Ending conversion practices in Scotland: consultation analysis
Analysis of the responses to our consultation on proposals for legislative change to end conversion practices in Scotland.
Footnotes
1 A small number of empty or duplicate responses were removed before the analysis began.
2 Lesbian, Gay, Bisexual Transgender Queer, Intersex, plus
3 Lesbian, Gay, Bisexual.
4 Question 1: Do you support our approach to defining conversion practices which focuses on behaviour motivated by the intention to change or suppress a person’s sexual orientation or gender identity?
5 Existing legislation cited included the offence of Threatening or abusive behaviour in section 38 of the Criminal Justice and Licensing (Scotland) Act 2010.
6 Non-directive guidance or counselling is based on listening, supporting and advising, without directing a client’s course of action.
7 Many respondents referred to definitions when commenting on key terms such as 'conversion practices'. The consultation paper referenced to a number of key terms, which the Scottish Government consider to be important concepts for the proposed legislation. However, only Part 8 of the consultation paper sets out specific definitions.
8 A gender affirming approach could be described as one in which the service or course of behaviour affirms the sexual orientation or gender identity that another person considers themselves to be. The World Health Organisation has set out that gender affirming care ‘can include any single or combination of a number of social, psychological, behavioural or medical (including hormonal treatment or surgery) interventions designed to support and affirm an individual’s gender identity’.
9 Available here: Expert Advisory Group Report and Recommendations for Ending Conversion Practices
10 People who are Lesbian, Gay, Bisexual, Transgender, Queer and Intersex, where the + stands for other identities not covered by the acronym.
11 A list of the acronyms used in the report is available at Annex 1.
12 This may be a reflection of some of the prepared materials (as at Para 59) not giving suggested answers for these questions.
13 A small number of duplicate responses were identified. The content at these responses has been merged into a single response in each case. Entirely blank responses were also removed.
14 The questions asked in the Easy Read version differed in places from the standard version. Respondents’ answers to the closed questions are presented in an Annex 3 to this report. Their further comments have been considered at the most appropriate question within the main analysis.
15 Individuals were not asked to provide any biographical information, for example relating to age, sexuality, gender identity, ethnicity or whether they live in Scotland.
16 Question 2 asked respondents to explain their reasoning at Question 1 i.e. Do you support our approach to defining conversion practices which focuses on behaviour motivated by the intention to change or suppress a person’s sexual orientation or gender identity?
17 Article 3: Prohibition of torture. No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
18 Available at: The UK Government Research Report on the 2017 LGBT survey
19 Paragraph 83 states: A notable aspect of conversion practices, is that the intention to change or suppress a person’s sexual orientation or gender identity is not always accompanied by an intention to harm the victim. Conversion practices are often driven by a desire to help or protect the person being subjected to them even though harm is ultimately caused. Because of this, the proposed offence does not require it to be proven that the perpetrator to intend to cause harm to the victim or to be reckless as to whether harm would occur. However, for the offence of engaging in a conversion practice to be committed, harm will need to have resulted, nonetheless.
20 Section 12 of the Equality Act 2010 states that: (1) Sexual orientation means a person’s sexual orientation towards (a) persons of the same sex, (b) persons of the opposite sex, or (c) persons of either sex. (2) In relation to the protected characteristic of sexual orientation (a) a reference to a person who has a particular protected characteristic is a reference to a person who is of a particular sexual orientation; (b)a reference to persons who share a protected characteristic is a reference to persons who are of the same sexual orientation.
21 Point of clarification: Paragraph 61 of the consultation paper notes that the proposals use the ordinary meaning for both the term sexual orientation and gender identity, as found in the Oxford English Dictionary. These are:
Gender Identity: an individual’s personal sense of being or belonging to a particular gender or genders, or of not having a gender.
Sexual Orientation: a person’s sexual identity in relation to the gender to whom [they] are usually
attracted; (broadly) the fact of being heterosexual, bisexual, or homosexual.
22 Gender reassignment is a protected characteristic under the Equality Act 2010. Section 7 provides:
(1) A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex.
(2) A reference to a transsexual person is a reference to a person who has the protected characteristic of gender reassignment.
(3) In relation to the protected characteristic of gender reassignment—
(a) a reference to a person who has a particular protected characteristic is a reference to a transsexual person;
(b) a reference to persons who share a protected characteristic is a reference to transsexual persons.
