A review of Bill C-4 An Act to amend the Criminal Code (conversion therapy)

Outlawing the promotion of mental health

Bill C-4 was passed without amendment and came into force on January 7, 2022.

This article is for general information only and should not be relied upon as legal advice. If you are concerned about how the bill might affect you, consult a lawyer who practices in criminal law or professional regulation law.

The government of Canada has introduced legislation to ban the practice of conversion therapy for sexual orientation, gender identity and gender expression.  Minister of Justice David Lametti introduced Bill C-4 An Act to amend the Criminal Code (conversion therapy) in the House of Commons on November 29, 2021.

The bill is substantially similar to Bill C-6 from the last Parliament, which died on the order paper while waiting for committee hearings in the Senate. The bill had already passed the House of Commons and second reading in the Senate. It had all party support but around half the Conservative caucus voted against it on third reading in the Commons.

While the language is substantially the same in both bills, there are some worrying changes in the new bill. There is no exemption for therapy on consenting adults and the language around gender identity has been made more restrictive.

The Preamble

The preamble to the current bill reads:

Whereas conversion therapy causes harm to society because, among other things, it is based on and propagates myths and stereotypes about sexual orientation, gender identity and gender expression, including the myth that heterosexuality, cisgender gender identity, and gender expression that conforms to the sex assigned to a person at birth are to be preferred over other sexual orientations, gender identities and gender expressions…

This is a small change from Bill C-6 which read:

Whereas conversion therapy causes harm to society because, among other things, it is based on and propagates myths and stereotypes about sexual orientation, gender identity and gender expression, including the myth that a person’s sexual orientation, gender identity and gender expression ought to be changed…

The new language introduces the term “cisgender gender identity” which is apparently separate from “gender expression that conforms to the sex assigned at birth.”

Search and Seizure Provisions

Sections 1 and 2 of the bill amend provisions of the Criminal Code which allow for search and seizure of computer systems by adding “advertisements for conversion therapy” to a list of banned material which now consists of child pornography, a voyeuristic recording, an intimate image, or an advertisement of sexual services.

Section 3 adds the offences of causing a person to undergo conversion therapy and removing a child from Canada for the purpose of conversion therapy to the list of offences for which the police can obtain an authorization to intercept private communications.  This section could be used to put a wire tap on the telephone or a bug in the office of a therapist or religious leader who is suspected of violating the law.

The Offences

Bill C-6 had four offences:

1.      Forced conversion therapy;

2.      Causing a child to undergo conversion therapy;

3.      Promoting or advertising conversion therapy; and

4.      Receiving a material benefit from conversion therapy.

Bill C-4 has only three:

1.      Causing a person to undergo conversion therapy;

2.      Promoting or advertising conversion therapy; and

3.      Receiving a material or financial benefit “knowing that it is obtained or derived from the provision of conversion therapy.”

The scope of these offences is vague and quite frightening. The original Bill C-6 only prohibited advertising an offer to provide conversion therapy. This was amended at the committee stage to expand the offence to read “knowingly promotes or advertises.” The term promote is very broad and can cover many things beyond an advertisement for a specific service. For example, is a psychiatrist who publishes an article which recommends psychotherapy rather than hormonal or surgical treatment as the best treatment option for gender dysphoric children and adolescents guilty of promoting conversion therapy?

The prohibition against receiving a financial benefit “derived or obtained from the provision of conversion therapy” could be extended to indirect benefits, such as rent received by a landlord for the premises where the conversion therapy is offered.

The Definition

The heart of the bill is the definition of conversion therapy itself. There has been no improvement since Bill C-6. The current definition reads:

320.‍101 In sections 320.‍102 to 320.‍104, conversion therapy means a practice, treatment or service designed to

(a) change a person’s sexual orientation to heterosexual;

(b) change a person’s gender identity to cisgender;

(c) change a person’s gender expression so that it conforms to the sex assigned to the person at birth;

(d) repress or reduce non-heterosexual attraction or sexual behaviour;

(e) repress a person’s non-cisgender gender identity; or

(f) repress or reduce a person’s gender expression that does not conform to the sex assigned to the person at birth.

