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Can Scottish parents be jailed for denying their child’s gender identity?

The complex interaction between sexuality and gender identity comes to the fore in this legislation. Credit: Getty

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

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Avro Lanc
Avro Lanc
6 months ago

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
I’d argue that trans activists use coercive behaviour with the intention of trying to change people’s gender identity. Let’s jail them all shall we? Fun game this isn’t it?

Champagne Socialist
Champagne Socialist
6 months ago
Reply to  Avro Lanc

No one cares what extreme right wing anti-trans bigots would argue.
Haven’t you realized that yet?

Steve Murray
Steve Murray
6 months ago

If that were the case, there would be no need to pass legislation.

Perhaps an injunction on you to “engage your brain before commenting” might be deemed ‘conversion therapy’. I’m happy for you to seek legal advice.

Avro Lanc
Avro Lanc
6 months ago

So not wanting children to be mutilated by a cult is now considered to be extreme right wing? I can live with that label.

Right-Wing Hippie
Right-Wing Hippie
6 months ago

You comment here all the time, so presumably you care.

Champagne Socialist
Champagne Socialist
6 months ago

Not in the slightest.
Just making sure that you understand that your opinions are stupid and irrelevant.

Charles Stanhope
Charles Stanhope
6 months ago
Reply to  Avro Lanc

Sterilise or castrate the parents. That should stop it

.permanently.

Champagne Socialist
Champagne Socialist
6 months ago

The usual thoughtful comment from Racist Grandpa!
You start drinking early today, old boy?

Benedict Waterson
Benedict Waterson
6 months ago

you’re a racist

Talia Perkins
Talia Perkins
6 months ago
Reply to  Avro Lanc

“I’d argue that trans activists use coercive behaviour with the intention of trying to change people’s gender identity.” <– Except you have no evidence of that.

Right-Wing Hippie
Right-Wing Hippie
6 months ago

So if a child approaches a teacher, telling them that she doesn’t like playing with dolls and would rather play with trucks, and the teacher tells the child that she is trans, would the teacher go to jail?

2 plus 2 equals 4
2 plus 2 equals 4
6 months ago

What do you think?

Right-Wing Hippie
Right-Wing Hippie
6 months ago

I’m not being paid to think.

Talia Perkins
Talia Perkins
6 months ago

Why pretend that has ever happened?

Jim Veenbaas
Jim Veenbaas
6 months ago

“This means that there may only be a very small sliver of conduct which is newly criminalised by these proposals.”

This will almost certainly be expanded over time. There are countless examples of narrow definitions expanded beyond recognition. Just look at Canada and its ever expanding list of people eligible for euthanasia.

2 plus 2 equals 4
2 plus 2 equals 4
6 months ago
Reply to  Jim Veenbaas

To be honest, if I had to live in a country where a man in his 40s can declare himself a 13 year old girl and have the legally protected right to compete in female age-group swimming competition and share their shower and changing facilities, I might well call it a day and ask to join the eligible list.

Jim Veenbaas
Jim Veenbaas
6 months ago

What’s even worse is the complete lack of coverage by the regime media. The story has only been covered by small independents like Rebel News.

Champagne Socialist
Champagne Socialist
6 months ago
Reply to  Jim Veenbaas

Rebel News?!?!? LOL!

Jim Veenbaas
Jim Veenbaas
6 months ago

Say what you will about Rebel News, but on what planet is it not news when a 53 year old man competes against teenage girls and changes in the same dressing room? Do you think this is a big nothing burger? Not worthy of news?

Champagne Socialist
Champagne Socialist
6 months ago
Reply to  Jim Veenbaas

How many people died? How many were hurt?

Jim Veenbaas
Jim Veenbaas
6 months ago

All good then. The virtuous and righteous people put the feelings of a 53 year old college prof ahead of a 13 year old girl. That’s where we’re at now and you apparently approve.

Talia Perkins
Talia Perkins
6 months ago
Reply to  Jim Veenbaas

Idiot, you know nothing real about it.

Jim Veenbaas
Jim Veenbaas
6 months ago
Reply to  Talia Perkins

Ideological zealots always reveal their inconsistencies. You have stated multiple times that we should respect the wishes of children when it comes to gender surgery. Yet you wave away the concerns of children when they say they are uncomfortable swimming against a 53 year old trans man, and sitting in the same change room. So what is it then? Do we respect the wishes of children or not?

