Ending conversion practices in Scotland - consultation analysis: SG response

The case for legislation

32. Many consultation respondents who were against the introduction of legislation stated their belief that there is not enough evidence that conversion practices are still happening in Scotland and that existing legislation already criminalises harmful behaviour.

33. As outlined in the consultation, the Scottish Parliament’s Equalities, Human Rights and Civil Justice (EHRCJ) Committee stated in their 2022 report that, in their view as a Parliamentary Committee, sufficient evidence had been provided to support the need for legislation in this area and that no further data-gathering exercise was required. The proposals set out in the consultation took account of a range of evidence, including, but not limited to, the UK Government’s 2018 ‘LGBT survey’ and personal testimonies from survivors of conversion practices.

34. In addition to the powerful testimonies provided to the EAG and EHRCJ committee by survivors of conversion practices, there is a growing body of international evidence which confirms that conversion practices are a live and deeply harmful issue.^[3]

35. It remains the case that evidence shows a high rate of lasting trauma and psychological harm reported amongst individuals who have been subjected to conversion practices, with the prevalence of self-harm and suicidality at a particularly high level^[4]. Several respondents to this consultation shared their personal experiences of either attempting to take their own life or knowing individuals who had died by suicide as a result of the trauma they experienced from conversion practices. As a result, we know that victims of conversion practices may be unable to share their experiences. This and the fact that people may not know they have experienced conversion practices, or may not ever report their experiences, makes the prevalence and harm of conversion practices difficult to fully quantify.

36. Our collective understanding and knowledge of complex trauma continues to develop in relation to comparable topics such as domestic and honour-based abuse. In the same way that these experiences often happen behind closed doors, conversion practices frequently take place where there is an imbalance of power, including in intimate family and community settings, meaning that victims are often unwilling or unable to speak out about their experiences. Existing research also tells us that complex trauma can manifest in later years, especially where the conversion practice happened during childhood^[5].

37. Without the introduction of legislation to criminalise conversion practices, victims are limited in where they can turn to for support as there is no organisation or legal entity to report the conversion practice to. As a result, there is no body currently collecting data on reports of conversion practices.

Existing legislation

38. While it is true that Scots law addresses a range of harmful behaviour, including situations involving physical violence or threatening conduct, there are significant gaps in our law which means it does not address all forms of harmful behaviour associated with conversion practices. A full table analysing relevant existing Scottish law is included at Annex A. This corresponds with similar analysis in the consultation published by the UK Government in 2021.

39. The approach set out in the consultation document aimed to close these gaps while ensuring that fundamental rights already enjoyed by people in Scotland, such as freedom of religion and the right to family and private life, are upheld.

40. Some forms of conversion practices, such as so-called ‘corrective rape’ and physical assault, already fall within existing criminal offences. However, conversion practices which take a psychological or verbal form such as a pattern of coercive behaviour, or talking therapy or counselling which coerces an individual towards a ‘preferred’ sexual orientation or gender identity, are unlikely to meet the requirements of existing criminal offences such as threatening and abusive behaviour, stalking, or domestic abuse, each of which have specific requirements.

41. For example, many respondents stated that coercive behaviour is already criminalised by existing legislation, however this is not the case in Scotland. The Domestic Abuse (Scotland) Act (2018) criminalises a course of abusive behaviour which is undertaken by an existing or former partner. This means that this law does not apply to broader relationships such as family or community members, or to people who are not connected.

42. In addition to sharing a belief that conversion practices are already criminal in Scotland, some respondents commented that the Scottish Government may be acting beyond its devolved competence in legislating to ban conversion practices. This was because they considered that it would be making changes to reserved legislation, in particular the Equality Act 2010. However, the Scottish Government is clear that this is not the case, and the creation of a new criminal offence and civil order are within the legislative competence of the Scottish Parliament. However, we are also clear on the value of a single piece of legislation that would apply across Scotland, England and Wales.