Commissioned by The Ozanne Foundation, October 2021
The Forum is clear that so-called “conversion therapy” must be criminalised and that there can be no exemptions. This report therefore sets out recommendations to the UK government about how to effectively legislate against all forms of “conversion therapy”, which are more accurately terms “conversion practices”, using both the criminal and civil law.
You can download a PDF copy of the report here. The full text of the report is available below.
Read BARONESS HELENA KENNEDY’S article for The Guardian (October 1st 2021), about why a complete ban is needed, including religious practices, and why this should involve both the criminal and civil law.
RECOMMENDATIONS ON EFFECTIVELY LEGISLATING FOR A BAN ON CONVERSION PRACTICES
by the BAN ‘CONVERSION THERAPY’ LEGAL FORUM
Jonathan Cooper OBE (1962 – 2021)
Jonathan Cooper passionately believed in the equality of all. This fuelled his life-long commitment to fight for the rights of others and so ensure that they might benefit from the full protection of the law.
He worked tirelessly for all those who had no voice as well as those whose voice was under threat, such as defending the Rule of Law and the independence of judges and advocates in places as diverse as Turkey, Belarus, Albania, Africa and throughout the Caribbean.
Of particular interest to him were the rights of LGBT+ people. His ground-breaking work in challenging discrimination against same sex couples was immense. He was the force behind the Human Dignity Trust which successfully challenged laws criminalising same sex throughout the Commonwealth. He also championed the cause of gay couples who wanted to establish their equal right to marry and found a family. In Britain, he was instrumental in helping remove the barriers to enable LGBT+ people to serve in the military. More recently, he had turned to the urgent need to ban conversion practices, which he viewed as totally abhorrent and which he believed needed to be outlawed.
Jonathan was forever encouraging colleagues to take up cases which he had himself initiated and inspired. This particular report is no exception, where he worked with the Ozanne Foundation to convene a group of senior colleagues to develop and agree a set of recommendations for government on how best to effectively ban conversion practices.
Above all, Jonathan was an immensely kind, generous and loving man whose enthusiasm for life knew no bounds. He will be sorely missed by all of us who had the privilege of working with him, and who were honoured to be counted amongst his friends.
Our thoughts are with his husband, Kevin, and wider family as they come to terms with this tragic and sudden loss.
by BARONESS HELENA KENNEDY QC
Chair of the International Bar Association’s Human Rights Institute
I was pleased to hear Her Majesty the Queen finally announce in May that the British government would bring forward long awaited legislation to ban the abhorrent practice of “conversion therapy”, more properly termed conversion practices. These are best understood as any practices that seek to suppress, “cure” or change a person’s sexual orientation or gender identity.
These degrading and inhumane practices are an affront to the human rights of lesbian, gay, bisexual, transgender and intersex people and must be criminalised in all their forms.
This Policy Paper is dedicated to my dear friend and barrister colleague, Jonathan Cooper OBE, who died so suddenly during its final drafting stages. In characteristic style, Jonathan was instrumental in bringing us together so that we could recommend to government how best to utilise the full breadth of the law to stop these dreadful human rights abuses.
I and my co-signatories propose that the most effective way of doing this is through a two-pronged approach that utilises both the criminal and civil law. This then protects those who are immediately vulnerable and at risk, whilst also making it clear in law to would-be perpetrators that their vile practices will not be tolerated in a civilised society.
I am grateful to the Ozanne Foundation for commissioning and overseeing this report, and to Richard Wagenländer and Claire Nash for conducting the research on which it is based.
Together we urge the government to implement their promised legislation without delay, ensuring that there are no loopholes – too many lives have already been impacted by this horrific abuse and countless more are still at risk.
Baroness Helena Kennedy QC
THE BAN CONVERSION THERAPY LEGAL FORUM
The Ban ‘Conversion Therapy’ Legal Forum (the Forum) is a cross-party group of MPs, peers, academics, barristers, legal professionals, campaigners, survivors and service providers who support victims of ‘conversion therapy’. Chaired by Baroness Helena Kennedy QC, it supports the Government in its promise to deliver a legislative ban on so-called ‘conversion therapy’.
Baroness Helena Kennedy QC (Chair)
Robin Allen QC (former Head of Cloisters)
Robin Dormer (retired Parliamentary Counsel)
Prof Javier Garcia Oliva (Senior Lecturer in Law, University of Manchester)
Prof Nick Grief (Emeritus Professor of Law, University of Kent)
Dr Helen Hall (Associate Professor in Law, Nottingham Trent University-Research)
Dr Craig Purshouse (Senior Lecturer in Law, University of Liverpool)
Dr Ilias Trispiotis (Associate Professor in Human Rights Law, University of Leeds)
Baroness Liz Barker MP (Lib Dems)
Crispin Blunt MP (Chair of Global APPG on LGBT+ Rights)
Angela Eagle MP (Labour)
Wera Hobhouse MP (Lib Dem Spokesperson for Women and Equalities)
Susie Green (CEO, Mermaids)
Nancy Kelley (CEO, Stonewall)
Paul Martin OBE (CEO, LGBT Foundation)
Leni Morris (CEO, Galop)
Jayne Ozanne (Director, Ozanne Foundation)
Peter Tatchell (Director, Peter Tatchell Foundation
Richard Wagenländer (Researcher)
Claire Nash (Researcher)
- The Forum is clear that so-called “conversion therapy”, which it recommends is more accurately referred to in legislation as “conversion practices”, must be criminalised.
- A broad definition of conversion practices is essential to ensure that all forms of these practices are captured in legislation and so prevent the exploitation of loopholes that would allow those providing, advertising or advocating conversion practices to continue doing so with impunity. Any definition must cover all practices that seek to suppress, “cure” or change sexual orientation or gender identity. (See Appendix I for examples of these differing forms).
- The free exploration of gender identity and sexual orientation must not be impeded by a ban on conversion practices. Specifically, any ban must not negatively impact transgender individuals’ access to healthcare provisions and affirmative care.1
- The Forum recommends that in addition to a general offence prohibiting all forms of conversion practices, statutory provisions are also adopted to ensure a comprehensive ban. These should include banning the promotion or advertising of conversion practices, as well as prohibiting kidnapping or abducting for the purpose of sending individuals to be subjected to conversion practices abroad. It is also recommended that engaging in conversion practices should be an aggravating factor in sentencing where existing criminal offences are involved.
