Proposed Conversion Therapy Ban Violates Constitutional Rights of Parents and Children, Committee Hears

‘Why is the government telling people what sexual or gender goals they should have?’ physician asks
December 10, 2020 Updated: December 16, 2020

As the Liberals’ conversion therapy bill moves to the next stage of review today, legal experts are warning that the legislation may infringe on Charter rights by imposing a “one-size-fits-all treatment” of gender transition on children experiencing gender distress, while removing the rights of parents and health-care providers to decide what’s best for the child.

Lawyer Lisa Bildy with the Justice Centre for Constitutional Freedoms told the parliamentary Justice Committee on Dec. 8 that Bill C-6 pushes “affirmation” and transition as the only acceptable response to children who are confused about their gender, without considering that they may be experiencing gender dysphoria, or that their feelings may change later in life.

“A free society that supports individual rights, as Canada is supposed to be, would allow parents, children, and health professionals to find the best path for each unique child, not have the state preordain that transition is the only permissible option,” Bildy said at the committee hearing.

“It is not for the government to dictate such outcomes, and doing so, in our submission, contravenes the rights of parents and children guaranteed under Section 7 of the Charter.”

At issue is the bill’s sweeping definition of “conversion therapy” which seeks to prohibit and create criminal offences for any “practice, treatment or service designed to change a person’s sexual orientation to heterosexual or gender identity to cisgender, or to repress or reduce non-heterosexual attraction or sexual behaviour.”

“There are many difficult to define and undefined terms and words in this definition. There are many difficult concepts which are going to be very difficult for criminal courts to nail down,” lawyer Daniel Santoro testified at the committee.

He said the “overly broad and imprecise” definition of conversion therapy is “likely to capture situations which are not actual conversion therapy,” and allowing gender transition as the only acceptable treatment could be seen as unconstitutional.

“The difficulty is that if this definition is not properly tailored, it will be seen perhaps to not only be unconstitutional, because it regulates criminal in the field of health care, but also overbroad and contrary to Section 7 of the Charter,” Santoro said.

“The existing exception for medical treatment is too narrow because it specifies only one lawful form of treatment—gender transition—[and] the exception allowing exploration of identity is unclear and does not adequately protect Charter freedoms.”

The Justice Centre for Constitutional Freedoms says Bill C-6 violates the Charter of Rights and Freedoms in “four significant ways.”

Bildy said gender identity is being “improperly conflated with sexual orientation” in the bill and needs to be removed. She said allowing only gender transition instead of other forms of treatment—such as exploring any mental health issues or past trauma that could be contributing to feelings of gender confusion, or waiting to see if the child’s feelings change as they grow—is setting kids up on a path toward invasive surgical procedures and hormonal treatments that could have permanent effects.

“When they say ‘affirmation’ they mean rejecting the body a child was born in and embarking on a path of puberty blockers, cross sex hormones, multiple surgeries, and a lifetime of medication and dire consequences, such as sterility and loss of sexual function,” she said.

Bildy added that Bill C-6 is setting the government up for legal challenges down the road, as seen in the United Kingdom, where a “detransitioner” recently sued after having second thoughts about her gender transition.

In a landmark ruling last week, Kiera Bell, a 23-year-old from Cambridge, won a judicial review against the Tavistock and Portman NHS Foundation Trust, which runs the only gender clinic for transgender youth in England and Wales. Bell, who took puberty blockers at age 16 before having gender reassignment surgery at 20, argued the clinic should have done more to challenge her decision to transition to a male.

The British High Court sided with Bell, ruling that those under 16 were unlikely to be able to give informed consent to undergoing treatment with puberty-blocking drugs, given their long-term consequences.

Britain’s National Health Service is currently conducting a wide-ranging review of several aspects of gender identity services for children and young people.

Last month, Detrans Canada, an organization that represents Canadians who have reversed their decision to transition or identify as a gender not assigned at birth, submitted a brief stating their opposition to Bill C-6, saying it denied resources to children experiencing gender confusion.

“We oppose Bill C-6 because it is harmful to gender dysphoric children, and denies resources to individuals with internalized homophobia, body dysmorphia and other mental health concerns that often accompany and generate gender dysphoria,” said the brief.

“This Bill will punish therapists who try to help us, ban life-saving therapies that our members need, and force gender dysphoric children on a trajectory towards unnecessary medical risks.”

Ontario family physician Dr. Jane Dobson told the committee that the legislation would criminalize potentially life-saving alternative supports and treatment for young people experiencing gender confusion.

“My question is, why is the government telling people what sexual or gender goals they should have?” she said.

“They are effectively doing this with Bill C-6, as the bill broadens the definition of conversion therapy from abusive and coercive therapeutic practices to also include talk therapy, watchful waiting, interpersonal conversations, and spiritual practices, widening the net to now potentially criminalize parents, spiritual leaders, and medical professionals for simply practicing tested and tried therapy to help an individual reach their self-directed goals.”

The government says that if passed, Bill C-6 will make Canada’s laws on conversion therapy the most progressive and comprehensive in the world.