In Part II of this article series I argued that conversion therapy legislation along the lines of the former Bill C-6 could be challenged as unconstitutional in Canada. In this part, I propose a definition of conversion therapy that should pass constitutional scrutiny. The objective is to formulate a definition of “conversion therapy” that will effectively ban the harmful practices directed at the LGBT community while at the same time allowing scope for legitimate religious instruction and for evidence based treatment of gender dysphoria.
It is difficult to find words that will meet this requirements in a single definition so I have started with a broadly inclusive definition and then created exceptions.
Here it is:
“Conversion therapy” means a sustained and organized effort to change sexual orientation or gender identity or to repress or reduce sexual behaviour associated with a given sexual orientation but does not include:
a. teaching or counselling relating to sexual behaviour and sexual morality which is non-coercive in nature and does not claim to be able to change sexual orientation;
b. therapy provided by a mental health professional intended to repress or reduce sexual behaviour, which is unsafe, unlawful or otherwise harmful, provided that it is neutral as to sexual orientation; or
c. therapy provided by a mental health professional relating to the exploration of gender identity including but not limited to the timing or appropriateness of social or medical transition to another gender, including discussion of the risks and benefits of medical transition and offering alternative or additional diagnoses or courses of treatment.
“Mental Health Professional” means a medical doctor, clinical psychologist, social worker, psychiatric nurse, psychotherapist or other professional licensed under the laws of the province to provide mental health services.
The term “sustained and organized effort” was chosen to isolate, in the fewest words possible, the types of conduct that is likely to cause serious harm. Accounts by conversion therapy survivors consistently identify two features in their treatment. One is that it took place in the context of some organized program such as sessions with a mental health professional, a church camp or formal training program. The second is that it took place over an extended period of time. This would address the concerns the Bill C-6 would have criminalized simple conversations with parents, faith leaders and others.
The basic definition does not attempt to distinguish between coercive and non-coercive therapy. Coercive conduct is already illegal under laws against assault and forcible confinement. Many victims of conversion therapy actively sought it out as adults. The harm they suffered was as a result of the fraudulent claims of conversion therapy practitioners that sexual orientation can be changed.
Sexual behaviour is included in the definition to prevent evasion of the law. Some faith-based groups may claim that they are only assisting people with managing their sexual behaviours, but if you look more closely, you will find that they are still promoting the idea that sexual attraction can be modified. The proposed definition closes this loophole and then creates a specific exemption for legitimate faith-based activity in subsection (a).
The exception is limited in three ways. First, there is a distinction between teaching and counselling and therapy. Therapy may only be provided by a mental health professional and may not be used to change sexual orientation. Second, the sessions must be non-coercive. Third, there cannot be any claim that it is possible to change sexual orientation.
Subsection (b) creates an exemption for therapy to reduce or repress harmful or unlawful sexual behaviours. There are a range of sexual behaviours such as sexual activity involving minors which should be reduced or repressed regardless of whether they are same-sex or opposite-sex directed. While the exemption in subsection (a) applies only to teaching and counselling, this exemption allows for a full range of therapeutic techniques. However, it applies only to mental health professionals who belong to a profession regulated under provincial law. Most conversion therapy laws in the United States contain a similar exemption.
There is a good case for leaving out gender indentity entirely. The concept is ill defined both in science and law and raises completely different issues from same sex attraction. However, transgender identified people and others struggling with gender related issues have been subjected to the same kinds of abusive treatment as same-sex attracted people. Including gender identity in the basic definition ensures that trans identified people will be protected from harmful, amateur intervention. Subsection (c) then creates a broad exemption which will allow mental health professionals to treat gender dysphoria according to the best evidence based practices without being restricted to an affirming model of treatment.