1f. bijlage - Conversion Therapy As Degrading Treatment.pdf

Oxford Journal of Legal Studies, Vol. 42, No. 1 (2022) pp. 104–132 doi:10.1093/ojls/gqab024 Advance Access Publication 1 August 2021

‘Conversion Therapy’ As Degrading Treatment * and Craig Purshouse†

Abstract—This article responds to the widespread uncertainty in UK and international human rights law over the legality of ‘conversion therapy’, a set of practices that aim to eradicate LGBTIQþ sexualities and gender identities. The article pursues two main arguments. First, it is argued that all forms of ‘conversion therapy’ are disrespectful of the equal moral value of LGBTIQþ people and violate specific protected areas of liberty and equality that are inherent in the idea of human dignity. Secondly, the article develops a theoretical account of degrading treatment under article 3 of the European Convention on Human Rights that illuminates the relationship between the prohibition of degrading treatment, human dignity and antidiscrimination. It is then argued that ‘conversion therapy’, in all its different forms, spawns the specific kind of degradation that UK and international human rights law prohibit. The article ends by analysing the positive state obligations that arise in this context. Keywords: ‘conversion therapy’, sexual orientation, discrimination law, degrading treatment, article 3 ECHR, equality, human rights law.

1. Introduction ‘Conversion therapy’, a widely discredited practice which, according to the UN, aims to ‘cure’ LGBTIQþ people by changing or repressing non-heteronormative sexualities and gender identities,1 is banned in a small number of countries around the world. At the time of writing, within the Council of Europe only Malta, Germany and Albania have introduced nationwide bans on ‘conversion

*Associate Professor in Human Rights Law, School of Law, University of Leeds. Email: I.Trispiotis@leeds.ac.uk. † Senior Lecturer in Law, School of Law and Social Justice, University of Liverpool. Email: Craig.Purshouse@liverpool.ac. uk. We are grateful to Stephanie Berry, Stuart Wallace and the two anonymous reviewers for their helpful comments on earlier versions of this article and to Alice Sleep for research assistance. 1 UN Human Rights Council, ‘Practices of So-Called “Conversion Therapy”: Report of the Independent Expert on Protection Against Violence and Discrimination Based on Sexual Orientation and Gender Identity’ (1 May 2020, A/HRC/44/53) para 2. See also Independent Forensic Expert Group, ‘Statement on Conversion Therapy’ (2020) 72 Journal of Forensic and Legal Medicine 101930, 1. C The Author(s) 2021. Published by Oxford University Press. V

This is an Open Access article distributed under the terms of the Creative Commons Attribution License (https://creativecommons.org/licenses/by/4.0/), which permits unrestricted reuse, distribution, and reproduction in any medium, provided the original work is properly cited.

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Ilias Trispiotis

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2 There is a full national ban on ‘conversion therapy’ in Malta. See Affirmation of Sexual Orientation, Gender Identity and Gender Expression Act, s 3. 3 In 2020, Germany criminalised the provision of ‘conversion therapy’ to minors. The provision of ‘conversion therapy’ to adults is outlawed provided that there is coercion, deceit or misapprehension. The Albanian Order of Psychologists prohibits registered psychologists from offering ‘conversion therapy’. 4 A private member’s bill outlawing ‘conversion therapy’ was lost when the UK Parliament was prorogued in 2019. A Memorandum of Understanding signed by the NHS and leading counselling, psychotherapy and mental health bodies have sought to end the practice in the UK. See BACP and others, ‘Memorandum of Understanding on Conversion Therapy in the UK’ (version 2, October 2017) <www.bacp.co.uk/media/6526/ memorandum-of-understanding-v2-reva-jul19.pdf> accessed 26 May 2021. 5 At the time of writing, these are: New Jersey, California, Oregon, Illinois, Vermont, New Mexico, Connecticut, Rhode Island, Nevada, Washington, Hawaii, Delaware, Maryland, New Hampshire, New York, Massachusetts, Colorado, Maine, Utah and Virginia. 6 The others are Victoria and the Australian Capital Territory.

7 An exception is IY Nugraha, ‘The Compatibility of Sexual Orientation Change Efforts with International Human Rights Law’ (2017) 35 Netherlands Quarterly of Human Rights 176. ‘Conversion therapy’ involving children is mentioned in the UN Committee on the Rights of the Child, ‘General Comment No 20 on the Implementation of the Rights of the Chid During Adolescence’ (CRC/C/GC/20, 6 December 2016) para 34. 8 ‘Practices of So-Called “Conversion Therapy”’ (n 1); BACP and others (n 4); A Bartlett, G Smith and M King, ‘The Response of Mental Health Professionals to Clients Seeking Help to Change or Redirect Same-Sex Sexual Orientation’ (2009) 9(11) BioMed Central Psychiatry 7. 9 According to the 2018 UK National LGBT survey, 2% of respondents report having undergone ‘conversion therapy’ and 5% report that they had been offered it. Crucially, LGBT individuals from particular cultural, religious and age backgrounds are many times more likely to being offered ‘conversion therapy’. See UK Government Equalities Office, National LGBT Survey: Research Report (July 2018) 33 and 83–92. 10 ‘Practices of So-Called “Conversion Therapy”’ (n 1); UN Human Rights Council, ‘Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Anand Grover’ (A/HRC/14/20, 27 April 2010) para 23.

11 J Edgerton, Boy Erased (Focus Features, 2018). 12 D Akhavan, The Miseducation of Cameron Post (Beachside Films and Parkville Pictures, 2018). 13 ‘Editorial’ (2016) 387 The Lancet 95; Independent Forensic Expert Group (n 1) 5.

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therapy’, either fully2 or partly.3 The practice is not banned in the UK.4 Beyond Europe, Mexico introduced a general national ban on ‘conversion therapy’ in 2020, whereas medical professionals are banned from providing ‘conversion therapy’ in Brazil, Ecuador and Taiwan. In the United States, so far 20 states have introduced bans on the practice,5 although many exempt religious counsellors and organisations from the scope of the prohibition. A similar exemption is part of the ban on ‘conversion therapy’ in Queensland, one of the three Australian jurisdictions banning the practice at the moment.6 Apart from the small number of states that have legislated against ‘conversion therapy’ to date, equally surprising is the scarcity of legal research in this area.7 Remarkably little academic commentary has been produced on the compatibility of ‘conversion therapy’ with specific human rights, such as the prohibition of torture and other cruel, inhuman or degrading treatment (CIDT).

