Expert Advisory Group on Ending Conversion Practices: report and recommendations

Annex

Recommendations

We submit these specific recommendations to the Scottish Government which are based on the guiding principles in this report and our work with stakeholders.

1. Human Rights

The Group recommends that the Government be guided by the following human rights considerations:

1.1 Conversion practices infringe 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.

1.2 Where children are concerned, conversion practices are capable of violating every child's right to be free from all forms of physical or mental violence, injury, or abuse.

1.3 A ban on conversion practices does not lead to an unlawful restriction of freedom of religion. Numerous religious groups have declared their support for the prohibition of conversion practices. Freedom of religion is not an absolute right; it meets its restrictions where it unduly infringes the human rights of others.

1.4 Similar considerations apply to freedom of expression. Freedom of expression meets its limits where it unduly infringes the reputation or rights of others, and the State is entitled to adopt legislation to protect such competing rights.

2. Definitions

The Group recommends that the Scottish Government adopt these definitions:

2.1 '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.

2.2 'Gender expression' and 'expression of sexual orientation' refers to each person's manifestations of their gender identity and/or expression of sexual orientation and/or the one that is perceived by others.

2.3 '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.

2.4 '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.

3. Criminalisation

The Criminalised Acts

3.1 The Expert Advisory Group recommends that the following acts be criminalised when they are carried out with intent:

3.1.1 performing conversion practices

3.1.2 offering the performance of conversion practices

3.1.3 promoting or advertising conversion practices

3.1.4 referring a person to any other person for the purpose of performing conversion practices

3.1.5 removing a person from Scotland for the purpose of performing conversion practices

3.2 The Group also recommends that it be a crime for a superior:

3.2.1 to order the carrying out of any of the acts under 3.1 by a subordinate

3.2.2 to allow the carrying out of any of the acts under 3.1 by a subordinate, if the superior knew or should have known that such acts were being committed or were about to be committed

3.3 The Group recommends that allegations of the Commission of any of the Criminalised Acts be investigated by the Crown Office and Procurator Fiscal Service (COPFS) at the request of a victim, or, in cases of public interest, at the request of the [Commission] or by the COPFS proprio motu.

3.4 The Group recommends that there be no exceptions to the prohibition of the Criminalised Acts.

3.5 The Group recommends that consent is not to be considered a defence to any of the Criminalised Acts.

4. Sentencing and Other Legal Consequences

4.1 The Group recommends that appropriate sentences be imposed for each of the Criminalised Acts.

4.2 The Group recommends that a higher sentence be imposed:

4.2.1 where any of the Criminalised Acts leads to the causation of serious bodily or mental harm and the perpetrator

(i) intended such harm

(ii) was aware of its likely occurrence

(iii) should have been aware of its likely occurrence

4.2.2 where the victim of any of the Criminalised Acts is a child, and the perpetrator is aware of the age of the victim.

4.2.3 where the victim of any of the Criminalised Acts is a person in a situation of vulnerability and the perpetrator is aware of such vulnerability. This is understood to include persons with mental disorders as well as persons in situations of dependence.

4.3 The Group recommends that, where the perpetrator of any of the Criminalised Acts has parental or guardianship rights in relation to the victim, the legal consequences may include the modification or withdrawal of such rights.

4.4 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.

5. State Responsibility

5.1 The Group recommends that public authorities in Scotland do not provide support, be it direct or indirect, to persons and organisations engaging in any of the Criminalised Acts. The Group recommends in particular 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 enjoy preferential tax status or benefit from public subsidies.

6. The Commission

6.1 General Considerations:

The Group recommends that a Commission be established whose purpose it is to deal with various aspects relating to ending conversion practices ('The Commission') or that, in the alternative, the functions named in Recommendation 6.2 be fulfilled by existing bodies that are well suited to these tasks, such as the Scottish Human Rights Commission. The Group recommends that the advantages and disadvantages of allocating all functions to the same body be given due consideration. In the following text, the phrase 'the Commission' is understood to mean 'the Commission or the relevant body to whom the respective function is allocated'.

