Human rights implications of proposals to ban “conversion therapy”

Extracts from the Advice of Jason Coppel QC and Rupert Paines, 29 April 2021

[Numbers refer to paragraphs within the full opinion – available here.]

In brief summary, the convictions of the Institute (and of its supporters) which are particularly relevant to this advice include that:
(1) Marriage is the lifelong and monogamous union of one man and one woman, and sexual conduct outside of marriage is sinful.

(2) Sexual acts with persons of the same sex (which necessarily cannot take place within marriage) are sinful.

(3) Gender (masculine or feminine) is not separate from the biological sex (male or female) of each person’s body, but is rather rooted in, flows from, and is discovered in relation to the biological sex of each person’s body.

The Institute does not support any efforts or practices, whether medical, psychological, or otherwise, that involve violence or coercion of a person to change their sexual orientation or gender identity. It would regard any such practices as abhorrent. However, the Institute is concerned that a ban on CT may – if broadly framed – prohibit and criminalise the statement, teaching and practice of traditional Christian beliefs both in churches and in domestic settings. Accordingly, we have been asked to advise upon (a) the legal principles which apply when assessing the compatibility with the ECHR of any proposals to ban CT, and (b) the compatibility with Convention rights of various possible definitions of CT (set out below), as applied to various hypothetical but everyday scenarios of Christian and family life.

In summary, for the reasons given below, we consider that:
(1) The relevant beliefs regarding sexual ethics and gender identity, the freedom of church organisations to preach those beliefs, and to require conformity to them as a matter of church discipline, and the ability of parents to seek to inculcate such beliefs, and behaviour in accordance with those beliefs, in their children are, in principle, protected by Articles 8, 9, 10 and 11 ECHR.

(2) There are, nevertheless, limited situations in which the preaching and teaching of such beliefs is not protected and may be prohibited – essentially, where there is improper pressure or coercion, or abuse of power, or incitement to hatred.

(3) Various definitions of CT, including one recently enacted in Victoria, Australia and one recently proposed in Canada, would prohibit actions in a range of commonplace situations, which do not involve improper pressure or coercion, or abuse of power, or incitement to hatred, where the relevant beliefs are expressed, taught or applied as a matter of church discipline.

(4) It follows that, in our view, any prohibition of CT going beyond the existing criminal law raises serious issues of compatibility with Convention rights. The definition of CT to which any such prohibition is to apply must be carefully circumscribed if it is not to infringe the Convention rights of Christians and Christian church organisations to manifest and express their religious beliefs. If used as the basis for the prohibition of CT in this country, the definitions we have been asked to consider would be likely to violate Convention rights.

…In February 2021, the Australian state of Victoria passed the Change or Suppression (Conversion) Practices Prohibition Act 2021 (the “2021 Act”). The 2021 Act prohibits ‘change or suppression practices’ (“CSP”) as defined in s. 5 as “a practice or conduct directed towards a person, whether with or without the person’s consent – (a) on the basis of the person’s sexual orientation or gender identity; and (b) for the purpose of— (i) changing or suppressing the sexual orientation or gender identity of the person; or (ii) inducing the person to change or suppress their sexual orientation or gender identity”. …

Legislation has been proposed in the Canadian House of Commons (Bill C-6), which would criminalise conversion therapy knowingly applied to adults without their consent or to minors with or without their consent. The draft definition of “conversion therapy” is (§320.101) “a practice, treatment or service designed to change a person’s sexual orientation to heterosexual, to change a person’s gender identity or gender expression to cisgender or to repress or reduce non-heterosexual attraction or sexual behaviour or non-cisgender gender expression”. …

A further definition we have been asked to consider has been proposed by a campaign group, ‘Ban Conversion Therapy’ (“BCT”), in an open letter to Liz Truss MP. They stated that: “Any form of counselling or persuading someone to change their sexual orientation or behaviour so as to conform with a heteronormative lifestyle, or their gender identity should be illegal, no matter the reason, religious or otherwise – whatever the person’s age”.