This is a curious omission, given the evidence that ‘conversion therapy’ can cause grave harm,8 not only to the significant number of individuals that experience it,9 but also to LGBTIQþ people more broadly.10 Many of those who have undergone it have reported that it has caused them distress and humiliation, with high-profile films such as Boy Erased11 and The Miseducation of Cameron Post12 illuminating these harms to a wider audience. Furthermore, there is no evidence that ‘conversion therapy’ actually works.13

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14 European Parliament, Committee on Civil Liberties, Justice and Home Affairs, ‘Amendment 8 to the Report on the Situation of Fundamental Rights in the EU in 2016’ (A8-0025/8, 21 February 2018). 15 UN Joint Statement, ‘United Nations Entities Call on States to Act Urgently to End Violence and Discrimination Against Lesbian, Gay, Bisexual, Transgender and Intersex Adults, Adolescents and Children’ (September 2015); Annual Report of United Nations High Commissioner for Human Rights, ‘Discriminatory Laws and Practices and Acts of Violence Against Individuals Based on their Sexual Orientation and Gender Identity’ (A/HRC/19/41, 17 November 2011) para 56; ‘Report of the Special Rapporteur on the Question of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ (A/56/156, UN General Assembly 3 July 2001) para 24. 16 This account of degrading treatment is congenial to how Deborah Hellman defines ‘demeaning’ treatment in D Hellman, When Is Discrimination Wrong? (Harvard UP 2008) 34–58. However, there are differences between how this article explains the wrongness of degrading treatment (ie through an account of disrespect) and how Hellman explains the wrongness of demeaning treatment. This article’s penultimate section returns to this point.

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It is for those reasons that both the European Parliament14 and the UN have called on states to take action against ‘conversion therapy’.15 But such declarations, although politically useful, do not answer crucial questions, such as whether international human rights law actually requires banning ‘conversion therapy’, and why. Answering that question has major theoretical and practical value, since any discussion of the human rights implications of ‘conversion therapy’ is central to any law reform efforts. In this context, this article aims, first, to identify the reasons why ‘conversion therapy’ is morally wrong; and, secondly, to investigate what those reasons entail for the compatibility of the practice with the absolute prohibition of torture and CIDT under the European Convention on Human Rights (ECHR) and UK and international human rights law. To achieve those aims, the article advances two theoretical arguments. First, it is argued that ‘conversion therapy’, which is fundamentally a problem of direct discrimination on the grounds of sexual orientation and gender identity, is intrinsically wrongful because it fails to respect the equal moral personhood of LGBTIQþ people.

‘Conversion therapy’ disrespects LGBTIQþ persons not only because it places them at real risk of grave physical and psychological harm; or only because it denies them specific freedoms related to sexuality and gender identity; or only because it depends on, and reflects, their social subordination. ‘Conversion therapy’ disrespects LGBTIQþ persons for all those reasons, at the same time. Secondly, does this distinctive combination of wrongs mean that all forms of ‘conversion therapy’ amount at a minimum to degrading treatment for the purposes of human rights law? Answering this question requires engagement with the evaluative terms predicating the prohibition of torture and CIDT. That is essential to show how ‘conversion therapy’ is relevantly similar to examples of abuse that are recognised as more typical forms of degrading treatment. For that reason, this article analyses the meaning of ‘degrading’ treatment under article 3 ECHR and argues that the term is conditioned by the ideas of human dignity and power. An act is degrading if it expresses the unequal moral worth of the other and if the acting person or entity has sufficient power or status over the victim such that their actions can put them down.16 It is also argued that the intentions of the agent and the perception of

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17 That is why some bans expressly exempt such practices from the scope of ‘conversion therapy’. See eg the legislation adopted in Queensland (Public Health Act 2005, s 213F as amended by Health Legislation Amendment Act 2020, s 28) and Victoria (Change or Suppression (Conversion) Practices Prohibition Act 2021, s 5).

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the victim are not necessary conditions of degrading treatment, whereas the consequences of ill-treatment for individual interests do play an important role. The article then applies this account of degrading treatment to ‘physical’ forms; forcible forms; and, finally, ‘non-physical’ and non-forcible forms of ‘conversion therapy’. It is concluded that all forms of ‘conversion therapy’ amount at a minimum to degrading treatment in human rights law. Some violent ‘physical’ forms of ‘conversion therapy’ may amount to torture instead of degrading treatment, but their position within the architecture of the prohibition of torture or CIDT depends on their intensity in the context of the case. Since all forms of ‘conversion therapy’ fall within the scope of the prohibition, the article ends with an examination of the positive state obligations in this area. Most parts of the discussion focus on article 3 ECHR. However, the overarching argument, namely that all forms of ‘conversion therapy’ amount at a minimum to degrading treatment, is not contingent on the ECHR. The article’s arguments on the wrongness of ‘conversion therapy’, the meaning of degrading treatment in human rights law and the positive state obligations arising from the relationship between those two apply more broadly to international human rights law.

Moreover, although most of the discussion focuses on sexuality, the proposed account covers ‘conversion therapies’ targeting either sexuality or gender identity, or both. We are aware that medical or therapeutic interventions related to gender identity raise their own specific ethical and socio-legal questions, but those questions fall beyond the scope of this article. That said, it is important to clarify from the outset that therapeutic interventions that do not pathologise any sexualities or gender identities but aim to provide acceptance and support to a person do not amount to ‘conversion therapy’. Such interventions lack the element of pathologisation of certain sexualities or gender identities that all forms of ‘conversion therapy’ share, and therefore fall outside its scope.17 The discussion unfolds in four sections. The first section pieces together a definition of ‘conversion therapy’ based on research by the UN and medical organisations. The second section analyses the wrongness of ‘conversion therapy’. Following that, the third section offers an interpretation of degrading treatment under article 3 ECHR, and then applies that interpretation to ‘conversion therapy’. The final section analyses the consequences of the claim that all forms of ‘conversion therapy’ violate the prohibition of torture or CIDT for the positive state obligations in this context.