- The Forum is clear that any ban on conversion practices must be human rights compliant. As such, these recommendations comply with the European Convention on Human Rights (ECHR) and with the Human Rights Act. Conversion practices, at a minimum, amount to degrading treatment prohibited by Article 3 ECHR and affect the most intimate aspects of private life protected by Article 8, due to the significant impact on a victim’s psychological and physical health and wellbeing. The discriminatory nature of conversion practices is demeaning and perpetuates a continuum of violence towards the LGBT+ community, which also violates Article 3 ECHR.
- These recommendations require limited restrictions on the right to manifest religion and belief and their expression, which are necessary, justified and proportionate under Articles 9 and 10 ECHR. An exemption for religious conversion practices, such as an act of spoken prayer directed at an individual with the predetermined purpose of suppressing, curing or changing their sexual orientation or gender identity, would undermine the efficacy of the prohibition.
- For the same reason, there can be no exemptions for ‘consenting’ adults who seek out conversion practices despite the harm involved. This is because the pressures and imbalance of power involved mean that such “consent” cannot be truly free or autonomously exercised. Allowing these to continue would put a significant number of vulnerable people at risk.
- Finally, the Forum recommends the introduction of statutory and non-statutory support for those at risk of conversion practices, including whistleblowing measures.
1 ‘Affirmative care’ is any form of counselling or psychotherapy which seeks to help people come to a consensual, comfortable, and self-accepting place with their gender identity. It is founded on the position that no gender identity, expression or experience is any more valid, ‘natural’ or ‘normal’ than any other.
- The first step to ending so-called ‘conversion therapy’, more aptly described as ‘conversion practices’, must be a legislative ban that denounces these practices in the UK and makes clear to perpetrators that their actions are criminal and will not be tolerated.
- It is the view of the Forum that the morally reprehensible and discriminatory nature of conversion practices, which as the Prime Minister has said “have no place in a civilised society”, warrants criminalisation.2 This is because conversion practices deny human dignity and demean victims in such a way as to amount to degrading or inhuman treatment and may in some circumstances constitute torture.3 They also destroy an individual’s right to a private life, protected by Article 8 ECHR. Human rights law requires that conduct that falls within the scope of prohibited ill-treatment be regulated by the criminal law.4
- The State cannot permit attempts to suppress, “cure” or change sexual orientation or gender identity. The State’s duty is to protect people from such practices because of the significant harm they cause. To do this effectively, the ban must, in addition to criminalising such acts, be coupled with ancillary civil protection orders that ensure a victim’s safety. This is to protect victims immediately so that they avoid any harm, given they cannot afford to wait for lengthy investigation and prosecution. In other cases, post-facto prosecution is needed to ensure the acts’ harmful and reprehensible nature is adequately dealt with and so deter future perpetrators.
- Only in this hybrid form of using both criminal and civil law, in the form of protection orders, will a ban be successful in adequately protecting victims.
2 Parliamentary correspondence with the Minister for Women & Equalities on LGBT conversion therapy (24/09/20)
3 International Rehabilitation Council for Torture Victims, ‘Conversion Therapy is Torture’ (23/4/2020)
4 MC v Bulgaria (2005) 40 EHRR 20
- Conversion therapy comes in many shapes and forms. As the Minister for Equalities, Kemi Badenoch MP, has noted, conversion therapy “is often used as an umbrella term for a number of acts”, some of which are already criminalised in their own right (such as rape or assault).5 Existing offences should, however, not be excluded from the definition of conversion practices. Where an offence is also a conversion practice, its reprehensible nature is especially heightened and the harm to victims’ physical and psychological health often aggravated.
- To ensure legal clarity, it is recommended that the term conversion “practices” rather than “therapy” is used. This avoids confusion as to whether the word “therapy” refers solely to procedures of a professional or medical nature, particularly given that the majority of instances of conversion practices occur predominantly in religious and cultural contexts.6 Further, the term “therapy” is highly misleading given the harm such interventions are known to cause.
- A non-exhaustive list of such practices includes exorcisms, pseudo-scientific counselling sessions, corrective rape, deprivation of liberty, being threatened with abduction or torture, attempts to abduct, forced marriage, being threatened with forced marriage, being prayed over as a form of “healing”, and other physical or verbal abuse.
- The Forum proposes that an act constitutes a conversion practice where it is directed against another person or specific group of persons, and attempts to suppress, “cure” or change that person’s or those persons gender identity or sexual orientation.
5 Minister Kemi Badenoch, House of Commons Petitions Debate (08/03/21)
6 The Government’s National LGBT+ Survey 2018 found that 51% of conversion practices were conducted by a faith organization or group
- Generality: The Forum stresses that a broad definition is necessary to encompass all medical, psychiatric, psychological, religious, cultural, or any other practices that seek to suppress, “cure”, or change the sexual orientation or gender identity of a person of any age. The ban must apply generally and not differentiate between secular, religious, or cultural contexts. Conversion practices are equally harmful irrespective of their context and can be exacerbated by the additional stigma and pressure that are experienced in a religious or cultural setting. The majority of conversion practices are conducted by individuals who are not professionally trained in therapeutic practices, such as religious leaders or members of an individual’s community.7 Therefore, limiting a ban to the medical professions would not capture the primary source of these practices.
- Directedness: It is recommended that the ban be limited by the requirement that any act be “directed against another person or group of persons”. This ensures that victims are not found criminally liable for engaging in conversion practices against themselves. This also sets a proper limit as to where religious or cultural expression is permitted, and where such freedoms should end. (See Appendix II – Case Studies 1-3)
- Suppression: Including suppression of sexual orientation or gender identity is vital to ensure that no loopholes are exploited. It is the view of the Forum that if suppression is not included, perpetrators will simply shift their focus from trying to change or “cure” a person’s sexual orientation or gender identity to trying to suppress it. They would still rely on the same methods and continue with the same belief that anything other than a heteronormative and non-trans (sometimes referred to as cisgender8) identity is wrong. Indeed, the primary aim of many conversion practices is already focused on trying to suppress a person’s sexuality or alter their behaviour or gender expression because their sexual orientation or gender identity is deemed to be unacceptable. Such attempts are both harmful and morally wrong. (See Appendix II – Case Study 4).
