Professor Kenneth Norrie

Monday’s Scottish Legal News carried a piece with the shockingly misleading heading “Plans for new trans law…”.

This reports a legal opinion offered by “double silk Aidan O’Neill KC”, and suggests that unnamed “women’s groups” regard these proposals as allowing “gender self-identification by the back door”. Gender self-identification was of course a central feature of the Gender Recognition Reform (Scotland) Bill, passed by the Scottish Parliament in 2023 and killed by a UK Secretary of State.

Monday’s piece is mendacious, for there is no “new trans law” being proposed. Instead, the Scottish government is consulting on the terms of the long-promised ban on what has come to be known as “gay conversion therapy”. This seriously harmful practice is widely recognised as causing severe emotional and sometimes physical harm on individuals, and it also causes expressive (and real) harm to the whole of the LGBT community by presupposing heterosexual superiority.

Its criminalisation in this country has long been promised, and has already happened in various other jurisdictions, such as Argentina, Brazil, Canada, France, Germany and Malta, as well as parts of Australia, Spain and the US. Plans to do so are advanced in Denmark, Finland, Ireland and Norway. The Conservative government at Westminster committed itself as far back as 2018 to ban conversion therapies, consulting in 2021 on how best to proceed, as did the Welsh Assembly and the Stormont Assembly.

The Scottish government is now consulting on how best to ban such practices. It is disingenuous, dangerous and utterly disheartening that this consultation is being characterised in some quarters as proposing a “new trans law”.

The proposed ban will cover practices wider than crude attempts of faith “healers” and the equivalent to “convert” a person from being gay to being not gay by utilising mental persuasion, emotional pressure and/or physical coercion. In all jurisdictions in the United Kingdom the proposal is also to outlaw practices intended to “convert” a person from being transgender to being cisgender, and the justification is the same: such practices are harmful both to the individual subject to these processes and to society as a whole.

In truth conversion practices are utterly misconceived since it is as impossible to change one’s sexual orientation and gender identity as it is to change one’s chromosomal makeup. This is true even if individuals embrace different aspects of their own sense of self at different times in their lives: a bisexual person who enters a heterosexual relationship is still a bisexual person; a transgender person who de-transitions is still a transgender person. So for those who struggle with being gay or transgender and wish they weren’t, conversion therapy offers a hope that can only be dashed. Support for banning conversion practices is found across the political spectrum throughout the UK, from Kemi Badenoch to Nicola Sturgeon.

Quite legitimately, those who hold orientation- and gender-critical beliefs (broadly, those who do not accept the moral and social neutrality, or equivalency, of heterosexuality and homosexuality, or of the equal worth of those who are transgender and are cisgender) question the parameters of the proposed ban. We all should. Would a loving parent, aware of the immense difficulties that gender change involves and genuinely worried that their adolescent and gender-questioning child would not be able to cope with these difficulties, be criminalised for trying to persuade their child to hide their true identity or for refusing to take them to a gender clinic? Would a minister or priest be at risk of prosecution for attempting to “pray the gay away” in the touchingly naive phrase of the American devout? Is the Christian Institute (Mr O’Neill’s well-heeled client) right in its hysterical imaginings, reported in the piece on Monday, that banning conversion practices would criminalise “church leaders for not praying in accordance with state dogma”?

The answers to these legitimate questions are found in the consultation document itself. The Scottish government makes plain that the ban it is proposing will “not inhibit nor criminalise non-coercive and ethical medical, therapeutic psychological, spiritual, and pastoral practices that provide support to individuals who seek help to explore their sexual orientation and gender identity”. Nor will it “inhibit nor criminalise the exercise of parental responsibilities and rights including guidance for children and conversations about sexual orientation and gender identity”.

Instead, the proposed ban will cover only practices that are coercive rather than supportive, that seek to suppress or change an aspect of another’s inherent identity rather than help the individual come to terms with their own sense of being: “It does not include non-directive and ethical guidance and support to a person who might be questioning their sexual orientation or gender identity or experiencing conflict or distress, whether that is provided by a healthcare practitioner, a family member, or a religious leader”.

As well as a new criminal offence, there will be civil remedies in the form of protection orders, just as there already exists orders like forced marriage protection orders. There is also proposed a defence that the conduct was “reasonable in the circumstances”, which will protect parents, ministers and the like who act in a way that is loving but misconceived, without intent to change or suppress the individual’s identity.

The most worrisome feature of this story and its misconceived headline is that it is an example of anti-LGBT activists deploying the useful unpopularity of transgender people to oppose much needed protection for lesbian and gay people. The reality of the fears raised is less important than the creation of fear: the author of Monday’s story lets this slip, referencing “religious groups who fear vexatious prosecutions targeting traditional teaching on sex and sexuality”: the author knows that these fears are groundless because any such prosecution would indeed be vexatious (i.e. unsuccessful).

The whole tenor of Monday’s report illustrates, as few things can, the vital importance of all members of the LGBT community (and their supporters) standing united with the most vulnerable of their peers – the “T” in that acronym. Our interests are the same, the arguments used against us are the same, and the denigration of transgender people is denigration of everyone who does not lead their lives according to someone else’s idealised norm.

Kenneth Norrie is professor emeritus at Strathclyde Law School