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2. What Is ‘Conversion Therapy’? This article began with the definition of ‘conversion therapy’ by the UN Independent Expert on Sexual Orientation and Gender Identity. This definition draws on work by established medical organisations, such as the definition used in the 2017 Memorandum of Understanding signed by leading UK health bodies and the NHS. There, ‘conversion therapy’ is described as:

‘Conversion therapy’ is an ‘umbrella term’ to describe ‘a multitude of practices and methods’ to change or suppress an individual’s sexuality or gender identity.19 Each involve ‘attempts to pathologize and erase the identity of individuals’.21 A wide range of practices have been reported, including ‘corrective’ rape and sexual assault,22 imprisonment and kidnapping,23 physical abuse,24 electroconvulsive shock treatments,25 hormone treatments26 and ‘aversion therapy’.27 Call these methods physical ‘conversion therapy’. Not all forms of conversion therapy involve overt violence. At the other end of the scale are ‘talking’ therapies, which involve psychotherapy, peer support or pastoral counselling.28 Techniques utilised there include trying to make recipients behave in conformity with gender stereotypes;29 encouraging them to sever ties with their families; and promoting celibacy.30 Call these forms non-physical ‘conversion therapy’. There is significant evidence that the use of psychotherapy or pastoral counselling as a practice of ‘conversion therapy’ can cause grave, lifelong harm.31 So, the distinction between physical and non-physical forms of ‘conversion therapy’ does not downplay the harmfulness of the latter.32 People who have undergone such ‘therapies’ have reported ‘loss of 18

BACP and others (n 4) para 2. ‘Practices of So-Called “Conversion Therapy”’ (n 1) para 17. ibid para 19. 22 ibid paras 18 and 39. 23 ibid para 39. 24 ibid paras 39, 50 and 52. 25 ‘Report of the Special Rapporteur’ (n 15) para 24. 26 ‘Practices of So-Called “Conversion Therapy”’ (n 1) para 46. 27 ibid para 43. 28 KA Hicks, ‘“Reparative” Therapy: Whether Parental Attempts to Change a Child’s Sexual Orientation Can Constitute Child Abuse’ (1999) 49 Am U L Rev 506. 29 ‘Practices of So-Called “Conversion Therapy”’ (n 1) para 45. 30 ibid para 37. 31 J Turban and others, ‘Association Between Recalled Exposure to Gender Identity Conversion Efforts and Psychological Distress and Suicide Attempts Among Transgender Adults’ (2020) 77 JAMA Psychiatry 68; J Devlin and others, ‘Sexual Orientation Change Efforts Among Current or Former LDS Church Members’ (2015) 62 Journal of Counseling Psychology 95; D Halderman, ‘Therapeutic Antidotes: Helping Gay and Bisexual Men Recover from Conversion Therapies’ (2002) 5 Journal of Gay & Lesbian Psychotherapy 117. 32 ‘Practices of So-Called “Conversion Therapy”’ (n 1) para 55. 19 21

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a therapeutic approach, or any model or individual viewpoint that demonstrates any assumption that any sexual orientation or gender identity is inherently preferable to any other, and which attempts to bring about a change of sexual orientation or gender identity or seeks to supress an individual’s expression of sexual orientation or gender identity on that basis.18

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self-esteem, anxiety, depression, social isolation, intimacy difficulty, selfhatred, shame, sexual dysfunction, suicidal ideation, and post-traumatic stress disorder’.33 Arguably, some forms of ‘conversion therapy’ might be difficult to classify as they constitute both physical and emotional abuse. The distinction between physical and non-physical forms is only a heuristic for the purposes of the threshold of severity set by the prohibition of torture or CIDT in human rights law. Later sections of this article will return to this point.

At first glance, ‘conversion therapy’ is morally wrong because it endangers the lives and health of LGBTIQþ people. The reports from international organisations and healthcare professionals that were discussed above illustrate the grave injuries that ‘conversion therapy’ can inflict on LGBTIQþ people. This is wrong in and of itself, regardless of any comparison between people on the grounds of sexuality and gender identity. At the same time, ‘conversion therapy’ is morally wrong for reasons that stretch beyond the grave risks it poses for the bodily and psychological health of its victims.34 Unlike other harmful or medically negligent therapies, ‘conversion therapy’ singles out a protected socially salient group of people, ie LGBTIQþ people, for disadvantageous treatment. So ‘conversion therapy’ is also, fundamentally, a problem of direct discrimination on the grounds of sexual orientation and gender identity.

It is, moreover, a form of intrinsically wrongful discrimination, ie independent of its effects, because alongside its proved potential for causing grave physical and psychological harm, ‘conversion therapy’ is basically disrespectful of the equal moral personhood of LGBTIQþ people.35 All forms of ‘conversion therapy’ are basically disrespectful because, aside from their actual effects on the victims and aside from social conventions about what counts as disrespect, they fail to recognise that all persons are of equal moral value regardless of their sexuality and gender identity. Put differently, they fail to show what Stephen Darwall has influentially called ‘recognition respect’.36 ‘Conversion therapies’ fail to show recognition respect because they fail to recognise that the status of LGBTIQþ persons as persons has to be appropriately integrated in one’s deliberations about how to act. 33 ibid para 56. See also J Fjelstrom, ‘Sexual Orientation Change Efforts and the Search for Authenticity’ (2013) 60 Journal of Homosexuality 801. 34 This analysis of the wrongness of ‘conversion therapy’ distinguishes objections from the proved potential of ‘conversion therapy’ to cause grave physical and psychological harm from objections to the practice from its inegalitarian nature. However, the two objections are linked.

Pain and injury can be objected to independently of their consequences to the affected people’s options. But pain and injury are harmful also because they obstruct the pursuit of a person’s options and relationships. 35 On basic disrespect, see B Eidelson, Discrimination and Disrespect (OUP 2015) 84–90. See also J Wolff, ‘Fairness, Respect, and the Egalitarian Ethos’ (1998) 27 Philosophy & Public Affairs 97, 107–10. 36 S Darwall, ‘Two Kinds of Respect’ (1977) 88 Ethics 36, 38. For the purposes of this article, it is not necessary to offer a more detailed account of an egalitarian notion of respect. Rather, it suffices to show that ‘conversion therapy’ undermines respect (including self-respect) in specific ways.

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3. Why Is ‘Conversion Therapy’ Wrong?

