Dr Paul Behrens

Reports by experts tend to be read by experts only, then shelved forever. You can certainly not say the same about the report by the Scottish Expert Advisory Group on Ending Conversion Practices. The reactions ranged from ‘gamechanger report’ (The National) to fears of ‘authoritarian enforcement of state values’ (The Spectator). Time, perhaps, to take a deep breath and look at things more calmly. What is it all about?

Conversion practices mostly refer to attempts to turn gay people straight or trans people cisgender. The Advisory Group (of which I am a member) did not call them ‘conversion therapy’, because that is a misnomer: they are utterly unscientific; numerous medical associations have taken a stand against them. What is more, they can cause serious damage. These practices, which include electric shocks, exorcisms and humiliating treatment, can inflict physical and psychological harm, from feelings of shame and worthlessness to suicidal ideation. Most victims are children and young people.

Criminalisation, therefore, plays an important part in the Report. A criminal law is necessary, because alternatives have not proven effective – medical organisations have issued their warnings for years now, but these methods still continue. The proposed law does not require harm to be done – if we wait for that to happen, any prevention would come too late. Nor are these ‘strict liability’ offences: under our Recommendations, the perpetrators certainly have to intend the relevant acts.
Part of what makes conversion practices so heinous is their impact on human rights – the right to a life free from discrimination, to your own identity, to physical integrity, to be free from inhuman and degrading treatment and torture. Where children are concerned, additional rights come into play, such as every child’s right to protection against abuse. When some critics claim that a ban on such practices impacts on their own rights, it seems like a strange attempt at role reversal. It is not LGBT children that cause the problem; they are not interfering with anybody’s rights. It is the other way round.

What about freedom of religion?

For starters, numerous faith communities support a ban on conversion practices. No fewer than four of the 15 members of our group were representatives of faith groups. None of them seems to think that freedom of religion is unduly affected.

It cannot be otherwise. Freedom of religion, under Article 8 of the European Convention on Human Rights, is not absolute. Article 8(2) makes that abundantly clear: where it is necessary to limit the manifestation of this freedom ‘for the protection of the rights and freedoms of others’, the State may adopt restrictive measures. Strange that that part is hardly ever quoted by opponents to a law. And of course our Recommendations do not ban ‘all kinds of prayer’. But it is difficult to improve on the words of the Bishop of Manchester, who noted: ‘If I was to stand up on a soapbox and start spewing out hate speech, the fact that I might begin by saying “dear God” and end by saying “Amen” wouldn’t protect me from the full force of the law.’ Nor should it.

And yes, the law must protect transgender persons too. From a legal perspective it is strange that this question arises at all. The European Court of Human Rights has, for a long time, accepted that the European Convention on Human Rights protects gender identity as well as sexual orientation. The vast majority of existing laws against conversion practices do, of course, protect transgender persons too.

All the same – what became clear by listening to survivors, is that criminal sanctions are not always the best way to deal with the problem. It is for that reason that we include a range of functions as alternatives to prosecution. Our Recommendations include the creation of a Commission that can bring perpetrators and victims together to try, in an arbitration-like style, to reach an outcome. The Commission can also offer targeted education to the providers of conversion practices – an option that seems appropriate where the victims still want to live in a relationship with the providers.

Society cannot claim to protect sexual orientation and gender identity while, at the same time, allowing practices that harm young people by telling them that being gay or transgender makes them less worthy. When one section of society experiences discrimination, society as a whole is challenged. Where the targets of such discrimination are LGBT people subjected to conversion practices, nothing less but a comprehensive law against this kind of conduct will do.

Paul Behrens is a Reader in Law at the University of Edinburgh. He is a member of the Expert Advisory Group on Ending Conversion Practices, but writes in a personal capacity.