SNP trans law proposals condemned as ‘jellyfish legislation’ by top KC in devastating legal critique

Scottish Government plans for a new trans law which could see parents jailed for stopping their children changing gender have been condemned as “jellyfish legislation… impossible to grasp… [with] a sting in the tail” in a searing legal opinion by one of the country’s top KCs.

The proposals would also see faith leaders put behind bars for up to seven years and hit by unlimited fines if convicted of involvement in so-called ‘conversion practices’.

The scheme has been fiercely attacked in a withering 46-page critique by Aidan O’Neill KC, who brands the plans “ill-thought out, confused and confusing, and fundamentally illiberal in intent and effect”. [Para. 5.11]

READ THE FULL OPINION AT the.ci/ctopinion2

The KC states there are very strong arguments the plans are “beyond the legislative competence of the Scottish Parliament”.

Mr O’Neill has been called in to advise The Christian Institute (CI) which is opposing the law change, which is out to consultation until 2 April.

It was launched last month with an 86-page document proposing a very broad new criminal offence of engaging in a conversion practice. The proposals garnered a negative reaction from women’s groups who regard it as a form of gender self-ID by the back door, and religious groups who fear vexatious prosecutions targeting traditional teaching on sex and sexuality.

The draft legislation contains a handful of vague criteria for what constitutes a conversion practice. It also allows LGBTQ+ activists to obtain civil court orders against people they think are responsible for such practices.

Mr O’Neill takes a legal wrecking ball to the Scottish Government’s plans, stating:

“This is perhaps best described as ‘jellyfish legislation’. The concepts it uses are impossible to grasp; its limits are wholly undefined; it 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’.” [Para. 5.3]

Mr O’Neill has represented the CI before against the Scottish Government, winning a famous victory in the ‘Big Brother’ case at the UK Supreme Court eight years ago, when judges unanimously declared the ‘state snooper’ Named Person scheme – condemned for breaching the human rights of families – illegal.

The Scottish Government has been warned by the CI it is again on collision course with the courts.

CI Deputy Director (Public Affairs) Simon Calvert said:

“This is another example of the Scottish Government asking Holyrood to exceed its powers and impose draconian legislation on the people. If this deeply flawed law is passed it will be challenged all the way to the Supreme Court if necessary.

“Ordinary mums and dads face criminalisation for trying to extract their kids from the grip of radical trans ideology. Church leaders face prosecution for not praying in accordance with state dogmas. This is outrageous.

“They’ve spent over two years drafting this. It’s time to admit that no-one can define what conversion therapy is, let alone how to criminalise it.”

Excerpts from Mr O’Neill’s advice

Efficacy of existing laws

“…it is already the case in Scotland that conduct towards another which constitutes degrading treatment and which results in the infliction of psychological suffering on that other, is already illegal and in breach of the criminal law. Such conduct could include insulting, degrading or belittling persons on account of their sexual orientation.” [Para. 2.26]

“It is also a civil wrong – actionable before the civil courts – for private individuals to inflict on another inhuman and degrading treatment (which may include physical abuse and emotional abuse) in contravention of the standards set out in Article 3 ECHR.” [Para. 2.29]

“In addition, the Equality Act 2010 outlaws harassing behaviour which constitutes less favourable treatment because of ‘sexual orientation’.” [Para. 2.30]

No ‘gap’ in the law

“…given the reach of the existing law… ‘gaps’ in the law can only be in relation to behaviour that does not reach the Article 3 ECHR threshold such as to constitute ‘degrading treatment’, does not constitute the infliction of physical abuse or mental or emotional abuse such as to be already civilly actionable at common law, and does not constitute harassment because of sexual orientation or gender reassignment which is already covered by the EA 2010”. [Para. 3.5]

“The Scottish Government [intends] to promote a Bill which will criminalise what it describes as ‘generally reasonable and non-harmful everyday actions’ (such as talking therapy or counselling). Such behaviour will be criminalised in situations where there is no subjective intention to cause another fear or alarm, and indeed where no fear or alarm results.” [Para. 3.10]

Genital mutilation

“Currently any person who aids, abets, counsels, procures or incites an act of ‘female genital mutilation’ will be guilty of an offence under Section 3(1) of the Prohibition of Female Genital Mutilation (Scotland) Act 2005.” [Para. 3.17]

“Yet if the current legislative proposals concerning the criminalisation of ‘conversion practices’ come into law, any person who obstructs, counsels against, discourages or otherwise seeks to prevent an act of (male or female) genital mutilation where that act is avowedly intended to ‘align’ a person’s ‘physical characteristics’ with that person’s asserted ‘gender identity’ will, in principle, be guilty of an offence.” [Para. 3.18]

State overreach

“The proposals… would, if passed into law, effect radical changes in the current law. They will also involve a marked intrusion and expansion in the powers of the State into the private realm of families, and over the expression of orthodox religious teaching by faith groups.” [Para. 4.1]

