Ending conversion practices – Consultation guidance

The Scottish Government wants to know what you think about its proposed new law to end conversion practices in Scotland . This is our Quick and Easy Guide to filling out the consultation form. The deadline for responding is 11:59pm on Tuesday 2nd April 2024.

In a nutshell this proposal does not define its key terms, provides scant evidence of conversion practices, and embeds the concept of “gender identity” into law – for all of us, not just those who consider themselves transgender. It could see parents jailed for seven years if they try to persuade their child not to change gender, or deny access to puberty halting drugs.

The Government’s 86 page consultation document can be read here. For background on the many problems with the proposed law, the following articles give a good overview:

• Susan Dalgety, The Scotsman: SNP’s proposed conversion therapy ban could criminalise parents who try to persuade their children they don’t need to change gender
• Mandy Rhodes, Holyrood: If we learned anything from the GRR debacle, it’s that good law needs robust debate
• Alex Massie, The Times: Holyrood in another fine mess over gender laws 
• Michael Foran: Can Scottish parents be jailed for denying their child’s gender identity?
• Dennis Kavanagh: The disaster of the Scottish conversion therapy offence in practice
• Bayswater Support: Twitter thread on parents and gender affirming treatments
• Malcolm Clark: Twitter thread on the missing evidence and Twitter thread on the great conversion therapy ban cover up
• Wings Over Scotland: When they come for your children

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Let’s get started filling out the consultation…

You don’t have to respond to every question, but we recommend you at least answer questions 1 – 10 and questions 17/18 and 20/21. We have given suggested answers but please rephrase or add to them as you wish. It’s also fine to go through the questions selecting the options for ‘do not support/do not agree’ where appropriate, without writing any text or explanations. You need to fill out the “About You” page at the end for your response to be accepted.

To get to the first question, scroll down the consultation web page to “Defining conversion practices for this legislation”. The questions are grouped in sections, so once you’ve completed one section, click on the link to the next one to continue.

Questions 1 – 10

On the page “Defining conversion practices for this legislation”
Question 1: No
Question 2: There are problems with definitions. Gender identity is a contested belief for which there is no evidence and no legal definition. Embedding into law such a concept may interfere with Equality Act protections for understanding sex as binary and immutable. Conversion practices are ill-defined and the poorly designed survey by the UK Government Equalities Office also failed to define it. It is unclear what the ‘Q+’ represents and no evidence is provided for their inclusion. Intersex represents a genetic condition and it is absurd to think it belongs in the category of people susceptible to conversion therapy. The evidence base for medical intervention on people who claim a transgender identity is low and puberty blockers are increasingly restricted in many countries, most recently in England. This proposed law would contravene medical best practice and the findings in the interim Cass report, placing parents and doctors in an impossible position, facing criminal sanctions for helping a child reconcile with their body instead of affirming a state taught belief and placing a child on a life-long medical pathway with significant associated health risks.

On the page “Suppression”
Question 3: It should not be covered
Question 4: This proposal is widely drawn yet contains no definition or guidance as to what would constitute suppression. Parents restricting inappropriate clothing choices by their teenagers or doctors telling a girl not to wear a damaging breast binder may be criminalised. The Government’s own directive on tackling toxic masculinity may well fall foul of this law by suppressing the expression of identity by heterosexual boys to listen to individuals like Andrew Tate or to watch porn. Any action taken other than affirmation could be defined as suppression, resulting in the prosecution of parents for failing to adhere to a belief, or simply by acting to ensure the health or safety of their child.

On the page “Overview of proposals”
Question 5: Do not support
Question 6: Existing criminal law already protects against harmful practices which constitute degrading treatment or psychological suffering of others, with civil remedies also available. The Equality Act covers those with the protected characteristics of sexual orientation and gender reassignment in a wide range of circumstances from unwanted conduct which creates an “intimidating, hostile, degrading, humiliating or offensive environment”. Extending laws on a very weak evidence basis is unwise. There is no justification for the proposed statutory aggravator to extend the provisions in the Hate Crime and Public Order (Scotland) Act to parental actions which are motivated by genuine concern. The Civil Protection Order proposals open up the possibility that parents, teachers, medical professionals or clerics could be targeted even in the absence of any crime and similar laws elsewhere have been used to remove children from their family. It is a massive and unnecessary over-reach by the Government and its heavily funded yet unaccountable third sector organisations and may breach Article 8 of the Human Rights Act.

On the page “Offence of engaging in conversion practices: the provision of a service”
Question 7: Do not support
Question 8: This proposal would prosecute medical and counselling services who advertise or provide a service which follows a legitimate watchful waiting approach for gender distressed children, with a preferred outcome of reconciling with their body and desisting from believing in gender identity. The consultation document claims it is not possible to “remedy” or “bring about such a change” in gender confused children. The opposite is true with the vast majority of such children reconciling with their sex as they mature, but only if not affirmed and locked into a medical pathway of experimental drugs and surgery.

On the page “Offence of engaging in conversion practices: coercive course of behaviour”
Question 9: Do not support
Question 10: The definition of coercion is a clear challenge to parental authority and responsibilities. Parents and schools do control the day to day activities of children in order to keep them safe and this proposal would likely fall foul of the Article 8 right to a private and family life.