Don’t be a coward and flag my comment so it’s sent to moderation. Answer my question.

Talia Perkins
Talia Perkins
6 months ago
Reply to  Jim Veenbaas

So now they are 53? Moron, the transgedner woman signed up for an open public competition open to all of any age and was assigned a time to swim randomly. She went in, changed, swam, changed again, and left. No more, no less.
It was not a “kids” competition.

Jim Veenbaas
Jim Veenbaas
6 months ago
Reply to  Talia Perkins

You think you’re on the side of angels. You’re not. You’re on the side of deluded ideologues who want to impose their narcissistic beliefs on all those around them.

Jonathan Kay, managing director of Quilette magazine and Toronto resident, is on the record stating that he was contacted by multiple parents to write about the incidents – it was more than one – and that he could not get anyone to go on the record. The parents who contacted him were afraid of the repercussions. Swimming Canada refused to comment as well.

After multiple incidents, parents did finally go on the record and Swimming Canada had to respond, and of course deflected responsibility by saying the facilities were responsible for the changing room rules.

This is all healthy of course – parents afraid to speak publicly until they felt there was no other choice. If you think it’s appropriate for a 53 year old man to swim against teenage girls – even if it’s an open age category – that’s fine by me. But it clearly made the girls and parents feel uncomfortable. Normal, healthy people would cast aside their own desires and defer to the children.

But this is a bridge too far for people who want to impose their narcissistic beliefs on others. It’s laughable and contemptible.

Talia Perkins
Talia Perkins
6 months ago
Reply to  Jim Veenbaas

There is nothing to cover. You are swallowing lies wholesale.

Talia Perkins
Talia Perkins
6 months ago

“if I had to live in a country where a man in his 40s can declare himself a 13 year old girl and have the legally protected right to compete in female age-group swimming competition and share their shower and changing facilities” <– No such thing has ever happened.

Right-Wing Hippie
Right-Wing Hippie
6 months ago
Reply to  Jim Veenbaas

That sounds discriminatory. Everyone should be eligible for euthanasia!

2 plus 2 equals 4
2 plus 2 equals 4
6 months ago

I may have misunderstood something here, but Scotland appears to be moving towards a legal position where:
1) A parent telling their daughter they are not a boy because they can’t actually change sex is the criminal act of “conversion therapy”.
But
2) A doctor performing a mastectomy on the same child because they “were born in the wrong body” isn’t “conversion therapy”.
Nothing much surprises me any more, but Jesus H. Christ that’s Fall of the Roman Empire level madness.

Julian Farrows
Julian Farrows
6 months ago

It’s pure unadulterated evil on level equal to that of the medical experiments performed on prisoners in concentration camps. Fascism in rainbow colors.

Talia Perkins
Talia Perkins
6 months ago
Reply to  Julian Farrows

Except you don’t know or care about anything real about it, you just want to virtue signaling that you think torturing 1 out of 150 children is better.

Champagne Socialist
Champagne Socialist
6 months ago

“I may have misunderstood something here”
This seems to be a recurring issue for you.

Jerry Carroll
Jerry Carroll
6 months ago

The Plonk Socialist understands all. Just ask him.

William Shaw
William Shaw
6 months ago

Troll alert!

Talia Perkins
Talia Perkins
6 months ago

“1) A parent telling their daughter they are not a boy because they can’t actually change sex is the criminal act of “conversion therapy”.” <– It is factually incorrect to say it, and it is a lie about a medical procedure. The sex of a person can be hanged just exactly as those who do say it can be.
“2) A doctor performing a mastectomy on the same child because they “were born in the wrong body” isn’t “conversion therapy”.” <– It is not, because nothing is being “converted”. “Conversion therapy” is term used to refer to the oppositional/aversive therapies used in the past to try to make transgender people be cisgender. Conversion therapy never worked, and by it’s inherently abusive nature produced much of the fabled 40%+ suicidality rate
“Nothing much surprises me any more, but Jesus H. Christ that’s Fall of the Roman Empire level madness.” <– It would seem so maybe to anyone stupid enough to have no idea what they are talking about and to open their mouth anyway.

Mike Michaels
Mike Michaels
6 months ago
Reply to  Talia Perkins

Iron law of woke projection wins again!

