The proposed conversion therapy ban: myths and reality
Reverend Dr Helen Hall and Professor Javier García Oliva review the law on “conversion therapy” in the context of criminal and constitutional safeguards for equality and diversity
The government is moving forward with its plans of prohibiting “conversion therapy” – practices targeted at members of the LGBTQ+ community, with the aim of changing or suppressing their sexuality or gender identity. This has met with resistance from some quarters, and a group of 30 Conservative MPs have called for the process to be slowed down to allow more time for debate. Their primary stated objection is the proposed ban could potentially “criminalise legitimate therapies” currently provided to children experiencing gender dysphoria.
What are the concerns?
To what extent is this a valid concern? Looking objectively at the government’s proposals, and also the input from campaign groups advocating for legislative action on conversion therapy, it is difficult to find any rational basis for this anxiety. Their fear is therapists and others might face sanctions simply for helping a young person to explore their sexuality and gender identity. Their suggestion is merely questioning the individual’s stated understanding, and offering alternative possibilities, might fall foul of the law. However, there is no intention to prohibit this sort of vital therapeutic conversation, and it is hard to conceive of there being scope for any judge, police officer or other state representative interpreting the law in the way. In the highly unlikely event they did, such a gross distortion of Parliament’s will, and the wording of a statute, would not survive challenge.
What would the ban prohibit?
It should be stressed the only practices to be caught by a ban on conversion therapy, are those with a predetermined outcome. There is no ambivalence about this, and an open-ended dialogue, in which a person is given a space to reflect on their feelings and experiences, would not be prohibited. A degree of probing about a young person’s interpretation of their emotions and context, and the offering alternative perspectives, is a normal and necessary part of helping them to discern what is going on and how they wish to respond to this. The last thing any organisation working with LGBTQ+ children and teenagers wants to do is reduce the quality of care and support offered to them.
In stark contrast, interventions with a predetermined outcome seek to impose an answer. Instead of assisting a person to navigate their emotions and experience, and ultimately reach whatever conclusion about their sexuality or gender identity to which this path leads, such processes try to engineer an endpoint which is fixed from the outset. The purpose is to mould a person into identifying and living as heterosexual, or deciding their gender identity matches their biological sex.
What would be illegal?
In order to infringe the prohibition, a practice would have to meet the pre-determined outcome test. No “legitimate therapies” attempt to direct a person towards a set conclusion about their gender or sexuality – and therefore, no legitimate therapies will be caught.
Given the clarity of this position, the statement by the Conservative MPs raises a question about what is really unfolding. Undeniably, the ban on conversion therapy is being constructed at a moment in history when issues around sex, sexuality and gender are battlegrounds in a bitter cultural war. This proposed legislation is being caught in the crossfire, but it does not really concern the main theatre of conflict. Supporting a prohibition on conversion therapy does not require a person to take up any particular position on transgender rights, human sexuality, women’s rights or understandings of feminism.
Which questions remain?
As a result, discussions about access to spaces such as toilets and changing facilities are an entirely separate question. It is unfortunate in some of the debates around the new law, some participants have, either through genuine confusion or conscious choice, conflated unrelated issues with the core subject matter. The primary purpose of the prohibition is to protect the right of LGBTQ people to simply exist, without being subjected to practices aimed at erasing and reshaping who they are. That is what conversion therapy does, infringing the Convention rights (in particular ECHR 1950 Articles 3, 8 and 14) of recipients in the process, and exposing their mental health to the risk of grave long term harm. It is these kinds of the interventions the new law seeks to eradicate.
Reverend Dr Helen Hall is Associate Professor at Nottingham Law School, and Professor Javier García Oliva is Professor of Law at Manchester University. Both Helen and Javier advise the Ban Conversion Therapy group: ntu.ac.uk; manchester.ac.uk