Questions 11 – 22

On the page “Offence of engaging in conversion practices: harm”
Question 11: Do not agree
Question 12: Fear, alarm or distress is a low threshold for a prosecution with significant punishment attached and at the opposite end of the scale from the claim that this proposed law will protect against torture. Distress is highly subjective and is always going to be present in children who are gender distressed, making any interaction at all a possible criminal offence.

On the page “Offence of engaging in conversion practices: defence of reasonableness”
Question 13: Do not agree
Question 14: The burden of proof is the wrong way round. The prosecutor should be required to prove criminality rather than parents having to prove that the exercising of parental rights or best medical practice is ‘reasonable’.

On the page “Offence of engaging in conversion practices: proposed penalty”
Question 15: Do not agree
Question 16: Serious offences such as those which include violence or torture are already criminal and attract high tariffs. The possibility that a parent could face a seven year prison sentence for refusing to let a child wear a binder or a medic face similar for exploring the deeper reasons why an abused child might reject her sexed body, is truly appalling.

On the page “Criminal offences – additional considerations”
Question 17: No
Question 18: Adults in Scotland are, and should be, deemed capable of making decisions unless there is substantial evidence of cognitive inability or grounds for believing they are incapable of giving consent.
Question 19: Not answered

On the page “Removing a person from Scotland for conversion practices”
Question 20: Do not support
Question 21: The consultation gives extremely weak evidence that this is happening and fails to consider the harm caused by clinicians who have referred over 50 girls under the age of 18 to England for double mastectomies. The same clinicians acknowledge girls are over-represented at Sandyford gender clinic and are likely to be autistic or same-sex attracted. This is conversion to a transgender identity yet is ignored by the proposals.
Question 22: Do not support
Question 23: Not answered

Questions 24 – 38

On the page “Conversion practices as an aggravating factor for existing offences”
Question 24: Do not support
Question 25: The consultation document claims a new form of aggravation over and above that provided by the Hate Crime and Public Order (Scotland) Act is necessary in order to cover offences motivated by genuine concern and a wish to help an individual. It is beyond incredible that a loving parent acting with the best of intentions and following medical best practice, for example refusing to allow a teenage girl to wear a damaging breast binder, could be imprisoned by this over-reach.

On the page “Consideration of Convention Rights”
Question 26: This proposed law would undoubtedly breach Article 8 rights to a private and family life. It may also breach Article 6 as the right to a fair trial is undermined by the assumption that gender identity is real and opinions to the contrary are, counter to UK law, potentially criminal. The proposed legislation almost certainly contravenes Articles 9 and 10 covering freedom of belief and expression.
Question 27: Do not support
Question 28: The Civil Protection Order proposals opens up the possibility that parents, teachers, medical professionals or clerics could be targeted even in the absence of any crime and similar laws elsewhere have been used to remove children from their family. It is a massive and unnecessary over-reach by the Government and its heavily funded yet unaccountable third sector organisations and may breach Article 8 of the Human Rights Act. Organisations and websites providing information based on biological reality and the harms of puberty blockers and cross-sex hormones are likely to be shut down or subject to such Orders.

On the page “A new civil order relating to conversion practices: considerations”
Question 29: Disagree
Question 30: The proposal that support organisations can apply for such an Order would open the door to activist groups intervening against legitimate parental decisions. Many of these groups are lobbyists, heavily funded by the state and completely unaccountable. It is extremely likely these powers will be used to threaten parents with police action for failure to subscribe to their ideological belief, whether or not any conversion practice has taken place.

On the page “A new civil order relating to conversion practices: additional considerations”
Question 31: We have no doubt this power would be misused by transactivist groups who see any action other than full affirmation as conversion therapy.

On the page “Impact assessments”
Question 32: Yes, in respect of sex, sexual orientation, disability, and belief.
Sex: There has been a recent and rapid rise in the number of girls claiming a transgender identity. Clinicians have shown little curiosity in exploring the reasons behind this and the proposed law will make it more difficult for these girls to access proper exploratory and non-affirmative therapy.
Sexual orientation: The most common outcome of a watchful waiting position is the realisation by gender distressed children that they are homosexual. The affirmation-only approach of the proposed law will deny such children the chance to explore or accept their sexual orientation.
Disability: The Cass review found that around a third of children attending gender clinics are autistic and many more have other mental health co-morbidities or eating disorders. The affirmation-only approach of the proposed law causes these issues to be overlooked and left untreated.
Belief: The right to believe sex is binary and immutable (and therefore reject gender identity theory) was established in the Forstater ruling. Anyone, including parents, who holds such gender critical beliefs and refuses to affirm or allow a child to transition will be caught by this draconian law. It is likely people will be unable to exercise their Equality Act rights to express this belief without being accused of conversion practices.
Question 33: The proposed law will override and impact on several Articles, particularly Article 5 which provides that State Parties must “respect the responsibilities, rights and duties of parents … to provide in a manner consistent with the evolving capacity of the child appropriate direction and guidance in the exercise by the child of the rights recognised in the present Convention”, and Article 18 which states: “Parents … have the primary responsibility for the upbringing and development of their child: the best interests of the child will be their basic concern.”

Depending on your personal experiences and circumstances, you may want to reply to the other Questions 34 – 38.

On the page “About you”, you have to fill in all the required fields. Your email address will be kept confidential, and if you select “Publish response only (without name)” or “Do not publish response”, your name will also be kept confidential.

Finally, on the page “Evaluation” there is a question about what you think of the consultation process.

That’s it!  Make sure you click “Finish” at the bottom of the main page.