Canada’s lesbian, gay, bisexual, trans, queer, two-spirit, intersex, and other sexual minority (LGBTQ2SI+) community has progressed recently in their march toward substantive equality. However, opposing forces continue to subvert LGBTQ2SI+ progress, with practices like conversion therapy.
A recent United Nations Independent Expert report (bit.ly/bt1020-dk1) defines conversion therapy as “an umbrella term to describe interventions of a wide-ranging nature, all of which are premised on the belief that a person’s sexual orientation and gender identity, including gender expression, can and should be changed or suppressed when they do not fall under what other actors in a given setting and time perceive as the desirable norm.” Examples include individual talk, behavioural, aversion, or group therapies, spiritual prayer, exorcism, and/or medical or drug-induced treatments.
There is no credible research that conversion therapy works. However, there is ample research (bit.ly/bt1020-dk2) of its harmful impacts, including increased anxiety, depression, suicide or suicidal ideation, self-harm, problematic substance use, poor self-esteem, self-hatred, compromised mental health, post-traumatic stress disorder, social isolation and loneliness.
A 2019 report (bit.ly/bt1020-dk3) by Dr. Travis Salway estimates that as many as 20,000 sexual minority Canadian men (approximately 4%) were exposed to conversion therapy. Of these men, 30% had attempted suicide. A further US study reported that 50% of conversion therapy survivors were exposed during adolescence.
The recent federal Bill C-8 (bit.ly/bt1020-dk4), seeks to protect against harmful conversion therapy using criminal law. New Criminal Code prohibitions would target: i) causing a person to undergo conversion therapy against their will (regardless of the victim’s age); ii) causing a minor under 18 to undergo conversion therapy; iii) advertising an offer to provide conversion therapy; and iv) receipt of financial or material benefit from the provision of conversion therapy.
If passed, Canada would join Malta and Germany in criminalizing conversion therapy. CBA’s Sexual Orientation and Gender Identity Community (“SOGIC”) and Health Law Sections (amongst many others– a 2018 petition (bit.ly/bt1020-dk5) to criminalize conversion therapy received 18,000+ signatures) previously submitted (bit.ly/bt1020-dk6) that the federal government should “determine whether [criminal sanctions] could be used to ban conversion therapy comprehensively and ban the removal of vulnerable individuals from Canada for the purpose of undergoing conversion therapy.”
The bill responds to a growing Canadian campaign (bit.ly/bt1020-dk7) to ban conversion therapy, that has won several recent successes at the provincial and municipal levels. Several provincial governments (Manitoba, Nova Scotia, Ontario, and Prince Edward Island) have legislated bans or restrictions on provincial health care systems conducting or funding conversion therapy. Several municipalities (including Vancouver in 2018) have also banned the business practice of conversion therapy. A BC private member’s bill, Bill M218 (bit.ly/bt1020-dk8), also sought to ban public financing of conversion therapy and the service provision and consent to provide such therapy to minors, but, did not proceed past first reading.
The proposed federal bill is likely to be hotly debated when Parliament resumes following prorogation into fall. If passed into law, the LGBTQ2SI+ community will gain important protections nationally, however, criminal prohibitions alone are unlikely to comprehensively address the harms of conversion therapy.
Only minors benefit from a comprehensive criminal ban on conversion therapy. Adults are only protected by a prohibition on coercive efforts, that may prove difficult to define and enforce.
Further, there are several potential constitutional challenges to the prohibitions, based on Charter liberty and religious freedom arguments (bit.ly/bt1020-dk9), likely to be litigated in the future.
Finally, a comprehensive solution to conversion therapy likely requires complementary federal and provincial legislation mandating tax, professional discipline, family law, or even civil liability consequences, that are tied to acts of conversion therapy and exercisable independently.
The debate over Bill C-8 likely won’t be the last of this legal and policy context, and though the criminal prohibitions are a welcome starting point, both the federal and provincial governments will likely need to take further innovative measures to eradicate the harms of conversion therapy.