because of the rights and protections that formal recognition of gender identity affords.

The Commissioner then outlined relevant international legislation:

The UNCRC and gender recognition: The UNCRC does not directly address the issue of legal recognition of gender identity. A number of articles are nonetheless relevant to this consultation. In particular:

  • Article 3: This requires that in all matters concerning a child, their best interests shall be a primary consideration.
  • Article 6: States parties are obliged to ensure to the maximum extent possible the survival and development of the child.
  • Article 8: Outlines children’s right to preserve their identity.
  • Article 12: Requires States to provide all children who are capable of forming their own views with the right to express them and for due weight to be given to their views in accordance with their age and maturity.
  • Article 16: Provides children with a right to privacy.
  • General Comments 12 (on the right of the child to be heard) and 20 (on the Rights of the Child in adolescence) and the concept of developing capacities through which children exercise their rights. Both General Comments elaborate on the concept of the evolving capacities of the children, a concept which is explored in full in the UNICEF Innocenti/Save the Children publication The Evolving Capacities of the Child by Gerritt Landsdown .

Other Human Rights Instruments: The International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights (ECHR) are also relevant to this consultation. Both contain articles providing rights to privacy that are extremely close to those contained within Article 16 of the UNCRC. Article 8 of the ECHR has been successfully used to establish a right to legal recognition of gender through the European Court of Human Rights. As all other human rights instruments apply equally to children and adults, this can be interpreted as providing children of all ages with an equal right to recognition.

The Yogyakarta Principles: Although the Yogyakarta Principles do not have the same status as international law as human rights treaties, they affirm existing human rights in the context of sexual orientation and gender identity. They are an important means through which existing treaties can be interpreting and set an international standard of good practice with regards to LGBT rights. They were agreed by a panel of experts, in 2006. In 2017, 8 Additional Principles were added to the original 29. Of these, Principle 31 is relevant to this consultation. It states: Everyone has the right to legal recognition without reference to, or requiring assignment or disclosure of, sex, gender, sexual orientation, gender identity, gender expression or sex characteristics. Everyone has the right to obtain identity documents, including birth certificates, regardless of sexual orientation, gender identity, gender expression or sex characteristics. Everyone has the right to change gendered information in such documents while gendered information is included in them.

While sex or gender continues to be registered: iii. Ensure that no eligibility criteria, such as medical or psychological interventions, a psycho-medical diagnosis, minimum or maximum age, economic status, health, marital or parental status, or any other third party opinion, shall be a prerequisite to change one’s name, legal sex or gender;

The Scottish Consultation

The Scottish Consultation asked two specific questions on under 18s:

Question 5 The Scottish Government proposes that people aged 16 and 17 should be able to apply and obtain legal recognition of their acquired gender. Do you agree or disagree?

The Commissioner’s answer was:


In 2016, the UN Committee of the Rights of the Child issued General Comment 20 on the implementation of the rights of the child during adolescent. General Comment 20 outlines the way in which adolescents use “increasing levels of agency to take responsibility for their rights” in line with their evolving capacities as outlines in Article 5 of the UNCRC. Whilst this proposal increases the opportunity for transgender children to realise their rights, it is out of step with existing Scots law with regard to the recognition of capacity in children and young people, which more commonly presumes capacity from the age of 12 and provides children below that age the ability to exercise rights where they have capacity. This is discussed further in our answer to question 6. Notwithstanding that, the extension of these rights is particularly important for this group who are at a stage of life when they are transitioning from school to college, work or university; from childhood into adult life. It allows them to make these transitions with the protections that legal recognition of their identity provides them and reduces the potential for accidental outing, for having to explain their transition and from the additional administrative burden that accompanies changing multiple administrative records.

Question 6 (This question asked “Which of the identified options for children under 16 do you most favour? Please select only one answer.

