• The legislation, which is being proposed on the affirmation of sexual orientation, gender identity and gender expression, is apparently seeking to protect a category of people who may find it hard and painful to come to terms  with their condition as being different from that of their peers or the rest of the population. An analysis of the provisions of the Bill, however, shows that everyone in practice will be hindered from having free access to professional guidance, advice and any other therapeutic help that may be appropriate and needed  with respect to one’s sexual orientation, gender identity and gender expression.

    Provisions on Unlawful Actions or Practices

    Read superficially, the Bill gives the impression that the law will only intervene to protect the vulnerable and to ensure that no conversion therapy is offered and much less applied against one’s own free will. In fact, however, the proposed legislation will affect persons who are not vulnerable and who out of their own free will seek appropriate forms of therapy to change their own sexual orientation, gender identity and, or gender expression.

    Legal Aspects

    The Bill is inconsistent with the premises behind the Gender Identity, Gender Expression and Sex Characteristics Act, 2015, and with the decisions of the European Court of Human Rights. It also violates the Constitutional provisions on discrimination on the basis of sexual orientation.
    The 2015 Law allows any person, including minors, to change their gender identity. The Bill, however, purports to render illegal, the resort to treatment “that aims to change … a person’s sexual orientation, gender identity and, or gender expression.” The judgements of the European Court of Human Rights lay stress on the important role of counselling in gender identity matters, making it an integral and indispensable part of the process. Why is it imperative to have compulsory counselling about physical gender choices, but a criminal offence to have voluntary counselling about psychological gender choices? What so forcefully applies to the first, should, with equal force, apply to the second.
    The Bill could be interpreted as relying on the generally accepted, but narrower, meaning of ‘conversion therapy’, which is treatment directed at changing the sexual orientation of a person from homosexual to heterosexual. If this is the intended meaning of conversion therapy, then the Bill is suffering from a most basic and manifest ‘discrimination’ failure. Specifically seeking to change, repress or eliminate the orientation of a person from homosexual to heterosexual would be made a criminal offence by the Bill. But, it would be perfectly legitimate to assist a heterosexual to become homosexual. That homosexuals and heterosexuals are afforded the same legal standing and protection is perfectly legitimate. This Bill does not do that.

    Professional Autonomy

    The Bill fails to take into consideration complex realities encountered in clinical practice and overrides the professional ethics of psychologists, counsellors, etc. who regulate their conduct in the best interests of their clients. The Bill takes away the power from the client to set their goals with the therapist and criminalises any deviation from what it decrees. In so doing, the Bill restricts psychologists, counsellors etc. from the free exercise of their profession. 

    Conclusion

    The legislation being proposed on the affirmation of sexual orientation, gender identity and gender expression raises a number of serious ethical and legal issues. Rather than fostering a ‘culture of dignity’ in which every citizen, irrespective of sexual orientation or gender identity or expression, lives in an inclusive culture of recognition between human beings, the proposed Bill promotes discrimination, disrespect for personal autonomy and distrust in the accountability of professional bodies.
     
    Click here to download the Position Paper on the Bill on Conversion Therapy.