It is now a crime in Canada to engage in efforts to change someone’s sexual orientation, gender identity, or gender expression. This ban on “conversion therapy” has been greeted with near-universal praise, and with good reason. Coercive, manipulative, and discredited activities that injure human dignity, trample on basic freedom of choice, and cause profound harm have no place in any society.

But this law could arguably be used to ban far more than what is reasonably meant by the term “conversion therapy.” If this law is enforced to the extent that its text seems to allow, Canada has set itself on a worrisome path.

The law makes it a crime to promote or advertise conversion therapy, benefit from conversion therapy, or cause someone to undergo conversion therapy. These crimes can lead to imprisonment. For the offence of causing someone to undergo conversion therapy, the maximum sentence is five years.

Historically, conversion therapy has usually been understood to mean interventions that try to alter sexual orientation. It has also come to include interventions that try to alter gender expression or identity. The term conversion therapy often brings to mind appalling, dehumanizing procedures.

But this law, as it is written, potentially targets much more than those procedures. It defines conversion therapy not only as an intervention designed to change a person’s sexual orientation, gender identity or gender expression to heterosexual, cisgender, or the sex assigned at birth. The definition extends to any practice, treatment or service designed to repress or reduce non-heterosexual attraction or sexual behaviour, repress a person’s non-cisgender identity, or repress or reduce gender expression differing from the sex assigned at birth. In short, the law appears to view any focused or sustained efforts that promote heterosexuality, cisgender identity, or gender expression that reflects biological sex as amounting to conversion therapy.

Take the case of a man who is experiencing sexual attraction to other men. What if, to remain faithful to his wife and children, he begins to meet with a licensed counsellor? According to the law, the counsellor may well be engaging in a “practice, treatment or service” designed to “repress or reduce non-heterosexual attraction or sexual behaviour.” Do we really wish to live in a society where this man cannot get this help, and where professionals who provide it might be branded as criminals?

We need clear laws against conversion therapy

End political manoeuvring over conversion therapy

In light of how it broadly defines conversion therapy, the law could plausibly capture activity that should never be criminal. Professionals such as that counsellor might think twice about supporting individuals who wish to avoid certain sexual activity. Clergy from religions with traditional beliefs on sex and gender might wonder what they can and cannot say in providing spiritual direction to members of their communities. Parents might worry about the extent to which they can instruct their children on sex and gender.

While the federal government has said that the law is not meant to prevent parents from having conversations with their children on these topics in accordance with their beliefs, why didn’t the government write the law in a way that left no doubt? Clarity should be a feature of all laws, but especially where a law exposes citizens to criminal prosecution and imprisonment.

The crimes created by this law are not confined to certain professions: they apply to everyone. The law appears to make no meaningful room for a diversity of legitimate viewpoints on sex and gender. Instead, the law’s opening paragraphs declare that conversion therapy – as the law defines it – is harmful because it stems from “myths and stereotypes.” The only example of an activity that the law explicitly says is not conversion therapy is supporting a gender transition.

This law sends the message that certain beliefs about sex and gender are harmful, including the belief that the identities of male and female are biologically embedded rather than arbitrarily assigned. For many Canadians, these beliefs animate their understanding of matters such as marriage, family and the human person. These beliefs can hardly be described as extreme, yet Canada’s new law strongly implies that they are no longer welcome here.

The most dismaying aspect of this law may be the troubling polarization and unrest it could cause. By unabashedly endorsing progressive viewpoints on sex and gender, and by envisioning little to no space for reasonable discussion on these matters, this law essentially tells every citizen that “you are either with us or against us.” With the criminal justice system in the mix, this statement is especially loaded.

It is hard to shake off the feeling that a desired side effect of this law is to secure greater assent to progressive beliefs on sex and gender and to stifle expression of contrary beliefs. Besides the fact that certain of these beliefs remain deeply contested in our society and within disciplines such as anthropology, biology, psychology and sociology, suppressing meaningful discussion of these beliefs through the medium of the criminal law would be unbecoming of a free and democratic society.

Parliament could have passed a law that outlaws odious practices without engaging in overreach. The law could have unambiguously excluded from its application those adults who, on their own initiative, seek professional help in matters of sex or gender. It also could have recognized that there is a range of reasonable beliefs on sex and gender in Canada and it could have confirmed that this law does not criminalize them. Finally, the law could have defined “conversion therapy” in a manner that more closely aligns with how most Canadians intuitively understand that term. The proposed law on conversion therapy that is currently under consideration in New Zealand, for example, largely bears these features.

The Canadian law will almost surely be challenged for compliance with the Canadian Charter of Rights and Freedoms, perhaps by professionals who feel they cannot provide appropriate care, or by citizens who might encounter barriers in obtaining care that they want to receive. These cases deserve to be taken seriously. Until the courts map out the constitutional contours of this law, police and prosecutors should exercise prudence in how they handle these new crimes. If they do not, this law could push to the margins – and in some cases to our prisons – Canadians who hold defensible beliefs on sex and gender.

It was striking to observe parliamentarians celebrating the passage of this law in the House of Commons. It is rare to witness politicians from different parties crossing the aisle to embrace each other and to the extent that this law seeks to end coercive and harmful practices, this scene is encouraging.

But given the possible effects of this law and its far from farfetched implications, this scene is also jarring. One cannot help but wonder if our lawmakers fully appreciated the substance of the legislation they were passing. If they did, one cannot help but wonder why they passed it.

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Brian Bird
Brian Bird is an assistant professor at the Peter A. Allard School of Law at the University of British Columbia. You’ll find him on Twitter @briandnbird.

You are welcome to republish this Policy Options article online or in print periodicals, under a Creative Commons/No Derivatives licence.

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