Ending conversion practices in Scotland: consultation

Part 12: Consideration of Convention Rights

160. Conversion practices are usually undertaken within an ideology that views LGBTQI+ identities as wrong and believes that they can be changed. The main aim of this legislation is to protect people from the harm of conversion practices and protect the human rights and dignity of LGBTQI+ people.

161. Legislation passed by the Scottish Government must be compatible with the human rights protected by the European Convention on Human Rights (ECHR). In developing the proposals set out in this consultation we have carefully considered their impact on rights protected by the ECHR, in particular the right to family and private life; freedom of thought, conscience and religion; and freedom of expression. In line with the requirements of the ECHR, interference with these rights must be necessary and proportionate to the aim to be achieved, in this case, protection of the rights of LGBTQI+ people.

162. In order to make sure that our proposals respect all of the rights involved, we have taken a number of steps as set out in this consultation. These include ensuring that the criminal law targets those acts that are harmful and coercive, and complementing this with a preventative and protective approach through the use of civil protection orders, which are also required to comply with these rights. There are a number of safeguards in relation to the civil protection orders in order to protect the rights of both persons to be protected and persons on whom prohibitions may be placed. In particular, the proposed civil protection order cannot be granted unless necessary to reduce or prevent harm to other persons.

163. We are clear that conversion practices must be undertaken with a specific intention to change or suppress and in relation to the specific victim. They do not include general statements of opinion without this specific intention, or voluntary practices undertaken by a person themself in line with a person’s own belief and not pushed upon them by someone else (such as individuals who choose themselves to live a celibate life).

164. We have included a specific avoidance of doubt provision to put beyond doubt that conversions that do not intend to direct a person towards a particular sexual orientation or gender identity is not a conversion practice and nor is behaviour that consists entirely of expression of opinion of belief.

165. The offence also includes a defence of reasonableness. This acts as an additional protection by allowing, for example, an accused person to put forward a justification as to why their behaviour was reasonable, which could include the exercise of their Convention rights.

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?