Ending conversion practices in Scotland: consultation analysis

2. Defining conversion practices for this legislation

72. The consultation paper notes that conduct associated with conversion practices can vary greatly from case to case and that those who have experienced conversion practices report a broad range of conduct being carried out against them. Common forms of conversion practices described by victims include the use of talk-therapy, counselling, and certain faith-based practices. The consultation paper also notes that conversion practices can also extend to physical and emotional abuse and practices such as forced marriage or being trafficked overseas and may take the form of cumulative, coercive behaviour over a period of time.

2.1 - The intention to change or suppress a person’s sexual orientation or gender identity

73. The Scottish Government considers that a purpose or intention to change or suppress another individual’s sexual orientation and/or gender identity is core to the definition of conversion practices. This will not require proof that the perpetrator(s) has specific knowledge of that person’s sexual orientation or gender identity. The intention can be based on what the victim considers their sexual orientation and/or gender identity to be, or it can be based on the presumption of the perpetrator(s) as to the sexual orientation or gender identity of the victim.

74. The proposed legislation:

• Will not apply where a person is providing advice, guidance or support for an individual to explore their thoughts, feelings and options or for these to be questioned.
• Will not include non-directive and guidance and support to a person who might be questioning their sexual orientation or gender identity or experiencing conflict or distress, whether that is provided by a healthcare practitioner, a family member, or a religious leader, provided there is no intention or aim aligned with what the Scottish Government consider to be conversion practices.
• Will not apply to non-directive or non-coercive discussions, questioning, guidance or general parental direction, guidance, controls and restrictions where these allow the individual to come to their own decision, whatever that may be, and do not direct them to a particular pre-determined sexual orientation or gender identity that is considered ‘preferable’.

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?

75. Responses to Question 1 by respondent type are set out in Table 2 below.

Table 2 – Question 1

Respondent breakdown	Yes	No	Don’t know	Total
Organisations:	n/a	n/a	n/a	n/a
Campaign group, policy forum or think tank	3	5	0	8
Faith or belief body or group	6	75	1	82
Family or parental support group	2	2	0	4
LGB group	0	3	0	3
LGBTQI+ group	13	0	0	13
Medical, psychology or counselling group or body	11	6	0	17
Political party or trade union	6	4	0	10
Public body or local authority	1	0	0	1
Social work, legal or community safety group or body	3	1	0	4
Third sector	7	0	0	7
Women's groups	1	5	1	7
Total organisations	53	101	2	156
% of organisations	34%	65%	1%	n/a
Individuals	2523	3008	55	5586
% of individuals	45%	54%	1%	n/a
All respondents	2576	3109	57	5742
% of all respondents	45%	54%	1%	n/a

76. A small majority of respondents – 54% of those answering the question – did not support the 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.

77. Those not supporting the approach rose to 65% of organisations and included most of the Campaign groups, Faith or belief bodies or groups and Women’s groups and all LGB groups.

78. Although 45% of all respondents (and 45% of all Individuals) supported the approach, this dropped to 34% of organisations. This was made up of most or all of the LGBTQI+ groups, Medical, psychology or counselling bodies, Political parties or trade unions, Social work, legal or community safety bodies and Third sector respondents. Family or parental support groups were evenly divided at this question.

79. Although with some small variations, this general pattern of response was repeated across a number of the closed questions.

Question 2: Please give the reason for your answer to Question 1.

80. Around 5,300 respondents gave their reasons.

81. As noted above, respondents often made relatively lengthy comments at Question 2, particularly if they had disagreed at Question 1. Many of the issues raised did not address Question 2 specifically, but often set out a broader position on the Scottish Government’s approach to ending conversion practices in Scotland. The analysis below provides an overview of the themes raised and opinions expressed, albeit that some of these do not relate directly to the question’s focus on the intention to change or suppress a person’s sexual orientation and/or gender identity.

Reasons for not supporting the approach

Overview

82. Among respondents who did not support the proposed approach, a majority highlighted concerns regarding potential impacts on faith bodies and their members, while a substantial minority focused primarily on issues relating to inclusion of gender identity. From both perspectives, there were concerns for the responsibilities and rights of parents. Respondents also raised a range of issues relating to the evidence base for the proposed legislation, the definitions set out in the draft Bill, and potential impacts on human rights as well as on persons with protected characteristics under the Equality Act 2010.

83. It was also suggested that the proposed legislation may infringe upon reserved UK Parliament legislative powers, although further detailed was not provided. The specificity as to how was not provided.

