Ending conversion practices in Scotland: consultation analysis

11. Impact Assessments

11.1 - Equalities

499. The Public Sector Equality Duty requires the Scottish Government and other public bodies when they are exercising their functions to have due regard to the need to:

• eliminate unlawful discrimination, harassment, victimisation and other conduct prohibited by the Equality Act 2010
• advance equality of opportunity between people who share a relevant protected characteristic and those who do not
• foster good relations between people who share a relevant protected characteristic and people who do not share it.

500. For the purposes of the Public Sector Equality Duty, a ‘relevant protected characteristic’ refers to the nine protected characteristics set out by the Equality Act 2010: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.

Question 32: Do you have any views on the potential impacts of the proposals in this consultation on equality in relation to the nine protected characteristics?

501. Around 3,000 respondents answered Question 32.

502. The analysis below considers protected characteristics individually as listed in the Equality Act 2010. Although repetition is avoided where possible, there are clearly situations where protected characteristics intersect – for example young girls with a disability, so there is some duplication.

503. General observations included expectations that all vulnerable groups will experience positive impacts from the proposed legislation or, on the other hand, that both protected groups and society as a whole will be harmed. Other points not applicable to specific protected characteristics included:

• Issues associated with the Public Sector Equality Duty, including with respect to the data on which the need for the legislation is based and the presentation of information as part of the impact assessment process.
• Concerns about practical issues around protection of vulnerable groups from conversion practices – particularly anyone dependent on care – including ensuring access to information and support.

Age

504. The majority of points in respect of age related to potential impacts on children and young people. Reasons for anticipating positive impacts for young people included that, as a group, they are particularly vulnerable to conversion practices because they are dependent on their families. A UN report on conversion practices was noted to have found that half of those undergoing conversion practices were under the age of 18.^[59] Other points included that:

• Protecting young people from coercive behaviour fosters a positive environment.
• Children are entitled to the same human rights protections as adults and should be protected from conversion practices.

505. Reasons for anticipating negative outcomes included that the proposed legislation does not distinguish between children and adults and that children, particularly those who do not conform to gender stereotypes, may be susceptible to ‘gender ideology’ setting them on a pathway with potentially life altering consequences. Particular concerns were raised with respect to:

• The rapid rise in the number of girls who identify as trans.
• The number of children and young people referred to gender clinics who are same-sex attracted rather than trans.^[60]

506. Negative outcomes were also anticipated for young adults experiencing confusion during puberty, if they are unable to access guidance because service providers fear prosecution, and for families if parents are denied the right to do what they think best for their children.

507. As noted, comments with respect to older people were limited. The most frequently made point was that older people are more likely to hold traditional views on sexuality and gender, and that sharing such views could be interpreted as a conversion practice and lead to prosecution.

Disability

508. Positive impacts for disabled people were anticipated. Respondents referred to there being high rates of neurodiversity among LGBTQI+ people, and also suggested that disabled people may experience a higher rate of conversion practices.

509. Most concerns around negative impacts related to people who are neurodiverse, and particularly to autistic young people and people without a formal autism diagnosis. It was noted that the interim Cass Report suggested that autistic children and young people make up around a third of all children and young people attending gender clinics. It was argued that such individuals may be vulnerable to undue influence by third parties or to wrongful transition if only gender-affirming approaches are permitted, while other factors that may be contributing to distress are not explored.

510. Questions were raised with respect to access to support services for disabled people and to how harm might be recognised and reported. There were also suggestions that carers should be made aware of the rights of disabled people.

Gender reassignment

511. Positive impacts predicted with respect to gender reassignment included that protection from conversion practices will improve equality and safety for LGBTQI+ people. Including gender reassignment, as well as other forms of gender expression, was argued to be important to ensure the broadest possible protections.

512. Negative impacts were predicted in relation to preventing discussion with respect to gender reassignment particularly in light of the findings of the interim Cass Report. There were also concerns that an ‘affirmation only’ model of care risks reassignment of the gender of children and young people who have not been able to give properly informed consent, and a wider argument that more people will be harmed by hormone treatment and surgery.

513. It was suggested that there needs to be further data to understand the impact of conversion practices on those who have undergone gender reassignment.