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H Frankfurt, Necessity, Volition, and Love (CUP 1999) 146–55. N Kolodny, ‘Rule Over None II: Social Equality and the Justification of Democracy’ (2014) 42 Philosophy & Public Affairs 287. 39 Since ‘conversion therapy’ breaches autonomy-based duties, state intervention is legitimate. See J Raz, The Morality of Freedom (OUP 1986) 416–17. 40 The definitions of ‘conversion therapy’ in some of the existing laws against it cover practices that aim to convert, cancel or suppress sexual orientation or gender identity. See n 17 above. 41 J Gardner, ‘On the Ground of Her Sex(uality)’ (1998) 18 OJLS 167, 172–3. The question of whether sexuality constitutes an immutable characteristic or a fundamental choice cannot settle whether people are entitled to protection from ‘conversion therapy’. In either case, sexuality and gender identity are so central to selfdefinition that the harms of ‘conversion therapy’ amount to an attack on the autonomy of LGBTIQþ people. 42 ibid 176–8. 43 D Réaume, ‘Discrimination and Dignity’ (2003) 63 La L Rev 645, 673; Wolff (n 34) 107; T Khaitan, ‘Dignity as an Expressive Norm: Neither Vacuous nor a Panacea’ (2012) 32 OJLS 1. 38

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Apart from discounting the interests of LGBTIQþ people to physical health, ‘conversion therapy’ manifests that deliberative failure in two other ways: it attacks core aspects of the identity of LGBTIQþ people by denying them crucial freedoms related to sexuality and gender identity; and it unfairly subordinates them on the grounds of sexuality. Let us look at those in more detail. First of all, the practice of ‘conversion therapy’ is disrespectful for the equal moral personhood of LGBTIQþ people because it places less weight on some of their key autonomy interests without any good reason for discounting them.37 ‘Conversion therapy’ explicitly marks out LGBTIQþ identities as inferior to heterosexuality and, as a result of that judgment, affords less consideration to the interests of LGBTIQþ people.38 Thus, even though the basis of less consideration is the sexuality or gender identity of the person, the responses constitutive of less consideration are focused on the person and their interests. All forms of ‘conversion therapy’ share one autonomy-diminishing goal: to restrict a host of profoundly important interests in relation to sexuality and gender identity.39 Two are worthy of specific mention here. The first is the individual interest to develop one’s sexual attraction into sexual activity.

Some forms of ‘conversion therapy’ are designed to suppress same-sex attraction; others to suppress the option to develop same-sex sexual attraction into same-sex sexual activity.40 Both forms aim to suppress fundamental choices that are central to personal autonomy:41 that is, choices that are central to the ideal of an autonomous life shaped by people’s successive choices among valuable options of sexuality and gender identity, among which homosexuality, bisexuality, transsexuality, intersexuality, queerness etc are as valuable as heterosexuality. The second is the interest to take pride in one’s sexuality and gender identity and make it part of one’s public personality instead of staying ‘in the closet’. This is another fundamental choice, which is also central to personal autonomy, because self-repression of one’s identity inhibits full participation in valuable aspects of public culture—from music to art to politics— that are influenced and permeated by diverse sexualities and gender identities.42 As a result of attacking those fundamental choices, ‘conversion therapy’ also diminishes self-worth because persons measure their own sense of worth according to their ability to realise their capabilities, goals and dreams.43 So,

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44 On the demeaning message of discrimination, see D Nejaime and RB Siegel, ‘Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics’ (2015) 124 Yale LJ 2516, 2574–8. 45 M Nussbaum, From Disgust to Humanity: Sexual Orientation and Constitutional Law (OUP 2010) 2–26. 46 The force of this objection depends on an analysis of the socio-historical particularities which determine the meaning of an act. See Hellman (n 16) 34–59. 47 A historical example can be seen in the debates surrounding the Local Government Act 1988, s 28. See J Moran, ‘Childhood Sexuality and Education: The Case of Section 28’ (2001) 4 Sexualities 73. 48 Larissis v Greece App no 23372/94 (24 February 1998) para 51. 49 This argument does not suggest that there is a positive state obligation to ban all forms of proselytism. It only aims to show that the legitimacy of proselytism depends, to a significant extent, on an evaluation of the background conditions in which it takes place. See Nasirov and Others v Azerbaijan App no 58717/10 (20 February 2020) para 65; Jehovah’s Witnesses of Moscow and Others v Russia App no 302/02 (10 June 2010) para 122. More broadly, egalitarian considerations can justify restrictions on freedom of religion or belief; see I Trispiotis, ‘Religious Freedom and Religious Antidiscrimination’ (2019) 82 MLR 864.

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‘conversion therapy’ disrespects the equal value of LGBTIQþ people by discounting, absent any good reason, profoundly important interests that are central to their personal autonomy. This is one of the reasons why it is wrong. At the same time, ‘conversion therapy’ is disrespectful for the equal moral personhood of LGBTIQþ people for reasons that extend beyond the harms it inflicts on the specific individuals who are subjected to it. ‘Conversion therapy’ depends on, and reflects, the systematic disempowerment of LGBTIQþ people that occurs in many societies. The message of ‘conversion therapy’—a message of contempt or disdain for LGBTIQþ identities, which can and ought to be eliminated—is demeaning for all LGBTIQþ people; even for those that never get to experience ‘conversion therapy’ themselves.44 This is because it reproduces, and promotes, the social images of LGBTIQþ people as abnormal, disgusting etc which ground their pre-existing stigma.45 In these ways, ‘conversion therapy’ affects not only the people who are subjected to it, but also LGBTIQþ people in general and the attitudes of other people towards them.

In fact, it is hard to divorce the absence of a legal ban on ‘conversion therapy’ in most European countries from a social context of historical stigmatisation on the basis of homosexuality.46 Consider the hypothetical example of a similar practice with the inverse aim, namely a ‘therapy’ whose express aim is to convert heterosexual people to homosexuals. It is unlikely that such a practice would not be illegal.47 But people cannot function as equals in their societies if the state does not protect everyone from abusive practices, like ‘conversion therapy’, targeting sexuality and gender identity. Consider another example, real this time. States do take action against illegitimate forms of coercive interference with important aspects of individual identity, such as religion. The European Court of Human Rights (ECtHR), for instance, has repeatedly found that exploiting a power imbalance under specific circumstances, eg in a military environment,48 in order to coerce someone to change their religion amounts to ‘improper proselytism’, which enjoys no protection under the ECHR.49 Comparisons like these illustrate that ‘conversion therapy’ relies on, and reflects, a social order in which LGBTIQþ people have less power and are shown less respect than heterosexual people, and in which their

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50 S Moreau, Faces of Inequality (OUP 2020) 39–66; N Bamforth, ‘Sexuality and Citizenship in Contemporary Constitutional Argument’ (2012) 10 ICON 477; C Stychin, Governing Sexuality: The Changing Politics of Citizenship and Law Reform (Hart Publishing 2003) 12–13. 51 Art 3 makes no provision for exceptions and no derogation is permissible under Art 15(2) ECHR. See Soering v United Kingdom App no 14038/88 (7 July 1989) para 88. 52 This distinction draws on Scanlon’s distinction between narrow (‘forfeiture’) and broad (‘value of choice’) interpretations of the moral significance of choice. See TM Scanlon, What We Owe to Each Other (Harvard UP 2000) 256–67. 53 ibid 260. Under a narrow account of the moral significance of choice, the ‘background’ conditions are important only if they affect the voluntariness of choice. 54 Force-feeding (eg Nevmerzhitsky v Ukraine App no 54825/00 (5 April 2005)) and force-sterilisation (eg VC v Slovakia App no 18968/07 (8 November 2011)) are examples of that.

