Ending conversion practices in Scotland: consultation analysis

4. Offence of engaging in conversion practice

204. The new criminal offences that are proposed will address three forms of conversion practices: the provision of a service, a coercive course of behaviour, and taking someone out of Scotland for conversion practices.

4.1 - The provision of a service

205. The first form of conversion practice that the criminal offence will address is the provision of a service, with the intended outcome that a person’s sexual orientation and/or gender identity will be changed or suppressed. This approach draws on that of some other jurisdictions that have focused legislation on medical interventions or formal treatments or services, such as Canada and Germany.

206. The intention behind this part of the offence is to address the situation where a conversion practice is undertaken by a person who claims to have a particular knowledge, skill or expertise and where the act is purported to be delivered as, or used as, a method to effect a change or suppression. The types of acts that would be considered a service for this part of the offence would include (where it is intended to change or suppress an individual’s sexual orientation or gender identity):

• counselling or any other form of talking therapy
• coaching or instructing
• a purported treatment

Question 7: What are your views on the proposal that the offence will address the provision of a service?

207. Responses to Question 7 by respondent type are set out in Table 5 below.

Table 5 – Question 7

Respondent Breakdown	Yes	No	Don’t know	Total
Organisations:	n/a	n/a	n/a	n/a
Campaign group, policy forum or think tank	2	6	0	8
Faith or belief body or group	6	74	0	80
Family or parental support group	2	2	0	4
LGB group	0	3	0	3
LGBTQI+ group	11	0	0	11
Medical, psychology or counselling group or body	9	5	0	14
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	4	0	1	5
Women's groups	1	5	1	7
Total organisations	45	100	2	147
% of organisations	31%	68%	1%	n/a
Individuals	1855	2889	125	4869
% of individuals	38%	59%	3%	n/a
All respondents	1900	2989	127	5016
% of all respondents	38%	60%	3%	n/a

208. A majority of respondents – 60% of those answering the question – did not support the proposal that the offence will address the provision of a service. This rose to 68% of organisations.

209. Although 38% of all respondents supported the approach, this dropped to 31% of organisations.

Question 8: Please give reasons for your answer to Question 7.

210. Around 4,300 respondents gave their reasons.

Reasons for not supporting addressing the provision of a service

Definition of a service

211. The most frequently made point by those who did not support the offence addressing the provision of a service was that the definition of ‘a service’ is too vague and would be open to interpretation. It was argued that:

• By only providing examples of what may constitute a service, the consultation paper offers insufficient detail to make clear what would not be covered by the term.
• The lack of clarity could impact on a range of people and services, including parents, religious leaders, medical professionals and the Police.

212. A number of Faith body respondents were amongst those commenting that, while the assurance that it does not ‘mean a service of worship or church service’ is welcome, it also shows that the Scottish Government realises how broadly the term could be interpreted.

‘Pseudo-medical’ practices

213. The description set out in paragraph 90 of the consultation paper of ‘acts that are pseudo-medical' and the statement at paragraph 91 that ‘there is a clear medical consensus that conversion practices do not work’ were both challenged by respondents.

214. A Medical, psychology or counselling group respondent stated that it is incorrect to say there is a clear medical consensus that change is not possible. They also listed a number of largely USA-based medical, social science, and mental health organisations which they described as opposing bans on therapy for unwanted same-sex attraction or gender identity.

215. Other arguments put forward included that there is no scientific evidence that so-called ‘conversion therapy’ harms individual therapeutic clients who attend voluntarily, even if the desired goal of change in sexual attraction does not happen.

216. More broadly, some respondents were of the view that ‘talking therapy’ is a standard and helpful practice across a range of professions, and there was a concern that the proposals do not take different modalities of psychotherapy and different ways of working into account. The associated risk was that, without clearer definitions, there could be unintended consequences for the delivery of therapeutic practices for people who wish to explore issues of sexuality and/or gender with trained, professional therapists. A Campaign group respondent noted that there is a proposed defence in the legislation for therapists who act in accordance with the ‘relevant rules and guidelines’ of their profession but went on to argue that some guidelines are themselves often based on poor medical evidence and often promote a partisan and politicised point of view.^[45]

217. There were also references to personal testimonies. For example, a Faith body respondent wrote of the testimonies of thousands of ‘ex-gay’ people and those who have detransitioned from transgender identities. Another referenced a number of personal testimonies, including from Muslims in England, Australia, Bangladesh, Canada, Pakistan and the USA, setting out their own experiences of same-sex attraction related therapy and coaching. These included calls to let people choose their own path, including by seeking counselling or support.

218. The more general point that people should have a right to seek help and support if that is their wish was also highlighted, including that they should not be put in the position of potentially asking the person from whom they seek counsel to commit an offence. An associated concern was that organisations like Living Out – a UK registered third sector organisation of same-sex attracted Christians supporting one another to follow Biblical sexual ethics – could be affected by the current proposals.

Impact on faith bodies

219. The wider issue of the ordinary work of faith bodies, including churches, potentially being covered by the proposals was also a frequently raised issue. This was often connected to a concern about lack of clarity regarding the definition of a ‘service’ (as discussed above). It was argued that religious groups would not be able to counsel according to their beliefs, and that this equates to an attack on religious freedoms. This was connected to a view that the proposals would or could cover activities such as providing pastoral support.

220. Beyond the general concerns about the definition of a service, there were also frequent comments about the consultation paper’s reference to ‘coaching or instructing’. For example, there was a view that the consultation paper implies that any attempt to encourage someone in a particular direction could be deemed to be ‘coaching’. It was suggested that this could encompass one-to-one discipleship programmes in churches and group support sessions where individuals seek support from fellow believers to live according to their own convictions. It was also reported that there is an ‘instructing’ or teaching element to preaching and accordingly it is possible that preaching on certain topics or passages of the Bible would be outlawed.

