Why Labour and SNP's plans to outlaw conversion therapy are so dangerous – Murdo Fraser
People who simply hold the view that individuals cannot change sex through self-identification may find themselves criminalised and even jailed
Last week the UK Government published its draft Bill for a ban on so-called “conversion therapy”, which would make it a criminal offence to attempt to change someone’s sexual orientation or transgender identity. The proposed penalties include an unlimited fine and prison sentences of up to five years.
On the face of it, there appears nothing wrong with this proposal. There have been horror stories in the past about gay young people being given electric shock treatment to try and turn them heterosexual. Surely it makes sense to criminalise this behaviour?
Delve deeper, and we find a host of problems with what is proposed. Firstly, it is hard to find a reliable evidence base that shows how widespread these practises are. Such evidence that exists is almost entirely anecdotal, and based on self-selecting surveys. Where this behaviour has been identified, it is isolated to tiny fringe religious groups.
And the reality is that many of the practices which people are concerned about are already illegal. Torturing or coercing any individual can currently be prosecuted, which calls into question why a new law is required at all.
Concerned parents at risk
The ban has nonetheless become a cause celebre for many LGBTQ+ campaign groups such as Stonewall, and this where the alarm bells start ringing. Because it will apply not just to individuals who are gay, but also those who are transgender. And so we are back in the whole highly contested field of gender ideology, and potentially criminalising those who simply hold to the view that individuals cannot change sex through self-identification.
The draft Bill provides that someone commits an offence if they pursue any conduct that has the intention of changing a person’s sexual orientation or transgender identity, or supressing a person’s expression of sexual orientation or transgender identity. The key difficulty is the term ‘transgender identity’ and how this relates, if at all, to biological sex.
Under the Bill, any parent who ‘misgenders’ their confused adolescent child, or raises concerns that they might be put down the road of irreversible medical interventions, could find themselves criminalised and potentially jailed. It raises huge concerns not just for parents but for medical professionals who are aware of the serious negative consequences of gender reassignment drugs and surgery.
There are major implications here for free speech. The whole issue of gender is a highly contested area of public debate, and it is an entirely legitimate viewpoint that “gender identity”, as distinct from biological sex, is an invented and fabricated concept. Someone expressing that view publicly in future could potentially face prosecution if an individual claiming to be trans made a complaint against them.
READ MORE: How Scotland's Christians face attacks on free speech and attempts to drive them out of politics
‘Traditional religious beliefs’
The proposed legislation also raises serious issues for religious groups. The expression of traditional religious beliefs could be criminalised by such a ban, with priests, ministers, or imams setting out their faith’s traditional teaching on sex and sexuality to individuals who are same-sex attracted potentially committing criminal offences.
Legal opinion from the eminent Scottish human rights lawyer Aidan O’Neill KC states that a ban would “criminalise, among other things, the open expression of such orthodox traditional religious beliefs that sexual activity is only permissible within the bounds of an opposite-sex marriage if said with a view to encouraging another to refrain from same-sex sexual behaviour”. A ban would criminalise mainstream pastoral work of many churches, mosques, synagogues and temples.
Other lawyers have highlighted serious human rights concerns with the proposed new law. Giving advice on Baroness Burt’s previous Private Member’s Bill on the topic, Jason Coppel KC stated: “Put shortly, the Bill criminalises expressions of personal conviction even if they are made without expressions of hatred or intolerance, or improper purpose or coercion, or abuse of power.” Both he and other leading legal figures have warned that such an approach would run contrary to the existent case law of the European Court of Human Rights, which protects free speech.
New attempt to introduce gender self-ID
It’s not surprising that groups such as the Free Speech Union have come out vigorously in opposition to the Bill, with the FSU running an online petition. And it is not just those who are concerned about human rights and freedoms of conscience and speech who are speaking out.
The same women’s groups who fought so hard against Scotland’s Gender Recognition Reform Bill are equally concerned about the implications of a conversion therapy ban, seeing this as an attempt to reintroduce self-ID of gender via the back door. It is an effort to criminalise those who do not sign up to the government-prescribed view of the relationship between sex and gender, and accept the principle of self-ID.
While the Westminster Bill, as introduced, only applies to England and Wales, the Scottish Government has already signalled its support for a change in the law in this area. Shortly before May’s Holyrood election, First Minister John Swinney stated in parliament that unless UK-wide legislation was proposed, then a specific Scottish bill would be introduced within the first parliamentary year.
It is possible that the Scottish Parliament could vote for a legislative consent motion to allow the Westminster Bill to apply equally to Scotland, but if this does not happen, we will look to the SNP’s Programme for Government in September, when parliament resumes after the summer recess, to see whether a Scotland-specific Bill will be introduced.
However matters progress at either Westminster or Holyrood, we can be assured of an enormous row. It seems that no one in government has learned the lessons of their disastrous attempt to introduce gender self-ID in the face of enormous public opposition. Who would bet against this new proposal ending up being unpopular once the voters wake up to what is at stake here?
Murdo Fraser is a Scottish Conservative MSP for Mid-Scotland and Fife
Comments
Want to join the conversation? Please or to comment on this article.