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needs are marginalised.50 Those wider, subordinating effects of ‘conversion therapy’ furnish another decisive objection against it. It might be objected that the arguments above apply only where LGBTIQþ persons are forcibly subjected to ‘conversion therapy’ and not in cases where individuals choose to undergo it. If a ‘therapy’ provider has done enough to warn others about the potential risks from ‘conversion therapy’, then anyone who nevertheless chooses to undergo it is responsible for any harm they suffer. The next section will rebut this objection: ‘conversion therapy’ is among those forms of ill-treatment that human rights law prohibits in an absolute sense.51 Whether an individual consented to their ‘conversion’ is therefore irrelevant. What matters is whether, in light of the harmfulness of ‘conversion therapy’, the state did enough to protect people from it. There is an additional point though.

This consent-based objection is based on an overly narrow interpretation of the moral significance of choice: what matters is the fact of a person’s choice, rather than the circumstances under which a person made that choice.52 However, such an interpretation is misleading because a choice has elevated moral force only when the conditions under which it is made are right.53 As we saw above, ‘conversion therapy’ depends on a social context of historical stigmatisation on the basis of homosexuality. The relationship of that context with the pressure on many LGBTIQþ persons to resist their sexuality or gender identity—a pressure that heterosexual, cisgender persons do not experience—has independent moral significance. To be clear, the argument here is not that consent is irrelevant in determining whether a certain conduct amounts to prohibited ill-treatment under human rights law. Indeed, certain treatments may violate article 3 ECHR precisely because they were forced on someone.54 The argument is that an overly narrow interpretation of the moral significance of choice, which focuses only on consent and overlooks the background conditions under which a decision is made, is under-inclusive.

As the next section shows, a narrow account of freedom of choice would be unable to explain key parts of the case law under article 3 ECHR, where significant emphasis is placed on the circumstances under which someone was ill-treated, such as the existence of widespread and well-known prejudice against a protected group or the vulnerability of the victim, rather than on whether an individual had a choice to

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avoid ill-treatment. The role of such factors can be captured only by a broader account of the moral significance of choice, according to which, in order for a decision to be legitimate, the conditions have to be right before passing to whether the person’s choice or consent is sufficient. This broader account is morally preferable, but its full defence cannot be pursued further here. One final point to emphasise is that, so far, we have argued that ‘conversion therapy’ is wrong because it disrespects the standing of LGBTIQþ people as equals. However, it is important to eschew one misleading connotation of that idea, namely that ‘conversion therapy’ is wrong because it is based on incorrect beliefs about the moral worth of LGBTIQþ persons. As we saw, the view that LGBTIQþ persons are of lesser value is fundamental to many instances of ‘conversion therapy’. But not all instances of ‘conversion therapy’ necessarily rest on such a judgment of inferior status. Consider a religious group that offers ‘conversion therapy’ to save gay men from eternal damnation. Their intervention does not necessarily rely on the assumption that LGBTIQþ people are intrinsically less valuable than others. In fact, their intervention might be taken to suggest the exact opposite, namely that because LGBTIQþ people are of equal value, they deserve to be saved through their ‘treatment’.

Nevertheless, even those benevolent forms of ‘conversion therapy’ that do not rely on a direct judgment about the equal value of LGBTIQþ people as persons fail to accord them the equality of respect that their status as persons demands. This is because their interests—in relation to health and personal autonomy—are unwarrantedly taken to matter less than the interests of others; and, more specifically, less than the interests of heterosexual people in those very matters. Therefore, the wrongness of ‘conversion therapy’ does not depend on the beliefs of the ‘therapist’, but on a theory about the normative significance of being a person, which entails that certain considerations should not be taken as a reason for certain actions. To recap, ‘conversion therapy’ is wrong because it disrespects LGBTIQþ persons. It disrespects them not only because it places them at real risk of grave physical and psychological harm; or only because it denies them key freedoms related to sexuality and gender identity; or only because it depends on, and reflects, their social subordination. ‘Conversion therapy’ disrespects LGBTIQþ persons for all those reasons, at the same time. Both by design and in effect, ‘conversion therapy’ flouts protected areas of liberty and equality which are, as the next section will further discuss, inherent in the idea of human dignity.

This partial sketch of the wrongfulness of ‘conversion therapy’ is meant to offer a set of reasons that, though incomplete, is sufficient for the overall purpose of this article, namely, to support the view that all forms of ‘conversion therapy’ fall within the scope of the absolute prohibition of torture and CIDT in human rights law.

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4. ‘Conversion Therapy’ and the Scope of the Prohibition of Torture or Degrading Treatment

A. Degrading Treatment and Human Dignity Does ‘conversion therapy’ have to reach a particular level of severity in order to fall within the prohibition of degrading treatment? Answering this requires engagement with the meaning of severity in this context. This section focuses on the ECHR and UK law. However, for reasons that will be discussed in section 5 of this article, the proposed interpretation of degrading treatment also applies to the UN Committee Against Torture (CAT). First, a treatment must reach ‘a minimum level of severity’ in order to fall within the scope of article 3 ECHR.55 The assessment of this depends on various factors,56 such as the nature and context of the treatment, its duration, its physical and mental effects, and the age, sex and health of the victim.57 Typically, the courts determine whether the threshold has been crossed by applying the Pretty test.58 The Pretty test includes two evaluative elements, namely the ‘severity’ of treatment and the ‘intensity’ of suffering. To determine ‘severity’, the courts focus on the intentions and conduct of the perpetrator. The courts then shift their focus from the perpetrator to the subjective experience of the victim to assess the ‘intensity’ of suffering. ‘Severity’ and ‘intensity’ are matters of degree and, as we saw, depend on the type and context of the treatment.

