In December 2021 the UK government announced plans for a Bill to end conversion therapy. The plans were withdrawn in early 2022, following controversy about the implications for treatment of children with gender dysphoria, but with a promise of later reintroduction. The UK, however, is only one of many countries seeking to legislate on this issue. Several have already done so, and others have laws in hand. 

‘Conversion therapy’ is an umbrella expression for attempts to change a person’s sexual orientation or gender identity. The term covers a wide spectrum of activities, from ‘medical’ treatment to religious rituals like exorcism. (Some would argue it also includes forced marriage – the complete dismissal of homosexual orientation as a factor in selfhood or personhood.)  Of course, ‘conversion therapy’ is a misnomer. ‘Therapy’ implies that the condition being treated – same sex attraction or different gender expression – is a pathology requiring medical or some other intervention. It harks back to a time when same sex attraction was seen as a perversion or mental illness, which could be cured or ‘converted’ by treatment. I use it only as a convenient shorthand.  

In the past, and in some parts of the world even today, ‘conversion therapies’ have included shockingly barbaric practices such as castration, lobotomy, and aversion treatment that aims to modify behaviour by, for example, subjecting a person who is experiencing same-sex arousal to repeated electric shock or the smell of faeces. However, many versions of conversion therapy do not involve physical intervention, but rather psychological pressures in the form of group prayer or ‘pastoral’ counselling by a church minister.

Here I want to focus on measures to tackle conversion therapy in religious settings. Conversion therapy as a supposedly medical practice endorsed by health professionals continues in some countries: China, Iran and Indonesia are among the worst offenders. But in much of the civilised world this form of conversion therapy has been denounced by professional associations and regulators. 

In the UK in 2012, the British Association for Counselling and Psychotherapy condemned ‘any psychological treatment such as “reparative” or “conversion” therapy which is based on the assumption that homosexuality is a medical disorder or based on the premise that the client/patient should change his or her sexuality’. Similar language has been adopted by other professional bodies such as the Royal College of Psychiatrists and the British Psychological Society. 

This is not to say that these prohibitions are watertight. Some rogue therapists are working hand in glove with extreme religious groups and a lot more needs to be done to regulate them. But in the UK, as across much of the civilised world, professional bodies and regulators have taken a clear stand against conversion therapy.  There remains an ongoing debate amongst medical and therapeutic professionals as to how any prohibition of ‘conversion therapy’ might affect the treatment of children with gender dysphoria, but this is a subject for another day. However, while conversion therapy as performed by health professionals has declined in Western countries, following the depathologisation of same-sex attraction, faith organisations have become the most active practitioners of it. For this reason, legislation in the UK and other western countries needs to focus particularly on religious contexts.    

Religious attempts to change sexual orientation or gender identity come in many forms. Some involve physical assault. Victims from around the world have described exorcisms to ‘cure’ homosexuality which involved being stripped naked and flogged repeatedly during ‘deliverance sessions’ until the victim passes out, overwhelmed by pain and exhaustion. A form of exorcism used in some mosques (‘djinn expulsion’) includes physical restraint and high volume reading of the Koran through screaming in the ears of the victim; the exorcist supposedly speaks to the bad spirit or ‘djinn’ about its exact location in the body and forces it to exit the body, often by applying physical pressure to the body part where the ‘djinn’ allegedly resides. In Malaysia an Islamic doctor published a five-step ‘treatment’ for homosexuality to rid a victim of ‘demons’ supposedly responsible for same sex attraction. This included spraying the victim’s eyes with chewed black pepper, after reciting verses from the Koran. In Nigeria a lesbian survivor of ‘conversion therapy’ described having oil poured into her vagina. In the UK, a client of mine who attended an evangelical church within the Church of England, and who was highly vulnerable at the time, alleges that he was instructed to have sex with a female cleric in order to ‘cure’ his same sex attraction. Other vile practices of this kind also occur in the UK, where fundamentalist religious groups are growing, even if they often go unreported. 

Other religious practices – some using church ‘counsellors’ or ‘therapists’ with bogus professional qualifications – may not involve actual physical assault, but a high degree of group pressure and psychological coercion, including relentless targeting and verbal denunciation of a victim’s sexual orientation. Some practices involve prayer – organised or informal – or private ‘pastoral’ conversations with a church minister, in which the victim is encouraged to feel shame about his or her sexual orientation or gender identity.  