514. Issues were also raised with respect to the rights of those who regret gender reassignment and wish to detransition. It was suggested that they would be discriminated against by the proposed legislation as, it was argued, it would be illegal to discuss de-transitioning with any gender reassigned person. By extension, it was argued that the Scottish Government would fail in its Public Sector Equality Duty^[61] towards people detransitioning, by failing to advance equality of opportunity, and not fostering good relations between them and others.

Marriage and civil partnership

515. Comments relating to marriage and civil partnership were very limited, with many of those who ticked this option taking a broad view that all protected characteristics could be impacted to some extent. Some other points related to issues around breakdown of marriages or civil partnership when one partner transitions, and these are beyond the scope of the present consultation.

516. The most frequently raised point was that the formatting of the question in the consultation paper omitted the words ‘marriage and’, referring only to ‘civil partnership’.

Pregnancy and maternity

517. Comments in relation to pregnancy and maternity were again limited. Rather than pregnancy and maternity per se, some points related to the impact of transitioning on an individual’s future fertility. Others argued that banning conversion practices could prevent individuals changing from an LGBTQI+ identity for the purposes of entering into a heterosexual relationship to have children through means of pregnancy.

518. Suggestions with respect to positive impacts of the proposals included that pregnant people who are part of the LGBTQI+ community may be harmed if subjected to conversion therapy, and that the legislation will help to encourage an environment where choices related to pregnancy, fertility and maternity are free from coercive practices.

Race

519. Some respondents anticipated negative impacts on members of certain ethnic minority communities because of their conservative religious values and cultural practices. It was argued that the proposals would represent a form of racial and religious discrimination. It was also suggested that there is a risk that cultural practices designed to support ethnic minority individuals are at risk of being stereotyped as being detrimental to particular groups, and there was a concern that the reference to ‘anti-LGBTQI+ sentiment’ in paragraph 32 of the consultation paper risks being conflated with Christian teaching in intercultural/faith communities.

520. An alternative view was that, as ethnic minority LGBTQI+ people are at a greater risk of conversion practices, they will benefit from the proposals. Although it was thought that cultural sensitivity is required, it was also argued that this should not be a pretext for accepting conversion practices.

521. The potential for ethnic minority individuals to experience racism and prejudice when reporting crime was also highlighted. The importance of removing barriers was emphasised, including a potential requirement for support when asking for protection orders and reporting criminality.

522. While most respondents who expected impacts with respect to race, referenced the intersection of race, religion and belief. Gypsy, Roma and Traveller people were also noted as having strongly defined cultural beliefs, with respect to sexuality, that could be affected. There was a concern that the proposals could lead to criminalisation and stigmatisation and that sensitive, culturally appropriate, awareness raising is required.

Religion or belief

523. Most respondents who commented on religion or belief anticipated negative impacts on religious freedom which, in some cases, were thought likely to be significant, serious, or severe. There was concern that, for some religious bodies – including those churches that adhere to traditional biblical teaching in relation to sexuality and gender – basic beliefs and practices could be criminalised. Examples of activities that it was thought could result in religious leaders, members, and parents being prosecuted and/or criminalised included: repentance from sin, prayer, engaging in consensual conversations about lifestyle and unwanted sexual attraction, and provision of pastoral support.

524. Associated points included that:

• While other groups – sometimes described as anti-religious activists – should be free to disagree with religious teaching in relation to sexuality and gender, the state should not attempt to dictate church doctrine.
• It is wrong for the consultation paper to say (in paragraph 85) that ‘statements that being gay is sinful or that transgender identity does not exist’ are examples of ‘hatred’, when they are simply different beliefs.
• Christian teaching also includes a requirement to ‘love thy neighbour’ and Christians do not pose a threat to LGBTQI+ people.

525. Although the majority of respondents who expected negative impacts with respect to religion or belief talked about their religious faith, others referenced their rejection of ‘gender identity theory.’ Some respondents referenced the Forstater case^[62] as having established a right, under the Equality Act 2010, to believe that sex is binary and immutable, and it was argued that ‘lack of belief in transgenderism’ and ‘lack of belief that someone can change their biological sex’ are protected beliefs. It was thought that the proposals could have negative impacts because anyone with gender-critical beliefs who refuses to affirm or allow a child to transition could be accused of conversion practices.

