Make your voice heard: Our Guide to the Scottish Conversion Therapy Consultation

Bayswater has put together a summary of concerns about the proposed Scottish conversion practices legislation 2024 to help people respond to the public consultation.

The deadline for responses is midnight on April 2. We recommend parents, in particular, include examples from personal experience of how this legislation would interfere with their ability to support their children and protect them from unevidenced medicalisation.

Guidance Points

  • Gender identity should not be equated with sexual orientation: firstly because it is a fundamentally different concept, and secondly because it is associated with controversial and unproven medical interventions.
  • The interim NHS Cass Review described “biological, cultural, social and psychological factors” shaping gender identity, which means it is subject to influence and change. The bill undermines this understanding and lends credence to the very widespread but unevidenced supposition that gender identity is innate and immutable.
  • A developmentally informed understanding of childhood tells us that identity formation is a process that continues throughout adolescence and into young adulthood, which is why Cass emphasises the fluidity of gender identity into an individual’s mid-20s. By contrast, the bill presents gender identity as something that cannot and should not be influenced.
  • Since gender identity is a subjective belief, the bill impinges on ECHR Articles 9 & 10 (freedom of belief and expression). Potential vindication through a prosecution being dropped or a not-guilty verdict based on other EHRC provisions would not compensate for the damage caused by being accused in the first place.
  • The prohibition on ‘suppressing’ gender identity is extremely broad and ill-defined, such that even with careful drafting there will be a significant chilling effect.
  • The proposed bill has the potential to interfere with ECHR Article 8 (right to respect for family life), with interference by third parties further encouraged by the statement that alleged victims “may not be aware that they are victims of conversion practices”.
  • The evidence base for gender identity conversion is fundamentally flawed. No legislation should proceed without reliable evidence of the harm it is seeking to outlaw.
  • Despite protection in the detail of the bill, opposition to a child or young person’s social transition (cross-sex pronouns/name) is frequently described by activists as ‘suppressing’ gender identity or a ‘conversion practice’. This is inevitably reflected in reports of gender identity conversion used to justify the bill, yet the consultation does not make clear what practices would qualify as ‘conversion’.
  • The concept of gender identity pathologises gender non-conformity because it depends on gender stereotypes even if this is not always explicitly admitted. Gender stereotypes form part of the diagnostic criteria for ‘gender incongruence’ in the WHO International Classification of Diseases used by the NHS. The legislation thus offers special protection for a concept that reinforces regressive sociocultural norms about gender and promotes the idea that gender non-conforming people are best understood as belonging outside their sex category.
  • This pathologisation of gender non-conformity is particularly harmful to young children (see consultation question 32 on impacts based on protected characteristics – here age), who lack the cognitive maturity to understand that sex is biological and immutable rather than determined by clothing, hairstyle and other sociocultural gender markers. For a young child, gender stereotypes are key to their self-perception in relation to sex/gender. They need adults to help them understand that internalised gender stereotypes (gender identity) are not what makes someone male or female. Such an explanation requires being free to criticise the concept of gender identity, which could easily be framed as ‘suppression’.
  • Since gender non-conformity and a cross-sex identity in childhood are most strongly associated with same-sex attraction in adulthood, the special protection that the bill puts in place for affirmation of gender identity is very likely to be detrimental to children who would previously have grown up to be gay or lesbian (see consultation question 32 on impacts based on protected characteristics – here sexual orientation).
  • The proposed civil protection orders are designed to circumvent the “difficulty in meeting the standard of proof in the criminal courts”, which means they can be applied even more broadly. Parents who do not subscribe to gender identity theory are already experiencing false accusations of being a ‘risk’ to their child, including referrals to social services and in some cases police involvement. The civil measures in this bill would provide activists with a means of intimidating any parent who, for example, resisted their child’s adoption of a cross-sex identity.
  • Rather than safeguarding young people, this bill would put them at greater risk of mistaken transition and lifelong medicalisation by encouraging affirmation of their attested gender identity, which is highly likely to have been caused by the internalisation of sexist stereotypes or might be masking mental health, trauma, neurodevelopmental or other issues.
  • Cass noted the existing pressure on clinicians “to adopt an unquestioning affirmative approach [that is] at odds with the standard process of clinical assessment and diagnosis”. This situation will be worse if there is a threat of prosecution. Even if accusations are ultimately dismissed, there is a profound impact.
  • The criminal offence in the bill requires evidence of “psychological harm, including fear, alarm or distress” but this is based on a subjective assessment, and since activists have portrayed anything other than unquestioning affirmation of the trans identity as ‘transphobic’, children and young people understandably experience ‘fear, alarm and distress’ when faced with any other response.
  • The subjective concept of ‘harm’ is problematic since parents are regularly accused of ‘harm’ simply by wishing to follow an approach that is now official NHSE policy in line with the Cass Review.
  • The defence of ‘reasonableness’ is completely inadequate since the consultation also makes clear that even someone “driven by a desire to help” can be engaged in criminal conduct.
  • The proposed penalty of one-year imprisonment for the ill-defined offence of engaging in conversion practices is deeply concerning: even if the bar for prosecution is not met, parents will be fearful and child-parent relationships will be damaged.
  • The criminal offence of taking a person out of Scotland for the purpose of subjecting them to conversion practices raises profound questions about diverging clinical practice north and south of the border. Would Scottish parents wishing to pursue the evidence-based approach recommended by the Cass Review find themselves in fear of prosecution if they took their child to England? The bar for prosecution for this offence is also lower as it “does not require any proof of harm having been caused.”
  • Since a disproportionate number of autistic children and young people are affected by gender dysphoria, the bill poses a particular threat to this group (see consultation question 32 on impacts based on protected characteristics – here disability).
  • Consultation question 33 asks about the impacts under the United Nations Convention on the Rights of the Child (UNCRC):
    • Affirming a child as the opposite sex before they have been able to achieve developmental maturity or a true understanding of the significance of biological sex appears to be counter to Article 3 UNCRC: “the best interests of the child shall be a primary consideration”.
    • Since gender identity affirmation is often the first step on a pathway to experimental and risky medical interventions, this could interfere with Article 24 UNCRC: “the right of the child to the enjoyment of the highest attainable standard of health”.
    • By restricting parents’ ability to honestly discuss the concept of gender identity, the bill risks impinging on their right under Article 14 UNCRC “to provide direction to the child […] in a manner consistent with the evolving capacities of the child”.
    • By elevating the views of the state over those of individual parents on the contested matter of gender identity the bill interferes with Article 18 UNCRC, which says “parents […] have the primary responsibility for the upbringing and development of the child”.

We hope you find the points we’ve made helpful in completing your submission. The consultation closes on April 2, and you can submit your response via this link to the Scottish Government website.