The disaster of the Scottish Conversion Therapy offence in practice

A worked example of how a concerned mother might be harassed and criminalised by poor legislation

1. On 9th January 2024 the Scottish Government opened a consultation on “banning conversion practices”, that is to say the introduction of a new criminal offence which imposes liability for practices that seek to change or suppress a person’s sexuality or gender identity. This bills are demanded globally by trans activists principally to control what doctors at gender clinics do and say, in short, their aim is to ensure doctors do nothing but “affirm” a child’s self-diagnosis, (irrespective of how wrong headed that might be or how much a child might come to regret such an early decision).

2. I will have more to say about how clinicians and trans windows would fare under this proposed legislation, but for now, I want to build on a twitter thread and examine how this proposal criminalises parents by way of one extended worked example. My background is in criminal law, so I’ll be approaching this primarily from how criminal statutes work in practice.

Emma Roddick MSP and Maggie Chapman MSP announce the consultation

Worked Example - Fiona and her autistic daughter Sarah

3. Fiona is a single mother and she lives with her 13 year old daughter Sarah. Sarah has an autism diagnosis and she experiences social challenges around that. Fiona worries because Sarah doesn’t make friends easily and she tends to rationalise the world around her in black and white terms. Sarah is developing breasts, she reports to her mother that the boys and girls at school have teased her for their size and she now regularly wears baggy clothing which her mother believes to be an attempt to draw attention away from them.

4. 12 months ago Sarah began spending more time than usual online and her behaviour began to change, she became more socially isolated and secretive and took to spending long periods of time alone on her iPad which she regularly blanks and obsessively conceals from her mother. Recently, Fiona discovered a breast binder hidden in Sarah’s room. Fiona confronted her daughter about this because she read online that these binders can cause long term medical harms to children and she is worried that Sarah is resorting to wearing a binder as a reaction to bullying and abuse at school. Fiona takes the binder and forbids Sarah to wear it again, Sarah is highly distressed and refuses to discuss the matter with her mother or say where she sourced the item. Fiona tries on subsequent occasions to discuss this matter with her daughter explaining that developing breasts is a normal and healthy part of female puberty. On one occasion Sarah says she wishes she were a boy and that she is a boy “on the inside”, Fiona thinks no more of it at the time.

5. Believing the whole episode to be a product of bullying, Fiona contacts Sarah’s school and is invited in for a meeting. During the meeting Sarah’s head of year informs Fiona that Sarah is now known as “Steven” at school and has adopted he/him pronouns. The head of year further informs Fiona that the school know about the binder incident they have alerted social services and the Scottish police as “Steven” said the conversations around this subject caused psychological harm. Fiona is informed that her refusal to allow “Steven” to wear the binder is a new “conversion practice” offence and that the school will be giving evidence against her. She subsequently discovers that a third party charity called “rainbow kidz” visited the school and were happy to provide a binder without parental consent. Fiona subsequently discovers that “Steven” has been speaking to unknown third parties on a discord server at the suggestion of “Rainbow Kidz” staff. It emerges that the long conversations “Steven” was having were with such people around the subject of gender identity. Fiona is then prosecuted for the new conversion practices offence.

   Worked Example - The prosecution case against Fiona

6. In court the Prosecution submit to the jury that Fiona is guilty of the conversion practices offence. The Prosecution hand out a highlighted guide to the offence as below.

Establishing a coercive course of conduct

7. The Prosecution in this case explain that “person A” is Fiona and “person B” is “Steven”. The case is put on the basis that Fiona engaged in a course of behaviour that was coercive. A course of behaviour requires more than one occasion according to law and the multiple conversations regarding the binder are relied upon as satisfying this requirement, this was no “one off” they claim. The prosecution further submit the course of behaviour was “coercive” because the law in this area from the consultation onwards specifically cites the regulation of clothing as an example of behaviour that is considered coercive. It is said against Fiona that her behaviour was coercive because she “controlled the victim’s day to day activities” and “pressured the victim to act in a particular way” by forbidding “Steven” from wearing it. Further, the behaviour is said to have been controlling as it amounted to “preventing someone from dressing in a way that reflects their gender identity”. The prosecution rely on the highlighted sections of consultation text below to demonstrate their claim is sound in criminal law.

