ITV News is reporting that the Government has abandoned its plans to pass a law banning conversion therapy. We wholeheartedly welcome this news and are publishing our response to the consultation (below) in which we urged the Government to ditch the poorly-thought-out and unworkable proposal.
Stop Press: The Government has decided it will pass a law banning conversion therapy after all, which is disappointing. However, it intendeds to exclude gender dysphoria from the legislation.
Do you agree or disagree that the Government should intervene to end conversion therapy in principle?
As paragraph 5 of the Government’s consultation paper makes clear, there is an existing criminal law framework that prohibits offences of “physical or sexual violence”. Our concern is that “conversion therapy”, as currently under discussion, is too vaguely defined to form the basis of a new law and such a law would inevitably have a chilling effect on free speech.
We note with concern that any attempt to change “gender identity” (as well as “sexual orientation”) is considered a form of “conversion therapy”. Yet no attempt is made to define what “gender identity” means – a problem, given that it can mean different things depending on whether the context is scientific, medical, sociological or legal. Many legitimate activities – such as referring a young person with a history of mental illness who identifies as trans to a psychotherapist before they decide to have irreversible medical procedures – might fall foul of any legal ban on “conversion therapy”.
There is also a risk that affirming the self-diagnosis of a child who identifies as trans could in itself be a form of “conversion therapy” and fall foul of the ban. Where a young lesbian initially identifies as a man and later changes her mind, could she not urge the police to investigate the health care professional who affirmed her self-diagnosis and referred her to the Tavistock where she underwent life changing medical procedures on the grounds that this professional helped to “convert” her?
Our understanding of transgenderism is still in its infancy and we cannot rule out the possibility that in some cases identifying as transgender, or gender fluid, may be symptomatic of a mental disorder. Indeed, we note that “gender dysphoria” is included in the latest edition of the Diagnostic and Statistical Manual of Mental Disorders, the Bible of the American psychiatric profession. Clinical professionals have both a right and a duty to recommend what in their judgment is the best clinical pathway for a patient who identifies as transgender, particularly if that patient is a minor. It would be an infringement of the clinician’s right to free speech, and not in the interests of their patients, to legally prohibit one possible diagnosis and, in some cases, forcing them to break their Hippocratic Oath.
At the Free Speech Union, we are concerned that any new law will criminalise the expression of beliefs that do not comply with trans rights orthodoxy, as articulated by Stonewall and other organisations that claim to speak (wrongly) for the entire LGBTQ+ population. Others at risk of falling foul of the new law are persons, including clinicians, who are uncomfortable with the current fashion for encouraging trans children to embark on medical transition, as well as followers of the world’s major religious faiths.
Should the Government proposals strengthen the case for disqualifying any person with gender critical beliefs from holding a senior role in a charity, this also raises the question of whether charities can have religion- or belief-motivated charitable purposes or whether some charities – such as Christian Concern – will end up being investigated by the Charity Commission following complaints from trans rights activists.
To what extent do you support, or not support, the Government’s proposal for addressing physical acts of conversion therapy?
Strongly not support.
As stated above, physical and sexual abuse are covered by existing criminal laws, including provisions for aggravated offences in cases where a physical criminal act is perceived by the victim, or any other person, to be motivated by hostility or prejudice, based on a person’s sexual orientation or perceived sexual orientation, or transgender identity or perceived transgender identity. As paragraphs 26-29 of the consultation make clear, no act of physical violence done in the name of conversion therapy is legal in England and Wales. New laws – as the Government recognises (para. 28) – risk creating parallel legal systems and could result in inconsistent sentencing for equivalent criminal acts.
The Government considers that delivering talking therapy with the intention of changing a person’s sexual orientation or changing them from being transgender or to being transgender either to someone who is under 18, or to someone who is 18 or over and who has not consented or lacks the capacity to do so should be considered a criminal offence. The consultation document describes proposals to introduce new criminal law that will capture this. How far do you agree or disagree with this?