6.2 The Group recommends that the Commission have the following functions, as well as the powers to perform them:

6.2.1 The function to offer education ('The Educative and Training Function')

6.2.2 The function to carry out research ('The Research Function')

6.2.3 The function of rendering support to victims ('The Support Function')

6.2.4 The function of investigation ('The Investigative Function')

6.2.5 The function of monitoring the implementation of the Scottish law banning conversion practices ('The Monitoring Function')

6.2.6 The function of assisting legal proceedings as Amicus Curiae ('The Amicus Curiae Function')

6.2.7 The function of making reports on its activities ('The Report Function')

6.3 The Group recommends that the work of the Commission is to be guided in particular by the following principles:

6.3.1 The principle of confidentiality; members of the Commission are not to disclose information relating to any person, unless it is necessary to do so for the purposes of the Scottish Act Banning Conversion Practices (the 'Scottish Act') and

6.3.2 Human rights principles that apply to the fairness of hearings and investigations.

6.3.3 The Commission also has to take into account the wishes and best interests of the victims and potential victims where a matter relating to conversion practices has been referred to the Commission and the wishes and best interests of victims, potential victims, and victim communities where the Commission initiates an investigation proprio motu.

Commission Functions

6.2.1 The Educative and Training Function

The Educative Function of the Commission consists of two parts: The General Educative Function and Targeted Education.

a) With regard to the General Educative Function, the Commission has the task of designing:

i. Education programmes to inform the public about conversion practices, their dangers and their prohibition under the law

ii. Education programmes to inform the public about its own work

iii. Outreach Programmes to inform the public about matters of sexual orientation, gender identity and gender expression in general

iv. Education and engagement programmes to enter into dialogue with minority groups, faith communities and medical associations that are affected by conversion practices or the ban on these practices. Such programmes shall include the provision of training to healthcare professionals who provide counselling and / or psychological therapies to victims or potential victims of conversion practices.

b) The Commission may also offer targeted education to persons engaging in conversion practices (see Recommendation 6.2.4 (f) (iii) below).

6.2.2 The Research Function

The Commission has the Research Function of:

i. Registering ongoing instances of conversion practices

ii. Engaging in the documentation of historical instances of conversion practices

iii. Engaging in any other form of research that it considers to be appropriate in support of the aim of ending conversion practices

6.2.3 The Support Function

The Commission is to offer support to victims and potential victims of conversion practices.

a) It shall, in particular:

i. arrange for counselling, psychotherapy and psychological therapies / services at multiple tiered levels in line with individualised needs where victims and potential victims of conversion practices so request

ii. help with the arrangement of other relevant services where this is requested and necessary

iii. offer legal advice on aspects relating to conversion practices

iv. help victims of conversion practices to report the matter to the police

b) In the implementation of the Support Function, the Commission is to take into account in particular the needs and requirements of minority groups affected by conversion practices.

6.2.4 The Investigative Function

a) The Commission carries out the Investigative Function in line with the following conditions:

b)

i. Every person has the right to make a report to the Commission in relation to the alleged performance or the alleged threat of a performance of conversion practices

ii. The Commission must receive such reports

c) Where the Commission has received such a report, the Commission may:

i. Decide to refrain from taking any action, especially when there are no reasonable grounds for believing that conversion practices have been carried out or are threatened to be carried out

ii. Decide to refer the relevant matter to the police

iii. Decide to open an investigation (see d) below)

d) The Commission may, when it has received a report on the alleged performance or threat of a performance of conversion practices, decide to open an investigation into the matter. In the absence of such a report, it may also open an investigation when it has received information about actual or threatened conversion practices that appear to it to be particularly serious in nature, especially where they are systemic or persisting.

e) Where an investigation has been opened under d) above, the Commission has the power to compel a person to provide a document or other information, if the Commission reasonably believes:

i. that the person is in the possession of the relevant document or information

ii. and that the document or information is necessary for the conduct of the investigation.