23 Aidan O’Neill KC for the Christian Institute. Available at (with highlighting added by the Christian Institute): Aidan O'Neill KC - Conversion practices opinion February 2024 highlighted.pdf (christian.org.uk)
24 More information about this law is available from the Victorian Equal Opportunity and Human Rights Commission website here: Have you experienced a change or suppression practice? | Victorian Equal Opportunity and Human Rights Commission
25 The response submitted to the UK Government consultation on Banning Conversion Therapy (January 2022) is available here: Response to the UK government consultation on banning conversion therapy (26 January 2022) | EHRC (equalityhumanrights.com)
26 A gender affirming approach could be described as one in which the service or course of behaviour affirms the sexual orientation or gender identity that another person considers themselves to be. The World Health Organisation has set out that gender affirming care ‘can include any single or combination of a number of social, psychological, behavioural or medical (including hormonal treatment or surgery) interventions designed to support and affirm an individual’s gender identity’.
27 In 2020, Dr Hilary Cass was appointed by NHS England and NHS Improvement to chair an Independent Review of Gender Identity Services for children and young people. The aim was to ensure that children and young people who are questioning their gender identity or experiencing gender dysphoria, and who need support from the NHS, receive a high standard of care that meets their needs and is safe, holistic and effective. The Final Report (available at Final Report – Cass Review) was not published until 10 April 2024, a few days after the consultation closed, so the report referenced by respondents is the Interim Report (available at: Interim report – Cass Review) published in February 2022.
28 Rights under the European Convention on Human Rights.
29 The Memorandum of Understanding (MoU) on Conversion Therapy in the UK (published in 2017 with an update in 2022) is a commitment to ending the practice of conversion therapy in the UK. It was signed by 25 health, counselling and psychotherapy organisations, including NHS Scotland. It makes it clear that conversion therapy in relation to gender identity and sexual orientation is unethical, potentially harmful and is not supported by evidence.
30 Information available at: Working Group on Banning Conversion Practices | GOV.WALES
31 At para 58, the consultation paper notes that the intention is to include conversion practices undertaken against asexual people.
32 The suggested alternative definition was that ‘sexual orientation refers to a person’s emotional, affectional and/or sexual attraction to persons of a different gender, the same gender or more than one gender and includes the absence of such attractions.’
33 The suggested alternative definition was that ‘gender identity refers to how a person sees themself in relation to gender, whether this is as a man or a woman, somewhere between or beyond these descriptions, or as having no gender. It may be the same or different to what would be expected based on their sex recorded at birth.’
34 Point of clarification: CBT is only directive in terms of thinking patterns rather than a specific intended outcome.
35 Paragraph C7 of schedule 5 of the Scotland Act 1998 has the subject heading ‘Consumer protection’ and reserves to the UK Parliament the regulation of, amongst other things, misleading and comparative advertising, except regulation specifically in relation to food, tobacco and tobacco products. Any bill introduced to the Scottish Parliament will be certified as being within the legislative competence of the Scottish Parliament.
36 Article 9: Freedom of thought, conscience and religion
1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching practice and observance.
2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
37 The Domestic Abuse (Scotland) Act 2018 (or in any other Scottish legislation) does not include a definition of coercive control.
38 Article 5 concerns parental guidance and a child’s evolving capacities, Article 18 covers parental responsibilities and state assistance and Article 27 relates to an adequate standard of living. Full definitions are available at: UN Convention on Rights of a Child (UNCRC) - UNICEF UK
39 Available at BACP Ethical Framework for the Counselling Professions
40 The report, known as the Cooper Report is available at: The Cooper Report 2021 - Ozanne Foundation
41 Professions with a legal standing and therefore statutorily regulated can be found here: UK regulated professions and their regulators - GOV.UK (www.gov.uk). For professions not regulated by law, there are organisations such as the Professional Standards Authority - Find Registers who offer voluntary regulation through their accredited voluntary register scheme: FAQs - What is an Accredited Register (professionalstandards.org.uk).
42 Point of clarification: The Domestic Abuse (Protection) (Scotland) Act 2021 contains Domestic Abuse Protection Notices and Orders to operate alongside the criminal offence as to domestic abuse in Part 1 of the Domestic Abuse (Scotland) Act 2018. The relevant provisions of the Domestic Abuse (Protection) (Scotland) Act 2021 are not yet in force. The provisions of the Prohibition of Female Genital Mutilation (Scotland) Act 2005 which relate to Female genital mutilation protection orders have not yet been brought into force.