All these practices have the potential to cause serious harm. Legislating against them may not always, however, be straightforward. Practices which involve physical violence or sexual assault are easier to address legally. Such practices may already be illegal under current criminal law, but in any event, legislating to prohibit them, or to make them an aggravating feature of existing criminal offences, does not involve any novel legal principle. With some exceptions, such as boxing and ritual circumcision, the law in England and Wales has tended to take the view that a victim cannot ‘consent’ to the deliberate infliction of actual bodily harm. This approach can be seen in the legislation on female genital mutilation: FGM is illegal in this country even if committed on an apparently ‘consenting’ adult. Thus legislating to outlaw conversion therapy where it involves the infliction of physical harm is merely bringing the law into line with existing criminal law in other areas. 

The more difficult dilemma is whether the law should intervene in religious practices where no physical assault or touching is involved, and where the person whose sexuality or gender identity is being targeted is a consenting adult. Prayer is speech; some would say, therefore, that it should not be prohibited at all, and certainly not if the object of the prayer freely consents to it. To legislate in this area, some would argue, is to involve the law in policing private conversations: a dangerous slippery slope. 

The most comprehensive measure against conversion therapy anywhere in the world, enacted in the Australian state of Victoria, has been criticised on precisely these grounds. The Victorian law bans conversion therapy in the form of ‘religious practice, including but not limited to, a prayer-based practice, a deliverance practice or an exorcism’. Given the limitations imposed on religious ritual and speech, evangelical groups in Australia have complained volubly about secular overreach and incursions into religious freedom.

On the other hand, campaigners against conversion therapy have argued that without such an all-embracing ban, much psychologically harmful conversion therapy will simply continue. When the UK government’s legislative proposals were announced in December 2021, they explicitly excluded private prayer and casual conversations, and provided that, except where physical assault is involved, a practice would not be illegal where the person receiving it was a fully capacitous adult giving informed consent. Some campaigners against conversion therapy criticised these proposals as inadequate. Jayne Ozanne has argued for an outright, unqualified ban: ‘Anything short of a full ban will allow this degrading and inhumane practice to continue,’ she said in an interview with Open Democracy. ‘The very lives and well-being of LGBT people are at stake.’ Campaigners have argued persuasively that informal conversion therapy in the guise of prayer or pastoral conversations can be as pernicious as other forms, and that the concept of ‘informed consent’ is meaningless in many fundamentalist religious contexts where the social pressures to conform are often overwhelming.

How should legislators deal with these conflicting arguments? As a secularist and supporter of free speech I oppose religious interference with free speech, for example through blasphemy laws. To be consistent, I should also want to protect religious freedom of speech. But conversion therapy is known to cause appalling lifelong harm and, as I have previously argued in the Freethinker, an important principle when it comes to debates about religious freedom is that religion should not be exempt from laws, or legal principles, of general applicability. The law already criminalises coercive control in domestic contexts, so to that extent, it can and does become involved in policing some private speech, but only in circumstances where serious psychological harm is caused, and the victim is not truly consenting.

Thus, if we want to approach conversion therapy in a way which allows for legal consistency between religious and non-religious harms – an important governing principle for any legislation – we might legitimately criminalise certain forms of seriously harmful and coercive private religious activity or speech. The question of how far conversion therapy should be prohibited, therefore, is closely bound up with the issue of consent. 

Plainly, children or adults lacking legal capacity cannot ‘consent’ in any meaningful sense to conversion therapy, and legislation should make that crystal clear. As to whether a law should allow for adult consent to religious conversion therapy, most jurisdictions which have legislated have stopped short of unqualified bans which permit no ‘adult consent’ exception, but many have included provisions which aim to ‘keep a close eye’ on consent. In 2016, Malta became the first country in Europe to ban conversion therapy. The ban covered minors under 16, people suffering from a mental disorder and people deemed ‘vulnerable’ by a court, taking into account their personal circumstances. In other words, whilst in principle a person might have the capacity to consent, consent is nullified where the person is a child or a vulnerable adult. The UK government’s proposals set out in December 2021 adopted a similar approach: in principle it could still be possible to consent, but the law would be astute to prohibit coercion, and children and vulnerable adults could not consent at all.     

The concerns voiced by campaigners about a consent ‘loophole’ are entirely understandable. In practice, consent in fundamentalist religious settings is very often vitiated by the power dynamics of those settings, where the personal cost of challenging clerical authority and community pressure is too high for most people to bear. This is a very powerful point. 