“…these criminal sanctions can be imposed [on those who] dissent from what the State now stipulates as, to use an Orwellian term, ‘goodthink’ in relation to sex, sexuality and gender identity”. [Para. 5.4]

“The proposals have serious consequences for individuals subject to the law, but they emanate from a government which appears to have forgotten its duty to 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.” [Para. 5.6]

“…under these proposals the courts are to be granted sweeping powers to pronounce coercive requirements and prohibitory civil conversion practices protection orders against others”. [Para. 3.45]

Impact on religious freedom

“Were the Scottish Government’s proposals adopted by the Scottish Parliament and legislation introduced and passed to give them effect, this would have the undoubted effect of criminalising much mainstream pastoral work of churches, mosques and synagogues and temples.” [Para. 3.29]

“Prayers and pastoral discussions could be criminalised if their content did not conform to the new State requirements only to affirm, validate and support the identity and lived experience as expressed and stated by an individual from time to time (but never to question or give direction or raise concerns about an individual’s expression of their sexuality, or their ‘gender expression’ or assertion of their ‘gender identity’.” [Para. 3.29]

Impact on family life

“… ‘any discussions, questioning, guidance or general parental direction, guidance, controls and restrictions’ in relation to a person’s sexuality and/or their claimed or presumed gender identity which the Scottish Government deems to be ‘directive’ or ‘coercive’ will be criminalised. Thus all and any attempt by parents to direct their children towards any sexual orientation or gender identity which a child’s parents consider to be ‘preferable’ will be outlawed in Scotland under this legislation. This is on the basis that under the proposed legislation such parental intervention will be regarded as evidencing an intention to change or suppress their child’s identification or development of their own sexual orientation or gender identity (of which they may still be questioning or unsure).” [Para. 3.26]

“This definition of coercion would clearly therefore include parents seeking to control how their child ‘presents’ in terms of, say clothes, make-up, and hairstyle or imposing restrictions on where their child might go and whom they might see. Thus parents who actively and consistently and directly oppose ‘their child’s decision to, for example, present as a different gender from that given at birth’… would be committing a criminal offence.” [Para. 3.28]

“…these proposals could… criminalise parents who, lovingly and in good faith and in accordance with their own best judgment and conscience, seek to caution and direct their children against acting on any stated intention to embark on ‘gender affirmatory’/‘gender transition’ treatment in respect of their currently experienced discomfort or dysphoria in relation to their sex and/or sexuality”. [Para. 3.31]

“…a parent’s inflexible and absolute ban forbidding, say, their 14 year old daughter, going out publicly dressed in what might be regarded, by her parents as an overly sexualised and sexually provocative and explicit way could, in principle, be criminalised under this proposed legislation on the basis that the parental action is stopping the child from living or acting in accordance with how their child wishes to express their (hetero)sexual orientation and/or (cis)gender identity”. [Para. 3.35]

Impact on medical professionals

“The proposals, if they come into law, could also criminalise medical practitioners who express a professional opinion seeking to dissuade an individual against undergoing or undertaking medical procedures (such as puberty blockers, hormone treatment and/or surgeries) which are associated with, and intended to further, gender reassignment.” [Para. 3.30]

Impact on gender critical groups/individuals

“…if these proposals were passed into law, 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”. [Para. 5.2]

Lack of clarity

“This is perhaps best described as ‘jellyfish legislation’. The concepts it uses are impossible to grasp; its limits are wholly undefined; it 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’.” [Para. 5.3]

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

– on parents who in bringing up their children, do not conform to the 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 State now stipulates as, to use an Orwellian term, ‘goodthink’ in relation to sex, sexuality and gender identity.” [Para. 5.4]

“If the proposals become law this would involve the Scottish authorities using the full weight of the State’s coercive powers of expropriation, incarceration and humiliation against individuals and associations in Scotland 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).” [Para. 5.5]

“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 constitute an individual’s ‘gender identity’, and just what behaviour is to be regarded as (attempted) ‘suppression’ of either sexual orientation or gender identity.” [Para. 5.10]

“Fundamentally illiberal” and outside legislative competence

“In sum, these proposals from the Scottish Government for legislation are ill-thought out, confused and confusing, and fundamentally illiberal in intent and effect. I conclude therefore that there are very strong arguments indeed that these legislative proposals of the Scottish Government are beyond the legislative competence of the Scottish Parliament, 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 internal incoherence.” [Para. 5.11]

“In its disregard of the constitutional principle of subsidiarity by requiring parents of children and religious organisations either to keep silent their own views on sexual orientation and/or gender identity or actively to adopt and promote and give voice to only the views of the Scottish Government on these matters, the legislation at issue has the intent and effect of abrogating fundamental rights recognised at common law and/or violating the rule of law in breach of the common law limitations on the powers of the Scottish Parliament spoken to in Axa General Insurance Company Ltd v Lord Advocate [2011] UKSC 46, 2012 SC (UKSC) 122.” [Para. 4.13(3)]

ENDS