221. Queries were also raised about what equates to a ‘formal conversation’, how ‘formal’ and ‘informal’ conversations would be differentiated, and whether a pastorally-focused conversation would be deemed to be formal. It was argued that the consultation paper implies that giving pastoral prayer and advice would be covered by the legislation.

Gender identity and affirmation

222. The final issue raised at this question related to gender identity. In addition to more general comments (reflecting the range of issues already covered at earlier questions), the specific concern highlighted at this question was that, depending on how the law is interpreted, it could effectively result in a ban on “exploratory therapy” conducted by therapists with gender-critical perspectives. It was suggested that:

• There is a very strong argument for exploratory therapy for children and young people who are experiencing distress related to gender and biological sex, with the Cass Review interim report cited by some respondents as offering supporting evidence.
• The proposals could lead to the prosecution of medical and counselling services who advertise or provide a service which follows an ethical, watchful waiting approach for gender distressed children, with a proposed outcome of reconciling with their body and desisting from a belief in gender identity.

223. It was also reported that therapists, social workers, children’s workers and teachers already face accusations of being a risk to children if they adopt a watchful waiting approach or disagree with “gender identity theory”.

Reasons for supporting addressing the provision of a service

224. Many of those commenting in favour of the proposals referred to the potential for conversion practices services to cause harm. Respondents often made the connection with tackling fraudulent ‘pseudo-medical’ services and the claims of those who suggest they have relevant knowledge or expertise. The most frequently made point, highlighted by a broad range of respondents – including LGBTQI+ groups, Medical, psychology or counselling bodies and individual respondents – was that services based on misuse of therapeutic practice are a risk, and should not be permitted. The likelihood of harm was seen by some as especially acute where those delivering services could be engaging with a large number of people, and may be ascribed a higher status or position, with potential to strengthen their coercive effect.

Definition of a service

225. In relation to the proposed definition of the provision of a service, there was reference to the importance of clarity, including calls for detailed examples of what conversion practice services are considered to be. Specific comments included that the examples set out in the consultation paper (counselling/talking therapy, coaching/instructing and purported treatment) are helpful in terms of pointing to the potential coercive element of these services. There was also support for the references to both paid and free services, and a range of service settings, and there were calls for the definition to capture services provided by religious organisations where appropriate.

226. While for some the focus was on ensuring that the definition captured all appropriate aspects of conversion therapy, others addressed the importance of not inadvertently capturing some forms of therapy, with Medical, psychology or counselling groups and a Legal body respondent amongst those making this point. Their concerns stemmed from a view that the proposals do not define conversion practices in a sufficiently restrictive way, and thus leave acceptable services open to legal risk. This was seen as a particular issue for services offering therapies that support individuals to explore sexual orientation and gender identity.

Differentiation between services

227. Some respondents also highlighted the importance of distinguishing between conversion practice services and healthcare services. This included to assure professionals that providing ethical forms of therapy will not be affected by a ban. It was suggested that a clear distinction needs to be made between conversion therapy and normal, ethical, clinical or therapeutic practice, including medical and psychological care. Medical, psychology or counselling body respondents were amongst those who saw scope for the proposed Bill to be more specific in identifying and protecting professionals engaged in ethical practice.

228. However, it was also noted that there are a range of professionals which are not regulated in law, who provide talking therapies. It was seen as important that someone engaging in conversion practices cannot claim a defence that they were behaving in line with their ethical, medical and professional rules and guidelines, when they are not a statutorily regulated healthcare professional. It was seen as important that any guidance provided to support the implementation of any legislation is extremely clear that just because someone is a professional, this does not mean that they are automatically exempt from committing the offence.

229. In terms of particular types of practice that should be exempt, there was specific reference to ‘affirmative care’ and therapies for people exploring sexual orientation or gender identity, which were described as essential in enabling LGBTQI+ people to develop a sense of self and in promoting positive health. It was noted that, crucially, affirmative care does not seek to change a young person’s sexual orientation or gender identity, and there were calls for these services to be more explicitly protected in the legislation.

230. It was also noted that some counselling and therapy can have a pre-determined outcome in seeking to influence or change behaviours, such as in therapies for sex addiction and treatment of sex offenders, and there was a call to ensure that professionals involved in delivering these specific therapies are not put at risk of prosecution.

231. Finally, an LGBTQI+ group raised specific concerns around ‘Gender Exploratory Therapy’. While it was noted that there are valid therapies helping people to explore their sexual orientation and/or gender identity, the respondent referred to exploratory therapies that had been identified as akin to conversion practices, for example in sharing a similarly harmful ideology, and with their primary focus being delaying or preventing gender transition.

Avoidance of doubt and other protections

232. There was specific support for the proposals to reassure healthcare professionals via the ‘avoidance of doubt’ provision, and there were calls for this to be extended to provide additional reassurance in relation to the kinds of therapies noted above.

233. Specific proposals for additional protections for healthcare services included:

• Citing specific codes or regulation to help protect services, for example by extending protections for regulated healthcare services to include professionals regulated through the Professional Standards Authority’s Voluntary Accredited Register.
• Given that counselling may lead an individual to choose to make changes that could be interpreted as suppressing sexual orientation and gender identity, having an explicit exclusion, or a higher burden of proof of intent to cause harm, for counsellors and psychotherapists who are on an accredited register and are operating within the code of ethics for their professional bodies.

234. However, there were also concerns about the potential for loopholes that could allow those carrying out conversion practises to avoid prosecution. Associated points included that, if those carrying out conversion practices claim to be healthcare professionals, they could try to ‘hide behind’ the standard protections that are in place for professionals, such as psychotherapists or counsellors. In this context, there were calls for a more specific and detailed definition of services that takes compliance with relevant medical, legal and ethical rules and codes into account.

4.2 - A coercive course of behaviour

235. This part of the criminal offence will address conversion practices that take the form of a coercive course of behaviour, where one or more acts are performed in a repeated, continuous, or sustained way and where the behaviour is also coercive. This part of the offence requires the behaviour to have been undertaken either repeatedly or continuously with a minimum requirement that the behaviour happens on at least two occasions. The course of behaviour as a whole would need to be coercive, and the other requirements of intent and harm would also need to be met.

