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UK Government Consultation on Banning Conversion Therapy

Organisational response from Equality Network and Scottish Trans, 8 December 2021

I. Introduction

The Equality Network is a national lesbian, gay, bisexual, trans and intersex (LGBTI) equality organisation in Scotland, founded in 1997. Scottish Trans, based within the Equality Network since 2007, focusses specifically on trans equality.

This document is written on behalf of both the Equality Network and Scottish Trans (ST).

The Equality Network are currently working with stakeholders to inform the Scottish Parliament’s Equalities, Human Rights and Civil Justice (EHRCJ) Committee’s inquiry into conversion practices (CP) (Conversion Practices, as opposed to “conversion therapy”, broadly covers all practices that seek to change or suppress a person’s sexual orientation or gender identity across a broad range of settings including within domestic, religious and healthcare settings. We encourage the use of “conversion practices” in relation to this work), with a focus on the experiences of people in Scotland, on international best practice, and on equalities and human rights considerations in relation to any legislative and policy work that may be developed. (Equality Network and STA provided oral evidence to the committee on the 14th September 2021).

This document outlines the views of the Equality Network and Scottish Trans on the proposals set out in the UK Government’s Banning Conversion Therapy consultation paper published on 29th October 2021.

We recognise however that the majority of the policy proposed relates to matters that are devolved in Scotland, and such policy in Scotland will therefore be decided by the Scottish Government and Parliament.

II. Summary of our views

The Equality Network and Scottish Trans welcome moves to ban conversion practices. However, we have significant concerns with the proposals set out in the consultation paper.

These concerns relate to:

• The definition of "conversion therapy" - in particular:

- that “suppress” is missing from the definition
- how it will apply to gender identity (or “being transgender”)
- no mention of exceptions for non-directive support services
- how it will apply to conversion practices (CP) carried out in religious settings.

• The overall limited framework of the ban, consisting of a statutory aggravation applying to violent offences, plus a relatively narrow “talking conversion therapy” offence.
• That the talking conversion therapy offence would not apply in the case of an adult who “consented” to the CP.
• The lack of criminal offences of advertising CP, and of taking a person out of the country for purposes of CP.
• In addition, there is no civil scheme for reporting, investigating, and dealing with CP, separate from the criminal framework, as in, for example, the legislation in the state of Victoria. This is a major omission, as such a scheme is likely in practice to be more effective at ending CP than use of the criminal law alone.

Detailed response

III. Background

We welcome the ‘background to conversion therapy’ section of the consultation paper (section 3) that highlights the prevalence of CP, and acknowledges that one incident of CP is enough of a basis on which to work to end these practices.

We particularly welcome that the paper states:

“Jowett and others (2021) particularly, found that “(p)lausible explanations for such harms include that conversion therapy exacerbates internal conflicts rather than resolves them, and reinforces stigma associated with minority sexual orientations or gender identities” […] While the exact prevalence of conversion therapy is challenging to establish, it is the view of the government that one incident of conversion therapy is too many. If there are gaps in the legislative framework that allow conversion therapy to take place, then the government is determined to plug these gaps and fulfil its duty to protect its citizens.”

We acknowledge the statistics and documents to which the paper refers, however we would suggest that further empirical research on the harm caused by CP should also be recognised (see appendix).

We do not believe that further data gathering exercises with respect to prevalence of CP are necessary prior to work on ending these practices.

The experiences of those who have been on the receiving end of CP should be foregrounded in this work.

IV. Definition of Conversion Practices

As many of the witnesses to the Scottish Parliament’s EHRCJ Committee’s inquiry on CP have said, the definition of CP in any legislation is crucial.

The consultation paper does not provide a clear definition of “conversion therapy”. Paragraphs 36 and 42 say that the “talking conversion therapy” offence would only apply where there is an intention of changing the person’s sexual orientation, or changing them to or from being transgender. “Being transgender” is not defined.

We are concerned that, within the foreword, and at paragraph 2, it is stated that the UK Government is determined to ensure that no person is put on a clinical pathway that is not right for them, and that should a person be placed on such a clinical pathway that this could be considered conversion therapy. This conflates two separate issues. Clinical care for trans and gender diverse people and decisions made about their healthcare are an entirely distinct issue from conversion practices. These healthcare provisions are not intended to change a person’s gender identity. This confusion, at the heart of the paper, is very worrying.

