Ending Conversion Practices in Scotland

1. Do you support our approach to defining conversion practices which focuses on behaviour motivated by the intention to change or suppress a person’s sexual orientation or gender identity?

Yes.

2. Please give the reason for your answer to Question 1.

Stonewall Scotland supports the Scottish Government’s approach to defining conversion practices.

This definition proposed by the Scottish Government seeks to distinguish, in legislation, whether a course of behaviour does or does not meet the threshold of conversion practices. To meet this threshold, courses of behaviour must be motivated by an intention to coerce an individual from their perceived sexual orientation or gender identity to a more ‘desirable’ one. These courses of behaviour are driven by a belief that certain sexual orientations or gender identities are wrong and can be changed. This distinguishes from general statements of belief or opinion, including those which may be upsetting, offensive or harmful.

When answering this question, please include:

• Your experiences – if you are comfortable doing so – of conversion practices targeted at you to change or suppress your sexual orientation or gender identity.
• Your views and/or experiences of people being subjected to practices that intentionally seek to change or suppress a person’s sexual orientation or gender identity.
• Your views and/or experiences of how behaviours that intentionally seek to change a person’s sexual orientation or gender identity differ from general statements of belief or opinion that are critical of certain sexual orientations or gender identities.

3. Do you think that legislation should cover acts or courses of behaviour intended to ‘suppress’ another person’s sexual orientation or gender identity?

It should be covered.

4. Please give reasons for your answer to Question 3.

Stonewall Scotland agrees that the legislation should cover acts or courses of behaviour intended to ‘suppress’ another person’s sexual orientation or gender identity.

The Expert Advisory Group used the term ‘suppress’ to refer to:

“…practices which seek to put an end to, restrain and/or prevent the development or the manifestation of another person's sexual orientation, gender identity, expression of sexual orientation and/or gender expression”.

When answering this question, please include:

• Your views on suppression being included in the legislation, and any concerns you would have if it was excluded.
• Any examples of attempts to suppress an individual’s sexual orientation or gender identity that you have either witnessed or experienced yourself.
• If relevant, evidence of how people of colour in faith communities experience conversion practices specifically, and the prevalence of people in these communities ‘voluntarily’ suppressing their sexual orientation or gender identity (see: ‘LGBT+ POC & Minority Ethnic Faith Experiences of Conversion Practices’ for further information).

5. Do you support or not support an approach which uses a package of both criminal and civil measures to address conversion practices in legislation?

Support.

6. Please give reasons for your answer to Question 5.

Stonewall Scotland supports an approach which uses a package of both criminal and civil measures to address conversion practices in legislation.

Under these proposals, a civil order would provide an avenue to protect a person or a wider community at risk of conversion practices where criminal measures are considered inappropriate. For instance, if there was not enough evidence for a criminal prosecution, a civil order could be used to prevent the harmful conduct associated with conversion practices from occurring in the future. An example of this could be placing a civil order to prevent a religious leader from advertising the promotion of a service that purports being able to change or supress a person’s sexual orientation or gender identity.

While a civil order is a non-criminal mechanism, any breach of a civil order will be a criminal offence.

When answering this question, you may wish to include:

• Why you believe it is important to protect people from harm through preventative measures in the first instance, rather than waiting for harm to occur.
• Your views on the benefit of such preventative measures in other parts of Scots law, such as in domestic abuse, forced marriage or female genital mutilation legislation.
• Any insight you can offer to ensure civil measures are designed and implemented in a way that considers the sensitive context in which conversion practices often take place (including in family, religious, and faith contexts).

7. What are your views on the proposal that the offence will address the provision of a service?

Support.

8. Please give reasons for your answer to Question 7.

Stonewall Scotland supports the proposals set out by the Scottish Government to address the provision of a service.

Under these proposals, the provision of a service refers to any advice, guidance or support which is offered with a degree of professionalism, or expertise. This seeks to address formal services, such as those claiming to be ‘therapeutic’ services, aiming to reorient, change or ‘cure’ a person’s sexual orientation or gender identity.

This part of the offence does not include things like informal conversations about religious views on sexual orientation or gender identity, regardless of whether these have been carried out by people in positions of power such as religious leaders.

When answering this question, please include:

• Your views and/or experiences on services which claim to reorient, change or ‘cure’ a person’s sexual orientation or gender identity and why these should be captured by the legislation.
• Any examples you have witnessed or experienced of a formal service aiming to change or suppress an individual’s sexual orientation or gender identity.

9. What are your views on the proposal that the offence will address a coercive course of behaviour?

Support.

