A ‘conversion therapy’ ban would ‘breach human rights’

Roger Kiska, human rights lawyer and legal counsel to the Christian Legal Centre, explains why banning ‘conversion therapy’ would not be legal.

This is the executive summary of his full legal opinion on the topic, available to share and download.

In 2018, the government, for the first time, expressed its intention to legislate a ban on ‘conversion therapy’. On 29 October 2021, the government published its consultation document announcing how it intended to do so.

The plans included a new law to ban ‘talking conversion therapy’ for anyone who has not properly consented or who has been coerced. Those under the age of 18 would be unable to consent to such therapy.

However, the consultation failed to define exactly what ‘conversion therapy’ might entail or what would amount to coercion. Although assurances were made – for example that “casual conversations” and “private prayer” would not be considered as conversion therapy – it is unclear how these distinctions would be made.

The proposals also endorse the term ‘gender identity’, which has yet to be defined clearly or given effect in British law.

My legal opinion demonstrates that the new law addressing ‘talking conversion therapy’ would have significant legal and social consequences, particularly for those who have legal capacity and desire counselling, for their own reasons, to move away from same-sex attraction or behaviour, or to reconcile their gender identity with their biological sex.

This may include:

• people who are married and have children and wish to keep that intact
• clergy who wish to remain faithful to their religious vows
• people of faith who wish to live in accordance with their beliefs.

A ban could also affect practitioners caught up in an overly broad or ill-defined ban on ‘conversion therapy’, despite practising within a peer regulated and ethical framework. This could give rise to claims under Protocol 1, Article 1 of the European Convention on Human Rights [Convention] for interfering with otherwise lawful business activities.

One argument in favour of a ban is that ‘conversion therapy’ could violate Article 3 of the European Convention on Human Rights – and that the government may therefore be required to take action against conversion therapy, even at the expense of other human rights. However, practices that reach the level of inhumane and degrading treatment, thus violating Article 3, are already prohibited by existing criminal law. The opinion contends that Article 3 does not provide a justification for a ban on ordinary talking therapies.

The opinion further concludes that any proposed legislation is likely to be unlawful under the Human Rights Act 1998 and/or the Equality Act 2010.

By placing further restrictions on either those seeking counselling, who enjoy an Article 8 right to privacy and sexual self-determination, and/or by restricting the Article 9 rights of practitioners or clients to choose and manifest their own religious beliefs, any ban would likely be adjudicated under a strict scrutiny standard of review.

This means that the law’s limitations on Article 8 and 9 rights would have to be clearly defined, provide foreseeability to client and practitioner alike, and place precise limitations on the discretion of the public authority. Moreover, it would have to be shown that the new restrictions are necessary and are narrowly tailored to serve one of the legitimate aims identified in Articles 8 and 9 of the Convention.

Regulation rather than an outright ban is a more proportionate means of passing Convention scrutiny, so any proposed law will face high hurdles if it is to be deemed compatible with the Convention.

Any ban on ‘conversion therapy’ related to gender identity will likely face even greater obstacles, given the difficulty in defining gender identity.

This is most obvious in the government’s proposed ban on talking therapies for under-18s. If the government deems children, or their parents on their behalf, to have the capacity to consent to puberty suppression or the first stages of transitioning itself, it is difficult to see why they would not also have the capacity to obtain counselling to move away from these choices.

Lastly, a case for discrimination can be made under the Equality Act 2010 if a ban, once implemented, led to the disparate treatment of certain categories of people. ‘Ex-gay’ is recognised as a protected characteristic under the wider umbrella of sexual orientation and a broad ban on conversion therapy would likely impact such people more than those in other groups. A claim would need to show that the restrictions on receiving counselling are disproportionate to serving a legitimate aim or that the aim of the ban is in fact illegitimate.

For all these reasons, the proposed ban on ‘talking conversion therapy’ may prove unjustifiable on the grounds of human rights and equalities, rendering the legislation unworkable in practice.