D1f. bijlage - Conversion Therapy As Degrading Treatment.pdf

No risk assessment was carried out and no explanation was given as to why the applicant was deprived of even limited access to outdoor activities.114 The ECtHR held that placing the applicant in solitary confinement—a measure reserved for inmates, unlike the applicant, charged with violent offences115—without adequate justification was a degrading form of sexual orientation discrimination.116 Cases like X, Identoba, MC and Aghdgomelashvili bring discrimination on the grounds of sexual orientation or gender identity in line with the earlier discussed cases on racial discrimination: they confirm that, under certain circumstances, wrongful direct discrimination is a special affront to human dignity in violation of article 3.117 When state authorities abuse LGBTIQþ people, or when they refuse or systematically fail to protect them from abuse that they knew or ought to have known about, that is a degrading form of direct

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118

Identoba (n 90) para 70; MC (n 98) paras 117–19. UN Human Rights Council, ‘Annual Report of the 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’ (19th Session, A/HRC/19/41, 17 November 2011) para 34. 120 Of course, being an aggravating factor, the ‘public nature’ factor is neither necessary nor sufficient to find a case of discrimination in violation of art 3. See eg Lyalyakin (n 69) para 69; Svinarenko and Slyadnev v Russia App nos 32541/08 and 43441/08 (Grand Chamber, 17 July 2014) para 115. 121 The approach of the ECtHR is similar to the approach of the UN CAT in this regard. See UN General Assembly, ‘Extra-Custodial Use of Force and the Prohibition of Torture and Other Cruel, Inhuman or Degrading Treatment’ (A/72/178, 20 July 2017). 122 Tyrer v United Kingdom App no 5856/72 (25 April 1978) para 33. 123 In cases involving the rights of transgender people, the ECtHR has held that respect for dignity requires the protection of moral security. See Van Kück v Germany App no 35869/97 (12 June 2003) para 69; I v United Kingdom App no 25680/94 (11 July 2002) para 70; Christine Goodwin v United Kingdom App no 28957/95 (11 June 2002) para 90. 124 J Wolfendale, ‘Moral Security’ (2017) 25 Journal of Political Philosophy 238, 244; Wolff (n 34).

See also C Nikolaidis, ‘Unravelling the Knot of Equality and Privacy in the European Court of Human Rights and the US Supreme Court: From Isonomia to Isotimia’ [2018] HRLR 719, 736. 125 GC Lury, The Anatomy of Racial Inequality (Harvard UP 2002) 58. 126 T Khaitan, A Theory of Discrimination Law (OUP 2015) 126–8; S Bagenstos, ‘“Rational Discrimination”, Accommodation, and the Politics of (Disability) Civil Rights’ (2003) 89 Va L Rev 825. 119

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discrimination. As such, even absent any serious material effects on the victims,118 it violates the substantive limb of article 3 read together with article 14 ECHR. This principle rightly reflects the well-established links between discrimination and degrading treatment in international human rights law. For instance, as the UN High Commissioner for Human Rights has argued, sexual orientation discrimination can dehumanise its victims, which is often a necessary condition for torture and ill-treatment to occur.119 Secondly, we saw that the ‘public nature’ of discrimination is an aggravating factor when assessing whether discrimination is severe enough to fall under article 3.120 This factor reflects the interrelation of control and powerlessness, which is salient in the ECtHR’s interpretation of degrading treatment.121 Cases like East African Asians and Cyprus v Turkey, where the government institutionalises discrimination, are paradigms of some persons being openly treated as ‘objects’ in the power of the authorities.122 In other cases, like Identoba, MC and Aghdgomelashvili, questions of abuse of power emerge again, albeit in a different fashion.

When the state authorities systematically fail to prevent or investigate hatred-induced violence towards LGBTIQþ people that they knew or ought to have known about, they undermine public confidence in the state duty to keep everyone physically and morally secure.123 Moral security depends on having one’s moral standing recognised as a limitation to what may legitimately be done to them, and that their welfare is treated as morally important by the state.124 When a protected group is already the target of prejudice, the failure of the authorities to offer them reasonable protection is a paradigmatic affront to their moral standing—it stamps them with a badge of inferiority. Some of the most egregious forms of direct discrimination degrade their victims precisely because of the open way that they deny them profoundly important autonomy interests125 and self-respect.126 This reason might not hold in cases involving non-intentional or indirect forms of discrimination, where

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127 128 129

S Moreau, ‘What Is Discrimination’ (2010) 38 Philosophy & Public Affairs 143, 177–8. On the contrary, degrading discrimination can take place in a prison, see eg X (n 109). ibid paras 72–3.

