Focus On

Born free and equal: More on conversion therapy | Marvin Zuker

Monday, March 01, 2021 @ 12:48 PM | By Marvin Zuker


Marvin Zuker %>
Marvin Zuker
Part one defined conversion therapy and discussed Bill C-6, An Act to amend the Criminal Code (conversion therapy), which was introduced in the House of Commons on Oct. 1, 2020, (for the definition of “conversion therapy,” see “Born free and equal: Conversion therapy in Canada,” link below). Bill C-6 would prohibit actions aimed at forcing persons from Canada to undergo conversion therapy. Part one also covered the Ontario Human Rights Code and how it addresses the use of pronouns in relation to gender identities.

The Ontario Human Rights Code does not require the use of any particular pronoun or terminology, but the Ontario Human Rights Commission maintains that using the right pronouns can affirm gender identities and challenge discriminatory beliefs. Using the wrong pronouns can “disempower, demean and reinforce exclusion.”  

In accordance with the Ontario Human Rights Code, official student records should reflect a student’s gender identity, preferred name and pronouns as much as possible. Self-identification measure is the measure of our gender identity and not necessarily the gender marker on our legal documentation.

Students have a right to privacy and confidentiality unless a specific accommodation may be needed or requested by the student. If I want to be called by my chosen name, my parents should not be notified unless I agree, regardless of how old I am.

It is important to note that the definition in Bill C-6 may not be specific enough to include intersex individuals. Arguably intersex should be included in the language. “Sexual orientation” and “gender identity” are not accurate descriptors. Advocates for intersex youth refer to “Non-consensual surgical and hormonal interventions on intersex children constitute a form of conversion therapy” and to gross violations of LGBTI persons’ fundamental human rights.

Bill C-6 provides the imperative to protect our youth from the dangerous conduct of interventions intent on changing sexual orientation or gender identity. Each of our self-defined gender identities is integral to our personality and it is one of the most basic aspects of self-determination, dignity and freedom. Everyone has the right to recognition as a person before the law, including those of diverse gender identities. See the Universal Declaration of Human Rights, article 6 and the Convention on the Rights of the Child, art. 8. s. 2 of the UN Convention, as well as our Canadian Charter of Rights and Freedoms, which sets out the right to be free from discrimination because of sex, gender, sexual orientation, gender identity and gender expression.

In 2015, Malta adopted a law prohibiting surgery and medical interventions on the sex characteristics of minors without their consent, becoming the first country in the world to protect the rights of intersex children to bodily integrity in this way. Albania, Brazil, Ecuador, Taiwan and now Germany have criminalized the use of conversion therapy on minors. Canada should be next.

We need to pass Bill C-6 now. The vast majority of conversion therapy practised on children today is done by individuals who are not licensed to provide mental health treatment and therefore out of the reach of government licensure and possibly fraudulent business practices.

Germany’s law prohibits advertising or offering conversion therapy to children up to the age of 18. Parents and guardians who force their children to undergo conversion therapy programs can also be charged. (See “Germany bans gay ‘conversion therapy’ for minors,” Deutsche Welle (May 8, 2020).)

Coming out is the process of identifying and disclosing one’s sexual minority attraction to others, and potentially identifying as lesbian, gay, bisexual, queer, or another nonheterosexual identification (LGBTQ+). Parents play a crucial role in the psychosocial well-being of their children. Sexual minorities often have great fear or anticipate rejection from their parents and worry about their response.

Parental validation is so important. We must make sure that our legislatures take affirmative steps to ensure that all schools understand their obligations to LGBTQ students with a particular focus on transgender students. These students must be treated consistent with their identity. Currently there is no regulation pursuant to the Education Act of Ontario, as an example, that specifically prohibits school personnel from providing or referring students to providers of conversion therapy.

In 2015 the province of Ontario proclaimed Bill 77, An Act to amend the Health Insurance Act and the Regulated Health Professions Act, 1991 regarding efforts to change sexual orientation or gender identity, into law. Regrettably the legislation does not go far enough. For example, the health insurance provisions appear to only relate to “reassignment.” What about counselling or therapies related to gender assignment?

There is no definition of “sexual orientation.” What if the children identify as intersex and choose not to have surgery? Is counselling permitted or covered? The Sex Discrimination Act of Australia makes it unlawful to discriminate against someone because of their sexual orientation, gender identity, or intersex status.”

As Simone de Beauvoir wrote so well, “On ne naît pas femme: on le devient” or “One is not born a woman, it is what one becomes.” (See The second sex, 1949, Harmondsworth, Middlesex, U.K. Penguin Books.) This applies not only to transgender women but as much to cisgender, bisexual and lesbian women, and of course the general proposition to gay men, bisexuals, transgender men, nonbinary persons and queers.

The true mark of any society can often be found in how we treat its most vulnerable members, our children. The words of Gandhi are so true when we think about the vulnerability of a child, a teenager, feeling they were born with the wrong body or a teenager fearful of accepting their homosexuality. We must protect them from any feeling that they are less. Children are humans. Humans have rights. Therefore, children have human rights and they have human rights now because they are human beings now.

In her inaugural poem, “The Hill We Climb,” Amanda Gorman, the American Youth Poet Laureate, writes:

Let the globe, if nothing else, say this is true:/ that even as we grieved, we grew/ That even as we hurt, we hoped/ That even as we tired, we tried/ That we’ll forever be tied together victorious/ Not because we will never again know defeat/ but because we will never again sow division/… / But one thing is certain:/ If we merge mercy with might,/ and might with right,/ then love becomes our legacy/ and change our children’s birthright.

Author’s note: On Feb. 25, the Equality Act (which would amend the U.S. Civil Rights Act of 1964), was passed by the U.S. House of Representatives. H.R. 5 is intended “To prohibit discrimination on the basis of sex, gender identity, and sexual orientation, and for other purposes.”

Congress finds the following: “(7) The discredited practice known as ‘conversion therapy’... harms LGBTQ people by undermining individuals’ sense of worth, increasing suicide ideation and substance abuse, exacerbating family conflict, and contributing to second-class status.”

This is part two of a two-part series. Part one: Born free and equal: Conversion therapy in Canada.

Marvin Zuker was a judge of the Ontario Court of Justice, where he presided over the small claims, family and criminal courts from 1978 until his retirement in 2016. He is associate professor at Ontario Institute for Studies in Education/University of Toronto, where he teaches education law. Zuker is the author and co-author of many books and publications, including The Law is Not for Women and The Law is (Not) for Kids.

Interested in writing for us? To learn more about how you can add your voice to
The Lawyer’s Daily, contact Analysis Editor Yvette Trancoso-Barrett at Yvette.Trancoso-barrett@lexisnexis.ca or call 905-415-5811.