Bill C-8 – A Brief Analysis

OVERALL SUMMARY

The long-promised Canadian federal Bill concerning “conversion therapy” has now appeared (March 2020), and it should alarm all Canadians.  Most of us would certainly be opposed to coercive, non-consensual attempts “to change a person’s sexual orientation … or gender identity” (Bill C-8, “Definition of Conversion Therapy,” 320.101), but most of us also believe that our government should base legislation on the full range of facts pertaining to a particular subject, and should take full account in drafting it of the plural nature of Canadian society in terms of belief and practice.  Bill C-8, unfortunately, fails to take account of all the facts, consequently introducing in an unhelpfully simplistic way the subject of “identity,” and what “changes” to identity involve.  The Bill then proceeds to instruct Canadians on what must be done on the basis of its skewed presentation of “the facts.”  In doing so it entirely ignores alternative views concerning what the facts are, and how they should be interpreted.  It also displays a notable lack of respect for associated beliefs and practices shared by many Canadians, but not by those who drafted the legislation.  The result is a Bill that sets out to protect the rights and freedoms of some Canadians, but that ends up by seriously and unjustifiably infringing the rights and freedoms of others.

            For a full version of the argument presented in this brief analysis, readers should refer to the following paper (containing voluminous footnotes) that can be found at the Concerned Citizens of BC website (concerned.ca): “Federal BILL C-8: A Detailed Response.”

MAIN CONCERNS

  1. The foundation upon which Bill C-8 rests is ultimately the assertion that “conversion therapy causes harm to society because, among other things, it is based on and propagates myths and stereotypes about sexual orientation and gender identity, including the myth that a person’s sexual orientation and gender identity can and ought to be changed” (Bill C-8, “Preamble”).  It is not in fact the case, however, that human “identity” is fundamentally an internal, stable, entity within the body that individuals are capable of discovering and naming by empirical means, and that once discovered cannot be changed.  Specifically, sexual orientation and gender identity (as a matter of fact) are not necessarily any more stable over time than any other aspect of identity.  Human identity is not simply “there.”  That itself is “a myth.”
  • This myth then provides the basis for the Bill ’s strong opposition to conversion therapy – “a practice, treatment or service designed to change a person’s sexual orientation to heterosexual or gender identity to cisgender, or to repress or reduce nonheterosexual attraction or sexual behaviour” (Bill C-8, “Definition”).  Any attempt to change, repress, or reduce along such lines, the “Preamble” has already told us – whether or not coercion is involved, and whether or not consent has been given – causes “harm to the persons, and in particular the children, who are subjected to it.”  It is not in fact true, however, that attempts by consenting individuals proactively to “change” their sexual orientation or gender identity by way of activities like counselling is necessarily or even normally harmful to those individuals.  This includes children.  Indeed, in the case of children suffering from gender dysphoria it has been known for some time that with appropriate support and counselling only a small number will continue to display symptoms in later life.  These “wait and see” counselling and support efforts have been far from “damaging” to the children concerned.
  • Various aspects of Bill C-8 then seem designed to curtail the freedom of Canadians to act in ways that embody dissent from the dogma masquerading as indisputable fact that lies at its heart.  This is certainly true of the announcement that any “practice, treatment or service designed to … repress or reduce nonheterosexual attraction or sexual behaviour” constitutes conversion therapy, and that it may lead to prosecution and imprisonment (Bill C-8, “Definition”).  Much depends here on what is included under the rubric of “practice, treatment or service,” but the Bill itself is unfortunately not specific in this regard.  This leaves open the possibility that parents going about their ordinary business of raising (say) Christian children could fall foul of Canadian law, or that pastors could get into serious trouble for preaching the historic Christian message concerning the terms of Christian discipleship.  But in fact all Canadians who intend to continue to raise their children in accordance with what are nowadays often called “traditional values” should be concerned about this aspect of the Bill.
  • In entirely forbidding the provision of “conversion therapy” to Canadian minors under any circumstances, Bill C-8 effectively prohibits those minors from making certain kinds of choice.  The people who drafted the Bill clearly believe that quite young teenagers in pursuit of “gender transition” are old enough to consent to the consumption of puberty-blockers whose full risks are unknown, cross-sex hormones possessing significant health risks, and irreversible surgeries that will by no means guarantee the disappearance of the gender dysphoria first diagnosed, nor improve the person’s happiness in general.  Such minors are apparently not old enough, however, to consent to counselling with respect to (e.g.) unwanted sexual attractions.  The moral logic of this position is entirely unclear.
  • Any law based on Bill C-8 as currently drafted would put at risk health professionals pursuing long-established practice in dealing with gender dysphoria, not only of the loss of their professional licenses by way of regulatory college malpractice/unprofessional conduct proceedings, but of criminal prosecution.  It would require health professionals, in fact, to accept at face value a particular claim about gender identity made by even quite young individuals – as an objective, fixed reality like skin or eye color – or risk serious consequences.  It would have a chilling effect, in other words, on responsible, time-worn medical practice, as a “mistake-avoidance” ethos arises that would in turn be disastrous for children and their parents who are dealing with gender dysphoria, and who need the best, impartial advice from doctors that they can get.
  • In sum, this is not a Bill that is only about outlawing blatantly coercive practices akin to torture among those who currently think of themselves as members of minority communities.  If it were, it would be warmly welcomed by the great majority of Canadians.  On the contrary (and most unfortunately) this is a Bill premised on a particular set of disputable beliefs about the right way of interpreting and properly “handling” matters of sexual orientation and gender identity, and that is designed to establish those beliefs, and the actions that follow on from them, as the only right and legal way of interpreting and properly handling such matters.  It is a Bill that simply aims to forbid Canadians – whether healthcare professionals, parents, or others – from believing otherwise, and from living their professional and other lives accordingly.  And it is a Bill that aims to prevent dissenters from its “self-evident truth” from teaching or counselling in ways that run counter to its ideological commitments.  In short, it is draconian.


