The United Kingdom Draft Conversion Practices Bill

A closer look at what it says

Photo by ian kelsall on Unsplash

The Labour Government in the United Kingdom has fulfilled its campaign promise by publishing a bill to ban “conversion practices” in England and Wales. It has also published a set of explanatory notes.

Reaction to the draft bill has been mixed. The government press release includes statements of support from Dr. Hilary Cass, Simon Blake, CEO of Stonewall, Professor Subodh Dave, President of the Royal College of Psychiatrists, and Dame Nicole Jacobs, Domestic Abuse Commissioner for England and Wales. Others were less impressed. Stella O’Malley of Genspect describes the draft bill as “a Trojan horse for trans extremism.” The Free Speech Union believes that the bill will restrict conversations by parents, therapists and religious leaders and is sponsoring a petition against the bill. On the other hand, QueerAF says the draft bill has too many loopholes and will be ineffective.

Conversion practice bans exist throughout the world. Some recent examples are laws in Canada, New Zealand, New South Wales, Victoria, Colorado[1] and Massachusetts. These laws vary in scope, but they share some common features. The draft bill follows the general pattern of other laws but does have some significant differences.

This is not a legal opinion on the effect of the bill. While Canadian law uses the same principles of statutory interpretation as English law, the two systems have since diverged in many ways. What I am attempting to provide is simply a common sense reading based on the plain meaning of the language in the bill as a starting point for discussion.

Scope

The bill creates offences of carrying out an abusive conversion practice and of encouraging or assisting an abusive conversion practice performed outside England and Wales. The penalty may be an unlimited fine or imprisonment for up to five years. It also gives courts the power to make civil conversion practice protection orders. The law applies to everyone, including medical and mental health professionals, social workers, teachers, religious leaders and parents.

Definition of Conversion Practice

The definition of “conversion practice” in the UK bill differs in some significant ways from definitions in similar laws elsewhere in the world. This is what the bill says:

(2) “Conversion practice” means (subject to subsection (3)) any conduct carried out by a person towards an individual with the intention of—

(a) causing the individual—

(i) to have or not to have,

(ii) to believe that they have or do not have,

a sexual orientation or a particular sexual orientation; or

· (b) causing the individual—

(i) to have or not to have,

(ii) to believe that they have or do not have,

a transgender identity or a particular transgender identity.

The most notable difference between the draft bill and most other conversion therapy laws is that the term “gender identity” has been replaced with “transgender identity.” The United Kingdom has never recognized the concept of gender identity in law. I argued in a recent article that the term gender identity has no place in a penal statute. Fundamental justice requires that criminal laws specify clearly what they prohibit. Gender identity does not have any agreed meaning in medicine, psychology or law. Attempts to define gender identity are usually partly circular or rely on social stereotypes and unfalsifiable personal feelings. The substitution of the term transgender identity is not an improvement.

There is no definition of transgender identity in the draft bill, but there is a list of things it could include:

(8) The circumstances in which an individual has a transgender identity include (but are not limited to) where—

(a) the individual is undergoing, is proposing to undergo or has undergone a process of gender reassignment,

(b) the individual is transsexual,

(c) the individual identifies as neither male nor female or as not solely male or female.

The term “gender reassignment” is defined in Section 7 of the Equality Act, 2010 as follows:

(1) A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.

(2) A reference to a transsexual person is a reference to a person who has the protected characteristic of gender reassignment.

(3) In relation to the protected characteristic of gender reassignment—

(a) a reference to a person who has a particular protected characteristic is a reference to a transsexual person;

(b) a reference to persons who share a protected characteristic is a reference to transsexual persons.

There is some inconsistency between the two definitions. The Equality Act treats transsexual and synonymous with the characteristic of gender reassignment. However, in the draft bill gender reassignment and being transsexual are treated as separate concepts. This implies that they mean different things. Furthermore, clause (c) of the draft bill refers to individuals who identify as partly male or female or neither male nor female. Presumably, this is meant to cover persons who claim a non-binary identity, which is not generally included in the traditional concept of a transsexual. The intention of the draft bill seems to be to incorporate the concept of gender identity without using the actual term.

Fortunately, the draft bill does not follow the lead of Canada, New Zealand, Iceland and some American states which have included gender expression in their conversion practices law.

Many conversion therapy laws include attempts to repress sexual behaviour directed towards the same sex in their definition of conversion therapy, but the draft bill does not. This is a significant exclusion because many religious counselors claim that their practices are not intended to eliminate or change same-sex attraction, but merely to support individuals in resisting this attraction. The draft bill leaves a loophole which could allow for the continuation of some of the abusive practices which have been directed against gays and lesbians. Of course, there are some sexual behaviours, such as those involving minors, which should be repressed and most conversion practices laws which include sexual behaviour provide an exemption for therapy aimed at repressing harmful or unlawful behaviour.

