Conversion therapy, the practice of attempting to ‘cure’ LGBTIQ+ people by changing their sexual orientation, has been a hot topic lately. Society longs for a judicial solution to put a stop to this phenomenon. However, an adequate law seems to be years away. Therefore, the question arises whether or not the fighting against conversion therapy can be based on already existing Dutch laws. Jitske Verhagen, alumna of Erasmus School of Law, and Liselotte Postma, Associate Professor of Criminal- and Criminal Procedural Law at Erasmus School of Law, researched this topic.
Is a Dutch prohibition within reach?
Research shows that conversion therapy can cause severe consequences. Individuals subjected to the treatment can experience sexual, psychological, religious and emotional issues. Because of these grave consequences, the topic was placed on the political agenda in 2019 through a motion. As a result of this motion, thorough research has been conducted on the nature, scope and consequences of conversion therapy in the Netherlands. In addition, a motion was submitted in 2021 wherein the Dutch government requested a bill banning conversion therapy.
At the time of the research of Postma and Verhagen, a bill did not exist yet. Moreover, there was no indication of whether this would soon be put on the political agenda; the government only requested research on conversion therapy. Verhagen and Postma decided to research the possibilities of fighting conversion therapy based on the current Dutch judicial methods.
International human rights and treaties
Verhagen and Postma: “An appeal to various fundamental rights can result in a plea for the prohibition of conversion therapy.” Some human and fundamental rights protect the victims, whereas others protect the conversion therapists themselves. “Advocates of a legal prohibition of conversion therapy can argue that the therapy violates the right to physical and mental health. (…) However, other rights validate the existence of conversion therapy. For example, parents have the right to decide how to raise their children. They can decide whether a child has to undergo conversion therapy.” Therefore, human rights and fundamental rights do not offer one clear path and make a legal prohibition desirable.
Dutch criminal law
When considering a prohibition based on criminal law, the criteria for a criminal prohibition have to be explored. A few criteria have to be fulfilled to reach a prohibition. One of these criteria is whether conversion therapy is morally reprehensible, which it is. Reprehensibility forms a strong argument against the existence of conversion therapy. However, other criminal criteria prohibit the ban of conversion therapy. Verhagen and Postma describe: “Other criteria contradict a conversion therapy ban. The ultimate-remedy-principal, for example, makes sure that a less invasive manner must be used to limit conversion therapy.”
Our criminal law system already has a criminal offence that could penalise conversion therapy, coercion. For this criminal offence, it is required that someone is (threatened to be) coerced or otherwise illegally forced to (not) do something or tolerate something. When someone is compelled to undergo conversion therapy, this is the case. In addition, Verhagen and Postma mention that current Health Law regulations also offers some instruments to tackle conversion therapy.
Sufficient instruments for action
According to the researchers, the current law offers enough instruments to fight conversion therapy: “We think it is unnecessary to introduce a new law to ban conversion therapy. Our criminal and health law systems are well equipped. In policy, it could be implemented that conversion therapy will be prosecuted through the offence of coercion.”
Proposed legislation
On Monday, 14 February 2022, VVD and D66 decided to introduce a legislative proposal to criminalise conversion therapy. The proposal was supported by PvdA, GroenLinks, SP and Partij voor de Dieren. The initiative will be examined by the Raad van State, after which the Dutch House of Representatives and Senate will look further into this proposal.