  • option 1 – nothing for those under 16
  • option 2 – court process
  • option 3 – parental application
  • option 4 – minimum age of 12
  • option 5 – application by capable child

The Commissioner’s answer:

We support Option 5 (application by capable child). This option is most in line with the Age of Legal Capacity (Scotland) Act 1991 and the Yogyakarta Principles and Article 12 of the UNCRC, as interpreting via General Comments 12 and 20 of the UN Committee on the Rights of the Child. Scots law, in the Age of Legal Capacity (Scotland) Act 1991, has a longstanding presumption that children have the capacity to instruct a solicitor and consent to medical treatment from the age of 12. It is possible for a child under this age to exercise these rights if they have the capacity to understand what is involved in that decision. Young people seeking legal recognition of their gender identity may already have exercised these rights, in other aspects of their transition including change of name and consenting to medical treatment relating to their transition. It would be illogical for parental consent to then be required for legal recognition of a transition the young person has been able to effect without it. Article 2 of the UNCRC states: States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind…” Denying transgender, non-binary and intersex children the ability to exercise their right to legal recognition, or making it contingent on parental consent, may constitute a breach of article 2. Likewise, Yogyakarta Principle 31 (C iii) requires that States: Ensure that no eligibity criteria, such as … minimum or maximum age, economic status, health, marital or parental status, or any other third party opinion, shall be a barrier to change one’s name, legal sex or gender. Save for capacity, children and young people should not be subject to different or additional tests than adults. The process must still be self-declaratory. We are aware that Ireland has introduced a process for under 18s that differs significantly from that for people 18 and over. We would be very concerned if this was the approach taken in Scotland. Any test of capacity should be consistent with those in section 2(A) and 2(4A) of the Age of Legal Capacity (Scotland) Act 1991. We have consistently expressed out concern with the test of capacity associated with the extension of right contained within the Education (Scotland) Act 201612. Implementing addition tests for children with additional support needs is a breach of article 2 of the UNCRC and we believe potentially indirect discrimination under the Equality Act 2010. The same would be true were any addition test of capacity be used in relation to transgender, non-binary and intersex children through the proposed legislation. Were application for a gender recognition for 12-15 year olds to be subject to parental consent, it is essential that provision be made to enable children with capacity to exercise their rights in cases where: • a young person’s views differ from those of their parents, • where parents are in disagreement with each other; • where the young person is looked after • where there is no one with parental rights and responsibilities. The operation of such a process must be subject to additional consultation, including work with transgender, non-binary and intersex young people. The process should be grounded in children’s rights. We believe that courts are not the appropriate place to decide these matters and children report very mixed experiences of courts listening to their views in other matters.

Other relevant questions:

Question 10 Are any changes to section 22 (prohibition on disclosure of information)?

This is one protection which young people would gain access to with legal recognition of their transition and supports their right to privacy under Article 8 of the ECHR and Article 16 of the UNCRC. It is particularly important at points where information is being transferred from one service provider to another. Education records are covered by section 22 so this would increase the protections to young people’s rights to privacy as they move from school to further education, work or higher education.

Question 12 Should Scotland take action to recognise non-binary people?

YES We support the recognition of non-binary gender identities. Non-binary has become an accepted part of young people’s understanding of gender identities. An increasing number of young people identify as non-binary and should be entitled to the same legal recognition of their transgender peers. Yogyakarta Principle 31 (C ii) requires states to make available “a multiplicity of gender marker options”. This proposal also supports non-binary children’s right to an identity (article 8 of the UNCRC). This proposal also provides the opportunity to ensure that the births of intersex children can be registered promptly without them being assigned as male or female. Article 7 of the UNCRC states that “the child shall be registered immediately after birth”. Together with the extension of legal recognition to children with capacity, this would enable intersex children to assert their identity as they wish, using a social rather than medical model of gender.

International and national law is clearly on the side of the right of trans children to their identity.

This accords with the World Professional Association for Transgender Health’s 2017 Identity Recognition Statement:

The World Professional Association for Transgender Health (WPATH) further recognizes the right of all people to identity documents consistent with their gender identity, including those documents which confer legal gender status. Such documents are essential to the ability of all people to enjoy rights and opportunities equal to those available to others; to access accommodation, education, employment, and health care; to travel; to navigate everyday transactions; and to enjoy safety. Transgender people, regardless of how they identify or appear, should enjoy the gender recognition all persons expect and deserve.

