Conversion Therapy Bans: Enforcing a Faulty Anthropology on Sex and Gender

A growing number of jurisdictions have taken steps to pass bans on “conversion therapy,” a term referring to efforts or interventions to change or suppress the sexual orientation or gender identity (SOGI) of persons. These bans enforce a message of expressive individualism—that the only acceptable response is to “affirm” a person’s SOGI—and rest on a faulty anthropology on sex and gender. They infringe upon aspects of individual and group autonomy, and they negatively impact public order, health, and moral considerations.

It’s happening across the globe.

In the United States, the Equality Act, which passed in the House 224-216 in February 2021, bans conversion therapy, which it calls “a form of discrimination that harms LGBTQ people by undermining individuals’ sense of self worth, increasing suicide ideation and substance abuse, exacerbating family conflict, and contributing to second-class status.” In Canada, a bill criminalizing conversion therapy, Bill C-6, is presently under consideration in Parliament. The Government of the United Kingdom has made a commitment to put an end to the practice, while New Zealand Prime Minister Jacinda Ardern hopes that a bill banning it will be brought before Parliament by the end of 2021. In a letter sent on March 9, Western Australia Premier Mark McGowan promised a ban on conversion therapy, calling it a “cruel and misinformed practice.” Other Australian states—Queensland, the Australian Capital Territory, and Victoria—have already passed bans on conversion therapy.

While concerns about violent, coercive, fraudulent, or manipulative conduct are legitimate, these are already prohibited under existing laws across all liberal democracies. Instead, by imposing “affirmation” as the only acceptable approach to sexual orientation and gender identity, conversion therapy bans go beyond merely prohibiting harmful conduct to enshrine and enforce a new—and deeply harmful—moral dogma on sex and gender.


What Is Conversion Therapy? Is It Harmful?

So what is “conversion therapy,” exactly? And why is there such a strong movement worldwide to ban it?

Victor Madrigal-Borloz, the Independent Expert appointed by the United Nations Human Rights Council, defined “conversion therapy” in his May 2020 report as an “umbrella term” referring to “interventions of a wide-ranging nature” that are premised on the belief that a person’s sexual orientation and gender identity (SOGI) “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.” The definition is wide enough to cover acts of physical or sexual violence and coercive, fraudulent, or manipulative interventions—which everyone can agree should be criminalized—as well as voluntary talk therapy or prayer. Some laws specifically ban “prayer,” “deliverance,” or “exorcism.”

Proponents of conversion therapy bans claim that such interventions are both harmful and ineffective. Yet the American Psychological Association Task Force has reported that some people reported “perceptions of relief, happiness, improved relationships with God, and perceived improvement in mental health status” after participating in sexual orientation change efforts (SOCE). The Task Force noted that there was “a dearth of scientifically sound research” on the safety of SOCE, and added: “Given the limited amount of methodologically sound research, we cannot draw a conclusion regarding whether recent forms of SOCE are or are not effective.” An amicus brief filed by the Association before the United States Eleventh Circuit Court of Appeals in 2019 was similarly equivocal.

Enforcing a New Dogma

Beyond alleged “harm” or “ineffectiveness,” proponents of conversion therapy bans—and the governments that adopt such bans—have put forth a more fundamental normative argument in support of such bans. They argue that SOGI is an immutable or inviolable aspect of human identity, and thus all forms of conversion therapy amount to discrimination on the basis of SOGI.

In Australia, for example, Victoria’s Act explicitly declares that “a person’s sexual orientation or gender identity is not broken and in need of fixing” and that “no sexual orientation or gender identity constitutes a disorder, disease, illness, deficiency, or shortcoming.” The Act attaches criminal penalties to acts of conversion therapy (referred to as “change or suppression practices”) that cause injury or serious injury, taking a person outside of Victoria for such practices, and advertising such practices. Bans like these thus convey the message that “affirmation” of a person’s SOGI—whether in the form of identity, desires or behavior—is the only acceptable response, imposing a dogma of expressive individualism in relation to sex and gender.

This is a dogma rooted in a philosophically dualist view of the body and self, where the subjective “self” or “person” is viewed as being constituted in an inviolable spirit, mind, or psyche, whereas one’s body is a merely material vehicle and thus irrelevant to one’s “true” identity, conduct, or relationships.

Proponents of these bans are fully aware of the wide-ranging implications embodied in the message conveyed therein. As Marie-Amélie George wrote, the bans have an “expressive effect” that emphasizes the role of the State in protecting LGBT youth, “with implications for debates over antidiscrimination laws, protections for sexual minority youth, and LGBT adoption and foster care rights.”


