Conversion Therapy Laws in Canada – Part II

Constitutional Issues

Part I  of this article reviewed the existing legislation in Canada which ban so-called conversion therapy for sexual orientation and gender dysphoria. This part will discuss whether any of these laws could be challenged as unconstitutional.

This will be a general discussion for the lay reader. For a more detailed review of the applicable legal issues, see this brief to the Justice Committee submitted by the Justice Centre for Constitutional Freedoms.

Whether a law is constitutionally valid depends to, a large extent, on its exact terms. This article will use the definition of conversion therapy found in the federal Bill C-6. The definition of conversion therapy in this bill reads:

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.

In general, the broader the definition in the bill , the greater the scope of constitutional challenge.

Distribution of Powers Issues

The first question in considering the constitutional validity of a Canadian law is whether it falls within the jurisdiction of the federal or provincial governments. The Constitution Act, 1867 defines the legislative authority of the federal and provincial governments. If either level of government passes a law outside the scope of its authority, that law will be invalid, aside from any Charter violations.

The federal government introduced Bill C-6 under its power to make criminal laws. This power is interpreted very broadly and would be sufficient to support the bill.

Provincial legislatures also have the power to pass laws which impose penalties of fine and imprisonment. However, this power is narrower than the federal criminal law power as the prohibited act must relate to a subject within provincial jurisdiction. Laws like those in Ontario and Prince Edward Island which apply only to regulated professions would be valid as professional regulation is a provincial responsibility. A law which applied to conversion therapy on minors might also be justified under the provincial power over child welfare. However, a broadly worded ban such as the one in Quebec, which applies to everyone, is likely invalid as an attempt to encroach on the federal criminal law power.

Municipal powers are even more limited. Municipal governments are created by provincial legislation and do not have independent constitutional status. A valid municipal by-law must therefore be both within the jurisdiction of the provincial legislature and within the scope of powers that the legislature has delegated to the municipal council. There is a very strong case that municipal councils do not have the power to regulate how psychologists or psychiatrists treat cases of gender dysphoria or what forms of religious instruction are acceptable in their community.

Charter Issues

The federal Department of Justice issued a Charter Statement on the former Bill C-6 which provides a very cursory review of some of the ways in which conversion therapy legislation might violate the Charter of Rights and Freedoms. There are two stages in Charter review in Canada. The first is to determine whether a law infringes any of the rights or freedoms protected by the Canadian Charter of Rights and Freedoms. If it does, the court will then decide whether the law can be justified under Section 1 as a “reasonable limit.”

Freedom of Expression under Section 2(b)

The main means by which alleged conversion therapy is carried on today are various forms of a speech including counselling, discussion and prayer. Any legislation which restricts conversion therapy will therefore restrict freedom of expression. Bill C-6 goes further by banning the advertising and promotion of conversion therapy.  Canadian case law has given a broad scope to the protection of freedom of expression under Section 2(b) of the Charter. Any legislation which restricts speech based in its expressive content will violate the Charter. There is no automatic exception for so-called commercial speech or professional speech.  The onus is therefore on the government to justify the restrictions under Section 1 of the Charter.

The Canadian courts have given professional associations wide latitude to regulate speech by their members. Professional advice is given largely through the means of speech and granting absolute freedom of speech to professionals would make effective regulation impossible. However, professional regulation is a provincial responsibility and arguments based on the need to regulate professional speech would not be applicable to a federal law or a provincial law that extends beyond regulated professions.

Freedom of Religion under Section 2(a)

Freedom of conscience and religion includes includes the right to promote your religious beliefs, live your life according to the teachings of your religion and engage in Every religion has something to say about sexual behaviour. This is not coincidental. Sex is the foundation for human for childbearing and family life which are the basis for human society.

Canadians are divided on this issue. Many religious leaders supported Bill C-6 and the majority of Canadians now accept same sex relationships. However, this is irrelevant to constitutional analysis. The Charter exists to protect minority rights.

Briefs calling for change to the Bill were submitted by diverse groups including the Conference of Catholic Bishops , Association for Reformed Political Action and the Evangelical Fellowship of Canada. These submissions generally accepted the need to ban coercive and attempts to change sexual orientation. They were concerned about the language in the bill which refers to sexual behaviour. While sexual attraction is usually beyond the control of the individual, sexual behaviour is not. The language of Bill C-6 unduly restricts the rights of religious groups to provide teaching and counselling based on their views of ethical sexual conduct.

