Conversion Therapy Prohibition (Sexual Orientation and Gender Identity) Bill [HL]

Baroness O'Loan Excerpts

Friday 9th February 2024 Lords Chamber

[Baroness O'Loan (CB)]

My Lords, I suspect that every Member of your Lordships’ House will oppose coercive or violent attempts to change a person’s sexual orientation or gender identity. Such activities are illegal, cruel and damaging, and are to be condemned. Any offence involving physical violence, sexual violence or coercive behaviour in an intimate or family setting is prosecutable under criminal law—nobody should be subjected to such behaviour.

It is not easy to identify the constituent elements of the offence to be created under the Bill. Matters of sexual orientation and gender identity lie at the heart of it, yet they are not defined. Ultimately, people are free to live with the sexual orientation or, to a significant degree, the gender identity they assert. In most cases, gender identity and sexual orientation are irrelevant to a person’s capacity to live their lives to the full as they wish, subject to the law. Some aspects of life make separate provision, as noble Lords have referred to. For example, sports such as women’s rugby only permit players in the female category if the sex originally recorded at birth is female. There are reasons why those decisions are made; they are well-rehearsed.

The Equality and Human Rights Commission, in response to the government consultation on conversion therapy, cautioned that the legislation

“must be carefully drafted … not to catch legitimate and appropriate counselling, therapy or support which enables a person to explore their sexual orientation or gender dysphoria, and to avoid criminalising mainstream religious practice such as preaching, teaching and praying about sexual ethics”.

It said:

“Encouraging people to comply with religious doctrine that requires refraining from certain types of sexual activity should not fall within the definition of conversion therapy”,


and that the offence

“should not capture communication such as casual conversations, exchanges of views or private prayer, with the distinction defined clearly in the legislation”.

The Bill does not differentiate between children and adults at risk and other adults. In pondering this, I looked at the latest draft guidance to schools about gender-questioning children, which was issued in December, drawn up by the Department of Education and the Government’s Equality Hub. It provides a very clearly drafted set of principles and proposed practices in the context of the difficulties which have been identified in how to respond to gender-questioning children in schools. The guidance defines gender identity as

“a contested belief. It is a sense a person may have of their own gender, whether male, female or another category such as non-binary. This may or may not be the same as their biological sex. Many people do not consider that they or others have a gender identity at all”.

This very recent definition is useful in attempting to articulate one of the difficulties with the Bill. What it seeks to criminalise, as noble Lords have pointed out, is a

“practice aimed at a person or group of people which demonstrates an assumption that … sexual orientation or gender identity is inherently preferable … and which has the intended purpose of attempting to”

change or suppress

“a person’s expression of sexual orientation or gender identity”.

There is no definition of therapy, although it must involve some form of therapy, I think aimed at one person or a group of people.

The words of the Bill, as has been observed, seem to derive from the Memorandum of Understanding on Conversion Therapy in the UK, agreed in 2022 by a number of healthcare and counselling bodies involved in medical treatment and counselling. It is not applicable in other circumstances. The Bill appears to make the word “practice” equate to any activity which can be carried out by a clinician, a teacher, a person or a parent who may consistently express certain views: for example, when presented with the child who seeks to transition, that it is not right to give children life-altering drugs when we do not know what the long-term effects of such prescription may be, and who fears that the child may in the future realise that, actually, they want to remain in their biological sex. Or it seems that it would apply to a minister of religion who advocates chastity outside marriage between a man and a woman, in accordance with their religious beliefs.

On the wording of the Bill, it would appear that people in all these categories and others may be at risk of committing a criminal offence simply by engaging in discussions about sexuality and gender. Encouraging a person to think through the factors which have led them to a particular conclusion, and which may be perceived by a prosecutor to demonstrate an assumption, may be considered by others to have an intended purpose, not a result of causing damage or harm. There are no exceptions and no exclusions from the scope of the Bill. There is no consideration of the person’s mental capacity or ability to consent, or of the fact that a person may be seriously conflicted in their mind across a range of issues relating to their identity and may need to explore those issues in a traditional psychotherapeutic or spiritual context with a psychiatrist or other persons.

In the context of the Bill, we need to ensure too that our statutory rights to freedom of speech, expression, belief, and so on, are not unnecessarily or disproportion-ately reduced. It is most important that people are protected from abuse or force, but that does not mean that we cannot say something which may trigger someone or cause them distress. In law, part of our lived experience is the process of acquiring resilience so that we are not inhibited by things that are said to us even when they offend, shock or disturb. It is a criminal offence to use threatening or abusive words likely to cause harassment, alarm and distress anywhere other than in a private dwelling. Coercive behaviour is a criminal offence in an intimate or family relationship. Therein lies statutory protection.

There will be those who have beliefs and values, whether or not they belong to particular churches, and want to understand their gender identity in this context or to live in conformity with their values or church’s teachings. They may seek spiritual guidance and help. Legislation must make space for that. Interventions may occur at difficult times, in different ways and over long periods. For this to happen, others have to be willing to engage in the conversation or counselling. There is evidence that, if this Bill were to pass, psychologists, teachers et cetera may become unwilling to do so because of the risk of prosecution.

The Bill is stated to apply to Northern Ireland. This is a devolved matter. It is for Northern Ireland’s Assembly, which is now sitting, to consider whether and how it wishes to deal with this matter.

The end result of this Bill may be to deter someone from having conversations that may be vital to their mental health and future well-being. The protection of sexual orientation and gender identity is immensely important. For each of us, our identity and sense of self are fundamental to our very being. The Bill is insufficiently precise. It will criminalise people and impose unlimited fines because, in one way or another, without coercive or physically abusive therapy, they have sought to help someone else.