Medical and other barriers to gender recognition for transgender individuals may harm physical and mental health. WPATH opposes all medical requirements that act as barriers to those wishing to change legal sex or gender markers on documents. These include requirements for diagnosis, counseling or therapy, puberty blockers, hormones, any form of surgery (including that which involves sterilization), or any other requirements for any form of clinical treatment or letters from doctors. Further, court and judicial hearings can produce psychological, as well as financial and logistical barriers to legal gender change, and may also violate personal privacy rights or needs.

WPATH advocates that appropriate gender recognition should be available to transgender youth, including those who are under the age of majority.

FYI We reviewed the Scottish consultation and the case for rights for transgender children to gender recognition here


Dr Jo Olson-Kennedy on puberty, blockers and hormones

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Dr Jo Olson-Kennedy, world leading expert in support for trans children, recently gave a talk at Gender Odyssey in Seattle. She provided with great clarity a wonderful overview of puberty, blockers and hormones for trans children and adolescents. The talk was recorded, and for the benefit of those interested in best practices in healthcare for trans children, I’ve written a transcript of sections of the second half (any errors in transcription are mine).

This was a talk aimed, in part, at parents of trans kids. Note the level of knowledge and the effort to explain complex topics to parents. We never hear anything like this level of sophistication combined with practical guidance from the ‘experts’ in the UK. In part this is because the UK ‘experts’ do not see their role as one of education, and in part it is because the UK ‘experts’ do not have anywhere near this level of knowledge.

Two other things you’ll note from Jo Olson-Kennedy’s presentation that you never hear from UK GIDS. 1: Respect and 2: Individualised care.

Note how each child is treated with respect and dignity. Note how each child is provided with individualised care intended to meet that child’s need. No rigid, harmful, one-size fits all protocols. No defensive or transphobic practices either.

The UK children’s gender service is run by psychologists, psychotherapists and psychoanalysts with a few psychiatrists and social workers on the team. Not one paediatrician. Jo Olson-Kennedy, on the other hand, is a paediatric Medical Doctor. Similarly, the head of the Australian Children’s Gender Service, Michelle Telfler is a paediatrician.

It is time to move UK trans children’s healthcare out of the hands of psychologists, psychiatrists and psychoanalysts. Being trans is not a mental health condition. We need medical doctors and affirmative counsellors to build resilience, along with family therapists, the latter as much to support and educate parents, as to support the child. Mental health specialists only getting involved to support either where there is a mental health issue, noting that gender identity is not in itself a mental health condition, or where a client expresses a desire for psychotherapy.

Supported trans children have good levels of mental health and do not need engagement with a mental health service. Instead, they need knowledgeable experts with empathy, ability to build resilience and confidence, and paediatric medical doctors with the ability to treat trans children with dignity, care and respect. Moving trans healthcare from specialist mental health facilities to medical doctors (eg in primary care) is common place in other countries (including parts of Canada) and could easily be introduced here.

On to Jo Olson-Kennedy’s presentation, first on puberty tanner stages:

“Everyone is born at tanner 1, there is no zero. For people with overies tanner 2 is the differentiation of the nipple areola complex from the rest of the chest and there are palpable buds that feel like buttons, that is tanner stage 2 of chest development. Tanner 3 is actual chest tissue that is different from the fat chest wall. For people with testes T2 is testicular enlargement to 4 ccs, we use an orchiometer to assess testes size, 1 inch long half an inch wide.

Pubertal timeslines are different in overian and testicular puberty. For trans masculine kids we’re talking about 9, 10, 11 (these estimates are for white kids, people of colour go through puberty at earlier ages). Preventing puberty is needed earlier for trans masculine kids.

Peak growth velocity is also different and happens at different stages of puberty. For people with ovaries the greatest changes are in stages 2 and 3 of puberty. For people with testes the greatest changes are at tanner 3 or 4. When we think of the timelines for preventing pubertal changes we have to pay more attention to our trans masculine kids than our trans feminine kids because the changes that are really horrible for trans girls are later, you don’t go to tanner 2 and get a moustache or facial hair, your voice doesn’t even drop, those are all later.