526. A third group of respondents had a very different perspective, expressing a view that the proposals will have no adverse impact on religion and belief and will not prevent people from expressing or preaching their faith. It was argued that an offence would require a specific individual (or individuals) to be targeted by behaviour that is coercive in nature and causes harm. There was also an expectation that LGBTQI+ people of colour and faith who are disproportionately likely to be targeted by conversion practices will benefit from the proposals.

527. It was argued that, in light of what was seen as widespread misinformation about the extent of legislation, clear guidance needs to be offered to religious communities.

Sex

528. Some respondents argued that girls will be impacted disproportionately by the proposals, highlighting a recent rise in the number of girls identifying as trans. It was argued that the proposed legislation will make it harder for those involved to access ‘non-affirmatory therapies’ and that those seeking to help girls and young women reconcile to their sex will be criminalised. It was also argued that there will be negative impacts on women’s rights, and particularly the rights of gender-critical women to express their views.

529. An alternative view was that there will be no negative impacts with respect to sex, although a lack of any explicit protection for intersex people was highlighted as a matter for concern.

Sexual orientation

530. As in respect of gender reassignment, some respondents predicted positive impacts with respect to sexual orientation because protection from conversion practices will improve equality and safety for LGBTQI+ people. Examples of potential benefits included improved mental health and well-being, and reducing incidence of depression, anxiety, or suicidal behaviour.

531. A very different view was that the proposals will have a negative impact for young people who are same-sex attracted and who, some respondents argued, are disproportionately represented among those presenting at gender clinics and who will be denied the chance to explore or accept their sexual orientation if only offered a ‘gender-affirming’ approach to treat ‘dysphoria’. From this perspective, the proposals were seen as ‘homophobic’, or as ‘transing away the gay’.

532. Other groups that it was argued might experience negative impacts included:

• People who are same-sex attracted and choose to remain celibate in order to adhere to their religious beliefs, who would be denied the right to seek relevant guidance from religious leaders.
• People who identify as ‘ex-gay’, who would be discriminated against by not being able to talk about their stories of changing sexual orientation or share the benefits they have experienced from their change of sexual orientation.

11.2 - Children’s rights

533. The consultation paper explains that the UN Convention on the Rights of the Child (UNCRC) is an international treaty which sets out the fundamental human rights of all children. Part 1 of the Children and Young People (Scotland) Act places a duty on the Scottish Ministers to (a) keep under consideration whether there are any steps which they could take which would or might secure better or further effect in Scotland of the UNCRC requirements; and (b) if they consider it is appropriate to do so, take any of the steps identified by that consideration.

534. All new legislation and policy that is developed by the Scottish Government must consider the impacts on the rights and wellbeing of children up to the age of 18.^[63]

Question 33: Do you have any views on the potential impacts of the proposals in this consultation on children and young people, as set out in the UN Convention on the Rights of the Child?

535. Around 1870 respondents answered Question 33.

Positive impacts

536. In general, respondents who were supportive of the proposals made relatively brief comments – for example that they expected positive impacts or that children’s rights would be strengthened. Some reiterated views on the harm done by conversion practices. Related views included that:

• Protection from intentional and coercive harm should be a fundamental right, regardless of age.
• The proposed defence of ‘reasonableness’ allows free speech and expression of counter views by parents/family members.
• The UN Committee on the Rights of the Child has condemned conversion practices and urged States to eliminate them, so the Bill will contribute to respecting children’s rights and meeting Scotland’s international obligations under the UNCRC.

537. It was noted that the need to balance a parent’s reasonable responsibilities and rights to direct, guide and control a child’s upbringing with the welfare and appropriate autonomy of the child are not unique to the context of conversion practices. However, there was also a suggestion that the boundaries between good and safe parenting and coercive conversion practices need to be much clearer. It was also argued that greater clarity is required with respect to proportionality, for example that actions that are appropriate to restricts a child’s sexual expression aged 12 could be different with respect to an older teenager.

