Ending conversion practices in Scotland: consultation analysis

9. The purposes of a Conversion Practices Protection Order

450. Evidence from survivors of conversion practices, as well as recommendations made by the Expert Advisory Group, suggest that there will be cases where the use of criminal law is not the most suitable course of action. A civil order provides an avenue for conversion practices to be addressed and prevented, including in situations where criminal measures are not considered to be appropriate. For example, where there is not enough evidence for a criminal prosecution, an order may nevertheless be able to protect someone who is at risk of harm.

451. Although a number of different protection and prevention orders currently exist in Scotland, none of these existing civil orders fully address the problem of conversion practices. It is proposed that a new civil order should be introduced with the following uses:

• to protect a specific person from the harm caused by another individual
• to protect the wider community from the conduct of an individual or organisation that has previously engaged in conversion practices.

452. Civil orders will be able to be used to prevent the harmful conduct associated with conversion practices from taking place. The conduct addressed by the civil orders will align with those in the criminal offences, so that they will address the risk of harm caused by the provision of a service, or a coercive course of behaviour undertaken with the intention to change or suppress the sexual orientation of a specific individual.

453. In instances where the order is being used to protect the wider community, it would need to be demonstrated that the person has on one previous occasion either provided a service or engaged in a course of coercive behaviour or has caused someone to leave Scotland for the purpose of conversion practices.

Question 27: What are your views on the purposes of the proposed conversion practices protection order?

454. Responses to Question 27 by respondent type are set out in Table 14 below.

455. A majority of respondents – 62% of those answering the question – did not support the purposes of the proposed conversion practices protection order. This rose to 68% of organisations.

456. Although 35% of all respondents supported the purposes of the proposed order, the proportion of organisations offering support was lower at 28% of those answering.

Question 28: Please give reasons for your answer to Question 27.

457. Around 3,450 respondents gave their reasons.

Concerns about the protection order proposals

458. Some of those who did not support the specific proposals often made the wider point that they did not agree with the introduction of conversion practices measures at all, or that the concerns they had raised in relation to criminal offences also applied to a civil order.

459. Others reiterated points or concerns raised at earlier questions, and at Question 6 in particular, including that a conversion practices civil order would be subject to the lower standard of proof. For example, a Faith body respondent reported having a number of serious concerns, but primarily that many of the apparent safeguards which would apply to the proposed criminal offence would not apply to a pre-emptive civil order. They went on to question why there would be no requirement to show any actual harm, given that the Scottish Government have made clear that conversion practices are ‘inherently harmful’ and hence there would always be potential harm where a conversion practice was going to be carried out.

460. As at earlier questions, some respondents also noted their concerns about the groups that could be adversely affected, including that the civil approach could result in people being subjected to legal orders for ‘potentially frivolous matters’ which, in turn, will silence legitimate views on sexuality and gender. There was also a concern that a simple misunderstanding could lead to an application for a protection order. Examples given included parents, teachers, counsellors, psychotherapists, psychologists, medical personnel and religious office holders, with a Faith body respondent arguing that it will be relatively easy to obtain an order against a church or a parent. They went on to note that the consultation paper sets out that one reason for introducing civil orders is that they could be more easily obtained than a criminal conviction.

461. With specific reference to children and families, there was a concern that disputes within families over what constitutes conversion therapy for gender identity could be subject to civil action. A hypothetical example offered by a respondent was that a parent’s refusal to adopt a child’s stated trans identity, to agree to using new pronouns or names or to agree to puberty blockers could make them subject to a civil order relating to conversion practices.

462. It was suggested that these sorts of powers have been used in other jurisdictions to remove children from parents who prefer to follow the widely recognised practice of ‘watchful waiting’ rather than affirming a child’s gender identity. There was also a view that organisations and websites providing information based on what was seen as biological reality and the harms of puberty blockers and cross-sex hormones could be shut down or subject to such orders.

463. In terms of overall impact on parents and families, there was a view that the civil protection order proposal presents a serious risk of violating Article 8 of the European Convention on Human Rights.

