Christians call for pause as human rights watchdog warns of “unintended consequences” of conversion therapy ban

• The Equality and Human Rights Commission (EHRC) has urged Westminster to craft its ban on conversion therapy carefully so it does not cut across basic religious freedoms.
• The Commission also criticises the Government’s research base for its plans.
• The Christian Institute previously instructed lawyers to write to the government warning of litigation if the ban breaches religious freedom protections in the European Convention on Human Rights.
• In the last week 30 MPs and No.10’s former Director of Legislative Affairs have called for the legislation not to be ‘rushed’.

The Christian Institute is calling on the Government to pause its plans for a bill outlawing conversion therapy until ministers can respond in detail to legal concerns and data quality issues raised by the UK Equality and Human Rights Commission. The Government previously said (see para. 106) it wants to prepare a draft Bill for “Spring 2022”.

The EHRC’s warnings about the risks of getting this legislation wrong echo the CI’s evidence to MPs on Westminster’s Women and Equalities Committee.

The Commission says:

“The legislation must be carefully drafted in order …to avoid criminalising mainstream religious practice such as preaching, teaching and praying about sexual ethics.” (Para. 3)

“Encouraging people to comply with religious doctrine that requires refraining from certain types of sexual activity should not fall within the definition of conversion therapy”. (Para. 6)

“…conversion therapy will need to be carefully defined in any legislation in order to ensure that harmful practices are caught whilst mainstream religious practices such as preaching, teaching and praying about sexual ethics or gender roles, including in relation to children and young people under 18, are not criminalised.” (Para. 16)

“The Commission supports the Government’s proposals in principle, but is conscious they might have unintended consequences, particularly in relation to those under 18, unless conversion therapy is carefully defined in any legislation.” (Para. 26)

“This offence should not capture communication such as casual conversations, exchanges of views or private prayer, with the distinction defined clearly in the legislation.” (Para. 28)

The Commission also said Government research about the prevalence of conversion therapy “points to significant challenges in drawing conclusions from [its own] survey”, adding “We are therefore cautious about interpreting this data.” (Para. 2) The Government has previously admitted problems with its research (see paras 11, 15 and 16 of the consultation document).

Simon Calvert, a Deputy Director at The Christian Institute, said today:

“These warnings from the Equality and Human Rights Commission confirm our fears that getting this legislation wrong could be deeply damaging for basic religious freedoms. And they also confirm that the research basis for the proposals is poor.

“The Government is rushing headlong into a human rights minefield. It needs to pause and take the time to get this right. They need to define exactly what they mean by ‘conversion therapy’, and then invite papers from a range of academics, not just activists, about the real prevalence of the problem.

“More importantly, they need to give clear, legally-watertight answers to the EHRC’s questions about how they plan to protect our basic right to pray and talk with friends about our beliefs. Christians must not be put at risk of prosecution just for inviting LGBT people to embrace the Christian faith.

“The Christian Institute is not opposed to protecting people from dangerous quasi-medical practices. But the co-founder of the Ban Conversion Therapy campaign group is on record as saying, “‘Spiritual guidance’ is really just religious speak for conversion therapy”, and claims “the pernicious power of prayer must be dealt with”. The EHRC’s intervention confirms there is a risk that a ban could be used in the kind of way these activists want. Any law must be drafted very carefully to rule out this possibility.

“A ban on conversion therapy in the Australian state of Victoria comes into force next month. Victoria’s equivalent of the EHRC has issued guidance on the new law making clear that it ‘could capture some religious activities, such as pastoral conversations, in certain circumstances’. It also states that prayer is outlawed if it is deemed to have been ‘used to change or suppress sexual orientation or gender identity.’ Christians don’t pray to ‘suppress’ people, but you can easily see how praying for God to give someone grace to resist temptation could be misinterpreted in this way. Yet this is the kind of prayer Christians pray all the time for all kinds of temptations. It is deeply repressive to outlaw it.

“We took advice from leading human rights QC, Jason Coppel, who confirms that Christian beliefs on sexuality are protected by human rights law. Our lawyers have made clear to the Equalities Minister that we are prepared to seek judicial review if the Government gets this wrong and brings in a ban which includes the ordinary, everyday activities of churches.”

Notes for Editors:

Jason Coppel QC’s written advice for The Christian Institute said:

• “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.” [Para. 40]

Regarding Christian beliefs on sexuality, Coppel says:

• “The Courts have consistently regarded such beliefs as protected by Article 9 ECHR and worthy of respect as such.” [Para. 21]
• “These beliefs must be treated by the State with neutrality and impartiality.” [Para. 35]
• “The imposition of criminal sanctions for the expression of religious beliefs to others is particularly difficult to justify in Convention terms.” [Para. 35]
• “…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.” [Para. 43]

In relation to parents encouraging their children to embrace Christian teaching he says:

• “There are additional barriers to the legality of prohibiting the expression of Christian beliefs within the family, by parents to their children.” [Para. 35]

Extracts from the EHRC’s conversion therapy consultation response:

(2) …We note that a key element of the evidence base underpinning the consultation proposals is the UK Government’s 2017 National LGBT survey, which indicated that conversion therapy was experienced by around 2.9% of respondents in relation to sexual orientation or being transgender. However, the Government research paper The prevalence of conversion therapy in the UK points to significant challenges in drawing conclusions from the survey. …respondents living in the South East of England were over-represented in the sample, and that transgender people were more likely to have been offered or received conversion therapy than non-transgender people, but it was not possible to infer why this was the case. We are therefore cautious about interpreting this data.