Question 9: What are your views on the proposal that the offence will address a coercive course of behaviour?

236. Responses to Question 9 by respondent type are set out in Table 6 below.

Table 6 – Question 9

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	4	0	7
Faith or belief body or group	6	71	3	80
Family or parental support group	2	1	1	4
LGB group	0	3	0	3
LGBTQI+ group	10	0	0	10
Medical, psychology or counselling group or body	7	4	2	13
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	5	0	0	5
Women's groups	1	5	1	7
Total organisations	44	93	7	144
% of organisations	31%	65%	5%	n/a
Individuals	1852	2737	135	4724
% of individuals	39%	58%	3%	n/a
All respondents	1896	2830	142	4868
% of all respondents	39%	58%	3%	n/a

237. A majority of respondents – 58% of those answering the question – did not support the proposal that the offence will address a coercive course of behaviour. This rose to 65% of organisations.

238. Although 39% of all respondents supported the approach, this dropped to 31% of organisations. The proportion of respondents who did not know at this question was slightly higher at 3% of those answering.

Question 10: Please give reasons for your answer to Question 9.

239. Around 4,150 respondents gave their reasons.

Reasons for not supporting addressing a coercive course of behaviour

Existing responses to coercion

240. Many of the responses at this question commented on the current legislative framework, including their understanding that coercion is already an offence, albeit they tended not to specify the law to which they were referring. It was stressed that any coercive or abusive behaviour should not be tolerated and should be subject to the various laws already in existence. However, it was argued that the proposals are addressing a gap or shortfall in law which has not been evidenced.

241. Further, a number of Faith bodies were amongst those stressing that they do not practice or support coercive practices. Some Individual respondents commented that they opposed coercion as currently defined in law (albeit without reference to any particular law), or as they understood it, but did not agree with how it is set out within the current proposals. This was often connected to issues of parental and faith-based rights.

Language

242. Respondents raised their concerns about a lack of clarity around the consultation paper’s explanation of a coercive course of behaviour. There were references to the explanation of coercive behaviour being subjective, vague and as having the potential to encompass an inappropriate and concerningly broad range of activities.

243. A Faith body respondent thought that the proposal for the coercive course of behaviour would make the legislation unnecessarily complex, and that using the same definitions as for domestic abuse legislation would be much easier for people to understand and to apply.

244. There were also frequent objections to the language being used in relation to a coercive course of behaviour, for example that using words such as ‘humiliating’ and ‘degrading’ is inflammatory or judgemental. This often appeared to be linked to the respondents’ concerns that some of the day-to-day activities of faith bodies, such as offering pastoral support, could be covered by the legislation and hence are being labelled as seeking to humiliate or degrade.

Impact on particular groups

245. Respondents identified two particular groups who they thought would be adversely affected by the definition of coercive behaviour: parents and carers, and faith leaders.

Parents and carers:

246. A frequently raised issue was that the explanation of coercion risks overstepping inappropriately into parent-child relationships. For example, it was argued that the phrasing ‘controlling of the victim’s day to day activities’ and ‘pressuring the victim to act in a particular way’ could easily apply to parents seeking to prevent a child from engaging in practices the parent views as detrimental to their well-being. It was noted that parents and schools do control the day-to-day activities of children in order to keep them safe and that parenting is, by definition, a ‘course of behaviour’.

247. An associated argument was that the proposal would likely fall foul of the ECHR Article 8 – the right to a private and family life.^[46] A Social work body respondent was amongst those suggesting that it would also fall foul of the requirement (set out in UNCRC Article 3) that decisions that affect children must be based on the child’s best interests.

248. A small number of hypothetical examples of possible gender identity-related challenges that could arise were also offered. For example:

• A parent who stated that their daughter’s distress about her body was a common experience in adolescence, and not a sign of an inner male gender identity, could be described as intending to suppress their child’s gender identity. They went on to comment that, while spurious accusations encouraged by ill-defined legislation might eventually be dismissed, the harm to family relationships would be irreversible.
• A young person in care, already vulnerable and likely traumatised as a result of experiences leading to them being accommodated, announces that they wish to be regarded as the opposite sex. Residential care staff may be concerned to protect the young person from making life-changing decisions at a time when they are emotionally and psychologically unable to understand the consequences or engage with the range of other difficulties in their life.

249. A Women’s group respondent also commented that they have heard testimony from parents whose children have been allowed and encouraged to present as the opposite sex at school without parental knowledge or consent. They went on to suggest that parents objecting to such actions and attempting to set boundaries on their children’s ‘transition’ behaviours in order to protect them from life-changing and harmful outcomes could find themselves accused of coercive behaviours under the legislation currently proposed.

250. Finally, a Medical, psychology or counselling body highlighted the need to differentiate between adults and children in relation to parenting.

Faith leaders, and those offering pastoral support:

251. The other frequently identified group that could be affected by the concept of coercive control was faith leaders, including Christian ministers or pastors, and Islamic religious leaders. Concerns raised, in these instances by one or more Faith body respondents, included:

• Whether the expression of the Catholic understanding of sexual ethics, which includes the teaching that homosexual acts are sinful, could be construed as an ‘emphatic directive’ which intends to pressure an individual to suppress their sexual orientation?
• Whether an invitation to celibacy directed at an individual in a same-sex relationship would be similarly construed and, thus, criminalised?
• Whether refusing to recognise someone as suitable for a church leadership position because they identify as transgender could be considered coercive?

252. There was a call for any legislation to ensure that a church which teaches the traditional Christian sexual ethic and takes steps such as withdrawing membership from people who reject it, cannot be construed as engaging in conversion practices.

