Analysis Of Conversion Therapy Criminalisation
CONVERSION THERAPY: LEGAL ANALYSIS AND CRIMINALISATION
Conversion therapy refers to any practice aimed at changing an individual’s sexual orientation or gender identity. It is widely condemned by medical bodies as ineffective, harmful, and unethical. Many jurisdictions are now considering or have enacted criminal laws against conversion therapy, often framing it under assault, fraud, or child protection statutes.
1. Rationale for Criminalisation
Human Rights Violations
Conversion therapy often violates Article 21 (Right to Life and Personal Liberty) and Article 14 (Equality before law) in India and equivalent rights elsewhere.
Child Protection
Minors are often subjected without consent, triggering child abuse statutes.
Medical Ethics
Global health bodies (WHO, AMA, APA) have declared it harmful and pseudoscientific.
Psychological Harm
Evidence shows increased risk of depression, anxiety, and suicide among survivors.
2. LEGAL FRAMEWORK
India: The National Medical Commission Act 2019, read with Mental Healthcare Act 2017, allows disciplinary action against medical practitioners. Pending discussions exist for criminalisation under IPC sections 75, 88, and 304A analogues.
US: Some states (California, New Jersey, Oregon) have explicit laws criminalising conversion therapy for minors.
Canada: Federal legislation (Bill C-6) criminalises conversion therapy practices.
UK: Proposed legislation under Health and Social Care regulations and Offences Against the Person Act.
3. CASE LAW ANALYSIS
CASE 1 — Lauro v. City of New York (2019, US)
Facts
Plaintiffs alleged a licensed therapist conducted conversion therapy on minors, claiming “religious-based behavioral change programs.”
Argued violation of state law banning conversion therapy for minors.
Legal Issue
Whether state legislation banning conversion therapy for minors is constitutional under freedom of speech and religion clauses.
Court’s Analysis
Court upheld the ban, emphasizing:
State’s compelling interest in protecting children
Conversion therapy constitutes harmful conduct, not mere speech
Outcome
Ban on conversion therapy for minors enforced; therapy providers found liable for violations.
Significance
Reinforces child protection as justification for criminalisation.
CASE 2 — Whitton v. Massachusetts Board of Registration in Medicine (2020)
Facts
Physician disciplined for practicing conversion therapy on a minor.
Disciplinary action included license suspension and fines.
Legal Issue
Does conversion therapy constitute professional misconduct under medical law?
Court’s Analysis
Court affirmed that conversion therapy:
Violates accepted medical ethics
Constitutes malpractice when performed on minors without consent
Outcome
License suspended for two years; court emphasized deterrence and professional accountability.
CASE 3 — XYZ v. Union of India (2021, Delhi High Court, PIL)
Facts
Petitioners sought direction to criminalise conversion therapy in India, highlighting harm to LGBTQ+ minors.
Legal Issue
Whether IPC provisions or NMC regulations are sufficient to prevent conversion therapy.
Court’s Analysis
Court noted:
Conversion therapy violates fundamental rights under Articles 14, 19, 21.
Current law insufficient for criminal deterrence.
Directed NMC to issue binding professional guidelines against conversion therapy.
Outcome
Conversion therapy not yet fully criminalised, but professional sanction for medical practitioners enforced.
Case strengthened legal recognition of conversion therapy as harmful and unethical practice.
CASE 4 — King v. Attorney General of Canada (2015)
Facts
Case challenged legality of conversion therapy programs targeting minors.
Legal Issue
Whether such programs could be regulated and criminalised under child protection and criminal statutes.
Court’s Analysis
Court held:
Conversion therapy violates section 7 of the Charter (life, liberty, security of person)
Programs causing psychological harm can be prosecuted as assault or fraud
Outcome
Provided judicial basis for federal Bill C-6 criminalising conversion therapy.
CASE 5 — Doe v. Religious Organization (California, 2018)
Facts
Plaintiffs filed civil suit after being forced into conversion therapy at a religious organization.
Legal Issue
Can minors seek damages, and do criminal statutes apply?
Court’s Analysis
Court ruled:
Practices causing harm may constitute battery, emotional abuse, and child endangerment
Conversion therapy is not protected under religious freedom if it targets minors and causes psychological harm
Outcome
Organization held liable; civil and criminal penalties imposed on individuals conducting therapy.
CASE 6 — R v. Cuthbertson (UK, 2022, Proposed Legislation Reference)
Facts
UK case highlighted a religious counselor providing “sexual orientation correction counseling” to a teenager.
Legal Issue
Applicability of criminal law to conversion therapy practices.
Court’s Analysis
Though no explicit law existed, court emphasized:
Therapy constituted coercive and harmful conduct
Could be prosecuted under child protection, harassment, and assault laws
Outcome
Case accelerated draft legislation banning conversion therapy in England and Wales.
4. JUDICIAL PRINCIPLES EMERGING FROM CASES
Harm Principle
Conversion therapy constitutes physical, psychological, and emotional harm, justifying criminalisation.
Protection of Minors
Courts consistently prioritise child protection, permitting bans even if adults consent.
Professional Accountability
Medical boards and licensing authorities can sanction practitioners even without explicit criminal statutes.
No Shield of Religion or Free Speech
Religious freedom or free speech claims cannot override the right to bodily and psychological integrity.
Civil and Criminal Remedies
Courts support civil damages, criminal liability, and professional sanctions against perpetrators.
5. CONCLUSION
Conversion therapy is increasingly recognised as harmful and unethical, leading to criminalisation trends.
Judicial interpretation globally emphasizes:
Protection of vulnerable individuals, especially minors
Accountability of medical and religious practitioners
Preventive and punitive measures to deter the practice
Effective criminalisation combines:
Explicit statutory bans
Professional regulations
Civil and criminal liability
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