A fourth definition, which we shall call the “General Definition”, has been provided to us by those instructing, and is a hypothetical definition formulated by the Institute. It is that: “Conversion therapy means any treatment or practice that seeks to change or suppress a person’s sexual orientation or gender identity”.

… The definitions apply to a very broad range of conduct: they are not restricted (e.g.) to medical or quasi-medical interventions, or to interventions involving physical harm; the Victorian definition applies expressly to religious practice. It is also notable that the Victorian legislation, and the Canadian legislation in respect of minors, expressly apply irrespective of whether or not the individual has consented to the relevant conduct.

We have summarised the relevant beliefs of the Institute in §3 above. In our view, it is clear that the manifestation of these beliefs by public and private prayer, teaching, guidance, and conversation would be protected by Article 9(1) ECHR (and also by Article 10 ECHR, the right to freedom of expression). Article 9(1) ECHR expressly protects the manifestation of belief “in public or private … in worship, teaching, practice and observance”. While not all Christians subscribe to the relevant beliefs, as we have already noted, they are not eccentric or peripheral matters of belief. They have a long history within Christian theology and sexual ethics.

The Courts have consistently regarded such beliefs as protected by Article 9 ECHR and worthy of respect as such. …

A further important aspect of the Article 9 freedom of religion and belief is freedom (within limits) to attempt to convince others of the truth of one’s beliefs. The ECtHR recognised in Kokkinakis v Greece (1994) 17 EHRR 397 that “bearing witness in words and deeds is bound up with the existence of religious convictions” and that freedom of religion and belief “includes in principle the right to try to convince one’s neighbour”, for example through ‘teaching’”. …

…We understand that the evidential basis currently relied upon by advocates for a CT ban principally comprises of two studies: (a) two questions in the National LGBT+ Survey (“NLS”), conducted by the Government Equalities Office, and published in July 2018, and (b) a survey by the Ozanne Foundation, titled the ‘2018 National Faith & Sexuality Survey’ (“NFSS”). We do not consider these studies in detail but would note that they have features which are likely to limit their value in justifying legislative action against CT, particularly if that concept is broadly defined. … By far the most common form of attempted change referred to by respondents was “private prayer”, which one would not expect to be the focus of a future legislative prohibition of CT. …

We are asked to consider, in relation to each scenario, whether the scenario describes behaviour which would be prohibited under the Victorian, Canadian and BCT definitions of CT, and the General Definition, which are outlined above, and also whether legislation which prohibited such behaviour in this country would be likely to be compatible with the Convention rights of those expressing the relevant beliefs.

Scenario A: Evangelism “A Christian shares her faith with a friend at work. The colleague is interested but reacts angrily when she learns that all people must repent of sin, including sexual sins. She is in a same-sex relationship. She tracks down her colleague’s church online and reports her and the church. She claims they told her she would ‘go to hell for being gay’ in an attempt to change her.”

(1) Subject to the question whether such treatment was “on the basis of the person’s sexual orientation or gender identity”… this would be a [change or suppression practice] for the purposes of Victoria: it would be ‘conduct’ which (apparently with consent) sought to suppress that person’s manifestation of sexual orientation. …

(2) The Christian’s actions would likewise be CT for the purposes of the [Ban Conversion Therapy campaign] definition: the Christian’s action would be a form of persuasion to change sexual orientation or behaviour to conform to a heteronormative lifestyle.

