Ending conversion practices in Scotland: consultation analysis

5. Criminal offences – additional considerations

5.1 - Defence of consent relating to conversion practices

334. The consultation paper notes that evidence suggests that although many people who undergo conversion practices agree in some way to do so, they are often driven by external pressures and coercions, such as imbalanced power dynamics or being under the guidance of powerful people in their life who are in a position of trust or authority, limiting their autonomy.

335. Considering the available information and evidence, the Scottish Government believes that it is extremely difficult to ensure that consent is fully informed, and so do not propose to include a defence of consent in relation to the new criminal offences. Further, it is not possible to consent to actions that cause harm and the criminal offence requirement that the act has caused harm makes a defence of consent inappropriate.

Question 17: Do you agree that there should be no defence of consent for conversion practices?

336. Responses to Question 17 by respondent type are set out in Table 10 below.

337. A small majority of respondents – 52% of those answering the question – did not agree that there should be no defence of consent for conversion practices (i.e. by extension they supported there being a defence of consent). This rose to 65% of organisations.

338. Although 45% of all respondents supported the proposal, the proportion of organisations was lower at 32%.

Question 18: Please give reasons for your answer to Question 17.

339. Around 4,650 respondents gave their reasons.

Support for a defence of consent

Protecting rights and freedoms

340. Opposition to the proposal – from those who supported a defence of consent – was frequently related to concern around protecting the freedom of adults to choose how they wish to live, and to make decisions about their own lives. A number of these responses included a particular focus on protecting religious freedom.

341. It was argued that, by not allowing a defence of consent, proposals would deny people their personal autonomy to engage in consensual conversations around sexual orientation and gender identity, to access spiritual support, and to engage in prayer. Some Faith body respondents were amongst those stating that the absence of a defence would deter individuals, churches and organisations from providing important faith-based pastoral support and care. It was also argued that denying people the autonomy to access such services is ‘patronising’.

342. Allowing a defence of consent was also seen as important to ensuring appropriate access to justice. Respondents suggested that legislation must recognise the diversity of circumstances likely to be under consideration, and the potential for ‘grey areas’ where a defence of consent could be important to ensure legislation is not misused. This was linked to the view noted in earlier questions that the proposed definition of conversion practices is too broad.

Consistency of approach

343. The proposed absence of a consent defence was also seen as inconsistent with permitting people to consent to gender transition, and other medical or care services. Faith body and Women’s group respondents were amongst those referring to legislation allowing people to consent to what were described as life-changing gender affirming interventions. It was also noted that denial of consent is not applied to those who may later regret transitioning, and there was a view that the proposal fails to recognise the risk of undue pressure to transition and/or receive gender affirming services.

Capacity to make informed decisions

344. A frequently raised theme was the capacity for adults to make informed decisions. Respondents argued that adults should be assumed to consent unless there is substantial evidence to the contrary, for example of cognitive inability or other grounds for believing an individual is incapable of giving consent. An associated argument from a Campaign group respondent was that allowing people to consent would be consistent with the assumption that adults can consent to gender transitioning or realignment.

345. There was also reference to existing legislation that sets out the circumstances where individuals are or are not capable of making informed decisions, such as the Adults with Incapacity (Scotland) Act 2000 and Adult Support and Protection (Scotland) Act 2007.

Objection to underlying assumptions

346. Although recognising the risk that coercive control can mean someone is not able to give genuine, informed consent, it was also argued that since existing laws protect people from coercion and abuse, this legislation should permit people to consent to talking therapies and other support.

347. This was sometimes linked to a challenge to the suggestion that people only undergo conversion practices as a result of coercion or undue influence. It was suggested that by making this assumption, proposals deny the experience of people who would choose freely to access the type of support which could be included under the proposed definition of conversion practices.

348. There were also objections to statements in the consultation paper that conversion practices do not work and cause harm, and it was argued, by some respondents, that research demonstrates that both sexual orientation and gender identity can change. ^[51]There were also references to practices such as exploratory therapy, that were described as not causing harm to participants but as possibly being captured by the proposed definition of conversion practices.

Limiting access to support and guidance

349. Those opposed to the proposal frequently expressed concern that denying a defence of consent will prevent people from accessing important support and guidance.

350. This was sometimes linked to concerns that the definition of conversion practices being used is too broad and has the potential to capture therapies and support not in the realm of conversion practices. There was reference to young people/adults in gender distress, those who have come to regret transitioning, and those seeking to suppress their sexual desires (irrespective of their sexual orientation), for example to live by specific religious, cultural and social values. It was argued that preventing people from voluntarily accessing support, which they themselves want, could lead to individuals being isolated and at risk of harm at what could be a vulnerable period of their lives. Reflecting these concerns, several Faith body and Third sector respondents proposed that legislation should enable informed written consent to be given. It was noted that this would be in line with written consent to other medical treatment or care.