10. Please give reasons for your answer to Question 9.

Stonewall Scotland supports the Scottish Government’s proposals to address a coercive course of behaviour within the legislation.

These proposals seek to target informal actions conducted by individuals which forcefully prevent another person from living or acting in accordance with their sexual orientation or gender identity. This covers acts which use control, fear, or intimidation to give the victim no choice other than to ‘reorient’ accordingly.

The threshold for criminality set out in these proposals is rightfully high. For behaviour to be captured under these proposals, it must be coercive, happen on at least two occasions, and be motivated by an intention to change or suppress a person’s sexual orientation or gender identity. We believe that this ensures that only the most serious and harmful courses of behaviour will be criminalised under the legislation, protecting fundamental rights such as right to family and private life.

In your response to this question, you may wish to consider:

• Any examples of courses of behaviour aiming to coerce an individual into ‘suppressing’ their LGBTQ+ identity that you have witnessed or experienced which you believe should meet the threshold of criminality.

11. What are your views on the requirement that the conduct of the perpetrator must have caused the victim to suffer physical or psychological harm (including fear, alarm or distress)?

Agree.

12. Please give reasons for your answer to Question 11.

13. Do you agree with the inclusion of a defence of reasonableness?

Don’t know.

14. Please give reasons for your answer to Question 13.

Stonewall Scotland, alongside our colleagues in the LGBTQ+ sector in Scotland, will attach caveats to our support for the inclusion of a defence of reasonableness. We will publish our response to this question in full in due course.

15. Do you agree with the proposed penalties for the offence of engaging in conversion practices?

Agree.

16. Please give reasons for your answer to Question 15.

17. Do you agree that there should be no defence of consent for conversion practices?

Yes.

18. Please give reasons for your answer to Question 17.

Stonewall Scotland is clear that, as they constitute a human rights violation, it is not possible for individuals to genuinely consent to conversion practices being carried out against them. As such, we firmly agree that there should be no defence of consent for conversion practices.

People who undergo conversion practices can experience manipulation and coercion at the hands of those in their life who hold a trusted position of power. As a result, victims often ‘voluntarily’ subject themselves to conversion practices to minimise discomfort or alienation within their community or family.

When answering this question, you may wish to consider:

• Your views on why there should not be any loophole for consent in legislation seeking to address conversion practices.
• Your opinions on how those conducting conversion practices could use a defence of the victim consenting if this is not included in the offence.
• If relevant, your views and/or experiences on how things such as ‘honour abuse’ can play a large role in ‘consenting’ to conversion practices within minority ethnic and faith communities (see: ‘LGBT+ POC & Minority Ethnic Faith Experiences of Conversion Practices’ for further information).

19. Do you have any other comments regarding the criminal offence as set out in Parts 8 and 9?

No.

20. What are your views on it being a criminal offence to take a person out of Scotland for the purpose of subjecting them to conversion practices?

Support.

21. Please give your reasons for your answer to Question 20.

22. What are your views on the proposed penalties for taking a person outside of Scotland for the purposes of conversion practices?

Support.

23. Please explain your answer to Question 22.

24. What are your views on the proposal that conversion practices should be an aggravating factor for existing offences?

Support.

25. Please explain your answer to Question 24.

26. Do you have any views on the steps we have taken to ensure the proposals are compatible with rights protected by the European Convention of Human Rights?

No.

27. What are your views on the purposes of the proposed conversion practices protection order?

Support.

28. Please explain your answer to Question 27

29. Do you agree or disagree with the proposals for who should be able to apply for a conversion practices civil order?

Agree.

30. Please explain your answer to Question 29.

31. Do you have any other comments regarding the civil order as set out in Parts 13 - 15?

No.

32. Do you have any views on the potential impacts of the proposals in this consultation on equality by:

1. Age
2. Disability
3. Gender reassignment
4. Civil partnership
5. Pregnancy and maternity
6. Race
7. Religion and belief
8. Sex
9. Sexual orientation

No.

33. Do you have any views on the potential impacts of the proposals in this consultation on children and young people, as set out in the UN Convention on the Rights of the Child?

No.

34. Do you have any views on the potential impacts of the proposals in this consultation on socio-economic inequality?

No.

35. Do you have any views on potential impacts of the proposals in this consultation on communities on the Scottish islands?

No.

36. Do you have any views on the potential impacts of the proposals in this consultation on privacy and data protection?

No.

37. Do you have any views on the potential impacts of the proposals in this consultation on businesses and the third sector?

No.

38. Do you have any views on the potential impacts of the proposals in this consultation on the environment?

No.