Ending conversion practices in Scotland: consultation analysis

8. Consideration of Convention Rights

413. The consultation paper notes that, in developing the proposals the Scottish Government has carefully considered their impact on rights protected by the ECHR, in particular in relation to Article 8 (the right to family and private life), Article 9 (freedom of thought, conscience and religion), and Article 10 (freedom of expression). These are qualified rights, meaning that they can be restricted in some circumstances but that this must be necessary and proportionate to the aim to be achieved, in this case, protection of the rights of LGBTQI+ people.

414. Steps taken to make sure that the proposals respect all of the rights involved include:

• Ensuring that the criminal law targets those acts that are harmful and coercive, complementing this with a preventative and protective approach through the use of civil protection orders.
• Conversion practices must be undertaken with a specific intention to change or suppress and in relation to a specific victim. They do not include general statements of opinion without this specific intention, or voluntary practices undertaken by a person themself in line with a person’s own belief and not pushed upon them by someone else.
• A specific avoidance of doubt provision has been included to put beyond doubt that an act or course of behaviour that does not intend to direct a person towards a particular sexual orientation or gender identity is not a conversion practice and nor is behaviour that consists entirely of expression of opinion of belief.
• A defence of reasonableness acts as an additional protection by allowing, for example, an accused person to put forward a justification as to why their behaviour was reasonable, which could include the exercise of their Convention rights.

Question 26: Do you have any views on the steps we have taken to ensure the proposals are compatible with rights protected by the European Convention of Human Rights?

415. Around 3,450 respondents answered Question 26.

416. Some respondents agreed that it is important that the proposals should be compatible with rights protected by the ECHR, although often without expressing a clear view on whether this has been achieved.

417. However, there was also a view that the consultation paper does not give adequate consideration to the protection of human rights. It was noted that coverage extends to less than two pages and that there is no analysis of the articles which are engaged. It was also reported that legislation must be compatible with the ECHR to fall within the devolved competence of the Scottish Ministers and Parliament.

Reasons the steps taken do ensure compatibility with rights protected by the ECHR

418. Some respondents simply noted their support or that they thought the measures to be fair, reasonable, appropriate or proportionate. Other reasons for thinking that the measures are compatible with the ECHR reflected the four points highlighted in the consultation paper and included that:

• Offences would only apply where conversion practices are directed at a person and cause them harm.
• ECHR requires the law to restrict people from causing harm to others and conversion practices do cause harm.
• People will still be free to express their opinions about LGBTQI+ matters.

419. Specifically, it was argued that a narrow focus on the most harmful practices, coupled with the requirement for intent and a specific victim provides protection for religious freedom, and that the requirement for intent provides protection for privacy and family life.

420. Respondents also emphasised the importance of protecting LGBTQI+ people.

421. Some respondents who were clear that the proposals are compatible with ECHR rights, argued that any restrictions on qualified rights (for example in relation to Article 9) are necessary and proportionate in protecting the rights and freedoms of others. Points made in support of this position tended to reflect the case made in the background section of the consultation paper, for example citing the views of the EHRCJ Committee, the Expert Advisory Group and the UN Independent Expert on Sexual Orientation and Gender Identity. Specifically, it was reported that the UN Special Rapporteur on Freedom of Religion or Belief has stated that banning conversion practices would not violate the freedom of religion or belief under international human rights law.

Reasons the steps taken do not ensure compatibility with ECHR rights

422. Among reasons for thinking that the measures proposed are not compatible with the ECHR, the most frequent point was a concern that the broad nature of the current proposals could criminalise the mainstream pastoral work of some faith bodies, with a specific argument that the Scottish Government needs to do more to reassure Christians that explaining biblical teaching around sexuality to someone who is same-sex attracted or who is trans will not constitute conversion therapy.

423. Similar concerns were raised around what was seen as a failure to safeguard the rights of parents, either to guide their children according to their own faith or not to support a gender-affirming approach for their child for other reasons.

424. It was also argued that:

• The consultation paper’s terminology is vague, subjective or inconsistent and that the lack of clear definitions means that the legislation could be seen as arbitrary and contrary to the rule of law. For example, there were views that what constitutes coercion is not clear or that references to exclusion of ‘voluntary practices’ at this question are at odds with an earlier statement that it is not possible to consent to conversion practices.
• The threshold for harm is too low.
• The rights of one section of the population – the LGBTQI+ community – are being prioritised above those of others.
• An individual’s right to choose to seek help is being denied.
• The Scottish Government is wrong to treat ‘LGB’ and ‘T+’ people as though they are a homogeneous group and, in so doing, are compromising the rights of LGB people.
• Protections under various ECHR articles are breached, as outlined below.