Establishing harm in law

8. Having satisfied Section 1 (a) (ii) (“A person commits an offence if they engage in a course of behaviour which is coercive”) the prosecution turn to the requirement of Section 1 (c), namely, the requirement that such behaviour causes the suffering of psychological harm. The following highlighted text is drawn to the Jury’s attention:

9. The Prosecution explain to the jury that the harm threshold in this offence is a low one and the offence is complete on the causing of alarm and distress. They explain they will lead evidence from “Steven” that the conversions about the binder were distressing and that, being unexpected, they also caused alarm and a fear of further such conversations.

Intention

10. The Prosecution then explain almost all criminal offences require an intention by the Defendant to do something or bring about some set of circumstances. They ask the jury to consider the intent requirements in the offence and explain that while they look complex, they come down to some simple propositions. The following text is shown to the jury.

10. Preferring the simple language of the consultation over the more complex statutory language above the prosecution quote from the consultation guidance on this offence and emphasise the matters in bold below:

Intent – mental element of the offences

80. Most criminal offences have a mental element that relates to what is in the mind of the person undertaking a criminal act. For the offence of engaging in conversion practices, we propose that the relevant conduct must be undertaken with the intention that it will result in the change or suppression of the sexual orientation or gender identity of the person against whom the act is directed. It would not matter whether the change or suppression of their sexual orientation or gender identity is achieved or is, in fact, possible.

11. Accordingly, the Prosecution in this case say the jury can be sure that Fiona’s intention was to supress a nascent gender identity. They tell the jury that defendants very rarely declare their intentions, for example, virtually no criminal says “For the avoidance of doubt, I intended to cause grievous bodily harm” before they go on to commit that offence. The law of intention says a jury must judge intent as a matter of common sense taking into account what a defendant did and what a defendant said at the relevant time.

12. In this case the Prosecution say the jury can be sure that Fiona’s actions were intended to supress a gender identity because (1) all parties agree that in one of the conversations about the binder “Steven” said he wished to be a boy and was a boy “on the inside”, an extremely clear statement of gender identity (2) the wearing of a binder itself is indicative of the adoption of a cross sex identity, (3) despite this Fiona specifically said that female puberty was a natural and normal part of development. The Prosecution argue that taken together, it was Fiona’s intention to deny the gender identity of a child who felt like a boy “on the inside”.

13. The Prosecution submit the offence is complete in this case at that Fiona should be liable to imprisonment for up to 7 years, they indicate civil orders may be sought against her to prohibit further such conduct and if imprisoned alternative childcare arrangements will become necessary.

Worked Example - Defending this case - Article 6

14. Anyone defending Fiona should first consider the human rights implications of this prosecution. Let’s begin with Article 6, the right to a fair trial. It is a matter of basic law and basic common sense that a person charged in a criminal cause should know what the allegation against them is and be in a position to rationally comprehend and answer that charge. In this case the prosecution make the highly contested and deeply ideological statement that “gender identity” exists and that the victim in the case has one. The proposition that humans have (or have ever had) a “gender identity” is akin to the suggestion that we have sexed souls and that some sexed souls get put in the opposite sex and therefore wrong bodies. That is a dualist conception of reality and it cannot be tested for. There is no way of scientifically establishing to the criminal standard (1) that such a super natural phenomenon exists or (2) that it can be reliably detected as a matter of evidence. It is a basic matter of Article 6 jurisprudence that the prosecution should not entertain quasi religious faith trials, yet in this case it does precisely that. It further requires a Defendant to accept this belief or practically forfeit a right to answering the charge, (it is in some respects akin to alleging demonic possession).

15. The right to a fair trial encompasses the right to be tried by an independent tribunal free from bias. The debate as to the existence of cross sex souls (or its euphemism “gender identity”) is a vexed and turbulent matter. It cannot be right in those circumstances for any government to compel any court to police adherence to what is still a relatively novel modern fad. This has all the hallmarks of a civic religion and placing the court as arbiter over an article of faith of this religion and the prosecution as chief inquisitor fundamentally alters the character of both entities. It cannot be right or fair or in accordance with basic principles of independence to have the court consider what is in essence a question of civic faith.

16. The right to a fair trial involves the principle that one should sufficiently understand the charge being laid, yet this offence provides a circular definition of “gender identity”. The consultation says (at para 61) that a gender identity is “an individual’s personal sense of being or belonging to a particular gender or genders, or of not having a gender”. This is circular. It is also a self reported phenomenon. The word “gender” is not defined. There is no way to disprove a claim to a gender identity and there is no way to prove a claim to a gender identity. This is as jurisprudentially sound as claiming the existence of a soul. It is fundamentally unfair to defendants who reject the existence of sexed souls to require their belief in such a thing on pain of criminal liability. This is an extraordinary measure to see in a criminal statute. Criminal statutes may well have ideological steers, proscribed terrorist organisations are so because of political judgments as to their activities, but there is an obvious difference - no one argues (or could argue) that groups simply do not exist.