(3) … the definition of what is and is not conversion therapy will be critical to the effectiveness of measures to end it. The target should be harmful practices intended to change someone’s sexual orientation or to change them to or from being transgender. The legislation must be carefully drafted in order not to catch legitimate and appropriate counselling, therapy or support which enables a person to explore their sexual orientation or gender dysphoria, and to avoid criminalising mainstream religious practice such as preaching, teaching and praying about sexual ethics.

(6) Practices should not be banned that enable individuals to explore, reflect on or understand their sexual orientation or being transgender. Nor should LGBT people be prevented from seeking spiritual support from their faith leader in the exploration of their sexual orientation or being transgender, including within their families, schools and communities. Encouraging people to comply with religious doctrine that requires refraining from certain types of sexual activity should not fall within the definition of conversion therapy either. However, faith and community leaders should be made aware of the ban on conversion therapy in order that they understand the importance of compliance.

(10) Article 3 of the ECHR states that no one shall be subjected to torture or to inhuman or degrading treatment or punishment, even during a time of emergency. Some of the more extreme forms of conversion therapy involving violent physical acts, such as ‘corrective rape’, could amount to torture or ill-treatment and are already unlawful criminal acts in the UK.

(13) Permitting or banning conversion therapy practices engages a person’s right to a private life if it violates their ability to live as they choose without interference. It will therefore be important to ensure that the approach taken is proportionate and that any interference with Article 8 rights can be objectively justified.

(14) The right to freedom of thought, conscience and religion is protected by Article 9 of the ECHR as well as by the International Covenant on Civil Political Rights, which the UK ratified in 1976.

(15) This right contains an ‘internal’ dimension that guarantees the freedom to adopt and maintain a belief or religion, as well as freedom of thought and conscience. This dimension is absolute. The ‘external’ dimension protects the right to manifest one’s beliefs through worship, observance, practices and teaching. This dimension is subject to some restrictions if in pursuit of a legitimate aim, such as the protection of ‘public safety, public order, health or morals, or … the rights and freedoms of others.

(16) The approach proposed by the Government would not impact the first dimension of this right, as holding religious beliefs relating to sexual orientation or gender identity will not constitute conversion therapy. In terms of the second dimension, conversion therapy will need to be carefully defined in any legislation in order to ensure that harmful practices are caught whilst mainstream religious practices such as preaching, teaching and praying about sexual ethics or gender roles, including in relation to children and young people under 18, are not criminalised.

(17) The Commission welcomes the Government’s commitment to work with faith communities to develop an approach that is effective in protecting people from harm, while also respecting the right to freedom of religion and belief. Once legislation is brought forward, a full analysis of the safeguards for protecting freedom of thought, conscience and religion should be undertaken to ensure this balance is maintained.

(18-22) [The EHRC states that analysis on Freedom of Expression and Freedom of Assembly and Association should be carried out once legislation is brought forward.]

(26) The Commission supports the Government’s proposals in principle, but is conscious they might have unintended consequences, particularly in relation to those under 18, unless conversion therapy is carefully defined in any legislation.

(28) This offence should not capture communication such as casual conversations, exchanges of views or private prayer, with the distinction defined clearly in the legislation.

(40) …Where adverse impact for people sharing a particular protected characteristic is detected (in this case, mostly likely to be the characteristics of sexual orientation, gender reassignment and religion or belief), public bodies must consider whether there are ways they could reasonably mitigate that impact.

Extract from the Victoria Equal Opportunity and Human Rights Commission “Fact Sheet on Change or Suppression (Conversion) Practices Prohibition Act 2021”:


“What the proposed law does not ban
…

• Prayer – unless it is directly used to change or suppress sexual orientation or gender identity.”

Extracts from the Victoria Equal Opportunity and Human Rights Commission FAQs on Change or Suppression (Conversion) Practices Prohibition Act 2021:


“Are everyday religious activities, such as sermons or pastoral conversations that include an explanation of the Bible considered to be illegal under the Act?

Although the definition of change or suppression practices captures a broad range of conduct, the three key features described above have been developed to respond to the concerns of religious organisations that mainstream practices would be prohibited under the legislation. Similarly, the criminal offences are narrowly designed to target change or suppression practices that result in injury to victims.

However, the definition of change or suppression practices could capture some religious activities, such as pastoral conversations, in certain circumstances. For example, it would likely be a change or suppression practice if a person goes to a religious leader seeking advice on their feelings of same-sex attraction, and the religious leader tells them they are broken and should live a celibate life for the purpose of changing or suppressing their same-sex attraction. These practices would only attract criminal penalties where injury resulting from the practice is able to be proven.

In contrast, if this person went to a religious leader for the same reason, and the religious leader informed this person that the Bible considers such feelings to be sinful, but does so only to convey the Bible’s teachings and not to change or suppress the person’s sexual orientation or gender identity, then this conversation would likely not be a change or suppression practice.”

Extract from Premier Christianity interview with former UK Government LGBT adviser Jayne Ozanne on banning prayer:

Q: “Some people might be surprised to hear you say that the more ‘extreme’ kinds of gay conversion therapy is – to quote your words – “just as damaging” – as well-meaning prayer. Is that what you’re saying?

A: “Christians are told by their leaders that what they are is sinful and their desires, which are innate, are ungodly – that level of internalised pressure is huge. So yeah, there is no such thing as a simple, little, loving prayer because it comes from a place of saying that who you are is unacceptable.”

Q: “But you have people saying: “my deep religious conviction, as a same-sex attracted Christian, is to live…” (what they would call) “a celibate life.” And you’re saying prayers in that regard are to be made illegal?”

A: “Yes, because it is damaging and lives are at stake.”

ENDS