El Uro
El Uro
6 months ago
Reply to  Talia Perkins

It would seem so maybe to anyone stupid enough to have no idea what they are talking about and to open their mouth anyway.
If so, close your mouth, please 🙂

Alex Lekas
Alex Lekas
6 months ago

***this repeats the previous post, which was written as this one was held up in moderation***
Headlines no one ever expected to read. And by the way, can we stop with tripe like this: “The response to the consultation has been mixed, with some hailing it as a much-needed protection for vulnerable LGBT people.” 
This has nothing to do with L, G, or B people, all of whom are very clear about who and what they are. As always, the t**d in the punchbowl in the Ts and their insistence that one’s identity of the moment supersedes all other evidence before us.

Talia Perkins
Talia Perkins
6 months ago
Reply to  Alex Lekas

Imbecile, a person’s gender is formed while in utero and is not changeable after. It is not “of the moment”. Transgender people are no threat of any sort to anyone else, plainly you are out to be a threat to them.

UnHerd Reader
UnHerd Reader
6 months ago
Reply to  Talia Perkins

No. A person’s SEX is determined in utero (conception) and is not changeable after. Gender is a social construct. A fetus has no cognitive ability to know what their gender is. Nor does a two year old.

MJ Reid
MJ Reid
6 months ago
Reply to  Talia Perkins

You are wrong . Sex is set in the womb, either male or female. That is why in some countries female foetuses are aborted but male foetuses are carried to term. Girls cost their parents too much in some cultures. Gender has come to mean anything a person wants it to mean with no actual meaning in society.

Legislation needs to be set out in reality, not someone’s fantasy of what they feel on Thursday and the pronouns they want to use the following Monday. Adults can decide if they want to present as the opposite sex, their business, keep it to themsekves. Children are a different matter and if they can’t drink alcohol, smoke, drive a car, buy a littery ticket, they font hsve the caoacity to make informed decisions about presenting physically as the opposite sex.
You can carry on arguing that you are right and society is wrong, but…

Mike Michaels
Mike Michaels
6 months ago
Reply to  Talia Perkins

Words have gender, humans have sex.

Alex Lekas
Alex Lekas
6 months ago

Headlines no one ever expected to read. And by the way, can we stop with tripe like this: “The response to the consultation has been mixed, with some hailing it as a much-needed protection for vulnerable LGBT people.” 
This has nothing to do with L, G, or B people, all of whom are very clear about who and what they are. As always, it comes back to the Ts and their insistence that one’s identity of the moment supersedes all other evidence before us.

Champagne Socialist
Champagne Socialist
6 months ago
Reply to  Alex Lekas

Don’t pretend that you don’t hate gay people too. We know exactly how you bigots feel.

Alex Lekas
Alex Lekas
6 months ago

Speaking of bigots, the sock puppet showed up with his usual disdain for anyone like himself. If you’re going to continue trolling, at least be original about it. Try posting something clever instead of the usual boilerplate talking points you’re told to parrot.

Julian Farrows
Julian Farrows
6 months ago

To be fair, you come across as the most intolerant bigoted person here. Your comments give off lots of heat, but little light.
Here are some resources that might help you:
https://www.bpl.org/kids-learn/netiquette-for-kids/
Otherwise keep calm and move on.

Champagne Socialist
Champagne Socialist
6 months ago
Reply to  Julian Farrows

Does it make you sad when I point out that you are a bigot?

Arkadian Arkadian
Arkadian Arkadian
6 months ago
Reply to  Alex Lekas

And what does LGBT mean anyway?

Talia Perkins
Talia Perkins
6 months ago
Reply to  Alex Lekas

The thing is they aren’t wrong. You succeed with the T, you’ll go on to criminalize and abuse the G and the L too. There is no logical dividing point between your explicit hatred of people who are T, and people in other minorities of sexual dimorphism — and there’s nothing logical about it in the first place. You hate T people for no reason from the get go.

Melissa Martin
Melissa Martin
6 months ago

Have I understood this correctly? Raping a lesbian to ‘fix’ her gayness will carry a higher sentence than raping a heterosexual women to ‘fix’ her frigidity? Why?

Jerry Carroll
Jerry Carroll
6 months ago

It is a measure of the disintegration of society that this kind of hair-splitting is taken seriously.