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the psychological suffering and stigma might be somewhat less.127 As a result, those would be captured only by article 14 and not by article 3 ECHR. Thus, this analysis does not suggest that wrongful discrimination always amounts to degrading treatment under article 3. An interpretive judgment, similar to what these pages offer, is required to determine if an instance of discrimination spawns the type of serious degradation prohibited by the provision. Apart from the ground of discrimination, another factor affecting this interpretive judgment is its ‘public nature’; although, as we saw, ‘public’ discrimination does not require that discrimination is widely publicised.128 The ‘public nature’ factor is just another way of expressing a paradigm feature of degradation, namely that it rests on a significant disparity in power between two parties. It is because of that power disparity that an action degrades rather than merely insults others. One further caveat should be mentioned before we proceed: the power or status disparity in degrading treatment does not require that ill-treatment is forced on an individual. Although this is often the case, eg when ill-treatment occurs in custody, the requirement for a power/status disparity does not extinguish the possibility for individual voluntary action.

In cases like Identoba, MC and Aghdgomelashvili, the emphasis of the Court’s interpretation is not on whether the ill-treatment in question was forced on the applicants; rather, it was on the circumstances of widespread prejudice under which individuals were ill-treated and on the fact that, under those circumstances, the police either outright abused, or refused to provide reasonable protection to, the individuals in question.129 So, as discussed earlier, although consent is not irrelevant in determining whether conduct amounts to degrading treatment, focusing only on individual consent detracts from an evaluation of the background conditions in which ill-treatment was inflicted. Those background conditions have independent moral significance, which stems from the aim of the prohibition of degrading treatment to protect individuals from serious violations of human dignity. To recap, an act is degrading if it expresses the unequal moral worth of the other and if the person acting occupies a position of power over the victim such that their actions can put the other down. This explains why direct discrimination on the grounds of sexual orientation and gender identity can sometimes amount to degrading treatment under article 3.

Before examining if ‘conversion therapy’ fulfils those conditions of degradation, two final issues need addressing: first, whether the wrongness of a degrading act depends on the intentions of the wrongdoer; and, secondly, whether it depends on its subjective perception by the victim or others.

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130 Svinarenko (n 119) para 114; V v United Kingdom App no 24888/94 (Grand Chamber, 16 December 1999) para 71. 131 Gäfgen (n 93) para 107. 132 ibid 133 Ireland (n 54) para 167. 134 Tysia˛c v Poland App no 5410/03 (20 March 2007) para 67. 135 Lyalyakin (n 69) para 69. 136 Chember v Russia App no 7188/03 (3 July 2008) para 49. 137 In the jurisprudence of the ECtHR, degradation is closer to being demeaned, in the sense that the person wronged does not have to feel that their moral status has been lowered. See Hampton (n 88) 44–5.

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In response to the first question, the wrongness of degrading treatment depends on the objective meaning carried by it rather than the mental state of the wrongdoer. A slap to the face of a person has a different, ie degrading, social significance when it happens in a police station rather than outside a pub. Failing to offer reasonable protection to vulnerable people from predictable hatred-induced violence has a degrading meaning when we talk about the state authorities rather than one’s next-door neighbours. The condition that degrading treatment must express that the other is not of equal moral worth is satisfied depending on the social or conventional meaning of the conduct. Thus, the intentions of the wrongdoer are not decisive for whether an act is degrading. This objective-meaning interpretation of degrading treatment emerges clearly in the case law of the ECtHR. The ECtHR has repeatedly held that the intention to debase or humiliate is not a necessary condition of degrading treatment.130 A finding of degrading treatment is possible even when the intention to degrade is absent.

In Gäfgen, the officers who threatened to torture the applicant claimed that they were trying to save a child’s life.131 Yet their motives made no difference to the Court’s assessment, which was that torture or degrading treatment cannot be inflicted ‘even in circumstances where the life of an individual is at risk’.132 As for the second question, since what determines whether an act is degrading is its meaning in a particular social context, the emphasis is not on how the victim experienced their ill-treatment. This might appear counter-intuitive because the word ‘degrading’ focuses on the impact of an act on its victim. Starting from Ireland v UK,133 the ECtHR often reiterates that a treatment is degrading if it arouses in its victim ‘feelings of fear, anguish and inferiority capable of humiliating and debasing them’.134 In other cases, the ECtHR stresses that degrading treatment goes beyond the inevitable element of humiliation arising from ‘legitimate punishment’135 or ‘mandatory military service’.136 These terms denote that the subjective experience of ill-treatment is central to its wrongness. That is not the only available interpretation though.