It is problematic that there is no clarity on exceptions to the definition of CP, for example in relation to non-directive support.

In the Victorian legislation for example (which many people would consider to be the best example that is currently available), conversion practice is defined as a practice directed towards a person on the basis of their sexual orientation or gender identity, and with the purpose of changing or supressing it, or inducing the person to change or suppress it. The legislation then specifies exceptions for clinical care for trans and gender diverse people, and non-directive support for all LGBT people relating to their sexual orientation or gender identity, such as providing acceptance or understanding, facilitating identity exploration and development, etc. Such exceptions make clear that clinical care for trans and gender diverse people, and non-directive support for all LGBT people is not criminalised, and there is no discussion of them in the consultation paper.

We believe that the definition of CP within legislation should be in terms of gender identity, in line with CP legislation in other jurisdictions, not in terms of “being, or not being, transgender”.

Definitions of CP found in other jurisdictions refer to practices intended to change or suppress a person’s sexual orientation or gender identity. “Suppress” is missing from the definition in the consultation paper. Paragraph 23 may relate to this, to some extent, but does not say how the practices mentioned will be targeted. Omitting “suppression” is likely to create a loophole which will be exploited by practitioners of conversion practices.

The interaction with religious freedom is discussed briefly at paragraph 25 of the document, but without detail. Considering that religious settings are the most common context for CP, this needs much more exploration. We believe that it is vital that any ban be inclusive of CP within religious settings, as the most common setting in which these practices are experienced.

V. The criminal law model proposed

The consultation paper proposes a statutory aggravation of conversion therapy, to apply to violent offences such as assault and sexual assault. In addition, the paper proposes a new offence of “talking conversion therapy”. The paper says that a statutory aggravation would be better than a new offence which covers physical CP, because, with such a new offence, there would be overlapping offences. However, in the discussion of the talking CP offence, the paper recognises that it overlaps with a number of other existing offences. We believe that restricting the new offence to “talking” will reduce its effectiveness, and that there should be a broad offence which covers all forms of conversion practice.

The problems with the model proposed include:

• Lack of clarity as to whether a statutory aggravation will have the same impact in terms of discouraging CP, raising awareness, and encouraging victims to report, compared to a new more general CP offence.
• The talking CP offence appears narrowly defined (although the scope is not clear in the paper). Some forms of CP may therefore fall through the gaps between existing offences of violence (with the statutory aggravation) and the new talking CP offence.
• The talking CP offence does not apply to CP carried out on adults (over 18), if the adult “consented”. We strongly believe that real consent to CP is not possible, and so we believe that consent should not be a defence (as is the case in the Victorian legislation highlighted previously). The consultation paper is not clear on the scope of any provisions around control/coercion, but we believe, because of the high likelihood of harm, the ineffectiveness of conversion practices in their alleged purpose, and the social pressure often experienced by people to “consent”, that true consent to such practices is not possible.
• Additionally, the model outlined in the consultation paper does not propose an offence of advertising CP. Instead it is proposed to deal with this via the existing regulatory mechanisms such as OFCOM and the ASA. We believe this is insufficient. The experience that LGBT+ people have with these regulators does not suggest that they would take the necessary robust approach.
• ‘CT Protection Orders’ are proposed, to protect people who are at risk of being taken out of the country for CP. We welcome this. However, there is no criminal offence proposed of taking someone out of the country for purposes of CP (unlike, for example, in the Victorian legislation), and the territorial application of the talking CP offence is unclear. So there may be no recourse to justice for someone after they have been taken out of the country for CP, unless there had been a prior CT Protection Order.
• We note that the consultation paper says that the government want to make it more likely, in the case of CP, that action can be taken against charities and their trustees or managers, but does not say how this will be done. More detail is needed on this.
• The consultation document states that public services will be expected to develop policy frameworks that recognise CP as a problem. There will be guidance and training, which will protect “freedom of speech, freedom of belief, and privacy”. We welcome this, but significant consideration will be needed to getting this right.
• We welcome the suggestion that there will be a helpline (phone and online) to aid in supporting survivors of CP, and an online education resource, funded by the UK Government. In our view, this service will need to be delivered by a suitable organisation within the LGBT sector.

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