Conversion therapy: Alliance MLA’s trans law proposals for Stormont condemned by top KC in devastating legal critique

• Plans for a new trans law for Northern Ireland which could see parents jailed for stopping their children changing gender have been branded unlawful by one of the foremost human rights KCs.

• The proposed legal imposition would also result in faith leaders – along with ordinary mums and dads – facing sentences of up to seven years and hit with unlimited fines for involvement in so-called ‘conversion therapy’ practices.

• But the scheme has been fiercely attacked in a withering 70-page critique by Aidan O’Neill KC, who has been called in to advise The Christian Institute (CI), which is opposing the law change.

• The KC states that the proposals – almost identical to those put forward and now shelved by the Scottish Government – are outwith the powers of the Northern Ireland Assembly.

• Details are contained in a controversial Member’s Bill proposal drawn up by Alliance MLA Eóin Tennyson, which has been subject to public consultation.

Unsuitable as a Member’s Bill

Mr O’Neill highlights procedural problems related to the plans which make it unsuitable as a Member’s Bill.

Members’ Bills are required to concern only one Stormont department. The Tennyson Bill tries to avoid ‘cross-cutting’ into another department by limiting its scope to purely criminal justice matters.

But the Minister of Justice has already deferred it to the Department for Communities suggesting it is not simply a criminal justice concern. And the Department of Health would also be involved – meaning the participation of three departments.

In addition, the KC continues, the proposals “may be said to be a significant or controversial matter that is clearly outside the scope of the current programme … agreed by the Executive Committee and approved by the NI Assembly”.

He states: “The NI Assembly has resolved that a Member’s Bill is not an appropriate vehicle ‘to progress significantly complex or cross-cutting legislative change’.”

Beyond Stormont’s powers

Mr O’Neill notes that the intended aim of the Bill is “to end conversion practices in Northern Ireland; sending a clear signal that practices which attempt to change or suppress an individual’s sexual orientation and/or gender identity are wrong, that they are harmful to individuals and society, and will constitute an offence”.

While the KC states there are very strong arguments that the plans are “beyond the legislative competence” of Stormont, he further dismantles the detailed proposals of the Bill and takes a legal wrecking ball to Tennyson’s plans, saying:

“Like the Scottish draft Bill these proposals for NI legislation are perhaps best described as “jellyfish legislation”. The concepts they use are impossible to grasp; the limits of the proposed legislation are wholly undefined; the proposed legislation both in Scotland and for Northern Ireland contains a sting in the tail in the form of criminal sanction of up to 7 years and unlimited fines; and thus it will have an undoubted and intended effect of dissuading persons from ever even entering the now murky waters of what may or may not constitute unlawful ‘conversion practices’.”

Mr O’Neill concludes:

If legislation as proposed by Eóin Tennyson MLA were passed into law by the NI Assembly this would criminalise parents who sought to exercise any form of parental authority or guidance in relation to their children as regards issues around sexuality and gender which conflicted with the official position which may be adopted from time to time by the NI state authorities.”

“Separately if these proposals were passed into law by the NI Assembly, then the law would have a chilling effect on the ability and willingness of religious bodies – and separately, among others, gender critical feminist activist individuals or groups – to teach and preach and lobby and proselytise, on any matters relating to sexuality and/or gender, which conflicted with any of the official positions now adopted by the State.”

“And these criminal sanctions could be imposed, among others:

• on parents who in bringing up their children, do not conform to the Northern Ireland state’s new dogmas on sex, sexuality and gender identity;

• on religious bodies whose teaching and preaching and religious practices in the area of sex, sexuality and gender identity run contrary to the State’s approved doctrine on these matters;

• on political bodies, feminist groups and associations and NGOs and individuals who publicly disagree with, and seek to challenge and change the State’s current orthodoxies on sexual orientation and/or gender identity;

• on medical professionals who in their medical practice would dispute and dissent from what the Northern Ireland state authorities would now stipulate as, to use an Orwellian term, “goodthink” in relation to sex, sexuality and gender identity.

