On 29 October 2021, the government published its consultation on legislating a criminal ban of certain forms of conversion therapy. On 31 March 2022, news leaked vis-à-vis ITV presenter Paul Brand that the government had decided it would no longer pursue a legislative ban of conversion therapy. Within hours, after a bombardment of campaigning by conversion therapy ban advocates, the government did a “double-U-turn”, and it was announced again by Paul Brand that some form of legislative proposal would likely move forward.

Legislation is unlikely to pass European Convention on Human Rights scrutiny

In response to the consultation and the government’s likely forthcoming legislative proposal, Christian Concern is publishing my detailed legal opinion analysing the legal obstacles facing a proposed ban. The legal opinion highlights, among other things, the definitional problems facing a proposed ban, and the fact that any new legislation is unlikely to pass European Convention on Human Rights scrutiny by disproportionately interfering with an individual’s freedoms to self-actualisation, freedom of expression and freedom of religion.

The biggest problem with the consultation (and there are a few) is the utter lack of context provided as to what might be in the proposed legislation. The situation is reminiscent of when U.S. Speaker of the House Nancy Pelosi famously said about American health reform, that if you want to know what is in the law, you have to first pass it.

While this may seem like a pessimistic assessment, the truth is that the key terms in the proposed law are never defined in the consultation, most notably “conversion therapy” and “coercion”. Herein lies the first legal pitfall. Law, especially criminal prohibitions, is required to spell out exactly what is being made illegal so that members of the public are both aware and able to govern their behaviour accordingly.

The term conversion therapy itself is far from helpful. It is a term conceived by activists and purposely intended to be as broad as possible, to catch up any forms of counselling which prefers one particular sexual orientation or gender identity over another. At the same time, it is highly pejorative in that it conjures up images of the worst and most vile practices, things which have already been illegal for longer than the term conversion therapy has existed.

In other words: talking therapy bad, chemical intervention good

There are many valid reasons why someone might want to move away from same-sex behaviour, or to reconcile with their biological sex. These could be husbands wishing to stay faithful to their wives and keep their families intact, clergy wishing to remain true to their religious vows, people of faith who wish to change their behaviours to accord to their freely chosen beliefs; it could also be someone suffering from trans-regret, or a patient who has comorbidities or previous trauma which is manifesting itself as transgender feelings. Are we to ban them from getting the assistance they seek and to criminally punish counsellors of good will who genuinely wish to help?

What we do know about the proposed law, at least if the consultation is a good indicator, is that it will cover sexual orientation and gender identity. While sexual orientation is already defined in British law, gender identity is not.

The Memorandum of Understanding, an undertaking to ban conversion therapy made by numerous professional bodies including NHS England, does not provide much more clarity. It defines gender identity as: “For the purposes of this document, gender identity is interpreted broadly to include all varieties of binary (male or female), nonbinary and gender fluid identities.” Essentially, the definition is so broad it is meaningless.

We also know that the government intends to ban conversion therapy outright for anyone under the age of 18. While this is problematic in relation to sexual orientation, it is particularly nefarious when it is directed towards gender identity. The reality is that since gender identity theory has permeated the education sector, we have seen instances of child referrals to gender identity clinics rise from a few dozen a year to over 10, 000 in the last 4 years alone. These are children who self-harm and contemplate suicide at much higher rates than other children their age. If the NHS’s own evidence is to be believed, these are also children, who if left alone, would naturally reconcile with their biological sex after passing through puberty, at a rate of 73–88 per cent. Yet the law would ban these children from seeking the help they might desperately need, while deeming them legally competent to undergo puberty suppression or cross-sex hormone treatment, and the irreparable damage both those treatments entail. In other words: talking therapy bad, chemical intervention good.

This type of thinking led to historical abuses based on sexual orientation in the first place

Perhaps the largest obstacle facing any proposed legislation is that it must be compatible with the European Convention on Human Rights. Section 3 of the Human Rights Act requires this. What this means in practice is that a conversion therapy ban must be proved to be necessary in a democratic society, and it must serve a legitimate aim. It must also not disproportionately interfere with fundamental freedoms. Precisely stated, it cannot unduly interfere with a competent individual’s right to sexual self-determination or personal choices about their identity. Nor can it interfere with the right of Christian ministries and churches to practise prayer ministry and pastoral care in line with their religious beliefs. Lastly, it cannot interfere, without overcoming a strict scrutiny analysis, with the right to freedom of expression.

Given that the evidence provided in the consultation document justifying the law is largely anecdotal and self-reported, it will take a lot more than that to prove the necessity of a new ban. The Convention also requires that laws which interfere with the rights I have just mentioned, must provide the requisite legal certainty, clarity, foreseeability and precision to pass Convention muster. If the consultation document is any indicator, the government is very far off from meeting this requirement.

Two of the hallmarks of the United Kingdom are its respect for rule of law and its love of personal freedoms. The entire tolerance agenda is premised on the belief that we should allow everyone to be whoever they want to be, to be their “best selves”. A conversion therapy ban flies in the face of these principles, by telling the general public that the government and a group of activists know what is good for us, and how we should govern our private lives, better than we ourselves know. The sad reality is that this is precisely the type of thinking which led to historical abuses of people based on their sexual orientation in the first place. It is two sides of the same coin. While not all paternalism is bad, indeed some of it is necessary, it should always be based on sound evidence and not on populist sentiment.

Overly broad legislation is dangerous in any instance. When it engages the criminal law and can have the effect of ruining innocent lives, it is particularly worrisome. No doubt the government did not anticipate the level of opposition the new legislation would meet when it published the consultation document. There is no question that those in power know now, and that the proverbial ball is in their court.