Failure to demonstrate that new legislation in Scotland is necessary

84. Among respondents who did not support the proposed approach there was condemnation of abusive, coercive, and violent practices including from many Faith body respondents. However, there was also a view that such behaviours are covered by existing legislation, with respondents’ suggestions including:

• civil law that allows the award of damages for harm intentionally and wrongfully inflicted, including harm as set out in ECHR Article 3^[17], as well as sexual, physical, and emotional abuse, and abuse taking the form of neglect
• the Protection from Harassment Act 1997
• the Equality Act 2010
• obligations imposed on legally regulated professionals.

85. There was a view that the consultation is not clear as to exactly what the proposed legislation is seeking to ban that is not already illegal in Scotland.

86. It was also argued that the Scottish Government has failed to show that conversion practices are happening in Scotland and that the evidence cited in the consultation paper is of poor quality. In particular, the UK Government’s 2017 ‘LGBT’ survey^[18] was highlighted as being self-selecting and unrepresentative in nature, lacking data specific to Scotland, and lacking a definition of ‘conversion therapy/practice’ which was therefore left open to individual interpretation.

87. A Medical, psychology or counselling respondent suggested that, as a first step, the Scottish Government should fund research into the prevalence and effects of conversion practices in Scotland, including any physical or psychological harm caused, to ascertain whether new legislation is required.

Lack of clarity around definitions

88. A number of respondents raised concerns about the terminology used in the proposals. These concerns often related to the potential impact of a lack of clarity and common understanding, with some concerned that different interpretations of key words or concepts – such as what are and what is meant by ‘conversion practices’ – could result in unfair criminalisation.

Conversion practices:

89. There was a frequent view that the proposed scope of conversion practices is too broad or that actions covered by this term are not clear. A number of Faith body respondents argued that, although the consultation paper states an objective to ‘provide clarity about what actions are permissible and what are not’, it does not do so, and there were concerns that the proposals could criminalise conversations and other interactions that are otherwise lawful.

90. It was observed by some respondents that, while the consultation paper does seek to provide reassurance on behaviours that would not be classed as conversion practices, these do not appear on the face of the draft Bill. Respondents suggested that without a sufficiently clear definition of key terms, the parameters of legislation would need to be established through case law. The associated concern was that this could result in individuals facing accusations and potentially complex and stressful criminal trials being required to establish precedents. Some respondents reported a comment (made in a personal capacity by the Dean of the Faculty of Advocates on X, formerly Twitter) ‘that there is not a legally coherent definition of conversion practices’.

91. Specific suggestions included that:

• The Scottish Government should look towards identifying, developing and including a universal definition of conversion practices.
• Providing examples would give a clearer overview of how the law might be applied, helping to provide clarity for both faith groups and for the courts to interpret the proposed legislation.

Conversion:

92. Some respondents saw use of the term ‘conversion’ as problematic, with several Faith body respondents noting that the concept of conversion is central to Christian life. It was suggested that different wording should have been used to avoid any impression of discrimination against those of Christian faith, and that the consultation paper does note potential alternatives at paragraph 18.

Intention:

93. There was concern that paragraph 83 of the consultation paper provides for an offence to be committed even where the alleged perpetrator(s) is ‘driven by a desire to help or protect the person’.^[19] Some respondents stated that it would be usual for a criminal offence to require an intent to cause harm or recklessness as to harm caused and it was argued that the ‘intent’ element of the offence being to change or suppress sexual orientation and/or gender identity rather than to cause harm is unjust.

Change or suppress:

94. Issues in respect of inclusion of ‘suppression’ and what this might mean in practice are considered at Questions 3 and 4. Some respondents commented on what they saw as an assumption that sexual orientation or gender identity can never be changed, sometimes citing as evidence the personal testimonies of those who claim experiences to the contrary. People who identify as ‘ex-gay’ and people who chose to detransition were referenced as illustrating that both sexual orientation and gender identity can change.

Sexual orientation:

95. There was a small number of references to the definition of sexual orientation and the reference in paragraph 62 of the consultation paper to an intention to ‘explicitly provide that sexual orientation includes the situation where the victim has no sexual orientation towards other persons’. It was noted that this use of ‘sexual orientation’ would differ from the definition set out in the Equality Act 2010^[20] which was seen as likely to lead to confusion, and that it would be problematic to propose that suppressing someone’s ‘sexual orientation’ is an offence without a clear definition of what this means.