- Free exploration of identity: The ban must also apply to acts that suppress or inhibit the free exploration of a person’s gender identity or sexual orientation. This is because a large number of LGBT+ youth are often at the questioning or exploration stage of their sexual orientation or gender identity when they are first subjected to conversion practices. Excluding such persons from the protection of a ban would ignore many potential victims, so explicit guidance on how to work with questioning persons is essential.
7 The Government’s National LGBT+ Survey 2018 of over 108,000 LGBT+ people living in the UK found that of those who had undergone conversion practices, only 19% were conducted by a healthcare provider or medical professional.
8 Cisgender describes a person whose gender identity matches their sex assigned at birth. The word cisgender is the antonym of transgender. The prefix cis- is not an acronym or abbreviation of another word; it is derived from Latin, meaning “on this side of”.
- Abduction: There is increasing evidence that many individuals are forcibly taken abroad to undergo extreme forms of conversion practices. This is likely to increase after a ban is introduced in the UK unless specific protections are included. Legislation must therefore include a provision that classifies such attempts as abduction9, and outlaws any attempt to take someone out of the jurisdiction to undergo such practices. As with forced marriage, this should be deemed an offence regardless of whether the conversion practice actually occurs.
- Promotion and Advertisement: The Forum considers it essential that legislation should ban the promotion and advertising of conversion practices, including the sharing of instructions on how to conduct conversion practices, so as to avoid a potential loophole that could be exploited by perpetrators. This would then ban the dissemination of instructional manuals that encourage victims to “self-perform” these practices or that teach them to would-be perpetrators.
- Fraudulent Practice: As conversion practices have been widely proven to be ineffective pseudo-scientific practices, the Forum recommends that these methods be recognised as fraudulent practices for the purpose of anti-fraud and consumer rights legislation.10
- Sentencing Uplifts: Where an existing criminal offence is also a conversion practice, its reprehensible nature is especially heightened and the harm to a victim’s physical and psychological health often aggravated. As such, where conversion practices take the form of activities that are already criminalised, the Forum recommends the introduction of increased sentences akin to the uplifts applied to sentences under s.66 of the ‘Sentencing Code’, as set out in the Sentencing Act 2020.11 This imposes a duty on criminal courts to treat any offence more seriously when it can be shown to be aggravated by hostility towards persons of a particular sexual orientation or gender identity.12 Courts should therefore treat an offence more seriously if it has been motivated by a desire to suppress, “cure” or change an individual’s sexuality or gender identity.
9 Abduction is an offence under the common law of England and Wales (Lord Brandon: R v D, 1984) when it involves the taking of one person by another by force or fraud without the consent of the person taken or carried away and without lawful excuse.
10 There is already international precedent for this with two US States, Connecticut and Illinois, which have already introduced such provisions as part of their efforts to eradicate conversion practices. Further to this, the US Federal Congress passed a bill in 2019 that classified the provision and advertisement of conversion practices as a deceptive practice under the Federal Trade Commission Act.
11 The Sentencing Code forms parts 2-13 of the Sentencing Act 2020. (Explanatory note by Sentencing Council)
12 Crown Prosecution Service, ‘Homophobic, Biphobic and Transphobic Hate Crime – Prosecution Guidance’ (2020)
- Any ban on conversion practices must not inadvertently impact the ability of individuals to safely explore their sexual orientation or gender identity. Furthermore, the ban must not restrict the ability of transgender individuals to transition and to access other healthcare provisions they require. Legislation must therefore distinguish between harmful conversion practices and other practices that help people come to a consensual, comfortable, and self-accepting place with their gender identity or sexual orientation. It is the Forum’s view that the provision of affirmative healthcare services will not be disrupted by a ban on conversion practices as these services are founded upon the belief that no gender identity, expression or experience is any more valid, ‘natural’ or ‘normal’ than any other.
- A key distinguishing factor as to whether a practice allows safe and supportive exploration, or whether it is a harmful practice that falls within the ban, is whether the practice has a predetermined purpose with regards to a person’s sexual orientation or gender identity. That is, whether it is one-directional and prescribes how the individual ought to act or be, such as “acting” as a non-trans person or a heterosexual. (See Appendix II – Case Studies 5-7).
VI COMPLIANCE WITH THE EUROPEAN CONVENTION OF HUMAN RIGHTS
- Legislation banning conversion practices must comply with the European Convention on Human Rights (ECHR) and the Human Rights Act 1998. The Forum recognises that banning conversion practices will restrict certain practices that some consider are religious or cultural.
- A ban on conversion practices will not impose unjustified or unlawful restrictions on the right to manifest religion and belief, or freedom of expression.13 Any restrictions upon religious practice resulting from such a ban are necessary, justified and proportionate and therefore in accordance with Article 9(2) of the ECHR. Indeed, the Forum is of the view that the introduction of appropriate legislation will allow the UK Government to better comply with its duties under the ECHR and its wider human rights obligations in international law, specifically the State’s positive obligation to protect, which is of particular importance to those belonging to minorities more vulnerable to victimisation.14
- It is an established principle of international human rights law that conduct that amounts to degrading or inhuman treatment or torture must be prohibited by law. Failure to have legal and other relevant measures designed to ensure that individuals are not subjected to proscribed ill-treatment, including ill-treatment administered by private individuals, is a violation of human rights law. An example of this is A v United Kingdom (1999) EHRR 611, where the European Court of Human Rights held that the UK’s failure to provide an adequate framework of protection from ill-treatment was a violation of Article 3 ECHR.15
A) ARTICLE 3 ECHR & HUMAN DIGNITY
- Conversion practices amount at least to degrading treatment, and under certain circumstances may constitute inhuman treatment or even torture16 – all of which are absolutely prohibited by Article 3 ECHR.17 Conversion practices are at a minimum degrading as they combine direct discrimination on the grounds of sexual orientation or gender identity with a real risk of grave physical or psychological harm for anyone subjected to them.18 All states are under a positive legal obligation under Article 3 ECHR to set up an effective system deterring and punishing acts of ill-treatment, backed by enforcement mechanisms for the prevention, suppression and punishment of breaches.19
- Conversion practices also interfere with an individual’s right to respect for a private life under Article 8 as they violate their ability to live their life without arbitrary disruption or interference. States are again under a positive legal obligation under Article 8 ECHR to protect an individual’s right to a private life, and these obligations may involve the adoption of measures even in the sphere of relations between individuals.20 It is worth noting that even so-called non-coercive forms of conversion practices such as talking therapy or “healing” prayer, which are seen by some as “soft” forms of conversion practices, still amount to degrading treatment due to the actual harm or the real risk of grave psychological harm to which they expose their victims.