Thus, apart from the fact that article 3 sets a high threshold of severity, it is difficult to know much else ex ante.59 It is difficult to know ex 55

Ireland v United Kingdom (1978) 2 EHRR 25, para 162; Tyrer v United Kingdom (1978) 2 EHRR 1, para

30. 56

Jalloh v Germany App no 54810/00 (Grand Chamber, 11 July 2006) para 67. See also Kafkaris v Cyprus App no 21906/04 (Grand Chamber, 12 February 2008) para 95. 57 On the difficulty in outlining every condition able to influence the severity test under art 3, see R (on the application of Q) v Secretary of State for the Home Department [2003] EWCA Civ 364, para 60. 58 Pretty v United Kingdom App no 2346/02 (29 April 2002) para 52. See also R (Pretty) v Director of Public Prosecutions [2001] UKHL 61, para 90 (Lord Hope); R (Watts) v Bedford Primary Care Trust [2003] EWHC Admin 2401, para 103. 59 N Mavronicola, ‘What Is an “Absolute Right”? Deciphering Absoluteness in the Context of Article 3 of the European Convention on Human Rights’ (2012) 12 HRLR 723, 748–52.

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The previous section set out the reasons why ‘conversion therapy’ is a serious violation of human dignity. This section will link the discussion with the absolute prohibition of degrading treatment in human rights law. The argument unfolds in two parts. The first part analyses the meaning of ‘degrading treatment’ under article 3 ECHR. It is argued that one of the main aims of the prohibition of ‘degrading treatment’ is to protect individuals from serious violations of human dignity, which are specified in detail. Based on this interpretation of degradation, the second part analyses the reasons why all forms of ‘conversion therapy’ amount at a minimum to ‘degrading treatment’ for the purposes of international human rights law.

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60 D Feldman, Civil Liberties and Human Rights in England and Wales (2nd edn, OUP 2002) 242; H Fenwick, Civil Liberties and Human Rights (2nd edn, Cavendish 2004) 44–5. 61 J Waldron, ‘How to Do Things with Standards’ in U Baxi, C McCrudden and A Paliwala (eds), Law’s Ethical, Global and Theoretical Contexts: Essays in Honour of William Twining (CUP 2015) 335–53. 62 That process of elaboration applies to both ‘severity’ and ‘intensity’, although more to the former than the latter because the ‘intensity of suffering’ depends on the individual’s subjective experience of the practice. 63 See eg Yavuz v Turkey (2007) 45 EHRR 16, para 38. 64 See eg Kalashnikov v Russia (2003) 36 EHRR 34, para 97. 65 See eg Aksoy v Turkey App no 21987/93 (18 December 1996) para 63. 66 J Waldron, Torture, Terror and Trade-Offs: Philosophy for the White House (OUP 2010) 284–7. 67 Aydin v Turkey App no 23178/94 (25 September 1997) para 86; Maslova and Nalbandov v Russia App no 839/02 (24 January 2008) para 107. 68 See eg B Rainey, E Wicks and C Ovey, Jacobs, White, and Ovey: the European Convention on Human Rights (7th edn, OUP 2017) 187–91. However, see Cestaro v Italy App no 6884/11 (7 April 2015) paras [171]–[176]. 69 Ireland v UK (n 54) para 167. 70 Lyalyakin v Russia App no 31305/09 (12 March 2015).

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ante whether a treatment can cross the requisite threshold.60 So, going back to where we started, it is difficult to know ex ante whether ‘conversion therapy’ violates article 3. This worry is exaggerated though. Indeed, there is uncertainty over the severity threshold, especially for practices like ‘conversion therapy’ that have seldom been tested before the courts. However, as the ECtHR develops its jurisprudence on article 3, the evaluative terms of ‘severity’ and ‘intensity’ are being replaced by more determinate rules.61 The ECtHR elaborates the standards underlying article 3 in two ways.62 The first is by adding presumptions,63 benchmarks64 and principles65 clarifying the circumstances under which a practice can violate article 3.66 The second is by developing a list of practices which, due to their seriousness, always violate article 3, such as that the rape of a detainee by a state official always amounts to torture.67 Time and again, the judgments above are taken to suggest that underlying article 3 is a predominantly quantitative approach,68 which works roughly along these lines: degrading treatment involves pain that is severe enough to reach the threshold set by article 3, but is not as severe as inhuman treatment; inhuman treatment involves more severe pain than degrading treatment, but not as severe as torture; torture involves the most severe pain and suffering,

which is why it deserves a ‘special stigma’.69 It is important to resist this prevailing, quantitative interpretation of the threshold set by article 3. This is because the ECtHR also places significant emphasis on the purpose of the ill-treatment and its meaning for its victims in the context in which it was inflicted. More specifically, any serious violation of human dignity may be classified as degrading treatment under article 3, even when no bodily injury and no intense physical or mental suffering is involved. Based on this principle, the ECtHR has found several forms of ill-treatment, which have not caused sustained injuries or suffering, in violation of article 3. Examples include being forced to parade naked in front of other soldiers as punishment;70 and several cases involving forced strip searches where their

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71 Aghdgomelashvili and Japaridze v Georgia App no 7224/11 (8 October 2020) paras 48–9; Wiktorko v Poland App no 14612/02 (31 March 2009) paras 54–5; Iwa nczuk v Poland App no 25196/94 (15 November 2001) paras 54–60; Valasinas v Lithuania App no 44558/98 (24 July 2001) para 117. 72 The important role of qualitative considerations has emerged more clearly in recent case law under art 3. As the ECtHR held in para 42 of Aghdgomelashvili (n 70), treatment ‘can be qualified as “degrading” . . . if it shows a lack of respect for, or diminishes, human dignity’. 73 Waldron (n 65) 308–9. 74 Ibid. 75 G Vlastos, ‘Justice and Equality’ in J Waldron (ed), Theories of Rights (OUP 1984) 41–77. 76 J Waldron, Dignity, Rank, and Rights (OUP 2012). 77 C Taylor, ‘The Politics of Recognition’ in A Gutman (ed), Multiculturalism and the Politics of Recognition (Princeton UP 1994) 26–7.

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purpose was to provoke feelings of humiliation.71 These cases involve treatments lacking severe physical or mental effects on their victims. Nevertheless, the ECtHR has found them in violation of the substantive limb of article 3. Those decisions are guided by important qualitative, rather than quantitative, considerations underlying the provision. To be clear, this argument does not aim to downplay the importance of quantitative considerations in the interpretation of the threshold set by article 3. It aims to highlight that severity is not determined solely through a quantitative exercise.72 In fact, as the following pages discuss, it is precisely due to certain frequently overlooked qualitative considerations that all ‘conversion therapies’—even in mild, ‘talking’ forms—amount to degrading treatment. Tracking the qualitative considerations underlying article 3 depends on an analysis of the meaning of degrading treatment under the provision. The word ‘degrading’ in article 3 is an evaluative term. It requires the courts to engage with the normative significance of degradation by making certain evaluations.

