Expert Advisory Group on Ending Conversion Practices: report and recommendations

Executive Summary

The Expert Advisory Group on Ending Conversion Practices (the 'Group') is made up of individuals who are experts in their fields. These people are from LGBT+ organisations, faith and belief organisations and communities, are mental health professionals, legal professionals, human rights advocates, academics and people with personal lived experience of conversion practices. The Group held eight meetings from March through to August 2022 and have developed this report to document their findings.

The report includes 32 guiding principles which members hope will be adopted and which offer a clear framework to guide the Scottish Government in its approach to developing measures under criminal law, and measures outside criminal law, to end conversion practices. These are supported by specific recommendations, included in the Annex, which set out measures showing how the Group sees the guiding principles taking shape within legislation and other measures.

The Group believes that conversion practices infringe upon the human rights of individuals, in particular the victims' freedom from discrimination and freedom from non-consensual medical treatment. Conversion practices can also violate the prohibition of torture, cruel, inhuman and degrading treatment and are capable of violating children's rights to be free from all forms of physical or mental violence, injury, or abuse.

The Group advises that ending conversion practices will not lead to the unlawful restriction of existing freedoms – including freedoms of speech, religion, and belief. The Group's position is that where expression creates the potential of significant harm to others, a prohibition of a practice is justified and necessary as a proportionate way of protecting the interests of the victims, and does not unlawfully interfere with the human rights of the providers of conversion practices.

The Group recommends that the definition of conversion practices must apply equally to sexual orientation, expression of sexual orientation, gender identity and gender expression, must be wide enough to encompass any treatment, practice or effort that aims to change, suppress, and/or eliminate a person's sexual orientation, expression of sexual orientation, gender identity, and/or gender expression.

The inability to consent to conversion practices should form part of the definition of conversion practices by not requiring an absence of consent or providing an exception for consent, including people who experience coercion, which can lead to a perception of consent to conversion practices. The Group does not consider exceptions are necessary for its recommended definitions of conversion practices.

The Group recommends that the existence of specific intent to cause harm, malice or ill-will is not required for an act to be considered a conversion practice and should therefore not be included as part of any criminal offence. Nor should there be any requirement that the provider sought to cause harm to the victim or potential victim.

The Group recognises the need to facilitate, enable or encourage efforts which take place in a supportive and affirmative environment, and are led by the recipient's autonomous decisions. These actions are not to be considered conversion practices as they do not seek to change, suppress or inhibit that person's sexual orientation, gender identity, and/or gender expression.

The Group recommends that ending conversion practices requires measures of criminal law, civil law, and administrative law to be drafted into legislation. Any act, treatment, or effort, whether immediate or cumulative, with a specific intent to change, suppress or inhibit someone's sexual orientation, expression of sexual orientation, gender identity, and/or gender expression should be criminalised in Scotland. If the practice is not directed and not intended to change, suppress or inhibit sexual orientation or gender identity, it should not be criminal.

The criminalisation of conversion practices should not only include the carrying out of the practices themselves but should also include offering, promoting, advertising or referring a person for the purpose of conversion practices.

Criminal responsibility should also extend to persons who do not carry out the conversion practices themselves but direct another person or subordinate to do so or allow a subordinate to do so in a situation where they knew or should have known that conversion practices were taking place.

Removing someone from Scotland to be subject to conversion practices anywhere else in the world should be considered a criminal offence. The offence should also include those who aid, abet or otherwise facilitate someone being taken outside Scotland for conversion practices where this is done with knowledge of the intended principal offence.

For sentencing of the criminalised acts, the Group recommends three key aggravating factors be considered specifically. The causation of serious bodily or mental harm, the performance of conversion practices on a child, and the performance of conversion practices on a person in a situation of vulnerability – for instance people with mental health conditions, persons without capacity and persons who are in a situation of dependence.

When children and persons in a situation of vulnerability are subjected to conversion practices, it is sufficient that the perpetrator was aware of the age or the situation of vulnerability. The Group believes that where the perpetrator has parental or guardianship rights in relation to the victim, the legal consequences ought to include the modification or withdrawal of such rights.

The Group recommends that authorities make sure that no public facilities are provided for any of the criminalised acts and that organisations engaging in any of the criminalised acts do not receive preferential tax status or benefit from public subsidies.

The Group recommends that, where the perpetrator of any of the criminalised acts is a healthcare professional, the legal consequences may include the withdrawal of the perpetrator's professional licence.

The Group recommends that where the perpetrator of any of the criminalised acts is a faith leader or a member of a religious institution, the legal consequences may include the withdrawal of the perpetrator's professional licence as a faith leader or removal of their ability to work within Scotland in the said institution, or withdrawal of the institution's charity status where the institution is not regulated.

The Group recommends that the Scottish Government establish a Commission or task a relevant body or bodies to be responsible for various civil measures and other functions relating to conversion practices. The Commission ought to have a role as the interface between the criminal justice system and survivors, potential victims or those reporting conversion practices. The recommended measures outside criminal law should be also written into legislation to ensure that there is sufficient resource and planning.

Given the sensitive context that conversion practices often take place in, all measures should be informed by the principles of confidentiality and human rights, which considers the rights of those suspected of carrying out conversion practices and the rights and wishes of the victim.

The Commission would be responsible for general education of the public and outreach programmes which would work with the LGBT+ sector to ensure that people are aware of conversion practices as part of wider work already carried out on LGBT+ visibility.

The Group recommends the establishment of an International Academic Project to carry out an evaluation of conversion practices across a range of jurisdictions.

Survivor support measures which are holistic, person centred and trauma informed are essential. Therapeutic professionals must be specialists and informed by those with lived experience. Support must be free and available across Scotland to everyone who needs it. Mental health services, religious bodies, services for children and young people and other professional bodies must be supported to provide appropriate services, with emergency support services for survivors available where necessary.

Conversion practices result in psychological harm to the victim. Medical institutions must be trauma informed and create safe spaces for survivors. They must encourage trust and provide choice for survivors by providing clear and consistent information as well as options for treatment and care. They must work with and empower survivors, whilst taking into account and respecting all aspects of a person's life experience and identity.

The Group recommends that any person, including victims and potential victims, are able to report conversion practices and that an investigation can then follow, removing the onus from survivors on to a public body. A wide range of options to enforce change should be available and could include targeted education, written notice from the perpetrator agreeing to cease the practice, a compulsory notice from the authority or a voluntary written agreement agreed by all parties involved.

The Group recommends that instances of conversion practices should be recorded to identify patterns and organisations involved in these practices, and annual reporting of instances should be considered.

A free and accessible telephone helpline should be available to support and provide advice for people undergoing conversion practices or facing the threat of conversion practices.

The Group believes it necessary to promote awareness raising of conversion practices and the legislation banning the practices as well as services available to survivors.

Through research conducted by the Group, it is clear there are feelings of apprehension around reporting of conversion practices in ethnic minority communities who have experienced historical prejudice and discrimination within the criminal justice system.

The majority of conversion practices happen within domestic settings in these communities so there needs to be visible support that is intersectional and culturally competent, which understands the structures and governance in diverse faith institutions, and the significance and potential danger of the abuse of honour and shame within communities.

It is vital to understand the relationship between an overarching culture and environment of anti-LGBT+ sentiment within some communities. It is also important to understand individuals' desires to be accepted and to fit in to societal norms where family, faith, and community are integral parts of life and self-identity. These may be key factors as to why people voluntarily suppress their own identity or 'consent' to conversion practices.