Top human rights lawyer savages Scot Gov conversion therapy proposals

An eminent human rights lawyer has published a scathing legal opinion on proposals to ban "conversion practices" in Scotland. Aidan O'Neill KC, who previously challenged a law on state guardians, said plans being drawn up are "fundamentally illiberal in intent".

The Scottish Government is set to publish legislation based on recommendations by its own "Expert Advisory Group". These recommendations drew criticism from campaigners when they were published in October for suggesting parents who don't affirm a child's gender identity and orthodox religious believers could be criminalised.

Following their publication, The Christian Institute instructed Aidan O'Neill KC to produce a legal opinion, which he has published this week. In it, the KC argues that a law based on the recommendations made to Scottish Ministers would trample on fundamental freedoms. He states:

“One effect (and the apparent intent) of the [Scottish Government’s] Expert Group’s recommendations [on conversion therapy] would be to criminalise, among other things, the open expression of such orthodox traditional religious beliefs that sexual activity is only properly permissible within the bounds of an opposite sex marriage if said with a view to encouraging another to refrain from same-sex sexual behaviour."

He adds: “The aim of the Expert Group’s proposals is to outlaw all and any religious pastoral care, or parental guidance, or advice or medical or other professional intervention relating to sexual orientation, expression of sexual orientation, gender identity and/or gender expression except that which is deemed by the State to constitute “affirmative care”

Touching on the ordinary work of churches, the KC says: “Were the Scottish Government to adopt the Expert Group’s recommendations...this would have the undoubted effect of criminalising much mainstream pastoral work of churches, mosques and synagogues and temples. Prayers and sermons would be criminalised if their content did not conform to the new State requirements".

“Indeed these proposals would also criminalise parents who lovingly and in good faith and in accordance with their own best judgment and conscience seek to caution their children in relation to any stated intention to embark on “gender affirmatory”/“gender transition” treatment in respect of their currently experienced discomfort or dysphoria in relation to their sex and/or sexuality", he says.

Mr O'Neill also raises the prospect of the Scottish Government transgressing the devolution settlement, saying: "Any such legislation would be in breach of the restriction on the Scottish Parliament’s legislative competence set out in [the Scotland Act 1998]”.

Commenting on the proposed ban on "conversion practices" earlier this year, CARE's CEO Ross Hendry stressed the need for wisdom. CARE supports laws banning actions that demonstrably harm people but believes free speech and expression and religious liberty must not be undermined. Mr Hendry said:

"It’s clear that in the past individuals have been harmed and forced to endure physical, emotional, and spiritual pain through practices that no-one should condone. For that reason, we support a ban on physical acts of ‘therapy’ as inconsistent with God’s call for us to freely come to him through Jesus and the Church’s call to model love, grace, and hope.

“However, the scope of the Scottish proposals is alarming. Politicians have a responsibility to safeguard everyone’s freedom to worship and live out their beliefs. Wide definitions lead to bad laws and worse outcomes. Whilst taking evidence on conversion therapy, MSPs heard legitimate concerns about the potential for free expression and religious liberty to be undermined. These appear to have been ignored.

"A ban based on these recommendations has the potential to enshrine persecution against people with religious or gender critical beliefs in Scotland. We call on MSPs to think again."