These include whether degradation is conditioned by other ideas, such as human dignity or power; whether the intentions of the agent and the perception of the victim matter; and what role factual components, such as the consequences of ill-treatment for individual interests, play in establishing degradation. The first two of these questions will occupy this section. The next section will sketch an answer to the third question. What does ‘degrading’ others mean and how does it relate to human dignity? In response to this question, Jeremy Waldron has observed that the term ‘degrading’ touches on a hierarchical idea.73 Someone is degraded when they are treated in a way that corresponds to a lower rank than they actually have. Here, the idea of rank is an important conduit into human dignity. Dignity has also traditionally had a hierarchical reference, which surfaces in talks about ‘the dignity of a king or the dignity of a general’.74 As Vlastos,75 Waldron,76 Taylor77 and others have argued, the idea of dignity as rank also informs our understanding of human dignity. The difference is that the contemporary idea of human dignity involves a pattern of levelling-up by extending high-status treatment to every human.

In this way, appeals to human dignity reflect the effort to accord to every person something of the ‘first-class citizenship’ that was formerly accorded to the hereditary nobilities of

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Vlastos (n 74) 54. It is neither possible nor necessary to offer a full account of human dignity for the purposes of this claim, namely that treatment that disrespects the equal moral status of all individuals violates dignity. See N Mavronicola, ‘Torture and Othering’ in BJ Goold and L Lazarus (eds), Security and Human Rights (Hart Publishing 2019) 27–52; E Webster, Dignity, Degrading Treatment and Torture in Human Rights Law (Routledge 2018) ch 2. 80 Bouyid v Belgium App no 23380/09 (Grand Chamber, 28 September 2015) para 112. 81 ibid para 107. The vulnerability of an applicant is an aggravating factor when assessing whether illtreatment is severe enough to fall under art 3. See L Peroni and A Timmer, ‘Vulnerable Groups: The Promise of an Emerging Concept in European Human Rights Convention Law’ (2013) 11 ICON 1056. 82 C Heri, ‘Shaping Coercive Obligations through Vulnerability: The Example of the ECtHR’ in L Lavrysen and N Mavronicola (eds), Coercive Human Rights: Positive Duties to Mobilise the Criminal Law under the ECHR (Hart Publishing 2020) 93–116; A Timmer, ‘A Quiet Revolution: Vulnerability in the European Court of Human Rights’ in MA Fineman and A Grear (eds), Vulnerability: Reflections on a New Ethical Foundation for Law and Politics (Ashgate 2013) 162–4. 83 Bouyid (n 79) para 107. 84 ibid paras 88 and 100. 85 ibid para 103. 86 ibid para 104. 87 ibid para 106. 79

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the past.78 So this is why degrading treatment violates human dignity: it involves treating some people as if they rank lower to others, contrary to our equally high moral status.79 Let us examine now some examples of the serious type of degradation prohibited by article 3. Consider the case of Bouyid, where the ECtHR held that one slap by a police officer to the face of someone in custody constituted degrading treatment, even though the victim did not experience serious physical or mental suffering.80 The ECtHR stressed that whenever persons are deprived of their liberty they are in ‘a situation of vulnerability’.81 Vulnerability here is a ‘context-sensitive’ judgment that reflects the dependency and relative powerlessness of individuals in custody.82 In that context, the authorities are under a duty to protect them,83 and any recourse to violence which has not been strictly necessary ‘diminishes human dignity and is, in principle, an infringement of . . . Article 3’.84 Under those circumstances, even one slap to the face of a person constitutes a ‘serious attack on the individual’s dignity’.85 The ECtHR added two more specific reasons for that finding.

First, a slap to the face ‘affects the part of the person’s body which expresses his individuality, manifests his social identity and constitutes the centre of his senses—sight, speech and hearing—which are used for communication with others’.86 A slap to the face is therefore a particularly acute form of disrespect for the equal moral personhood of the other. Secondly, the officers were in a superior position and had power over the applicants when they slapped them. When such a power imbalance exists, even a single slap degrades the person—it puts him down. It expresses that the victim counts for less; that he is powerless under the control of law-enforcement officers and is morally inferior to them.87 Thus, looking closely at Bouyid, an act is degrading when it satisfies two conditions. First, to degrade is to treat others in a way that expresses disrespect for their equal moral worth. Treating others as if they are objects rather

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88 In Bouyid, the ECtHR emphasises the ‘strong link’ between human dignity and degrading treatment, and that even in the absence of ‘actual bodily injury or intense physical or mental suffering’ treatment showing ‘a lack of respect for or diminishing human dignity’ may be classed as degrading. See Bouyid (n 79) paras 87 and 90. See also Webster (n 78) 105–17; N Mavronicola, ‘Bouyid and Dignity’s Role in Article 3 ECHR’ (Strasbourg Observers, 8 October 2015) <https://strasbourgobservers.com/2015/10/08/bouyid-and-dignitys-rolein-article-3-echr/> accessed 26 May 2021. 89 Hellman (n 16) 34–58; J Hampton, ‘Forgiveness, Resentment and Hatred’ in JG Murphy and J Hampton (eds), Forgiveness and Mercy (CUP 1988) 52. 90 The ECtHR suggests so in Bouyid (n 79) para 87. 91 Identoba and Others v Georgia App no 73235/12 (12 May 2015) para 71. 92 The police authorities had been informed ‘well in advance’ of the LGBT community’s intention to hold a march in the centre of Tbilisi on 17 March 2012. See ibid para 72. 93 ibid paras 69 and 70. 94 ibid para 65. See also Eremia v the Republic of Moldova App no 3564/11 (28 May 2013) para 54; Gäfgen v Germany App no 22978/05 (Grand Chamber, 1 June 2010) para 103. 95 Identoba (n 90) paras 68 and 70. 96 ibid.

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than human persons or denying others the minimum requirements of personal autonomy and self-respect is incompatible with the inherent dignity of persons.88 Secondly, to degrade also requires that the person or entity acting has sufficient power or status to put others down.89 Those two conditions track the close links between degrading treatment and dignity in our moral vocabulary. It is, however, important to investigate further whether, when those two conditions are satisfied, an act can be classed as degrading under article 3 even in the absence of material effects on the victims.90 Let us consider some more examples. The links between degrading treatment and human dignity also emerge in Identoba.91 In Identoba, the ECtHR found a violation of article 3, taken in conjunction with the prohibition of discrimination under article 14, because the state authorities failed to provide adequate protection to LGBT citizens during their peaceful march on the International Day Against Homophobia.92 Because of inadequate police intervention, the LGBT demonstrators were subject to homophobic aggression and verbal abuse by counter-demonstrators.

