Ending conversion practices in Scotland: consultation guidance

The Scottish government is seeking to put forth its own legislation to ban conversion practices. Here are the concerns we have with this legislation.

The consultation states “Conversion practices are harmful to individuals subjected to them. They are promoted within an ideology that views LGBTQI+ identities as wrong and believes that they can be changed“. This statement is problematic as it is up to the individual and not the state to decide which identities they wish to keep or if they want to move away from. Suggesting sexual attractions or gender identity are fixed and do not change is untrue.

Furthermore the consultation does not give a definition for conversion practices, it states “There is no international, universal definition of the term “conversion practices”, which is sometimes referred to as “conversion therapy”, “sexual orientation and gender identity change efforts”, “reparative therapy” or “gay cure therapy”. It does later define this as any attempt to change or supress sexual orientation or gender identity, which is still broad in its interpretation as individuals may want to explore change or willingly supress desires.

The government references an EAG report which talks of reconciliation of identity and religious identity and taints Muslims experiences in a negative light. The Scottish government then takes an observation from Shakti Womens Aid “The report also emphasised that many LGBTQI+ people in the UK have roots in other countries where conversion practices and other psychological therapeutic practices are the norm.” It is left for the user to assume what is inferred by such countries.

It also references legislation from Victoria Australia, which is known to be problematic e.g. a parent “refusing to support” their child’s request for puberty blockers is illegal.

The government however welcomingly says “the legislation does not apply to non-directive or non-coercive discussions, questioning, guidance or general parental direction, guidance, controls and restrictions. The distinction here is that these allow the individual to come to their own decision, whatever that may be, and does not direct them to a particular pre-determined sexual orientation or gender identity that is considered ‘preferable’. Such instances will not be considered a conversion practice within the legislation.”

It also says “This core intention, to change or suppress another person’s sexual orientation or gender identity, also distinguishes conversion practices from general statements of belief or opinion. For example, other acts, including general statements, which may be upsetting, offensive, or harmful, would not be considered to be a conversion practice if there is no intention to change or suppress a specific person’s sexual orientation or gender identity“

These statements seem to allay concerns, but then the consultation also says:

• “Some examples of the types of acts that could be motivated by an intention to suppress another person’s sexual orientation or gender identity are:
  -therapy or counselling that requires a person not to act on their same-sex attraction, including through celibacy“

• “Our analysis has shown that not all types of conversion practices can be addressed by existing offences. For example, talking therapy, or coaching someone to change or suppress their sexual orientation of gender identity are unlikely to be prosecutable under the existing criminal law. While these are generally reasonable and non-harmful everyday actions in the majority of circumstances, when used with the intent to change or suppress the sexual orientation or gender identity of another, they can become harmful.“
• “Specifically, the types of acts that would be considered a service for this part of the offence will include (where it is intended to change or suppress an individual’s sexual orientation or gender identity):
  • counselling or any other form of talking therapy
  • coaching or instructing
  • a purported treatment”
• “For example, services that claim to provide a remedy for “unwanted same-sex attraction” and “gender confusion”. This conflicts with a clear medical consensus that it is not possible to bring about such a change and that conversion practices do not work“

This means that an organisation wanting to help explore a clients opposite sex attractions or gender congruence through professional counselling or coaching may be defined as a conversion practice service, if the client changes their mind. Though the government clarifies the differentiation of a pre-determined purpose:

“This approach would capture scenarios where there is provision of purported expertise, knowledge or skills, such as where a provider professes to have expertise and delivers therapies, online or in-person courses or other forms of purported treatment that are intended to change or suppress an individual’s sexual orientation or gender identity. This can be distinguished from counselling or therapy in which an individual is supported with their unwanted or confusing thoughts and feelings through an open, explorative and even challenging approach that does not have a pre-determined outcome or preference towards their sexual orientation or gender identity“

It also clarifies the need of an intent:

“Without this specific intention being proven, a service or course of behaviour would not be criminalised, even if harm is caused. For example, providing counselling or advice to help someone to explore and come to their own decision about their sexual orientation or gender identity would not meet this intent. Nor would shouting abuse at someone about their sexual orientation or gender identity, where there was no intention to change or suppress that specific person’s sexual orientation or gender identity.”

This means it depends upon the intent, which of course is difficult to prove and hence problematic to legislate or criminalise, which the government itself realises:

“We recognise that evidencing an individual’s internal motivation can be challenging and the requirement for corroborated evidence increases this challenge. However, we consider that this intent is fundamental to the concept of conversion practices and, as a result, it must form the basis of the mental element of any related criminal offence. Without this specific intent, the offence would extend beyond its intended remit and risk criminalising a wider range of behaviour“

Oddly, however, the legislation doesn’t recognise if one consents to take such therapy it states:

“we believe that it is extremely difficult to ensure that consent in these circumstances is fully informed. Many people have reported consenting to conversion practices without a full awareness of:

the fact that change is not, in fact, possible
what the conversion practices will entail
the likelihood that this will cause them serious lifelong harm“

“There may also be scenarios in which a victim is subject to an act which they do not realise at the time is a conversion practice. For example, where an individual has actively sought out support to explore or navigate struggles with their sexual orientation or gender identity – such as by undertaking therapy, or consulting a spiritual adviser.”

This may mean that if a client consents to therapy or coaching or spiritual advice but then calls it conversion practice years later, they can do so. Therefore its is still unclear where therapy for clients moving away from an LGBTQ identity would stand.

The Scottish government says a criminal offence: “It will focus on two types of conduct: the provision of a service, and a coercive course of behaviour.” This is welcome as it highlights the issue of coercion, though we argue that existing laws of coercion can be strengthened rather than putting another law which hinders ability for support around sexuality and gender.

This consultation can be filled online via Citizen Space here.