425. Two Faith body respondents argued that the proposed legislation would limit convention rights in a manner that is not proportionate since it would criminalise practices which are neither threatening nor abusive and that no pressing social need for the legislation has been demonstrated. There was also a view that while the consultation paper shows the required proportionality, the draft Bill does not.

426. A very different perspective was expressed by respondents who suggested that some of the proposals presented in the consultation paper as measures to ensure that everyone’s rights are protected may go too far and could create loopholes that reduce the effectiveness of the legislation in protecting LGBTQI+ people. Some of these issues are summarised briefly at the end of the analysis at this question.

Comments on specific ECHR articles

427. The ECHR article referenced by the largest number of respondents was Article 9, followed by Article 8 and then Article 10, with almost all these respondents anticipating that these articles would be breached by the proposed legislation. Some respondents referenced a legal opinion obtained from Aidan O'Neill KC by the Christian Institute which they believed to have stated that four ECHR Articles (Articles 8, 9 10 and 11) may be violated.

428. Points made on individual articles are outlined below, in the order set out by the ECHR. While nearly all issues raised related to potential breaches, comments on Articles 2 and 3 tended to be in support of the legislation as drafted. Please note that points in relation to rights protected under the Equality Act 2010, the Universal Declaration of Human Rights and the UNCRC are covered, where appropriate, at Question 32 onwards.

Article 2 – Right to life

1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.

429. An LGBTQI+ group respondent argued that the proposals are compatible with Article 2.

Article 3 – Prohibition of torture

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

430. A Medical, psychology or counselling body and an LGBTQI+ group were amongst those arguing that conversion practices represent a violation of Article 3 or, conversely, that in seeking to end conversion practices, the proposed legislation is compatible with Article 3. It was also noted that (unlike Articles 8, 9 and 10 which are qualified) Article 3 is an absolute right, and that the ECHR requires a state to have a proactive investigatory mechanism to prevent serious harm.

Article 6 – Right to a fair trial

1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3. Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

431. There was a view, including from a Social work body, a Political party, a Women’s group and LGB group respondents that the proposed legislation breaches or may breach Article 6. Some argued that the right to a fair trial is undermined by the assumption that gender identity is real and that opinions to the contrary are, counter to UK law, potentially criminal. Further, it was argued that any criminal court enforcing a contested belief that gender identity exists becomes a de facto religious court, and therefore not an independent tribunal for the purposes of Article 6.

Article 8 – Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

432. A frequently expressed view, including by many Faith body respondents was that the proposals would constitute unlawful interference with parental rights, in breach of Article 8. Some of those making this point referenced part of a judgement of the Strasbourg Grand Chamber that ‘the state is forbidden to pursue an aim of indoctrination that might be considered as not respecting parents’ religious and philosophical convictions... ’.^[54]

433. It was also suggested that, as drafted, the proposals could cause exercising parental responsibilities to be considered a conversion practice if a parent imposes restrictions on their child and those restrictions cause the child distress, and that consensual, private conversations within a family home could be criminalised.

434. A small number of respondents including a Medical, psychology or counselling body respondent argued that stopping a reasonable person, who is informed of possible risks and advantages relating to a procedure, from consenting to that procedure would breach the freedoms of appropriately informed persons to consent to certain practices, in breach of several articles including Article 8.

435. An alternative view on Article 8, set out by a Third sector respondent, was that the requirement for intent supports the protection of rights to privacy and family life as held by parents and carers of children and young people in Scotland.

Article 9 – Freedom of thought, belief and religion

1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

436. The view that the proposed legislation would be in breach of Article 9 was one of the most frequently raised issues at Question 26. Reasons for this position included that:

• A restriction to expressing doctrinal statements and prohibiting teaching or coaching would be in breach of the right of an individual not only to teach but also to practice and observe their religious beliefs.
• For some individuals, perspectives on sexuality and gender are not simply a matter of opinion but part of a code of conduct influenced by both culture and religious beliefs.
• Expressing a belief that sexual activity should be reserved for heterosexual marriage, whether in a private conversation or when counselling someone to abstain from engaging in sexual activity outside of heterosexual marriage, could be a criminal offence.
• Somebody who tries to help another person who chooses to move away from LGBTQI+ identification could be prosecuted.
• Absence of provisions on consent would mean that an individual who wishes to seek help to practice his religious convictions is prevented from being able to seek help from others in their church or wider faith community.