- Conversion practices not only harm the individual but negatively impact the LGBT+ community as whole. The mere existence of conversion practices conveys the belief that LGBT+ identities can and ought to be suppressed. This sends a message which “reproduces, and promotes, the social images of LGBTIQ+ people as abnormal, disgusting etc which ground their pre-existing stigma”,21 thus contributing to and maintaining the continuum of violence and stigma that LGBT+ individuals continue to face.
- The reality of this continuum of violence is illustrated in recent reports of homophobic and transphobic violence,22 as well as by the fact that registered hate crimes based on sexual orientation have more than tripled between 2014 and 2020. Alarmingly, according to government figures, transgender hate crimes increased 4.5 times in that same period.23 The pressure put on individuals to conform to societal, religious, or cultural expectations is naturally increased when confronted with a risk of general violence and harm. Futhermore, the existence of conversion practices contributes to sentiments which may then lead to other violent attacks on LGBT+ individuals.
- All conversion practices have in common that they treat LGBT+ people as being of less value, manifesting contempt for LGBT+ identities and refusing to respect the equal value of the well-being of LGBT+ people.24 They are consequently an affront to the human dignity of LGBT+ persons because they fail to recognise that all persons are of equal moral value irrespective of their sexual orientation or gender identity.25
B) POTENTIAL RESTRICTIONS OF ARTICLES 9, 10 AND 11 ECHR
- Unlike the prohibition on degrading treatment and torture, the freedoms of religion, belief, expression and association are not absolute rights, but can be qualified and restricted.26
- The right to freedom of thought, conscience and religion in Article 9 ECHR generally provides the freedom to believe and practise the tenets of one’s faith. However, it does not provide an unrestricted freedom to harm vulnerable individuals or remove their autonomy.
- The freedom of religion can be justifiably restricted where limitations are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.27 There are numerous examples where practices considered to be motivated by faith have been outlawed. For example, in Abrahamsson v Sweden it was found that a father’s wish to inflict corporal punishment as a form of chastisement on his child was not protected by Article 9.28 The House of Lords found a similar ban on corporal punishment to be compatible with Article 9.29 Importantly, there is no recognised right, be it in a religious or cultural context, to harm others physically or psychologically, or to expose individuals to a significant risk of harm.
- In the case of conversion practices, a ban is necessary in a democratic society (as required by Article 9(2) ECHR) as it protects the public safety of LGBT+ individuals, their right to health,30 and their general enjoyment of Convention rights, such as the right to private life under Article 8. The protection of health can be a justification in and of itself for interfering with the right to manifest religion or belief. The proposed ban is also proportionate, as the element of directedness provides a necessary limitation. The ban allows religious practices and expressions of views on sexual ethics and morals which may be opposed to LGBT+ identities but intervenes where acts that constitute conversion practices are directed at LGBT+ individuals.
- The outlined justifications for any potential limits on Article 9 ECHR apply equally when concerned with potential restrictions on the freedom of expression enshrined in Article 10 ECHR, such as concerning a potential ban on advertising, as well as potential restrictions on the freedom of association in Article 11 ECHR. Both Articles permit necessary and proportionate restriction on the grounds of public health and morals, as well as for the protection of the rights and freedoms of others.31
C) RESTRICTIONS ON PRAYER
- The right to manifest religion and belief, such as through prayer, cannot be construed to license and permit individuals to inflict physical or psychological harm, or significantly risk a person to suffer harm. There can therefore be no exemption for such conversion practices on the basis that they take the form of worship or other practices rooted in spirituality.
- Conversion practices provided by religious institutions and religious leaders, such as intensive prayer regimens and/or religious counselling, have been found to frequently result in deep shame, low self-esteem, and internalised self-hatred leading to profound mental health problems. This shows how coercive these practices can be, with direct parallels to the UK’s Forced Marriage (Civil Protection) Act 2007, which explicitly considers shaming tactics such as these to be coercive behaviour that violates the law when used to pressure an individual to get married.32
- The Forum recognises that exempting prayer that is directed at an individual with a predetermined purpose would lead to a significant loophole that would be open to abuse, especially as this exemption would also exclude exorcisms that are conducted as a form of conversion practice from a ban. This type of exemption would be misguided given that a great number of conversion practices are prayer-based and given that they are often conducted in a religious context and environment (see Appendix III).33 The Forum stresses that the ban would not criminalise any prayer that seeks to help an individual come to a point of peace and acceptance about their sexual orientation or gender identity, that is which does not have a predetermined purpose.
13 Or freedom of association and assembly to the extent that this right applies.
14 Bączkowski and Others v Poland (Application no. 1543/06) at .
15 The Court considered that “the obligation on the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment, including such ill-treatment administered by private individuals” (para 22).
16 Conversion practices have been described as such by the International Rehabilitation Council for Torture Victims in: IRCT, ‘It’s Torture, Not Therapy’ (2020). Further, Article 1 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment emphasises that “torture” encompasses any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted and thereby explicitly includes psychological harm.
