Legalistic. Discriminatory. Confused. Illiberal. Those are the scathing accusations (explicit or strongly implied) made about the Church’s position paper on the draft law to ban conversion therapy. Thing is, the authors of the Church paper have made exactly the same accusations about the Bill.
Clearly, one side, or perhaps both, is spinning the facts. Or, maybe just seeking to convert them into something they cannot be. Who’s right?
Neither side is right all of the time. The Church commission is making some important points. It supports the legislative intent but raises the spectre of dangerous unintended consequences given the Bill’s wording. But it’s also true that the paper’s authors made things unnecessarily difficult for themselves.
The Prime Minister has endorsed the view that the paper is itself homophobic, informed by the idea that homosexuality and bisexuality are disorders. However, when asked how such a paper could therefore have attracted the signatures of Giovanni Bonello (a former judge on the Strasbourg court of human rights), Kevin Aquilina (dean of the Faculty of Laws at the University) and Austin Bencini (head of the Department of Public Law at the University), he replied that they must have been taking a “legalistic” view.
Well, yes. But a legalistic view of the law is a good thing. I believe it’s called a professional view. It’s exactly what the government called for when it invited public discussion of the Bill: contributions that would help tighten or loosen the legal drafting, so that the wording of the law has a neat fit with the legislative intent, while possible loopholes and legal uncertainty are eliminated.
What about the accusation of underlying homophobia? The commission members have indignantly denied that the paper in any place states that homosexuality is a disorder.
True, but some offensive loaded language does creep in. The paper speaks of “the right to treat one’s sexual orientation”, of “a category of people who may find it hard and painful to come to terms with their condition”, and of the “homosexual inclinations of a married bisexual person”.
To speak of “condition” and “inclinations” is to use Joseph Ratzinger’s language in his 1987 letter on the pastoral care of homosexual persons, where homosexuality is bluntly called an objective disorder (although the letter’s flip-flop between ‘condition’ and ‘inclination’ shows some confusion about what kind of ‘disorder’ it is). To use “to treat” with reference to a sexual orientation reinforces the idea of a disorder.
That said, if the position paper’s offensive language had to be replaced – and it can quite easily – nothing inherently homophobic would remain.
Despite the accusation, it’s not true that the paper suggests that homosexuality, as such, can be ‘cured’. It actually endorses the ban on gay conversion therapy.
Nor is there a prejudice against bisexual people as a category. The paper simply mentions, as an example, a married bisexual person who might have difficulty reconciling homosexual desire with his or her marriage vows. It is reading too much into that example to see it as a blanket statement about all bisexuals.
What about the charge that the paper makes an appalling analogy between paedophilia and homosexuality? It doesn’t. But it complicates its life unnecessarily by choosing, as an example, a paedophile attracted to same-sex children. It does this because it gets something else wrong.
A legalistic view of the law is a good thing. I believe it’s called a professional view
The Bill speaks of conversion therapy in a neutral way. Nowhere is it stated that it refers explicitly to gay conversion therapy, even if we all know that, in practice, it is the main target. But the day someone drags me to a clinic, to force me to shift my sexual interest from Angelina Jolie to Brad Pitt (or, at least, to be lavish with both), will be the day when the same law can be used to protect me.
The MGRM is right to say that the position paper is barking up the wrong tree when it says the Bill could be discriminatory against heterosexuals. However, once the law is neutral about all sexual orientations, the Church commission can make its same point in a different way.
To most laymen, sexual orientation simply means straight, bi or gay. In a clinical context, however, ‘sexual orientation’ can be broadened to include what laymen might call perversions but what professional counsellors call by the neutral term ‘paraphilia’ (which includes paedophilia but excludes homosexuality and bisexuality). It is the treatment of paraphilia that the position paper mentions as being possibly made illegal by the Bill in its current form.
Here’s the point: the legal definition of ‘sexual orientation’ in the Bill does not, as worded, exclude some instances of paraphilia. The Bill’s affirmation of the equality of all sexual orientations could thus include paedophilia as an orientation (although not as a sexual act, which is clearly a crime).
That is obviously not the intent of the Bill. But, if we have three leading legal experts suggesting that there is, at the very least, legal uncertainty, then we should pay attention – before professional counsellors become reluctant to take up cases for legal reasons, rather than client welfare.
In other words, legalism enters the fray in the wrong way this time. It doesn’t mean that we should therefore jettison the entire Bill. But it does mean that a way should be found to tighten up the legal definition of ‘sexual orientation’ so that it is distinct from the psychiatric one.
It’s been said that such concerns are baseless because they’re stemming from two confusions. One is that the law is based on recognising people’s inherent sexual orientation and gender identity, not on changing it. The other is that where counselling on personal change is necessary, what the law will forbid is changing someone’s intrinsic identity; but it will permit helping someone change their behaviour. The Church report doesn’t help itself by talking about psychological gender choices since, as far as we know, this is precisely the area where we have no choice. But beneath the unfortunate formulation lies a valid point.
Counselling involves navigating grey areas. First, there are many cases where the recognition of one’s identity brings about profound personal change. There will be cases where a counsellor helps a client recognise himself or herself (permitted by the Bill) but, as a result, also helps him or her change (an area of legal uncertainty).
Second, counselling operates in a manner (non-judgmental silent listening) where it is easy for the client to have the illusion that the counsellor is encouraging a certain course of action. It happens frequently enough that counsellors might be afraid that they could be blamed for encouraging a course of action not permitted by Bill.
Third, it’s practically impossible to distinguish neatly between ‘gender expression’, as defined by the Bill, and behaviour. The Bill bans counselling that does anything but affirm gender expression; but that could make counsellors reluctant to take on cases that require help with changing behaviour, given the lack of sufficient legal safety.
The Church paper suggests that these problems arise because the law is over-legislating. We could, it says, even end up with an illiberal law because it overrides the choices of adult clients who cannot be realistically described as ‘vulnerable’.
Personally, before I make up my mind about who’s right on the substance, I’d prefer to hear from the professional counselling associations. Are they afraid of the ramifications of the law?
But what’s clear enough, at this stage, is that the Church position paper, while debatable and sometimes ill-considered, is certainly not retrograde.
It’s concerned with protecting rights, not trampling over them.