The Faulty Anthropology of SOGI

Such a view of human nature is far from unassailable. To borrow a phrase from Ryan T. Anderson, it reflects a “faulty anthropology.”

In truth, human beings are both mind (or “soul”) and body. The “self” is an embodied being, such that the body is not a mere extrinsic tool or instrument. The objective biological and physiological differences of males and females are essential to human identity and relationships. Accordingly, not all forms of sexual behavior are equal. Marriage, as a comprehensive conjugal union between a man and a woman that is unitive and procreative, is intrinsically ordered toward family life and the raising of children. As the natural, basic building blocks of society, marriage and family deserve the support of the State and society.

In contrast with the objective facts of biological sex and reproduction, the concept of SOGI is vague and unclear. The term “sexual orientation” has been variously used in literature to refer to short-term or long-term sexual attraction, one-off sexual encounters or long-term relationships, and inclinations or conduct; the same individual’s sexual orientation may be classified differently under each of these definitions. “Gender identity,” on the other hand, is wholly subjective, being based entirely on a person’s self-concept of one’s gender.

Although they are often grouped together, “sexual orientation” and “gender identity” actually rest on differing, even conflicting, bases. While “sexual orientation” is premised on the existence of binary biological sex (that is, same- or opposite-sex attraction or relations) and said by some advocates to be “immutable,” “gender identity” stresses the fluidity and spectrum of gender regardless of biological sex. Thus, some supporters of SOCE bans have simultaneously opposed the inclusion of gender identity in those bans. The Coalition of Activist Lesbians (Australia) pointed out the contradiction that “harsh medical treatments are outlawed for sexual orientation conversion, while extreme surgery and dangerous hormones are condoned and supported for children, in the case of gender identity.”

Moreover, claims about the alleged “immutability” of SOGI lack sufficient scientific basis. Research has not proven the existence of a “gay gene.” The American Psychological Association has stated that “most people experience little or no sense of choice about their sexual orientation,” leaving open the possibility that some people may experience a sense of choice over such matters. Similarly, the origins and development of gender identity are not well understood in research. Data tend to show a significant degree of fluidity of SOGI among children and adolescents.


The Harms of Conversion Therapy Bans

Matters concerning sexuality and gender, as well as values and beliefs, are highly personal, sensitive, and intimate matters. These variously attract rights protections such as privacy, or freedom of opinion and expression, and of thought, conscience, and religion. These rights include communal dimensions, protecting the freedom of individuals and groups to establish and develop relationships, manifest their religion, or engage in free exchange of ideas without interference from the government. However, due to their breadth, most conversion therapy bans fail to draw basic legal distinctions between the different forms of conduct associated with conversion therapy, or between degrees of physical and psychological harm (if any), or consider the element of consent.

Through conversion therapy bans, governments unjustifiably intrude into the immensely profound and private matters surrounding sex and gender by mandating the “affirmation” of SOGI, at odds with classical viewpoints emphasizing the value of biology to human nature, and thereby undermining aspects of personal and group autonomy. They infringe on the privacy of individuals who seek assistance on these intimate matters, as well as the freedom of speech and religion of therapists, religious leaders, and counselors who provide such assistance. Where children are involved, such bans also curtail parental rights.

Additionally, conversion therapy bans negatively affect public order, health, and moral considerations. Since “sexual orientation” is often defined to extend beyond identities and attractions to include behaviors, conversion therapy bans may deter therapists or other trusted persons from addressing and advising against illegal, immoral, or unhealthy sexual behavior for fear of being accused of engaging in “conversion therapy.”

The inherent bias of SOGI bans toward “gender-affirmative” treatments deters professionals from adopting more cautious “wait-and-see” approaches when addressing gender dysphoria, or advising on health risks involved in treatments, such as the use of cross-sex hormones and surgical interventions, which have long-term or irreversible consequences. The risks of harm are heightened where children and adolescents are involved, due to their reduced capacity to give informed consent.

A Clash of Orthodoxies

Battles of the past were fought over the nature of God (e.g. religious wars), but the political battles of today are fought over the nature of Man (or human nature). Fundamentally, at the heart of the dispute over conversion therapy is a “clash of orthodoxies” concerning human nature, the relationship between body and mind (or spirit, soul, or psyche), sex and gender, and the roles of institutions such as families, religious communities, and the State.

It is a faulty view of human nature, based on subjective self-definition, even as the bans impose objective public consequences, including mandating that only “gender-affirming” treatments be carried out on children and adolescents who are still navigating the complexities of identity formation, sexual development, and moral growth. The harms caused by such bans may well be long-lasting and irreversible.

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