Gender identity:

96. Some Faith bodies, Women’s groups, LGB groups and some Family or parental support group respondents were among those who thought that the consultation paper does not define gender identity,^[21] arguing that no legal definition of gender identity exists or that it is wrong to create law around a concept that is both ’disputed’ and ’ill-defined’.

97. It was also noted that gender identity is not a protected characteristic under the Equality Act 2010, and it was argued that embedding it into law could interfere with the Act’s protections for understanding sex as binary and immutable.^[22]

LGBTQI+:

98. The consultation paper states that conversion practices ‘are promoted within an ideology that views LGBTQI+ (Lesbian, Gay, Bisexual Transgender Queer, Intersex, plus) identities as wrong and believes they can be changed’. Comments on this terminology included that ‘intersex’ is a genetic condition so cannot belong in the category of people susceptible to ‘conversion therapy’, and that it is unclear what ‘Q+’ represents. An LGB group respondent argued that ‘LGB’ and ‘T+’ identities have completely different issues and should not be put together.

Potential impacts on faith bodies and their members

99. A frequently made comment, including by some Faith body respondents, was that, as drafted, the Bill will impact the teaching and everyday activities of some faith bodies, including some Christian denominations, and particularly those that take a conservative view in their teaching on sex and sexuality. This included an argument that the proposals risk conflating Christian sexual ethics with ‘harm’.

100. Although the consultation paper states that respecting freedom of religion and expression is a policy objective (paragraph 41) there was a view that this will not be achieved, despite the statement (set out in paragraph 45 of the consultation paper) that the legislation does not include non-directive guidance. Some respondents noted that they did not find this reassuring and it was argued 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.

101. It was argued that parents and care givers cannot be expected to be non-directive when talking with their children about major issues. Frequently made points included that the proposed legislation risks criminalising both religious leaders whose role is to guide others in line with their beliefs and parents who seek to protect their child(ren) from things they believe to be harmful or from decisions that the child may come to regret. There was also a view that ‘non-directive guidance’ is a contradiction in terms.

102. There was also reference to a legal opinion^[23] that the proposed legislation will ‘involve a marked intrusion and expansion in the powers of the State into the private realm of families, and over the expression of orthodox religious teaching by faith groups’ with potential to ‘criminalise parents who sought to exercise any form of parental authority or guidance in relation to their children as regards issues around sexuality and gender which conflicted with the official position now adopted by the State’.

103. The consultation paper references legislation enacted in the State of Victoria, Australia (among others) as providing an international precedent for criminalising conversion practices. However, to some respondents, guidance accompanying the law in Victoria^[24] provided illustrations of the negative consequences of this legislation – with references to inclusion of instructions on ‘how to pray’ and to a parent who refuses to support their child receiving puberty blocking medication being guilty of conversion therapy.

104. In their response to the UK Government’s consultation, The UK Equality and Human Rights Commission was reported to have said^[25] that ‘legislation must be carefully drafted in order…to avoid criminalising mainstream religious practice such as preaching, teaching and praying about sexual ethics’ and that ‘conversion therapy’ will need to be carefully defined in any legislation in order to ensure that harmful practices are caught whilst mainstream religious practices such as preaching, teaching and praying about sexual ethics or gender roles, including in relation to children and young people under 18, are not criminalised’.

105. In paragraphs 130 - 137, the consultation paper explains why the Scottish Government has concluded that consent to conversion practices should not be available as a defence under the proposed legislation. Respondents argued that this means that the legislation could stand in the way of an individual’s right to seek counselling on a voluntary basis – for example if wishing to reconcile their faith with their sexual orientation and/or gender identity and that a conversation to which all involved agree to have should not be considered a conversion practice.

106. There was a view that the definition of conversion practices should explicitly exclude voluntary, non-coercive religious counselling that aims to offer support and guidance in accordance with an individuals’ wishes and with compassion and understanding. (Issues in relation to consent are covered further at Questions 18 and 19.)

107. There was also concern amongst some respondents that, although the proposals seek to protect public statements of belief, Christian teaching is mostly carried out in smaller group conversations or one-to-ones, where there would be no protection for those involved in teaching or facilitating such conversations.

Issues relating specifically to inclusion of gender identity

108. There was a view that it is wrong to base legislation around what was considered, by some respondents, to be a subjective concept, with no or limited evidence base and then, potentially, criminalise those who question it, or who do not agree that gender can take precedence over sex. It was argued that, since the proposals are drafted on the basis that any individual may be uncertain of their own gender identity, it is difficult to see how a court could decide that conversion practices related to gender identity have occurred.

