January 12, 2024 - 3:00pm

This week the Scottish government announced a consultation on a piece of draft legislation banning conversion practices. These entail either changing or suppressing someone’s (or their perception of their) sexual orientation or gender identity. If passed in its current form, it will be the first time in the UK that gender identity would be defined in primary legislation.  

The response to the consultation has been mixed, with some hailing it as a much-needed protection for vulnerable LGBT people. Others, however, have voiced concerns that this will lead to the criminalisation of talk-therapy or even of parents discussing sexuality and gender identity with their children. That a parent could be jailed for up to seven years for breaking this law has added to those concerns. So which is it? 

As part of the new law, courts will have to account for when an existing crime such as assault is motivated by an attempt to change or suppress a person’s sexual orientation or gender identity. The attempt to “correctively rape” a lesbian is criminal, but only on account of the rape, not the attempt to “correct” her homosexuality. The proposals would allow for a harsher sentence when a crime is motivated by this kind of intention.

But it also seeks to introduce two new criminal offences of causing physical or psychological harm (including distress) with the intention of changing someone’s sexual orientation or gender identity in either the provision of services such as talk-therapy or as a part of a pattern of coercive behaviour. For example, attempts to pressure a lesbian to accept trans women as potential sexual partners would likely constitute coercive behaviour because it is intended to change her sexual orientation and will likely cause distress. 

Examples of what could constitute coercive behaviour including controlling someone’s day-to-day activities, pressuring a person to act in a particular way, or punishing that person. In the context of adults, this is abusive. But from another perspective, much of what is classed as coercive behaviour looks an awful lot like parenting. Add to this the possibility that this parenting causes a child distress and the intention of the parent to change or suppress sexual orientation or gender identity and you have made out the elements of this new crime.

On the face of it, we might think that attempts to change or suppress sexual orientation or gender identity is inherently abusive. But it is here where the complex interaction between sexuality and gender identity comes to the fore.  

We know that some staff in gender clinics have commented that at times gender identity affirmation “feels like conversion therapy for gay children”. The concern here is that vulnerable children who are struggling with both sexual orientation and gender identity may have internalised homophobia and therefore would prefer to be a straight boy rather than a lesbian girl. There has been a hotly contested debate about whether a cavalier attitude towards affirming gender transition may inadvertently enable or encourage attempts to “trans away the gay”.  

The Scottish government is clearly alive to this concern because it has included a specific exemption to ensure that no attempts to change sexual orientation that occurs in the course of a gender clinic will be classed as conversion therapy.  

The position is less certain for the parents who are faced with a female teenage child who has previously expressed same-sex attraction and who now identifies as a straight boy. Parents who try to encourage their child to accept a lesbian identity as normal and nothing to be ashamed of may be guilty of conversion therapy under these proposals. This would carry with it a maximum sentence of seven years in prison.  

Thankfully there are several defences and exceptions set out in the proposals, including a general defence of reasonableness and specific carve-outs for people to express their beliefs that sex is real and cannot be changed, so long as they do not attempt to personalise those statements in relation to a specific individual.  

This means that there may only be a very small sliver of conduct which is newly criminalised by these proposals. Nevertheless, there is a very real concern that this would create a chilling effect that can be weaponised against concerned parents who are desperately trying to act in the best interests of their children. These proposals should be considered very carefully, both for what they will actually do and for the effect they are likely to cause outside of the strict confines of the legal rules.  

Michael Foran is Senior Fellow, Policy Exchange and Lecturer in Public Law, University of Glasgow