f) Where an investigation has been opened under d) above, the Commission has the power to compel a person to attend before the Commission at a reasonable time and place to answer questions posed by the Commission, if the Commission reasonably believes:

i. that the person has information that is relevant to an investigation

ii. and that the information is necessary for the conduct of the investigation.

g) Where an investigation has been opened under d) above and the Commission has concluded the investigation, it may:

i. Decide to refrain from taking any further action, especially when there are no reasonable grounds for believing that conversion practices have been carried out or are threatened to be carried out

ii. Decide to refer the relevant matter to the police

iii. Offer targeted information to the alleged perpetrators of conversion practices

iv. Accept a written undertaking from a person under which that person undertakes to take certain actions or refrain from taking certain actions to comply with the Scottish Act

v. Issue a compliance notice to a person who the Commission believes to be wholly or partly responsible for a conversion practice. Such compliance notice is to set out the basis for the Commission's belief that a conversion practice has occurred, is occurring or is about to occur and the date by which the person must take or refrain from taking specified actions in relation to the conversion practice

vi. Facilitate an outcome with the parties affected by the alleged conversion practice

1. The facilitation of an outcome is a voluntary procedure and every party is entitled to withdraw from it at any time.

2. The purpose of a facilitation of an outcome is to reach a result that meets the needs of persons affected by an ongoing or threatened conversion practice.

3. Any party to a procedure under vi. may request that a written record of agreement be prepared by the parties or the Commission. The record of agreement must be signed by each party. A certified copy of the agreement is to be kept by the Commission.

4. The procedure under vi. may not take place where the alleged conversion practice or threatened conversion practice is, in the view of the Commission, indication for conversion practices that are particularly grave in nature, especially when they are systemic or persisting.

6.2.5 The Monitoring Function

The Commission has the function

i. of collecting information about the application of the Scottish Act on Conversion Practices and about instances of conversion practices

ii. of evaluating the efficiency of the Scottish Act on Conversion Practices for the purposes of ending conversion practices in Scotland. It may in this function request the support of the International Academic Project (outlined at 9).

6.2.6 The Amicus Curiae Function

The Commission may assist a court or tribunal as amicus curiae under the following two conditions:

i. where the relevant proceedings, in the opinion of the Commission, have significant implications for the implementation or interpretation of the Scottish Act; and

ii. the court or tribunal has granted leave for the Commission to assist as amicus curiae

6.2.7 The Report Function

The Commission:

i. has to submit an Annual Report on its work, in which it also is to reflect on the efficiency of the Scottish Act

ii. may submit additional reports on matters in relation with the ending of Conversion Practices in Scotland

6.2.8 Criminal Offences in Connection with the Commission

The Group recommends that it be a criminal offence:

i. not to comply with a request for information by the Commission under 6.2.4 e) above

ii. not to appear before the Commission when attendance is requested by the Commission under 6.2.4 f) above

iii. not to comply with a written undertaking under 6.2.4 g) iv. above

iv. not to comply with a compliance notice under 6.2.4 g) v. above

7. Protection of Participants in Proceedings before Courts, Tribunals and the Commission

The Group recommends that:

7.1 Appropriate measures be adopted to provide effective protection against any unjustified treatment for any person, especially retaliation and intimidation by their own organisations, for any person who reports in good faith and on reasonable grounds conversion practices or threatened conversion practices, to Courts, Tribunals and the Commission; and that

7.2 Appropriate measures be adopted to provide effective protection from potential retaliation or intimidation for witnesses and experts who give evidence to Courts, Tribunals and the Commission in relation to conversion practices or threatened conversion practices and, as appropriate, for their relatives and other persons close to them.

8. The Telephone Helpline

The Group recommends that a telephone helpline ('Helpline') be established in accordance with the following provisions:

8.1 The Helpline is to provide advice to victims and potential victims of conversion practices, but also to any person who has questions about matters of sexual orientation, gender identity and gender expression.

