This weekend’s controversy is all about “conversion”. It must have been the proximity of the feast of Saint Paul.
Just to put you in the bigger picture the government published on the 15th of December a draft law that aims “to prohibit conversion therapy as a deceptive act or practice against a person’s sexual orientation, gender identity and, or gender expression”. The publication through the Ministry of Social Dialogue was intended to allow public consultation on the matter. Feedback from interested parties was possible until the deadline of the 15th of January this year.
Towards the end of last week, the Church in Malta published its position paper on the matter. I shall refer to this as the Church Report. The report was drafted by a group of professionals who specialise in law and psychology and was underwritten by the Church to the extent that it is a “position paper” – as in the position that the church was taking with regards to the proposed Bill.
I mentioned controversy. There’s a barrow-load of it. It comes in the form of the reactions to the church’s legitimate position. When I say legitimate I mean that the church has every right to state its position on an issue just like any other social actor and NGO. Of course in a world that has inherited all the paranoias of anticlericalism the temptation to switch to church-bashing statements over and above the levels of normal discourse is high. It gets even higher when said church-bashing is still huge vote-drawing potential. Prime Minister Joseph Muscat had a field day on Sunday turning the church into a huge conservative monster purely on a very superficial reading of the report.
In actual fact, beyond the rhetoric and facile tribal campanilism to which we tend to resort in this country whenever anything needs to be “debated” the first thing that should be noted is that were it not for the Church Report we would not be having any form of debate on this issue. As I said earlier the church has as much of a legitimate social role as a “value-former” and “value-lobby” as any other sum of parts representing a particular interest. Notwithstanding all the liberal upturning of noses at anything the curia might say the matter of fact is that the church and what it represents is still very much part of our social fabric.
All of that does not make the church right about everything it says. One would expect dialogue to involve a heavy dose of analysis, information and application of logic. Sadly the participants in our consultative mechanisms rarely play ball – and we are not alone in this matter… just take a look at what is going on across the sea in Italy on certain other social legislation.
One could, with a huge amount of goodwill and patience, try to analyse what is going on with a modicum of objectivity far from the need of vote-winning and journalistic sensationalism. Here goes.
A Bill to prohibit conversion therapy
As laws go this is a very very specific law. The proposed bill has a clear aim – to prohibit conversion therapy as a deceptive act or practice against a person’s sexual orientation, gender identity and, or gender expression. That is the reason why we are here talking about all this. Before looking into this particular act we have to look at a related act – Chapter 540 of the laws of Malta, the Gender Identity, Gender Expression and Sex Characteristics Act.
That law, that I shall call Cap 540 in short, was enacted in April last year. It is already a law. It is the law that defines the terms “gender expression” and “gender identity”. Unlike the draft Bill it did not include a definition of “sexual orientation”. For the purposes of this discussion, Cap 540 includes three very important articles:
- Article 13 makes sure that equality is promoted and that no norm, regulation or procedure violates the right to gender identity.
- Article 14 guarantees the right to bodily integrity and physical autonomy – particular in the context of sex assignment treatment (which is NOT, for the record, “conversion therapy”).
- Article 15 is very important in terms of the new bill. It ensures that “All persons seeking psychosocial counselling, support and medical interventions relating to sex or gender should be given expert sensitive and individually tailored support by psychologists and medical practitioners or peer counselling. Such support should extend from the date of diagnosis or self-referral for as long as necessary.
That last article seems to have been completely overlooked by the drafters of the Church position paper since on repeated occasions they seem to imply that the very counselling and support that is protected by Cap 540, article 15 would be rendered illegal by the draft bill (as interpreted by them).
Back to the laws for now though. Let us see what the bill does. In order, the bill (1) defines “conversion therapy”, (2) renders the practice of conversion therapy illegal (3) makes anyone guilty of the practice/advertisement of conversion therapy criminally liable.
The important definition here is that of “conversion therapy”:
“conversion therapy” means treatment that aims to change, repress and, or eliminate a person’s sexual orientation, gender identity and, or gender expression. Provided that any counselling related to the exploration of one’s identity with regard to any of the characteristics being affirmed by this Act is excluded from this definition.
The biggest problem that is faced by the legislator here is the definition of what will be illegal. From a legal point of view it is the crux of the matter. On a policy point of view it is clear that what was set out to be achieved is the practice of “converting” someone from one sexual orientation (&c) to another. Such a practice is abominable in any modern society but alas still practiced as we have seen in the activities of Pastor Manche’. When strictly defined, that practice assumes that the orientation from which conversion is required is an abomination in itself – a sickness, a sin (whatever tickles their fancy and creed).
You will note that the mere fact of having reached the point of requiring “conversion therapy” in the Manche’ sense of the term is already a violation of article 3 under Cap 540 although at that stage there is no criminal consequence (which is why the need for the Bill).
The difficulty faced by the legislator is evidenced in the proviso to the definition. It is also the constant bee buzzing in the head of the drafters of the church report though they fail to put their finger on it since they embark on a series of pre-judged non-sequiturs.
In my opinion, the main problem here is that the definition that is really required is a technical one. This is less a matter of lawyers and more a matter of psychologists and counsellors. In actual fact the debate should be taking place among the community of psychosocial therapists and counsellors who surely already have structures in place that allow them to distinguish between accepted therapies and snake-oil vendors.
