Ending conversion practices in Scotland: consultation analysis

Executive Summary

Introduction

1. This summary presents headline findings from an analysis of responses to a public consultation by the Scottish Government on Ending Conversion Practices in Scotland. The analysis and this report were prepared by Craigforth on behalf of the Scottish Government.

2. The consultation exercise was launched on 9 January and ran until 2 April 2024.

Approach to the analysis and reporting

3. This summary is thematic and sets out the main themes to emerge from across the analysis of the 38 questions set out in the consultation paper. The main body of the report presents a question-by-question analysis of answers to the closed questions and comments at open questions.

4. As with any public consultation exercise, it should be noted that those responding generally have a particular interest in the subject area. Therefore, the views they express cannot necessarily be seen as representative of wider public opinion.

5. It is also important to note that an analysis of this type reflects the comments made and does not seek to verify the accuracy of those comments or make any judgment on the views expressed.

Respondent numbers and profile

6. In total, 5,811 responses were available for analysis^[1], of which 5,649 were from individual members of the public (accounting for 97% of all responses) and 162 from groups or organisations. A full list of the organisations/type that responded is provided at Annex 2 to the main report.

7. Faith or belief bodies or groups were the largest organisation respondent group by some margin, accounting for around half of all responses received from organisations. This was followed by Medical, psychology or counselling groups or bodies, LGBTQI+^[2] groups, Campaign groups, policy forums or think tanks and Political parties or trade unions.

8. The Faith or belief bodies or group respondents included General Assemblies or leadership groups from a number of Christian denominations, many individual churches, representatives of the Islamic faith and representatives of other beliefs.

9. It was clear that some respondents had drawn on materials produced by, or responses published by, one or more organisation. In terms of those who tended to oppose the proposals, the analysis of comments suggests that many respondents drew on material produced by Faith bodies, LGB^[3] groups and possibly Women’s groups. In terms of those broadly in support of the proposals, many had drawn on suggested responses compiled by LGBTQI+ groups.

Overall balance of opinion

10. Given that individual responses account for 97% of all respondents, the balance of overall opinion is effectively a reflection of the balance of opinion among individual respondents.

11. Respondents tended to either take a position of being in support of, or opposed to, the proposals overall.

12. Those who tended to not support the proposals were in the majority, albeit by a small margin. For example, at the first question^[4] 54% did not support the proposal set out and 45% did. Although with some small variations, this balance of opinion was repeated across a number of the closed questions and was also reflected in the comments at open questions.

13. Amongst organisations:

I. Those who generally did not support the proposals included most of the Campaign groups, Faith or belief bodies or groups and Women’s groups and all LGB groups.

II. Those who generally supported the proposals included most or all of the LGBTQI+ groups, Medical, psychology or counselling groups or bodies, Political parties or trade unions, Social work, legal or community safety bodies and Third sector respondents.

III. Family or parental support groups tended to be evenly divided.

Overarching views on the proposed legislation

14. In addition to commenting on the specific proposals, many respondents set out a general position on the Scottish Government’s overall approach to ending conversion practices in Scotland.

15. Many of those who tended to disagree with the proposals had concerns relating to religious freedoms, including that the Bill provisions as currently drafted will impact on the teaching and everyday activities of many faith bodies or groups.

16. However, others were focused primarily on issues relating to the inclusion of gender identity. This group of respondents sometimes noted that they had no concerns about the proposals as they would apply to sexual orientation but did not agree that gender identity should be covered. They expressed a view that gender identity is a subjective concept and that it would not be right to criminalise someone who questions its validity.

17. A common concern of those opposed to the proposals was that legislation could encroach on the rights of parents and carers and that people could be criminalised for acting in what they believe to be the best interest of their child(ren).

18. Those respondents who tended to agree with the proposals frequently noted their concern about the harm caused by conversion practices, which were frequently described as ‘unethical’ and ‘cruel’.

19. Some respondents expressed particular concern that conversion practices often target people at a vulnerable time in their lives and that the expression of a different sexual orientation and/or gender identity can be a difficult process without the added threat of conversion practices. Many respondents saw the proposals overall as offering an inclusive and non-discriminatory approach to tackling conversion practices.