The phrase “talking therapy” makes it clear that the proposed legislation will criminalise speech which is currently lawful – a proposal which is evidently not consistent with the Government’s stance on protecting freedom of speech.
The new law would threaten any medical or clinical practitioner who does anything other than affirm a minor’s gender identity, irrespective of the medical history or needs of that individual. This is potentially an infringement both of the practitioner’s Article 9 and 10 European Convention rights, but also asks them to breach a professional duty of care where affirming a patient’s self-diagnosis runs counter to their professional judgment. Similarly, any guardian, parent, school teacher or community/youth worker risks prosecution where, in the course of talking to children, they do anything other than affirm the individual’s gender identification.
A further difficulty with any new law is that no one talking to children who identify as transgender or non-binary, including their parents, will have a clear idea of what will constitute “conversion therapy” and make them liable to prosecution, given the vagueness of the definition. This runs afoul of an important legal principle, as articulated by Lord Hope in R (Purdy) v Director of Public Prosecutions (Society for the Protection of Unborn Children intervening) (2010):
[A]n individual must know from the wording of the relevant provision and, if need be, with the assistance of the court’s interpretation of it what acts and omissions will make him criminally liable [and the person must be able to] foresee, if need be with appropriate legal advice, the consequences which a given action may entail.
The question following the decisions in Bell v Tavistock is whether the Government’s proposals will criminalise those who adopt anything resembling a ‘watch and wait’ approach (which might involve referring a patient to a psychotherapist rather sending them on a pathway leading to prescriptions for puberty blockers, cross-sex hormones and, ultimately, surgery).
Is this approach going to be criminalised because it falls within the definition of “conversion therapy”? Is a religious meeting in which congregants are urged to get married and produce children going to be against the law? Is a schoolteacher posting a video of their heterosexual wedding ceremony with the comment “The best day of anybody’s life” going to be liable for prosecution?
The fact that the answers to such questions are unknown, and will remain unknown after the new law comes into effect, breaches the important ‘forseeability’ principle articulated by Lord Hope.
How far do you agree or disagree with the penalties being proposed?
The Government considers that Ofcom’s Broadcasting Code already provides measures against the broadcast and promotion of conversion therapy. How far do you agree or disagree with this?
Relevant provisions of the Broadcasting Code deal with the Communications Act 2003, Article 7 of the European Convention on Transfrontier Television (for ECTT Services only), Article 6 of the Audiovisual Media Services Directive, Article 10 of the European Convention on Human Rights, and the BBC Charter and Agreement – with respect to the encouragement or incitement of crime, disorder, hatred and abuse. This includes “hatred based on intolerance on the grounds of disability, ethnicity, social origin, gender, sex, gender reassignment, nationality, race, religion or belief, sexual orientation, colour, genetic features, language, political or any other opinion, membership of a national minority, property, birth or age”.
This is Ofcom’s current position and it provides protections regarding hatred against, or conversion pressure upon, lesbians, gays, bisexuals, asexuals, queers and others included under the LGBTQ+ umbrella.
Given that the status quo already provides for what the Government is proposing, our concern is that any new law would send a strong signal to Ofcom and other state regulators that they need to go further than the current law allows when adjudicating complaints. Given that in many such cases the decision-makers have to carefully balance competing rights, the likely effect of the new law will be to tilt that balance away from upholding free speech and towards not saying or doing anything likely to offend trans rights activists. The Free Speech Union believes that the scales are already heavily weighted in favour of such activists and any corrective action taken by the Government should be in the pro-free speech direction. Doing the opposite would have a particularly chilling effect on free speech, given that Ofcom will in due course be responsible for regulating social media companies and search engines, as per the Online Safety Bill.
Narrowly dictating what a state-regulated broadcaster is allowed to say when discussing a controversial issue – or a social media user – is particularly pernicious when that issue is the subject of an ongoing and unresolved public debate, as transgenderism is. If the Government was to legally prohibit broadcasters from taking a fair and balanced approach to the question of whether children self-identifying as trans should have that diagnosis affirmed or, in some cases, be referred to psychotherapists, it would send a clear message that the state is on the side of trans rights activists and against those who believe that sex is binary and immutable. We do not believe it would be appropriate for the U.K. Government to take sides on this issue when it is still the subject of ongoing public debate.