The focus of degrading treatment on its impact on the victims does not mean that the term refers to their subjective experience.137 It refers to what happens to the person in relation to an objective standard of dignity, ie that each person is entitled to be treated as a moral equal. In the hypothetical scenario that the applicants in

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B. ‘Conversion Therapy’ within the Scope of Article 3 ECHR Is ‘conversion therapy’ an affront to human dignity that amounts to degrading treatment under article 3? Let us start with two specific forms of ‘conversion therapy’ that violate article 3. First are extreme ‘physical’ forms of ‘conversion therapy’, such as those involving rape, electroshocks, forced examinations of genitals, injections of drugs etc.140 Such extreme violence can cause severe physical pain and mental suffering, and therefore those forms of ‘conversion therapy’ violate article 3.141 Arguably, depending on their severity, such ‘physical’ forms of ‘conversion therapy’ may constitute torture rather than degrading treatment.142 That said, not only the severity of ill-treatment, but also its aim, determines its position within the architecture of article 3. As the ECtHR held in Romanov143 and Cestaro,144 the use of gratuitous violence that aims to debase others deserves the stigma attached to torture. Accordingly, because of 138

Poltoratskiy v Ukraine App no 38812/97 (29 April 2003) para 131. As the ECtHR held in MSS, it ‘may well suffice that the victim is humiliated in his own eyes, even if not in the eyes of others’: MSS v Belgium and Greece App no 30696/09 (Grand Chamber, 21 January 2011) para 220. 140 ‘Report of the Special Rapporteur on the Question of Torture’ (n 15) para 24. 141 Maslova and Nalbandov v Russia App no 839/02 (24 January 2008); see also Aydin (n 66) para 86. Threats of violence can constitute torture; see Selmouni v France App no 25803/94 (28 July 1999) para 101. Torture covers both physical pain and mental suffering; see Gäfgen (n 93) para 108. 142 Jalloh v Germany (n 55) para 67. 143 Vladimir Romanov v Russia App no 41461/02 (24 July 2008) paras 67–70. 144 Cestaro (n 67) paras 182 and 189. See also Dedovski and Others v Russia App no 7178/03 (15 May 2008) paras 82–3. 139

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Bouyid thought that being slapped whilst in custody was well-deserved, their treatment would still be degrading. That is why the ECtHR has held that although treatment can be degrading when it humiliates, humiliation per se is not a necessary condition of degrading treatment.138 Nor is it necessary to be humiliated in the eyes of others.139 A homophobic crowd might not think that it is humiliating for LGBTIQþ people to be publicly abused while police are standing by—as happened in Identoba. But, insofar as the police inaction expresses the unequal moral worth of the LGBTIQþ people in question, their inaction is degrading. By way of contrast with the prevailing quantitative interpretations of article 3, so far we have argued that the ECtHR uses the word ‘degrading’ as an important evaluative term. This section sketched answers to two key components of the complex interpretive judgments that are necessary to flesh out degrading treatment. First, we argued that an action is degrading if it expresses the unequal moral worth of the victim and if the person acting has power over the victim such that their actions can put the other down. It is for this reason that certain instances of direct discrimination amount to degrading treatment. Secondly, we argued that neither the intentions of the wrongdoer nor the subjective perception of the victim determines whether an act is degrading.

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145 ‘Forcible’ is used to mark cases where a person undergoing ‘conversion therapy’ is not free to leave or stop the ‘therapy’. ‘Forcible’ covers those who knew that they would not be able to leave it if they changed their mind, even if they consented to the ‘conversion therapy’. 146 Herczegfalvy v Austria App no 10533/83 (24 September 1992) para 82. 147 R (on the application of Wilkinson) v The Responsible Medical Officer Broadmoor Hospital [2001] EWCA Civ 1545, [2001] 1 WLR 419, paras 77–80 (Hale LJ). This applies to both capacitated and incapacitated patients. 148 ibid para 79; Herczegfalvy (n 145) para 82. There is a duty to give reasons whenever a patient should undergo medical treatment without their consent. See R (Wooder) v Feggetter [2002] EWCA Civ 554, [2002] 3 WLR 591; R (B) v SS (Responsible Medical Officer) [2006] EWCA Civ 28, [2006] 1 WLR 810, para 50. 149 Herczegfalvy (n 145) para 82. 150 Wilkinson (n 146) para 55. 151 ‘Report of the Special Rapporteur’ (n 10) para 23; see also Bartlett, Smith and King (n 8). 152 The compulsion of the medical treatment overshadows whether the patient had the capacity to consent to the treatment. See Wilkinson (n 146) para 79; R (B) v SS (Responsible Medical Officer) [2006] EWCA Civ 28, [2006] 1 WLR 810, para 50.