Negative impacts

538. Respondents who anticipated negative impacts for children and young people often reiterated views on the proposals as a whole with many respondents focusing on concerns with respect to damage to family life and the relationship between parents and children. For example, it was argued that:

• The proposals would result in unwarranted intrusion and expansion of the powers of the state into the private realm of families and fail to protect parents’ rights and duties.
• The rights of parents and others to provide a safe, informed, and tolerant environment for their children to develop, and to guide those under their care would be undermined
• The parental-child relationship will be weakened in cases where parents do not affirm their child’s gender identity or sexual behaviour.
• There is no evidence that parents of faith will ‘coerce or suppress’ a child.

539. Specifically, it was argued that the importance of protecting parents’ rights and duties from an over-expansive State is expressly set out in the UNCRC preamble and in Articles 5 and 18.

540. There was also a view that the rights of children and young people need to be balanced with their vulnerability and need for protection and guidance, and that the current affirmative approach to gender identity disorders fails to achieve this balance. Some respondents argued that it is inconsistent to have court sentencing guidelines for young people that reflect research showing that brain development is not complete until the age of 25 while undermining the ability of a parent to guide their child through puberty.

541. It was also noted that the draft Bill does not mention children at all, but rather takes a ‘one size fits all’ approach without drawing particular attention to the fate of minors or others in situations of vulnerability.

Comments on individual UNCRC articles

542. Relatively few respondents who saw positive impacts for children and young people elaborated on how individual UNCRC articles are supported. In contrast, respondents who took the view that UNCRC articles are being breached often explained why they thought particular protections are being ignored. Arguments from both perspectives are outlined briefly below, focusing on the articles that are highlighted more frequently. Articles referenced by only a very small number of respondents are listed at the end.

Article 2 – Non-discrimination

1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.

2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members.^[64]

543. It was noted that although the grounds listed with respect to prohibition of discrimination do not make express reference to sexual orientation or gender identity, the UN Committee on the Rights of the Child has made clear that both sexual orientation and gender identity do fall under ‘other status’. As conversion practices single out sexual orientation and gender identity for disapproval or condemnation, it was argued that they may fall foul of Article 2. There was a view that a child’s Article 2 rights are curtailed when they are subjected to conversion practices.^[65]

544. A different perspective was that the proposals breach Article 2 because they do not protect against discrimination on grounds of religion.

Article 3 – Best interests of the child

1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.

545. Comments on Article 3 often took very different views with respect to what constitute ‘best interests’. One respondent observed that it seems clear that it is not in a child’s best interests to be subjected to coercive treatment that causes harm, but also that, on the other hand, preventing a child or young person from taking a step that may be regretted later may be in their best interests.

546. However, some respondents were clear that interfering with a child’s natural development by encouraging or enabling interventions associated with their gender identity is not acting in the child’s best interests. It was argued that allowing a child to make any life-altering decisions before they have the necessary developmental maturity or understanding of the significance of biological sex is not in their best interests.

547. The alternative view was that, by protecting children and young people from harms done by conversion practices, the proposals are in in accordance with Article 3.

Article 5 – Parental guidance & child’s evolving capacities

States Parties shall respect the responsibilities, rights and duties of parents … to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognised in the present Convention.

548. The largest number of concerns around impacts of the proposals related to Article 5, with almost all who commented arguing that it would be undermined by the proposals. Reasons included that:

• A child would be denied parental guidance.
• Parents may be criminalised or subject to civil legislation if they seek to protect their children from what they believe to be harmful implications of ‘gender ideology.’
• Inclusion of prison sentences as penalties risks children being separated from their families.

Article 6 – Right to survive and right to develop

1. States Parties recognise that every child has the inherent right to life.

2. States Parties shall ensure to the maximum extent possible the survival and development of the child.

549. While some respondents thought that the proposals are likely to result in a breach of Article 6, others anticipated positive impacts. One respondent who considered that the proposals are consistent with Article 6(2) noted that the Office of the High Commissioner for Human Rights has made clear that respecting the right to survival and development extends to ensuring ‘a full and harmonious development of the child, including at the spiritual, moral and social levels, where education will play a key role’. Preventing a child from exploring all aspects of their sexual orientation and gender identity would therefore be counter to facilitating development.

550. Alternative views included that:

• The development of children should not be prevented by adopting a gender affirmative approach and testimony from de-transitioners provides evidence that development is being thwarted.
• Puberty blockers inhibit normal development.
• The child’s right to life is already protected by existing legislation.

Article 8 – Protection and preservation of identity

1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognised by law without unlawful interference.

2. Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity.

551. Views on whether the proposals are in accordance with Article 8 were divided. One perspective was that conversion practices amount to a violation of children and young people’s right to an identity and that the proposals protect children’s right to explore and affirm their identity without coercion. It was noted that the UNCRC recognises identity as including sexual orientation and gender identity.

552. In contrast, it was argued that in supporting ‘gender affirmative’ interventions the proposals risk conflict with Article 8. An example was that social transitioning at school can include children and young people having their name changed without parental consent and that the proposals could prevent parents challenging such social transitioning.

Article 9 – Separation from parents

1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately, and a decision must be made as to the child’s place of residence.

2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.

3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.

4. Where such separation results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause while the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon request, provide the parents, the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent member(s) of the family unless the provision of the information would be detrimental to the well-being of the child. States Parties shall further ensure that the submission of such a request shall of itself entail no adverse consequences for the person(s) concerned.

553. Those respondents referencing Article 9 anticipated that this might be breached if not affirming a child’s gender identity could ultimately cause a parent to be separated from their child. It was argued that disagreement on gender identity is not akin to abuse and neglect.

554. It was also suggested that the proposals may undermine Chapter 4 of ‘The Promise’ published by the Independent Care Review^[66] which aims to keep families together.

Article 12 – Respect for views of the child

1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

555. Views on whether the proposals are in accordance with Article 12 were divided. One perspective was that a child’s ability to freely exercise Article 12 rights is curtailed when they are subjected to conversion practices, so the proposals will enhance protection.

556. An alternative argument was that Article 12 states that views of the child should be given weight according to their age and maturity, and that children do not have sufficient maturity to make decisions in relation to their gender identity. It was also observed that children can change their minds and might want help to detransition, but that providing this would apparently be contrary to the proposals.

557. A further point was that the absence of a defence of consent to conversion practices means that there is no scope for taking account of the child’s views in this respect. It was also noted that the proposed civil protection order could be sought by a range of people other than the victim, and there is no mention of ascertaining the wishes of the person to be protected.

Article 13 – Freedom of expression

1. The child shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of the child’s choice.

2. The exercise of this right may be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others; or

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

558. Most respondents who referenced Article 13 argued that it would be breached by the proposals, including because the proposals would ban consensual conversation and seeking help in relation to an unwanted sexual attraction or lifestyle. There was also concern with respect to who can guide a child in seeking information or expressing their views if the person supporting the child does not feel safe in doing so.

559. An alternative perspective was that a child’s ability to exercise their right to freedom of expression is curtailed when they are subjected to conversion practices, so the proposals will enhance protection. It was noted that the UN Committee on the Rights of the Child has emphasised ‘the rights of adolescents to freedom of expression and respect for their physical and psychological integrity, gender identity and emerging autonomy’.

Article 14 – Freedom of thought, belief and religion

1. States Parties shall respect the right of the child to freedom of thought, conscience and religion.

2. States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child.

3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others.

560. Most respondents who referenced Article 14 argued that it will be breached by the proposals, including views that:

• They not only interfere with the child’s freedom to manifest their beliefs but also have the potential to criminalise parents offering guidance and direction to their children in matters of faith, belief and conscience.
• Every child has the right to think and believe what they choose and also to practise their religion, as long as they are not preventing other people from enjoying their rights.

561. While most concerns were raised with respect to religious beliefs, it was also argued that restricting parents’ ability to express their views on the concept of gender identity and the reality of sex impinges on the parent’s right to provide direction to the child.

Article 15 – Freedom of association

1. States Parties recognise the rights of the child to freedom of association and to freedom of peaceful assembly.

2. No restrictions may be placed on the exercise of these rights other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (order public), the protection of public health or morals or the protection of the rights and freedoms of others.

562. Comments on Article 15 were brief but included that it could be breached by a ban on consensual conversation and seeking of help to follow religious beliefs. Another view was that the proposals support Article 15, as keeping people away from their friends can be part of conversion practices.

Article 16 – Right to privacy

1. No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation.

2. The child has the right to the protection of the law against such interference or attacks.

563. Comments on Article 16 focused on interference in family life and included that banning consensual conversations could be in breach of Article 16. However, it was also argued that the proposals support Article 16, as children and young people have the right to privacy regarding their sexual orientation or gender identity and that conversion practices can include restricting this privacy.