One feature of the draft bill that is not found in any of the other conversion practices legislation I have seen is the reference to changing a person’s belief that they have or do not have a particular sexual orientation or transgender identity. The purpose of this language is difficult to understand. It assumes that a person may believe that they have a sexual orientation or transgender identity which differs from their true sexual orientation or gender identity. Indoctrinating a person into a false belief is certainly harmful, but if a person misunderstands their sexual orientation or transgender identity, it is hard to understand why guiding them to a better self understanding should be a crime.

Another feature of the draft bill is that it is bi-directional. This means that it could, in theory, be used to prosecute people like teachers and online influencers who attempt to persuade gender-confused young people that they do have a transgender identity.

The Healthcare Exemption

The draft bill provides that conduct that would otherwise amount to a conversion practice is permitted if it is carried out in the course of providing health care services under the accused “acts in a way that falls far below the standards reasonably expected of a person in their position.”

There is a definition of “healthcare services” which reads:

(9) In subsection (3) “health care services” means—

(a) all forms of health care services provided for individuals, whether

relating to physical or mental health, and

(b) procedures that are similar to forms of medical or surgical care but are

not provided in connection with a medical condition.

Clause (b) of the definition seems to be an acknowledgement of the argument that so-called gender affirming procedures should not be considered healthcare because the desire for medical transition is not a medical condition.

This provision appears to provide broad protection for healthcare providers working with gender dysphoric people. This goes beyond the exemptions found in many other laws, which are limited to neutral exploratory therapy. The unknown factor here is the meaning that the courts will give to the phrase “the standards reasonably expected of a person in their position.” This phrase is also found in the law of professional negligence where the courts have held that a medical practitioner or other professional is expected to follow the standards of a reasonably competent member of their profession. The concern here is that courts will consider the official policies of professional organizations in assessing what is reasonable behavior. Most medical and mental health organizations in the UK have adopted a Memorandum of Understanding on Conversion Therapy that opposes, without clearly defining, conversion therapy. There are many professionals who would be prepared to give expert evidence that any questioning of an individual’s desire to transition amounts to conversion therapy. However, there are also many eminent professionals who hold opposing views. Furthermore, the use of the term “far below” suggests that the test for a criminal conviction should be much harder to meet than the test for a civil claim.

Abusive Conversion Practices and Harm

The actual charging sections of the bill prohibits abusive conversion practices. The question of whether a conversion practice amounts to an abuse is a question of fact. The court is directed to consider whether it involves any of the following:

(a) words or behaviour of a sexual nature;

(b) violent or threatening words or behaviour;

(c) controlling or coercive words or behaviour;

(d) use of economic pressure;

(e) use of psychological or emotional pressure.

Some of this language is cause for concern. For example, could a parent or spouse who refuses to finance a new wardrobe, hormones or medical procedures be exerting economic pressure?

It is also necessary to prove that the alleged conversion practice causes:

(a) serious harm to the individual’s physical or mental health, or (b) serious alarm or distress to the individual which has a substantial adverse effect on their usual day-to-day activities.

The test of serious harm to physical or mental health will be difficult to satisfy but the alternative ground of serious alarm or distress is much less stringent and could be a concern. Baroness Cash said in a Lords: “This represents an average day for most teenagers when one is parenting them, as I am.”

Assessment

The draft bill reads as more of an exercise in virtue signalling than serious lawmaking. The government can say that it has fulfilled its campaign promise, but the bill has so many qualifications and exemptions that the chance that anyone will be convicted under it is very low. However, actual convictions are not necessary. Even an unsuccessful prosecution can impose a substantial cost on a professional who must deal with reputational damage, time away from their practice and legal costs. Dennis Kavanagh has pointed out that the draft bill allows for private prosecutions, which opens the door for activist groups to use the bill against professionals who question the gender affirming model. Sarah Phillimore is concerned about how the draft bill will interact with the child protection system.

Fortunately, the draft bill that will be studied by a joint committee of the House of Commons and the House of Lords and may be revised before it is formally introduced in Parliament. The political situation in the UK is very different from Canada in 2021, when a seriously flawed conversion therapy bill was waved through Parliament by unanimous consent. There will be extensive debate and, while the bill is unlikely to be withdrawn or defeated, it could be substantially changed.

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[1] The Colorado legislature recently re-enacted its conversion therapy law, which was challenged in the Supreme Court decision of Chiles v. Salazar in an attempt to make it “viewpoint neutral.”