For greater certainty, this definition does not include a practice, treatment or service that relates to the exploration or development of an integrated personal identity — such as a practice, treatment or service that relates to a person’s gender transition — and that is not based on an assumption that a particular sexual orientation, gender identity or gender expression is to be preferred over another.

The final form of the definition in Bill C-6 read:

Definition of conversion therapy

320.‍101 In sections 320.‍102 to 320.‍105, conversion therapy means a practice, treatment or service designed to change a person’s sexual orientation to heterosexual, to change a person’s gender identity or gender expression to cisgender or to repress or reduce non-heterosexual attraction or sexual behaviour or non-cisgender gender expression. For greater certainty, this definition does not include a practice, treatment or service that relates to the exploration and development of an integrated personal identity without favouring any particular sexual orientation, gender identity or gender expression.

The basic language is the same but it has now been broken up into sub-paragraphs for ease of reading. (It is impossible to use the term “clarity” in connection with this bill.)

Problems with the Definition

The bill does not contain any definition of the terms “cisgender,” or “gender identity.” These are terms which originated in the realm of Queer theory, which does not fit well with the clarity of definition demanded by criminal law. I commented on some of the constitutional issues raised by the lack of clarity in the definitions in a previous article.

The weaknesses of the definition makes it very unlikely that a parent or therapist will actually be convicted or even charged under the law. However, the threat of prosecution will always be there.

The bill retains the definition from Bill C-6 which included therapy to repress or reduce non-heterosexual attraction or behaviours. The problem is that it fails to recognize that there are some forms of sexual attractions or behaviours which need to be reduced. Attraction to same sex minors falls within the definition of a sexual attraction “other than heterosexual” and very few people would argue that it should not be repressed or reduced. However, it falls within the definition in the bill.  Laws in the United States, which use similar language contain an exemption for therapy to reduce and repress unlawful or harmful sexual behaviour, provided it was neutral as to sexual orientation.

The largest problem is the language around gender identity. This should be the live issue in the debate, but it is being totally ignored. The medical and psychological professions abandoned any attempt to change sexual orientation many years ago. Only a few small conservative religious groups now make any active attempts to change sexual orientation.

Meanwhile, there is a wide ranging debate in medical journals and the media everywhere except Canada over treatment practices for gender dysphoria, and in particular whether children and adolescents should be treated first with psychotherapy or “affirmed” in their identity and offered medical transition. The danger of this bill is that it will tip the balance of the debate in Canada decisively towards medical transition at a time when the rest of the world is moving in the opposite direction.

In order to analyze the bill it is necessary to break down how the definition works. It starts with a series of prohibitions and then contains an exemption. The exemption applies only where the prohibition is breached.

Take the case of a child who declares that they are “trans” and demands a change of name and pronouns. The school agrees. This is in fact a therapeutic practice which can have a powerful influence on a child’s evolving gender identity. However, because it is not changing the child’s identity to “cisgender”, it would not amount to conversion therapy, and it is not necessary to consider the exemption.

Now suppose that the parents refuse to acknowledge the child’s pronouns, allow breast binding or hormone therapy. Instead, they follow the advice in the Genspect Guidance for Parents  by engaging in open communication with their child, discouraging unhealthy use or social media and seeking out a therapist who will properly screen for conditions such as autism and body dysmorphia disorder.

The terms “practice, treatment or service” are very broad and could certainly encompass the practice of parenting. However, would the exemption for the development of an integrated personal identity also apply? On one hand, it could be argued that developing an integrated personal identity is what good parenting is all about. However, it is equally possible that the term is intended only to refer to a set of practices that require the services of a psychotherapist.

What do therapists make of this term? Could it cover any form of exploratory therapy that you might want to undertake with a gender dysphoric child or does it cover only a specific range of therapies? I do not have the qualifications to answer this question and neither do most prosecutors and judges.

The term integrated personal identity appears frequently in professional literature but it does not have any fixed meaning. There are different theories of identity development and the term may be used in a different sense in different disciplines. In order to fit within the exemption, therapists will have to adopt arbitrary, legally mandated terms to describe their work. Since this language will apply only in Canada, it will be more difficult to apply insights from the rest of the world.