Implications of ‘at risk of harm’

464. The consultation paper’s reference to a protection order being a possible option to protect someone who is at risk of harm, but where there is not enough evidence for a criminal prosecution, was a frequently raised issue and a particular concern for some respondents. Associated views included that ‘at risk’ suggests something which is ‘self-defined and subjective’, and that if there is no need to present evidence of having engaged in ‘so-called’ conversion practices, it could apply to anyone.

465. It was reported that the courts in England have, on a number of occasions, come to a judicial finding that members of the LGBTQI+ community are a ‘de facto vulnerable minority’. The Faith body respondent sharing this view went on to conclude that, applying this perspective to the Scottish government’s proposal, could mean anyone who identifies as LGBTQI+ would be eligible for a protection order without further procedural requirements.

Wider community

466. Some respondents raised similar concerns about the possibility of obtaining a civil protection order in situations where there is not a clearly identified victim and that, as such, orders could be granted ‘to protect the wider community’. It was argued that there is no precedent for such an approach in existing legislation, and that to set such a precedent on this issue would be inappropriate, especially given the lack of evidence that there is a conversion practices problem in Scotland that needs to be addressed.

467. Nevertheless, some respondent thought there is a risk activists would be prepared, for example, to put pressure on local authorities and the police to apply for pre-emptive protection orders to shut down events or restrict the freedom of churches and religious leaders.

General reasons for supporting a protection order approach

468. Those who supported the proposals sometimes simply referenced the approach as seeming reasonable, or as helpful in ensuring that individuals are protected, and harm is prevented. Support for a protective and preventative focus and approach was a frequently made point, with some considering that this civil element is more important than the criminal offence. It was suggested that it is always better to prevent harm occurring in the first place and to work proactively, rather than reacting to damage that has already been done. There was also a view that the use of criminal law to stop conversion practices should be a last resort.

469. A Social work body respondent expressed a view that criminal law does not currently offer full protection from risk, and that the availability of a protection order is an important measure for the safety of individuals where balance of probability is a more appropriate burden of proof than the criminal threshold of beyond reasonable doubt. Others also commented that the approach allows for flexibility in situations where there is difficulty in meeting the standard of proof in the criminal courts, and that, for example, it could allow the police and local authorities to:

• Intervene at an early stage if any new ‘services’ offer conversion practices.
• Address situations where conversion practices have already been carried out and an order is required to protect the wider community from this harm.

470. It was also noted that the majority of people who experience conversion practices will do so at the hands of their parents, other family members, religious leaders and members of their own communities. Given this context, it was suggested that they will not necessarily want to criminalise people in order to seek their own safety.

471. Finally, a Legal body respondent commented that the approach would be consistent with that taken in comparable offences, and a Local authority respondent that it is consistent with the approach adopted in respect of forced marriage and female genital mutilation.

Possible challenges/issues to be addressed

472. In addition to explaining why they did or did not support the proposed approach, some respondents highlighted issues they thought should be considered or addressed if the proposals are taken forward. These comments tended to come from respondents who had either been supportive or said they did not know at Question 27, and included that:

• The Scottish Government should refer back to the recommendations of the Expert Advisory Group to ensure the development of this protection order is culturally sensitive and competent.
• To protect the wider community, civil protection orders require there to be evidence that the person has engaged in conversion practices on at least one prior occasion. It would be preferable if a civil protection order for the wider community could be issued on the basis of clearly demonstrated risk of the person engaging in conversion practices, such as advertising a service.
• Clarification is needed around how a protection order can protect from activities by an organisation, rather than by a named individual.
• The impact of a civil protection order being granted against a healthcare professional and the implications and practicalities for professional registration and fitness to practice need to be considered.

473. A Women’s group respondent highlighted some possible challenges based on their experience of Forced Marriage Protection Orders, including:

• Asking who would pay for the costs in applying for an order.
• The potential difficulties in ensuring statutory bodies with a duty of care are on board.
• Asking who would ensure the safety of individuals at home.