Analysis: Scot Equalities Minister reassures no one on conversion therapy proposals

By James Kennedy

Scotland’s Equalities Minister, Emma Roddick MSP, wrote last week for The Scotsman. She hoped to reassure a concerned public, over fears the Scottish Government’s latest plans on ‘conversion therapy’ are set to criminalise innocent parents and Christians. Her promises will placate few.

Let me guide you through some of what she said:

“Through engagement with various people who have experienced conversion practices, we know that, unfortunately, they are still taking place in modern Scotland. Existing law covers some of them – for example, the horrific “corrective rape” is already illegal as “rape” – however, some of the stories heard by the Equalities Committee during its consideration of a petition to ban these practices highlighted that there are gaps we need to fill.”

You’ll notice that the evidence base for a new law in Scotland doesn’t seem to rest on any serious research. A vast new criminal law is being proposed, and it’s based on ‘engagement with various people’. The consultation documents give the impression that it’s all anecdotal.

The Westminster Government did carry out a Survey in 2017. The Scottish Government seems to rely on that work for its own plans. But there are numerous problems with that survey: it wasn’t representative; didn’t define ‘conversion therapy’; sought respondents mainly through activist groups; and failed to find out where or when the experiences took place. Its resulting finding that 2% of respondents had experienced what they felt could be classed as ‘conversion therapy’ doesn’t say anything about whether the practices are already illegal, whether they took place in a foreign country, or whether they took place fifty years ago.

Roddick says there are “gaps we need to fill”. What are they?

“Harmful courses of behaviour were not captured under the law, as existing legislation preventing coercion within domestic abuse only applies where the perpetrator is a partner or ex-partner. “Threatening or abusive behaviour” does not capture the full spectrum of acts carried out to change or suppress sexual orientation or gender identity. That’s where our proposals come in.”

So these are the gaps: “harmful courses of behaviour” and some behaviour that the law says is not “threatening or abusive”. But this still seems rather vague. Given there are already offences for verbal abuse when a certain threshold is crossed, greater explanation is certainly needed.

Presumably, from the Equality Minister’s comments, one such gap refers to domestic coercion (coercion in the home) where the perpetrator is not a partner. Parents and children most obviously. The idea of parents ‘coercing’ their children sounds awful of course. Except that it is the duty of all responsible parents to exercise some control over their children. It simply isn’t ‘coercion’ if a parent tells their child what they can and cannot do.

Imposing a new offence of parents coercing their own child poses an enormous risk that key bedrocks of good parenting – taking responsibility and being willing to say no – will be undermined entirely. There are limits to parenting, of course, and social services will be ready to intervene where a child is being genuinely abused. But that brings us back to where we started: abuse is already illegal and there are legal provisions for preventing these situations arising in the home.

 “We have been extremely mindful of the need to tackle conversion practices in a way that does not prevent parents and faith leaders from guiding people, including children, who are questioning their identity. Safeguards have been worked in from the beginning to protect already-recognised legal rights.”

The Scottish Government is very aware that it is hoping to legislate in a highly controversial area. On the one hand, there are LGBT activists who are pressing it to criminalise parents and church leaders who disagree with their ideology. That is the purpose of ‘conversion therapy’ legislation in their minds. On the other hand, the Scottish Government says it is committed to protecting parents and faith leaders, as it is required to do by the European Convention on Human Rights.

It makes a mockery of the whole project. Has the Scottish Government found a way of bringing a law which appeases both sides? It cannot be done. Will it do what Stonewall wants or will it protect key freedoms? It can only be one.

“In order to be captured by our proposed criminal offence, a number of tests must be met. Firstly, a service must have been provided or a course of behaviour which amounts to coercion must have taken place. Coercive behaviour includes acts that are threatening, abusive, humiliating, punishing, or controlling of day-to-day actions, which must have been carried out consistently or repeatedly. Crucially, the offence will only apply when harm is proven to have been caused.”

This claim is another case of ‘sounds good but doesn’t amount to much’. A test of ‘coercion’ could be a very valuable protection but it depends entirely on how that coercion is defined. As we have seen earlier, the very idea that parents are ‘coercing’ their children is a very dangerous one indeed. And notice that Roddick’s description of coercive behaviour does undoubtedly cover sensible parenting: “controlling of day-to-day actions”. That is what parents do; “get out of bed”, “put on your uniform”, “tidy your room”, “no, you’re not going out to that party”, “those friends are a bad influence, so you’re not going roaming the streets with them…” and so on and so on.

The promise that “the offence will only apply when harm is proven” is again valuable, but falls down under detailed scrutiny. Let me quote from the consultation documents: “The legislation will be explicit that psychological harm includes fear, alarm and distress.” That means that the threshold is really ‘fear, alarm and distress’, not ‘harm’. Could talking to someone about bodily mutilation as a result of transgender surgery cause fear? It should do. Is telling someone ordinary church teaching about Hell alarming? It could be. Is it distressing if a mother tells her daughter she’s too young to understand infertility as a result of transitioning?

Secondly, there must be intent to change or suppress a person’s sexual orientation or gender identity, meaning solely trying to protect a child’s safety and wellbeing or parent them – e.g. saying they can’t go to an event because it’s too late at night – would not be covered, nor would questioning, being critical, or seeking support for a child without intent to change or suppress.

Is this the best example that Emma Roddick can offer of what isn’t captured by the law: a parent saying their child “can’t go to an event because it’s too late at night”? No one has ever suggested that this could be conversion therapy. Frankly, it shows the absurd breadth of the law, that she should think it at all relevant. Where is the promise that a parent telling their child to wear the school uniform appropriate to their biological sex won’t be criminalised? Where is the promise that those who discourage sleeping around won’t be caught? Where is the promise that parents will still be free to say ‘no’ to their own children every once in a while?

The Equalities Minister cannot make such a promise, because her proposals leave these issues wide open. Instead, any parents who think their children might one day identify as LGBT will be walking on eggshells for many years. Could that child one day turn around and claim to have been harmed because they were taken to a church youth group, or told they couldn’t cut their hair too short, or refused access to experimental medication? There’s nothing to say otherwise.

Finally, it must have been directed at an individual – so, a general statement of belief or religious teaching to a group of people would not be relevant. There is also a defence if the behaviour was reasonable in the circumstances.

This language – ‘directed at an individual’ – is straight out of the Ban Conversion Therapy campaign’s handbook. More than anywhere, this is a clear attempt to assure Christians that their freedom of belief will be protected. Except it doesn’t.

Churches are hubs of one-to-one conversations. Whether it’s a pastoral discussion between church leader and a church member, a conversations between friends over coffee, or an offer of prayer after a service, the majority of interactions in churches are discussions between one person and another. In this sort of discussion, a comment will necessarily be ‘directed at an individual’.

But even in the sort of situation this clause is specifically intended to protect – preaching to a crowded room – do ministers merely offer ‘general statements of belief’ in their sermons? Sometimes, but certainly not always. Ministers know their congregations and respond to their needs when they speak on a Sunday. Sometimes you might feel a sermon ‘speaks to you’ – might that be directive?

A ‘reasonableness defence’ might sound like a healthy addition, but remember what this means – church leaders having to defend the content of their sermons to a secular court.