Guiding Principles on Definitions
In the Terms of Reference, we were asked to consider a definition of conversion practices. In doing so, we discussed a range of activities and practices that fall within the concept of conversion practices. In exploring the reality of conversion practices, it is clear that "conversion practices" is not a term with a universal objective definition and there is currently no one clear definition that accounts for all practices.
Other bodies, such as the United Nations Expert on Protection against Violence and Discrimination based on Sexual Orientation and Gender Identity; jurisdictions (including the Australian state of Victoria and the Republic of Ireland) and documents (the Memorandum of Understanding on Conversion Therapy in the United Kingdom), have provided definitions of conversion practices or aspects thereof. We have considered these different approaches when formulating our recommendations on the definition.
Below we set out the key elements that we consider should fall within the definition of conversion practices in Scotland and be addressed within the Scottish Government's commitment to ending conversion practices. We have been guided by the aim that the definition of conversion practices should ensure a wide coverage of all practices, known and unknown forms of conversion practices, future-proofing this legislation and ensuring that all acts are covered in the law.
6. A clear and inclusive definition
The definition of "conversion practices" should be clear and inclusive.
A clear and inclusive definition of what constitutes conversion practices will allow the necessary and appropriate support to be provided to those who need it, and for there to be no doubt for those undertaking conversion practices that their actions are prohibited. It also ensures that legislative and other actions to end conversion practices encompass all of the harmful conduct.
The definition should be consistent across sexual orientation and gender identity and must be wide enough to encompass all acts and practices that seek to change, suppress, or inhibit someone's sexual orientation, expression of sexual orientation, gender identity or gender expression. We believe that it is important to explicitly include suppression within the definition as perpetrators of conversion practices may claim that they know that they cannot change someone's sexual orientation, expression of sexual orientation or gender identity and/or gender expression, but they believe they may suppress them. 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.
A comprehensive definition must include practices which target the expression of a person's sexual orientation or gender identity as well as or in addition to the identity or orientation itself.
The definition must also explicitly state that consent cannot be given to conversion practices, further details on the inability to consent to conversion practices are detailed under Guiding Principle 7.
Recommended Definition of “Conversion Practices”
The Group recommends that the Scottish Government adopt the following definition of conversion practices:
- 'Conversion practices': refers to any treatment, practice or effort that aims to change, suppress and/or eliminate a person's sexual orientation, gender identity and/or gender expression. A person cannot consent to conversion practices being carried out against them.
- 'Gender expression' and ‘expression of sexual orientation’: refers to each person's manifestations of their gender identity and/or sexual orientation, and/or the one that is perceived by others
- 'Gender identity': refers to each person's internal and individual experience of gender, which may or may not correspond with their sex assigned at birth, including their personal sense of the body (which may involve, if freely chosen, modification of bodily appearance and/or functions by medical, surgical or other means) and other expressions of gender, including name, dress, speech and mannerisms
- 'Sexual orientation': refers to a person's emotional, affectional and sexual attraction to persons of a different gender, the same gender or more than one gender and includes the lack of such attraction or relations
Further explanation of the terms used in our definition is provided below.
- ‘To change’: When the Group suggests the term ‘change’ it refers to practices which seek to alter or modify a person’s sexual orientation or gender identity, expression of sexual orientation and/or gender expression.
- ‘To suppress’: When the Group suggests the term ‘suppress’ it refers to practices which seek to put an end to, restrain and/or prevent the development or the manifestation of another person's sexual orientation, gender identity, expression of sexual orientation and/or gender expression.
- ‘To inhibit’: When the Group suggests the term ‘inhibit’ it refers to practices which seek to hinder, restrain, prevent or prohibit, a person’s sexual orientation, gender identity, expression of sexual orientation and/or gender expression.
7. Consent and coercion
We are clear that, as they constitute a human rights violation, it is not possible for individuals to genuinely consent to conversion practices being carried out against them. In line with the report of the Equalities, Human Rights and Civil Justice Committee, we believe that allowing for consent to conversion practices is a dangerous approach which will leave many people vulnerable to abuse. As a result, the legislation should be clear that it includes conversion practices with or without consent.