In legal terms, however, the proposition that, even in the absence of coercion, a capacitous adult could never freely or genuinely consent to non-physical conversion therapy is probably unsustainable. Of course, somebody in thrall to a fundamentalist religious belief and who rejects rationality, science and evidence might be said to be philosophically ‘unfree’. Legally, however, capacitous adults not subject to coercion can, in principle at least, choose to believe that their own sexual orientation is wrong, and that they need help to change it. And an attempt to legislate that right away would almost certainly invite a challenge under Article 9 of the Human Rights Act (the freedom of religion and belief article). The critical question in any individual case is whether, given the pressure and coercion that we know operate in fundamentalist religious communities, consent is truly genuine. That is an issue which can only be determined on the facts of the individual case – but the crucial thing is to ensure that the true facts are fully known and understood, so that the coercion which operates in so many cases is properly exposed. 

The better legislative approach, therefore, is not to assert that consent can never be freely given, but to focus on ensuring that the issue of consent is properly addressed in every case. This would involve defining ‘coercion’ from a legal perspective and, by extension, defining ‘consent’. But crucially, it would also involve enforcement: making the law effective is as much a practical as a legislative challenge. It is one thing to talk about the coercion and pressure that often occur in closed religious communities. But what are we actually going to do to call it out when it happens and to help those on the receiving end? Unless we create mechanisms by which those who experience coercion can complain and be supported, then legislation alone may be ineffective. As was observed in IICSA, many religious settings are less regulated than donkey sanctuaries, and mechanisms to complain about abuses in them are sorely lacking. Assuming that minors are treated as incapable of giving consent, this is a particular issue for vulnerable young adults, whose vulnerability may not be particularly well understood and recognised by the outside world. 

In this respect the Victorian legislation is particularly progressive: it creates a ‘civil response scheme’ within the Victorian Equal Opportunity and Human Rights Commission which has responsibility not only for promoting awareness of the dangers of conversion therapy but for investigating individual violations. As the Commission says, ‘the Act empowers us to consider and respond to reports of change or suppression practices from any person, as well as launch investigations and enforce outcomes where there is evidence of serious or systemic change or suppression practices.’ The UK government’s proposals on banning conversion therapy talked vaguely about ‘ensuring that statutory services recognise the problem and act’, but offered little practical detail about how that might be achieved, especially given that statutory services such as police and local authorities are already underfunded and overwhelmed. 

Unless we address the question of enforcement, any ban on conversion therapy may bring insufficient benefit to its victims. Legislation against conversion therapy in religious settings is fully justified. But in terms of helping victims it can only be a starting point, not the end of the matter. 

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In 2017, after hearing years of evidence about the covering up of abuse in the Catholic church, the Commission proposed that priests should be legally required to report knowledge of child abuse to the statutory authorities. In particular, the Commission recommended that this reporting obligation should cover information obtained by a priest in the course of sacramental confession.

In the Catholic Church, the seal of the confessional places an absolute duty on priests not to disclose anything they hear from a penitent during the formal sacrament of penance. In church law, a priest who breaks that seal will automatically be excommunicated. So the mandatory reporting recommended by the Commission, and now being implemented in Australia, overrides what the Catholic Church regards as the inviolable seal of the confessional.  

This is necessary, the Commission concluded, because of the ways in which the confessional has been used to protect and facilitate the abuse of children. This is something evidenced not only in the Commission’s hearings but in other studies; see for example The Dark Box: A Secret History of the Confession by the Catholic writer John Cornwell. 

In the Archbishop’s view, however, this proposal amounted to an improper ‘attempt to renegotiate the church/state relationship’. Catholic priests, he maintained, would go to prison rather than comply with the law. When the Irish parliament legislated for mandatory reporting in 2012, with no confessional exemption, the Irish Catholic Church responded in a similar vein, advising priests to break the law.   

The controversy over the seal of the confessional in clerical sex abuse cases has become something of a flashpoint for competing views of the relationship between church and state, and of the extent to which the state is entitled to limit the freedom of religion to protect children from abuse.

Controversies about religious freedom have doubtless existed as long as religion itself. But the abuse scandals which have overwhelmed many religious groups raise the question of religious freedom in a new way. Churches have shown themselves to be poor at protecting children, often concealing scandals and prioritising the protection of their own reputations. Given that churches seem to be incapable of self-policing, how far should the state intervene in religious settings to protect children who may be at risk? How is any intervention to be balanced against the right to religious freedom? 