The case for legislation

20. One area in which there was unanimity was in condemnation of abusive, coercive, and violent practices, and a number of Faith or belief bodies were amongst those stressing that they do not engage in or support coercive practices. However, where respondents differed was around whether existing legislation^[5] is able and sufficient to deal with such behaviours.

21. One perspective was that the necessary protections are already in place, and that it is not clear what this proposed legislation is seeking to prohibit that is not already illegal. It was also argued that the Scottish Government has failed to evidence that conversion practices are happening in Scotland and that this is a problem that needs to be addressed.

22. Respondents who did not think the case for new legislation has been made tended to consider that this applied to the criminal and civil measures proposed, as well as to the statutory aggravation proposal.

23. Conversely, respondents who were broadly in favour of the proposals tended to support the introduction of new criminal and civil measures, as well as a statutory aggravation to address conversion practices where the underlying acts would already fall within existing criminal offences.

24. In terms of why they considered that new offences are required, some LGBTQI+ groups and Third sector respondents cited evidence relating to very significant harm that can be caused to those who are subject to conversion practices, including self-harm and suicide, while other respondents referenced personal experience of these harms, or reported professional experience of working with those who have been subject to such practices.

Potential impacts on faith bodies and parents

25. Many respondents, including a clear majority of Faith or belief bodies and many individual respondents, were concerned about how the Bill as drafted will impact on the everyday activities of faith bodies.

26. Although the consultation paper states that respecting freedom of religion and expression is a policy objective (at paragraph 41) there was a view that this will not be achieved, particularly if, to avoid being considered a conversion practice, guidance needs to be ‘non-directive’^[6]. Some respondents noted that they did not find this reassuring and expressed a view that it demonstrates a lack of understanding of religious teaching and pastoral care that encourages individuals to follow a particular set of behaviours and so is directive. It was argued that the proposed legislation risks criminalising religious leaders whose role is to guide others in line with their beliefs.

27. Others, including a small number of Faith or belief bodies, were broadly supportive of the proposals, with references to having adopted the definition of conversion therapy set out in the Memorandum of Understanding (MoU) on Conversion Therapy in the UK. However, some of these respondents highlighted the need for further clarity or detail in the final legislation, for example in relation to what might constitute harm and what intent might look like.

28. Another underlying concern for those broadly opposed to the proposals was that parents cannot be expected to be non-directive when talking with their children about major issues or when seeking to protect their children from things the parent believes to be harmful or from a decision that the child may later come to regret.

Definitions

29. Repeated concerns were also voiced around a perceived lack of clear definitions^[7] throughout the consultation, for example, sexual orientation, gender identity, and what is meant by a conversion practices and “services” delivering such practices. Respondents called for more clarity around what would, and particularly what wouldn’t, be captured by proposals.

30. Those who were broadly opposed to the proposals raised concerns about activists seeking to ‘test’ the scope of the legislation through the courts, with a focus on making complaints or seeking civil orders against people of faith. Those who broadly supported the proposals sometimes referred to a lack of clarity around the Bill’s scope, suggesting this could introduce loopholes to be found and exploited by those who carry out conversion practices.

Intention

31. Some respondents supported the focus on the intention to change or suppress sexual orientation or gender identity, including this as a key characteristic of conversion practices and their potential to cause harm. It was seen as important in enabling legislation to prevent conversion practices that attempt to deliberately infringe individuals’ rights and freedoms. LGBTQI+ groups and Third sector respondents were among those who thought that the proposed focus on intention would be effective in allowing parents, religious leaders and/or other non-professionals to continue to provide ethical counselling and guidance.

32. However, others were concerned about the possibility that an offence could be committed where there is no intention to harm or where the actions are driven by a desire to help or protect. The prospect of prosecution without a requirement to prove that the perpetrator intended to cause harm led some respondents to a view that only a gender-affirming approach^[8] will be acceptable when talking with someone about sexual orientation or gender identity.