Do you know of any examples of broadcasting that you consider to be endorsing or promoting conversion therapy?
It is hard to answer this question, in the absence of “conversion therapy” being clearly defined. A vast range of material that is broadcast that touches on the subjects of sexual orientation or gender identity could become unlawful under the current proposals. The Government attempts a definition in paragraph 2: “An attempt to change a person from being attracted to the same-sex to being attracted to the opposite-sex will be treated in the same way as the reverse scenario.”
Unfortunately, this means that anything broadcast that is perceived to promote heterosexuality over homosexuality – such as a romantic comedy – could be construed as “conversion therapy”. In the Netflix series Alex Strangelove, the protagonist – the high school senior with excellent grades and a great girlfriend, Claire – meets openly gay Elliott. The encounter forces Alex to choose who he will lose his virginity to. Would a scene depicting Elliot or Claire trying to persuade Alex to have sex with them fall foul of the proposed ban on “conversion therapy”? According to the above definition, it would.
The Government considers that the existing codes set out by the Advertising Standards Authority and the Committee of Advertising Practice already prohibits the advertisement of conversion therapy. How far do you agree or disagree with this?
Prefer not to say.
Do you know of any examples of advertisements that you consider to be endorsing or promoting conversion therapy?
Prefer not to say.
The consultation document describes proposals to introduce conversion therapy protection orders to tackle a gap in provision for victims of the practice. To what extent do you agree or disagree that there is a gap in the provision for victims of conversion therapy?
Prefer not to say.
To what extent do you agree or disagree with our proposals for addressing this gap we have identified?
Without a clear definition of “conversion therapy”, Government-sanctioned protection orders amount to a fresh power for the state to impose free speech restrictions – especially on parents, who may have legitimate questions about their child’s sexual orientation or gender identity or personal self-expression. Concerns by parents, teachers and medical health professionals can – all too easily under proposed protection orders – become synonymous in criminal law with domestic violence. This engages Articles 8 and 9 Convention rights, as well as the safeguarding duties of teachers and clinical professionals with respect to minors.
Charity trustees are the people who are responsible for governing a charity and directing how it is managed and run. The consultation document describes proposals whereby anyone found guilty of carrying out conversion therapy will have the case against them for being disqualified from serving as a trustee at any charity strengthened. To what extent do you agree or disagree with this approach?
The proposals will allow wide scope for disqualifying/criminalising charity trustees or senior employees of charities on the grounds of their gender critical beliefs and encourage trans rights activists and their allies to deluge the Charity Commission with complaints, which the Commission will then feel duty bound to investigate. Even if these complaints are not upheld by the Commission, the process will be the punishment and in order to avoid these hugely time-consuming and stressful investigations charities will feel under pressure to conform to fashionable political opinion even when doing so conflicts with their avowed charitable objects – especially where the charity has an expressly religious charitable purpose.
Do you have any evidence on the economic or financial costs or benefits of any of the proposals set out in the consultation?
There is a duty on public authorities to consider or think about how their policies or decisions affect people who are protected under the Equality Act 2010.
We have tried to draw your attention to people – protected under the Act – who may be threatened with criminalisation for their religion or belief under the new proposals – in particular, those committed to cautious therapeutic models, or those committed to certain gender-critical views or religious beliefs. Gay men and lesbians who identify as trans in their teens are also at risk of being pushed (by the Government’s own legal reforms) into conversion of sexual orientation away from same-sex attraction if affirmation of gender identity is written into legislation as the only clinically or pedagogically appropriate response to a transgender-identifying teen. After all, if a gay teen transitions from male to female, he/she will end up becoming straight at the end of the process. These proposals risk normalising this form of conversion therapy for trans-identifying young people and risk criminalising those who oppose this form of conversion therapy.