Supporters of Bill C-6 appear to have exaggerated the extent to which the courts have been prepared to limit religious liberty in support of equality rights for the LGBTQ community. Cases like Trinity Western University v. British Columbia College of Teachers confirm that there are some limits on religious freedom but those limits are very narrow. Any law which limited the right of a religious community to offer teaching and counselling to its members would certainly infringe Subsection 2(a) and the onus to justify it under Section 1 would be very high.

Conflicts between the LGBT community and religious communities must confront two realities. One is that sexual orientation cannot be changed by any known therapy. There is a long history of ex-gay ministries shutting down after being exposed as frauds or failures.

The other is that religious belief cannot be changed by threat of criminal prosecution. The conflict between sexual orientation and religious belief is the source of a lot of pain. Many LGBT people subject themselves to conversion therapy because they fear that their sexuality will cause them to be rejected by their families and faith communities. This is not a problem that can be fixed by criminal law. Bringing criminal charges against leaders of a faith community is not going to change anyone’s beliefs or create real acceptance.

Discrimination Under Section 15

Section 15 of the Charter prohibits discrimination including discrimination on the basis of age, sex, religion, race and other grounds. Sexual orientation is not listed as one of the grounds in Section 15 but the courts have found that it is included based on the doctrine of “analogous grounds.”

While conversion therapy bans are promoted as a protection for minors and LGBT people, there are elements in the definition of conversion therapy in Bill C-6 which discriminate against both groups.

The extension of the definition of conversion therapy to include therapy intended to reduce of repress sexual behaviour “other than heterosexual” disregards the obvious fact that even secular society accepts that there are some sexual behaviours that should be reduced or repressed. Promiscuity, attraction to minors, pornography addiction and many other behaviours are harmful to individuals and society. 

Bill C-6 would permit therapy to reduce unlawful or harmful opposite sex behaviour but prohibit it in the case of same sex behaviour. This amounts to discrimination against same sex attracted persons who are denied access to therapy which they may want or need.  Conversion therapy laws in the United States include an express exemption for therapy to reduce harmful or unlawful sexual behaviour which is neutral as to sexual orientation.

Bill C-6 also discriminates based on age in its treatment of minors and adults. All conversion therapy of minors is banned but conversion therapy on adults is legal provided that it is consensual and not done for reward. Differential treatment of minors is normally accepted under Charter and human rights legislation on the basis that children do not have fully developed mental capacity and therefore require special protections.

In this case the differential treatment is arbitrary and denies minors important protections.  Canadian law does not recognize the legal age of majority as the minimum age for consent to medical treatment. The law varies from province but in general a “mature minor” may consent to medical treatment at the age of 16 or younger. The inconsistency between the flexible age of consent under provincial law and the age of majority rule in Bill C-6 is discriminatory because it denies minors the ability to consent to some forms of treatment while leaving open options which are more invasive and riskier. Thus a 16 year old girl with gender dysphoria could consent to a double mastectomy but might not be offered the alternative of therapy to help her overcome her dislike of her body.

Vagueness Under Section 7

Section 7 of the Charter provides that no person shall be deprived of life, liberty to security of person except in accordance with the principles of fundamental justice. One of the requirements of fundamental justice is that the law must describe with reasonable certainty the types of conduct that are subject to criminal penalties.

It could be argued that a prohibition on conversion therapy to change gender identity fails the reasonable certainty test because there is no agreement on what gender identity means let alone what it means to change it. 

James Cantor said that the language of Bill C-6, from the point of view of a psychologist, is a self-contradictory word salad. The whole concept of gender identity is hopelessly vague. There is no consensus as to how many genders there are, whether gender identity is fixed or fluid or even whether it exists at all. It is difficult to formulate a definition of gender identity which is not circular, dependent on stereotypes or simply a statement of an untestable personal belief. The courts must then apply this concept to the treatment of complex mental health issues.

Canadian courts are extremely reluctant to invalidate a law based on vagueness alone. The Supreme Court has held that this requires not just difficulty in interpretation but complete unintelligibility. However, if a provision violates other sections of the Charter, vagueness can be a factor in determining whether it can be justified under Section 1.

Denial of Access to Care Under Section 7

The right to life and security of person guaranteed under Section 7 of the Charter includes the right to access to medical care. In R. v. Morgentaler (1988) the Supreme Court of Canada held that Canada’s abortion law violated Section 7 because it put arbitrary restrictions on the availability of abortions where the operation was necessary to protect a woman’s life or health.

The same argument can be applied to a conversion therapy ban relating to gender identity.  The conversion therapy ban effectively restricts therapists dealing with gender dysphoria in to the affirming approach of accepting the patient’s self-declared gender identity and facilitating social and medical transition as desired. Any therapist who suggests that a patient’s mental health issues need to be explored before committing to medical transition or that transition may not be the best treatment for their distress, risks being accused of conversion therapy.