153 This does not include counselling which seeks to provide acceptance, support, facilitation and understanding of a person’s sexual and gender identity. See n 17 above.

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their intensity and gratuitousness, violent ‘physical’ forms of ‘conversion therapy’ amount to torture rather than degrading treatment. Forcible ‘conversion therapy’ is a second form that violates article 3.145 This conclusion flows from case law on forcible medical treatments. As the ECtHR held in Herczegfalvy, unless the forcible treatment inflicted upon a patient were a medical necessity, it amounts to degrading treatment.146 The UK Court of Appeal reiterated this principle in Wilkinson.147 More specifically, according to Herczegfalvy and Wilkinson, the forcible imposition of treatment on someone can be justified only when substantial benefits can arise from it.148 Such benefits must be evidenced by ‘established principles of medicine’,149 and would often require the cross-examination of medical practitioners.150 Arguably, ‘conversion therapy’ falls woefully short of this standard. There is evidence of its lasting harmful effects on the physical and mental health of LGBTIQþ people.151 No health benefits arise from ‘conversion therapy’, let alone the ‘substantial’ benefits that the law requires to justify its forcible imposition. Thus, its forcible imposition on children, adolescents or adults violates article 3.

This holds regardless of what form forcible ‘conversion therapy’ takes—eg a violent or a mild, non-physical form—and regardless of the age of its victims and their capacity to consent.152 That leaves us with mild, non-forcible forms of ‘conversion therapy’, such as non-physical, ‘talking’ sessions which pathologise certain sexualities or gender identities and attempt to eliminate them or repress their expression.153 If non-physical and non-forcible forms of ‘conversion therapy’ also amount to degrading treatment, then every form of ‘conversion therapy’—from its ultraviolent to its mildest ‘talking’ varieties, and in both forcible and non-forcible forms—would fall within the scope of the absolute prohibition of torture or CIDT in human rights law. As we saw, an act is degrading if it expresses the unequal moral worth of the other and if the wrongdoer has sufficient power over the victim. Certain cases of direct sexual orientation discrimination amount to degrading treatment for precisely those reasons. Arguably, all forms of ‘conversion therapy’—

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154 So, legal intervention against ‘conversion therapy’ is justified, at least in part, by appeal to the states of affairs it promotes. This (broadly) consequentialist view is different to rule utilitarianism because it is unconcerned with benefit maximisation. See TM Scanlon, ‘Rights, Goals and Fairness’ in TM Scanlon (ed), The Difficulty of Tolerance (CUP 2003) 33–9. 155 The prohibition of discrimination is partly a response to the subordinating meaning of ‘institutionalised humiliation’ conveyed by certain forms of disadvantageous treatment. See JM Balkin and RB Siegel, ‘The American Civil Rights Tradition: Anticlassification or Antisubordination?’ (2004) 58(9) U Miami L Rev 9. 156 Expressive harms can directly injure, and function differently from ideological or purely subjective injuries. ‘Expressive Harms and Standing’ (1999) 112 Harv L Rev 1313; RH Pildes and RG Niemi, ‘Expressive Harms, “Bizarre Districts”, and Voting Rights: Evaluating Election-District Appearances After Shaw v Reno’ (1993) 92 Mich L Rev 483. 157 Subordinated groups do not choose the social meanings imposed on them by society’s institutions, such as religious groups or medical experts.

L Melling, ‘Religious Refusals to Public Accommodations Laws: Four Reasons to Say No’ (2015) 38 Harvard Journal of Law and Gender 177; M Lim and L Melling, ‘Inconvenience or Indignity? Religious Exemptions to Public Accommodations Laws’ (2014) 22 J L & Pol’y 705.

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not just its ‘physical’ or forcible forms—fulfil those two conditions of degradation. Treating LGBTIQþ people as though they are of less value is an intrinsic feature of ‘conversion therapy’. Every form of the practice manifests contempt for LGBTIQþ identities; that contempt is then acted upon through a wilful refusal to respect the equal value of the well-being of LGBTIQþ people. This is a dignitarian harm that occurs regardless of whether the victims of ‘conversion therapy’ get injured by the practice. This is not to suggest that the deleterious consequences of ‘conversion therapy’ for the health and well-being of its victims do not matter. On the contrary, the reasons why ‘conversion therapy’ is degrading are at least partly determined by its predictable consequences for the interests of its victims.154 It is worth revisiting some of those predictable consequences, which were highlighted in the third section of this article, in order to flesh out why all forms of ‘conversion therapy’ amount, at a minimum, to degrading treatment. As we discussed earlier, ‘conversion therapy’ imposes a real risk of grave, lifelong harm for the physical and mental health of its victims.

