MP repeatedly proposes flawed conversion therapy amendments

Author of the landmark report on NHS gender services, Dr Hilary Cass, recently admitted “I just don’t know how you would define” a conversion therapy law. Dr Cass has good reason to say this. Even the politicians who have committed themselves to a ban can’t find a way to do it.

For the last few years, the Westminster Government has been trying to craft a conversion therapy law. But for all their efforts, they have failed to find a way of drafting legislation that does not risk interfering with basic liberties.

It is perhaps no surprise that even the proposal’s most prominent supporters among MPs can’t figure it out either.

On 15 May, MPs are expected to start debating Report Stage amendments to the Criminal Justice Bill. This includes a ‘conversion therapy’ amendment, New Clause 58 (NC58), tabled by Alicia Kearns MP. Ms Kearns, you may remember, was the MP who publicly labelled colleagues concerned that a ban could impinge on religious freedoms, “bigots”. Read our blog here.

But what you may not realise is that NC58 is actually her fifth attempt to draft an amendment. Her previous attempt (NC42) lasted just two weeks before it was withdrawn and replaced. Before that, we had NC14, NC30 and NC37. With such unpredictability, who knows how many more versions there will be before the debate actually begins…

NC58 defines “conversion practices” as attempting to “change, replace or negate” an individual’s sexual orientation or transgender identity. This replaces an earlier definition that also included the word “suppress”.

At one stage, ‘suppression’ was heralded as being part of the ‘gold-standard’ conversion therapy ban in operation in the Australian State of Victoria. But more recently, the inclusion of ‘suppression’ has been heavily criticised for excessively broadening the scope of the offence. As the Government identified in a previous debate on conversion therapy, the inclusion of suppression would “criminalise” a “religious leader” who “supports an individual who wants to manage their same-sex attraction in order to align with their religious belief, where the individual consensually seeks out religious counselling”

You might then think it makes sense that ‘suppression’ has gone from NC58. Regrettably, however, this amounts to nothing more than window dressing, as the word ‘negate’ has been put in its place. As leading human rights lawyer Jason Coppel KC has pointed out, the term ‘negate’ covers much of the same territory. It too “must be understood as a reference to changing the conduct of an individual”.

A second major problem at the heart of the amendment is its failure to define the ‘gender’ aspect of the ban. Older versions of the amendment referred to ‘gender identity’ but the term has never before been used in criminal law. The most recent versions speak of ‘transgender identity’ instead.

But once again, this fixes nothing. While the term ‘transgender identity’ does appear in another law, as the amendment itself says, it is nowhere defined. The result is still that highly contentious terminology is jammed onto the statute book without anyone – judges included – knowing what it means. It will do nothing to avoid the ‘chilling effect’ that Dr Cass and others have warned about.

And there are still many flaws that Ms Kearns has yet to address. Alicia Kearns may be desperately keen to square the circle, but it simply cannot be done.

There has been some tinkering around the edges; it will be an ‘either way’ rather than ‘summary’ offence and the wording around territorial extent has been adjusted. But the completely defective ‘safeguards’ – the parts that are supposed to prevent loving parents and innocent religious leaders from being arrested – are untouched.

Many of these supposed protections remain wholly circular. For example, expression of religious beliefs is protected only if not “part of a conversion practice”. Legal advice has made clear these safeguards will safeguard no one.

Ms Kearns expects MPs to have confidence in her amendment. More than that, she expects the public to have confidence that her law will catch only genuine abuse whilst protecting freedoms. But all her withdrawing and replacing shows she does not even have confidence in her own amendment. Having been tweaked so many times, how could anyone be assured it stands up to scrutiny?

This is particularly problematic given that amendments at Report Stage are not subject to committee scrutiny by MPs. Labour were able to argue that even though Lloyd Russell-Moyle’s very similar Conversion Practices Bill (which failed to pass its Second Reading) had “critical issues”, it could be fixed through ‘proper scrutiny’. No such crucial process exists here. Instead, despite the warnings of Dr Cass and the years of vain effort by civil servants, MPs are expected to have blind hope that this time, maybe just maybe, Alicia has found an elusive silver-bullet. But she hasn’t.

See also: Cass Report highlights major risks posed by conversion therapy law

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