Conversion therapy ban impacts on parents and religion 'exaggerated'

Next month, the Scottish Government will close its consultation on a proposed ban on conversion practices in Scotland.

However, religious organisations and gender-critical campaign groups have already voiced strong opposition to the plans, citing concerns over freedom of religion and the potential prosecution of parents.

In a legal opinion commissioned by the Christian Institute, Aidan O’Neill KC wrote that the current bill would have a “disproportionate intrusion into private and family life and freedom of religion and freedom of expression”.

But Professor Ilias Trispiotis, chair in human rights law at the University of Leeds, told the Sunday National that the concerns expressed by O’Neill did not cohere with academic legal research on this subject – nor did they cohere with the recommendations of the United Nations or the Council of Europe.

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“It’s important to note that my academic research on this is entirely independent,” he said.

“I have spent the last two and half years looking at conversion therapy bans from the perspective of international human rights law and the European Convention on Human Rights.

“My research papers on this subject have not been commissioned to validate an organisation’s pre-existing view on the subject.”

Trispiotis, a member of the Ban Conversion Therapy coalition, said the legal case for instituting a ban was clear and evidenced by the fact that many countries across the world have already introduced them.

“Firstly, it’s well-established that conversion practices present grave risks of lifelong harm, both physical and mental,” he said.

“This is accepted by the UK’s leading medical regulatory bodies, including NHS Scotland.

Dr Ilias Trispiotis is the chair of human rights law at the University of Leeds (Image: University of Leeds)

“Secondly, all of these practices are directly discriminatory on the grounds of sexual orientation or gender identity. They single out a protected group which they harm.

“Because of this distinctive combination of characteristics of abuse and discrimination, all conversion practices – and this is quite well-established within case law in the European Court of Human Rights – are at least degrading.

“And because all of these practices are considered in the very least to be degrading, the state – in this case, Scotland, but really any state seeking to abide by human rights law – is under a duty to prohibit them absolutely, without any exemptions.

“This is because the prohibition of torture, inhuman or degrading treatment is absolute.”

When it comes to religious freedom, Trispiotis said that religious groups or organisations would not fall foul of the legislation just by expressing negative opinions about homosexuality or transgender identity.

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He said: “Conversion therapy is not homophobia or transphobia, although it is often motivated by them. Conversion therapy is a specific practice, and the law is looking to ban this specific practice.

“Articulating a well-established religious view to a group of people is not conversion therapy, even if that view is discriminatory. For example, telling a group of churchgoers that being gay is a sin is not conversion therapy.

“This is because conversion practices have to have the specific intent of changing or suppressing an individual’s sexuality or gender identity for them to be captured by the law. If religious groups don’t involve themselves in that behaviour, then there’s no need for them to be concerned”.

With parents’ rights, Trispiotis acknowledged that the law wasn’t quite so clear but added that it was likely any behaviour amounting to conversion therapy committed by a parent on their child was already illegal.

“Parents do not have a right to harm their children because of their opinions in any area of life,” he said.

“One of the basic principles of children’s rights is the best interest of the child. But that’s not the only limitation on parents’ rights. Parents have a duty not to harm their children and children have a right to define their own sexual orientation and their own gender identity.

“That’s very well established in UK law as well as in the United Nations Convention on the Rights of the Child.”

So far, criticism from gender-critical campaign groups has focused on concerns about parents being prosecuted for having conversations in which they question their child’s identity.

Prominent campaigner Helen Joyce has previously said that “ethical therapists and loving parents” risk being criminalised by the legislation for not validating a child’s gender identity.

But, once again, Trispiotis said that such a scenario was highly unlikely to occur unless an individual had the specific intention of converting their child back to the parent’s preferred sexual orientation or gender identity.

“Conversion therapy has a pre-determined purpose,” he said. “Its purpose is to convert someone from being transgender to not being transgender because, typically, being trans is considered inferior.

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“As long as there is no assumption that one gender identity or sexual orientation is superior to another – if you’re just trying to help or support someone through the exploration of their sexuality or gender identity – that’s a legitimate form of therapy or intervention.

“Being homophobic or negative towards your child’s sexual orientation is not – by that standard – conversion therapy. It’s not explicitly aiming to suppress or change the child.

“I’m not disputing that there may be grey areas here but in criminal law, no sanctions are placed upon anybody unless there is a minimum level of harm caused.

“A parent telling their child that they’re unhappy they came out as bisexual just wouldn’t reach that threshold for harm.

“So, in my view, saying that conversations between parents and children are going to be criminalised because of the ban on conversion therapy is an exaggeration.”

Banning conversion therapy for transgender people garners more controversy in Scotland than banning it for lesbian, gay or bisexual people.

But attempting to divide or differentiate the ban for these groups would likely make the legislation untenable in the eyes of the law, said Tripiotis.

“I don’t think that the two can be split,” he said. “I think it would compromise the efficacy of the legislation because any conversion therapy that targets sexuality could masquerade as a practice that is targeting gender identity instead.

“If all forms of conversion therapy amount to torture, inhuman or degrading treatment, all of them have to be banned.

“We cannot create a hierarchy that says torture and degrading treatment targeting trans people is acceptable but the same treatment targeting gay people is not.

“This is an abhorrent position to hold and it’s untenable in law.”

The consultation on banning conversion practices in Scotland closes on April 2.