Opposition to a defence of consent

351. In addition to general comments in support of the proposed offence not including a defence of consent, respondents commented that this approach would be consistent with that taken for other offences where informed consent cannot be an option, such as female genital mutilation and domestic abuse. An LGBTQI+ group respondent also referred to recent examples of overseas bans on conversion practices that have not included a defence of consent.

352. In terms of the comparison between conversion practices and offences relating to domestic abuse or female genital mutilation, the frequent power imbalance between those performing such practices and those subject to them was highlighted.

353. It was also suggested that the definition of the offence as requiring a coercive course of behaviour means that informed consent is impossible. Evidence was cited around how common coercion is in delivery of conversion practices, and how victims can appear to consent. This was noted as a particular issue where conversion practices are targeted at children, young people and vulnerable adults. There was reference to The Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 identifying coercion as compromising the ability of an individual to give genuine consent.

Preventing harmful practices

354. The potential for conversion practices to cause serious harm was a key driver for some in their opposition to any defence of consent. Respondents referred to evidence of the variety and severity of harms that can be caused by conversion practices, including describing these practices as violating human rights. It was also reported that such practices are regarded as unethical by professional psychological and medical bodies. It was agreed that consent cannot be given to such harmful practices, especially as the harms associated with conversion practices are rarely made clear to individuals.

355. Those opposed to a defence of consent also supported statements in the consultation paper that conversion practices do not work. There was reference to evidence that sexual orientation or gender identity cannot be changed,^[52] and a view that any consent would therefore be provided on a false premise. An LGBTQI+ group described this as the primary reason that there can be no defence of consent.

356. Objections to a defence of consent were also based on concern that this would undermine the purpose of the proposed legislation in protecting LGBTQI+ people. Respondents raised concerns that allowing such a defence would provide a loophole to allow conversion practices. An associated point was that evidence points to many of those subject to conversion practices appearing to do so voluntarily, and that this could be cited in defence as apparent consent. Other points raised included:

• The frequent imbalance of power between individuals and parents or religious leaders, and the risk that decisions could be made under duress.
• The impact of social pressure from within an individuals’ community, including religious and cultural groups, and risk that people may feel the need to ‘consent’ to conversion practices to remain an active participant of the group or community.

Question 19: Do you have any other comments regarding the criminal offence as set out in Parts 8 and 9?

357. Around 2,425 respondents answered Question 19, although many reiterated or summarised arguments made comprehensively at earlier questions which are not repeated here.

358. Frequently raised issues not already given significant coverage included that:

• The human rights of those who disagree with the proposals are not being respected. (The compatibility of the proposals with rights protected by the ECHR are discussed in more detail at Question 26.)
• Those who have regretted transitioning or detransitioned should be provided with support and allowed to share their experiences. There were concerns that detransitioners might be deemed to be guilty of conversion practices if their stories dissuade others from following a similar path.
• Those working in criminal justice services will need to be provided with appropriate training on the legislation and to develop positive working relationships with LGBTQI+ communities. One suggestion was that third party reporting centres should be available to report conversion practices to Police Scotland at the request of victims.

359. Less frequently raised issues included:

• That the proposals fail to provide protection from prosecution for healthcare professionals who do not agree that gender-affirmation is the right approach for an individual patient. It was argued that it is at odds with the interim Cass Review’s^[53] recommendation for exploratory/talking therapies for gender distressed children.
• Both that advertising conversion practices should be banned (within devolved competence) and that it should not be banned if this would stop individuals telling their stories.
• That support services for survivors of conversion practices will be required.
• That general public education and awareness raising on conversion practices would be appropriate.

Points on draft sections

360. A Faith body and a Legal body expressed concerns that the draft sections of the Bill do not fully reflect the detail explained in the consultation paper, with a risk that the legislation might not be interpreted as intended. As an example, it was suggested that although the consultation paper excludes some behaviours (such as advice and guidance by religious leaders or parents that are not coercive) these exclusions are less clear in the draft provisions. Suggestions included that explanatory notes accompanying the Act should reflect the balance seen in the consultation paper.

361. Points specific to paragraph 118 (avoidance of doubt provision) included views that:

• Section 4.1 could be written in a more straightforward manner, simply to say that the examples listed do not meet the intent requirements of the legislation.
• Section 4.1(a) appears to give a blanket exclusion to healthcare professionals providing treatment to align a person’s physical characteristics with their gender identity, when some procedures involved are not supported by a consensus of medical opinion.
• In Section 4.1(b), the lack of a clear definition of conversion practices means a wide range of activities could potentially be caught by the criminal law. Spelling out affirming practice and non-directive practices as behaviours that will not be criminalised implies that these are the only approaches to sexual orientation and gender identity that will be acceptable.
• Section 4(b)(ii) should clarify that challenging a person’s view of their sexual orientation or gender identity does not, in itself, fall within the intent requirements.

It was also suggested that complying ‘with relevant medical, ethical and legal rules and guidelines’ will be difficult to demonstrate in gender healthcare, as there are no evidence-based guidelines.