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As part of the Scottish Government’s 2024 public consultation on a bill to end conversion practices, they released a report that shows their current thinking about how a law to end conversion practices in Scotland would work.
This page provides a summary of these proposals including the definition of conversion practices, exceptions to the law, the reasonableness defence, and the civil and criminal law aspects of the legislation.
So what does the proposed bill currently cover?
The draft legislation defines the offence of engaging in conversion practice as being when a person engages in coercive behaviour towards another, or provides a service, with the intent of changing or supressing that person’s sexual orientation of gender identity, and this causes physical or psychological harm.
Examples of “services” include:
Examples of “coercive behaviour” include:
The Scottish Government have also been clear that whilst, practically speaking, conversion practices aim to make a non-heterosexual person heterosexual, or to make a trans person cisgender, the legislation will work “both ways”, and will also cover practices which seek to change the sexual orientation of a heterosexual person or the gender identity of a cisgender person.
While we think that in practice that rarely or never happens, we think it is important that this is included for equality reasons.
The Scottish Government are also clear that the legislation would cover conversion practices against asexual, bisexual, and non-binary people, and that it does not matter if the perpetrator knows for sure or understands the identity of the person they are attempting to change or suppress the identity of.
This is important as we are aware from the stories of survivors that conversion practices often occur even before an individual has “come out”, and may be based on the perception that their expression of their sexual orientation or gender identity is “wrong”, not a nuanced understanding of how they identify themselves.
The Scottish Government are also clear that a victim having “consented” to conversion practices cannot be used as a defence by a perpetrator, as conversion practices are inherently harmful and coercive and this “consent” often comes under immense duress and social pressure.
The proposals also make it clear that the criminal offence applies whether or not the behaviour results in any apparent change of gender identity or sexual orientation, whether it was paid for or provided for free, and whether it was provided to a single individual or a group.
Some exceptions are outlined “for the avoidance of doubt” as not being conversion practices, including:
The proposed legislation contains elements which cover both “criminal” law and “civil” law in an effort to criminalise perpetrators of conversion practices and to help prevent instances where they seem likely to occur.
While there are some acts that could be considered to be conversion practices which are already illegal (such as threatening or abusive behaviour, domestic abuse, or sexual assault), there are many practices which are not covered by pre-existing legislation.
There are two main elements to the criminal law as proposed in the draft legislation: the new criminal offences created (engaging in conversion practices, and taking a person out of Scotland for conversion practice) and the statutory aggravation.
The offence of engaging in a conversion practice is as it is defined above: coercive behaviour, or provision of a service, with the intent of changing or suppressing a person’s sexual orientation or gender identity, and which causes the person physical or psychological harm.
As people are often removed from their homes and communities to be subjected to conversion practices elsewhere, the proposed legislation also includes an offence of taking a person out of Scotland, whether that’s to elsewhere in the UK or abroad.
This would not criminalise the act of conversion practices themselves, as those would happen in another legal jurisdiction, but instead things like paying for the travel costs to send someone who normally lives in Scotland elsewhere to undergo conversion practices.
The proposals also include a defence of “reasonableness” that can be used by those accused of conversion practices if the court agrees that their behaviour was “reasonable” in the circumstances in which it took place.
This defence is used in a few other places in Scots law. The Scottish Government says that it may be difficult to imagine a circumstance in which behaviour meets the criteria for being considered conversion practices (which they say are “abhorrent and have no place in our society”) and could also be considered reasonable.
The example given by the Scottish Government of behaviour which could meet this criterion is conversion practices carried out to protect someone from imminent harm if they were experiencing distress related to their sexual orientation or gender identity.
For forms of conversion practices that are already covered in pre-existing law, the Scottish Government are also proposing the introduction of conversion practices as an aggravating factor for other offences.
Aggravating factors are “attached” to other offences to indicate the conduct or motivation of the offender, and that this factor may have caused a more serious degree of harm to the victim than if the crime was committed without this aggravation.
This is similar to how hate crime legislation currently functions, where hate crime against a person because of a perceived characteristic (such as sexual orientation or transgender identity) can be an aggravating factor for another crime, such as assault.
Aggravating factors can impact prosecution decisions and how a court considers sentencing, and an offence (such as domestic abuse) with the aggravating factor of conversion practices may then carry a heavier sentence than it otherwise would.
The proposed legislation also includes civil protection orders to reduce the likelihood of individuals or communities being harmed by conversion practices.
Civil protection orders are granted via civil courts, which deal with a wide range of non-criminal matters. These may be more appropriate for instances where it seems likely that conversion practices may occur, where there is not enough evidence for a criminal prosecution, or where an individual is reluctant to criminalise potential perpetrators if they are their family or community members.
Civil courts require that the person bringing forward the case meets the “balance of probabilities” proof requirement (proving that what they are claiming is more likely than not to be true). That’s a lower standard of proof than needed in a criminal court, which is proof beyond reasonable doubt. The civil courts still follow a formal legal process.
Under the proposed legislation, civil orders could be granted to protect a specific individual who may be at risk of being subjected to conversion practices by another person, or to protect a wider community from an individual or organisation who has previously carried out conversion practices.
Civil orders to protect an individual could be applied for by the person themselves, the police, a local authority (meaning the local council), or on some occasions a third party, but an order to protect the wider community could only be applied for by the police or a local authority.
Examples of civil protection orders include preventing:
If a civil protection order is “broken”, this can result in criminal penalties, including fines and imprisonment for up to 2 years.
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