Ending conversion practices in Scotland: consultation

Part 5: Defining Conversion Practices for this Legislation

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

Coercive behaviour refers to an act or a pattern of acts of assault, threats, humiliation and intimidation, or other abuse that is used to harm, punish, or frighten a victim.

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

43. Our proposals are informed by the definitions used by different bodies, and in other countries as set out in Part 3. Taking these into account, we consider that core to the definition of conversion practice is a purpose or intention to change or suppress another individual’s sexual orientation or gender identity. In order for any act or course of behaviour to fall within the scope of this legislation, it will have to meet this intent requirement.

An equal and universal approach

44. We believe that any effort to change a person’s sexual orientation or gender identity is harmful, regardless of how an individual identifies. Although the proposals are mainly intended to address harmful practices that affect LGBTQI+ people, they will apply to everyone equally. This includes change efforts directed at those who are heterosexual or cisgender. The legislation will be clear that the provision of medical care by a healthcare professional relating to a person’s gender identity is not a conversion practice.

What does this mean in practice?

45. Conversion practices must have an intention that another person’s sexual orientation or gender identity will be changed or suppressed. This means that the legislation will not apply to a situation where a person is providing advice, guidance or support for an individual to explore their thoughts, feelings and options or for these to be questioned. It does not include non-directive and ethical guidance and support to a person who might be questioning their sexual orientation or gender identity or experiencing conflict or distress, whether that is provided by a healthcare practitioner, a family member, or a religious leader.

46. Similarly, the legislation does not apply to non-directive or non-coercive discussions, questioning, guidance or general parental direction, guidance, controls and restrictions. The distinction here is that these allow the individual to come to their own decision, whatever that may be, and does not direct them to a particular pre-determined sexual orientation or gender identity that is considered ‘preferable’. Such instances will not be considered a conversion practice within the legislation.

47. This core intention, to change or suppress another person’s sexual orientation or gender identity, also distinguishes conversion practices from general statements of belief or opinion. For example, other acts, including general statements, which may be upsetting, offensive, or harmful, would not be considered to be a conversion practice if there is no intention to change or suppress a specific person’s sexual orientation or gender identity.

48. The intention to change or suppress the sexual orientation or gender identity of another person will not require proof that the perpetrator had specific knowledge of that person’s sexual orientation or gender identity. The intention can be based on what the victim considers their sexual orientation or gender identity to be, or may be (if they are questioning or unsure). Or it can be based on the presumption of the perpetrator as to the sexual orientation or gender identity of the victim. For example, a person may undertake a conversion practice on someone else to change them to be heterosexual, based on a presumption that they are homosexual, even though the victim in fact identifies as bisexual. Or a conversion practice may be directed against a person who states that they are unsure of, or exploring, their gender identity, to change them to have a fixed identity.

1. Do you support our approach to defining conversion practices which focuses on behaviour motivated by the intention to change or suppress a person’s sexual orientation or gender identity?

Yes

No

Don’t know

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

Suppression

49. Most international legislation, as well as the MoU and the reports of the EAG and the EHRCJ Committee, define conversion practices to include both the intention to change a person’s sexual orientation or gender identity, and the intention to suppress it. While the underlying act may be the same, any difference lies in the motivation behind the act.

In this context we define suppression, as acts that seek to repress, and/or prevent the development or manifestation of another person’s sexual orientation or gender identity. Repress means to prevent or subdue something (often through force). Manifest means to show, through acts or appearance.

50. Some examples of the types of acts that could be motivated by an intention to suppress another person’s sexual orientation or gender identity are:

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

51. Most studies and surveys dedicated to understanding the harm caused by conversion practices have considered change and suppression together. It is therefore difficult to understand the harmful effects of suppression or change on an individual level.

52. The EAG report notes that “the practice of suppression is equally as harmful. In addition, the intention behind the practice might change over time. For example, someone may begin with trying to convert and/or change another individual and then move to suppression.” Evidence provided to the EAG and EHRCJ Committee highlighted that actions which cause an individual to suppress themselves cause long-term harm. As noted in the Cooper Report, recommendations on legislating effectively for a ban on conversion practices, from the ban ‘conversion therapy’ legal forum, “it makes little difference to the harmful effect on LGBTI+ individuals whether the practices are carried out with the goal of “suppressing” their sexuality or to “change” their orientation.”

53. The EAG’s report on ‘LGBTI+ POC & Minority Ethnic Faith Experiences of Conversion Practices’ noted that conversion practices in many racialised minorities often take the form of suppression. It explores some of the harms that this can cause, noting internalised shame, fear, rejection, or honour-based violence. Therefore, legislation which does not account for suppression may fail to address conversion practices that are more prevalent in racialised minorities.

Should we include suppression in legislation?

54. Including suppression means that there would be a wider net of protection for LGBTQI+ people. Legislation would address harmful conduct that was motivated by both an intention to change, or to suppress an individual’s sexual orientation or gender identity. For example, talking therapy designed to suppress an individual’s sexual orientation which acknowledges that changing sexual orientation is not possible would be included, where other legal tests were met.

55. Some organisations have expressed concerns that removing suppression from legislation would simply allow those carrying out conversion practices to shift their focus and messaging from trying to ‘change’ a person’s sexual orientation or gender identity, to trying to suppress it. In either a civil or criminal process, they could argue that they know that it is not possible to change a person’s sexual orientation or gender identity, and this change was therefore not their intention. This would create a potential loophole in our legislation.

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

57. If the intention to suppress is included in the legislation, other requirements would still have to be met for the acts to be considered a criminal offence or the basis of a civil order. These tests would not to be met in circumstances where the individual has made a personal choice to live in a certain way and has not been coerced into this decision.

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

It should be covered

It should not be covered

Don’t know

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

Sexual orientation and gender identity

58. The EHRCJ Committee concluded that a ban on conversion practices should be fully comprehensive and cover sexual orientation and gender identity, including trans identities, for both adults and children in all settings without exception.

59. In practice, we envisage that acts falling within the legislation will most often take the form of changing or suppressing a non-heterosexual person, transgender person, or non-binary person. However, we believe it is important that legislation relates to any conversion practice that seeks to change someone from one sexual orientation or gender identity to another or suppress that sexual orientation or gender identity. We also intend to include conversion practices undertaken against asexual people.

60. For example, a bisexual or asexual person may experience a type of conversion practice based on cultural perceptions, often referred to as bisexual or asexual erasure, that these orientations do not really exist and that the individual is ‘confused’ or ashamed of being gay.

61. In our proposals we have used the ordinary meaning for both the term sexual orientation and gender identity, as found in the Oxford English Dictionary. This is intended to help future-proof the legislation. These are:

Gender Identity: an individual’s personal sense of being or belonging to a particular gender or genders, or of not having a gender.

Sexual Orientation: a person’s sexual identity in relation to the gender to whom [they] are usually attracted; (broadly) the fact of being heterosexual, bisexual, or homosexual.

62. We propose to explicitly provide that sexual orientation includes the situation where the victim has no sexual orientation towards other persons.