The Scottish Government has courted controversy with its social policy agenda: sweeping hate crime legislation, and gender recognition changes that undermine women’s rights. But what’s coming down the tracks at Holyrood looks even more troubling. In fact, the next item on the agenda could be one of the most controversial seen since devolution. Following activists’ demands, politicians’ promises and the rowing back on parallel plans by the UK government, the Scottish government is moving towards a ban on so-called ‘conversion practices’.
Some readers might take umbrage with this suggestion. Most of us agree that trying to forcibly change a person’s sexual orientation or gender identity – perhaps through pseudo-scientific quack ‘treatments’ – is wrong, and should be punished. However laws already exist to punish such actions. The plans currently being cooked up have the potential to cross the line into authoritarian enforcement of state values on Scottish people, in ways never before seen by our society.
Last year, the Scottish Government appointed an Expert Advisory Group on Ending Conversion Practices, which issued its final recommendations in October. The group, a coterie of LGBT activists and social progressives, concluded that new ‘measures of criminal law, civil law, and administrative law’ are needed in Scotland to punish ‘conversion practices’. These are defined, very broadly, as: ‘Any act, treatment, or effort…with a specific intent to change, suppress or inhibit someone’s sexual orientation, expression of sexual orientation, gender identity, and/or gender expression.’
‘Intent to cause harm’, or proof that harm has been caused, won’t be necessary under these new plans. In other words, individuals who don’t consciously try to hurt LGBT people, and don’t cause any actual hurt to LGBT people, are within scope. This is not only immediately alarming in itself, but it’s also worth asking: who, exactly, is in sight here? Parents who don’t support a child’s new ‘gender identity’? Faith leaders who cite orthodox teaching on homosexuality when asked by a gay person what the Bible says? Are we seriously talking about criminalising these people in a modern democracy?
I’ve been on the political scene in Scotland long enough to know that’s exactly what we should anticipate. I fought the Hate Crime Bill between 2020 and 2021. It was a blatant attack on free expression, decried in various corners of Scottish society. The recommendations made to ministers on conversion practices are wide open to abuse and don’t appear to take any account of competing rights and beliefs within a pluralistic society. With the Scottish government’s track record of authoritarian policies, and its need to keep up appearances with modish lobbyists, the likelihood of bad legislation is high.
Brighter minds than mine are concerned about what’s coming in this area. This week distinguished human rights lawyer Aidan O’Neill KC produced a withering legal opinion on the Expert Group’s recommendations. He warned that they ‘undoubtedly involve proposals for radical changes in the current law and a marked expansion in the powers of the State’ which make them ‘fundamentally illiberal in intent’.
‘The Scottish authorities are called upon to use the full weight of the State’s coercive powers of expropriation, incarceration and humiliation,’ he said.
Underlining just how seriously Scots stand to be affected by the Expert Group’s recommendations, O’Neill said such a change in law could ‘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 approved by the state. In doing so, it would directly affect the ‘mainstream pastoral work of churches, mosques and synagogues and temples’. An open attack on religious liberty, in other words.
The KC also raised the issue of parents, who hold well-founded concerns about a child seeking to live as the opposite sex, being punished. He believes the recommendations as they stand might ‘criminalise parents who lovingly and in good faith and in accordance with their own best judgement 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’. This will not sit well with mums and dads who are highly concerned about transgender ideology.
Aidan O’Neill’s intervention is based on the very real concern that a ‘brave new world’ is shortly to be envisioned in Scotland; a place where parents, religious believers, and others might be threatened with criminal charges for failing to bow down to the progressive tenets of the Scottish state. A world where the articulation of heterodox views on sexuality and biology are censured and members of the public are encouraged to turn in ideological dissenters who have the ‘wrong views’ on issues of identity. We can only hope ministers won’t take Scotland down this road.
This article was first published in The Spectator on 14 December 2022