(3) If characterised as a “practice”, it would likewise be CT for the purposes of Canada: the Christian’s action seeks to “repress or reduce … non-heterosexual … sexual behaviour”. …

(4) Again subject to the meaning of “practice”, it would also be likely to be CT for the purposes of the General Definition: it involves seeking to change or suppress sexual orientation.
Any prohibition of the conduct in Scenario A would clearly engage Article 9 (and probably Article 10 also): the Christian’s conduct falls squarely within the principles set out in Kokkinakis v Greece. Unless there was some (unstated) element of undue pressure, coercion, or incitement to hatred, it is hard to see how such a prohibition could be justified: this appears to be a consensual conversation between adults. The expression of views by the Christian, while unacceptable to the friend, falls within the right to express views which offend. There is nothing to suggest that the friend was particularly vulnerable and in need of protection, and it is unlikely to be proportionate for the law to proceed on the basis that all those with non-heteronormative sexual orientations or gender identities are vulnerable to the extent that any questioning of the truth or legitimacy of those sexual orientations or gender identities must be prohibited.

Scenario B: Church Membership
“A church removes a man from membership for being persistently unfaithful to his wife, he is told he will be restored to membership only if he repents. Since the unfaithfulness involves homosexual activity, the man accuses the church of trying to repress his sexual orientation.” …

If this conduct were prohibited as CT, this would be likely to constitute a disproportionate interference with Article 9 and 11 rights. As already set out, one of the fundamental facets of freedom of religion or belief is the right of a religion to determine its own beliefs and practices, the legitimacy of which should not be questioned by the state. A prohibition on removal from membership in such circumstances would effectively compel the church to maintain as a member someone who is not regarded by the religious community as a suitable member, and who does not practise according to the convictions of that community. …

Scenario D: Parenting 2
“A teenager who is confused about her gender identity confides in her form tutor that her Christian parents believe she should stay in her biological birth sex. She says that when the topic comes in conversation, they will say she is beautiful and try to persuade her to accept her biological body. The teacher reports the parents for subjecting their daughter to ‘repressive conversion therapy’.” …

… We consider that this conduct would constitute a CSP on the Victorian definition, on the basis that it is directed at changing gender identity, notwithstanding that the teenager appears not to have a fixed view of their gender identity. The conduct would also be CT for the purposes of the BCT definition and, subject to the question of whether the parents’ conduct comprises a ‘practice’, CT for the purposes of Canada and the General Definition also. …

Scenario E: Baptism and Confirmation
“An Anglican church requires candidates for adult baptism or confirmation to attend classes. These cover ‘Christian living’, including sexual ethics. A candidate strongly objects to hearing that homosexual relationships are wrong. He is told he cannot be baptised unless he accepts the Bible’s teaching. He reports the church to the authorities for trying to change his sexual orientation.” …

For much the same reasons as set out in relation to Scenarios A and B, it seems likely that if such conduct were prohibited, the prohibition would violate Articles 9, 10 and/or 11 ECHR. …

Scenario I: Communion
“A Grace Baptist church protects people from taking communion in an “unworthy manner” (1 Cor. 11:27-28) by only serving it to believers who are not involved in “known sin not repented of”. An openly gay visitor from a liberal church learns he cannot take communion. He says the refusal is an attempt to change his sexual behaviour and reports the church.”

This Scenario raises essentially the same issues as with the removal from membership and baptism/confirmation Scenarios B and E above. On the assumption that such conduct (refusal of communion to unrepentant sinners) would be a practice, one of its aims would be to change/suppress the expression of sexual orientation. It would therefore be likely to be caught by the definitions. For much the same reasons as in Scenarios B and E, such a prohibition would be likely to be an unlawful interference with ECHR rights. It is no part of the function of the State to determine who is and is not entitled to receive communion in any Christian church.

Scenario J: Private Prayer
“A church member wrestling with same-sex attraction asks both the pastor and a church friend to pray with him. Years later he joins a ‘gay affirming’ church. He decides the prayer support was really conversion therapy. He reports the pastor and his former friend to the authorities.”

…Subject to the possibility of improper pressure or coercion being expressed during the prayer (which is not suggested), any prohibition of such conduct would be likely to be a violation of ECHR rights: the conduct appears to have been consensual at the time it was undertaken, and (at that time) essentially the voluntary actions of individuals in a religious community. …

Click here to read the full opinion.