D1g. bijlage - Practices of so-called conversion therapy.pdf

Given the Independent Expert’s conclusions that practices of “conversion therapy” comprise treatment that is degrading, inhuman and cruel in its very essence and on the risks that it creates for the perpetration of torture, he considers that specific claims of perpetration of practices of “conversion therapy” should be promptly investigated and, if relevant, prosecuted and punished, under the parameters established under the international human rights obligations pertaining to the prohibition of torture and cruel, inhuman or degrading treatment or punishment. It follows that, under the conditions established therein, those cases may engage the international responsibility of the State. 4.

Right to freedom of conscience and religion and freedom of expression 66. The Independent Expert has received submissions from those that argue that practices of “conversion therapy” may be a tool for the furtherance of human rights of persons who experience same-sex desire but wish to pursue their life plan as heterosexuals or of persons experiencing an existential want to identify as a gender different than that assigned to them, but nonetheless wish to pursue their life under the gender assigned to them. 67. Such submissions often expound on a distinction between coercive and abusive practices and non-coercive and non-abusive practices and submit that prohibiting all practices of “conversion therapy” would contravene the right to self-determination or liberty, the right to freedom of opinion and expression and the right to freedom of belief and religion.124 68.

The Independent Expert notes that there is no direct correlation between religion and exclusion of sexual orientation and/or gender identity; throughout his work, he has been encouraged to see that some churches and religious communities adopt an inclusive interpretation of religion and embrace and value diversity and welcome lesbian, gay, bisexual, trans and gender-diverse people – as they are – within their community and that some of those have also condemned practices of “conversion therapy”.125 In a similar vein, the Special Rapporteur on freedom of religion or belief has rejected any claim that religious beliefs can be invoked to justify violence or discrimination against people on the basis of their sexual orientation and gender identity. The Special Rapporteur recommended that States combat all forms of violence and coercion perpetrated against lesbian, gay, bisexual and transgender persons justified with reference to religious practice or belief. 126 69. The Independent Expert is mindful and respectful of existential dilemmas expressed by individuals experiencing conflict between deeply felt emotion and desire and their personal convictions as to what is a desirable norm in relation to sexual orientation and gender identity, and that they may wish to align their behaviour and expression to the

124

See submissions by Family Watch International; the International Federation for Therapeutic and Counselling Choice (Science and Research Council) and Voice of the Voiceless. 125 See ilga.org/Conversion-therapy-global-research-ILGA-World. 126 See A/HRC/43/48.

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latter.127 Self-determination creates the space for individuals to decide on the manner in which they wish to identify; as the Independent Expert has constantly stated, the principles of freedom and autonomy directly contradict the idea that a person is born to play a certain role in society.128 70. In processes of self-determination and addressing the existential dilemmas that may be connected to those processes, individuals may choose to avail themselves of mechanisms of support and counselling, some of which may be based on psychological, medical or religious approaches related to the exploration, free development and/or affirmation of one’s identity. As established in the present report, however, based on the overwhelming evidence available, none of those approaches can claim “conversion” as an outcome, just as none can claim that diverse sexual orientation or gender identity is an illness or disorder requiring therapy. 5.

Rights of the child 71. Children and young people are particularly vulnerable to practices of “conversion therapy”, which are extremely harmful to their well-being and development, and the Committee on the Rights of the Child has urged States to eliminate such practices. 129 While the decision to subject children to those practices may be taken by some parents due to the belief that it serves the child’s best interests,130 research has shown that parents tend to be motivated by religious beliefs that consider sexual and gender diversity to be “immoral” and incompatible with their religious tenets, 131 but are ill-informed about the nature of sexual and gender diversity, the invalidity and ineffectiveness of those practices and the significant and possibly life-long injury that they will cause their children. In the light of those realities, subjecting children to practices of “conversion therapy” constitutes illtreatment and may constitute torture, as well as contravene domestic and international laws against child abuse and neglect. 72.