17 Ireland v United Kingdom (1978) 2 EHRR 25, para 163.
18 I. Trispiotis, C. Purshouse, ‘ “Conversion Therapy” as Degrading Treatment’, Oxford Journal of Legal Studies 2021, pp. 1–29, pages 11-24 (doi: https://doi.org/10.1093/ojls/gqab024). See also Aghdgomelashvili and Japaridze v Georgia, Application No. 7224/11, 8 October 2020 at  and –; M.C. and A.C. v Romania, Application No. 12060/12, 12 June 2016 at 116–118; Identoba and Others v Georgia, Application no. 73235/12, 12 May 2015, paras -.
19 See Đorđević v Croatia, Application No. 41526/10, 24 July 2012, para 138; Beganović v Croatia, Application No. 46423/06, 25 June 2009, para 71; Nachova and Others v Bulgaria, Application Nos. 43577/98 and 43579/98), 6 July 2005 (Grand Chamber), para 96; A v United Kingdom (1998) 27 EHRR 611, para 22.
20 MC v Bulgaria, para 150
21 I. Trispiotis, C. Purshouse, ‘ “Conversion Therapy” as Degrading Treatment’, Oxford Journal of Legal Studies 2021, doi: https://doi.org/10.1093/ojls/gqab024 (pp. 1–29, pages 6-8)
22 See BBC, Liverpool attacks: ‘Things must change or LGBT people won’t feel safe‘” from 24 June 2021, [Accessed 23 August 2021]; BBC, “LGBT hate crime reports on the rise in the UK” from 10 October 2020, [Accessed 23 August 2021].
23 Contrasting Hate crimes, England and Wales, 2013 to 2014; and Hate crimes, England and Wales, 2019 to 2020.
26 See Article 9(2), Article 10(2) and Article 11(2) ECHR respectively.
27 Article 9(2) ECHR.
28 Abrahamsson v Sweden (Application No. 12154/86).
29  UKHL 15.
30 Within a medical context, the World Medical Association has judged conversion practices to be incompatible with the ethics of medical care. Further, Article 12 of the International Covenant on Economic, Social and Cultural Rights, to which the United Kingdom is a party, recognises “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”. And Council of Europe Social Charter – SOGIE special rep refers to this.
31 Articles 10(2) and 11(2) ECHR, respectively.
32 The Forced Marriage (Civil Protection) Act 2007 considers force to include “coerce by threats or other psychological means” and the Government’s guidance for Forced Marriage discusses emotional and psychological pressure that can lead to people marrying against their will, including “making someone feel like they are bringing ‘shame’ on their family”.
33 The Government’s National LGBT+ Survey 2018 found that 51% of conversion practices were conducted by a faith organization or group.
- It is the Forum’s view that it is not possible to consent to conversion practices in a free and informed manner, and that it should be no defence that victims appeared to have consented. Psychological harm that takes the form of a recognised psychiatric illness such as depression, PTSD or anxiety falls within the ambit of bodily harm under the Offences against the Person Act 1861.34These mental health consequences have all been observed to occur at a higher frequency in LGBT+ people who are victims of conversion practices than in other LGBT+ individuals.35
- Conversion practices amount at least to degrading treatment under Article 3 ECHR. Although consent is not irrelevant in determining whether conduct amounts to degrading treatment, focusing only on consent detracts from an evaluation of the background conditions in which ill-treatment was inflicted. The European Court of Human Rights places a lot of emphasis on those background conditions, i.e. places significant emphasis on the circumstances under which someone was ill-treated, such as the existence of widespread and well-known prejudice against a protected group or the vulnerability of the victim.36
- Conversion practices depend on a social context of historical stigmatisation on the basis of homosexuality. The relationship of that context with the pressure on many LGBT+ persons to resist their sexuality or gender identity – a pressure that a heterosexual, non-trans person does not experience – has independent legal significance. Those background conditions of conversion practices, in combination with the direct discrimination on the grounds of sexual orientation or gender identity that they involve and the real risk of grave physical or psychological harm that they pose to anyone subjected to them, leads to the conclusion that conversion practices amount at minimum to degrading treatment. Consent cannot be a defence to any conduct that amounts to a violation of Article 3 ECHR.
- Any exemptions that may apply to assault do not apply to conversion practices. For example, conversion practices cannot be compared to sport. There is no referee in conversion practices making sure that each side “plays fair”. Conversion practices are not overseen by accredited and recognised experts who can mitigate the harm theoretically being consented to. Those experts do not, and cannot, exist. Conversion practices cannot be equated to horseplay gone wrong. As a matter of law, the harm caused by conversion practices cannot be consented to.
- It is also important to recognise that there is a significant level of deception involved in the promotion and endorsement of conversion practices that negates an individual’s ability to consent. Pseudoscientific studies are often cited by those who conduct conversion practices as evidence that their methods are effective and will result in a permanent change of sexual orientation and gender identity. These studies have been discredited both by legitimate scientific organisations and by the researchers who conducted the studies.37
- Individuals who seek out conversion practices in the hope of being “cured” are not made aware of the severe psychological harm to which they are exposed to, and so cannot give informed consent. The motives of individuals seeking out such practices lie in stigmatisation, social pressure and the historic oppression of LGBT+ identities. Given the noted deceptive and unscientific nature of conversion practices and the stigmatisation that leads individuals to these practices, it is impossible to speak of an ability to give free and informed consent in relation to conversion practices. (See Appendix IV)
- Furthermore, a victim’s conduct cannot be considered in any way as a justification for resorting to behaviour prohibited by Article 3 ECHR. The Convention prohibits, in absolute terms, torture and inhuman or degrading treatment or punishment. Thus, irrespective of the appearance of consent, the perpetrator has no defence for inflicting on a victim the ill-treatment inherent in conversion practices.38
- A ban on conversion practices would be undermined and many vulnerable individuals would fall victim to the practice if exemptions were allowed on the basis of consent. There is now a vast library of testimonies from members of faith communities who have denounced conversion practices following their participation in them. These are individuals who actively sought out and “consented” to these practices who have since provided evidence of the severe, long-term, negative psychological impact such practices have on people regardless of their desire to suppress, “cure” or change their own identity at the time.39
- It is not only the individual who would be harmed if exemptions were made. Allowing any LGBT+ person to undergo conversion practices would contribute to and promote the continued stigmatisation of LGBT+ persons in wider society and damage the LGBT+ community as it furthers the belief that LGBT+ people are undesirable, abnormal and need to be “cured”. As such, even where an individual states that they were not harmed by conversion practices or that they “consented”, public policy still requires a full ban in order to give a clear indication as to what is and is not acceptable for matters of public health and safety. This is akin to other public policy areas such as the requirement to wear a seatbelt, which is required whether or not a driver believes they are at risk. Irrespective of different levels of risk between the two settings, the reality that an exemption would create loopholes and confusion justifies an outright ban with no exceptions.