We believe that the most effective way to express this is within the definition of conversion practices itself, by not requiring an absence of consent or providing an exception for consent. However, the inability to consent should also be reflected in the proposed criminal offence.
We are aware that people who are subjected to conversion practices can experience coercion which can lead to a perception of consent to conversion practices. In a similar vein to coercive control within domestic abuse situations, a victim may be coerced into agreeing to be subjected to such practices. This further supports the importance of not allowing for consent as well as the importance of the Government taking into account the risk of coercion faced by potential victims. The question of coercion is addressed in more detail below in the context of the criminal offence.
Our proposed definition requires that conversion practices be carried out with the intent of changing, suppressing and/or eliminating a person's sexual orientation, gender identity and/or gender expression. The definition of conversion practices should not limit the practice to those who genuinely believe that the relevant change of sexual orientation, gender identity and/or gender expression is possible and desirable, nor should it require an intent to cause harm.
The United Nations Independent Expert on Protection against Violence and Discrimination based on Sexual Orientation and Gender Identity defines conversion practices as:
"an umbrella term to describe interventions and acts of a wide-ranging nature, all of which have in common the belief that a person's sexual orientation or gender identity can and should be changed. Such practices aim (or claim to aim) at changing people from gay, lesbian, or bisexual to heterosexual and from trans or gender diverse to cisgender".
In practice, however, those carrying out conversion practices may do so for a number of different reasons and with a range of motivations, for example, commercial providers who seek financial gain. Conversion practices can therefore be carried out not only by those who genuinely believe that the relevant change is possible and desirable, but also by those who are motivated by different reasons.
As a result, we do not recommend adopting the definition used by the United Nations Independent Expert because it requires a belief that a person's sexual orientation or gender identity can and should be changed.
We also believe that the existence of a 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 the definition. Nor should there be any requirement that the provider sought to cause harm to the victim or potential victim.
The Group has decided not to include exceptions in the definition of conversion practices. Exceptions carry the danger of limiting the protective scope of the definition and of facilitating the addition of grounds that permit conversion practices. The Group therefore recommends that exceptions do not form part of the law against conversion practices and that this is possible through using an appropriate definition.
In this regard, the Group notes that it is not necessary to provide an exception for affirmative care, as defined below (i.e., approaches to healthcare delivery in which the providers recognise, validate and/or support a person's gender identity, sexual orientation and/or gender expression).
These approaches would not fall within the definition of conversion practices because they do not seek to change, suppress and/or eliminate a person's sexual orientation, expression of sexual orientation, gender identity and/or gender expression.
Background Note: Considerations regarding healthcare provision and other care and support
In considering and developing the definition of conversion practices, the Group discussed the question of ‘affirmative care’ and how this would relate to the definition.
“Affirmative care” within health care refers to an approach that validates and supports the identity and lived experience expressed and stated by an individual. It is non-directive – a healthcare professional will take an unobtrusive role so that free expression is encouraged.
The Group recognises the value and important role of affirmative support, healthcare provision and familial or pastoral care. Facilitating, enabling or encouraging efforts which take place in a supportive and affirmative environment, and are led by the other person’s autonomous decisions, are not conversion practices in accordance with our definition as they do not seek to change, suppress or inhibit that person’s sexual orientation or gender identity.
This would include, for example, providing a safe space for someone to explore their sexual orientation, expression of sexual orientation, gender identity and/or gender expression in a safe and non-judgmental way; providing support and understanding in helping with self-acceptance; facilitating coping skills and social support or assisting someone who was undergoing or considering undergoing gender reassignment.
When considering whether something falls within conversion practices, it is necessary to look beyond the label or terminology used and consider the specific context. For example, practices named as therapy or other forms of care, including “pastoral care” that do seek to change, suppress or inhibit sexual orientation, expression of sexual orientation, gender identity and/or gender expression, will fall within the definition of conversion practices.
The Group, for reasons outlined above with regards to exceptions within definition, does not believe there is a need for affirmative healthcare provision exceptions to be provided within legislation. If the definition of conversion practices is correct within the legislation, there will be no need to defend or exempt healthcare provision that does not seek to change, suppress, or inhibit sexual orientation, expression of sexual orientation, gender identity and/or gender expression as it will not fall within the definition of conversion practices.
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