Conversion Practices in the Context of Human Rights
Guiding Principles on Human Rights
1. The Scottish Government's approach to conversion practices must consider the human rights of LGBT+ people
The Group considers that the underlying purpose of ending conversion practices is to ensure that everyone can participate in a society in which they can freely live and express their sexual orientation and gender identity. For LGBT+ people, the full realisation of their human rights cannot be achieved while practices intended to limit, suppress, or eradicate their sexual orientation, gender identity, expression of sexual orientation and/or expression of gender identity are legal.
We agree with the UN Independent Expert on Sexual Orientation and Gender Identity that effective measures need to exist to ensure that LGBT+ people have the opportunity to find happiness through the fulfilment of aspirations connected to the orientation and identities that are inherent to them.
We also support the view of the Scottish Human Rights Commission that the very existence of conversion practices in our society promotes a culture in which LGBT+ people are seen as needing to be 'cured', thereby undermining the dignity of all LGBT+ people. As the Commission has stated: putting an end to conversion practices is therefore necessary to uphold and protect the fundamental rights of life, health, equality, and freedom from cruel, inhuman and degrading treatment of LGBT+ persons.
The Group considers that the first step to achieve this, and to comprehensively end all forms of conversion practices, is for the Scottish legislation on conversion practices to recognise the inherent right to be able to freely live and manifest one's sexual orientation, gender identity, expression of sexual orientation and gender expression.
It is also noted that the legislation on conversion practices is situated within a broader international and domestic legal framework. In developing legislation against conversion practices, the Scottish Government must be guided by the human rights treaties that have been ratified by the United Kingdom, and by which the United Kingdom is legally bound, as well as the Human Rights Act 1998 and the Scotland Act 1998. While the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights (ECHR) do not expressly refer to LGBT+ rights, such rights are recognised in the case law of the European Court of Human Rights and in the decisions of the United Nation's Human Rights Committee. The Yogyakarta Principles further set out considerations on the application of international human rights law in relation to sexual orientation and gender identity. The Group notes that the human rights treaties confer negative and positive obligations on the States Parties and that a duty to act to prevent human rights violations may therefore exist even where private parties have acted.
Legislation to end conversion practices should also be underpinned by a clear recognition of the rights of LGBT+ people in Scotland. The Scottish Government should therefore also consider how to ensure that specific rights for LGBT+ people in Scotland are strongly protected in the new Human Rights Bill for Scotland.
2. Conversion practices infringe the human rights of individuals
The Group notes that conversion practices infringe a broad range of the human rights of individuals.
We would like to draw particular attention to the violation of the right to be free from discrimination and free from non-consensual medical treatment. Conversion practices can also violate the prohibition of torture, cruel, inhuman and degrading treatment.
Freedom from discrimination and from non-consensual medical treatment are rights which are recognised in the European Convention on Human Rights and the case law of the European Court of Human Rights respectively. Freedom from torture, cruel, inhuman and degrading treatment is an absolute right under Article 3 of the European Convention on Human Rights. The Group therefore considers that legislation criminalising conversion practices must be guided by the international legal prohibition of discrimination and torture.
The Group also considers that conversion practices create a pattern of structural discrimination that can have an effect on the rights of all LGBT+ people.
3. The rights of the child must be considered
The Group is concerned that victims of conversion practices are often children and young people. The rights of children to be free from all forms of physical or mental violence, injury or abuse are guaranteed under the United Nations Convention on the Rights of the Child (UNCRC) and the Group considers that conversion practices are capable of violating these rights.
The Group considers that the implementation of the UNCRC Incorporation Bill (Scotland) will help to ensure that the full and holistic end of all forms of conversion practices goes hand in hand with the full realisation of children's rights.
4. Consideration that a ban on conversion practices does not constitute an unlawful restriction on freedom of religion or freedom of expression
The Group does not consider that a ban on conversion practices leads to an unlawful restriction of freedom of religion or freedom of expression. Numerous religious groups have declared their support for the prohibition of conversion practices.
Freedom of religion is enshrined in Article 9 of the European Convention on Human Rights and freedom of expression in Article 10. They are not absolute rights and can be restricted 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 if that is necessary in a democratic society. Where religion or expression is manifested in such a manner that they create the potential of significant harm to others, as in the case of conversion practices, a prohibition of these practices is justified and indeed necessary for the protection of the rights of the affected persons.
The Group considers that legislation criminalising conversion practices must be guided by international and domestic human rights laws in relation to freedom of religion and belief and freedom of expression.
5. The balancing of rights
In light of the grave impact that conversion practices have on the human rights of the victims, and taking into account that freedom of religion and freedom of expression are not absolute rights, the Group considers that the balancing of the interests and rights affected by a ban on conversion practices leads to the conclusion that the criminalisation of the relevant practices is necessary in a democratic society. It is 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.
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