Article 17 – Access to information from the media

States Parties recognise the important function performed by the mass media and shall ensure that the child has access to information and material from a diversity of national and international sources, especially those aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health.

To this end, States Parties shall:

(a) Encourage the mass media to disseminate information and material of social and cultural benefit to the child and in accordance with the spirit of article 29;

(b) Encourage international co-operation in the production, exchange and dissemination of such information and material from a diversity of cultural, national and international sources;

(c) Encourage the production and dissemination of children’s books;

(d) Encourage the mass media to have particular regard to the linguistic needs of the child who belongs to a minority group or who is indigenous;

(e) Encourage the development of appropriate guidelines for the protection of the child from information and material injurious to his or her well-being, bearing in mind the provisions of articles 13 and 18.

564. Views expressed with respect to access to information included both that children should be protected from information that may be damaging but also that the proposals will limit a child’s access to reliable information from a variety of sources. It was suggested, for example, that stories of people who regret having transitioned might be deemed conversion practices and would potentially become illegal. An alternative view was that conversion practices can include preventing access to information and that the proposals will support Article 17.

Article 18 – Parental responsibilities and state assistance

1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.

2. States Parties shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and shall ensure the development of institutions, facilities and services for the care of children.

3. States Parties shall take all appropriate measures to ensure that children of working parents have the right to benefit from child-care services and facilities for which they are eligible.

565. Article 18 was second only to Article 5 with respect to the number of respondents predicting that it will be negatively impacted by the proposals. It was argued that the proposals prioritise the views of the state over those of the parent, and that the state should assist parents rather than seeking to penalise them.

Article 19 – Protection from violence, abuse and neglect

1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.

566. Comments in relation to protection from abuse and neglect were largely that the proposals would support Article 19, with conversion practices seen as a violation of children and young people’s right to freedom from physical and mental violence.

567. However, it was also argued that the state’s obligation to protect from violence, abuse, and neglect is already met by existing legislation.

Article 24 – Health and health services

1. States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.

2. States Parties shall pursue full implementation of this right and, in particular, shall take appropriate measures:

(a) To diminish infant and child mortality;

(b) To ensure the provision of necessary medical assistance and health care to all children with emphasis on the development of primary health care;

(c) To combat disease and malnutrition, including within the framework of primary health care, through, inter alia, the application of readily available technology and through the provision of adequate nutritious foods and clean drinking-water, taking into consideration the dangers and risks of environmental pollution;

(d) To ensure appropriate pre-natal and post-natal health care for mothers;

(e) To ensure that all segments of society, in particular parents and children, are informed, have access to education and are supported in the use of basic knowledge of child health and nutrition, the advantages of breastfeeding, hygiene and environmental sanitation and the prevention of accidents;

(f) To develop preventive health care, guidance for parents and family planning education and services.

3. States Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children.

4. States Parties undertake to promote and encourage international co-operation with a view to achieving progressively the full realization of the right recognized in the present article. In this regard, particular account shall be taken of the needs of developing countries.

568. Some of those who argued that the proposals are in breach of Article 24 referenced gender affirmation and medical interventions that, in their view, undermine the right of the child to the enjoyment of the highest attainable standard of health.

569. In contrast, others saw conversion practices as undermining Article 24, by promoting different interventions that were thought to be detrimental to the mental and physical health of children.

Article 30 – Children from minority or indigenous groups

In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language.

570. Although there were suggestions that the proposals may be at odds with Article 30, the respondents taking this view did not elaborate further.

Article 34 – Freedom from sexual exploitation

States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent:

(a) The inducement or coercion of a child to engage in any unlawful sexual activity;

(b) The exploitative use of children in prostitution or other unlawful sexual practices;

(c) The exploitative use of children in pornographic performances and materials.

571. Both positive and negative impacts were anticipated with respect to Article 34 although those taking the former view did not explain why. Predicted negative impacts included an argument that puberty blocking medication and surgeries associated with transitioning can equate to sexual abuse and exploitation. There was also a view that banning consensual conversation and seeking help in relation to unwanted sexual attraction would be in breach of Article 34.