The Independent Expert recalls States’ obligations to protect children from violence, harmful practices and cruel, inhuman or degrading treatment and torture, to respect the right of the child to identity, physical and psychological integrity, health and freedom of expression and to uphold the core principle of the best interests of the child at all times. Moreover, the Committee on the Rights of the Child has clarified that the right of the child to identity, which includes sexual orientation and gender identity, must be respected and taken into consideration when assessing the child’s best interests. According to the Committee, assessment of the child’s best interests must also include consideration of the child’s safety, that is, the right to protection against all forms of physical or mental violence, injury or abuse. 132 73. The Independent Expert therefore concludes that the imposition of practices of “conversion therapy” on children runs counter to States’ obligation to protect them from violence, harmful practices and cruel, inhuman or degrading treatment, to respect the right of the child to identity, physical and psychological integrity, health and freedom of expression and to uphold the core principle of taking the best interests of the child as a primary consideration at all times.133 74.

The Independent Expert is therefore persuaded that it is contrary to international human rights law to subject children to practices of “conversion therapy”, such as those described above, and urges States to take urgent measures to ban them.

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Submission by Voice of the Voiceless. A/73/152, para. 21. 129 Committee on the Rights of the Child, general comment No. 20, para. 34. 130 See ilga.org/Conversion-therapy-global-research-ILGA-World. 131 Ibid. 132 Committee on the Rights of the Child, general comment general comment No. 13 (2011) on the right of the child to freedom from all forms of violence, para. 21; and general comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration, paras. 55 and 73. 133 Convention on the Rights of the Child, articles 3 (1), 8, 19, 24 and 37. 128

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VI. Effective State measures A.

Legislation 75. The Independent Expert has identified a recent trend towards banning practices of “conversion therapy” in certain parts of the world. In a few countries, such as Ecuador and Malta,134 it is considered a criminal practice. In several others, such as Canada, 135 Spain136 and the United States,137 bans have been introduced at local levels. 76.

Specific legislation follows different models:

(a) Wide-reaching bans. The most comprehensive approach is to prohibit all practices of “conversion therapy”, including faith-based organization-based counselling, by any person for any reason. Whereas there is no such nationwide law yet, there are a few examples at the state or local level. In 2019, Edmonton, Canada, approved a by-law that prohibited “any business” from offering or providing counselling or behaviour modification techniques, the administration or prescription of medication, or any other purported treatment, service or tactic used for the objective of changing a person’s sexual orientation, gender identity, gender expression or gender preference, or eliminating or reducing sexual attraction or sexual behaviour between persons of the same sex. 138 Similar examples can be found in autonomous regions in Spain.139 (b) Recipient-based restrictions. Some States prohibit practices of “conversion therapy” for any individuals, regardless of age, whereas others only prohibit them for children or individuals particularly susceptible to coercion or family pressure.140 Several bans in force in the United States protect children from practices performed by mental health professionals only, 141 whereas in bans in Europe, all providers are included. In the regions of Aragon and Valencia, Spain, practices cannot be validated upon consent.

142 Malta, however, excludes adults who freely consent from the ban, although the ban has a specific subsection under the definition of “vulnerable adult”, which opens the door for consent given by an adult to be invalidated on grounds that are broader than the usual coercion-based grounds required to annul consent.143 In several countries, the scope of bans has been extended over time. In Brazil, the first resolution restricting those practices, in 1999, referred only to “homosexuality”;144 gender identity and expression were added in 2018. 145 Ecuador and Malta, among others, also prohibit practices regarding gender identity, but the latter expressly excludes from the restriction: (a) any services related to the exploration, free development and/or affirmation of one’s identity with regard to one or more of the characteristics being affirmed by the act, through counselling, psychotherapeutic services and/or similar services; or (b) any health-care service related to the free development and/or affirmation of one’s gender identity and/or gender expression.146 134

