Ending conversion practices in Scotland: consultation analysis

3. Overview of proposals

173. The consultation paper sets out that research and evidence has identified a requirement for a multi-faceted approach to addressing conversion practices in Scotland. The Scottish Government proposal is to create a package of measures that work together to prevent and tackle conversion practices in Scotland. Depending on the type of conduct that has taken place and/or the specific situation of the victim, there would be three different routes that could be taken to address the issue and protect the victim. This may be through specific criminal offences, a new statutory aggravation, or a civil protection order.

174. Proposed new criminal offences will address the most serious and harmful forms of conversion practices and would be aimed at two specific forms of conduct: the provision of a service, and a coercive course of behaviour, which will be criminalised when certain thresholds are met.

175. A statutory aggravation will address conversion practices that fall within existing criminal offences. If a person does something that would already be a criminal offence, this would be considered more serious if it was committed with the intent that the victim’s sexual orientation or gender identity would be changed or suppressed.

176. A new civil protection order relating to conversion practices would provide a preventative and protective approach, offering a preventative and non-criminal route to protect a person at risk of harm. These orders will also be available to the police and local authorities to address situations where conversion practices have already been carried out and an order is required to protect the wider community from this harm. While this is a non-criminal mechanism, the breach of a civil order would be a criminal offence.

Question 5: Do you support or not support an approach which uses a package of both criminal and civil measures to address conversion practices in legislation?

177. Responses to Question 5 by respondent type are set out in Table 4 below.

178. A small majority of respondents – 53% of those answering the question – did not support an approach which uses a package of both criminal and civil measures to address conversion practices in legislation. This rose to 67% of organisations.

179. Although 45% of all respondents supported the approach, this dropped to 30% of organisations, with Medical, psychology or counselling bodies and Family or parental support groups evenly divided on this issue.

Question 6: Please give reasons for your answer to Question 5.

180. Around 5,100 respondents gave their reasons.

181. Many of the comments highlighted the same range of general issues already set out within the analysis at Question 2.

182. Please note that civil protection orders are also the focus of Questions 27 to 31. The analysis at these later questions covers the details of the proposals. The focus at this question is on the general principle of introducing both criminal and civil measures.

Reasons for not supporting a package of criminal and civil measures

Lack of justification

183. Arguments with respect to lack of justification included that any new legal measures – whether criminal or civil – are simply not needed since there are already laws in place to address violent and abusive behaviour in Scotland.

184. With specific reference to civil measures, it was suggested that both the Equality Act 2010 and Human Rights legislation provide protection for victims of conversion practices, and that these are matters that can be dealt with in civil courts. It was also argued that no evidence has been set out to explain why further civil protections are needed, and that their inclusion implies that the proposed criminal offences would be open to interpretation and ambiguity, and that a civil safety net is required.

185. Some respondents argued that the civil protection order proposals would open up the possibility that parents, teachers, medical professionals or religious leaders could be ‘targeted’, even in the absence of any crime. A Women’s group respondent was amongst those arguing that these sorts of powers have been used in other jurisdictions to remove children from parents who prefer to follow the recognised best practice of ‘watchful waiting’ rather than affirm a child’s gender identity in real time. They described the proposal as ‘draconian’ and as representing an unnecessary over-reach on the part of the Scottish Government.

186. Respondents also raised general concerns about the proposals being ill-defined, and open to interpretation. It was thought that the absence of a clear definition of conversion practices would result in both criminal and civil measures being unworkable. There was also a concern that imprecise definitions could result in behaviour that some would consider reasonable (and in line with their faith or belief system) being covered by civil measures.

187. It was suggested that, rather than introducing new legislation, including any civil measures, the focus should be on the effective implementation of existing laws and protections. There was a call for the emphasis to be placed on ensuring that current legislation is enforced comprehensively to safeguard individuals from harmful conversion practices.

Levels of proof and the potential for abuse

188. In terms of specific reference to civil measures, the most frequently made point was that they are a step too far. Concerns were raised that they would present a threat to freedom of religion and expression, irrespective of what the consultation paper suggests.

189. These types of concerns were often predicated on civil protection orders being easier to obtain than a conviction through the criminal route, and specific concerns about the type and levels of proof that would be required. These included that civil measures can be obtained on the balance of probabilities, whereas a criminal conviction, is subject to a higher standard of proof - beyond reasonable doubt. It was also noted that, while a civil protection order could be put in place based on a lower/lesser level of proof, any breach would still be a criminal offence.

Reasons for supporting a package of criminal and civil measures

Case for a package of measures

190. Support for the package of criminal and civil measures was frequently based on a view that a combination of civil and criminal measures will be necessary to achieve the goal of ending conversion practices. This was seen as essential to enable a robust and effective approach to tackling conversion practices, with measures to prevent and protect from harm, and provision for justice where harm has been caused.