The definition of conversion therapy in Bil C-6 talks about exploration of an integrated personal identity which is neutral as to sexual orientation or gender identity. However, the bill also explicitly refers to changing gender identity which is “other than cis-gender” which suggests that certain directions of exploration are off limits. The term integrated personal identity refers to a complex body of psychological literature and clinicians will have no idea how judges without advanced training in psychology will interpret this term.

What clinicians do know is that there is an influential body of activists both inside and outside the medical and psychological professions who regard anything other than unquestioning affirmation of a person’s self declared gender identity to be a form of conversion therapy. These activists reject the idea that gender dysphoria can have complex psychological causes which ought to be explored before making any final decisions on transition. In their view, gender identity is innate and unchangeable and the role of the clinician is simply to facilitate access to medical transition if the patient desires it.

While it is possible that the activist interpretation of conversion therapy would not stand up in court, very few therapists are prepared to risk their careers on the outcome of a court case. The result is that even without a federal criminal law, the affirmative approach is going unchallenged.

A series of studies found that between 60 and 90 percent of children with gender dysphoria will desist during puberty if treated with the traditional approach of watchful waiting. Today, the affirmative approach means that many of these children are being started on medical transition at younger and younger ages. Conditions such as autism and eating disorders are not being properly diagnosed and treated. A number of groups, including Canadian Gender Report and a parent’s collective from Quebec submitted briefs to the Justice Committee explaining these concerns.

The consequences of this approach are being borne by a growing group of detransitioners who realize too late that making permanent changes to their bodies will not change their sex or resolve their mental health problems.

The medical transition of children and teens is still in the experimental stages and has substantial risks. It is known that hormone therapy and puberty suppression can cause reduced bone density, loss of fertility and reduced or absent sexual function. The effects on a growing brain are still unknown. Some countries are now moving away from the affirmative approach and making extensive psychological assessment the first line of treatment for gender distressed youth.

A law on conversion therapy for gender identity risks making Canada an outlier by locking its professionals into a model of treatment which based on political activism rather than evidence based medicine. This is sufficient to be an infringement of the right to life and security of person.

It is unlikely that a professional therapist would actually be charged under the conversion therapy provisions of the Criminal Code for conversion therapy relating to gender identity. The vagueness of the language of the section would make it more difficult to prove a case beyond reasonable doubt. However, even an unsuccessful criminal charge could have a devastating effect on a professional’s career. Most therapists will be very reluctant to test the limits of the law.

Furthermore, much of the current restraint on therapists operates at the level of policies and practices enforced by professional organizations, clinics and universities. These policies and practices already restrict many of the approaches that supporters of conversion therapy legislation want to ban. A criminal conversion therapy law would not have much immediate effect on clinical practice on the treatment of gender dysphoria.  However, it would have a significant effect by making it much more difficult for Canadian professional organizations and clinics to modify their treatment practices in response to new research and changes in international practice.

Scope of the Bill

One argument that the government raised repeatedly during the debate on Bill C-6 was that amendments to limit its scope were not required because the term “practice, treatment or service” in the definition was sufficient.

In fact, Canadian case law gives these words a very broad interpretation. For example, the Supreme Court has held that “treatment” can apply to any “process or manner of behaving towards or dealing with a person or thing.”

Justification Under Section 1

A law which violates that Charter may still be upheld under Section 1 if it is a “reasonable limit demonstrably justified in a free and democratic society.” In determining where a law can be upheld under Section 1, the courts apply a test first stated in R. v. Oakes:

1.     The government must first show that the legislation is intended to meet a real and substantial objective.

2.     The court then considers a three part proportionality test:

a.     There must be a rational connection between the legislation and the declared objective;

b.    The legislation must infringe as little as possible on the right or freedom in question; and

c.     There must be proportionality between the objective the law is intended to serve and the degree of infringement on protected rights and liberties.

The Charter Statement issued by the Department of Justice states two objectives for the law. The first objective is to prevent the harm which can be caused by conversion therapy. The Charter Statement says, “Conversion therapy has been denounced by medical and psychological professionals as being ineffective and the source of harm and potential harm.”

Prevention of direct harm is a valid ground for limiting Charter rights provided that the harm is real. There is substantial evidence that conversion therapy to change sexual orientation can cause serious harm. There have been many cases of the medical profession and religious groups trying, without success, to change sexual orientation by means that amount to literal torture, including electric shock, drugs and sleep deprivation.

