Homophobic extremists vs enemies of free speech? Conversion practices debate must be better – James Bundy
MSPs should resist the temptation to conduct their discussions about a proposed ban on conversion practices through headlines, hashtags and accusations
In the coming years, the Scottish Parliament is likely to consider legislation to prohibit conversion practices. It promises to be one of the most sensitive and emotionally charged debates of this parliamentary session.
That is understandable. The subject touches deeply held beliefs about identity, dignity, religion, family life and individual liberty. It concerns people who have experienced genuine harm, as well as people who fear losing long-established freedoms. Precisely because the stakes are so high, Scotland needs a better conversation than the one sparked by Westminster's draft Conversion Practices Bill.
Too much of the debate has become defined by caricature. Those supporting legislation are portrayed as ideological extremists’ intent on criminalising ordinary conversations. Those raising concerns are dismissed as religious extremists, homophobic, transphobic or acting in bad faith. Neither characterisation is fair, and neither helps parliament produce good law.
READ MORE: LGBT charities tell SNP ministers to introduce conversion therapy ban 'as matter of urgency'
A mature democracy
Most people occupy a more thoughtful position. They agree that nobody should be subjected to abuse, coercion or degrading treatment because of their sexual orientation or gender identity.
They also recognise the importance of protecting freedom of speech, freedom of religion, and the right of families to discuss difficult and deeply personal issues without fear that ordinary conversations could become criminal matters. These are not mutually exclusive values. A mature democracy should be capable of protecting both.
The first question parliament should ask is not whether conversion practices sound objectionable. Almost everyone would agree that coercive attempts to force someone to change who they are are wrong. The more difficult question is whether Scots law already addresses those harms, or whether there remains a genuine legal gap requiring new criminal legislation.
Existing law already prohibits a wide range of abusive conduct, including assault, threatening behaviour, coercive control, harassment, stalking and child cruelty. Supporters of new legislation argue that some ‘non-physical’ conversion practices remain beyond the reach of current law. If so, they should explain precisely what those practices are, how widespread they are in Scotland, why existing offences are insufficient, and what evidence demonstrates the need for a new criminal offence.
These are not technicalities designed to frustrate reform. They are the essential questions parliament must answer before creating new criminal offences. Criminal law demands clarity. Citizens should be able to understand in advance what conduct is lawful and what is not.
If there is a genuine gap, the next challenge is even harder: can it be closed without creating uncertainty around fundamental rights?
Balance competing rights
The European Convention on Human Rights protects people from degrading treatment. It also protects private and family life, freedom of thought, conscience and religion, and freedom of expression. These rights do not exist in isolation. They often overlap and sometimes come into tension.
The task of parliament is not to elevate one right above all others but to balance competing rights in a way that is lawful, proportionate and workable. That requires difficult questions to be answered.
How should the law distinguish coercion from persuasion? Where is the boundary between criminal conduct and pastoral care? How should conversations between parents and children be treated? What about therapists supporting adults who voluntarily seek help to live consistently with their own beliefs?
These are not hypothetical concerns. They determine whether legislation can operate fairly and predictably in practice. If parliament cannot answer them during the legislative process, they will be left for the courts to resolve. That is not how good legislation should be made.
MSPs are elected to scrutinise, debate and define the law. Police officers need clear offences to enforce. Prosecutors need clear legal tests to apply. Families, teachers, therapists, counsellors and religious leaders should not have to rely on future court judgments to discover whether ordinary conversations have crossed an uncertain legal threshold.
Laws should be clear, coherent and workable
If MSPs believe a new criminal offence is necessary, they must also be prepared to define it. The difficult work of balancing competing rights and drawing clear legal boundaries belongs in Holyrood, not in the courtroom.
One can support protecting people from abusive practices while still asking whether the proposed legal mechanism is sufficiently precise. Equally, one can believe fundamental freedoms require robust protection without dismissing the experiences of those who believe existing law has failed them.
Holyrood has seen before what happens when legislation is driven by principle while insufficient attention is paid to whether it is clear, coherent and workable. Parliament should learn from those experiences. Good legislation is rarely the product of slogans or moral certainty. It comes through detailed scrutiny, careful drafting and a willingness to ask difficult questions before, not after, a Bill becomes law.
That also requires a different political culture. Instead of questioning motives, we should interrogate arguments. Instead of assuming bad faith, we should recognise that people can prioritise different rights while sharing the same desire to protect vulnerable individuals.
If parliament concludes that current law is sufficient, it should have the confidence to say so. If it concludes additional protections are necessary, it should ensure they are drafted with sufficient precision to prohibit genuinely abusive conduct while safeguarding legitimate family life, religious practice, therapeutic conversations and freedom of expression.
When parliament creates new criminal offences affecting some of our most fundamental liberties, that is the standard the public should expect.
I hope MSPs resist the temptation to conduct this debate through headlines, hashtags and accusations. Good law is rarely produced by the loudest voices. It is produced through careful scrutiny, intellectual honesty and a willingness to listen to those with whom we disagree.
James Bundy is a Scottish Conservative councillor for Falkirk Council and writer on parliamentary reform at Holyrood
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