Independent of any physical or psychological harm, however, ‘conversion therapy’ is also meaning-making for its victims and for LGBTIQþ people more broadly.155 The expressive harms caused by ‘conversion therapy’ arise from the fact that it contemptuously disregards the interests and welfare of LGBTIQþ people.156 Even when not stated explicitly, the degrading message of ‘conversion therapy’ is intelligible to the recipients because it reflects and repeats a widely understood message about sexuality norms, viz heterosexuality is ‘normal’ and desirable, whereas other gender identities or expressions of sexuality are not. This message is intelligible to its recipients because they are part of the same community of shared meanings as those who try to ‘convert’ them. That is why ‘conversion therapy’ is degrading even if that was not how it was meant by the ‘therapy’ provider or how it was conceived by the individual victims.157 In these ways, ‘conversion therapy’ is fundamentally incompatible with the sense of self-worth that we associate with human dignity. Self-worth requires that a person is secure in their identity as an individual, including as a member of those communities with which they identify. ‘Conversion therapy’

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5. Positive State Obligations So far, we have argued that all forms of ‘conversion therapy’ amount at a minimum to degrading treatment under the ECHR and UK human rights law. As such, all forms of ‘conversion therapy’ are absolutely prohibited and no consequentialist reasoning provided by the state or others can justify them. Where particular forms of ‘conversion therapy’ sit on the scale of article 3, ie whether particular ‘therapies’ constitute torture rather than degrading treatment, would

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eradicates this sense of self-worth. Its constitutive aim is to limit the options of LGBTIQþ persons in some of the most valuable and intimate spheres of life. The freedoms ‘conversion therapy’ brazenly denies would not be denied to a heterosexual person. Therefore, ‘conversion therapy’ treats LGBTIQþ people as if they are not of equal moral worth to others; and, more specifically, not of equal worth to heterosexual persons. So, ‘conversion therapy’ fulfils the first criterion of degrading treatment. Recall, though, that a degrading act also requires that its perpetrator has sufficient power or status over the recipient of the treatment. ‘Conversion therapy’ fulfils that condition too. A significant power imbalance is inherent in the practice. ‘Conversion therapy’ is typically offered by members of established social institutions, such as faith groups or medical experts, who hold greater power in relation to individual victims. Due to the significant disparity of status between pastors, doctors, therapists etc and individual victims, the disrespect expressed by ‘conversion therapy’ does not just insult its victims, it degrades them too. Therefore, all forms of ‘conversion therapy’ amount to degrading treatment because all combine basic disrespect for a protected group of people, ie LGBTIQþ persons, with a significant imbalance of power or status between the parties involved.

The expressive harms of ‘conversion therapy’ encapsulate some of the practice’s most profound yet predictable consequences for the interests of its victims. Nevertheless, it is worth clarifying that the message conveyed by ‘conversion therapy’ is not the source of why the practice is wrong. As we saw, ‘conversion therapy’ disrespects the claims to equal consideration made by the equal moral personhood of all people regardless of sexuality or gender identity. The importance of being treated as equals means that any act that spurns the normative authority of equal concern implies that some people are secondclass citizens. Put otherwise, ‘conversion therapy’ is degrading because it discounts the interests of LGBTIQþ people absent any good reason for doing so. Its degrading character results from the way it wrongs individuals—and a respect-based account offers a plausible explanation of that wrong.

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158 See eg N Mavronicola, Torture, Inhumanity and Degradation under Article 3 of the ECHR: Absolute Rights and Absolute Wrongs (Hart Publishing 2021) ch 3; M Nowak and E McArthur, ‘The Distinction Between Torture and Cruel, Inhuman or Degrading Treatment’ (2006) 16 Torture 147. 159 The Yogyakarta Principles Plus 10, Principle 10 E. Although the Yogyakarta Principles are not legally binding, they are highly influential as they remain the most comprehensive identification of state human rights obligations in relation to sexual orientation and gender identity. See M O’Flaherty and J Fisher, ‘Sexual Orientation, Gender Identity and International Human Rights Law: Contextualising the Yogyakarta Principles’ (2008) 8 HRLR 207, 237–47. 160 UN Committee Against Torture, ‘Concluding Observations on the Seventh Periodic Report of Ecuador’ (CAT/C/ECU/CO/7, 11 January 2017) para 49. 161 UN Committee Against Torture, ‘Concluding Observations on the Fifth Periodic Report of China’ (CAT/ C/CHN/CO/5, 3 February 2016) para 55. 162 ibid. 163 ibid para 56. 164 ibid. See also UN HRC (n 118) para 56. 165 Apart from ‘framework’ and operational positive duties, art 3 also gives rise to investigative duties. Those fall outside the scope of this article.

