Why Lloyd Russell-Moyle’s Conversion Therapy Bill is an assault on free speech

The Free Speech Union has deep concerns that Lloyd Russell-Moyle’s Conversion Practices (Prohibition) Bill would seriously harm free speech rights in the UK. We have general concerns about the introduction of any new criminal offences to prohibit so-called conversion practices. However, as an organisation we have particular concerns about the prohibitions set out in this Bill.

Late last year, the Conversion Practices (Prohibition) Bill was presented to the House of Commons. Sponsored by hard-left Brighton MP Lloyd Russell-Moyle, it has its second reading today, Friday 1st March.

As an organisation, we have concerns about the introduction of any new criminal offences to prohibit so-called ‘conversion therapy’, given that what is widely understood by that phrase is already against the law. However, Mr Russell-Moyle’s bill is a particularly egregious example of this new, decidedly unhappy legislative genre – if passed into law, we fear it would seriously harm free speech.

The extreme breadth and ambiguity of the interdiction proposed by this bill means it would inevitably create a number of unintended consequences, including effectively criminalising parents, doctors, clinicians, people of faith, and teachers who, in their conversations with others, challenge, criticise or deviate from the basic tenets of gender identity ideology.

In the run-up to today’s second reading, the FSU has been briefing MPs on the bill. Given the severity of its implications for freedom of speech, we have published the briefing on our website, which you can read here. We would strongly urge all members and supporters to write to their MP this morning highlighting their concerns. You can click here to use our automated campaigning tool – it only takes a couple of minutes and could have a significant impact.

There are, of course, some forms of ‘conversion therapy’ that no sensible person would object to being banned, such as attempts to stop someone from being gay or transgender via exorcism, electro-shock therapy, physical violence or food deprivation. No-one is disputing that ‘treatments’ of this kind have no place in a free society. But there’s no need for Mr Russell-Moyle’s bill to ban them. Such practices are already illegal in the UK.

So what is it, exactly, that this proposed legislation will ban?

Consider the bill’s central prohibition, in clause 1(1): “An offence is committed if a person: (a) offers, undertakes, or takes payment for conversion practices, or (b) offers, provides or takes payments for materials, advice or guides to conduct conversion practices, (c) advertises, or takes payment for advertising, conversion practices.”

Quite apart from the ambiguity of the phrase ‘conversion practices’, there is no requirement here for the prosecution to prove that harm was intended or foreseeable – or that that any actual harm occurred – for an offence to have been committed. In other words, someone could be prosecuted for engaging in behaviour that could conceivably cause potential harm, even though no actual harm was caused, they had not intended to cause any, and they had not foreseen the possibility of any harm being caused.

This must be wrong. If campaigners for a law believe that every instance of a ‘conversion practice’ is harmful, then including a provision in the bill that harm must be shown for the offence to be made out would be no obstacle to prosecution. We think this omission betrays the campaigners’ true motive – they want to capture ‘non-harmful’ practices, such as challenging gender identity ideology, within the scope of the bill’s new offences.

That might sound far-fetched, but clause 4 of the bill then goes on to define ‘conversion practices’ in extremely broad and ambiguous terms as “a course of conduct or activity, the predetermined purpose and intent of which is to change someone’s sexual orientation or to change a person to or from being transgender, including to suppress a sexual orientation or transgender identity so that the orientation or identity no longer exists in full or in part”.

As human rights barrister Jason Coppel KC notes in his professional opinion on the bill for the Christian Institute, “this definition includes an ‘activity’ as well as a ‘course of conduct’ and so could extend to a one-off action”.

This open-ended definition of ‘conversion practices’ brings an alarmingly wide range of perfectly lawful social and religious activities within scope of the ban.

For instance, parents or religious leaders who pray out loud for celibacy, or for their children to be relieved of their confusion surrounding their gender, could be prosecuted if this bill becomes law. This is a well-established risk in other jurisdictions that have passed bills banning conversion therapy. In the Australian State of Victoria, for instance, the Victorian Equal Opportunity and Human Rights Commission has suggested alternative ways that Christian residents of Victoria can “continue practicing your faith without causing harm”, including reassuring the person you’re praying for that they’re perfect just the way they are, and other similarly formulated prayers that sound like lyrics from Ed Sheeran’s back catalogue.

Another unintended consequence of the bill includes the criminalisation of sexual attraction or flirtation. Take the hypothetical situation in which a homosexual man develops feelings for a straight friend or acquaintance. He may honestly believe that his friend harbours homosexual or bisexual tendencies which he has repressed. If he seeks to flirt with or pursue his straight friend – even in the most anodyne of circumstances – the gay man will have committed the offence of ‘conversion therapy’, in that his intent is to “change someone’s sexual orientation”, which is a criminal offence under the bill.

And what about the requirement that clinicians do not have what Clause 4 describes as a “predetermined outcome” in mind while treating patients presenting with gender dysphoria? This surely risks the authorities mounting investigations into the state of mind of clinicians who advise patients to pause and reflect before embarking on an irreversible medical pathway.

Consider the example of a child who presents with gender dysphoria to a clinician where there is evidence on the child’s file that undermines the diagnosis, e.g. a clinical diagnosis of autism. Were that child to see a clinician who had previously published research indicating they held gender critical beliefs or if they had publicly recommended a watchful, waiting approach when treating gender distressed adolescents, the clinician would be at risk of prosecution if her or she did anything other than affirm the diagnosis of the child.

It follows that most clinicians who embrace the more cautious, watchful approach will be reluctant to see patients with gender dysphoria lest they risk prosecution – which is exactly what’s happened in the state of Victoria, where parents with gender-confused children cannot find therapists willing to see their children other than those who are fully signed up to the trans agenda.

Then there’s the pressure to self-censor that this legal framework will create, with the need for clinicians to conceal any evidence that they may have had a ‘predetermined outcome’ in mind when treating a gender distressed patient. That will inevitably have a chilling effect on the emerging research debate about this topic, with gender critical psychologists not willing to risk publication. ‘Sceptical’ clinicians would know that any research they published could be cited in a criminal case against them following their treatment of a gender distressed patient as proof that they had a ‘pre-determined outcome’ in mind when they took the patient on. The old academic aphorism of ‘publish or perish’ will soon be supplanted in this area of study by the maxim: ‘if in doubt, cut it out’.

Given the severity of these implications, the FSU is urging members to write to their MPs to highlight these concerns by clicking here.

Please join our campaign to make sure that freedom of speech remains protected, particularly when the future of confused, vulnerable children is at stake.