What precedes gonadal puberty is adrenal gland development. This is critical. Because 6 to 18 months before your gonads started chugging away, your adrenal glands start, in all bodies, putting out a hormone (DHEA?) which is an androgen like hormone. This causes pubic hair, axillary hair, body odour, and parents who have kids who have transitioned at 5 will have body odour panic, pubic hair panic ad I want you to know that if this is happening at 7 or 8 years old it is probably not gonadal puberty it is probably adrenal gland development, and there is no way to block that and we would not want to, the adrenal glands are super critical to life.

What happens when puberty starts?

When puberty starts your hypothalamus talks to your pituitary gland through a hormone called gonadotropin releasing hormone (GNRH), and gonadotropin releasing hormone is called that because it causes the pituitary gland to release gonadotropins, which are lutinising hormone (LH) and follicle stimulating hormone (FSH). This is true of everybodies body. This stimulates your gonads to release their sex steroids. Early in puberty and throughout puberty you secrete gonadatrophin releasing hormone in pulses, it is diurnal, once in the morning, once in the evening, LH and FSH come out in pulses, and sex steroids come out in pulses, all these things are on a feedback loop, when there is a lot of sex steroid it feeds back to reduce production.

If you have ovaries you get oestrogen and progesterone and breast development, wider hips, periods. If you have testes you get facial hair, adams apple, broadening of shoulders etc.

Case study: 10 year old assigned female at birth, socially transitioned at 5. 5 months before I got the phone call the kid’s chest development had started and they would not come out from under their bed and go to school. 10 years old. Horrific anxiety. These kind of cases. There’s really no challenge to them. They are not complicated. This kid needs blockers.

How do blockers work?

We give a biosynthetic or analogue version of gonadotrophin releasing hormone. It is called a blocker but really that is an erroneous term, it is actually an analogue, instead of getting it in pulses, instead the body gets it in a steady state, the receptors get down regulated and now no signal to the gonads to make sex steroids. It is specific to this particular pattern of development. Does not impact your thyroid. Does not impact your growth hormone. Does not impact your social development or your cognitive development. We mimic the action of GNRH and down regulate those receptors and you do not now have a message from your brain to your gonads. When you go onto continuous GNRH you get a giant pulse and then it comes down after those receptors are down regulated. That is really important because if your kid is going to go on to a blocker, they may have 4 or 5 weeks of crappy. They may have 4 or 5 weeks of emotional lability because they are getting a strong message to release their endogenous hormone and that can be really upsetting to people.

How do we know they are reversible?

Because we use GNRH analogues for a whole load of other medical conditions, we use GNRH analogues for people who start puberty at 6, 7, or 5, we don’t want them to go into puberty at 5 for a whole host of reasons. We use GNRH analogues whenever we want to shut down the hypothalamus pituitary gonad axis, so if you have a hormone dependent tumour, we want to stop the production of hormones eg prostate cancer. Also for endometriosis.

Kids have puberty panic when they are trans ‘oh no I’m going to wake up with a beard’ – so it’s real important to talk to kids and say puberty is a process, you don’t go from tanner 1 to tanner 4 in a day, that’s not how that happens. But they are very vigilant and I have a lot of trans girls in my practice who are ‘I’m pretty sure I have facial hair’ and their voice is super high and I’m like ‘no, that’s not the order of that, that’s not how it goes’, so it’s important to have those conversations. But if you’re that panicked you actually can’t participate in your life, because this is taking up a lot of bandwidth.

So how do we do this? One is injectable and the most common one we use in the USA is Lupron. There is a subcutaneous one but doesn’t have an intermediate dose so can be challenging, then there is an implant that has a medication called Histrellin which is also a GNRH analogue, Histrellin is a really small implant, goes under the arm, lasts for 2-3 years, we take them out at 2 years as our surgeons find they become more embedded after 2 years and are harder to get out.

No blockers are FDA approved for trans care, not because we haven’t been using hormones for one hundred years because we have, but because there are levels of discrimination at our highest places.