Malta, Affirmation of Sexual Orientation, Gender Identity and Gender Expression Act , 2016; and Ecuador, Comprehensive Organic Penal Code, article 151 (3). For a critique on actual implementation, see Martina Guglielmone, “Fight against “reparative sexual therapy” in Ecuador”, Council on Hemispheric Affairs, 2017. 135 Ontario, Nova Scotia, Prince Edward Island, Vancouver and Edmonton. Submission by Egale Canada. 136 See ilga.org/Conversion-therapy-global-research-ILGA-World. 137 Twenty states, the District of Columbia and Puerto Rico. 138 Canada, City of Edmonton Bylaw 19061: Prohibited Businesses Bylaw (2019), Schedule A Prohibited Businesses. 139 Submission by G37 Despacho Internacional. 140 Submission by Human Rights Watch. 141 See ilga.org/Conversion-therapy-global-research-ILGA-World. 142 Submission by G37 Despacho Internacional. 143 Submission by Malta. 144 Submission by Brazil. 145 See ilga.org/Conversion-therapy-global-research-ILGA-World. 146 Submission by Malta.

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(c) Provider-based restrictions. In Madrid, “religious interventions” are explicitly included in the definition of “conversion therapies”.147 In contrast, the regulation in Brazil only applies to licensed psychologists.148 Some jurisdictions regulate nonprofessionals when they are in a position of trust or authority towards a young person (Nova Scotia, Canada)149 or perform practices commercially (Connecticut and Illinois, United States).150 (d) Practice-based restrictions. In Malta and Madrid, the law prohibits professionals not only from offering and performing, but also from making a referral to any other person to perform, practices of “conversion” on any person.151 In Brazil, psychologists are also required to refrain from participating in pronouncements that legitimize or reinforce prejudice towards transgender and travesti people.152 In Illinois, advertisement is regulated, with the prohibition of any deception of material fact in advertising “conversion” services, such representing homosexuality as a mental disease.153 Some jurisdictions in the Latin America and the Pacific region do not directly regulate practices of “conversion therapy” but prohibit any diagnosis on the base of sexual orientation and gender identity, as is the case in Argentina154 and Uruguay, or sexual orientation, as is the case in Fiji, Nauru and Samoa.155 The provisions do not apply to providers

working outside the mental health field, including faith-based organization-based counsellors.156 77. Some jurisdictions do not have specific legislation targeting practices of “conversion therapy” and rely on other existing criminal provisions, such as if violence or threat of violence is carried out as a part of the practices,157 or civil liabilities, such as if the practice infringes the patients’ will.158 In other countries, anti-discrimination law can be utilized. In Chile, persons claiming discrimination connected to those practices may file complaints with the health information and complaints offices and the Superintendence of Health.159

B.

Judiciary 78. In some cases, the courts create accountability for practices of “conversion therapy”. In New Jersey in 2015, a jury unanimously found that a defendant fraudulently claimed to provide “services that could significantly reduce or eliminate same-sex attraction”. 160 In California in 2012, the relationship between free speech and parental rights was considered when two groups of plaintiffs challenged the first law in the United States prohibiting statelicensed health providers from engaging in such practices with patients under 18 years of age.161 The plaintiffs’ arguments were ultimately dismissed, and the law went into effect in June 2014. 79. In China, there are at least two cases where courts supported victims who underwent aversive treatment using electric shock and medical injections. The court ordered the

147

Law 3/2016 of 22 July on comprehensive protection against LGTBI-phobia and discrimination on grounds of sexual orientation and identity in the Community of Madrid, article 3 (o). 148 Submission by Brazil. 149 Sexual Orientation and Gender Identity Protection Act (2018), sections 6–7. 150 See ilga.org/Conversion-therapy-global-research-ILGA-World. 151 Malta, Affirmation of Sexual Orientation, Gender Identity and Gender Expression Act, article 3 (b). Submission by G37 Despacho Internacional. 152 See ilga.org/Conversion-therapy-global-research-ILGA-World. 153 Ibid. 154 Submission by INDH Argentina. 155 See ilga.org/Conversion-therapy-global-research-ILGA-World. 156 Ibid. 157 Submission by Denmark. 158 Submission by Lithuania, New Zealand, Sweden, SungWon Yoon-Lee and others. 159 Submission by Chile. 160 Ferguson et al v. JONAH et al. 161 United States District Court for the Eastern District of California, Pickup et al. v. Brown et al and Welch et al. v. Brown et al.