LGBT flags and posters were ripped apart; a big mob surrounded the demonstrators, called them ‘faggots’ and ‘perverts’, and threatened to ‘crush’ them and ‘burn them to death’.93 Similarly to Bouyid, Identoba shows that the classification of a treatment as ‘degrading’ under article 3 is not contingent on its effects on the victims. Even absent any physical injury or serious mental suffering, ill-treatment can still qualify as ‘degrading’ provided that it constitutes an ‘affront to human dignity’.94 Still, for the purposes of ‘conversion therapy’, let us focus on a key aspect of the treatment in Identoba. What proved significant was that the recipients of the aggression were in a precarious position because of widespread homophobic prejudice against them.95 It was in this context that the homophobic and transphobic abuse that they experienced had the effect of arousing feelings of fear, anguish and insecurity that were incompatible with their dignity.96 In such circumstances,

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So, wrongful discrimination is an aggravating factor when considering whether ill-treatment reaches the threshold set by article 3.98 The ECtHR has reiterated this principle in MC and AC,99 and in Aghdgomelashvili,100 both of which, similarly to Identoba, involved ill-treatment that was motivated by homophobic and/or transphobic hatred. Even in the absence of intense physical or psychological suffering, such forms of direct discrimination can amount to degrading treatment under article 3 whenever they are severe enough to constitute an affront to human dignity.101 Notably, those links between discrimination and degrading treatment mirror the interpretation of the prohibition of torture or CIDT by the CAT, which has emphasised that the discriminatory use of violence is a determining factor in the classification of an act as torture or CIDT.102 When is wrongful discrimination severe enough to constitute an ‘affront’ to human dignity in violation of article 3? An early example comes from the decision of the European Commission of Human Rights in East African Asians.103 The case involved the reimposition of immigration control on the citizens of the UK and Colonies coming from East Africa, who were henceforth not able to enter ‘the only State of which they were citizens—the United Kingdom’.104 A combination of two factors led the Commission to conclude that the discrimination they

suffered amounted to degrading treatment. First, differential treatment on the basis of race constitutes ‘a special form of affront to human dignity’.105 Secondly, the applicants were ‘publicly’ disadvantaged by discriminatory legislation. The public nature of the measures against them was an additional ‘aggravating’ factor when assessing whether discrimination constitutes degrading treatment under 97

Identoba (n 90) para 70 (emphasis added). ibid para 67. See also Begheluri and Others App no 28490/02 (7 October 2014) para 173. MC and AC v Romania App no 12060/12 (12 June 2016) paras 116–18. 100 Aghdgomelashvili (n 70) paras 44 and 48–9. 101 Identoba (n 90) para 65. The ECtHR has repeatedly held that racial discrimination is a ‘special affront to human dignity’ and can as such amount to degrading treatment under art 3. See Moldovan v Romania App no 41138/98 (12 July 2005) para 110; Nachova and Others v Bulgaria App nos 43577/98 and 43579/98 (Grand Chamber, 6 July 2005), para 145. 102 UN Committee Against Torture, ‘General Comment No 2’ (CAT/C/GC/2, 24 January 2008) paras 20–1. Discrimination also features in the definition of torture in art 1 CAT. 103 East African Asians v United Kingdom (1981) 3 EHRR 76. 104 ibid para 196. 105 ibid para 207. 98 99

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the question of whether or not some of the applicants sustained physical injuries of certain gravity becomes less relevant. All of the thirteen individual applicants became the target of hate speech and aggressive behaviour . . . Given that they were surrounded by an angry mob that outnumbered them and was uttering death threats and randomly resorting to physical assaults, demonstrating the reality of the threats, and that a clearly distinguishable homophobic bias played the role of an aggravating factor . . . the situation was already one of intense fear and anxiety. The aim of that verbal— and sporadically physical—abuse was evidently to frighten the applicants so that they would desist from their public expression of support for the LGBT community.97

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ibid para 208. Cyprus v Turkey App no 25781/94 (10 May 2001) paras 306–9. ibid paras 245 and 292–3. 109 Dudgeon v United Kingdom App no 7525/76 (Grand Chamber, 22 October 1981) para 52. 110 X v Turkey App no 24626/09 (27 May 2013). 111 Vallianatos and Others v Greece App nos 29381/09 and 32684/09 (Grand Chamber, 7 November 2013) para 77. 112 Smith and Grady v United Kingdom App nos 33985/96 and 33986/96 (27 September 1999) para 121. 113 X (n 109). 114 ibid para 56. 115 ibid para 53. 116 ibid para 57. 117 P Johnson and S Falcetta, ‘Sexual Orientation Discrimination and Article 3 of the European Convention on Human Rights: Developing the Protection of Sexual Minorities’ (2018) 43 ELR 167, 175–6. 107 108

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article 3.106 Similarly, in Cyprus v Turkey, the ECtHR held that Greek Cypriots living in northern Cyprus suffered severe discriminatory restrictions on the grounds of ethnic origin, race and religion.107 Once again, because of the grounds on which they were discriminated against and because their suffered discrimination was ‘public’ (ie induced by the state108), the ECtHR held that it amounted to degrading treatment. A closer look at those two factors, ie the ground of discrimination and its ‘public nature’, is crucial to understand when discrimination can be severe enough to constitute an ‘affront’ to human dignity and therefore violate article 3. First, for the purposes of ‘conversion therapy’, is sexual orientation discrimination a ‘special’ affront to human dignity, like racial discrimination? After years of evolution, the jurisprudence of the ECtHR suggests that the answer is now yes. Sexual orientation concerns ‘a most intimate’109 and ‘vulnerable’110 aspect of life.

Any differential treatment based on sexual orientation requires ‘very weighty reasons’ to be justified.111 In Smith and Grady, the ECtHR held that treatment grounded on ‘a predisposed bias on the part of a heterosexual majority against a homosexual minority’ may, in principle, fall within the scope of article 3.112 An example of sexual orientation discrimination that amounted to degrading treatment under article 3 comes from X v Turkey.113 In X, the prison authorities placed an inmate in solitary confinement because they assumed that his sexual orientation put him at risk of harm from other inmates.