Finally, what is the effect of the proviso that exploration and development must not be based on the assumption that a particular sexual orientation, gender identity or gender expression is to be preferred over another?

This is where the distinction between sexual orientation and gender identity becomes critical. There is no reason, aside from moral or religious disapproval, to prefer heterosexuality to homosexuality. A child who expresses an attraction to the same sex does not require any different treatment from a child who is opposite sex attracted. In both cases they should be strongly discouraged from engaging in sexual activity until they are adults and meanwhile educated on how to conduct sexual relations safely and respectfully.

On the other had a person who expresses a “non-cisgender identity” will likely seek a range of interventions including social transition, hormone therapy and surgery. Many of these treatments, particularly those in younger patients, are still in the experimental stage and the risks are unknown. Known risks include reduced bone density, infertility and loss of sexual function. Before undertaking radical medical interventions, medical professionals have an obligation to determine that they are in fact in the best interests of the patient. The bill makes this difficult by placing vague and arbitrary restrictions on what they can do and say.

The root of the problem is that the whole concept of gender identity is not clearly defined or universally accepted as valid. Many therapists believe that there is no scientific basis for the concept of gender identity. Gender identity is a concept that originated in Queer Theory, which is a branch of literary criticism and has been imported into the world of therapy through political activism.

The uncertainty around the concept of gender identity reflects its ideological roots. The language used in the bill could create problems even for a therapist who accepts the basic concept of gender identity. The bill draws a binary distinction between cisgender and non-cisgender identity but the ideology of gender identity rejects any sort of binary. A non-cisgender person may claim an identity of non-binary, agender, gender queer, gender fluid or one or more of a constantly expanding list.

The concept of gender dysphoria is an alternative approach to transgender identification which is preferred by many therapists. It is also the way that many transgender identified people understand their condition. Gender dysphoria is defined as a sense of distress that people feel in relation to their biological sex and the gender roles which society assigns to each sex. People suffering from severe gender dysphoria may experience relief if they by identifying as the opposite sex and modifying the sex characteristics of their bodies to resemble those of the opposite sex.

There is an ongoing debate in medical and psychological literature as to the merits of the concepts of gender identity as opposed gender dysphoria as a model for understanding gender distress. The bill uses criminal law to tip the balance in this debate by forcing therapists to attempt to apply a concept of gender identity which they may believe to be invalid.

The requirement that a therapist not make an assumption that one gender identity is to be preferred over another is contrary to the basic function of therapy. While therapists should not allow themselves to be influenced by prejudice or impose their views on patients, they do need to make assumptions about what is in the best interests of the patient.

In ordinary medicine and psychotherapy, the goal is to create a state where the patient is free from distress in mind and body with as little intervention as possible. Applying this principle to gender distress, the optimum result would be to create a sense of harmony between a patient’s mind and their sexed body without the need for hormonal and surgical treatment. However, in the convoluted language of Bill C-4, a therapist who pursues this outcome would be seen as favouring a “cisgender” identity and would risk 5 year prison term. A therapist who simply approved the patient’s desire for treatment, without question, would face no consequences.

The case of detransistioners, who wish to resume their “cisgender” identity creates special problems. If a patient expresses a clear desire to detransition or has already detransitioned, there should be no problems. However, in a case where the patient is uncertain about their transgender identity, the therapist has to be cautious about doing anything that might be seen as attempting to suppress a patient’s non-cisgender identity.

The major complaint of detransitioners is that their therapists failed to explore alternative causes for their distress before approving medical transition. Under the bill any attempt to characterize a patient’s gender issues as the result of some underlying cause which could be treated by means other than transition could be seen as an attempt to repress non-cisgender identity based on the assumption that it is not desirable.

I have argued in a previous article that the restrictions that Bill C-6 placed on ethical, evidence based therapy are a denial of the right to life, liberty and security of person under Section 7 of the Charter. The changes in Bill C-4 have only made the situation worse.