8.2 The Helpline is to be available free of charge.

8.3 Measures are to be adopted to ensure the anonymity of the callers.

8.4 The Helpline is to be made available in several languages, including those most commonly spoken in Scotland.

9. The International Academic Project

The Group recommends that an academic project be established ('The Project') in accordance with the following provisions:

9.1 The purpose of the Project is:

9.1.1 to engage in research on domestic laws in other jurisdictions as well as international and private initiatives which seek to end conversion practices and to maintain a database on these materials

9.1.2 to engage in dialogue with legislators and other relevant parties in jurisdictions that seek to end conversion practices in an effort to evaluate the efficiency of such measures

9.1.3 to evaluate the efficiency of legislative bans and other efforts to end conversion practices and to that end collect views and engage in a dialogue with relevant stakeholders, including victims, victim groups, affected minority groups, medical associations and faith organisations

9.1.4 to formulate, on the basis of its research, best practices for the ending of conversion practices

9.1.5 to engage in any other research activities its principal investigators consider necessary for efforts to end conversion practices

9.2 The Project is to be academically led and initially limited to a duration of five years. An extension of the mandate is possible.

9.3 The Project may render support to the Commission. It is recommended that it is funded by the Scottish Government, but that it remains an independent initiative which is not subject to instructions.

10. Civil Law Provisions

The Group recommends that Scotland adopt such measures as may be necessary to:

10.1 establish civil liability for natural and legal persons who are engaging or have engaged in conversion practices

10.2 ensure that persons who have been subjected to conversion practices have the right to initiate legal proceedings against those responsible for such practices in order to obtain redress and compensation

11. International Cooperation

The Group recommends that, within the limits of its constitutional powers, Scotland:

11.1 establish channels of communication with competent authorities dealing with conversion practices in other jurisdictions

11.2 engage with them in exchange of information covering all aspects of conversion practices

11.3 cooperate with them in inquiries with respect to conversion practices and in any other aspect conducive to the effective ending of conversion practices

12. Publicity

The Group recommends that appropriate measures be adopted to raise awareness of the legal ban on conversion practices and the help available through the Commission and the helpline. Such measures should include the work of young people, who, having received appropriate training in this matter, are available as contact points to other young people as well as the publication of information about the helpline and the Commission through social media channels.

13. Specific Recommendations on Diversity, People of Colour and Minority Ethnic Faith Communities

13.1 Civil measures must work within and with diverse faith and cultural communities to develop civil measures through consultation with survivors.

13.2 Civil measures must seek to understand the roots of cultural and religious prejudice and aid in shifting this.

13.3 Civil measures must help to foster visibility of People of Colour and Black Minority Ethnic people who are LGBT+. This should include: visible support that is clearly and visibly intersectional and culturally competent; visible support and allyship from within diverse communities; and work to help families better understand the harms of conversion practices.

13.4 Civil measures must seek to be cognisant of institutional racism (as well as lesbophobia, homophobia, biphobia and transphobia) that may affect the legitimacy and success of this work. It must recognise potential risk here for those reporting and address it.

13.5 Civil measures must recognise that individuals put themselves at risk by reporting conversion practices and seek to do no further harm.

13.6 Civil measures must have a comprehensive understanding of the significance, and potential danger of, the abuse of honour and shame within communities.

13.7 Civil measures must recognise that the majority of conversion practice happens in domestic settings within these communities – both legislative and civil measures must understand and cater to this.

13.8 Civil measures must ensure targeted support alongside legislation and there must be further investment in resourcing and capacity for the support of People of Colour and Black and Minority Ethnic survivors.

13.9 Civil measures must comprehend and seek to work within diverse institutional set up structures and governance in diverse faith institutions must be considered.

13.10 The legislation must acknowledge and be cognisant of institutional racism that may impede engagement with the civil scheme, legislative prosecution and justice.

13.11 The legislation might consider in its development work already established in Hate Crime (in relation to domestic settings), Domestic Abuse legislation (in relation to consent and coercion), female genital mutilation, honour abuse and forced marriage legislation (where lessons can be learnt).