Histrellin implants are sold as two brands, one has a pediatric indication in precocious puberty – 50mg histrellin secretes 65 micrograms a day. The other one has an adult indication, it has 50 mg histrellin secretes 50 mg a day. Both are equally efficacious in suppressing puberty in kids with gender dysphoria, there is a significant difference in cost. None of these are FDA approved so you may as well get the cheaper one which is $4,000, the other one is $35,000. Equally effective. I’m about to publish a study on this.

We have a discrepancy between the Endocrine Guidelines recommendations about blockers and what actually happens on the ground. So the Endocrine Guidelines recommends puberty blockers early to avoid development of secondary sex characteristics that are undesirable at tanner 2, tanner 3. But then they also recommend hormones at 16. The newest Endocrine Guidelines address this and says there are compelling reasons to start earlier than 16.

What happens is a lot of 13 and 14 year old trans masculine kids come (to the service), they are already through puberty, because they started at 10. When they go on to GNRH analogues, because that is what the guidelines guide you to do, they go in to menopause. They are in chemically inducted menopause, which means they have hot flashes, they will have insomnia, they will have short term memory problems, they will have exacerbation of depression. This is not really addressed and I wish more people, as they do this clinical work, are going to understand that this is 100% true. So we in my practice we actually add in low dose testosterone for kids who are around 13, 14 or so, because it helps mitigate those symptoms and I think that is really important.

Weight gain. Super common in kids going on blockers because of the complicated interaction of all of the hormones of puberty. Emotional lability – some kids just do not do well and I will tell you that I have more people having challenges with injections than implant. I just think it has to do with not getting a steady dose and getting blocker wearing off towards the end of the 3 months. Also, your kid does not need to go to the OR for an implant, it is a ten minute out patient procedure to numb the kid’s arm and put it in.

Transfeminine folks on GNRH analogues and small doses of oestrogen. Argh! I feel like in some ways we suspend those kids in the worst part of female puberty. It’s like ‘hey sit here for 6 months – none of your friends will be but here you go’ and it’s really hard on them, so the dosing can be problematic. I’m going to talk about that in hormones 201 this afternoon.

Bone density is important to keep an eye on. Bones density is the amount of bone material inside the bone – it starts going up much more rapidly at puberty, so when you go on blockers you now do not have that rapid increase so getting bone density scans at baseline to make sure someone isn’t starting with really low bone density is important, but also every year. Some people think we don’t need to do that, but there hasn’t been an awful lot published on this so we do it from a safety perspective.

Growth velocity slows down when you’re on blockers and here’s why. Kids still grow on blockers but don’t grow as rapidly as they would if they had not gone on blockers. This was a study which came out of the Netherlands which showed when you add in cross sex hormones there is a jump in bone density.

It is really hard to predict linear growth. I can show you my growth charts which have only increased my consternation about this. For trans masculine kids remember, most people with ovaries get to their final adult height 18 months after their first period, so in general if you are making mostly oestrogen in your body you are going to close your growth plates faster. Most people who have a testosterone driven puberty grow well on into adolescence.

Here’s an example growth chart for a trans masculine kid, they had their period here, and would have stopped growing 18 months later. But they went on to blockers and grew slowly and then went on to low dose Testosterone and that growth velocity picked back up again. This is a boy’s growth chart because that is what we are looking at, the growth of a trans boy on a boy’s growth chart.

Here is a trans girl’s growth chart. Here she is growing at a pretty rapid growth. Goes on a blocker, it slows down. Goes on a low dose oestrogen, look at this – holy moly! So that kid was completely panicked, the kid by this point was 15 and a half and some folks would be like ‘you can’t put that kid on an adult dose of oestrogen’ but yes you can and so I did, and it flattened out, I don’t yet know if this kid’s growth plates have closed or not.

When you measure growth velocity per year, pre-puberty 9 cm a year, on the blocker moves down to 7, then moves up to 13 cm (on low dose oestrogen), so that’s really fast for oestrogen. Oestrogen, both for oestrogen and testosterone driven puberty is what accelerates growth but then is also what closes the growth plates. Complicated.