The fact that this is a relatively new controversy is not surprising. Child abuse has been happening in religious organisations for much longer than those organisations have admitted. But the exposure of abuse is much more recent. For instance, the worldwide clerical sex abuse scandal in the Catholic Church has only really been publicly visible since the 1980s. And the notion that children have rights to be protected against abuse is relatively recent too: the first child protection laws started to reach the statute book in the UK only in the late nineteenth century, and most date from the 1960s onwards. Certainly, the world’s monotheistic religions came into being hundreds if not thousands of years before anyone gave much thought to the rights of children.

In the debate about child protection versus religious freedom, the controversy over the seal of the confessional is just one source of friction; there are likely to be others. This became apparent in 2020, during hearings at the Independent Inquiry into Child Sexual Abuse in England and Wales (IICSA), which examined child protection in religious settings.

It was clear from those hearings that when it comes to safeguarding, children are at risk in many religious settings, but that these settings are also amongst the least regulated by the state. As one lawyer in IICSA observed, religious settings are ‘less regulated than donkey sanctuaries.’ State intervention to protect children might involve mandatory reporting, so that any instance of suspected abuse would be passed to the statutory authorities for investigation. It might also involve greater state oversight of religious bodies: inspection and regulation to ensure that child safeguarding rules are adhered to.

However, in order to regulate a setting, with the aim of protecting children within it, a regulatory body like Ofsted or a local authority has to know that such a setting exists. In practice, this could probably only be done through a registration requirement – with the law stipulating that any religious activity involving children must be registered with a regulatory body.

For the Evangelical Alliance, which represents thousands of evangelical Christian churches across the UK, such a registration system could be ‘deeply problematic’ because it could become a ‘de facto requirement to register with the state to practice one’s faith’ and therefore raise ‘human rights concerns’. So for some religious groups, even the idea that the state has a right to know who is engaging in organised worship, let alone take any action based on that knowledge, could be an intrusion too far. 

How should tensions between child safeguarding and religious freedom be negotiated?  Most countries have some type of legal framework which seeks to protect religious freedom but also recognises that it cannot be absolute, and can be limited to protect others. An overarching document in international law is the International Covenant on Civil and Political Rights (ICCPR), a multilateral treaty which came into force in 1976. Currently ratified by 173 states, it commits parties to respect the civil and political rights of individuals, including freedom of religion.

Article 18 of the ICCPR stipulates that ‘Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.’ 

The ICCPR, however, goes on to set out the circumstances in which religious freedom may be restricted: ‘Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.’ Identical language appears in article 9 of the European Convention on Human Rights, which also forms part of UK domestic law via the Human Rights Act. 

In the ICCPR formulation, therefore, religious freedom is not an absolute right: it can be abridged in specified circumstances and where ‘necessary’. It is indisputable that protecting public safety, order, health and morals will include protecting children from abuse. The issue then is whether any particular measure is ‘necessary’ in order to do so. In some circumstances this might involve asking whether children can be sufficiently protected without the measure, or whether another measure, less restrictive of religious freedom, could be used to secure the same end.

On the issue of the seal of the confessional, the Australian Royal Commission conducted its own balancing exercise. It concluded that ‘the importance of protecting children from child sexual abuse means that there should be no exemption from the failure to report offence for clergy in relation to information disclosed in or in connection with a religious confession.’ The Australian public, through their elected representatives, have endorsed that conclusion. This is unsurprising: the scale of the Catholic abuse scandal in Australia, with the Commission identifying over 4000 perpetrators, justifies a comprehensive, unconditional reporting requirement with no religious ‘get-out’ clause. 

Some countries also have their own legal provisions relevant to adjudicating these issues. The First Amendmenthttps://constitution.congress.gov/constitution/amendment-1/ to the United States Constitution begins with the words: ‘Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof.’ The second part of that sentence, known as the ‘Free Exercise Clause’, seeks to keep government out of worship and the internal operations of religious institutions. On the face of it, the wording of the Free Exercise Clause appears to prohibit Congress from passing any law which could interfere with the free exercise of religion, even if such a law were necessary to protect children. 