Worked Example - Defending this case - Articles 9 & 10

17. Article 9 of the European convention guarantees the right to freedom of conscience, belief and religion and Article 10 deals with freedom of expression. In a landmark judgment called DPP v Redmond Bate on Article 10 Lord Justice Sedley said the following regarding attempts by the state to impose an orthodox view (emphasis added):

Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having. What Speakers' Corner (where the law applies as fully as anywhere else) demonstrates is the tolerance which is both extended by the law to opinion of every kind and expected by the law in the conduct of those who disagree, even strongly, with what they hear.

From the condemnation of Socrates to the persecution of modern writers and journalists, our world has seen too many examples of state control of unofficial ideas.

A central purpose of the European Convention on Human Rights has been to set close limits to any such assumed power. We in this country continue to owe a debt to the jury which in 1670 refused to convict the Quakers William Penn and William Mead for preaching ideas which offended against state orthodoxy.

18. Gender identity is the state orthodoxy of the proposed legislation and no provision is made (or could be made) for those who do not accept the teachings of the modern church of gender. Free speech is always balanced against competing concerns, but Article 10 is afforded a wide latitude in this respect because it is correctly regarded as absolutely fundamental to the functioning of a democracy and the rule of law. As has been argued before, Article 10 is the only human right one can deploy in defence of other human rights under attack. This is clearly the case here, the article 6 right to a fair trial and arguable the article 8 right to a private and family life are both in a strong state of tension (to say the least) with this proposal.

19. Article 10 perhaps the strongest protection it can precisely when controversial subjects such as gender identity ideology are being discussed, this was certainly the view of an extremely strong Court of Appeal in R (on the application of Miller) v College of Policing [2021] (sometimes called Miller 2). In that case the President of the Queen’s Bench Division (as it was at the time) said the following (in a case about Non Crime Hate Incidents):

[68] The concept of a chilling effect in the context of freedom of expression is an extremely important one. It often arises in discussions about what if any restrictions on journalistic activity are lawful; but […] is equally important when considering the rights of private citizens to express their views within the limits of the law, including and one might say in particular, on controversial matters of public interest.

[73] [The] Strasbourg court has made clear that there is wide protection for all expressive activities by virtue of a very broad understanding of what constitutes an interference with freedom of expression. That is particularly so in the context of political speech and debate on questions of public interest and the Strasbourg court has emphasised that there is “little scope under article 10(2) of the Convention for restrictions on political speech or on the debate of questions of public interest”

Worked Example - Defending this case - Abuse of Process

20. A Prosecution may be “stayed” (that is to say stopped) by a Judge where one of two situations arise:

    (a) cases where a court concludes the accused cannot receive a fair trial;

    (b) cases where the court concludes it would be unfair to try the accused

21. Given the human rights conflicts addressed above gateway a (referred to as “limb 1 abuse”) seems an obvious remedy. After all, how can it possibly be fair to try a person in clear breach of their human rights according to an ideological standard they do not accept as a matter of personal conscience? Limb 2 cases are much more rare and involve cases where the administration of justice itself would be brought into disrepute, such cases have tended to involve extreme misbehaviour amounting to criminal activity on the part of state investigators, but there is surely an argument that the ideological transformation of a court to administer heresy against a new civic religion might meet such a standard.

Conclusion

22. As will be obvious, it is vitally important that as many people as possible respond to the consultation on this dangerous and ill considered piece of legislation, if you have time, please consider doing so here. The intention of this legislation is one thing and one thing only, that is to place the contested concept of gender identity on the statute books and exploit the sad and painful history of real conversion practices against gay people in order to do so. As I’ve demonstrated in this piece, this legislation is highly dangerous and will be seized upon by captured bodies in order to advance the influence of this new civic religion. It is fundamentally incompatible with basic human rights and it presents a clear threat to family life. There are many, many more dangers to this legislation such as to medical practice and family life and I will follow up this piece with explanations of why that is the case. For the time being, this is a deeply serious threat to freedom of public conscience and family life in Scotland and its time to make your voice heard if you possibly can speaking out against this. You only get one chance to make sure gender identity doesn’t make its way onto the statute book and this is it.