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defendants to pay compensation and issue an apology.162 However, because the courts did not rule on the general legality of those practices, medical facilities, including one of the defendants, reportedly still promote them. 163

C.

Public policy 80.

Examples of policies being adopted are the following:

(a) Enforcement agencies. The Inter-American Commission on Human Rights recommended that OAS member States adequately monitor the activity of professionals who offer practices of “conversion therapy”.164 In Hawaii, United States, a sexual orientation counselling task force was established to address the concerns of minors seeking counselling on sexual orientation, gender identity, gender expression and related behaviours;165 (b) Complaint system. In Victoria, Australia, the Government established a Health Complaints Commissioner with a mandate in respect of “health services”, broadly defined to allow a complaint to be made in relation to practices of “conversion”;166 (c) Health insurance coverage. In the Netherlands, since 2012, costs connected to practices of “conversion” are not reimbursed by the national health insurance; 167 (d) Public funding.

In certain states in Maryland, New York and North Carolina, United States, state funds cannot be used to conduct practices of “conversion”.168 In Puerto Rico, the offer, either direct or indirect, of “conversion therapy” practices prevents the granting of economic incentives for activities, services and investments in the scientific, hospital or medical field;169 in the Netherlands, financial support to an organization involved in subjecting lesbian, gay, bisexual, trans or gender-diverse persons to those practices was ended;170 (e) Public facilities bans. In New York, local laws regulating mental health services were amended in 2016 to prohibit such practices in public facilities;171 (f) Gathering data. In 2017, the United Kingdom Government Equalities Office conducted a national survey on the basis of which the Government established the national action plan on lesbian, gay, bisexual, trans and gender-diverse persons, in which it sets out the intention to fully consider all legislative and non-legislative options to prohibit promoting, offering or conducting such practices;172 (g) Education. New Zealand has expressed the view that creating awareness on the ineffectiveness of the practice and where victims can seek help if harm has been caused would be more beneficial than a legislative ban. 173 81.

Although no regulations are in place yet, official messages condemning practices of “conversion therapy” can set the tone that states will not tolerate those practices. At the regional level, the European Parliament welcomed initiatives prohibiting them, 174 the Prime Minister of Luxembourg publicly denounced them 175 and, in 2018, Ireland included a 162

Submission by Darius Longarino. Submission by Berfu Yalcin. 164 Inter-American Commission on Human Rights, “Advances and challenges towards the recognition of the rights of LGBTI persons in the Americas”, 2018, recommendation (8) (a). 165 Senate Bill 270, A bill for an act relating to minors (2018), section 2. 166 Submission by Equality Australia. 167 Submission by Choice for Youth and Sexuality. 168 Submission by the Trevor Project. 169 See ilga.org/Conversion-therapy-global-research-ILGA-World. 170 Submission by the Netherlands. 171 New York Compiled Codes Rules and Regulations, Title 14, Chapter XIII, Section 527.8. 172 Submission by the Equality and Human Rights Commission. 173 Submission by New Zealand. 174 See www.europarl.europa.eu/doceo/document/TA-8-2018-0056_EN.html. 175 Submission by Commission consultative des droits de l’homme. 163

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commitment to prohibit their promotion or practice by health professionals in its national strategy on lesbian, gay, bisexual, trans and intersex young people.176

D.

National human rights institutions and equality bodies 82. National human rights institutions can contribute to preventing violence and discrimination based on sexual orientation and gender identity. The Ombudsperson of Peru stated that practices of “conversion therapy” constituted an unjustified and unethical practice and must be denounced and sanctioned 177 and, in Ecuador, the Office of the Ombudsman has developed a framework providing lines of action and coordination in case of alleged human rights violations related to those practices, including complaints, comprehensive protection and social care, investigation and sanctions and reparations.178