191. Some LGBTQI+ group respondents were amongst those highlighting that the focus is on ‘ending’ rather than ‘banning’ conversion practices in Scotland. They went on to argue that a package of measures – including criminal and civil elements – will be key to achieving this aim, and to not drive practices further underground.

192. There were also a number of references to the success of this multi-faceted approach for other legislation, such as the Domestic Abuse (Scotland) Act 2018 and the Prohibition of Female Genital Mutilation (Scotland) Act 2005, as models for tackling conversion practices.^[42] Models of this kind were seen, by some respondents, as critical to enabling a flexible approach that can respond to the diversity and complexity of conversion practices which, it was reported, take varying forms and with varying degrees of severity.

Specific role of civil measures

193. A frequently made point was that it is vital that the package of measures includes a preventative element, and that it is better to prevent harm occurring rather than to punish people after they have inflicted harm. It was argued that civil protection orders are the only proposed measure than can prevent harm before it occurs, by protecting a person at risk and/or protecting communities when conversion practices have already taken place.

194. Given this, civil measures were described as likely to be the primary means by which conversion practices are ended, and respondents noted that they have been a key element in other legislation to address harmful practices. For example, an LGBTQI+ group respondent considered that the Domestic Abuse (Protection) (Scotland) Act 2021 has demonstrated that civil measures can be effective. There was also reference to research^[43] indicating a preference for preventative measures amongst those who have experienced or are at risk of experiencing harm, for example in relation to the proposed Misogyny Bill.^[44]

195. In terms of which people or communities might most benefit from civil protection orders being an option, it was suggested that this could be anyone who is unable or unwilling to report incidents as a crime. It was noted that perpetrators and victims of conversion practices are often within the same family or community, with a civil order seen as offering an option for those who may wish to preserve relationships and links with their community. There was also reference to the civil route as potentially beneficial for people from an ethnic minority+ background where previous negative experiences of police and justice systems could deter victims from reporting a crime.

Role of criminal sanctions

196. The role of the criminal offence was frequently seen as being a last resort to be used when civil measures are either inappropriate or when they have not had the required effect. The criminal offence was also seen as an important reflection of the severity of harm caused by conversion practices, and to send a clear message that these practices are unacceptable.

197. Reflecting the preference for prevention, it was also argued that the criminal offence option should act as a deterrent as well as a route to securing justice for victims of conversion practices. In relation to securing justice, a Social work body respondent commented that justice for victims can support recovering and healing post trauma.

198. Although there were few specific references to the statutory aggravation element of proposals, there was some support for this measure as allowing courts to take account of the intention to subject someone to conversion practices. This included reference to LGBTQI+ people being at greater risk of other offences related to hatred, bigotry and discrimination, and support for provisions that would allow conversion practices to be included as an aggravating factor in these crimes. It was also noted that this is similar to provisions in other legislation to tackle hate crime. However, concern was expressed that reference to conversion practices as an aggravating factor in a specific case could reveal the victim’s sexual orientation or gender identity and increase the risk of the case being affected by homophobic or transphobic bias.

Proposed amendments or additions

199. Those broadly in support of the measures sometimes proposed amendments or additions. These were primarily focused on providing clarity of meaning and ensuring effective implementation of measures.

200. In relation to the criminal offence, it was proposed that:

• This should include measures to criminalise offering, promoting, advertising or referring to conversion practices.
• Reference should be made to committing conversion practices against a child, young person or vulnerable adult – it was noted that the Expert Advisory Group report on Ending Conversion Practices recommended that this should be an aggravating factor in sentencing.

201. In relation to civil protection orders, it was proposed that:

• Parameters set out by the Expert Advisory Group to ensure civil measures are culturally competent and mindful, and to provide safe mechanisms for engagement prior to criminal measures, should be reflected.
• Measures should be set out to promote understanding and awareness of conversion practices and signpost to the appropriate mechanisms for potential victims to report incidents. This was seen as a critical element for the legislation.

202. It was also noted that the Scottish Government’s consultation on a Human Rights Bill proposes additional powers for Scottish Human Rights Commission, such as launching independent investigations, and there was a proposal made by the Expert Advisory Group that equivalent powers should be included in the Ending Conversion Practices Bill. An LGBTQI+ group respondent saw this as preferable to an alternative suggestion for a separate LGBTQI+ issues commissioner. Other delivery-focused suggestions included:

• Further exploration of community-based measures such as education, awareness raising and support, alongside the legislative process.
• Measures to address the conduct of organisations in relation to their role in conversion practices.

203. There was also a view that monitoring and enforcement will be crucial to ensuring the proposed package of measures is effective in tackling conversion practices.