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

Lord Trevethin and Oaksey Excerpts

Friday 9th February 2024 Lords Chamber

[Lord Trevethin and Oaksey (CB)]

My Lords, it is a great pleasure to follow the noble Baroness, Lady Kennedy. I entirely agree that today’s debate and the subject generally is not the right place to be taking sides. The debate is not being conducted in the manner in which the culture wars rage. I also echo what she said about the exceptionally powerful and moving speech from the noble Baroness, Lady Hunt.

That said, I will make some observations about the potential legal consequences of a Bill like the one before the House today being enacted. If one is going to criminalise conduct in such a sensitive and contentious area, then it is essential to draw the line between that which is criminal and that which is not criminal with great care. The danger is not so much a risk of convictions and draconian penalties being imposed by the court, because the courts will probably act sensibly if and when cases are brought before them. The danger is more of a weaponisation of the criminal process by parties who are ideologically motivated in relation to these matters one way or another.

One speaker referred to the prospect of teachers reporting parents to the police. One can imagine, in an unhappy situation of divorcing parents, one parent reporting the other to the police for taking the wrong position on the child’s intentions. There are also issues with the actions of priests. It is the risk that the criminal process may be weaponised that we should have very much in mind.

Given that risk, imprecision in a Bill of this type is very dangerous. I want to use the time I have to make one or two observations about what are, with respect, unsatisfactory aspects of the Bill’s wording. I start with “practise” and “practice”, which appear in subsections (1) and (2) of Clause 1. They are dangerously ambiguous words. This has caused problems in the context of employment law. Does it mean—can it be constituted by—a single act or conversation, or does it have to be something rather more long-running? Does it in some way connote the offering of professional services, as in the sense of a doctor’s or solicitor’s practice? These ambiguities are unhelpful.

Then there is the strange word “assumption”. That is an odd word to find in a criminal statute, as another speaker mentioned. I suspect it is a synonym for “belief”. If it is, “belief” should be used because that would bring into sharp focus the arguable tension between this Bill and the rights in relation to religious freedom and religious expression that are contained in the convention. I make that respectful suggestion.

Then there is the odd word “inherently” in the phrase “inherently preferable”. What does that mean? I take it to mean that what has to be demonstrated is an assumption or belief that a sexual orientation or gender identity is preferable in all circumstances, irrespective of the particular circumstances and characteristics of the individual concerned. If I am right, it tends to suggest that what the Bill is really driving at, to some extent, is what Orwell would call “wrongthink”—the wrong sort of belief and one that is disapproved of. Clarification and the use of more precise language might bring these matters into sharper focus.

Then there is the phrase

“has the intended purpose of attempting to”.

It is a little drawn out, but I think it means “is intended to”. In law, you are presumed to intend the normal consequences of your acts, but how will intention be proved here? The clause mentions intention to change gender identity. What is gender identity? No definition is provided by the Bill.

In my remaining time, I want to focus on one type of situation that will certainly arise. What is the Bill supposed to do where there is genuine confusion and uncertainty on the part of the child or adolescent as to the question of gender, as there often will be? Can one be criminalised for attempting to change gender identity where there is real doubt as to the true position on gender identity? The Bill is silent on that. Where does it all get to?

Posit a situation in which, one day, an adolescent girl goes to her mother. She is troubled for whatever reason—she is approaching or going through puberty, for example, or is facing all the difficulties that arise at that time in one’s life—and says to her mother, “Mum, I am now identifying as a boy”. A few days or months later, the girl might say, “I have ceased to identify as a boy. I have decided that I am gay”. What does that situation require? It requires compassion, empathy, love and curiosity. What it does not require is a situation in which that child would arguably be delivering the caution to her mother—“Whatever you say may be taken down and used in court against you”—and in which the mother would be well advised to say, “No comment”. That is what happens when one criminalises, or is in danger of criminalising, communications of that nature.

A Scottish KC described the similar but much more extensive proposed legislation in Scotland as a jellyfish—something that it is impossible to get hold of but has a sting in the tail. It is not that far wide of the mark. The Bill is clearly borne of excellent intentions, but I very much doubt that it is curable by amendment.