Article 37 – Torture or cruel treatment

States Parties shall ensure that:

(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age;

(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;

(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;

(d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.

572. All those who commented thought the impact of the proposals on Article 37 would be positive, viewing conversion practices as amounting to degrading and inhumane treatment.

Other articles referenced

573. A small number of respondents in each case suggested that the proposals may breach other UNCRC articles including Articles 1, 4, 7, 10, 23, 25, 26, 27, 28, 29, 31, 33, 36 and 39.

574. Small numbers also thought that the proposals would support Articles 11, 28 and 41.

11.3 - Fairer Scotland Duty

575. The Fairer Scotland Duty came into force on 1 April 2018 and places a legal responsibility on named public bodies, including the Scottish Government, to actively consider how they can reduce inequalities of outcome caused by socio-economic disadvantage when making strategic decisions. This means that as well as considering the impact on people with protected characteristics, the Scottish Government must consider how any proposals will impact on people depending on their economic background when making strategic decisions. For example, if proposals would have a specific impact on people with low incomes, or who live in an area of deprivation.

Question 34: Do you have any views on the potential impacts of the proposals in this consultation on socio-economic inequality?

576. Around 820 respondents answered Question 34.

577. Some comments reflected broad views on the legislation as a whole. A point of agreement was that members of the LGBTQI+ community often experience economic inequalities, but thereafter views often diverged. One broad perspective was that proposed measures to end conversion practices could result in only ‘trans-affirming’ approaches being adopted, leading to more people transitioning and, by extension, increasing socio-economic inequality. An alternative view was any efforts to expand and protect LGBTQI+ rights will have social, health and economic benefits to LGBTQI+ people and can help a marginalised group to lead fuller lives.

578. The issue highlighted most frequently in relation to socio-economic inequality was legal costs. It was suggested that poorer people accused of conversion practices are unlikely to be able to afford legal advice or representation and, as a result may be at greater risk of conviction. They may also be unable to afford to pay fines. Legal costs could also make it harder for victims to come forward, with examples including being unable to meet costs of obtaining a civil protection order or of taking other legal action.

579. Some respondents hoped that ending conversion practices could have a positive impact in reducing homelessness among young LGBTQI+ people and, by extension, improving opportunities in relation to accessing education and employment. A related benefit would be reduced demand on services supporting homelessness. However, an alternative view was that the proposals may cause family breakdown, and thereby increase homelessness.

580. Negative impacts were anticipated with respect to the opportunities for people with limited financial resources to access services if those who provide them are threatened with criminalisation. Examples included:

• Loss of counselling services that are currently provided free of charge.
• Reduced access to professionals offering evidence-based services and approaches and denial of a choice of services and treatments, including ‘wait and see’ therapy.

581. It was also argued that reduced funding for mental health services leaves those at socio-economic disadvantage with less access to quality therapies as private health will not be an option.

582. Negative impacts on churches and faith groups were predicted, with the potential to make existing socio-economic inequalities worse. It was suggested that family and social cohesion among ethnic minority individuals and communities could be impacted as well as people of faith.

583. The importance of providing information about a ban on conversion practices in an accessible way irrespective of socio-economic background was also highlighted. It was thought that this could be challenging in communities where English is not the main language spoken.

11.4 - Island Communities

584. Section 7 of the Islands (Scotland) Act 2018 states that a relevant authority – which includes the Scottish Ministers – must have regard to island communities when carrying out its functions. Scotland’s islands face particular challenges around distance, geography, connectivity and demography, so it is important that this is considered when developing legislative proposals. It is also important that the islands receive fair and equitable treatment, and that policy outcomes are tailored to their unique circumstances.

Question 35: Do you have any views on potential impacts of the proposals in this consultation on communities on the Scottish islands?

585. Around 780 respondents answered Question 35.

586. Faith body respondents in particular thought that the proposals will have, or are already having, adverse effects in faith communities on the Scottish Islands, where many hold traditional religious and cultural values. It was reported that the proposals are creating fear of marginalisation and some respondents suggested that, in the Western Isles in particular, there is a high likelihood that Christian ministers, parents and others will face prosecution for holding to their beliefs. The impact of civil protection orders on smaller, tight knit communities island communities was suggested to be of particular concern.

