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Mon, 26 February 2024

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Experience shows producing a workable 'conversion therapy' ban is impossible

Placards at a protest demanding a ban on conversion therapy (Zefrog / Alamy Stock Photo)

4 min read

On Friday the House of Lords will debate Baroness Burt’s Private Member’s Bill to ban so-called conversion therapy. Given the complexity of this issue, it is surprising how short the bill is – just one substantive clause.

The UK government has been trying to come up with a workable bill for five years. If they cannot manage the job, with all the resources of government at their disposal, we must wonder whether Baroness Burt and the Lib Dems can really pull it off.

For instruction, we need look no further than Scotland. The disastrous public reaction to the Scottish government’s proposals to ban conversion therapy suggest that it doesn’t matter how long and carefully considered the bill is, a ban on conversion therapy is always going to be very, very controversial.

For all their enthusiasm, it does not appear that the Liberal Democrats have squared the circle and produced a workable conversion therapy ban

The announcement of the proposals, which include 12 draft bill clauses and an 86-page consultation document, led to days of hostile commentary in both the old and new media. One major national newspaper splashed the front-page headline “Parents who refuse children gender change face seven years in jail”. Pretty terrifying.

But this, I’m afraid, is what ‘banning conversion therapy’ now means. It’s not about protecting gay and trans people from abuse because, thankfully, abuse is already illegal. It’s about punishing speech that does not comply with Stonewall orthodoxy. And whether you are the parent of a gender-confused child or the minister of a traditional church, the ‘conversion therapy ban’ has you in its sights.

Under the proposals, to be arrested for conversion therapy in Scotland the police will have to suspect you of "coercive behaviour". Sounds fair enough, until you understand that the Scottish government regards it as coercive to control what a child wears or who they socialise with. The public in Scotland have reacted angrily to the idea of parents facing prosecution for not going along with a confused child’s demands to dress as the opposite sex or attend a ‘trans’ activist group.

The Scottish government, caught like a rabbit in the headlights of this juggernaut of public outrage, have gone on the defensive. They claim “general parental direction, guidance, controls and restrictions” will not be caught. But you will look in vain for anything to that effect in the 12 clauses of proposed legislative text.

The other terrifyingly vague threshold in the legislation is the ‘harm’ test. If a complainant gives evidence in court that what you said caused them ‘distress’ then that test is passed. Distress is a virtually non-existent threshold because it is subjective and self-reported. Your defence lawyer is not going to bother trying to prove someone wasn’t really distressed by what you said. They say they are distressed, then they are distressed. End of story.

The final test of this appalling new criminal offence is that you intended to suppress the other person’s identity. In a climate where undergraduates can refuse to attend classes taught by a gender critical lecturer because they feel ‘oppressed’, this also seems like an entirely subjective threshold. The parent who does not go along with a child’s wish to present as the opposite sex is, in the view of trans activists, suppressing the child’s gender identity. Our police and judiciary have spent years being trained by these same activists, so we can expect them to take the same view.

Marion Calder from the campaign group For Women Scotland said parents of gender-questioning children “should be terrified looking at the proposals”.

It’s so bad that some SNP MSPs have already threatened to rebel. Labour MSPs are looking decidedly lukewarm about the plans, and I expect most of my Conservative colleagues will oppose them. The parliamentary arithmetic is already looking difficult for the Scottish government and the proposals aren’t even four weeks old. A few more months of this kind of scrutiny and it might just become obvious, even to the SNP, that the plans are unworkable.

Which brings us back to Baroness Burt’s bill. Read its one main clause and you won’t even find a ‘coercion’ test or a ‘harm’ test. The threshold is even lower than the disastrous Scottish proposals. A leading human rights KC has provided a devastating analysis of Lady Burt’s bill, observing that “no attempt has been made to craft exemptions or exceptions”. It criminalises expressions of personal conviction without requiring any proof of hatred, intolerance or coercion. He concludes that the bill is contrary to the European Convention on Human Rights.

For all their enthusiasm, it does not appear that the Liberal Democrats have squared the circle and produced a workable conversion therapy ban. I suspect if they’d asked my colleagues in government they might have told them that it’s an impossible task.

Lord Jackson of Peterborough is a Conservative peer

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