Ending Conversion Practices Expert Advisory Group minutes: April 2022

Attendees and apologies

Members:

• Blair Anderson, Lived Experience
• Dr Paul Behrens, University of Edinburgh
• Pritpal Bhullar, Sarbat LGBT+ Sikhs
• Nick Bland, Equality and Inclusion Division, Scottish Government (chair)
• Very Reverend Dr Susan Brown, Church of Scotland
• Florence Oulds, Scottish Trans
• Dr Rebecca Crowther, Equality Network
• Colin Macfarlane, Stonewall Scotland
• Dr Amber Keenan, NHS Grampian
• Reverend Elder Maxwell Reay, Metropolitan church, Augustine’s Edinburgh
• Jeremy Clarke, The Coalition for the Memorandum of Understanding (MoU) Against Conversion Therapy (substituting for Dr Igi Moon)
• Florence Oulds, Scottish Trans
• Luis Felipe Yanes, Scottish Human Rights Commission
• Reverend Jide Macaulay, House of Rainbow

Attendees:

• Rudi Paton, Scottish Government Legal Department
• Frances Bell, Parliamentary Counsel Office
• Max McGill, Parliamentary Counsel Office
• Tara Lyle, Scottish Government

Secretariat:

• Lewis Todd, Equality and Inclusion Division, Scottish Government
• Chloe Coldwell, Equality and Inclusion Division, Scottish Government

Apologies:

• Dr Igi Moon, The Coalition for the Memorandum of Understanding (MoU) Against Conversion Therapy
• Richy Edwards, Lived Experience
• Hannah Winter, Lived Experience
• Dr Mhairi Crawford, LGBT Youth Scotland

Items and actions

Welcome and general updates

The Group discussed:

The confirmed change of the name of the group to the Expert Advisory Group on Ending Conversion Practices as suggested by members.

The UK Government’s position on conversion practices, members hoped there would soon be clarity on this issue.

The Scottish Government is not affected by the UK Government proposals.

The Group are working with a Trans-inclusive approach and hoped that being clear about this would reassure LGBTI people in Scotland.

The need to include asexuality within this work was clearly stated and backed by several members of the group.

Issues that would likely arise from different statutory frameworks in operation across the border, particularly for organisations with churches in England and Scotland.

The potential risk of people being taken to other countries where Conversion Practices are not banned

Importance of definitions within the legislative context was noted as was the need to work with diverse minority faith groups.

Bill drafting process overview

Attendees from the Scottish Government Legal Division (SGLD) and Parliamentary Counsel Office (PCO) explained what the Bill process would entail:

The importance of clear, good and accessible law.

The process relied on policy, legal and drafting skills. These three teams needed to work together to create robust and coherent bills.

PCO would consider the definition of Conversion Practices in detail when drafting the bill. The group were advised to focus on what they intended to be achieved by a ban.

SGLD would be grateful to receive as much detail as possible on the practices the group wanted to be ended.

Discussion: definition of conversion practices

Attendees discussed the definition of Conversion Practices and the Equalities, Human Rights and Civil Justice Committee recommendations. The following points were made:

A number of members identified the definition in legislation from Victoria, Australia, as the most favourable existing definition. Other members referred to the definition in the Maltese law and the Irish bill.

The inability to consent to Conversion Practices must be included in the definition: Definition should be clear that Conversion Practices ‘with or without consent’ would be covered. It was highlighted that allowing for consent was a very dangerous move as it left many open to abuse – a reference was made to EHRCJC report rec. 3.1.

It was noted that this was important enough to be in the definition and not just in the legislation.

A key element of a definition should stress the intention to change someone’s sexual orientation or gender identity: The Victorian definition made clear that practices must be ‘directed towards’ with the intent to change or supress. Some members noted the importance of this - if it was not directed and not intended to change it should not be criminal.

At the same time, the danger of an intent element that went beyond this 'basic intent', was highlighted. If the UN Independent Expert's definition were adopted, only people who could be prosecuted for conversion practices, would be those who believed that a change of sexual orientation/ gender identity was possible and desirable. The risk was that that may then exclude people who acted mainly for commercial purposes.

The definition should be consistent across sexual orientation (SO) and gender identity (GI) – inclusive of ‘expression’ for both ensuring Conversion Practices aiming to suppress behaviours was included.

The group discussed particular issues for minority ethnic communities, such as fear of reporting family members or religious leaders; a feeling of shame of being LGBT, let alone victim of this practice; and limited research on the impact of Conversion Practices in minority ethnic communities. Members highlighted concerns around criminalising Conversion Practices without careful consideration and input from experts from minority ethnic faith communities.

A sub-group was proposed to look in more detail at the range of issues and equalities impact of ending Conversion Practices in minority ethnic faith communities. This group could feedback in to the main group’s considerations.

The view was expressed that, when defining Conversion Practices, it was important to make it clear what was not considered to be Conversion Practices, for example: exploring SO or GI in a supportive environment: assisting someone who was undergoing or considering undergoing gender reassignment; providing support and understanding in helping with self- acceptance / exploration; facilitating coping skills and social support or identity exploration/ development. The view was expressed that Conversion Practices is not affirmative healthcare, social support or pastoral care.

Intentions behind the practice might change over time e.g. beginning with trying to convert and then moving to suppression. The group agreed that the bill should cover all practices and activity with the intent to change or suppress someone’s SO and/ or GI.

It was important to look at those who did not carry out the practices themselves but who caused it to happen, which may be difficult to cover in law.

Post-legislative support for grassroots LGBTI organisations to provide holistic support for victims, rather than shifting the burden onto mental health services or the criminal justice system.

Scottish Government have dealt with issues around defining “intent” in the past and the group could look to the hate crime bill as an example.

The group considered whether their advice would offer a specific definition or identify principles that should guide a definition. It was agreed by many that the group would look to provide both.

Suggestion was made that the term of ‘Inducing’ with regards to persuasion could be included within the definition. This term is in the Victoria legislation.

Reference made to Ireland’s use of ‘Eliminating’ in their terminology which the member viewed as unnecessary, as suppressing/changing would be more appropriate terminology.

With regard to the formulation of recommendations by the EAG, it would be useful to provide for an option of 'minority opinions': ie, if members felt they could not support particular positions, they should be free to provide their own opinion with reasons.

Discussion: EHRCJ Committee recommendations

The group were largely supportive of the recommendations.

The group discussed putting a civil scheme in place within, and as well as, legislation and noted it was important to have a public body in charge of this.

A civil scheme within legislation and further education, support and awareness were vitally important.

The group should consider how a ban would apply to non-regulated practitioners; for example “counsellor” was not a protected title.

On parental and children's rights, it was suggested that it may be useful to clearly set out the potential overlapping of a parent's right to raise a child as they see fit, and a child's existing human rights alongside any new rights in a bill to live free from Conversion Practices.

The group should also consider the greater risk of disabled people being subjected to the power dynamic present in Conversion Practices cases.

People in rural or isolated communities were also more at risk as they did not have the same access to services.

How to ensure Conversion Practices did not take place in the home and the difficulties of legislating for that.

Actions

Discuss further the proposal for a sub-group to consider the specific experiences and needs of people from minority ethnic communities.

Create a working document available to group members which would capture the group’s discussions as they develop.

Topics to be covered by the group – agreed to balance both evolution through meetings but also with a degree of forward planning.

Equality and Inclusion Division, April 2022