- BILL M 218–2019 (British Columbia)
SEXUAL ORIENTATION AND GENDER IDENTITY PROTECTION ACT
A Brief Analysis of the Problem and Some Proposals
This Bill has been introduced by Dr. Andrew Weaver of the Green Party, and currently awaits its second reading. Our assumption at the outset is that those who have drafted this bill are well-motivated, public-spirited people who are intent on helping and protecting vulnerable people, which is all to the good. However, we find the Bill as drafted to be highly problematic.
- Although “conversion therapy” is widely referred to in Canada at present, as if everyone knows exactly what it is, this is in fact imprecise language that allows for wide and dangerous latitude in interpretation. Many Canadians appear to associate the practice with activities like kidnapping, forcible confinement, and assault; they believe that coercion lies at the heart of the matter. They fail to understand that many others include in it (for example) the well-established medical practice of offering non-directive counselling to pre-pubescent children concerning their perceived gender identity, while waiting to see if their symptoms of gender dysphoria disappear over time (as they mostly do).
- This immediately raises the question: what is it, exactly, that Bill M 218–2019 is setting out to prohibit? This is a pertinent question because the Bill explicitly includes “counselling” in its list of prohibited activities – something that one would not normally consider to be coercive. This choice of word already implies that the Bill wishes to ban not only coercive but also consensual practices.
- This impression is confirmed when one compares it to a precursor Ontario Act from 2015, which allows “treatment that seeks to change … sexual orientation or gender identity” if the minor “is capable with respect to the treatment and consents to the provision of the treatment.” The BC Bill possesses no such consent clause. This strongly implies that it is not about ending coercion with respect to minors, but actually about depriving them of certain freedoms. Indeed, if it is passed as it stands, the Bill will seemingly place us in an extraordinary situation. Children as young as ten with gender dysphoria will continue to be able to consent to taking puberty-blockers (whose full risks are unknown), followed a few years later by cross-sex hormones (possessing significant health risks). However, minors as old as eighteen who would welcome counselling about their (perhaps unwanted) sexual attractions will not be considered competent to consent to such counselling, even though in BC they are considered competent at sixteen to drive a vehicle or to give consent to sexual activity, and at eighteen to vote.
- The BC Bill as drafted can reasonably be interpreted as depriving not only minors, but also various responsible adults of important freedoms. “A person in a position of trust or authority in relation to a minor must not provide conversion therapy to the minor.” On the face of it, this appears to forbid parents and other adults from responding to minors in ways that are not entirely affirming of their current perceptions concerning sexual orientation or gender identity. Especially against the background of the introduction of SOGI 123 into BC schools, it is unfortunately all too easy to interpret the current situation in this way: that the Province intends by way of SOGI 123 to inform minors about the “correct” manner in which to think about sex and gender, and by way of Bill M218–2019 to prevent even their parents from teaching or counselling them otherwise.
- Finally, the exclusion clause stating that conversion therapy does not include “services that provide acceptance, support or understanding of a person or that facilitate a person’s coping, social support or identity exploration or development” is far too vague to allay the above concerns.
It may well be that those who drafted BC Bill M218–2019 will themselves be surprised by the possible interpretation that we have offered of its wording, because they did actually intend only to ban coercive practice. If so, the current problems with the Bill can easily be resolved by rewording and offering further clarification. In the absence of such rewording and clarification, however, we believe that the Bill should not pass into law, whereupon (for the reasons stated above) it can only cause great mischief. We propose the following:
- The innately confusing terminology of “conversion therapy” should be avoided. Instead, the Bill should specify the particular practices that it seeks to ban, and provide reasons for doing so. In providing the reasons, the Bill should be sure to treat even-handedly
- all the evidence pertaining to the nature and significance of self-reports by minors concerning sexual orientation and gender identity.
- all the 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.
2. The consent clause from the 2015 Ontario Act should be inserted into the BC Bill so that minors do not have less freedom to consent to counselling than to “a gender-confirming surgery or any related service.”
3. The “exceptions clauses” (under “Definitions” ) should be expanded to make it explicitly clear that the legislation is not intended to interfere with:
- The right of healthcare professionals, without threat to their reputation, licensing, or employment, 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.
- 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.
- 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 those adults’ understanding of all the facts and their moral and/or religious worldview, and without threat to their reputation or employment .