SNP conversion therapy ban ‘risks criminalising prayer and parental guidance’

SNP plans to ban conversion therapy risk criminalising prayer and parental guidance to their children, Scottish solicitors have warned as ministers were threatened with legal action.

The Law Society of Scotland warned the proposed legislation was too “broad” and could outlaw “normal activities by religious organisations”.

In a submission to a Scottish government consultation on the plans, the industry body for solicitors said this could include “praying with anyone about their sexual ethics or sexual behaviour, or offering counselling on such issues”.

Although the consultation said “general parental direction or guidance” would not be considered to be conversion therapy, the submission said “we have doubts on whether this is reflected in the definition itself”.

“Presumably, there are cases in which the intention to change or suppress someone’s sexual orientation or gender identity is clear but we also think that there can be situations where that intention is not easy to identify,” the Law Society said.

It also warned that “common forms of therapy” such as cognitive behavioural therapy or treatment for sex offenders such as paedophiles could also be caught by the proposed legislation.

The Law Society said that key definitions for “criminalised behaviours” in the proposals were vague and urged ministers to draw up legislation “precisely and narrowly” so that “perfectly lawful behaviours” were excluded.

Their warning came as the Christian charity that successfully challenged the SNP’s named person scheme warned that it was poised to mount a new legal battle over the plans.

‘Thought crime’

The Christian Institute said the Scottish Government’s proposals provided campaigners against conversion practices with a “thought crime”. Aidan O’Neill KC, the group’s lawyer, also warned it risked criminalising parents and churches.

The group said it was ready to launch a petition for judicial review if Holyrood passes the law and “to challenge it all the way to the Supreme Court if necessary”.

Conversion therapy means trying to stop or suppress someone from being queer, or from identifying as a different gender to their sex recorded at birth.

It can include talking therapies and prayer but critics have pointed to more extreme forms such as exorcism, physical violence and food deprivation.

The Scottish Government consultation on a ban, published in January, stated that those found guilty of “conversion practices” could face up to seven years in jail.

Controlling a child’s clothing choices or where they went was put forward as an example of actions that could result in a conviction, if they were “coercive” and caused “distress”.

Following a fierce backlash, the Scottish Government said it had never been the intention to criminalise “day-to-day parental controls”.

It also did not rule out that the parent-child relationship would be exempted entirely from the scope of the legislation, which is not expected to be published until next year.

John Mulholland, the convener of the Law Society’s public law committee, backed the policy’s aims to ban conversion practices “that cause harm and distress to people because of fundamental aspects of who they are, but believe this draft legislation is too broad”.

He said: “New laws, particularly criminal legislation, must be shown to be necessary and a fair and reasonable means of addressing a clearly identified problem. Such laws must be clear and meticulously drafted to ensure that innocent conduct is not criminalised.

“This proposed legislation currently does not meet these fundamental requirements, and significant refinement is needed so it doesn’t capture circumstances which should be beyond legal reproach.”

He said the Scottish Government should focus on “using civil provisions in the first instance” rather than the criminal law.

The submission said there were “legitimate concerns that perfectly normal activities by religious organisations could fall foul of the suggested legislation”.

Forensic therapy for sex abusers, including paedophiles, may be caught even though they “need to engage with interventions to reduce risk to be able to qualify for consideration for release by the parole board”.

Medication to suppress sex drive may also fall under the legislation, the submission said, criminalising “medical practices as it can be interpreted that they are motivated by changing sexuality”.

Warning of legal action, Joanna Cook, a public affairs officer at the Christian Institute, said: “There are already strong laws on the statute book to protect gay and trans people. Existing law thankfully tackles verbal and physical abuse in Scotland today.

“But those campaigning for a conversion practices law aren’t content with that. They want a new speech crime. A thought crime. And, I’m afraid, the Scottish Government’s proposals give them that. The proposals are vaguely worded, dangerously broad, and would catch innocent, harmless behaviour.”

She said this could include a mother who stops her 12-year-old son going to school in a dress and make-up.

A Scottish Government spokesman said: “Our proposals are focused on situations where a service is provided or where there is coercive behaviour, using acts that are threatening, abusive, humiliating, punishing or controlling of day-to-day actions, which is carried out consistently or repeatedly.

“In each case there must be a specific intention to change or suppress another person’s sexual orientation or gender identity and harm must have been caused.”