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LGBT+ History Month: A step closer to ending conversion therapy

Posted on 14 February 2022

It is often assumed that the controversial and highly damaging practice of conversion therapy only takes place in religious institutions. However, it also takes place in private homes. Due to the frequently secretive nature of this form of "treatment", very little is known about how common conversion therapy is in domestic settings and how many people are suffering as a result.

The UK Government has made a number of proposals to ban conversion therapy and has run a public consultation which is set to report in Spring 2022.

What is conversion therapy?

Conversion therapy includes both physical acts and "talking therapy". It is widely considered a form of abuse aimed at coercing individuals to change their sexual orientation or gender identity. 

Physical conversion therapy involves physical acts of violence against LGBTQI+ victims. The intention is for victims to associate their sexual orientation or gender identity with pain and distress.

Talking conversion therapy is, as the name suggests, conversion therapy conducted verbally. Those who are transgender or attracted to people of the same-sex are treated as though they have a defect, deficiency or addiction. Conversion therapy is conducted in an attempt to change this. The Government intends to criminalise the practice of talking conversion therapy to those under 18 and those over 18 who have not consented.

What is being proposed?

Physical acts of violence are already outlawed, predominantly by the Sexual Offences Act 2003, the Criminal Justice Act 1988 and the Offences Against the Person Act 1861. The Government is not proposing a new offence for physical conversion therapy, but intends to add conversion therapy as an aggravating factor to existing offences. This means that physical acts of violence carried out with the intention of changing someone's sexual orientation or gender identity will result in increased sentencing.

In terms of talking conversion therapy, the law is insufficient to protect victims in all circumstances. Coercive and controlling behaviour is already illegal, however for conversion therapy to be categorised as such, it must be repeated on two or more occasions and occur within an "intimate or family relationship".

The Government has recognised that many victims are not protected by the current law. For example, someone unknown to the victim may be brought into the home by other family members to conduct conversion therapy.

To remedy this gap in the law, the Government is proposing a new criminal offence based upon two criteria. Firstly, the offence will use the existing definition of coercive and controlling behaviour as set out in the Domestic Abuse Act 2021, but remove the requirement for the abuse to be repeated. One instance will satisfy the test. It will also no longer be restricted to individuals in an "intimate or family relationship", a requirement for the offence of coercive & controlling behaviour. Secondly, a court will need to be satisfied that conversion therapy was the motivation for the coercive and controlling behaviour. Without the motivation to convert someone's sexual orientation or gender identity, the behaviour will need to fall under the existing domestic abuse offences to constitute an offence.

What added protections will there be?

In addition to criminal sanctions for perpetrators, the Government is proposing a civil protection for victims of conversion therapy. They intend to create Conversion Therapy Protection Orders, which will be able to prevent perpetrators from indirectly and directly contacting victims or being within physical proximity of them. They will also be able to prohibit people from arranging conversion therapy for victims and will ensure the passports of victims are protected, so they cannot be coerced into going abroad to receive conversion therapy. Orders will be tailored individually on the facts of the case and based on the level of risk.

Is this enough?

The Government is proposing a range of other policy measures to help tackle conversion therapy, including banning the promotion and advertising of it, preventing charities from engaging in it and preventing people from profiting from conversion therapy. While these are all very welcome steps, they appear more focused towards institutionalised conversion therapy i.e. conversion therapy being conducted by (usually religious) organisations. Due to the more public nature of this form of conversion therapy, it is easier to identify and therefore prevent. 

Whether these proposals are robust enough to assist victims of domestic conversion therapy (i.e. conversion therapy going on being closed doors in domestic settings) remains in question. By way of example, will a child subject to conversion therapy in a private home be able to identify that they are being abused and be able to access the necessary protections? To what degree should a responsibility be placed on schools, local authorities and other public bodies to report suspected conversion therapy?

For the proposals to be effective, the Government, local authorities and public services will need to devise a way of detecting the early signs and risks of domestic conversion therapy. It cannot be assumed that the most vulnerable children and adults will have the means to seek protection themselves. One of the difficulties the Government faces is that conversion therapy is already a secretive and underground practice. It can also be conducted in subtle and calculated ways, such that victims do not realise they are being subject to abuse at the time. While the proposed ban brings us a step closer to ending conversion therapy, penetrating this opaque practice and bringing meaningful protection to victims, especially in domestic settings, will require joined up thinking and targeted action.

February is LGBT+ History Month – a month dedicated to the remembrance and celebration of LGBTQI+ lives, reflection on the historic progress of the LGBTQI+ community, and raising awareness of contemporary issues facing the LGBTQI+ community today. Mishcon de Reya LLP has long been committed to ensuring and promoting equality and diversity. In 1957 our founder, Lord Mishcon, sat on the Wolfenden Committee which recommended that homosexual activity between consenting adults should be decriminalised, ultimately leading to a change in the law. Today, we run Pink Law, a LGBTQI+ legal advice centre, support the LGBTQI+ film festival BFI Flare, have an active and vibrant Pride Network for both colleagues and contacts, and support a range of LGBTQI+ clients with both their business and personal needs.

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