109. There was also an argument that sexual orientation and gender identity are different things that should not be conflated and that for this reason references to gender identity should be removed from the draft legislation. While some respondents were clear that they would support a ban on seeking to change or suppress a person’s sexual orientation but not their gender identity, there was also a view that legislation was not necessary in this space.

110. Concerns were expressed with respect to a gender-affirming approach^[26] which some respondents thought has led children and young people who are confused about their sexual orientation to embark on a medicalised pathway with associated health risks. Some also argued that some of these children and young people will later turn out to be same-sex attracted, rather than trans. It was argued that persuading such young people that they are trans could be viewed as a form of conversion therapy - this was sometimes described as ‘transing away the gay’.

111. There were also concerns for the position of both the parents of children and young people who are questioning their gender and the medical/counselling professionals who may be involved in their treatment. With respect to parents, it was argued that anything other than a gender-affirming approach could be criminalised. In relation to professionals, there was a suggestion that the very talking therapies advocated by the interim report of the Cass Review^[27] a patient’s gender identity.

112. A Campaign group respondent also argued that the proposed legislation does not adequately distinguish between expression of gender identity and a decision to undergo medical procedures to align the biological body with the person’s perception of their gender. They sought clarity as to when an offence would be viewed as having been committed:

• Would spending time discussing the potential negative effects of hormones or surgery with a client, and dissuades them from going down this path, be considered as committing an offence?
• Would a therapist entering therapy with the intention of helping a client to feel more comfortable in their sexed body be committing an offence if their client moved from a position of identifying as trans to identifying as cisgender?

Reasons for supporting the approach

Preventing harm

113. The issue raised most frequently by respondents who supported the overall approach to defining conversion practices was the harm caused by these practices, which were frequently described as ‘unethical’ and ‘cruel’. Some LGBTQI+ groups and Third sector respondents cited evidence relating to significant harm that can be caused to those who are subject to conversion practices, including self-harm and suicide.

114. A number of individual respondents referenced personal experience of conversion practices, the experience of family members or friends, or professional experience of working with those who have been subject to such practices. This included comments comparing conversion practices with other abusive behaviours, such as bullying and domestic violence. Respondents described significant, long-lasting psychological and physical harms including depression and suicidal ideation, significant damage to self-esteem, and feelings of intense shame, isolation and loneliness. There was reference to individuals having worked for many years to address the mental health harms caused by conversion practices and some had experienced long-term difficulties accepting their sexual orientation and/or gender identity after being subject to conversion practices.

115. There were also references to conversion practices being in contravention of various human rights^[28] including with respect to non-discrimination, health, bodily autonomy, freedom of expression and the rights of the child. The Memorandum of Understanding (MoU) on Conversion Therapy in the UK^[29] was cited by Medical, psychology or counselling group or bodies, Faith bodies and a Legal body respondent as a clear statement that conversion practices are unethical and contravene rights.

116. Some respondents expressed particular concern that conversion practices often target people at a vulnerable time in their lives and that the expression of a person’s sexual orientation and/or gender identity can be a difficult process without the threat of conversion practices. Key groups highlighted as being especially vulnerable to conversion practices included individuals within minority ethnic communities, those living in remote or rural areas and members of religious communities.

117. The importance of ensuring a universal approach across all LGBTQI+ people, including both sexual orientation and gender identity, were also frequently made points. It was noted that all groups are vulnerable to and can be harmed by conversion practices, irrespective of their sexual orientation or gender identity. Many respondents supported what was seen as an inclusive and non-discriminatory approach to tackling conversion practices, including in relation to both sexuality and gender identity.

Focus on intention

118. There was support for the focus on intention to change or suppress sexual orientation or gender identity, which was seen by some as a key characteristic of conversion practices and their potential to cause harm. The proposed focus on intention was considered to be important in enabling legislation to prevent conversion practices that attempt to deliberately infringe individuals’ rights and freedoms. It was also noted that this approach is consistent with the definition of conversion practices used by key documents and organisations including the MoU, the report to the UN Human Rights Council by the UN Special Rapporteur on protection against violence and discrimination based on sexual orientation and gender identity, the UK National Conversion Therapy Helpline, and the 2023 Welsh Government’s Working Group on Banning Conversion Practices.^[30]

119. The focus on intention was also seen as important in ensuring that the proposed approach protects services such as healthcare and non-directive guidance. Some respondents described conversion practices as contrary to the ethics and principles of evidence-based non-directional therapy and, in this context, there was also agreement for using the term conversion ‘practices’ rather than ‘therapy’. Assurances in the consultation paper that legislation would provide clarity about what actions are permissible and what are not were also supported.