Bear with me. What I am saying is that if, for the sake of argument, we were to look at a different stigmatised social group – the infamous left-handers. Granted it is not psychologists but teachers who might have been using unorthodox therapies for a very very long time in our history. Tying their left devil’s hand behind the back of an offending left hander was an accepted “therapy” for a long long time. Beatings might ensue (very acceptably in the early 19th century if not later) should the offender persist in his evil left-handed ways. I am quite sure that a teacher applying these “therapies” in this day and age would fast lose his or her license to practise (as for the beatings they bear more criminal consequences for obvious reasons). Strangely enough we do not have a bill on “the prohibition of therapies to convert left-handers to the right and righteous way”. Which is weird because the law would lend itself to much clearer lines of definition.
Back to our bill. The biggest shortcoming of this bill is, as I said, the difficulty it faces in defining what is and what is not conversion therapy. This is not to say that the bill is not necessary – particularly given that we have had instances of the practice that one is attempting to prohibit in our country and recently too. The problem might lie in making sure that the prohibition does not end up catching other areas that have nothing to do with “conversion therapy” but that might be caught in the same net.
This is what happened to the church report. It set off to explore all the alternative possibilities that, in the opinion of the drafters of the report (NOT MINE), might be caught up in the net of prohibition.
I’ll begin by saying that apart from ignoring the guarantees of Article 15 Cap 540 when it comes to counselling and assistance, the church report does have a tendency to build arguments based on a false or untrue premise. A clear example of this is the assertion in point one that states “An analysis of the provisions of the bill, however, shows that everyone in practice will be hindered from having free access to professional guidance, advice and any other therapeutic help that may be appropriate with respect to one’s sexual orientation, gender identity and gender expression”.
The drafters tried to hinge on the difficulty of drawing a line of when counselling becomes therapy to convert and run with this nuance to reach two very wobbly conclusions:
- (point 5 para 3) In practice, nobody will be in a position to exercise freely the right to treat one’s sexual orientation, gender identity and gender expression. In other words, everyone would be incapable to receive the treatment one may want to have after consultation with a professional person.
- (point 7 para 3) The State should respect the legitimate boundaries of individual freedom. It should only seek to ensure that the practices in matters relating to gender identity are undergone freely and that, as in any other therapy, they are not harmful to the person undergoing them.
There seems to be a manifest confusion between counselling and support that is protected by law and that should be offered to persons respect to their sexual orientation, gender identity and expression on the one hand and the outright practise of conversion therapy and what it ultimately means.
This is a recurring confusion and is partially based on the problem that the report nowhere condemns outright the practice of “conversion therapy”. The closest we get to a consideration of what “conversion therapy” could mean to the drafters is the point where they criticise what type of counselling would be allowed.
“(point 3 of the report) … counselling will be allowed in so far as it can help exploring one’s sexual identity but it can proceed no further, even if it can actually assist in affirming one’s sexual orientation, gender identity and gender expression through appropriate forms of therapy”.
Now this is very very interesting. The trojan horse in this sentence is the “appropriate forms of therapy”. What would a psychologist do when faced with a person having qualms about his sexual orientation or gender expression? Remember my point about accepted practice? I assume (with no scientific knowledge whatsoever) that a regular psychologist would inform the client that his qualms are normal and that there is no question of his being “diseased etc”. Beyond that? Is the church redefining conversion therapy by saying that one can be brought to “affirm” one’s orientation etc through “appropriate forms of therapy”? Appropriate according to who?
As you can see it all risks turning into a vicious circle of nonsense. The critical discourse of the bill should focus on what exactly is being prohibited, how to define it and how to define the consequences of the prohibition. As far as I can see the major problem lies in the definition itself. Personally I would be for the soft-law approach involving the psychologists’ register, accepted practices and criminal consequences for professional malpractice.
There are other issues in the Bill I could discuss such as the automatic assumption that 18 is the threshold for “vulnerability”. Why not 16 as seems to be the trend nowadays?
A badly framed law is only fodder for literal minded bigots, witch-hunting liberals and ill-informed voters. I’d apologise for the heavy wording but I’ve frankly had it up to here with political correctness.
As for the church report, I strongly commend the church and its leaders for their continuous involvement in social discourse. I do not find the report they commissioned to be very fair when it comes to input – to be honest I found parts of it to be willingly deceitful in order to make a point that does not really exist. The absence of an outright condemnation of the concept of conversion therapy sticks out like a sore thumb in the whole report.
In a way it is the same kind of straw man arguments that were later fabricated by the likes of Joseph Muscat, Saviour Balzan (and yes, others) in order to deviate from the real issue. Thankfully for them the drafters of the report slipped up big time by throwing in non-sequiturs about paedophilia – which is what happens when you pussy foot on faulty premises in order to make a case where there is none.
Muscat has a double-whammy bonus on this one. Firstly he will once again seem to be the paladin of social rights especially among the LGBTQ community who are really only another vote-farm as far as he is concerned. Secondly, he has managed to jump onto yet another opportunity to do some prime church-bashing and denigrate Archbishop Scicluna who was shaping up to be another difficult intellectual adversary on other political themes including the environment.
Hopefully with a bit of fine-tuning the bill on conversion therapy will go ahead. What we do not need is these side-shows that add nothing to the value of social and political discussion.
Addendum: Mark-Anthony Falzon told me he had written about this subject some time ao. He sent me the link. I love his reasoning (for a change) and I think you should read it too… Curious Case of Gay Conversion Therapy.