Suppression

33. Those broadly opposed to the proposals frequently referred to the scope and inclusion of ‘suppression’, with some respondents seeing it as too broad or subjective a term or commenting that the proposed legislation provides neither an adequate definition nor guidance as to what behaviours would be covered. In particular, it was argued that celibacy outside of heterosexual marriage is central to the teaching of many orthodox belief bodies, and that inclusion of suppression in the proposed legislation could make such teaching unlawful.

34. Among respondents who supported inclusion of suppression in the proposed legislation, the most frequently made point related to the potential to cause harm. There was reference to evidence and reports, such as the report of the Expert Advisory Group on Ending Conversion Practices,^[9] which indicated that suppression can be just as harmful as attempts to change sexual orientation and/or gender identity. There were also suggestions that suppression is already a key focus for some types of conversion practices, and that excluding suppression would enable perpetrators to shift their focus from attempts to change a person’s sexual orientation and/or gender identity, to trying to suppress it.

35. There were concerns that some forms of therapy could be unintentionally affected by the proposed legislation as currently drafted. For example, it was argued that references to causing ‘fear, alarm or distress’ in the proposed definition of harm could also apply to counselling or therapy services, for example where individuals may experience distress or emotional trauma through the ‘necessary’ confronting of previous traumatic experiences. It was suggested that the proposed ‘avoidance of doubt’ provisions should make clear that such therapies do not constitute conversion practices.

Criminal and civil measures and statutory aggravation

36. The Scottish Government proposal is to create a package of measures that work together to prevent and respond to conversion practices in Scotland. Depending on the type of conduct that has taken place and/or the specific situation of the victim, there would be three different routes that could be taken to address the issue and provide protection. This might be through specific criminal offences, a new statutory aggravation, or a civil protection order.

37. Overall, respondents tended to either support all three options or support none of the options. Those who supported none of the options generally referred back to their concerns about the possible impact on the teaching and everyday activities of many faith bodies or groups, and that any new legal measures – whether criminal or civil – are simply not needed since there are already laws in place to address violent and abusive behaviour.

38. Concerns about the civil measures related to the type and levels of proof that would be required and to civil protection orders being obtainable on the balance of probabilities, whereas a criminal conviction is subject to a higher standard of proof – beyond reasonable doubt.

39. Support for the package of criminal and civil measures was frequently based on a view that a combination of these measures will be necessary to achieve the goal of ending conversion practices in Scotland. Some respondents cited successful broad and cross-cutting approaches to tackling harm, such as those to tackle domestic abuse, as key to enabling a flexible approach that can respond to the diversity and complexity of conversion practices. It was argued that civil protection orders are the only proposed measure than can prevent harm before it occurs and that it is vital that the package of measures includes a preventative element.

Objectives of the legislation

40. Part four of the consultation paper references ‘a rights-based, victim-centred, and trauma-informed approach informed by the needs and dignity of survivors and victims’ as a key objective of the legislation and sets out the steps taken to make sure that the proposals respect everyone’s rights. In order to comply with the requirements of the European Convention on Human Rights (ECHR), any interference with protected rights must be ‘necessary and proportionate’ to the aim to be achieved, in this case, seeking to protect the rights of LGBTQI+ people and address harm.

41. One view was that the approach is not proportionate and that an adequate case has not been made for legislation that could impinge on many people’s rights under the ECHR, particularly Articles 8 (Right to respect for private and family life), 9 (Freedom of thought, conscience and religion) and 10 (Freedom of expression). Some respondents saw the proposed approach as only having concern for the rights of LGBTQI+ people.

42. In contrast, respondents who supported the proposals tended to think that an appropriate balance of rights has been achieved, and that LGBTQI+ people will be protected while others will continue to be free to express their beliefs, but not to cause harm.

43. Respondents who broadly supported the proposals also tended to anticipate positive outcomes for LGBTQI+ people with respect to the impact of the proposals on rights protected under the United Nations Convention on the Rights of the Child (UNCRC) as well as protections under the Equality Act 2010.

44. Others took a very different view, predicting a range of negative impacts on children’s rights under UNCRC, and negative impacts for persons with protected characteristics under the Equality Act 2010 including age, religion or belief and sex.