120. LGBTQI+ group and Third sector respondents were among those who thought that the proposed focus on intention would be effective in allowing parents, religious leaders or other non-professionals to continue to provide counselling and guidance. There was support for protecting an individual’s rights and choices with a Medical, psychology or counselling body respondent noting that this freedom might include in individual choosing not to act on same-sex attraction, or choosing to remain celibate – provided that they are not deliberately and intentionally instructed or encouraged to do so by a third party. They also argued that the focus on ‘behaviour focused on an intention to change’ would allow others to hold beliefs that may be offensive to LGBTQI+ people.

Potential issues on definitions

121. A small number of respondents who supported the proposals also commented on terminology used in the consultation paper.

122. Conversion practices: There was a concern that a poorly worded definition of conversion practices could either fail to protect all of those at risk or could fail to provide sufficient protection for legitimate practices and ethical support and guidance.

123. Sexual orientation: The definition of sexual orientation was seen as central to the proposed approach, with an LGBTQI+ group respondent arguing that the Oxford English Dictionary definition referenced in the consultation paper is not wholly suitable or inclusive, excludes asexual people^[31], and is subject to change without Government control. They proposed an alternative definition.^[32]

124. Gender identity: The same LGBTQI+ group respondent considered the definition of gender identity set out in the consultation paper to be more inclusive than that proposed for sexual orientation but again argued that the OED definition is beyond the control of the Scottish Government. They also noted that there is no current agreed definition of gender identity in Scottish legislation and argued that existing definitions of ‘transgender identity’ (in the Hate Crime and Public Order (Scotland) Act 2021 and of ‘gender reassignment’ (in the Equality Act 2010)) are not suitable for the present legislation. Again, they proposed an alternative definition.^[33]

125. Other points on terminology and definitions used in the consultation paper included requests for clarity around:

• Whether and how healthcare professionals can ‘test’ or ask questions around a person's understanding of their sexual orientation or gender identity without this being classed as conversion practices.
• Whether the term ‘harmful conversion practices’ refers to all conversion practices, or a specific subset.

126. There was support for the proposal that proof would not be required of a perpetrator’s knowledge of an individual’s sexual orientation and/or gender identity, and that the offence would be based only on the perpetrator's own perception.

Scope of behaviours included

127. Although supporting the proposed approach, some respondents raised practical concerns, for example around the risk of criminalising non-directive support or guidance.

128. Although it was noted that paragraph 46 of the consultation paper indicates that legislation will not apply to ‘non-directive and ethical guidance and support to a person who might be questioning their sexual orientation or gender identity or experiencing conflict or distress’, respondents including Medical, psychology or counselling body respondents, and a Legal body, were concerned that the proposals are too broad, or could affect non-coercive discussions, questioning, guidance or general parental direction.

129. Some respondents suggested that the draft ‘avoidance of doubt’ provision, as set out in the consultation paper, does not do enough to protect services and there were perceived risks to more ‘directive therapies’ such as Cognitive Behavioural Therapy (CBT),^[34] those working with children and young people experiencing gender dysphoria and those working with sexual offenders.

130. Additional practical measures and protections for professionals, such as counsellors and psychotherapists, were proposed, including making clear that non-directional exploration of both sexual orientation and/or gender identity is allowed. There was also reference to potential for the proposals to restrict general statements of belief or opinion, and thus to infringe upon the right to freedom of expression.

131. In contrast, other respondents expressed concerns that protections for practices could be used as a ‘loophole’ by those seeking to change or suppress sexual orientation and/or gender identity, including a risk that protections could allow conversion practices to continue under the guise of ‘parental direction’.

Advertising

132. Two additional issues were raised with respect to advertising. Clarity was sought around how criminalisation of conversion practices will interact with existing advertising legislation given that advertising is reserved to the UK Parliament. ^[35]There was also concern that proposed use of Civil Protection Orders to limit word of mouth advertising requires the accused to have previously engaged in conversion practices and would be ineffective in preventing new services.

2.2 - Suppression

133. The consultation paper notes that conversion practices are often defined to include both the intention to change a person’s sexual orientation or gender identity, and the intention to suppress it. While the underlying act may be the same, any difference lies in the motivation behind it.

