The Scottish government's proposed ban on so-called conversion therapy threatens to criminalise mainstream pastoral care for people with unwanted same-sex attraction or gender dysphoria, a leading human rights lawyer has warned.
Recommendations from an 'Expert Advisory Group' that have been backed by the Scottish government include the creation of a new criminal offence to end conversion practices.
The group said in a report published in October that the ban "must be wide enough to encompass any treatment, practice or effort that aims to change, suppress, and/or eliminate a person's sexual orientation, expression of sexual orientation, gender identity, and/or gender expression".
The report claims that ending conversion practices "will not lead to the unlawful restriction of existing freedoms – including freedoms of speech, religion, and belief".
"The Group's position is that where expression creates the potential of significant harm to others, a prohibition of a practice is justified and necessary as a proportionate way of protecting the interests of the victims, and does not unlawfully interfere with the human rights of the providers of conversion practices," it said.
The recommendations make an exception for "affirmative" practices because these "are not to be considered conversion practices as they do not seek to change, suppress or inhibit that person's sexual orientation, gender identity, and/or gender expression".
In a written legal opinion for The Christian Institute, Aidan O'Neill KC disagreed with the findings and said that the current proposals are "fundamentally illiberal" and "beyond the powers of the Scottish Parliament to legislate".
He warned that the recommendations, if adopted, will have "the undoubted effect of criminalising much mainstream pastoral work of churches".
"The aim of the Expert Group's proposals is to outlaw all and any religious pastoral care, or parental guidance, or advice or medical or other professional intervention relating to sexual orientation, expression of sexual orientation, gender identity and/or gender expression except that which is deemed by the State to constitute 'affirmative care'," he said.
The KC warned that prayers, sermons, and parents are all at risk of being criminalised by the proposals.
"Prayers and sermons would be criminalised if their content did not conform to the new State requirements only to affirm, validate and support the identity and lived experience expressed and stated by an individual," he said.
He added: "Indeed these proposals would also criminalise parents who lovingly and in good faith and in accordance with their own best judgement and conscience seek to caution their children in relation to any stated intention to embark on 'gender affirmatory'/'gender transition' treatment".
The Christian Institute is preparing to take legal action to stop innocent parents and preachers from being criminalised.
Simon Calvert, The Christian Institute's Deputy Director for Public Affairs, warned that the Scottish government was proposing "the most totalitarian conversion therapy ban in the world".
"Church workers, feminist activists, mums and dads – all sorts of innocent people could find themselves on the wrong end of a prosecution if this becomes law," he said.
"LGBT people are rightly protected from physical and verbal abuse by existing law just like anyone else. But these proposals go much, much further."
He concluded: "The Scottish Government and the Scottish Parliament must take Aidan O'Neill's advice seriously. They may not like what Christians have to say about sexuality, or what feminists have to say about gender identity, but they can't just criminalise opinions they don't like."
