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Human rights ‘conversions’

The irrational reactions, including official ones, to the Church’s position paper on ‘conversion therapy’ ironically prove we are truly reliving the infamous Galileo incident. This time the Church is the victim for having resorted to independent and scientific analyses, while the secular government is being led by its nose by blind ideological assertions and condemnations.

It may not have crossed the mind of the paper’s detractors that it in fact raised a number of fundamental human rights concerns, which, if ignored, will give rise to a flawed law open to challenges at the constitutional level.

The most glaring example concerns the breach of every person’s fundamental right, “whatever one’s sex, sexual orientation or gender identity”, in the enjoyment and respect of one’s private life as well as to one’s freedom of conscience.

The threats to freedom of conscience had already been picked by public opinion in the press. In his article in The Sunday Times of Malta entitled ‘Curious case of gay conversion therapy’, columnist Mark Anthony Falzon stated: “The argument that people are free to choose if and only if they make the right choices (as defined by whoever) is quite frankly fascist.”

He intimated that “what would be even more oppressive of one’s civil rights is if the State purports to enter into the personal, philosophical or why one would want to undergo such therapy”.

Therefore, the Bill subject to public consultation vaguely de-fines “conversion therapy” as a “treatment that aims to change, repress and or eliminate a person’s sexual orientation, gender identity and, or, gender expression”.

The paper remarked that the blanket ban on ‘change’, amazingly enough, ran counter to an important law passed by this Parliament legalising “change” of one’s gender identity.

Perhaps for some, the therapy they require is to convert to a proper understanding of human rights

Chapter 540 of the laws of Malta defines “Gender identity” as each person’s internal and individual experience, which may or may not correspond with the sex assigned by birth, including the personal sense of the body (which may involve and/or functions by medical, surgical or other means)”.

The contradiction between the outright exclusion of any therapy affecting one’s personal sexual identity under the new Bill and the liberty to undergo it under the Gender Identity Act is glaring, and the paper just sought to attract the government’s attention to this grave inconsistency, not only with the gender identity law but also with the Constitution.

The right to change one’s gender, sexual orientation and gender identity is a fundamental right, which means by definition that the State, whether it be Parliament, the government or even the judiciary, is forbidden even from considering it, let alone, legislating upon it.

The paper therefore remarked that, instead of an outright prohibition against change, there should be an explicit reference to the ban on specific therapies that may scientifically today seem as out of order without an outright blanket prohibition.

The European Court of Human Rights in Goodwin vs. UK (July 11, 2002) linked indelibly the fundamental human right to change one’s gender with the State’s obligation to recognise in full the post-change consequences of gender change. So a fundamental right brings choice to the individual and the State is obliged to sustain the individual’s right of choice freely undertaken by a person.

Had not lobbies of specific sexual orientation campaigned for the freedom from discrimination as a constitutional fundamental human right?

Have they not realised that such an inclusion means that, by definition, all types of sexual orientation are now constitutionally protected against discrimination?

How can the State allow change of gender and of gender identity of a person and then prohibit the right of change of one’s sexual orientation? The paper asked for clarifications in this delicate field, where contrasting psychology schools vie in opposite directions.

The paper, therefore, called for a proper understanding of how the Bill could affect the rights of specific sexual orientations in the light of the many and diverse psychology schools which differ profoundly one from the other.

Fundamentally, the paper raised the alarm on the State’s meddling with the right to receive professional advice, upon which a person may decide freely how to act.

The Bill defines a professional as “a person who is in possession of an official qualification or warrant to practise as a care worker, counsellor, educator, family therapist, medical practitioner, pathologist, psychologist, psychiatrist, social worker and, or, youth worker”.

These, even if holding a State warrant, face monetary fines and jail up to a year merely for referring “any person to other professionals and, or to any other person to perform conversion therapy”.

So why not go whole hog and permanently disqualify them as practitioners, since a criminal conviction would have that effect?

Why are these ‘professionals’ trusted to distinguish between harmful therapies from useful ones benefiting the patients but, on this matter, it is only the State which decides what the professional advice should be?

The paper wanted this discussed openly and objectively. Yet instead, it is anathema, which reigns over reason and dialogue. Perhaps for some, the therapy they require is to convert to a proper understanding of human rights.

Austin Bencini is a constitutional lawyer.

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