Reasons for supporting addressing a coercive course of behaviour

253. The most frequently made point by those who supported measures to address a coercive course of behaviour was that coercive courses of behaviour are especially harmful examples of conversion practices. Associated points included that there is evidence around the negative impact of sustained coercive behaviour, including erosion of an individual’s sense of self, and that some groups, most notably young people and minority ethnic LGBTQI+ people, are especially vulnerable to coercive courses of behaviour.

254. The potential harm caused by coercive courses of behaviour was also referenced in the context of ensuring an appropriate threshold for criminality. It was noted that the kinds of behaviour described – threatening, frightening, controlling and manipulating a person over a period of time – should never be permissible and, for example, should never take place in a healthcare setting.

255. In line with these concerns, another frequently made comment was that addressing a coercive course of behaviour would be a key element in tackling the potential harm caused by conversion practices. LGBTQI+ and Campaign groups, were amongst those suggesting that coercive courses of action can be the most common form of conversion practices but are not addressed by existing criminal offences. An LGBTQI+ group noted that the focus on a course of behaviour is also useful in ensuring that acceptable conversations or guidance are not classified as conversion practices.

Defining a ‘course of behaviour’

256. There was support for (i) the focus on repeated or continuous behaviour with a minimum of two occasions, (ii) the proposed use of examples to illustrate what constitutes a coercive course of behaviour, and (iii) the suitability of the specific behaviours listed. It was noted that this is similar to the approach used in the Domestic Abuse (Scotland) Act 2018, which was seen as having significantly improved understanding around courses of behaviour that can be coercive and controlling. There was also support for plans to reflect feedback from those with lived experience in terms of the specific kinds of harmful coercive behaviour to be addressed by proposals.

257. However, some respondents highlighted issues with how a ‘course of behaviour’ is defined, including through examples of conversion practices that were seen as potentially falling outside the proposed definition: These included:

• Cases where a group go through multiple stages of planning an intervention, but this is experienced by the victim as a single event (and so may not meet the requirement for multiple instances).
• Severe one-off coercive acts: it was argued that these could have the potential to lead to suppression of an individual's sexual orientation or gender identity, and thus cause harm. The proposed solution was to remove the requirement for multiple instances.

Defining coercive or controlling behaviour

258. Respondents commented specifically on the proposed explanation of ‘coercive’ behaviour, including in relation to the importance of distinguishing conversion practices from acceptable parenting or religious advice. There were some concerns that coercive behaviour as described in the consultation could be too broad and would have the potential to capture ethical behaviours. It was noted, for example, that advice or support given by a religious leader would likely be within the context of a hierarchical relationship, but that this simply reflects someone having a leadership role.

259. With specific reference to parenting, it was argued that the examples of coercive behaviour listed in the consultation paper – such as directives or forceful/threatening statements – would be sufficient to distinguish ‘normal’ parenting activities. However, it was also thought that consideration should be given to whether further protections are required to ensure that acceptable activity, including parental activity, cannot be mistakenly interpreted as a coercive course of behaviour.

260. In terms of ensuring a clear distinction from ‘normal’ parental activities, respondents referred to the imposition of curfews or specific expectations on behaviour as examples which could be mistaken for coercive. The reference to ‘emphatic directives’ was also seen as having potential to relate to normal parental advice, and to religious leaders for example in seeking to provide guidance to young people around relationships and sexuality. It was noted that this could result in such advice or ‘directives’ being permitted for heterosexual young people, but not for those who are LGBTQI+.

261. An alternative view was that the proposal for a coercive course of behaviour is too restrictive and may not capture all conversion practices. Respondents noted that five separate criteria must be met for behaviour to be considered coercive,^[47] and described this as ‘quite a high bar’. For example, it was suggested that this may not capture the more subtle pressure that can be exercised by some faith communities.

262. Some emphasised the extent to which individuals can be vulnerable to control by their faith or ethnic community, especially under 18s and other vulnerable people, who were seen as being at risk of harm from behaviour that may not be objectively viewed as ‘coercive’. This included reference to religious teachings (such as that a particular sexual orientation or gender identity is sinful or would prevent full participation in church) that can be frightening and controlling.

263. In this context, there was some disagreement with the proposal not to include omissions as coercive behaviour. It was argued that threats of exclusion from a community, such as omitting to invite, include or welcome, can still result in harm, and could amount to conversion practices. Research conducted by the Expert Advisory Group on Ending Conversion Practices was cited as identifying these kinds of omission as a particular risk for Minority Ethnic+ and religious communities.

Possible additional examples of coercion

264. Several respondents proposed additional examples of coercive behaviour, taking account of some of the issues noted above. These included adding references to:

• removing someone from education
• barring their access to information
• bullying and oppressive behaviour

265. Other suggestions included that the definition should encompass coercive behaviour by multiple people/a group of people who are acting with joint intent. However, it was also noted that this raises questions about how the organisation of a group, and the joint working of multiple individuals, would be addressed by legislation.

266. Finally, it was suggested that adding a further reference to ‘avoidance of doubt’ could make clear that the focus was not on the reasonable exercise of parental responsibilities or rights. An associated comment was that defining suppression specifically on the basis of a preference for a certain sexual orientation or gender identity could help address any issues or concerns relating to parental rights.

4.3 - Requirement for harm

267. It is intended that the criminal offence of engaging in conversion practices should address conduct that is sufficiently serious and harmful, with a requirement that the act/service or course of behaviour has caused harm to the victim: either physical harm, psychological harm, or a combination of both. The legislation is proposed to be explicit that psychological harm includes fear, alarm and distress.

268. In relation to acts that are considered to be a provision of a service, the harm can be caused either by an individual act or a course of behaviour made up of a series of acts taken together. In this context, one session or type of therapy undertaken by the perpetrator may not cause harm (and so will not be criminalised), but several sessions or types, when taken together, may result in harm.

269. Courses of behaviour that do not cause harm will not be criminalised and nor will a provision of a service that does not cause harm.

