Measures outside Criminal Law
Guiding Principles Regarding Civil and Other Measures outside Criminal Law
The concept of creating a Commission to deal with conversion practices is inspired by the Change or Suppression (Conversion) Practices Prohibition Act 2021 of the State of Victoria (Australia). This Act gives the Victorian Equal Opportunity and Human Rights Commission certain specific functions and powers with the aim of ending conversion practices, for example, investigative powers. There are some distinct advantages to giving targeted powers to a legal body: it provides sensitive and dedicated support to victims and potential victims, but also allows the Commission to have options that the criminal justice system alone could not provide. We are aware that, in the Scottish context, there are already bodies that may be well suited to carry out at least some of the tasks that we have recommended be vested in a Commission. When referring to 'the Commission' we therefore mean either a single commission invested with all of these functions and powers, or another body which is given a specific responsibility, for example National Human Rights Institutions, Regulators, Inspectors and Ombudsmen, Non-departmental Public Bodies, Scottish Government and executive bodies, grassroots and LGBT+ organisations.
We believe the Scottish Government should carefully consider whether it would be better to allocate these measures to a range of bodies or to keep them within one institution. Considerations include resources, accessibility of the relevant institution to victims, the need to avoid unnecessary duplication of work and good communication between bodies dealing with various measures, for example those dealing with research measures and those dealing with education.
We are aware that there are limitations of powers across National Human Rights Institutions for varying reasons. If the responsibilities proposed below were vested in the Scottish Human Rights Commission, it would require significant new powers. There are also limitations on the Scottish Government's ability to bestow new powers on National Human Rights Institutions. In compliance with the United Nations Paris Principles, new powers should be agreed with the relevant National Human Rights Institution to ensure its independence.
In addition to these measures, it is important that civil liability for natural and legal persons who are engaging in conversion practices is established, as well as the right of victims of conversion practices to initiate legal proceedings against the providers of conversion practices in order to obtain redress and compensation.
22. Civil measures must be legislated for as an interface between victim and measures under criminal law
We are resolute in the belief that, in order to see an end to conversion practices, civil measures must be written into legislation to ensure that there is sufficient resource and planning to enable success. At their core, these civil measures will act as the interface between those affected by conversion practices and the criminal justice system. To be successful in ending conversion practices, there must be collaboration between areas of criminal law and civil measures. This interface must be culturally competent and allow complete autonomy of the survivor and/ or potential victim as well as provide for safe mechanisms of engagement prior to measures under criminal law and throughout investigation. These measures should also consider the diverse experiences of potential victims and survivors of conversion practices, including the experiences of LGBT+ people of colour and minority ethnic faith communities. They must be trauma informed and recognise the significant mental and physical harm caused by conversion practices.
23. Civil measures must target conversion ideology and anti-LGBT+ sentiment
LGBT+ conversion ideology, both didactic and non-didactic, is insidious and harmful and takes root in societies. We feel that legislation will only succeed in ending conversion practices if it includes civil measures that can get to the root of this ideology. Open conversation about conversion ideology, especially as part of anti-conversion practices advocacy, is important.
The Victorian Law focusses on the intention of the practice rather than the form or manner in which the practice is performed. We recommend a similar approach in Scotland.
24. Key objectives of the civil measures
It is vital that civil measures include actions in a range of areas, each of which tackles conversion practices in a different way.
The civil measures must be designed and implemented in a way that takes into account the sensitive context in which conversion practices often take place. They should therefore be informed by the following principles:
1. confidentiality: in order to safeguard the interests of the victims
2. human rights: both of victims and of those suspected of carrying out conversion practices, for example, the right to a fair trial under Article 6 in the European Convention of Human Rights
3. the wishes of victims, potential victims and victim communities: in certain cases, such as systemic conversion practices, affecting a multitude of victims, the interests of victims may have to be balanced against the public interest in an investigation
The civil measures should address the following:
This covers general education, including outreach programmes, and targeted education for providers of conversion practices (see guiding principle 24.5).
The Commission would provide general education to the public, including the concept of conversion practices, the fact that such practices have no scientific basis and the dangers and harm that result from their performance. They should also inform about matters of sexual orientation, gender identity and gender expression in general.
The Commission would also be responsible for outreach programmes, which would help to create an environment which is no longer informed by prejudiced views. Educative outreach 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. While the Scottish Government has already committed to LGBT+ inclusive education there need to be additional measures ensuring awareness of conversion practices.
24.2 Research and academic project
We recommend the establishment of an international academic project, which would carry out an evaluation of conversion practices across a range of jurisdictions, amongst other research. This would support the Commission's work by providing insights from the way other jurisdictions have dealt with conversion practices and would help to inform other work to end conversion practices. This is an area which is still underexplored due to the relatively recent laws on conversion practices. An academic project can not only identify 'best practices', but also engage in research that a government body may find more difficult to deal with – for instance, by providing a critical analysis of the strengths and weaknesses of approaches to conversion practices in other states.