34 Psychological harm that involves more than mere emotions such as fear, distress and panic can amount to ABH. However, psychological injury not amounting to recognisable psychiatric illness does not fall within the ambit of bodily harm for the purposes of the 1861 Act (R v D  EWCA Crim 1139).
35 The Conversion Therapy and Gender Identity Survey 2020 found that instances of attempted suicide, suicidal thoughts, eating disorders, anxiety and depression occurred at a higher frequency in gender diverse participants who had been subjected to Gender Identity conversion practices.
36 See Identoba and Others v Georgia, Application no. 73235/12, 12 May 2015. Also Bouyid v Belgium, Application No. 23380/09, 28 September 2015 (Grand Chamber)
37 Spitzer, the researcher responsible for the most cited study, issued an apology to the gay community for making “unproven claims of the efficacy of ‘reparative therapy’” “Spitzer Reassesses His 2003 Study of Reparative Therapy of Homosexuality” Archives of Sexual Behavior 41, No. 4 (2012).
38 See Gäfgen v Germany (Application no. 22978/05), the European Court of Human Rights ruled that regardless of the circumstances, even if a life was at stake, degrading treatment should not be inflicted on an individual as there can be no weighing of other interests against Article 3. See also Laskey et al v United Kingdom,  24 EHRR 39, a prosecution for consensual sado-masochist acts was a necessary invasion of privacy to protect health.
39 Annex 2 of the ILGA World Report on Conversion Practices includes 11 testimonies from LGBT+ individuals that underwent and advocated for conversion practices rejecting their previous statements and denouncing the practice.
- A legislative ban must protect both actual victims and those at risk of being subjected to conversion practices. It must both empower and protect victims, and the procedure for intervention and enforcement must be effective, swift, and sensitive. The criminal law will play a crucial role in ending conversion practices, but it is hoped that the scheme of the ban will rely mainly on civil law and civil remedies, as well as a soft law approach to ending conversion practices. Prosecutions are an essential part of the tool kit to ban conversion practices, but they should be the option of last resort and/or reserved for the most serious cases.
- The Forum recommends the implementation of a framework akin to that for so-called honour-based violence (HBV) and forced marriage frameworks to ensure adequate protection of victims.40 Such a framework necessarily entails the introduction of protection orders, emergency housing, awareness drives, and multi-agency guidelines for support services:
a) Protection Orders: Victims of conversion practices are often aware in advance that they will suffer abuse if they come out or are outed as being LGBT+. Those at risk frequently require protection from those closest to them, including their local communities, friends, families, and faith groups. Ex-parte orders or a new form of CAWNS (Child Abduction Warning Notices) must be available due to the immediate risk to life and health that conversion practices pose. Should the orders be breached, the breach of the order must constitute a criminal offence. This provides immediate protection for potential victims where it is not feasible to wait for a criminal conviction or a police investigation to take place first.
b) Emergency Housing: Conversion practices are often committed within private residences, such as the home of the victim or another community member, so access to emergency housing is vital for the safety of those being subjected to conversion practices or those at risk. Research has shown that as many as 30% of homeless youth in the UK are LGBT+ and LGBT+ anti-abuse charities have noted a significant number of cases of homelessness as a result of people fleeing conversion practices.41 A statutory mandate for emergency housing for victims of conversion practices forced to flee their homes is therefore essential.
c) Anonymity: The Forum recommends that lifelong anonymity for victims of conversion practices should be granted if requested, just as it has been granted for victims of forced marriage under part 10 of the Anti-social Behaviour, Crime and Policing Act 2014, as inserted by section 173 of the Policing and Crime Act 2017. The assurance of anonymity throughout the reporting process and afterwards will give victims more confidence to come forward. This will allow them to receive the support they need and deserve while enabling perpetrators to be brought more effectively to justice.
d) Awareness Incentives: Increased education and engagement with the general public regarding conversion practices will provide victims with the language and knowledge to understand their experiences, the awareness that their treatment is not acceptable or legal, and that support is available for them. The Forum believes that this will likely result in increased self-identification and more victims reaching out to services for support and protection. Special consideration must be given to those from religious communities, as youth from religious backgrounds are most likely to seek out conversion practices.42 It is imperative that all LGBT+ individuals can explore their identity in a safe environment.
e) Guidance and Training for Professionals: Statutory multi-agency practice guidelines and training for police, criminal justice professionals, education and medical professionals, child and adult social services, voluntary support services, and all other relevant organisations are essential to ensure appropriate recognition and risk-assessment of conversion practice victims. All guidance must provide step-by-step advice on how to handle cases of actual and potential conversion practices, with detail on recognising the warning signs. Without this information, abusive conversion practices may be misinterpreted as a generational, cultural, or religious ideological disagreement, and the pattern of escalating behaviour that often occurs in the lead-up to conversion practices would also be missed.
f) LGBT+ Specific Support Services: The Forum recommends that appropriate and accessible services be provided to support victims and enable reporting, as well as providing access to the criminal justice process. In the case of conversion practices, victims face significant barriers to reporting the abuse that they are experiencing or are at risk of. Services provided by LGBT+ people for LGBT+ people are best equipped to break down these barriers as they are more able than general services to access at risk communities and isolated individuals, gain trust more easily and encourage self-referrals than general services.43
40 Crown Prosecution Service publication: Honour-Based Violence and Forced Marriage [Accessed 29th August 2021]
41 K. Browne, ”Count me in Too: LGBT Lives in Brighton and Hove, initial findings, academic report” (2007) University of Brighton and Spectrum; A. Keuroghlain et al. “Homelessness among lesbian, gay, bisexual Youth: Implications for Subsequent Internalising and Externalising Symptoms” American Journal of Orthopsychiatry, 84(1), p66-72; B. Roche, “Sexuality and Homelessness” (2005) London: Crisis; J. Jeffery et al., “Why Sexual Orientation is Important for Social Housing Providers” (2010), York: HQN and Stonewall Housing.