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depend on their deliberateness, the involvement of state agents, their specific purpose and the status of the victim in the context of the case.158 Even though our focus has been on the ECHR, the Yogyakarta Principles and the work of the UN CAT on ‘conversion therapy’ indicate that this article’s main arguments apply under international human rights law more broadly. It is worth briefly highlighting this point, although a fuller analysis cannot be pursued here. According to the Yogyakarta Principles, states are under an obligation to prohibit all forms of ‘conversion therapy’.159 This obligation flows from the absolute prohibition of torture or CIDT under international human rights law. The concluding observations of the UN CAT on two recent state periodic reports confirm this.

Commenting on the seventh periodic report of Ecuador, the CAT called on the state to close all private centres where such ‘therapies’ are practised and hold anyone involved to account.160 Similarly, in its concluding observations on the fifth periodic report of China, the CAT expressed concern about reports that private and state clinics offered ‘conversion therapy’, including ‘involuntary confinement in psychiatric facilities’.161 Although in 2014 a Beijing court ordered one such clinic to pay compensation to a victim, the CAT criticised China’s ‘failure to clarify whether such practices are prohibited by law, have been investigated and ended, and whether the victims have received redress’.162 The CAT stressed that China should ban ‘conversion therapies’, as well as all other ‘forced, involuntary or otherwise coercive or abusive treatments’ against LGBTIQþ people.163 This last point is crucial because it shows that the CAT attaches little significance to individual consent to such ‘therapies’: states are under a duty to outlaw all ‘abusive treatments’ targeting LGBTIQþ people rather than just forcible ‘conversion therapy’.164 Moving back to the ECHR, it is clear that public authorities must not engage in the provision of ‘conversion therapy’ because that would violate article 3. This is not the end of the matter though.

Article 3 generates a range of positive state duties, two of which are particularly important here.165 The first is the general, or framework, state duty to set up an effective system deterring

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166 - ord-evic v Croatia App no 41526/10 (24 July 2012) para 138; Beganovic v Croatia App no 46423/ See eg D 06 (25 June 2009) para 71; Nachova (n 100) para 96; A v United Kingdom (1998) 27 EHRR 611, para 22. 167  Secic v Croatia App no 40116/02 (31 May 2007) para 53; Moldovan and Others v Romania App nos 41138/98 and 64320/01 (12 July 2005) para 98; MC v Bulgaria App no 39272/98 (4 December 2003) para 151. See also Gezer v Secretary of State for the Home Department [2004] EWCA Civ 1730, [2005] HRLR 7. See also, mutatis mutandis, Commissioner of Police of the Metropolis v DSD [2018] UKSC 11, [2019] AC 196, para 88 (Lord Neuberger). 168 Osman v United Kingdom App no 23452/94 (Grand Chamber, 28 October 1998) para 116. On the appli- ord-evic (n 165). See also Z and Others v United Kingdom cation of the Osman test in the context of art 3, see D App no 29392/95 (Grand Chamber, 10 May 2001) para 255. The UK courts apply the Osman test in cases involving complaints under art 3. See DSD (n 166) paras 92–8 (Lord Neuberger); R (Munjaz) v Ashworth Hospital Authority [2005] UKHL 58, [2006] 2 AC 148, paras 78–80. 169 Dord-evic (n 165) para 139. 170 Mavronicola (n 58) 732–5. 171 Osman (n 167) para 116. 172 UN Committee on the Elimination of Discrimination Against Women, ‘VK v Bulgaria’ (Communication no 20/2008, 15 October 2008) para 9.8.

173 Volodina v Russia App no 41261/17 (9 July 2019) para 86. 174 ibid. 175 Separate opinion of Judge Pinto de Albuquerque in Volodina (n 172) para 12.

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and punishing acts of ill-treatment, backed up by enforcement mechanisms for the prevention, suppression and punishment of breaches.166 This framework duty extends to ill-treatment administered by private actors.167 The second is the more specific positive state duty to take operational measures when the authorities knew or ought to have known at the time of the existence of a real and immediate risk of ill-treatment against identified individuals from the acts of a third party.168 While the negative duty not to engage in torture or CIDT is absolute, the positive obligations arising from the prohibition are capable of modification on grounds of proportionality.