24.3 Survivor support measures
The Group stresses the importance of survivor support measures that are holistic, targeted and competent. Our Group had several members with lived experience of conversion practices who provided much needed insight into the real-life experience of these harmful practices, and the support that survivors and/or potential victims/people who may be vulnerable to conversion practices and its ideology may need. These members recommended focusing on person-centred and trauma-informed care – ensuring that the impact of conversion practices is considered for diverse people who have experienced conversion practices across diverse spaces, settings and cultures – and that support measures reflect this. We believe that survivors should help to shape the development of these support measures, given their experiences. It is vital to recognise that conversion practices have a significant harmful impact, and this should be considered when developing civil measures. Key messages from survivors include that:
- There is a life-long, and often, debilitating impact of conversion practices including shame, trauma, re-traumatisation and lack of support.
- There is a negative impact of conversion practices on personal relationships, career choices and in every aspect of life. Survivors have difficulty building a life after conversion practices.
- There is a long, often life-long, process of healing.
- There is a lack of informed and competent help as therapists often do not have a full understanding of conversion practices and their effect.
Survivor support measures must:
- Be holistic, trauma informed and person centred. Individual experiences of conversion practices are diverse and support measures must acknowledge this.
- Ensure that therapeutic professionals are informed and competent and free mental health/therapeutic support is available – some survivors have had to make difficult life-decisions often setting them back or on to a different life course with financial implications and placing a strain on working and social life.
- Train professionals – resource and invest in survivor-led training which will ensure that professionals have an adequate understanding of lived experiences of conversion practice survivors. Existing evidence suggests that any support for victims and survivors of conversion practices will need to be specialist. Further training for professionals in this field will be beneficial if it is trauma informed, resourced and led by those with lived experience. The survivor sub-group echoed this.
- Support service provision - mental health services, religious bodies, services for children and young people (including education), and other professional bodies should be supported to provide appropriate services to people seeking support in relation to conversion practices.
- Provide education on the harm caused by conversion practices and on the new legislation– for faith leaders, congregation, communities, youth leaders, teachers and healthcare professionals.
- Provide emergency support – for those escaping from conversion practices. This could be linked to existing measures in a local authority for situations where emergency housing and finance may be required. Existing services often do not make room for those who are perceived to "actively" "make" themselves homeless. For the survivors on the Group, it is important to recognise that, as per their personal experiences, parents/guardians may not concede that they have "made their child homeless". However, it is often the case that leaving the family home is a felt obligation by the victim of conversion practices. For many this is not felt as a choice but a necessity.
- Highlight safeguarding of children and adults – the Group's survivor sub-group recommended that issues relating to conversion practices be raised as a potential safeguarding issue for teachers to be aware of. This would also be beneficial for a broad range of institutions.
- Provide mediation and/or reconciliation – mediation between willing survivors and perpetrators to engage in conflict resolution, rehabilitation and preventative measures may be beneficial. This should include an impartial mediator, for the benefit of the survivor.
- Provide capacity building and support for victims and survivors of conversion practices.
- Provide support and resourcing – for grassroots LGBT+ organisations to provide holistic support for victims, rather than shifting the burden onto mental health services or the criminal justice system.
- Provide post-legislative culturally competent and intersectional targeted support and resourcing for organisations that support people of colour and black minority ethnic LGBT+ people who have experienced or are at risk of experiencing conversion practices
- Awareness campaigns – both national and local targeted campaigns across media, recognising that these campaigns will look different in urban and rural areas.
24.4 Support measures within medical institutions
We believe that there should be awareness-raising of conversion practices for medical practitioners and staff in medical institutions, which is resourced, to ensure that there is competent and appropriate holistic support for survivors of conversion practices. This needs to be informed by those with lived experience, who can also look at this work through an equality lens.
Conversion practices result in lasting psychological harm, which includes emotional and/or spiritual crisis, and can result in depression, low self-esteem, anxiety, suicidal ideation, post-traumatic effects including post-traumatic stress disorder, sexual dysfunction, guilt, shame, self-loathing and crisis of identity. There may, in many cases, be a need for therapeutic work to focus on internalised homo/lesbo/bi/transphobia, guilt and shame. Practitioners must be able to deal with this appropriately and competently and be given support to be able to do so. There is a risk of re-traumatisation by an unreflective and/or inexperienced practitioner.
Though some of this healing work for those who experienced conversion practices in the context of religion may also need to take place within religious communities/spaces, and much of the work may be done within the LGBT+ community. It is important that the development of support within medical institutions is in collaboration with survivors.
It is important that this support is intersectional and in tandem with not only sexual orientation, gender identity, expression of sexual orientation and/or gender expression, but also with a survivor's religious/spiritual beliefs. It is imperative that psychological support understands and respects all aspects of a person's life experience and identity. This need for a holistic approach respects all parts of a person's identity.
The approach in medical institutions must be trauma informed and encourage:
- Safety for survivors – create areas that promote a sense of safety.
- Trust from survivors – provide clear and consistent information.
- Choice for survivors – provide options for treatment and care.
- Collaboration with survivors – maximise collaboration between health care staff, patients and their families.