42 See the Government’s National LGBT Survey 2018 and the Ozanne Foundation’s 2018 Faith & Sexuality Report
43 Generally, LGBT+ individuals are less likely to report abuse and violence directed towards them across all crime types. The Government’s ’National LGBT Survey: Summary Report‘, (2018) found that more than 9 out of 10 incidents classed as ‘most serious’ experienced by LGBT+ people are not reported to the police or general services.
REPORTING & WHISTLE-BLOWING
- Due to a significant amount of abuse being perpetrated in private residences, rather than in public or religious buildings, the Forum believes that an effective method of reporting will be essential in uncovering abuse. It will also be important to identify and react to any attempt to veil conversion practices to avoid scrutiny, as they are likely to be carried out in a covert manner following the introduction of a ban.
- The Forum recommends that intelligence gathering and tracking systems be developed to identify repeat offenders who continue to promote and undertake conversion practices in order to bring them to the attention of the relevant authorities.
- In line with the Public Interest Disclosure Act 1998, institutions must have clear policies in place for raising concerns regarding conversion practices. The Forum recommends that an external regulator be appointed that is accessible to those who seek to whistle-blow. Whilst it may be appropriate to establish a new regulator specifically for conversion practices, it is possible that an existing regulator could be considered, such as the Equality and Human Rights Commission or the Care Quality Commission.
- The regulatory body must have a hotline for reporting suspected conversion practices.
A ban on conversion practices should be implemented without delay. While this ban must ultimately be regulated by the criminal law, civil law remedies are the preferred means of ending conversion practices. It is vital that the definition implemented is sufficiently broad to effectively capture all forms these practices can take. Legislation must not allow any potential loopholes for individuals and institutions to continue undertaking conversion practices under a modified aim or false pretence. Finally, both statutory and non-statutory support must be provided to sufficiently protect at risk LGBT+ people.
A teenager, M, is ashamed that she is experiencing attraction towards people of the same sex and confides in her youth group leader about her fears that she might be gay. She is told that she should accept that she suffers from these feelings but that she must never “act on them” and must either endeavour to have a relationship with a man or remain single and chaste for life. The minister offers to pray for M, and when doing so prays that she will have the strength to not ever act on her feelings. M leaves and later that evening tries to commit suicide as she believes that she will never know the joy of intimacy or love.
A young man in his early twenties, X, knows that he is gay and that the community that he is part of will not accept him being open about this fact. He goes to a counsellor, who works with him to try and hide any behavioural habits that might lead people to believe that he is gay – such as the way he walks, talks or dresses. He is given exercises to do to make him appear “more manly” when interacting with his community. This causes him five years later to have a breakdown.
A middle-aged woman, B, who has a history of sexual abuse as a child, realises that she is attracted to another woman in her religious community. She confides in her prayer group about this and asks them to pray for her. They ask her to share about her past, as they believe there must be a reason why she is attracted to a woman. When they find out about the abuse they are convinced that is the cause of the problem, and ask her to recount all the details so that they can pray into the situation and so “heal” her of her attraction.
A young pubescent boy, Z, is found by his parents to have magazines of men under his bed. They approach their religious leader to ask what they should do about it. They are told that he must be made to drink a certain potion each day, which he gives them, and that they should lock him in his room each night until he admits he no longer is attracted to men.
A married man, C, realises that he is attracted to men and goes to see a private psychotherapist who is recommended by a friend at his church. He explains that he wants help in stopping these feelings, and the psychotherapist agrees to help him by giving him an elastic band to wear. He is told he must snap it against his wrist every time he has these feelings and that they will soon go away.
A young trans girl, H, goes to seek help from her local GP. She is clear that she is a girl, wants to use the pronouns “she” and “her” and use the name H. The GP refers her to a psychiatrist who tells her that she is not trans, but rather that ‘he’ is a confused young gay male. The psychiatrist uses exposure therapy on H by way of making her look at gay male imagery and imagery of ‘male anatomies’ telling her that most gay men will ‘think they are a girl’ when they are young, but then ‘grow out of it’. H is not referred to any professional support services that would allow her to explore and find support for her gender without a predetermined purpose.
CASE STUDY 1
A is bisexual and attends her local church. During a sermon, the priest, C, reads passages from the Bible saying: “these passages of Scripture make it clear that homosexual activity is sinful”.
Commentary: The acts in Scenario 1 would not be covered by the ban as the priest C does not direct his act of preaching against A. It is a general sermon aimed at the entire congregation and is not sufficiently directed at a particular individual and does not specifically aim to change A’s sexual orientation. Contrary to the publicised fears of certain religious groups, the expression of religious views on sexuality and gender will remain unaffected and the ban should not constitute an inherent restriction on religious freedom. This is in full compliance with the European Convention on Human Rights, specifically Article 9 ECHR, and does not go beyond what is necessary to protect LGBT+ persons from the harms of conversion practices.
CASE STUDY 2
B is bisexual and is on her way to work. On the way, she notices a street preacher, C, shouting passages from Leviticus and holding a sign that says gays will burn in hell unless they change.
Commentary: Whilst C’s actions could potentially constitute harassment or hate speech, the action should not fall into the scope of “conversion practices” as it is not sufficiently directed at B. The expression of views on sexual ethics and morals will not be restricted by the ban. It is when these views result in harmful acts aimed at individuals that the State must intervene.
CASE STUDY 3
B, C, and D are homosexual and attend their local church. The priest, E, knows of their sexual orientation, and asks B, C, and D to come to a prayer room after the service. There, E says, “these passages of Scripture make it clear that homosexual activity is sinful” and that B, C and D need to stop “walking on the wrong path and repent for their sins”. E proceeds to attempt to “heal” B, C, and D of their sexual orientation in a lengthy prayer session.