PROPOSALS

The current problems with the Bill can easily be resolved by rewording in a few places.  The most fundamental revision required is in the first sentence of the “Definition” section, which should be revised as follows: “conversion therapy means a coercive, non-consensual practice, treatment or service designed to change a person’s sexual orientation to heterosexual or gender identity to cisgender, or to repress or reduce nonheterosexual attraction or sexual behaviour.”  The second paragraph of the “Preamble” should also be deleted, since it is premised on a particular set of beliefs about sexual orientation and gender identity that are disputable on the basis of published scientific research, and that are in any case not shared by many Canadians.  In particular, this paragraph does not take account of

  1. the substantial evidence pertaining to the nature and significance of self-reports by minors concerning sexual orientation and gender identity.
  2. the substantial adult personal testimony pertaining both to changes and non-changes in sexual orientation and gender identity over time, as well as all the testimony to both benefit and harm arising from counselling in this regard.

Consequently, the plural “harms” in the third paragraph of the “Preamble” should be changed to the singular “harm.”

            Failing all of this, the Bill should certainly be amended explicitly to protect “teachers, school counsellors, pastoral counsellors, faith leaders, doctors, mental health professionals, friends or family members” to whom the Department of Justice claims the “new offences” specified in the Bill would not apply, since these persons “provide support to persons questioning their sexual orientation, sexual feelings or gender identity.”  The Bill should explicitly protect

  1. the right of healthcare professionals, without threat to their reputation, licensing, employment, or freedom from imprisonment, to offer what they believe is their best counsel to, and treatment of, minors experiencing distress concerning their current sexual attractions or sense of gender identity.
  2. the right of parents to discuss with their children in a non-coercive manner the nature and significance of their current experience of sexual attraction or gender identity, in the context of the parents’ understanding of all the facts and the family’s moral and/or religious worldview.
  3. The right of other adults in a position of trust or authority in relation to minors to discuss with them in a non-coercive manner the nature and significance of their current experience of sexual attraction or gender identity, in line with their understanding of all the facts and their moral and/or religious worldview, and without threat to their reputation, employment, or freedom from imprisonment,

The willingness or otherwise of the Parliament of Canada to amend Bill C-8, or to include such explicit exceptions in the Bill, will go a long way toward demonstrating whether it governs on behalf of all Canadians, or is in fact intent on imposing a very particular ideology on a large number of citizens who would like to raise their children as they wish, and in the course of this child-rearing to be able to access both education and healthcare that is not overly characterized by ideological concerns.