Here’s another case study: This kid started blockers – most of my trans girls start blockers around 11 and a half or 12. On blockers growth slows down, put this kid on an escalating oestrogen and then growth goes up really high, then I said we need to up the dose of oestrogen to flatten out the growth curve, which it looks like we have.

In assigned females peak growth velocity occurs in tanner 2 in 40% individuals and 30% in tanner 3.

In assigned males peak growth velocity occurs in tanner 3.

Also growth isn’t stopped in all parts of the body simultaneously. Hands and feet fuse first, then arms and legs, followed by spine. When we do a bone age we do a hand scan and that might be premature for our trans boys.

Can we use blockers in later pubertal adolescents and young adults? Absolutely. Especially if parents or kids are not ready for hormones yet, if they are like ‘no I don’t want to do that yet’ or if the parents are (not on board), so there can be a role for blockers in kids who are not in tanner 2 or 3. But you have to be careful, especially about menopause.

You can use blockers alongside gender affirming hormones. This is important, because trans girls always have to be blocked, somehow, until they have no testes. But if someone is not planning to have that surgery, they will always need to be blocked, because they always have the potential for producing testosterone.

Non-binary. So many of my non-binary are ‘can I be on blockers forever?’ No. you cannot. Hormones are sadly binary. I am cool with non-binary kids being on blockers for maybe 2 years, around, but then I get nervous about bone density so we have to have that conversation.

Here are two case examples. Both 14 year olds, showing everyone needs an individualised approach. 14 year old assigned female had period year before I saw them, came out a year ago as male, some menstrual and chest dysphoria, no suicidal attempts, was socially transitioned living as himself. Same week, 14 year old assigned female. Happy childhood. Typical very common story for transmasculine kids, tom boy, sporty, at age 11 tanked, when puberty hit multiple suicide attempts, multiple hospitalisations, also socially transitioned living as male, kid felt very strongly about needing peer concordance, was already at tanner 5. First kid said ‘I want to be on blockers’. Second kid said ‘I want nothing to do with blockers I want to be on testosterone’. And that was right for him and he’s done great.

[Editor’s Note: earlier in the talk Jo Olson Kennedy makes reference to a WPATH presentation last year, where an unnamed person, said that almost all the kids they see who go on blockers continue in the service and they have no idea why. Jo Olson-Kennedy said she does know why those kids continue in the service – because they are trans! In the final section Jo Olson-Kennedy provides two case studies of examples she has come across when kids have decided to come off blockers.]

Let me tell you about 2 kids who went on blockers and chose to stop.

This kid, assigned female, started saying ‘I a boy’ at 18 months. At 3 years old the kid was in an enormous amount of distress saying I’m a boy. At three kid socially transitioned, started living as a boy. Lived as a boy – also liked dolls and sparkly shoes. Asked ‘if I’m a boy and I like girl’s clothes, am I cross-dressing?’ Said ‘I will live as a boy at elementary school, as a girl at middle school, and by high school I’ll know what’s right for me’. The kid decided to live as a girl at 9. 2 months later called me saying I have breast buds, I need a blocker. Said didn’t want breasts and wanted time to think. Went on blockers for 2 years. 2 years later came in and said I want blocker removed, I want to go through female puberty. I said ‘what is happening with your gender?’ They said ‘well, I don’t know yet’. I said ‘well what if it lands on boy’. The kid said ‘It’s 2017, who says boys can’t have boobs’. Touche small child, I will take your blocker out. So I took the blocker out and the kid continues to live as a girl. A year later calls to say ‘do you know where I can get a binder’. And I was like ‘oh your mum wants to pole her eyes out right now’. So this kid is extraordinary and their gender is still happening. And I asked them, do you think your parents should have supported you to live as a boy for so long, and they said, ‘I wouldn’t be here now if they hadn’t’. So that is testament to what it means to socially transition, go on blockers, come off blockers.

Another kid, assigned female, got blocked at 9, started testosterone at 13, discontinued both a year later, went through their endogenous puberty identifying as non-binary and a year later came back to start testosterone again.

So all of this is ok, and it’s all good and everyone’s going to go on their journey whether we want them to or not and we can make it easier”.