VII. Conclusions and recommendations 83. Practices of “conversion therapy”, based on the incorrect and harmful notion that sexual and gender diversity are disorders to be corrected, are discriminatory in nature. Furthermore, actions to subject lesbian, gay, bisexual, trans or gender-diverse persons to practices of “conversion therapy” are by their very nature degrading, inhuman and cruel and create a significant risk of torture. States must examine specific cases in the light of the international, regional and local framework on torture and cruel, inhuman or degrading treatment and/or punishment. 84. Perpetrators of abuse through practices of “conversion therapy” include private and public mental health-care providers, faith-based organizations, traditional healers and State agents; promoters additionally include family and community members, political authorities and other agents. 85. Under the conditions established by international human rights law and the international framework on torture and cruel, inhuman and degrading treatment or punishment, practices of “conversion therapy” may engage the international responsibility of the State. 86. Practices of “conversion therapy” provoke profound psychological and physical damage in lesbian, gay, bisexual, trans or gender-diverse persons of all ages, in all regions of the world. 87.

In view of the foregoing, the Independent Expert recommends that States:

(a) Ban the practices of “conversion therapy” as described in the present report, including by: (i) Clearly establishing, through appropriate legal or administrative means, a definition of prohibited practices of “conversion therapy”, and ensuring that public funds are not used, directly or indirectly, to support them; (ii) Banning practices of “conversion therapy” from being advertised and carried out in health-care, religious, education, community, commercial or any other settings, public or private; (iii) Establishing a system of sanctions for non-compliance with the ban on practices of “conversion therapy”, commensurate with their gravity, including in particular, that claims should be promptly investigated and, if relevant, prosecuted and punished, under the parameters established under the international human rights obligations pertaining to the prohibition of torture and cruel, inhuman or degrading treatment or punishment;

176

Submission by Ireland. Submission by PROMSEX. 178 Submission by Ecuador. 177

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(iv) Creating monitoring, support and complaint mechanisms so that victims of practices of “conversion therapy” have access to all forms of reparations, including the right to rehabilitation, as well as legal assistance; (b) Take urgent measures to protect children and young people from practices of “conversion therapy”, including by giving priority to the design and implementation of monitoring programmes for health-care, religious, education, community, commercial and any other settings, public or private, where children and young people are deprived of liberty by organs such as national human rights institutions or, if applicable, national preventive mechanisms; (c) Carry out campaigns to raise awareness among parents, families and communities about the invalidity and ineffectiveness of and the damage caused by practices of “conversion therapy”; (d) Adopt and facilitate health-care and other services related to the exploration, free development and/or affirmation of sexual orientation and/or gender identity, with a focus on addressing the conflicts that may arise between a patient’s orientation, identity and religious, social, or internalized norms and prejudices, with a focus on identity exploration and development, reducing distress and the need to address “minority stress”, as well as focusing on active coping and social support and the concept of affirmation; (e) Foster

dialogue with key stakeholders, including medical and health professional organizations, faith-based organizations, educational institutions and community-based organizations, to raise awareness about the human rights violations connected to practices of “conversion therapy”. 88. Furthermore, the Independent Expert reiterates his recommendations that States: (a) Repeal laws and regulations that enable, promote or fuel practices of “conversion therapy, key among them being laws criminalizing diversity in sexual orientations or gender identities; (b) Adopt appropriate anti-discrimination measures of a legislative, administrative or judiciary nature to ensure protection from violence and discrimination based on sexual orientation and gender identity; (c) Ensure the de-pathologization of diversity in sexual orientation and gender identity in State and non-State medical classifications that have an impact on public health policies and diagnostics in all health-care settings, including in medical curricula, accreditation procedures and continuing education; (d) Adopt all measures necessary to eliminate the social stigma associated with gender diversity, including the development, implementation and evaluation of an education and sensitization campaign, and in particular, all measures necessary to protect trans and gender-diverse children from all forms of discrimination and

violence; (e) Support the development of research and data collection, disaggregated by all relevant dimensions, on the specific issue of practices of “conversion therapy” and pursuant to the principles and safeguards identified by the Independent Expert, key among them being the participation of affected communities, populations and peoples; (f) Design, implement and constantly evaluate education, training and public information campaigns to tackle stigma and prejudice against lesbian, gay, bisexual, trans or gender-diverse people and promote their social inclusion.

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