Question 11: What are your views on the requirement that the conduct of the perpetrator must have caused the victim to suffer physical or psychological harm (including fear, alarm or distress)?

270. Responses to Question 11 by respondent type are set out in Table 7 below.

Table 7 – Question 11

Respondent breakdown	Agree	Do not agree	Don’t know	Total
Organisations:	n/a	n/a	n/a	n/a
Campaign group, policy forum or think tank	3	3	0	6
Faith or belief body or group	6	73	1	80
Family or parental support group	2	2	0	4
LGB group	0	2	1	3
LGBTQI+ group	6	2	2	10
Medical, psychology or counselling group or body	6	6	2	14
Political party or trade union	4	5	1	10
Public body or local authority	1	0	0	1
Social work, legal or community safety group or body	2	1	1	4
Third sector	4	1	0	5
Women's groups	1	5	0	6
Total organisations	35	100	8	143
% of organisations	24%	70%	6%	n/a
Individuals	1245	3004	386	4635
% of individuals	27%	65%	8%	n/a
All respondents	1280	3104	394	4778
% of all respondents	27%	65%	8%	n/a

271. A majority of respondents – 65% of those answering the question – did not agree with the requirement that the conduct of the perpetrator must have caused the victim to suffer physical or psychological harm (including fear, alarm or distress). This rose to 70% of organisations.

272. Although 27% of all respondents agreed with the requirement, this dropped to only 24% of organisations. The proportion of respondents who answered that they did not know at this question was higher at 8% of those answering.

Question 12: Please give reasons for your answer to Question 11.

273. Around 4,250 respondents gave their reasons.

Reasons for not supporting the harm requirement

274. As at earlier questions, there was condemnation of causing harm, with a number of Faith body respondents amongst those stressing that they condemn harmful behaviour unequivocally, but also that such behaviours are already illegal.^[48] It was reported that this includes psychological harm, and again it was argued that no new offence is required.

275. General concerns about the clarity and workability of the proposed definition of harm were again the most-frequently raised issue, with the focus tending to be on the psychological harm element. General points included that psychological harm is not easy to define and may be subjective, and that the threshold appears dangerously low and could restrict and unintentionally criminalise religious practice.

Distress

276. There were concerns about the inclusion of ‘distress’ in the definition, with further points made including that, as with harm more widely, it could be highly subjective. It was also thought that it creates a very low threshold for harm, with an associated point that this could amount to an unreasonable interference with ECHR Article 10 – the right to freedom of expression.

277. There was reference to the courts having noted that the right to freedom of expression protects facts and opinion, expression which shocks, offends and disturbs and also protects the contentious and the unwelcome,^[49] and it was argued that the proposed definition of harm would be a direct intrusion into the most basic right of freedom of expression. An example given was that an individual could claim distress even in response to mild expressions of religious doctrine, such as the assertion that certain activities are a sin.

278. As at other questions, there were also concerns that therapeutic practice should not be mistaken for a conversion practice. It was reported, for example, that clients can often become distressed in therapy situations as they grapple with the dilemmas that brought them to therapy. The Campaign group respondent making this point went on to suggest that ‘fear and alarm’ are retained, but that ‘distress’ is removed from the legislation.

Intent

279. Another frequently made point related to the proposed offence not ‘requiring it to be proven that the perpetrator intends to cause harm to the victim or to be reckless as to whether harm would occur’. There was a concern that this omission could lead to individuals who are acting with the best of intentions facing allegations. It was suggested that the motivation behind the ‘perpetrator’s’ conduct should be weighed, not its effect upon the ‘victim’, and that consideration of intentionality should be key.

Potential for prosecution or conviction

280. Connected to respondents’ concerns about a subjective and low threshold was a suggestion that a conviction could be obtained based on self-reporting of distress, when there was no evidence of actual harm. Related points included that:

• The Scottish Government claims the harm test is one of the key safeguards built into the proposed criminal offence. However, when the burden of proving distress is so low it does not amount to much of a safeguard.
• It is hard to see what evidence could possibly be adduced to disprove the existence of distress.
• Even if the harm requirement does result in someone not ultimately facing a criminal sanction there is still the distinct possibility that false accusations could be made and that an accused would be put through the stress of a criminal trial in order to establish that no harm occurred.

Messaging and burden of proof

281. A very different perspective came from a small number of respondents who had tended to support the proposals up until this point. They included a small number of LGBTQI+ group respondents, a Third sector respondent and a Trade union respondent, with their points including that the legislation should ban conversion practices on the basis that they are likely to cause harm without the need to demonstrate that they have caused harm. Legislation regarding dangerous driving was given as an example of this type of approach. It was argued that the inclusion of harm would send the wrong message to perpetrators, victims and society more broadly, namely that conversion practices are permissible and not criminal so long as ‘there is no harm done’.

282. An associated concern was that this measure places undue onus on survivors to produce evidence of harm, potentially further traumatising them. It was also noted that harm may be difficult to prove, or may be delayed as is normal in many cases of trauma. Rather than referencing harm, it was suggested that the focus should be on providing clarity about which actions are permissible and which are not.

Reasons for supporting the harm requirement

283. Many of those who supported the inclusion of the harm requirement expressed their view that conversion practices are inherently harmful and, conversely, that there are no conversion practices that cannot be described as harmful. Preventing harm, but also holding people to account for harmful behaviours when they do occur, was seen as a key driver for the legislation. There were frequent references to the harm caused by conversion practices, and many respondents condemned the harmful impact of such practices on the individuals involved, and on the wider LGBTQI+ community. It was also linked with promoting a view of LGBTQI+ people as inherently inferior to heterosexual or cisgendered people.

284. Respondents also recognised the importance of harm in ensuring a sufficient threshold for criminality, and there was support for an approach that criminalises only the most serious behaviours. A Medical, psychology or counselling respondent argued that the harm requirement would enable frivolous or unfounded allegations to be dismissed, ensuring a focus on the most serious cases.