Commentary: Here, the priest E is found liable for acts that attempt to suppress, “cure” or change B, C and D’s sexual orientation. The act is sufficiently directed at B, C and D by virtue of their being singled out from the congregation with E speaking prayers aimed at “healing” them. Whilst the expression of E’s view on the sinfulness of homosexual activity falls outside the scope of the ban, E committed an offence under the proposed legislation when s/he directed actions towards B, C and D in order to suppress, “cure” or change their sexual orientation.
CASE STUDY 4
A is 21, lesbian, and part of a religious community which views non-heterosexual orientations as inherently sinful. Her community pushes her to take part in a series of “therapy” sessions which are intended to stop her from experiencing homosexual thoughts. In the sessions, the “therapists” show A pornographic material of heterosexual couples, and subject A to lengthy prayer sessions in which they stress that homosexuality is wrong and sinful. When this comes to the attention of the police, the “therapists” say they were not trying to change A’s sexuality but rather that they were helping her suppress unwanted thoughts and sexual feelings.
Commentary: Not including suppression of sexual orientation and gender identity in a ban risks perpetrators simply changing the desired purpose of their actions whilst they continue to undertake the same practices as before. It makes little difference to the harmful effect on LGBT+ individuals whether the practices are carried out with the goal of “suppressing” their sexuality or to “change” their orientation. The underlying factor in both cases is the subjection of individuals to psychologically and at times physically harmful practices on the basis that their sexual orientation or gender identity is viewed as wrongful or undesirable.
CASE STUDY 5
B is 23 years old and identifies as a trans man. B goes to a private clinic and requests gender affirming surgery. C, a private practitioner, denies his request on the basis that the new conversion practice ban prohibits C from changing B’s gender, even with B’s consent.
Commentary: Scenario 5 is not covered by a ban on conversion practices as it is based on fundamental misconceptions regarding the meaning of gender identity. “Gender identity” refers to a person’s internal and individual experience of gender, which may or may not correspond with the sex assigned at birth. In this case, B is not asking C to “suppress, “cure” or change” their gender, given that B identifies his gender as male. As such, any regulated healthcare provisions affirmative of this gender identity are not prohibited by the ban. However, this scenario highlights the need to make it clear to public authorities that safe and supportive practices that allow people to explore, better understand and/or affirm their gender identity or sexual orientation are not included in the ban.
CASE STUDY 6
D, 16, is experiencing gender dysphoria and goes to see E, an NHS practitioner at the Gender Identity Development Service (GIDS) for children and young people. E does not believe in the validity of transgender identities in those under 18. E tries to persuade D that his dysphoria is “a phase” and that he is actually a lesbian rather than a trans man. D makes clear he does not identify as lesbian, but E refuses to engage with D’s self-identification as a trans man and calls D “confused”. E bars D from consideration for hormonal treatment, officially on the basis that, in his medical opinion, a “wait and see approach” is required. E later admits to S, the practice’s secretary, that E actually did this because D “looked too feminine to be a man”, so D must be “confused”.
Commentary: This is an example of what should not be permitted in a medical context, indeed it should be prohibited already. What makes E’s conduct wrongful is the fact that E persistently refutes D’s gender identity and tries to steer D to a predetermined purpose desired by E. This is reinforced by E calling D “confused”, even though there is no basis for these claims. As such, E’s talking therapy has the purpose of suppressing D’s gender identity and counts as a conversion practice. It is important to note that there are multiple requirements that need to be met before the NHS can offer hormonal treatment to children. However, where these requirements are met but such provisions are denied on non-medical grounds, this constitutes an act of suppression under the ban.
CASE STUDY 7
F, 16, is experiencing gender dysphoria and goes to see G, an NHS practitioner supporting young people with gender dysphoria. G discusses F’s dysphoria and after a long conversation notes that F is not as sure about their gender identity as they had initially thought. On the basis of this conversation, G recommends that F wait and see for some further time before considering hormonal treatment, as, in his medical opinion, this would be in F’s best interests given their confusion regarding their gender identity.
Commentary: Based on the facts, there is nothing done or said by G which would fall within the scope of the proposed ban. G makes his recommendations purely on the basis on the evidence presented and having F’s best medical interests in mind, given that F is not entirely sure about their gender identity. As such, the proposed wait and see approach does not “change” or “suppress” F’s gender identity.
“In 2017, Josh went undercover for the Liverpool Echo to a Liverpool church that offered a cure for homosexuality through a three-day starvation programme. The assistant pastor told Josh to starve himself and not drink any water before taking part in weekly prayer sessions, referring to being gay as “the deceit of Satan”. In the prayer groups the assistant pastor would shout phrases such as “kill it with fire” and “die in the fire,” while members of the congregation were seen crying, shaking, sweating and appearing to speak in tongues. It is shocking that the assistant pastor was an NHS doctor at that time, and I can find no evidence that he is no longer an NHS doctor.”
Commentary: A person who takes part in a prayer-based conversion practice is no less harmed or impacted simply because the exact same words and content normally voiced in an “aversion therapy” are voiced as a “prayer”. In this case, the religious context and the verbal directions to “kill it with fire” and “die in the fire” could well lead to more psychological harm than pseudo-scientific counselling, given the demonisation of LGBT+ identities and the references to a “deceit of Satan”.
“As a boy, Joe grappled with his hidden gay identity before leaving for his year in a yeshiva in Israel—a highly significant moment for many young Jews. He sought out conversion therapy and began weekly phone calls with a so-called therapist. After a year this clearly had not worked and he sought in-person therapies, where a group leader would force them to process moments of homosexual attraction, only for them to be scrutinised, judged and shamed, leaving Joe with an immense sense of depression. Thankfully, after hearing other gay Orthodox Jews speak out about their own experience, he stopped his conversion therapy, but the experience has left a scar to this day.”
Commentary: Irrespective of Joe’s apparent consent to the in-person therapies, the practices he was subjected to clearly left a scar to this day and caused him long-term psychological harm. The perpetrators did not inform Joe of the lack of efficacy and unscientific, deceptive basis of their practices. The state must intervene to protect LGBT+ individuals from such harmful practices.