The falling dominoes: why changing the criminal code may have unintended effects
On March 9, 2020, the federal government tabled Bill C-8 in Parliament, to criminalize “conversion therapy.” Rather than focusing on discredited and coercive practices, the current legislation expands the concept of conversion therapy to include any “practice, treatment or service designed to change a person’s sexual orientation to heterosexual or gender identity to cisgender, or to repress or reduce non-heterosexual attraction or sexual behaviour.” The definition excludes “a practice, treatment or service that relates (a) to a person’s gender transition; or (b) to a person’s exploration of their identity or to its development.”
The Bill creates five offences:
- causing a minor to undergo conversion therapy
- removing a minor from Canada to undergo conversion therapy abroad
- causing a person to undergo conversion therapy against their will
- profiting from providing conversion therapy
- advertising an offer to provide conversion therapy
It also allows wiretapping and the seizure of written and other materials advertising conversion therapy.
Given the lack of exemptions or clarification in the bill, it would seem that the proposed legislation has troubling implications for religious communities, families, or individuals who affirm traditional sexual ethics. As Minister Lametti stated, “Conversion therapy is premised on a lie. That being homosexual, lesbian, bisexual or trans is wrong and in need of fixing. Not only is that false, it sends a demeaning and a degrading message that undermines the dignity of individuals and the LGBTQ community as a whole. Contrary to what some might say there is no right or wrong when it comes to who you are or who you love.”
At very least, this position has the potential to impose a “chilling effect” as religious adherents may fear reprisal for expressing their faith, even within a family or church setting. Minister Lametti’s verbal assurance that Bill C-8 is not meant to penalize private, “open-ended and exploratory” conversations offers little comfort. What exactly are private, open-ended conversations? If there is to be any protection for parents, teachers, or religious leaders, it must be clearly outlined in the bill. After all, the courts pay attention to the specific language of the legislation, not the words of the justice minister. Minister Lametti also noted that “[w]hat is covered by this legislation are practices that attempt to change one’s orientation towards a predefined goal.” The reality is that most religious communities do have a “predefined goal” for living based on their scriptures.
Lametti’s statement that conversion therapy (as broadly defined) “sends a demeaning and a degrading message” is reminiscent of the Supreme Court of Canada’s (SCC) criticism of Trinity Western University (TWU) when it said that being “required by someone else’s religious beliefs to behave contrary to one’s sexual identity is degrading and disrespectful” (at para 101). The SCC conveniently failed to acknowledge that TWU is a voluntary institution – no one is “required” to attend. Similarly, Bill C-8 fails to respect the autonomy of individuals – particularly mature minors or parents – who voluntarily wish to order their sexual lives and expression in accordance with their faith.
Both Lametti and the SCC seem to agree that religious communities should no longer be permitted to practice their religion if or when it conflicts with current sexual norms. Many applaud this development in the law. But are we sure we fully understand what all of this means?
We can only grieve in sympathy with the individuals who gave their personal testimonies at the government news conference in support of Bill C-8. Similarly moving are the op-eds and memoirs published by individuals who describe the pain they suffered at the hands of religious communities that tried to “fix” their orientation or gender identity. Those harms are real and should be acknowledged as such.
Yet, conspicuously missing from the recent news conference and the proposed legislation is any balancing of the rights of others who are also involved and affected by this discussion.
First, what measures should or will be taken to safeguard the rights of minors who may not be equipped to make permanent, life-altering decisions? While some youth may, indeed, find fulfillment in transitioning with the help of hormonal treatments and surgery, there are numerous reports of individuals who underwent gender transition as a minor but later regretted their decision; as adults, they question why their parents, physicians, and therapists did not push back against what they now call their teenage “fantasy.” See, for example, the story of Keira Bell, from the UK, who is suing the clinic that performed her gender reassignment surgery when she was a minor. As currently drafted in Bill C-8, any alternatives to transitioning would be deemed criminal, thereby infringing on the rights of individuals to receive the treatment they desire or need, as well as unduly limiting the discretion of medical practitioners to provide the appropriate emotional, mental, or physical care.
Second, what of the rights of parents to raise their children in accordance with their religion? Must parents only have “open-ended” discussions about sex, sexual orientation, and gender identity? This seems to be a serious intrusion into the relationship between parent and child. As Justice Peter Lauwers observed in the recent E.T. v. Hamilton-Wentworth case of the Ontario Court of Appeal, “the right of parents to care for their children and make decisions for their well-being, including decisions about education, is primary, and the state’s authority is secondary to that parental right” (at para 65).
Third, what of the rights of others, such as spiritual leaders? This new legislation allows for the government to obtain warrants to seize digital communication between parents, pastors and others to ensure that no form of “conversion” therapy is being advertised or implemented. The Charter concerns around that issue alone should keep many lawyers and courts occupied for many years to come.
Fourth, what about physicians (particularly psychiatrists) and psychologists who will be restricted in their ability to treat a patient in the patient’s best interests? For instance, coexisting medical or mental health conditions could remain unaddressed once a patient articulates gender dysphoria, because the professional is constrained to respond in only one manner. Further, the Bill raises concerns for medical practitioners who may feel tension reconciling the legislation with their conscientious beliefs.
Fifth, what about religious communities that hold Biblical beliefs on sexual orientation and gender identity? Will they suffer criminal prosecution because they teach these topics in youth group or Sabbath School? Will there be wiretaps on church leaders to ensure that they are not engaged in criminal activity when they preach on passages of the Bible that feature “heteronormative pressures” like the wedding where Christ turned water into wine? If this seems farfetched, then the government would do well to provide clarification to ensure that no such confusion or uncertainty exists.
Sadly, it is becoming evident that the criminalization proposed by Bill C-8 is not the end goal pursued by activists. A recent op-ed by a self-described “survivor” of conversion therapy argues not only for changing the criminal code, but for “education efforts to change the structures and social attitudes” that, in his view, contribute to the practice (emphasis added).
In other words, the goal appears to be to force religious groups to convert to the dominant ethos when it comes to sexual ethics. If they do not conform, they will face the possibility of increasingly severe repercussions, from jail time as per this Bill to a loss of charitable status as per legal advocates in the TWU case. Once this logic is applied to groups, the SCC warned in 2001, it can all too easily be extended to individuals, who may likewise be denied licensing or employment simply because they hold traditional, religious views. The result would be to impoverish and undermine the true diversity of our society.
In light of these developments, how should we respond? In a previous blog post, I made some practical recommendations for churches and charities. As the situation continues to unfold, it’s also worth recognizing that many of the individuals who have campaigned against conversion therapy are motivated by a tragic history of pain and despair. Only the Lord can bring healing out of such sorrow (1 Corinthians 7:10). Those of us in Christian ministries should, as always, ensure that our actions and attitudes on this topic are characterized by grace, sensitivity and love. We must remain faithful in teaching and obeying God’s Word, while living in such a way that we “make the teaching about God our Saviour attractive” (Titus 2:10). Finally, we can be secure knowing that our unchanging, eternal God remains sovereign no matter what the future holds!