Definition of harm

285. Some respondents noted their particular support for the inclusion of multiple forms of physical and psychological harm, including welcoming the reference to psychological harms, such as fear, alarm and distress. It was suggested that there is research evidencing the range of specific harms caused by conversion practices, and also a body of survivor testimony around the nature and severity of psychological harm associated with conversion practices.

286. A small number of additions or amendments to the proposed definition of harm were also suggested, including that:

• The final legislation would benefit from inclusion of a variety of examples to illustrate potential harms.
• In terms of psychological harms, the Bill should include specific reference to examples such as suicide, suicide attempts, suicidal ideation, self-harm, stress/anxiety, depression and Post Traumatic Stress Disorder.
• There could be scope for inclusion of the terms used in the proposed Misogyny Bill, including a reference to humiliation and degradation.

Evidencing harm

287. A frequently raised issue related to how the harms caused by conversion practices can or will be evidenced, with some seeking clarification, in the form of examples, of what would constitute evidence of harm. This was seen as a particular challenge in terms of psychological harms, with some questioning how realistic it is to expect an individual to be able to evidence the kind of harms caused by conversion practices. For example, one LGBTQI+ group respondent noted that causing individuals to question their sense of self is a particularly insidious from of harm associated with conversion practices, but sought clarity on how this kind of impact could be evidenced.

288. Another LGBTQI+ group respondent noted that they would strongly oppose requiring, for example, a diagnosis of a particular mental health problem to evidence harm. They argued that requiring a survivor to access the mental health system after an experience such as this could lead to further harms, and that many LGBTQI+ people do not feel comfortable accessing mental health systems due to previous experiences.

289. Other concerns about evidencing harm included that there could be a risk of further harm to victims or survivors if they are required to provide testimony when they may not be ready to do so. There were calls for the final legislation to include further detail on how victims will be enabled and supported to report that they have been harmed, while protecting their rights and avoiding further risk of harm. This was seen as particularly important for children, young people and others with a potential reduced capacity to communicate that they have been harmed.

290. Other issues raised around evidencing harm caused by conversion practices included:

• That harm caused by conversion practices, or specific aspects of harms, may not become apparent for a considerable time. The acknowledgement of this at paragraph 75 of the consultation paper was welcomed, and it was suggested that the approach to ending conversion practices, and the specific focus on causation of harm, must recognise that survivors could wish to bring charges a number of years after being subject to conversion practices.
• The need to recognise that harms caused by conversion practices can be cumulative, such that a survivor may not be able to point to a single event or session.
• Questioning how the legislation will deal with acts undertaken by a group, where each individual may have only committed one act, but the harm was cumulative.

4.4 - Defence of reasonableness

291. It is proposed that there should be a defence that the accused’s conduct was reasonable in the particular circumstances, meaning that the behaviour was objectively reasonable, rather than that the accused person considers their behaviour to be reasonable based on their own values.

292. A ‘defence of reasonableness’ is included in a number of criminal offences in Scotland where there is a broad range of conduct that potentially falls within the offence. It acts as a safeguard where the actions of an accused person may meet the technical requirements of the offence but there is a reasonable justification for why they should not be convicted of the criminal offence.

Question 13: Do you agree with the inclusion of a defence of reasonableness?

293. Responses to Question 13 by respondent type are set out in Table 8 below.

Table 8 – Question 13

Respondent breakdown	Agree	Do not agree	Don’t know	Total
Organisations:	n/a	n/a	n/a	n/a
Campaign group, policy forum or think tank	2	3	1	6
Faith or belief body or group	63	5	8	76
Family or parental support group	2	0	1	3
LGB group	1	2	0	3
LGBTQI+ group	1	5	3	9
Medical, psychology or counselling group or body	7	1	3	11
Political party or trade union	3	4	3	10
Public body or local authority	0	0	1	1
Social work, legal or community safety group or body	2	2	0	4
Third sector	2	0	3	5
Women's groups	3	3	1	7
Total organisations	86	25	24	135
% of organisations	64%	19%	18%	n/a
Individuals	2342	1122	1014	4478
% of individuals	52%	25%	23%	n/a
All respondents	2428	1147	1038	4613
% of all respondents	53%	25%	23%	n/a

294. The pattern of response at this question was very different to that at earlier questions. A small majority – 53% of those answering the question – agreed with the inclusion of a defence of reasonableness. This rose to 64% of organisations. The remaining respondents were relatively evenly divided between those who did not agree (25% of all respondents and 19% of organisations answering) and those who did not know (23% of all respondents and 18% of organisations answering).

295. Analysis of comments at Question 14 suggests that many of those who did not support the proposals overall, including many of the Faith bodies, agreed that a reasonable defence should be included if the measures are taken forward.

296. The majority of those who did not know had tended to agree with earlier proposals. For example, around 2 in 3 of these respondents had agreed at Question 1, while the remaining 1 in 3 had disagreed.

Question 14: Please give reasons for your answer to Question 13.

297. Around 3,850 respondents gave their reasons.

298. Reflecting the analysis at the closed question, respondents did not divide as consistently as at previous questions in terms of the issues raised. Further, those who answered ‘do not know’ at this question generally went on to raise similar issues to either those who had agreed or disagreed. Given this complexity, the analysis below is set out thematically, but where possible notes any clear association between the points made and respondents answer at the closed question.

Proportionality and avoiding wrongful convictions

299. A frequently made point, including amongst those who agreed, disagreed or did not know at Question 13, was essentially that ‘it is reasonable to be reasonable’. It was hoped that a defence of reasonableness would help ensure the fair application of any legislation. This was sometimes linked to the need for a provision to allow a person to defend themselves if they are wrongly accused of conversion practices, causing harm or being involved in the aggravation of the offence. By extension, it would help to ensure fair trials and avoid unnecessary and inappropriate criminal convictions.