That is, they must be interpreted in ways that do not impose a disproportionate burden on the authorities,169 and there is also latitude as to how they can be fulfilled.170 One important point on the operational duties arising from article 3 is that, as the Committee on the Elimination of Discrimination against Women (CEDAW) has noted, the requirement for an immediate risk of ill-treatment, which can be traced back to Osman,171 is problematic in cases of genderbased violence or abuse.172 This is because that requirement prevents capturing cases where successive episodes of gender-based violence against specific individuals or groups do show that the risk of ill-treatment is real, but where the wrongdoer is not in the direct vicinity of the victim.

Drawing on CEDAW’s work, in Volodina, the ECtHR tacitly accepted that in cases of gender-based violence the standard against which operational state duties are assessed spans a wider window of time, starting from when the risk of illtreatment is real, albeit not imminent.173 For that reason, states must carefully consider the particular context of the case, including any past history of violence.174 As Judge Pinto de Albuquerque argued, that standard is satisfied if the authorities know or ought to know that a specific group of people is subject to repeated abuse.175 It is posited that for exactly those reasons, that amended standard of assessment of operational state duties under article 3 is

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176 This is congenial to the presumption set in Re E, namely that the authorities knew or ought to have known about the existence of a real risk of ill-treatment whenever a breach has occurred, and then recurred, over a period of time. See Re E v Chief Constable of the Royal Ulster Constabulary and another [2008] UKHL 66, [2009] 1 AC 536. 177 For a critical appraisal of this presumption, see L Lazarus, ‘Positive Obligations and Criminal Justice: Duties to Protect or Coerce’ in L Zadner and J Roberts (eds), Principles and Values in Criminal Law and Criminal Justice (OUP 2012) 135–57; F Tulkens, ‘The Paradoxical Relationship between Criminal Law and Human Rights’ (2011) 9 JICJ 577. 178 N Mavronicola, ‘Coercive Overreach, Dilution and Diversion: Potential Dangers of Aligning Human Rights Protection with Criminal Law (Enforcement)’ in Lavrysen and Mavronicola (n 81) 183–202. 179 MC v Bulgaria (n 166) para 166; X and Y v The Netherlands App no 8978/80 (26 March 1985). 180 M and C v Romania App no 29032/04 (27 September 2011). 181 Cestaro (n 67) para 225. 182 Myumyun v Bulgaria App no 67258/13 (3 November 2015) para 77. 183 Volodina (n 172) para 81. 184 L Lavrysen, ‘Positive Obligations and the Criminal Law: A Bird’s-Eye View on the Case Law of the European Court of Human Rights’ in Lavrysen and Mavronicola (n 81) 29–55, 43. 185 Myumyun (n 181) para 74. 186 Volodina (n 172) para 81.

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fully applicable to recurring violent or abusive practices based on sexual orientation or gender identity, such as ‘conversion therapy’.176 With this amendment to operational state duties in mind, let us return to the framework state duty under article 3. Recall that the framework duty refers to the primary state obligation to take legal measures designed to ensure that individuals are not subjected to proscribed ill-treatment—including illtreatment administered by private individuals. Let us focus on how this framework duty applies to ‘conversion therapy’. The framework duty under article 3 often translates to a state duty to mobilise the criminal law against proscribed forms of ill-treatment.

We must be careful here, though, because although criminal law is typically presumed to be an effective tool of deterrence and retribution,177 widening the web of criminalisation in the name of human rights protection carries significant risks.178 Criminalisation as part of the framework duty under article 3 has emerged in a wide range of cases, including rape,179 sexual abuse of minors,180 disproportionate police violence,181 ill-treatment in custody182 and domestic violence.183 The reasons behind the state duty to criminalise certain forms of ill-treatment are not always entirely clear.184 For instance, although the examples above involve physical abuse, the ECtHR has also justified the need for criminal law protection based on the argument that degrading treatment seriously affects human dignity and psychological wellbeing,185 regardless of whether injuries of a certain degree of severity have been inflicted.186 So, does the framework duty under article 3 require criminal law protection against ‘conversion therapy’? For the reasons discussed earlier, all forms of ‘conversion therapy’ attain the minimum level of severity to trigger the applicability of article 3 because all amount to a serious violation of human dignity: they directly discriminate against LGBTIQþ people by placing their physical and psychological health at real risk of grave harm; and they can arouse in

