Jen Gerson: Bill C-6 wants to ban conversion therapy. Then it gets complicated.

The niggling concern I do have with C-6 is that it collapses several very different things into the rubric of "conversion therapy."

Let's start by acknowledging that we all have both a duty and a right to examine not only the pieces of legislation currently proposed for consideration in criminal law, but also the intent and meaning behind them. 

Bill C-6: An Act to amend the Criminal Code (conversion therapy), currently before committee in the House of Commons, is, for the most part, a benign bill. 

It prohibits minors from being exposed to "conversion therapy," which is defined as “a practice that seeks to change an individual's sexual orientation to heterosexual, to repress or reduce non-heterosexual attraction or sexual behaviours, or to change an individual's gender identity to match the sex they were assigned at birth.”

C-6 criminalizes several acts, including advertising conversion therapy services, forcing adults or children to undergo it; taking a child abroad for conversion therapy, and receiving a material benefit from the practice. C-6 does not ban the practice by consenting adults, provided nobody is profiting from the exercise. In other words, a religious LGBTQ adult who wants to pray away the gay in a church basement seminar is still free to do so, provided his pastor isn't taking cash for it. 

So let's be clear about what this bill is and what it is not. The bill is unlikely to do much to curb the practice of religious adults who seek spiritual approaches to fight their innate sexual desires — in fact, attorney general David Lametti has said a law that attempted to do so would be unlikely to survive a Charter challenge. The Liberals are using a legitimate concern of the LGBTQ community and using it to craft a road-runner style rhetorical trap for the Conservative party. A handful of genuinely religious dare raise an objection and — snap! — the jaw comes down: CPC, the party of bigotry! 

So far, the CPC has failed to make a run for the cheese, though we will see whether that line breaks in time. The bill passed second reading 308 to 7 in favour at second reading.

That said, the politics surrounding this bill is such that it probably isn't receiving the level of scrutiny that it should. 

When ordinary people think of the term "conversion therapy," it evokes a horrific image of young gay men and women subject to religious torture regimes in an effort to change their sexual orientation. There are heartbreaking and chilling stories from survivors of this kind of approach. 

But even gentler versions of "conversion therapy," which involve a form of religious counselling, can be actively harmful by instilling a negative self conception within the practitioner. Additionally, the evidence against this approach's effectiveness is overwhelming. 

I don't think a minor can or should be able to consent to conversion therapy. I support a law that bans a therapy that tries to change a minor's sexual orientation. 

By comparison, in a free society, consenting adults are allowed to engage in unfortunate and self-destructive practices as they see fit; but, I also think it's perfectly legitimate to make it a criminal act to force someone to undergo such a practice. 

The niggling concern I do have with C-6 is that it collapses several very different things into the rubric of "conversion therapy." Because while the evidence against therapies that try to change sexual orientation is substantive, C-6 also includes "gender identity" in its preamble. Sexual orientation and gender identity are not the same thing. The evidence gathered about “conversion therapy” as it relates to sexual orientation can’t be retroactively applied to legitimate queries of gender identity.

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We are currently in the midst of an extraordinarily vicious battle about the appropriate way to treat children who suffer from gender dysphoria, ie; minors who feel incongruent with their biological sex. 

Generally speaking, there are two different kinds of approaches to helping such children — gender-affirmative care, and watchful waiting. As the names suggest, the former approach seeks first and foremost to affirm a child's feelings of gender expression, even when it differs from their biological sex, while the latter spends more time helping the child explore the psychological roots of their dysphoria, and experiment with conforming and non-conforming gender roles before possibly moving to medically transitioning to a new gender. 

In practice, I suspect these two approaches are not as dichotomous as the combatants on both sides seek to present them. However, critics of the affirmative model are concerned that this approach pushes children too quickly onto puberty blockers, which almost always lead to cross sex hormones and then, often, serious surgeries with major side effects like sterility, limited sexual function, and reduced bone density.

Indeed, the internet is now rife with anecdotes from teenagers who say that they were prescribed puberty blockers after only a few short visits with a doctor; or that their medical practitioners failed to conduct a thorough psychological assessment. (The absence of data makes it difficult to know if these experiences are common.)

The majority of studies to date show that children with gender dysphoria tend to resolve that dysphoria by adulthood. The World Professional Association for Transgender Health itself acknowledges this. In fact, most children with dysphoria discover that they are gay when their adult sex drives begin to kick in. The fear is that by putting children on puberty blockers, we're actually preventing them from undergoing the natural hormonal processes by which their dysphorias would resolve without further medical intervention. 

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However, not all children with dysphoria fit that pattern, either. By late adolescence, most minors experiencing dysphoria do, in fact, go on to identify as transgender, and puberty blockers may help them.  

The conflict at the heart of this dispute came to a head in the United Kingdom, where its High Court recently ruled that children under the age of 16 were not capable of consenting to puberty blockers or cross sex hormones without explicit court approval. 

The alternative to the affirming approach was the watchful waiting approach. Watchful waiting is not "conversion therapy," though it has been portrayed as such by critics who are concerned about medical profession's historical tendency to restrict access to treatment, and to pathologize gender dysphoria and transgender identity. 

And, to be clear, C-6 does not criminalize watchful waiting. We at The Line reached out to the Department of Justice to ask exactly that. A spokesperson responded: "The Bill’s definition is carefully crafted to exclude interventions that do not favour one particular sexual orientation or gender identity over another. Such interventions, including 'watchful waiting' and other legitimate therapeutic interventions designed to assist a person struggling with their gender identity, are not caught by the definition."

In fact, a provision right there in the bill states: 

"For greater certainty, this definition does not include a practice, treatment or service that relates a) to a person’s gender transition; or b) to a person’s exploration of their identity or to its development."

It's reasonable to argue that this language is too vague to sufficiently protect legitimate practitioners who favour watchful waiting. The law itself may have a chilling effect on care in this field. Given the history of pushback on these issues, no one is going to volunteer to be the test case, dragged up before a court accused of practicing "conversion therapy" because he or she told a gender dysphoric child to play with dump trucks and Barbies. 

Trans-rights issues are now so deeply polarized within the culture war that, on one hand, most sane people know better than to raise a peep about legislation that is about to be passed into law. On the other, those who do raise concerns are so deeply captured by religious or pre-existing political agendas that they're portraying this bill to be something that it is not. 

Questions about how best to address gender dysphoria in children are still in dispute. It's complicated, and the evidence is still coming. This issue is not a good fit for medical-ethics-by-Twitter. Nor will it be gracefully resolved by a progressive government gleefully setting down rhetorical glue traps for its enemies. 

We're talking about kids, here. Everyone needs to grow up. 


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