134. In this context suppression is defined in the consultation as acts that seek to repress, and/or prevent the development or manifestation of another person’s sexual orientation or gender identity. Repress means to prevent or subdue something (often through force), and manifest means to show, through acts or appearance. Examples of acts which may be carried out with this intention include:

• prescribing medication to suppress a person’s sex drive
• therapy or counselling that requires a person not to act on their same-sex attraction, including through celibacy
• controlling a person’s appearance (e.g. clothes, make-up, hairstyle)
• restricting where a person goes and who they see.

135. Including suppression widens the protections in the legislation, by prohibiting restrictions or limitations imposed on someone specifically to repress or prevent the development of their sexual orientation or gender identity. However, the proposed approach to legislation will not criminalise acts of suppression freely undertaken by a person themselves, such as celibacy. The legislation will be carefully developed to ensure the exercise of parental responsibilities and rights, such as direction and guidance which place limits on a child, will not be impacted.

Question 3: Do you think that legislation should cover acts or courses of behaviour intended to ‘suppress’ another person’s sexual orientation or gender identity?

136. Responses to Question 3 by respondent type are set out in Table 3 below.

Table 3 – Question 3

Respondent breakdown	Yes	No	Don’t know	Total
Organisations:	n/a	n/a	n/a	n/a
Campaign group, policy forum or think tank	3	6	0	9
Faith or belief body or group	11	70	0	81
Family or parental support group	2	2	0	4
LGB group	0	3	0	3
LGBTQI+ group	12	0	0	12
Medical, psychology or counselling group or body	10	5	1	16
Political party or trade union	6	4	0	10
Public body or local authority	1	0	0	1
Social work, legal or community safety group or body	3	1	0	4
Third sector	7	0	0	7
Women's groups	1	5	1	7
Total organisations	56	96	2	154
% of organisations	36%	62%	1%	n/a
Individuals	2595	2882	86	5563
% of individuals	47%	52%	2%	n/a-
All respondents	2651	2978	88	5717
% of all respondents	46%	52%	2%	n/a

137. A small majority of respondents – 52% of those answering the question – did not think that legislation should cover acts or courses of behaviour intended to ‘suppress’ another person’s sexual orientation or gender identity. This rose to 62% of organisations.

138. Although 46% of all respondents thought suppression should be covered, this dropped to 36% of organisations.

Question 4: Please give reasons for your answer to Question 3.

139. Around 5,250 respondents gave their reasons.

Reasons that the approach is not supported

140. Some respondents reiterated their view that new legislation is not required or that the Scottish Government has not provided evidence to show that it is needed. There was also a general concern around failing to take a balanced approach and that, in seeking to protect the rights of LGBTQI+ people, the Scottish Government is not protecting those who see the issues from different perspectives.

Problems with definitions and usage

Suppression:

141. A frequently raised point was that ‘suppression’ is too broad or subjective a term, or that the proposed legislation provides neither an adequate definition nor guidance as to what behaviours would be covered in suppression of sexual orientation or gender identity. A Medical, psychology or counselling body respondent noted that, while they were a signatory to the MoU on Conversion Therapy (which includes suppression), they do not consider the term sufficiently defined for the purpose of legislation.

142. There was also a view that the selection of examples given in the consultation paper are not clear enough to determine the scope of the legislation or to limit the potential for its broad application, and that the proposals could have a significant impact on both parents and religious leaders. Concerns about lack of protection for ECHR rights to respect for private and family life, freedom of thought, conscience and religion, and freedom of expression were all raised.

143. Specific issues raised in respect of the examples of acts that might be considered as suppression are discussed below.

Sexual orientation:

144. Two Faith Body respondents were among those who raised concerns that the absence of a clear definition of sexual orientation makes it impossible to define what it means to suppress sexual orientation.

Gender identity:

145. It was argued that sexual orientation and gender identity are very different things that should not be conflated. An LGB group respondent argued that no single definition of harm can relate to both sexual orientation and gender identity since, in their view, the expression of gender identity often involves the suppression of sexual orientation.

146. There was also a view that the proposals set a very low threshold for criminal liability relating to suppression of gender identity.

147. A small number of Individual respondents were clear that they would support inclusion of suppression with respect to sexual orientation but not gender identity. It was noted that paragraph 44 of the consultation paper states that although the proposals are mainly intended to address harmful practices that affect LGBTQI+ people, they will apply to everyone and so will also include actions directed at those who are heterosexual or cisgender. In this context, it was proposed that the parents of a heterosexual teenage boy might be considered to be suppressing their child’s sexual orientation if they refused to let him put up a poster of a naked woman or access pornography.