587. From the perspective of victims, it was argued that the legislation may be harder to enforce in isolated communities that may close ranks to protect offenders. It was suggested both that sensitive implementation of the proposals in terms of planning, and engagement of agencies with local authorities and community bodies could be effective and that additional resources may be required to ensure LGBTQI+ people living on islands have access to support services.

11.5 - Data protection and privacy

588. Data protection and privacy impact assessments help the Scottish Government to assess the risks of proposed legislative changes that are likely to affect the way in which personal data is used.

Question 36: Do you have any views on the potential impacts of the proposals in this consultation on privacy and data protection?

589. Around 830 respondents answered Question 36.

590. General comments included that privacy and data protection are both important and should be protected. Issues relating to the privacy and data of both the victim and accused were noted.

591. Impacts anticipated with respect to privacy, included general concerns around invasion of privacy and intrusion into family life. Specific circumstances where privacy could be compromised were thought to include:

• Criminalisation of private, consensual conversations, including professional conversations. Associated concerns were that records of professional conversations could be seized or that private conversations could be somehow spied upon.
• Absence of a requirement for consent in application for a civil protection order, affecting the privacy of people who are LGBTQI+.

592. It was suggested that victims might not come forward because of concerns about privacy, for example that they might be outed in seeking help. It was argued that reporting restrictions should be available at all levels of the criminal justice process.

593. For the accused there was concern that being arrested but not charged should not affect future employment in terms of disclosure or Protecting Vulnerable Groups (PVG) status. There was also concern about the long-term impact of court records on individuals who have, it was argued, have only been guilty of exercising fundamental rights to freedom of thought and speech.

594. Potential impacts identified specifically with respect to the Data Protection Act (2018)^[67] included that sexual orientation is considered special category (sensitive) personal data, which requires a legal basis for its disclosure. It was argued that issuing a civil protection order may result in sharing of sensitive personal information without a legal basis as per Article 9(2) of UK GDPR, and/or without the knowledge and consent of the person the order seeks to protect. It was suggested that lack of recognition for consent may lead to violations of privacy notices, particularly when sharing information poses a risk of harm to the individual.

595. There was also an argument that therapists should not be able to use UK GDPR to avoid disclosing their records to the police and that UK GDPR has exclusions to allow information sharing if a person is at risk.

11.6 - Business

596. A Business and Regulatory Impact Assessment (BRIA) is used to analyse the costs and benefits to businesses and the third sector of any proposed legislation or regulation, with the goal of using evidence to identify the proposal that best achieves policy objectives while minimising costs and burdens as much as possible.

Question 37: Do you have any views on the potential impacts of the proposals in this consultation on businesses and the third sector?

597. Around 830 respondents answered Question 37.

598. Potential negative impacts on the third sector were highlighted, particularly for religious bodies that teach celibacy outside heterosexual marriage. It was anticipated that those bodies with charitable status or their affiliated charities could be impacted, potentially criminalising activities that are in line with their charitable objectives. There was a related concern around the risk of prosecution of pastors or youth workers who counsel people to follow biblical beliefs.

599. Potentially negative impacts were also suggested for:

• Other charities that do not follow a ‘gender-affirming’ model, including concerns with respect to their funding.
• Businesses that are damaged by prosecution or social media campaigns, even if not convicted.
• Social care, if counselling or therapeutic interventions are at risk of being criminalised.
• Professional therapists.

600. A general point was that it will be important that legislation and guidance is clear, so that businesses and third sector organisations have relevant information.

601. Additional demand on third sector organisations providing support to the LGBTQI+ community was also anticipated, including with respect to operating a conversion practices helpline. It was suggested that additional resources could be required, including to train staff on how to apply for civil protection orders.

11.7 - Environment

602. In Scotland, public bodies, including the Scottish Government, are required to assess, consult on, and monitor the likely impacts that their plans, programmes, and strategies will have on the environment. This helps to better protect the environment, aims to ensure that any development is sustainable, and increases opportunities for public participation in decision-making.

Question 38: Do you have any views on the potential impacts of the proposals in this consultation on the environment?

603. Around 405 respondents answered Question 38, although some respondents commented on impacts on the social environment, while others did not see how the question could be relevant.

604. From the comments available, no substantive impacts on the natural environment were identified.