by Jeffrey Wang
On June 21, 2019, the Federal government announced its intentions to criminalize conversion therapy in a letter to provincial premiers. While this is undoubtedly a positive step for LGBT+ rights, the constitutionality of this ban has been questioned.
Conversion Therapy
Conversion therapy can be defined as any practice that claims to change a person’s sexual orientation or gender identity/expression. The practice can take the form of psychological, medical, religious, or other type of intervention. Every major health organization has denounced conversion therapy. The Canadian Psychological Association (CPA), for example, released a policy statement in 2015 discrediting the efficacy of conversion therapy and recognizing its negative outcomes such as distress, anxiety, depression, negative self-image, difficult sustaining relationship, and sexual dysfunction.
History of Conversion Therapy Bans
In late 2018, Alberta activist Devon Hargreaves began a petition to have Parliament ban conversion therapy for minors. While Parliament agreed that the practice is immoral, the petition was rejected on the basis that the provinces have the primary jurisdiction to regulate health professions. On April 9th, 2019, Senator Serge Joyal proposed Bill S-260, which amends the Criminal Code to ban the advertising of and material benefit from conversion therapy. This follows a similar strategy of banning the ancillary activities surrounding a practice, most notably employed within the new prostitution laws. This bill died on the Senate floor and given the upcoming federal elections, it is unclear if government will draft a new, similar bill.
Within Canada, Ontario, Nova Scotia, and Manitoba have banned the medical practice of conversion therapy for minors. The cities of Vancouver and St Albert (Alberta) have passed by–laws that prohibit businesses from providing conversion therapy to minors.
Potential Constitutionality
Federalism
Although conversion therapy is a health issue, in Canada v PHS the court clarifies that “Parliament…has historic jurisdiction to prohibit medical treatments that are dangerous, or that it perceives as ‘socially undesirable’ behaviour.” It has been agreed upon by professionals that conversion therapy is dangerous and socially undesirable.
Freedom of Expression
Banning conversion therapy may be seen as a s.2(b) Charter violation for professionals who perform conversion therapies. However, it is very likely that the ban would be justified under s.1, especially in light of the scientific consensus that it is dangerous and harmful. The s.1 analysis will likely follow the same path as R v Keegstra, where the expression stemming from conversion therapy will been seen as holding low constitutional status. Although it may not be hate speech, conversion therapy certainly damages the psychological integrity of individuals, as well as harms the broader LGBT+ community.
Freedom of Religion
Some have argued that banning conversion therapy may constitute a s.2(a) Charter violation for those who genuinely believe that their religion mandates them to be heterosexual and for practitioners who perform the therapy as a religious obligation. This argument is unlikely to succeed since there is consensus that conversion therapy is not effective at changing an individual’s sexuality. While some religions may enforce strict heterosexuality, conversion therapy does not make people heterosexual and thus cannot be protected under freedom of religion protections. Even if it is considered a religious right, the conversion therapy ban will likely be justified under s.1 as discussed above.
Life, Liberty and Security
It may be argued that the conversion therapy ban violates a person’s liberty or security interest in seeking psychological treatment, reminiscent of the Morgentaler decision. However, conversion therapy has been medically denounced and indeed creates many negative psychological reactions. Thus, it is unlikely that seeking this dangerous “treatment” will engage liberty or security under s.7.
Alternatively, if Parliament criminalizes ancillary activities around conversion therapy but not conversion therapy itself, this may raise issues relating to the principles of fundamental justice, such as in the Bedford case. However, the ban on conversion therapy clearly does not place those who perform it in danger like with the prostitution laws, so it is unlikely to be overbroad or grossly disproportionate.
International Law
Canada’s international law obligations also support a ban on conversion therapy. Principle 18 of the Yogykarta Principles, a set of principles on the application of international human rights law to sexual minorities, declares that sexual orientation is not to be considered a medical condition. Furthermore, more severe practices of conversion therapy may meet the requirements of torture under the Convention against Torture and International Covenant on Civil and Political Rights.
Conclusion
Overall, the constitutionality of the federal conversion therapy ban will depend on the precise form of the ban. However, medical professionals have reached a consensus on the harms of conversion therapy, a fact that constitutionally justifies its criminalization. It must be recognized that this ban is a huge step in Canada’s protection of LGBT+ identities.
Jeffery Wang is a 2L JD Candidate at the Faculty of Law and is the co-leader of the Asper Centre’s current Refugee and Immigration Law student working group.