Potential impacts on expression of religious belief

148. References to encouraging celibacy as a potential act of suppression was of concern to many respondents, with a frequently made observation that many faith traditions teach celibacy outside of marriage. Some of those making this point also argued that the proposed legislation will provide ‘activists’ with opportunities to challenge traditional Christian and Muslim beliefs with respect to marriage, sexuality and gender. The rights to protection of religious belief under ECHR Article 9^[36] and as a protected characteristic under the Equality Act 2010 were both cited, and it was argued that religious leaders must be allowed to teach in line with their beliefs.

149. It was also argued that the consultation paper’s inclusion of ‘therapy or counselling that requires a person not to act on their same-sex attraction, including through celibacy’ as an example of potential suppression appears to prevent providing support for someone who is same-sex attracted but wishes to refrain from sexual activity because of their religious beliefs. It was argued that an individual should always have the right to choose whether to seek help in this respect. It was also noted that although an individual may have made what the consultation paper calls ‘a personal choice to live in a certain way’ this decision may be in response to doctrinal teaching, and that the proposals could thus ‘make it a criminal offence for a religious leader to tell a member of their congregation that they believe homosexuality is a sin’.

150. Additionally, it was argued that the Scottish Government has not provided any evidence that celibacy is harmful, and a number of potential benefits were cited, for example in avoiding risk of unwanted pregnancy or of sexually transmitted infections. Some respondents, including a Faith body respondent, also thought that making suppression an offence could criminalise advising people not to sexually abuse others.

Potential implications for parental responsibilities and rights

151. Respondents highlighted what they saw as a contradiction in the consultation paper – between the statement that the legislation will ensure that ‘the exercise of parental responsibilities and rights such as direction and guidance which place limits on a child, will not be impaired’ (paragraph 56) and the inclusion (in paragraph 50) of ‘restricting where a person goes and whom they see’ and ‘controlling a person’s appearance’ as examples of acts that could be motivated by an intention to suppress.

152. Respondents frequently argued that restricting where a child goes and what they wear are in fact examples of good parenting, and that citing these as potentially suppressive actions amounts to cutting across the responsibilities and rights of parents. It was also noted that Islamic belief is reflected in modest clothing.

153. There was a suggestion that, for consistency, wording on controlling a person’s appearance and restricting where they go and who they see should be in line with the Domestic Abuse (Scotland) Act 2018.^[37].

154. While some respondents highlighted a parent’s right to guide their child’s sexual behaviour in line with religious beliefs, many comments centred on issues relating to gender identity, with a general concern that anything other than a trans-affirming stance could leave a parent at risk of being accused of suppression. There were also specific concerns around a risk of prosecution for:

• preventing their child from attending a trans group meeting
• not agreeing to their child taking puberty blocking medication
• not allowing their child to wear a breast binder.

155. In addition to the importance of respecting the right to private and family life afforded by ECHR Article 8 there was reference to rights of parents outlined in various articles of the United Nations Convention on the Rights of the Child (UNCRC), particularly Articles 5, 18 and 27.^[38] Rights protected by the ECHR and the UNCRC are covered at Questions 26 and 33 respectively.

Potential implications for professionals

156. While a large majority of objections to inclusion of suppression related to religious beliefs or to the responsibilities and rights of parents, a smaller number of respondents expressed concerns for people who might find themselves accused of suppression in the workplace or in a professional capacity. These included:

• Therapists seeking to help patients feel comfortable in their sexed body and healthcare professionals who might, for example, tell a girl not to wear a breast binder.
• Teachers – both in the context of raising concerns for the welfare of a particular child or if seeking to enforce a uniform code.
• An employer with rules about uniform or appropriate dress in the workplace.

Reasons for supporting the approach

157. Among respondents who supported inclusion of suppression in the proposed legislation the most frequently made point, as at Question 2, related to the potential to cause harm. There was reference to evidence and reports, such as the Expert Advisory Group report on Ending Conversion Practices, indicating that suppression can be just as harmful as attempts to change sexual orientation and/or gender identity. Again, a number of respondents cited personal or eyewitness experience of these harms and, as with respect to conversion practices more broadly, there were references to the harms caused. In additional to those already referenced at Question 2, these included shame and denial of a sense of identity and contributing to stigma by supporting a view that specific sexual orientations or gender identities are undesirable.