Even attempts to change sexual orientation by non-coercive means such as counselling and prayer are ultimately harmful because they are fraudulent. There is no evidence that sexual orientation can be changed by therapy and trying to do so will sooner or later lead to deep disappointment. This is an argument to extending the conversion therapy ban even to so-called consenting adults. Consent induced by a fraudulent claim is not real consent.

Gender identity is in a different category. There is no consensus in the medical and psychological profession that gender identity is fixed and considerable debate over whether it can or should be changed.

Sexual behaviour raises further issues. There is some justification for including it in the definition because some conversion therapy practitioners may claim that they are only counselling people on sexual behaviour when they are in fact trying to change sexual orientation. However, sexual behaviour is ultimately under the control of the individual and there are many types of sexual behaviours which should be discouraged.

The Charter Statement by the Department of Justice includes a second objective.  It claims that the continued existence of conversion therapy “also harms the dignity of LGBTQ2 people by perpetuating myths and stereotypes based on sexual orientation or gender identity – in particular, that the sexual orientation or gender identity of LGBTQ2 people is undesirable and can and should be changed.”

Preventing harms to dignity and repressing so-called myths and stereotypes is not a legitimate ground for limiting Charter Rights. The law in a free and democratic society cannot favour or disfavour a particular set of beliefs.  One person’s myth or stereotype may be another’s divinely ordained truth.  While the idea that same sex attraction or cross-sex identification is sinful, is deeply offensive to many people, it remains within the scope of protected religious belief. As the Supreme Court said, in Trinity Western University v. British Columbia College of Teachers, “For better or for worse, tolerance of divergent beliefs is a hallmark of a democratic society.”

The second branch of the Oakes test requires that that legislation in question be “carefully designed to achieve the objective in question” and must not be “arbitrary, unfair or irrational.”

A valid conversion therapy ban needs to focus narrowly on the first objective of preventing harmful and fraudulent practices.  Instead, Bill C-6 appears to have been drafted with the goal of enforcing a particular set of religious and political ideas about gender and sexuality. Sexual orientation, sexual behaviour and gender identity are conflated without any consideration of the different issues they raise. The exemptions are too vaguely worded to provide any reassurance or guidance.

Bill C-6 and similar laws have been drafted for maximum reach rather than minimal impairment. There has been no attempt to isolate only clearly harmful practices or to create unambiguous exemptions for legitimate religious counselling or evidence-based therapy.

Vagueness of language is a factor the courts will consider in applying the Oakes test. In order to amount to a “reasonable limit prescribed by law” the scope of the law must be clear.

There are elements of Bill C-6 that are arbitrary and irrational. For example, the bill permits adults to seek out treatments that meet the definition of “conversion therapy” but prohibits providers from charging for their services. This means, in practice, that adults in distress over their sexuality will have difficulty obtaining services from trained and regulated professionals, who need to charge for their services, but will be able to attend sessions provided free of charge by non-professionals, who will almost certainly be less competent and more likely to cause harm.

The government does not appear to have carefully considered all of the relevant issues and interests in drafting Bill C-6. The Department of Justice background material on the bill refers to two studies on the experiences of gay men with conversion therapy but nothing on the experiences of lesbian women. This omission is critical because of the growing numbers of young women attending at gender clinics who experience gender transition as a form of conversion therapy for lesbian sexual attraction.

Procedural Issues

There are two ways of challenging the law under the Charter. One is to wait for a charge to be brought and raise the Charter by way of defence. This may take a long time because there is very little actual conversion therapy going on in Canada. Sooner or later some religious group will try to set up a test case. The danger here is that in order to get a provincial Attorney General to proceed with a prosecution, the facts of the case would have to be very clear and the accused unlikely to attract any public sympathy.

The problem with waiting for someone to be charged is that it does not address the issue of therapy for gender dysphoria.  The harm here is not caused by an actual criminal charge but by the ever present fear of a criminal charge deterring clinicians from even the slightest questioning of the affirmative model.

The solution may be an application under Section 24(1) of the Charter which provides that anyone whose rights and freedoms have been infringed or denied may apply to a court of competent jurisdiction for a remedy.  

A review of conversion therapy legislation under Section 24(1) would in effect be the inverse of the legal issues in the U.K. case of Bell v. Tavistock. The Court of Appeal dismissed the application for judicial review in that case because it found that it was not appropriate for the courts to interfere with the clinical judgment on complex issues where there were competing professional opinions. In a Charter review the onus would be on the government to justify overriding the normal process of professional debate and entrenching the affirmative model through criminal law.

This article is for general information only and should not be relied on as legal advice.