“If the proposals become law this would involve the Northern Ireland state authorities using the full weight of the State’s coercive powers of expropriation, incarceration and humiliation against individuals and associations deemed guilty – even at an individual’s request, or with their consent – of performing, offering, promoting, authorising, prescribing or arranging for any treatment, practice or effort that is deemed to be aimed at changing, suppressing and/or eliminating that person’s (expression of) their avowed sexual orientation (whether heterosexual, homosexual, bisexual or asexual) and/or ‘gender identity’ (whether congruent or incongruent with their actual sex)

“The proposals have serious consequences for individuals subject to the law, but they take seriously its obligations to maintain the conditions of and for a liberal democracy, preferring instead to impose, by virtue of its possession of a monopoly on legitimate violence, its own vision of the good life.

“But a liberal democracy is one in which the State gives space to, and affords respect for, other forms of life, and visions for society. Such alternative views may be, embraced by individuals, embodied in families, and given voice in and by voluntary associations of people choosing to come together with a common purpose. These might be, say, feminist groups; or recreational clubs; or political entities; or religious bodies. A liberal democracy is a society in which a multiplicity of diverse voices can be heard, and where freedom of expression is honoured. It is space in which dissent thrives and where a free and open and ultimately tolerant and pluralist society flourishes because of, not in spite of, contradiction and opposition.”

Making reference to the scathing judgment by the UK Supreme Court when the judges threw out the proposed Named Persons scheme passed by the Scottish Parliament, Mr O’Neill states:

“The criticisms which were voiced in the judgment of Baroness Hale, Lord Reed and Lord Hodge in The Christian Institute v Lord Advocate [2016] UKSC 51, 2017 SC (UKSC) 29 (when the UK Supreme Court unanimously struck down Scottish legislation which required the universal appointment of State guardians to children in Scotland – which legislation had been passed without any dissenting votes by the democratically elected and accountable Scottish Parliament) can be applied equally to the present case.

“The UK Supreme Court there noted (at para. 73): ‘The first thing that a totalitarian regime tries to do is to get at the children, to distance them from the subversive, varied influences of their families, and indoctrinate them in their rulers’ view of the world. Within limits, families must be left to bring up their children in their own way’.

“The proposals in this legislation simply fail to define what are to become criminal ‘conversion practices’. It will thus become impossible for individual parents and faith groups and medical practices and political associations to be able to know how to regulate their behaviour to avoid falling foul of the criminal law. The legislation fails too to define crucial terms as to just what constitutes an individual’s ‘gender identity’, and just what behaviour is to be regarded as (attempted) ‘suppression’ of either sexual orientation or gender identity.”

He said the proposals would mean a law which is “ill-thought out, confused and confusing, and fundamentally illiberal in intent and effect”.

He added: “I conclude, therefore, that there are very strong arguments indeed that, should these proposals for a private Member Bill promoted by Eóin Tennyson MLA before the Northern Ireland Assembly be passed into law in Northern Ireland, they would be beyond the legislative competence of that devolved legislature, primarily because of their over-breadth, their disproportionate intrusion into private and family life and freedom of religion and freedom of expression, but also because of their fundamental internal incoherence.”

James Kennedy, NI Policy Officer for The Christian Institute, said:

“If Tennyson’s proposal gets onto the statute book, it will be a tragedy for Northern Ireland. Ordinary mums and dads will face criminalisation for helping their children to be comfortable in their own skin, rather than seeking lifelong medicalisation and so-called transition for them. Telling your child “let’s just wait and see” could land you with lengthy jail time and fines.

“Those who uphold traditional church teaching on marriage and gender could likewise face the full force of the law. Prayer meetings, Bible studies, pastoral care and church membership would all face the imposition of state-approved LGBT thinking.

“This is truly outrageous. Verbal and physical abuse is already illegal. Now one of the UK’s top lawyers has confirmed there is no gap in the law that needs to be filled.

“This law would inflict harm on innocent people and see vulnerable children unable to get much-needed support.

“Stormont is being asked to exceed its powers with these severe proposals. If this deeply flawed law is passed we will seek to challenge it in the courts.”

ENDS

Notes for editors

The full legal opinion can be accessed here: the.ci/nictopinion

• Tennyson has copied proposals put to consultation by the Scottish Government in January 2024, but later dropped in September 2024. Tennyson’s proposal was sent to Stormont’s Bill Office between June-August 2024.

• When the Scottish Government launched its proposals, The Telegraph led with the headline: “Parents who refuse children gender change face seven years in jail in Scotland”.

• The Law Society of Scotland, which represents 13,000 solicitors in Scotland, warned that the definition of conversion therapy could include “praying with anyone about their sexual ethics or sexual behaviour, or offering counselling on such issues”. It said significant changes needed to be made.