158. Another frequently made point was the importance of including suppression in the legislation to limit potential for loopholes in protections for LGBTQI+ people. This included suggestions that suppression is already a key focus for some conversion practices, and that excluding suppression would enable perpetrators to shift their focus from attempts to change a person’s sexual orientation or gender identity, to trying to suppress it.

159. An LGBTQI+ group respondent considered that awareness and understanding of suppression are more limited across the population, such that victims may be less cognisant of the risks and may be less likely to recognise where they are being subject to these practices. Specific groups identified as being particularly at risk of or vulnerable to suppression of sexual orientation or gender identity included minority ethnic LGBTQI+ people.

160. There were also references to other documents where the definition of conversion practices includes a significant role for suppression, for example:

• The MoU on Conversion Therapy.
• The British Association for Counselling and Psychotherapy Ethical Framework.^[39]
• The Ban ‘Conversion Therapy’ Legal Forum report on ‘Recommendations on legislating effectively for a ban on conversion practices’.^[40]
• Approaches to conversion practices in other jurisdictions.

Defining suppression

161. The specific approach to defining suppression in the context of conversion practices was seen as vital in ensuring legislation provides the intended level of protection for LGBTQI+ people. Some respondents saw this as especially important in ensuring legislation does not inadvertently cover the provision of ethical, non-coercive, non-directive counselling and guidance.

162. An LGBTQI+ group respondent suggested that the definition of harm must not only relate to intent to suppress an individual’s sexual orientation or gender identity, but must also be undertaken specifically because of their sexual orientation or gender identity, and the perpetrator’s preference for a different sexual orientation or gender identity. It was noted that this would be consistent with provisions within the Scottish Government’s consultation on the proposed Misogyny Bill around acts conducted on the basis of a person being a woman or girl.

163. A focus on the required intention to suppress a person’s sexual orientation or gender identity was also seen as important in ensuring the legislation does not affect parents seeking to prevent a child from dressing in a sexualised way, for example, where this is neutral to the child’s sexual orientation or gender identity.

164. Additions to the examples of potentially suppressive acts were also suggested, for example to include attempts to prevent (or not facilitate) access to information on sexual orientation and/or gender identity.

Potential to impact on healthcare therapies

165. As noted above, some of those who were broadly supportive of the approach did raise concerns that some therapies could be unintentionally affected by the proposed legislation as currently drafted.

166. It was noted that therapies can also include other acts or characteristics listed as examples of suppression – such as therapies with a more ‘directional’ aspect, or that involve prescribing medication to suppress sex drive or restricting where a person goes and who they see. Therapy for sex addiction and treatment of sex offenders were cited as examples. It was suggested that the proposed ‘avoidance of doubt’ provision should make clear that such therapies do not constitute conversion practices.

167. A reliance on the definition of a healthcare or psychological professional (e.g. to protect healthcare professionals while delivering medical and/or psychological care) was also identified as a potential issue for the proposed legislation. For example, it was noted that the terms ‘psychotherapist’ or ‘psychoanalyst’ are not professions recognised in law,^[41] and that such professionals are therefore regulated through voluntary non-statutory means. Clarity was sought around how practices undertaken by professionals not recognised in law would be protected under the proposed legislation.

Potential to impact parents, religious leaders and other individuals

168. Several respondents raised issues around the definition of harm specifically in relation to ensuring legislation does not encroach on the responsibilities and rights of parents, religious leaders and other individuals. Similar to points noted above in relation to professional therapies, there was concern that proposals could inadvertently affect behaviours that may appear to include attributes of suppression as set out in legislation.

169. Specific examples of behaviours that were seen as being at risk from proposals included:

• Parents wishing to ‘suppress’ manifestation of a child's sexual identity, not due to any preference for a specific sexual orientation or gender identity.
• Parental guidance for young people exploring sexual orientation or gender identity.
• Individuals expressing their own sexual orientation or gender identity, or views on these issues, on the basis that this could cause others to suppress their sexual orientation or gender identity.
• Religious rules about appearance/dress.

170. Again, there were calls for clarity around how these examples would be protected under the proposals.

Implementation and practical considerations

171. Other issues raised by respondents around the practical implementation of the proposals included concerns that suppression is a relatively poorly understood term, with other respondents calling for dedicated communication around the Bill to provide clarity on the meaning of suppression and its potential to cause harm, and to ensure that parents and others recognise that the Bill is not seeking to prevent discussion of sexual orientation and gender identity with children.

172. There was also a concern that allowing voluntary acts of suppression, such as celibacy, appears inconsistent with proposals to not allow a defence of consent to conversion practices.