their victims feelings of fear, anguish and inferiority capable of debasing

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6. Conclusion This article has argued that ‘conversion therapy’ is wrong because it disrespects, in more ways than one, the equal moral value of LGBTIQþ persons. As a serious violation of human dignity, all forms of ‘conversion therapy’ fall qualitatively within the scope of the absolute prohibition of torture or CIDT under the ECHR and UK and international human rights law. More specifically, all forms of ‘conversion therapy’—physical and non-physical, forcible and non-forcible—amount at a minimum to degrading treatment. As a result, states are under a positive obligation to take effective measures to protect LGBTIQþ persons from the harms of ‘conversion therapy’. The first important step in that direction is introducing a ban on all forms of this practice. Let us conclude by adding four final points on the scope of a ban on ‘conversion therapy’. First, as evidence from the UK National LGBT survey, the UN and the WHO shows,192 ‘conversion therapy’ often takes place outside the public eye, sometimes in spaces provided by faith organisations. Therefore, the positive state obligation to provide effective protection from 187

That is enough for a treatment to qualify as ‘degrading’ under art 3 ECHR. See Identoba (n 90) para 65. See nn 183 and 184. Malta, for instance, has criminalised the provision of ‘conversion therapy’ (see n 2). 190 Mitkus v Latvia App no 7259/03 (2 October 2010) para 76. That might not be the case though for grossly negligent violations of art 3. See K Kamber, Prosecuting Human Rights Offences: Rethinking the Sword Function of Human Rights Law (Brill 2017) ch 1. 191 Specifically in the UK, the authorities cannot claim that they were unaware of the risks of ‘conversion therapy’. The 2018 National LGBT Survey showed that significant numbers of LGBTIQþ people have been offered ‘conversion therapy’ (see n 9 above) whereas in 2017 the NHS and leading medical professional bodies signed a Memorandum of Understanding on ending ‘conversion therapy’; see BACP and others (n 4) para 3. 192 See nn 1 and 9 above. 188 189

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them.187 On that account, applying Volodina and Myumyun by analogy,188 criminalising the provision of all forms of ‘conversion therapy’ can be justified under the framework duty of article 3.189 At the same time, what the framework duty under article 3 requires are legal provisions that are sufficiently tailored to the human rights offence concerned. So, other options of legal action, such as civil means of redress, are also available and in fact might be preferable for non-intentional forms of ‘conversion therapy’.190 At any rate, the precise mix of civil and criminal law protections that would be sufficient against ‘conversion therapy’ requires further discussion and a more detailed contextual assessment that cannot be pursued here. Even so, it is unlikely that the contracting states to the ECHR can fulfil their framework duty under article 3 without adopting specific provisions against ‘conversion therapy’ that define the scope of the practice and clarify which public authorities have a duty to act against ‘therapy’ providers. Such provisions must also set out remedies, support and reporting mechanisms for victims, and also the types of interim measures that could be taken in this context. The framework duty under article 3 requires this basic legal apparatus to be firmly in place.191

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As is the case, for instance, in Albania (n 3). See n 17 above. On the positive obligation under art 3 regarding children, see O’Keeffe v Ireland App no 35810/09 (Grand Chamber, 28 January 2014) paras 144–52. 196 See eg Code of Practice for Victims of Crime (Ministry of Justice 2015). 194 195

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‘conversion therapy’ cannot be fully discharged if the legal response to the practice is reduced to disciplinary measures against health professionals.193 Secondly, given that the state obligation to ban ‘conversion therapy’ stems from the absolute prohibition of torture or CIDT in human rights law, the ban must cover all potential providers, including religious counsellors, even when they offer ‘conversion therapy’ whilst not acting as psychologists. Thirdly, since both forcible and non-forcible forms of ‘conversion therapy’ amount, at a minimum, to degrading treatment, a ban has to cover both. However, therapeutic interventions that do not pathologise any sexualities or gender identities but aim to provide acceptance and support for a person’s exploration of their identity have to be exempted.194 Those interventions do not constitute ‘conversion therapy’. They are not based on the assumption that some sexualities or gender identities are inherently inferior to others, and do not aim to change or suppress them for that reason. Finally, this analysis does not suggest that a legal ban on ‘conversion therapy’ alone can eradicate this practice or provide sufficient protection for LGBTIQþ people.

Other steps that ought to be considered include specific protections for children and vulnerable adults, including provisions in relation to parents, legal guardians and the education context;195 support for survivors;196 public communications campaigns; and outreach programmes involving religious and community groups. Even though a ban on all forms of ‘conversion therapy’ needs to be accompanied by additional measures, the focus of this article was on the reasons why human rights law requires such a ban in the first place. Banning ‘conversion therapy’ is a vital step towards the eradication of a deeply inegalitarian practice. Its practical power is as important as its great expressive and dignitary power for the victims of ‘conversion therapy’, and for LGBTIQþ communities all over the world.