Please note that this consultation closes at midnight on 2 April 2024.

1. Do you support our approach to defining conversion practices which focuses on behaviour motivated by the intention to change or suppress a person’s sexual orientation or gender identity?

• No

2. Please give the reason for your answer to Question 1.

The definition precludes the false concept that sexual attractions or gender identity don’t change over time are impossible to change.

Question 2. How do you feel about the Scottish Government’s plan to make conversion practices a crime?

• I do not support it

Please tell us more about your answer.

3. Do you think that legislation should cover acts or courses of behaviour intended to ‘suppress’ another person’s sexual orientation or gender identity?

It should not be covered

4. Please give reasons for your answer to Question 3.

Acts of suppression already comes under current law around coercion which includes Domestic Abuse Act 2021 or Serious Crime Act 2015. If there are any loopholes in these legislations, then coercion should be seen as a whole and not only in the frame of sexuality and gender, but other protected characteristics as well.

5. Do you support or not support an approach which uses a package of both criminal and civil measures to address conversion practices in legislation?

Do not support

6. Please give reasons for your answer to Question 5.

It would be difficult to prove intent if a person enters counselling, wants to explore their sexual attractions or gender identity, however then later changes their mind and frames the service as a “conversion practice”. Thus, this bill would effectively put all those who believe sexual attractions or gender identity can change open to criminalisation.

7. What are your views on the proposal that the offence will address the provision of a service?

Do not support

8. Please give reasons for your answer to Question 7.

Criminalising counselling or any form of talking therapy, coaching is unethical.

9. What are your views on the proposal that the offence will address a coercive course of behaviour?

Support

10. Please give reasons for your answer to Question 9.

Even though we do not support the premise of the bill, we believe what is offence is coercive behaviour.

11. What are your views on the requirement that the conduct of the perpetrator must have caused the victim to suffer physical or psychological harm (Including fear, alarm or distress)?

Agree

12. Please give reasons for your answer to Question 11.

Acts that do not cause harm to the victim should not be criminalised.

13. Do you agree with the inclusion of a defence of reasonableness?

Do not agree.

14. Please give reasons for your answer to Question 13.

Reasonable acts should not be criminalised, such the premise of this law is incorrect to have reasonableness as a defence, before legislating. This suggests the government doesn’t agree with the proposed legislation itself.

15. Do you agree with the proposed penalties for the offence of engaging in conversion practices?

Do not agree

16. Please give reasons for your answer to Question 15.

We do not agree with the premise of this legislation and the fines.

• on summary conviction: imprisonment for a term not exceeding 12 months, or to a fine not exceeding the statutory maximum (£10,000), or to both
• on conviction on indictment (solemn procedure): imprisonment for a term not exceeding 7 years, or to an unlimited fine, or both

17. Do you agree that there should be no defence of consent for conversion practices?

No

18. Please give reasons for your answer to Question 17.

Not allowing consent for counselling or any form of talking therapy, coaching is unethical.

19 . Do you have any other comments regarding the criminal offence? These are set out in parts 7 and 8 of our full consultation document.

N/A

20. What are your views on it being a criminal offence to take a person out of Scotland for the purpose of subjecting them to conversion practices?

Don’t know

21. Please give your reasons for your answer to Question 20.

Coercing someone to subject to conversion practices is wrong. However, Jowett’s study that is referenced is ideological and discriminatory to populations who genuinely want to explore their sexuality and gender and seek professional help.

22. What are your views on the proposed penalties for taking a person outside of Scotland for the purposes of conversion practices?

Don’t know

23. Please explain your answer to Question 22.

Same as Question 21

24. What are your views on the proposal that conversion practices should be an aggravating factor for existing offences?

Do not support

25 . Please explain your answer to Question 24.

While we support that conversion practices need to be seen as aggravating factor of an existing criminal offence, we do not agree that a single source would be sufficient to prove the aggravation.

26. Do you have any views on the steps we have taken to ensure the proposals are compatible with rights protected by the European Convention of Human Rights?

Articles 2 (sex and religion), Article 12 (arbitrary interference with privacy and family), Article 18 and 19 (freedom of expression and belief), Article 20 (freedom of association) of the Universal Declaration of Human Rights protect self-determination for individuals that view same sex attraction or a transgender identity to be incongruous with their beliefs and values and would like support to explore a different reality.

27. What are your views on the purposes of the proposed conversion practices protection order?

Do not support

28. Please explain your answer to Question 27

We disagree with the premise of this legislation

29. Do you agree or disagree with the proposals for who should be able to apply for a conversion practices civil order?

Don’t know

30. Please explain your answer to Question 29.

We disagree with the premise of this legislation

32. Do you have any views on the potential impacts of the proposals in this consultation on equality by:

Age

Religion and belief

Sex

Sexual orientation

If you wish, please expand on your answer.

Age – This legislation hinders the adult right to self determine what type of counselling they would like to take

Religion and belief – Anyone sharing beliefs that gender identity or sexual orientation can change is disregarded

Sex – Those holding a belief of biological sex are discriminated

Sexual orientation – Those believe that changes can happen during sexual orientation or those that have changed orientations are discriminated

33. Do you have any views on the potential impacts of the proposals in this consultation on children and young people, as set out in the UN Convention on the Rights of the Child?

N/A

34. Do you have any views on the potential impacts of the proposals in this consultation on socio-economic inequality?

N/A

35. Do you have any views on potential impacts of the proposals in this consultation on communities on the Scottish islands?

N/A

36. Do you have any views on the potential impacts of the proposals in this consultation on privacy and data protection?

N/A

37. Do you have any views on the potential impacts of the proposals in this consultation on businesses and the third sector?

N/A

38. Do you have any views on the potential impacts of the proposals in this consultation on the environment?

N/A