But again, inevitably, free exercise must be a qualified right. In 1879, the US Supreme Court had to decide whether the Free Exercise Clause permitted Mormons to engage in the practice of polygamy, which had become unlawful in the US in 1862. The Court held, unanimously, that the Clause did not prevent Congress from prohibiting polygamy. The Chief Justice explained in his judgement that the Free Exercise Clause deprived Congress ‘of all legislative power over mere opinion’ but left the legislature free to prohibit activities which were ‘in violation of social duties or subversive of good order’. Although laws ‘cannot interfere with mere religious belief and opinion, they may with practices’. To permit polygamy, the Chief Justice concluded, would be to ‘make the professed doctrines of religious belief superior to the law of the land, and in effect permit every citizen to become a law unto himself.’ So whilst religious belief could never be regulated, religious conduct could be. 

In fact, that interpretation of the Free Exercise clause – belief protected, but conduct not – was not entirely sustainable. The clause self evidently protects the ‘exercise’ of religion, not just the right to hold a belief. Religious freedom would be hollow if people were allowed to proclaim their belief, but prohibited from the physical activities associated with it, such as worshipping in a church, wearing religious garb, eating a restricted diet, or wearing a turban. 

In a 1990 case, the US Supreme Court decided that whilst the Free Exercise Clause protects both religious beliefs and the physical practices flowing from them, it does not allow a person to use a religious belief as a reason not to obey ‘a neutral law of general applicability’ – a law being ‘neutral’ when it is not motivated by an animus towards religion. Religious beliefs, in this formula, cannot excuse people from complying with laws of general applicability which, for example, forbid polygamy, prohibit child labour, compel payment of taxes and the like. Courts will strive to avoid interfering in the internal operations of religious institutions with respect to doctrine and worship but ‘free exercise’ cannot be used to evade duly enacted laws, especially where religious activity can harm others. 

With the growth of Christian nationalism in the USA, even this essentially reasonable formula has proved to be controversial with both American legislators and the more conservative Supreme Court of recent decades, which has tilted back to a more accommodationist approach to religious interests. But the basic proposition, that religion cannot be an excuse to evade laws designed to protect the public at large, is a useful conceptual starting point for analysing the balance between religious freedom and the protection of children from abuse. Applied to the confessional controversy, for example, it might suggest that the Catholic church should not enjoy exemptions from mandatory reporting laws which have not been permitted to secular organisations.   

The general issue of religious freedom and its limitations has been much picked over by the courts in many countries. Despite this, the specific conflict between religious freedom and protecting children from abuse is a relatively under-litigated area, probably because recognition of the possible conflict is so recent. The issue may come before the courts more often as governments respond to the welter of evidence about the abuse of children in religious settings.

From the IICSA hearings it is apparent that some religious groups are making a sustained effort to improve safeguarding, and recognise that the state has an important role to play inoversight and improving standards. But many other such groups, particularly the more fundamentalist ones, are unwilling to engage seriously in this debate at all.

In a free society, it is right to protect the freedom to worship, and it is right to be cautious about interfering with it. But given the overwhelming evidence that some religious settings have caused serious harm to children, it is also legitimate for the state to take measures to protect children in those settings. Refusal to countenance registration of religious bodies would deprive the state of any ability to perform a regulatory function. Yet many other organisations are registered and regulated for child safeguarding purposes: to demand exemption is to demand a privilege accorded to few other parts of civil society. To reject meaningful reform in this area is not a sensible or sustainable response. 

Archbishop Coleridge’s claim that governments are now seeking to intervene in religious life in new ways may be true – but misses the point. It is true simply because it is only in recent years that the full extent of clerical sex abuse has become visible. Interventions like mandatory reporting are warranted because children in many religious settings have been exposed to appalling abuse. The state has a duty to protect children. A hysterical rejection of action taken to do so using the pretext of religious freedom is surely unjustified and self-serving.

As I argued before IICSA in the hearings in 2020, ‘there are few rights and freedoms more important than the right of children to be free from sexual abuse.’ Rather than calling on their own priests to break the law – a law designed to provide the protection to children that the Catholic Church has itself been unable to provide – the Catholic hierarchy might do better to engage in a more considered discussion about how the right outcomes can be achieved. 

In any free society the balance between religious freedom and other priorities is quite rightly a subject for vigorous debate, but when the Catholic Church and other religious groups demand privileged treatment and exemption from ‘laws of general applicability’, governments should not hesitate to put children first. 

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