Talia Perkins
Talia Perkins
6 months ago
Reply to  Jerry Carroll

There never was any integration as you pretend there was. There is no hivemind to humanity, we are each of us only individuals, and have only ever been.

Derek Bryce
Derek Bryce
6 months ago

Sorry if I’m missing something fundamental but I’m confused by the wording here:

’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’ (emphasis mine).

Was this a typo? Was the NO meant to be in there, because this sounds like a protection FOR gender clinicians trying to trans the gay away.

Talia Perkins
Talia Perkins
6 months ago
Reply to  Derek Bryce

There is no such thing as trying to “trans the gay away” except as a lie told by people who want to hide their support for exterminating transgender people. A person’s sexual orientation, whatever variety it is, is fixed by in utero development, the same as their gender is.

UnHerd Reader
UnHerd Reader
6 months ago
Reply to  Talia Perkins

Many of the employees at the Tavistock clinic, including doctors and psychologists, have said that kids who were same sex attracted were sent down the assembly line to change their sex (which is impossible). There was also a joke amongst the employees that “they were transing the gay away.” You’re right, sexuality is determined in utero, but we’re talking about confused children here, almost all of who have multiple mental illnesses. If the child mentions that maybe they are the opposite sex, they are automatically affirmed. In some state in the US, therapists can lose their licenses if they don’t immediately affirm the child. These kids don’t have a chance. There is a picture of a girl, her mother and the doctor who had removed her breasts. The girl has self-inflected scars and fresh cuts all over her body, yet she was considered “healthy” enough to have the surgery. She was also obese, but the doctor, S. Gallagher of Florida, was one of the only doctors in the country to perform elective surgeries on obese people, which extremely dangerous. But, hey, she will probably kill her self if she doesn’t get her way, right?

UnHerd Reader
UnHerd Reader
6 months ago
Reply to  Talia Perkins

How is something such as gender, which is only ever meant to be applied to words, not people, “fixed by in utero development” exactly?
Gender in the way it is now being applied to people is a completely man-made construct. Actually, it was made famous and “confirmed” by one man – John Money.

UnHerd Reader
UnHerd Reader
6 months ago
Reply to  Derek Bryce

I was banned from Push Sqaure forums for simply stating that we are being indoctrinated into accepting the gender ideology via all major forms of media, especially gaming. I also simply stated that a biological man can apparentky give birth according to crazy ideology I was referring to. Not only this, I was also perma-banned from PSN (both Push Square and PSN are Sony-owned) resulting in permanent loss of over ÂŁ5,000 worth of games on my account bought digitally.

To further add to this, I received a letter the other week from Police Scotland declaring I have been reported by a large social media presence and online forum provider (no doubt Push Square themselves) and am now under investigation for the criminal act of hate speech and may potentially be eligible for criminal charges! WT ACTUAL F!?

Talia Perkins
Talia Perkins
6 months ago

If any parents are to be afforded the power to prohibit their child expressing their inborn gender, then a child should be able to recover damages from the parents who do so, should the child choose it once an adult.
It’s only fair.

El Uro
El Uro
6 months ago

I was banned twice in the last two days, once by a Facebook robot, the second time on another site manually and forever. Both times for the statement that a man who has changed his gender to female still remains a man.
As you can see, they haven’t imprisoned us yet, they just cut off our virtual tongues.

UnHerd Reader
UnHerd Reader
6 months ago
Reply to  El Uro

I was

The Sane Voice Within
The Sane Voice Within
6 months ago
Reply to  El Uro

I was banned from Push Sqaure forums for simply stating that we are being indoctrinated into accepting the gender ideology via all major forms of media, especially gaming. I also simply stated that a biological man can apparentky give birth according to crazy ideology I was referring to. Not only this, I was also perma-banned from PSN (both Push Square and PSN are Sony-owned) resulting in permanent loss of over ÂŁ5,000 worth of games on my account bought digitally.

To further add to this, I received a letter the other week from Police Scotland declaring I have been reported by a large social media presence and online forum provider (no doubt Push Square themselves) and am now under investigation for the criminal act of hate speech and may potentially be eligible for criminal charges! WT ACTUAL F!?

William Shaw
William Shaw
6 months ago

If the Scots continue to vote for lunatics they deserve their fate.