Conversion Therapy Laws in Canada: Part I
Where we stand
With federal legislation to ban “conversion therapy” for gender identity in limbo at least until after the election, clinicians and parents who question the uncritical affirmation approach to gender dysphoria in young people have some breathing room. However, there are still substantial legal obstacles in the way of anyone who wants to provide ethical, evidence based therapy for gender dysphoria in Canada.
This is Part I of a two part series. It reviews the current status of laws and regulations relating to conversion therapy. Part II will discuss the potential for constitutional challenges to these laws.
Provincial and Territorial Laws
As of September 2021, Ontario, Quebec, Prince Edward Island Nova Scotia and the Yukon have legislation restricted conversion therapy for both sexual orientation and gender identity. Surprisingly, British Columbia, with has one of the most active LGBTQ+ communities, does not have a conversion therapy law. It may be that given the political climate in the province, it would be redundant.
Ontario
The Ontario legislation was passed in 2015 as an amendment to Regulated Health Professions Act. The Act applies to all self-governing health professions including doctors, nurses, psychologists, occupational therapists and psychotherapists. Social workers are regulated under their own Act which permits them to provide psychotherapy services.
Section 29.1 prohibits “any treatment that seeks to change the sexual orientation or gender identity of a person under 18 years of age.” There are exemptions for “services that provide acceptance, support or understanding of a person or the facilitation of a person’s coping, social support or identity exploration or development” and “sex reassignment surgery.”
Prince Edward Island
Prince Edward Island has added a conversion therapy ban to its Registered Health Professions Act which is similar in scope to the Ontario Act. Section 66.1 prohibits providing conversion therapy to a person under 18. The definition is the same as in the Ontario act except that the term “sex reassignment surgery” has been replaced with “gender-confirming surgery.”
Nova Scotia
Nova Scotia has a stand alone law entitled the Sexual Orientation and Gender Identity Protection Act. The law applies to hospitals and regulated health professions. It refers defines “change efforts” as “any counselling, behaviour modification techniques, administration or prescription of medication or any other purported treatment, service or tactic used with the objective of changing a person’s sexual orientation or gender identity.”
The Act provides that change efforts are not insured services under the Health Services and Insurance Act and prohibits the expenditure of public funds on change efforts. It also prohibits change efforts directed at a person under the age of 19. This prohibition applies both to regulated health professions and to any person who is in a position of trust or authority. This could include teachers and religious leaders.
There is an exemption where the young person is over the age of 16 years, capable of consenting to the change effort and consents to the change effort. A parent, guardian or substitute decision maker cannot consent on the young person’s behalf. This is a worthwhile exemption because it puts consent to “change efforts” on the same footing as consents to more invasive medical treatment. Without this provision it would be possible for a 17 year old to consent to hormone therapy or surgery but not to talk therapy.
Yukon
The Sexual Orientation and Gender Identity Protection Act of Yukon is broader than the Nova Scotia Act. It applies to any person and is not limited in scope to regulated professions. The definition of conversion therapy is similar to the Ontario Act. The Act prohibits the provision of conversion therapy to a minor or an adult for who a guardian or substitute decision maker has been appointed. There is no exemption which would enable a mature minor to consent to the therapy. Conversion therapy is not an insured health service.
Quebec
Quebec’s Bill 70, which was adopted last year. Is the most far reaching of the provincial anti-conversion therapy laws. It contains a definition which is very close to the one in the federal Bill C-6. It reads:
“Conversion therapy” means any spiritual or non-spiritual practice, service or treatment, including a conversion practice, intended to induce persons to change their sexual orientation, gender identity or gender expression or to repress non-heterosexual sexual behaviour. Any medical treatment or surgical operation arising from a person’s self-initiated process of gender affirmation and the support required for that purpose is, however, excluded. Support provided to persons in their self-initiated process of accepting, adapting to and affirming their sexual orientation, gender identity or gender expression is also excluded.”
The act prohibits advertising and providing conversion therapy to both minors and adults. It imposes fines of $5,000 to $50,000 on a natural person and $15,000 to $150,000 for a corporation. The fines are doubled for a subsequent offence.
The Civil Code of Quebec is amended to provide that conversion therapy constitutes “violent behaviour suffered during childhood.” This creates a right of action for damages against the provider.
The Health Insurance Act is amended to provide that conversion therapy is not an insured service.
Finally, the Professional Code is amended to provide that the provision of conversion therapy by a professional “constitutes an act derogatory to the dignity of his profession.”
Municipal By-Laws
A number of municipalities have also adopted conversion therapy by-laws. Most of them are in Alberta but they are also found in other provinces. No Conversion Canada has a map which lists them all.
Reviewing each by-law in detail would be too time consuming but the Calgary by-law appears to be is typical. It defines conversion therapy as a prohibited business and imposes a fine of up to $10,000 on anyone providing it. The definition is similar to Bill C-6 and reads:
“Conversion therapy” means a practice, treatment, or service designed to change, repress, or discourage a person’s sexual orientation, gender identity, or gender expression, or to repress or reduce non-heterosexual attraction or sexual behaviour. For greater certainty, this definition does not include a practice, treatment, or service that relates (a) to a person’s social, medical, or legal gender transition; or (b) to a person’s non-judgmental exploration and acceptance of their identity or development.
According to the information page, the by-law would apply to non-profit and faith based groups.
The by-law has not yet been tested in court and it offers ample scope for legal challenge.
Professional Regulation
The effective restraint on so-called conversion therapy comes from the policies of various professional associations.
The medical and psychological professions have long rejected therapy to change sexual orientation. The Canadian Psychological Association has issued a Policy Statement on Conversion / Reparative Therapy for Sexual Orientation which opposes any attempt to change sexual orientation.
Its policy on gender identity issues is less clear. A fact sheet on Gender Dysphoria in Adolescents and Adults endorses the affirmative approach but still leaves open the possibility of diagnosing and treating co-occurring mental health conditions and “exploring with the client the range of treatment options and their implications.”
In 2014 The Canadian Psychiatric Association issued a Position Paper on Mental Health Care for People Who Identify as Lesbian, Gay, Bisexual, Transgender, and (or) Queer which opposes reparative therapy for both sexual orientation and gender identity. The Association has a policy of reviewing position papers every five years. This paper is currently under review so it can no longer be regarded as official policy.
In practice the affirmative approach to gender dysphoria is being enforced by informal policies at the level of clinics and through the education system. Clinicians who depart from the affirming approach do so at the risk of their licenses.
This article is for general information only and should not be relied on as legal advice.