GIRES response to the EHRC comments on the proposed ban to conversion therapy
The Equality and Human Rights Commission released their response to the government’s consultation on banning so-called conversion therapy (CT). After reviewing this document, GIRES’ trustees feel compelled to call attention to the attempt in this response to legitimise a wide range of CT practices (as defined by the Cooper report, which was produced by a cross-party group of MPs, peers, barristers, academics and other experts, chaired by Baroness Helena Kennedy, QC) by suggesting that they should fall outside of the definition to be used in legislation. A key example of this can be found in this excerpt:
“The Government should make clear that psychological, medical and healthcare staff can continue to provide support to people experiencing gender dysphoria; this should include support to reduce distress and reconcile a person to their biological sex where clinically indicated, including for children and young people aged under 18 if this is in their best interests.”
It is difficult to imagine a trans-inclusive definition of CT that would not include attempts to “reconcile a person to their biological sex,” as a prime example of CT.[1] Indeed, this kind of language is recognisable as echoing that of CT proponents, such as the ultra-conservative ‘Heritage Foundation’. The response also repeats the pro-CT talking point that there is ‘insufficient evidence’ that CT harms trans people, which is false. Even if this were true, the burden of proof that a medical intervention does not cause harm is on the provider (e.g. licencing medications), except where inaction has been shown to do harm (consider chemotherapy) – therefore, unless being trans in and of itself constitutes harm (it does not, but EHRC seem to think it does), this argument does not undermine the necessity and appropriateness of a trans-inclusive CT ban.
Another example of this attempt to narrow the definition of CT can be found in this excerpt:
“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.”
Activities falling under this description include some activities which likely should not be captured by a ban, but also many activities that clearly should, because they clearly constitute CT – including, for example, taking someone aside into a separate room and then, perhaps without their consent to even raise the topic, presenting celibacy as the only moral and ethical choice for an LGBTQ+ person, as a precondition for inclusion in their faith community, and under threat of eternal damnation. Moreover, whilst even the threat of such degrading treatment impinges upon LGBTQ+ people’s freedom of religion, while banning said degrading treatment does not impinge on freedom of religion, since Article 9 rights (such as freedom of religion) cannot be used to justify a breach of Article 3 rights (such as freedom from degrading treatment).
We are disappointed, but hardly surprised, by this latest example of the deteriorating quality of EHRC’s output and its ongoing capture by a deeply socially conservative ‘gender critical movement’. Trans and gender-diverse people are not yet treated equitably under the law, and long-standing human rights protections for trans people are under attack. We continue to hope that the Equalities and Human Rights Commission will soon return to promoting equality and human rights – perhaps following a change in leadership.
GIRES Trustees
January 2022
[1] An exception here might perhaps exist where such reconciliation is in relation to sexual characteristics – for example, supporting a woman to recognise that facial hair does not negate womanhood – and does not intervene on the extent of identification with a particular gender. However, the choice of language here echoes that of open proponents of CT and we suspect the intended meaning, and the meaning that is likely to be inferred from this passage in the EHRC response to the consultation, is attempting to produce or enforce a gender identity congruent with the sex assigned at birth.