300. It was also noted frequently that an explicit defence of reasonableness is always best practice in drafting criminal offences such as this, with other offences which include a range of behaviours, such as the offence of Threatening or abusive behaviour in section 38 of the Criminal Justice and Licensing (Scotland) Act 2010, cited as an example.

301. A Social work body respondent was amongst those seeing it as essential to include a defence of reasonableness to ensure people are not criminalised when acting in the best interests of the person subject to behaviours which could be considered conversion practices. They suggested that this might arise where a parent places restrictions on their child for their safety and protection, or where the parent considers their child may not understand the long-term implications of a course of action. Some respondents also considered it may also relate to people living in culturally conservative communities where openly expressing their sexuality or gender identity may place them at risk of harm. A Third sector respondent stressed the need for appropriate protections for practitioners and support workers supporting people at immediate risk of suicide and mental health crisis due to their gender identity or sexuality.

302. Some respondents, primarily amongst those who did not support the proposal as currently set out, focused on a need to protect parental rights and the right to practice religion. Comments included that parents and others should not be at risk of criminalisation for counselling people at risk of suicide or self-harm, for preventing other harms, or for preventing criminal behaviour. Similar concerns to those expressed at other questions, relating to the over-reach of legislation into parenting, religious practices and free speech were also raised, with a connection sometimes made to people being able to defend themselves against malicious accusations.

303. In terms of the protections offered to particular groups, a Medical, psychology or counselling respondent was of the opinion that the reasonableness provision would clarify the offence in an appropriate way. They went on to express their view that, in terms of actions by a healthcare professional, it would be very unlikely that there would be any circumstances where it would be “reasonable” for them to be involved in conversion practices. Another commented that the reasonableness defence provides additional safeguards for health professionals, especially in cases where there might be conflicting interpretations of their actions.

304. A Faith or belief body respondent was of the view that the proposal places the onus and standards of proof on the right parties, as although it is for the accused to identify evidence of reasonableness, it is for the prosecution to ‘prove beyond reasonable doubt that it is not the case’.

Importance of clear definitions

305. A frequent concern amongst those who did not know or did not agree with the inclusion of reasonableness stemmed back to broader concerns about the proposals overall. Given these concerns, many respondents thought that reasonableness is too vague or subjective a concept to provide sufficient protections for those who might be accused of using conversion practices. Associated arguments included that, particularly given strongly held but divergent views from those on different sides of the argument, it may be difficult to establish a common understanding of what is reasonable.

306. Some of those who did not agree with its inclusion felt that they did not have enough information to take an informed view. Some of those who were generally supportive of the provision went on to comment on the importance of reasonableness being clearly and appropriately defined. For some, this was connected to a view that if the definition is vague or lacks clarity it could open up loopholes, and it was argued that any definition should not allow conversion therapy practices to continue under the guise of reasonableness. This issue is discussed further below.

307. In terms of the definition as currently set out, further comments included a Legal body respondent questioning whether ‘reasonable’ means what the consultation paper suggests. They went on to note that paragraph 119 indicates that the test would be whether the accused’s behaviour was ‘reasonably objective’ but that, if the behaviour was objective, the offence should not exist in the first place as its existence requires the intention to change or suppress someone else’s sexual orientation or identity.

308. The same respondent also commented that this reflects a problem that they have found in the definition of the offences – as the definition of the behaviour is not clear enough, it is difficult to identify whether a lawful behaviour can be perceived as a neutral behaviour or as an offence. They went on to comment that, in specific cases it might not be clear whether the offence existed or not, or if it existed, but the behaviour allows the defence of reasonableness.

Insufficient protections

309. The most frequently raised issue, primarily by those who had disagreed or did not know at Question 13, was that a reasonableness defence will not provide sufficient and appropriate protections. This was often connected to a view that, however set out in legislation, reasonableness is simply too vague or subjective a concept to provide sufficient protection.

310. Others, who often did not support the proposals overall, but who did think reasonableness should be included if they go ahead, called for the defence of reasonableness to be strengthened or expanded. For example, a Faith body respondent noted that paragraph 123 of the consultation paper states that it is difficult to envisage when the defence would be used. Their associated concern was that, while any safeguard is to be welcomed, it is not of much practical relevance without more examples of reasonableness covering a greater range of ordinary conversations and pastoral support.

311. An LGB group respondent called for a clear and unequivocal definition of reasonableness that would cover both parents and professionals involved with the care of a trans identifying person giving them factual information which could be potentially distressing. They suggested that this should go far beyond the ‘prevention of suicide’ example given currently.

Concerns about loopholes or weakening of the legislation

312. A very different perspective, raised primarily by those who had either agreed that, or had not known whether, a defence of reasonableness should be included, was that the reasonableness clause as currently drafted could result in weakening the legislation. A Campaign group respondent was amongst those arguing that, if there is to be a reasonableness defence for legal reasons, it must be defined objectively and as strictly as possible to avoid the creation of a loophole.

313. Associated concerns included that, as those who engage in conversion practices do not typically act out of malice, but rather because they truly believe that they can ‘heal’ the target of these practices, there is a risk that the perpetrator will be seen to have been acting ‘reasonably’ under their particular circumstances because they are acting out of love and concern based on their deeply held beliefs.

314. There was also a concern about the examples of potential use of this defence set out in paragraph 124 of the consultation paper. It was suggested, for example, that if a person is being ‘supported’, they are not being coerced, and so the offence would not apply at all in such cases.

No defence of reasonableness

315. Drawing on these types of concerns, some respondents who had disagreed at Question 13 were explicit that they did not think any defence should be included. Further comments included that, while there may be a precedent for the inclusion of a reasonableness clause, in this case it could weaken the protections afforded to LGBTQI+ people to an unacceptably low level.

316. An LGBTQI+ group respondent commented that there is no defence of reasonableness which should exist for physical or mental abuse, regardless of the age or capacity of the individual.