- Empowerment of survivors – build upon a patient's strengths and experiences.
It is likely that there will be a need for different services and levels of support for survivors from: the third sector/community (for example, a telephone helpline, support groups, 121 peer support, LGBT+ inclusive religious communities, advice and counselling); primary care level psychological treatments (for example, GP Practice); secondary care level psychological treatments (for example, community mental health teams) and highly specialist services which can assist with complex trauma caused by conversion practices. There must be equal access to this support across Scotland regardless of age, race, disability etc. We also need to consider those that are seldom heard and/or those who may not be aware of this provision or care.
We also acknowledge that practitioners will also need access to specialist supervision and advice where required and this too must be resourced.
It is recommended that the Commission (or the relevant authorised bodies) be tasked with investigating reports of conversion practices or to refer matters to the police, and be given the power to compel provision of documents or information. In Victoria, Australia, this responsibility is given to the overarching Commission.
Investigation is by far the most complex of the suggested measures. The Group believes that there must be a way in which victims or the public are able to report conversion practices and for it to be investigated, removing the onus (and potential re-traumatisation or risk) from survivors on to a public body. Anyone would be able to make a report to the Commission, which could then launch an investigation. The Commission may also start such an investigation itself in cases that are particularly serious in nature, for instance, in situations that are systemic or persisting. This takes into account that some victims may in fact not wish for an investigation to be launched (see guiding principle 15 in survivor autonomy).
Once an investigation has started, the Commission (or bodies) would have a wider range of options than would be available under the criminal justice system. In particular, they would be able to offer targeted education to perpetrators of conversion practices; accept a written undertaking from them (for instance, a perpetrator may promise not to continue with the practices) or issue a compulsory notice (e.g. telling a perpetrator to cease these activities). The Commission would also be able to 'facilitate an outcome' with the affected parties – a procedure which must be voluntary on both parts, but which can result in a written agreement. It is suggested that this procedure is not suitable in all cases; it would arguably not be suitable where, for example, a large organisation offers conversion practices on a commercial basis. The Commission would also be able to refer the situation to the police or Crown Office and Procurator Fiscal Service for further investigation.
The Commission would also be given the ability to monitor the efficiency of the law banning conversion practices. This function (which is not expressly named in the Victorian Act as a task of the Commission) allows the Commission to explore how the Scottish legislation on banning conversion practices has worked in practice and to collect information on its efficiency.
24.7 Reporting and Documentation
The Commission would be required to submit compulsory annual reports and optional further reports for the purposes of accountability where helpful for the aim of ending conversion practices in Scotland, for example where the documentation of ongoing, but also historic instances of conversion practices in Scotland, are concerned.
The Group recommends that the Scottish Government consider the value of recording conversion practices. Registering ongoing instances of conversion practices is not only important for purposes of historical research, it also allows for identifying patterns and organisations involved in these practices as well as establishing a record of conversion practices in the past. In departure from the Victorian Act, this principle also envisages the documentation of historical instances of conversion practices, to establish a record of the performance of conversion practices in the past. The reporting function of the Commission will also ensure accountability of relevant institutions and monitor the effectiveness of the conversion practices legislation.
24.8 'Amicus Curiae'
The Commission would be able to give expert testimony before courts or tribunals in relevant cases. The model for this is s. 55 of the Victorian Act. This guiding principle seeks to help courts and tribunals in their proceedings on conversion practices by allowing them to benefit from the expertise of the Commission which may, for instance, have been active on matters of conversion practices in comparable cases.
25. Telephone helpline
We recommend that there is a free and accessible telephone helpline for support and advice on conversion practices, which could be part of an existing LGBT+ helpline. A helpline would provide valuable support for people undergoing conversion practices or facing the threat of conversion practices. The model for this is the German law on conversion practices, which envisages such a telephone helpline that is also made available in various languages.
We appreciate that some helplines (for example, the LGBT Helpline at LGBT Health and Wellbeing and Galop's newly established UK wide conversion practices helpline) already exist. It may be possible to build on these helplines. For example, it would be helpful for victims if helplines also provided legal support - this may require additional training.
The telephone helpline may be the first line of contact for a victim or person looking to discuss conversion practices or seeking support. It is vital that staff have expertise and knowledge of conversion practices so that they can signpost the caller to the relevant support. This may be guiding a victim to appropriate emergency support, for example, if a survivor is forced or compelled to leave a domestic situation, they may need to need to access emergency services for temporary housing. Support may also involve advocacy.
26. Publicity and visibility
The usefulness of civil measures and of a helpline is impaired if victims and potential victims do not know of their existence. The Group therefore recommends raising awareness of the legislation banning conversion practices and the help available through the Commission and the helpline. This should include training young people to act as peer educators, who can provide information on conversion practices and work as contact points for victims and potential victims of their own age group. This takes into account the fact that young people tend to be the principal victims of conversion practices and that they will often find it easier to talk to their peers rather than for example, to teachers about these matters. The relevant information about the civil measures and the Commission should also be made available via social media channels.
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