437. It was also noted that Article 9 is relevant to a parent’s rights to raise their children in accordance with their religious beliefs, the European Court of Human Rights having indicated that bringing a child up in line with their own religious or philosophical convictions may be regarded as a way for a parent to manifest their religion or belief.^[55]

438. While most respondents who argued that the proposals will breach Article 9 referenced protections for religious beliefs, there was also a view that insufficient consideration has been given to gender-critical beliefs, for example the position of an individual prosecuted for seeking to change someone’s gender identity who does not believe that people have gender identities.

439. An alternative perspective on Article 9 was that it is a qualified right that can be restricted in a proportionate way to achieve a legitimate aim. A narrow focus on the most harmful practices and the requirement for intent and a specific victim in order for the act or course of behaviour to be regarded as a criminal offence were seen as helping to protect rights to religious freedom while positive impacts were also predicted, including for LGBTQI+ people of faith and members of religious organisations which are inclusive of LGBTQI+ people.

Article 10 – Freedom of expression

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

440. A view that the proposals are likely to breach Article 10 was another frequently made comment including an argument that the legislation will interfere with the right to freedom of expression by prohibiting certain viewpoints and practices, including discussions and conversations. Potential criminalisation of consensual conversations was thought to be a violation of Article 10.

441. There were also arguments that voicing gender-critical opinions could be criminalised, breaching the rights to freedom of expression of those concerned, and that this could impact both parents and healthcare professionals who oppose a gender affirming approach.

Article 11 – Freedom of assembly and association

1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

442. Relatively few respondents commented directly on Article 11, although a larger group referenced a legal opinion^[56] that four ECHR articles could be violated, and Article 11 was one of these. Arguments included that Article 11 could be breached by:

• Any restrictions on the ability of faith bodies to provide help and support to one another to live according to their faith in relation to sexual orientation and gender identity.
• Any attempt to limit their freedom to appoint leaders and volunteers who share their beliefs on sexual orientation and gender identity.
• Prosecuting a group of parents who do not subscribe to gender identity beliefs and want to organise a support group to protect their children, or a group of therapists who set up a practice based on a ‘watchful waiting’ approach.

Article 12 – Right to marry

Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.

443. There were occasional references to a potential violation of Article 12, making an argument that some people may seek therapy for unwanted sexual attraction so that they can get married to someone of the opposite sex, and that preventing such conversations would breach Article 12.

Article 14 – Prohibition of discrimination

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

444. Some respondents who cited a potential violation of Article 12 were among a small number who suggested that Article 14 could also be violated in combination. One argument made in support of this view was that being ‘ex-LGBT’ or ‘ex-gay’ is a protected characteristic under the Equality Act 2010, so a law which claims that it is not possible to change sexual orientation would breach Article 14 rights not to be discriminated against.

445. On similar grounds it was suggested that the proposed legislation might result in prosecution of someone who has de-transitioned and advises a person experiencing gender dysphoria to consider options other than transitioning.

Protocol 1 – Article 2: Right to education

No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and teaching, the state shall respect the rights of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.

446. Faith body and individual respondents were among a small number who raised concerns with respect to compliance with Article 2 of Protocol 1 (A2P1). The reference in paragraph 205 of the consultation paper to an intention ‘to explore how best to educate children and young people as well as the general public on what conversion practices are…’ was noted, and it was argued that this would be at odds with the requirement to respect the rights of parents to ensure that their child’s education aligns with their own beliefs.

447. A judgement of the European Court of Human Rights^[57] was cited in support of a view that, to be lawful, the stated intention to ‘educate children and young people…’ must be compatible with the A2P1 right of parents to ensure that their children’s education and teaching is in conformity with their own religious and philosophical convictions.

Other ECHR articles referenced

448. Very small numbers of respondents cited potential violations of a number of other ECHR articles, without significant explanation of why such a violation might come about. These included Articles 5, 7, 13 and 17.

Interaction with existing human rights

449. While the majority of those commenting at Question 26 were concerned that the steps taken by the Scottish Government have not done enough to ensure that the proposals are compatible with the ECHR, some argued that they go too far and risk reducing the effectiveness of the legislation in protecting LGBTQI+ people. For example, some respondents disagreed that ‘general statements of opinion’ should not be considered as conversion practices. Points were also raised with respect to:

• An apparent contradiction between exclusion of ‘voluntary practices’ and earlier statements that it is not possible to consent to conversion practices.
• The extent to which ‘voluntary practices’ may be influenced by a history of discrimination, or by fear of rejection in a community where only certain views are acceptable.
• Whether there should ever be a defence of reasonableness.