4.5 - Proposed penalty

317. It is proposed that the sentencing range for convictions under this offence should be:

• on summary conviction: imprisonment for a term not exceeding 12 months, or to a fine not exceeding the statutory maximum (£10,000), or to both
• on conviction on indictment (solemn procedure): imprisonment for a term not exceeding 7 years, or to an unlimited fine, or both.

Question 15: Do you agree with the proposed penalties for the offence of engaging in conversion practices?

318. Responses to Question 15 by respondent type are set out in Table 9 below.

Table 9 – Question 15

Respondent breakdown	Agree	Do not agree	Don’t know	Total
Organisations:	n/a	n/a	n/a	n/a
Campaign group, policy forum or think tank	2	3	1	6
Faith or belief body or group	4	71	2	77
Family or parental support group	2	2	0	4
LGB group	0	3	0	3
LGBTQI+ group	7	1	1	9
Medical, psychology or counselling group or body	2	5	4	11
Political party or trade union	5	4	1	10
Public body or local authority	0	0	1	1
Social work, legal or community safety group or body	2	1	1	4
Third sector	3	0	2	5
Women's groups	0	5	1	6
Total organisations	27	95	14	136
% of organisations	20%	70%	10%	n/a
Individuals	1262	2839	359	4460
% of individuals	28%	64%	8%	n/a
All respondents	1289	2934	373	4596
% of all respondents	28%	64%	8%	n/a

319. A majority of respondents – 64% of those answering the question – did not agree with the proposed penalties for the offence of engaging in conversion practices. This rose to 70% of organisations.

320. Although 28% of all respondents agreed with the requirement, this dropped to only 20% of organisations. The proportion of respondents who answered that they did not know at this question was 8%.

Question 16: Please give reasons for your answer to Question 15.

321. Around 3,900 respondents gave their reasons.

Objection to the proposed penalties

322. Objection to proposed penalties was most commonly linked to opposition to the proposed offence, as discussed at earlier questions. Respondents frequently reiterated arguments made against the proposed legislation, including that the offence is poorly defined, is open to abuse due to a low threshold for criminality and has the potential to severely penalise behaviour that should not be in scope. This included a specific concern that custodial sentences cannot be justified for the proposed offence, and that fear of penalties could prevent parents, professionals and others from providing necessary advice and support.

323. Another frequently expressed view was that the specific proposed penalties are too high, including some describing penalties as ‘draconian’. This included particular concern around the proposed maximum penalty of 7 years’ imprisonment for the solemn procedure, and a wider view that custodial sentences could have a significant impact on what was described as an ‘already overstretched’ criminal justice system.

324. For some respondents, objection to the level of proposed penalties was based on a view that conversion practices are not comparable with the other offences referenced in the consultation paper, such as domestic abuse or female genital mutilation. It was also suggested that the other offences listed differ from the proposed conversion practice offence in that they require threatening, coercive or abusive behaviour.

Support for the proposed penalties

325. Those expressing support for the proposed penalties often saw penalties as important in ensuring the effectiveness of the proposed offence in protecting LGBTQI+ people. They were described as necessary to reinforce legislation, as a deterrent, and as sending a clear message that conversion practices are unacceptable. This included general support for significant penalties to recognise the potential for conversion practices to cause serious harm.

326. The range of penalties proposed were seen as important in enabling a flexible approach to sentencing that can take account of the likely diversity of conversion practice cases. A Third sector respondent argued that conversion practices are uniquely varied in terms of their severity and impact, and there was a view that maximum penalties must allow for sufficient variation in sentencing to take account of the circumstances of each case, including potential aggravating or mitigating factors. While some suggested that many cases are likely to receive a penalty well below the proposed maximum (such as for first offences), there was support for significant maximum penalties for more serious cases (such as repeat offences and/or where significant harm has been caused).

327. In terms of the level of proposed offences, there was also support for the consultation paper making comparison with other offences, including forced marriage and domestic abuse. There was agreement that conversion practices are comparable with these offences in terms of the harm caused, and support for an approach based on similar penalties. An LGBTQI+ group respondent also drew comparison with female genital mutilation offences, and suggested that the proposed penalties should be increased in line with those available under the Prohibition of Female Genital Mutilation (Scotland) Act 2005.

328. In this context a number of respondents argued that the proposed penalties were insufficient. These respondents wished to see higher maximum penalties for the most serious cases – for example where significant harm has been caused, for cases involving children, and/or where individuals have abused a position of power. It was hoped that greater penalties would act as a stronger deterrent.

329. There was also a view that summary conviction is not appropriate for conversion practices. It was suggested that there may be cases where secondary or multiple charges would affect the overall sentencing range, and some wished to see this referenced in the legislation.

Proposed amendments

330. As noted above, a number of those expressing overall support for proposals wished to see tougher penalties available for the most serious cases. This included comments, primarily from individuals, proposing higher maximum penalties. Specific proposals included a maximum prison sentence of 2-3 years for summary cases,^[50] and up to 14 years for solemn proceedings (a respondent noting that this is consistent with the Domestic Abuse (Scotland) Act 2018).

331. Amendments were also suggested to the proposed maximum fine for summary conviction (up to £10,000). Some felt that the proposed maximum fine may not be a sufficient deterrent for wealthy individuals and larger organisations, and there was reference to the potential for conversion practices to generate significant income. It was also proposed that fines should be linked to income.

332. In addition to comments on proposed custodial sentences and fines, there were calls for greater use of community-based penalties, restorative approaches and other penalties. This included a preference for restorative rather than punitive justice, and some opposition to the principle of custodial sentences, including concerns that these could inadvertently provide additional publicity for offenders. There was also a view that the focus should be on ensuring individuals, organisations and services stop practicing conversion practices, rather than on removing the liberty of those individuals.

333. In this context, respondents also proposed use of other penalties such as revoking professional licences, banning perpetrators from working with children/young people and vulnerable adults, and punishment for the organisation or group undertaking conversion practices. There were calls for a greater emphasis on civil protection orders and other measures such as support, education, and engagement to prevent conversion practices.