43 The Scottish Women’s Convention. (2023). Misogyny in Scotland. Available at: Misogyny Report June 2023 (scottishwomensconvention.org)
44 Point of clarification: The substantive provisions of the Domestic Abuse (Protection) (Scotland) Act 2021 are not yet in force.
45 The example given was of the World Professional Association of Transgender Healthcare (WPATH) Guidelines.
46 Article 8 of the ECHR states that: (1) Everyone has the right to respect for his private and family life, his home and his correspondence; (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
47 Point of clarification: The draft provision included in the consultation paper did not require five separate criteria to be met for behaviour to be considered coercive.
48 Although respondents tended not to cite specific legislation, at other questions there was reference to the offence of Threatening or abusive behaviour under section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 and, separately, the Equality Act 2010.
49 Handyside v United Kingdom 5493/72 [1976] ECHR 5, (1976) 1 EHRR 737 at 751) was cited, along with the case of Redmond - Bate v DDP [2000] HRLR 249, and the comments of Lord Justice Sedley: ‘Free speech includes not only the inoffensive, but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to promote violence. Freedom only to speak inoffensively is not worth having.’
50 Point of clarification: Under summary procedure, the maximum sentence available is 12 months.
51 Respondents referenced a range of literature in support of this view, including:
Diamond, LM; Rosky, CJ; “Scrutinizing Immutability: Research on Sexual Orientation and U.S. Legal Advocacy for Sexual Minorities.” Annals of Sex Research. 00(00), 1-29, 2016.
Transgenderism desistance statistics: APA Diagnostic and Statistical Manual, 5th edition, “Gender Dysphoria,” p. 455.
Cohen-Kettenis PY, et al. “The treatment of adolescent transsexuals: changing insights.” J Sex Med. 2008 Aug;5(8):1892-7.
Kaltiala-Heino et al. Two years of gender identity service for minors: overrepresentation of natal girls with severe problems in adolescent development. Child and Adolescent Psychiatry and Mental Health (2015) 9:9.
52 No specific evidence was cited, but it was suggested that very reputable medical and psychological associations agrees that there is no evidence that a person’s sexual orientation or gender identity can be changed.
53 As noted previously, the Cass Review Final Report was not published until 10 April 2024, a few days after this consultation closed.
54 Lautsi v. Italy (2011) 54 EHRR 3. The judgement is available at: LAUTSI AND OTHERS v. ITALY JUDGEMENT (coe.int)
55 TC v. Italy [2022] ECtHR 54032/18. The judgement is available at: T.C. v. ITALY JUDGEMENT (coe.int)
56 Aidan O’Neill KC for the Christian Institute. Available at (with highlighting added by the Christian Institute): Aidan O'Neill KC - Conversion practices opinion February 2024 highlighted.pdf (christian.org.uk)
57 Campbell and Cosans v. United Kingdom (1982) 4 EHRR 293. The judgement is available at: CAMPBELL AND COSANS v. THE UNITED KINGDOM JUDGEMENT (coe.int)
58 Point of clarification: The proposal is that the court must take such wishes and feelings into account.
60 Elsewhere the respondent making this point referenced: Sex, gender and gender identity: a re-evaluation of the evidence | BJPsych Bulletin | Cambridge Core
61 Section 149 of the Equality Act 2010: The general equality duty requires public authorities, in the exercise of their functions, to have due regard to the need to: eliminate unlawful discrimination, harassment and victimisation and other prohibited conduct; advance equality of opportunity between people who share a relevant protected characteristic and those who do not; and foster good relations between people who share a protected characteristic and those who do not.
62 Maya Forstater v Center for Global Development Europe and Others [2021] IRLR 706
63 Point of clarification: Subsequent to the consultation paper’s publication on 9 January 2024, these legal duties have since been repealed. New legal requirements to extend and protect children’s rights came into effect on 16 July 2024, under the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 – also known as the UNCRC Act.
64 Point of clarification: The UNCRC requirements set out in the UNCRC (Incorporation) (Scotland) Act 2024 have been derived from the Convention and the 2 optional protocols ratified by the United Kingdom and may be set out in different terms. The UNCRC (Incorporation) (Scotland) Act 2024 can be found in full here: United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 (legislation.gov.uk)
65 Point of clarification: Rights under Article 2 of the UNCRC must be exercised in conjunction with another right under the UNCRC.
66 Available at: ‘The Promise’ published by the Independent Care Review (carereview.scot)
67 The Data Protection Act 2018 has been amended to incorporate the UK General Data Protection Regulation (GDPR) into UK law.