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Cause lawyering as a viable alternative to statutes

  • August 01, 2019
  • Florence Ashley

As trans youth have come to the fore of media attention in recent years, therapeutic approaches regarding them have been subject to much controversy. One line of progress has been the interest in prohibiting conversion therapy, which refers to a range of efforts to discourage or change a person’s sexual orientation or gender identity. In 2015, Ontario passed Bill 77 banning the practice, followed by Nova Scotia in 2018. Recently, responding to a petition, the federal government declined to introduce a law criminalising the practices, suggesting that it was more appropriately seen as a matter of provincial jurisdiction—a position I partially agree with due to the blunter nature of criminal law. I have thrown my own Carmen Sandiego-style hat into the ring and dedicated my master’s thesis to laws prohibiting conversion therapy, and writing a model law1 that is being used for advocacy in some provinces.

Given the pressures in favour of legislative measures, I have had the opportunity to meet many a person who seemed to believe that the law provides no protection to those in provinces without a statute on the matter. Although a statute would certainly have many benefits, I suspect that it is not necessary for the prohibition of conversion therapy. In this short article, I will provide a rough sketch of how conversion therapy could be legally sanctioned. I encourage lawyers to consider representing victims of conversion therapy pro bono, as lawsuits bear the promise of discouraging ruthless clinicians.

Professionals cannot do as their heart desires. They have duties, and those duties are much stronger than those of laypersons by virtue of the authority granted by their license. Where they act unethically, recourse may be had either under professional regulations or through a professional liability suit. Both subareas of law set up responsibility around a similar core: professionals must act with competence, with due concern for such factors as the current state of scientific evidence, the dignity of patients, and their best interests. Where this standard is violated, the professional may be disciplined. And when causality and injury are added to the mix, the door to compensation by civil suit is opened. I won’t bore us with the minute differences between disciplinary law and professional liability or their mutual relevance. I will instead focus on the latter for the rest of my analysis.

In professional liability, the golden standard is the reasonable person test—we are talking about torts, after all. The professional must show reasonable care, skill, and judgment. But perhaps most importantly, professional judgment is not reasonable if it is tainted by homophobia or transphobia by virtue of the interpretive function of Charter values. As the Supreme Court explained in R v Tran (2010 SCC 58 at para 34), “it would not be appropriate to ascribe to the ordinary person the characteristic of being homophobic if the accused were the recipient of a homosexual advance.” If homophobia and transphobia cannot be ascribed to the ordinary person, it cannot be ascribed under the much more stringent reasonable professional standard.

Establishing whether conversion therapy amounts to professional negligence requires us to inquire into the existing practices within the profession as well as the available standards of care. Thankfully, trans health has a growing wealth of available documents establishing the (un)ethicality of certain practices. Thus far, I have noted around 48 professional associations2 that have explicitly opposed conversion therapy targeting transgender youth. Among foreign and international associations are the American Academy of Child and Adolescent Psychiatry, American Academy of Pediatrics, American Medical Association, Australian and New Zealand Professional Association for Transgender Health, British Psychological Society, International Federation of Social Workers, Royal College of Psychiatrists, and World Professional Association for Transgender Health (WPATH). At the Canadian level, we find the Canadian Association of Social Workers, Canadian Professional Association for Transgender Health, Canadian Psychiatric Association, College of Registered Psychotherapists of Ontario, Ordre des travailleurs sociaux et thérapeutes conjugaux et familiaux du Québec, and Ordre professionel des sexologues du Québec.

The list is long, and I want to keep it long to highlight just how strong the consensus is among professional bodies that conversion therapies are unethical. We are not here in the presence of a therapeutic approach that has simply fallen out of favour and is no longer among the leading ones. We are here in the presence of an approach that faces an overwhelming consensus that it is unethical and may be harmful. This consensus includes a statement in the WPATH Standards of Care saying:

Treatment aimed at trying to change a person’s gender 8 | LAW MATTERS SUMMER 2019 LGBTQ YOUTH AND THE LAW identity and expression to become more congruent with sex assigned at birth has been attempted in the past without success […], particularly in the long term […]. Such treatment is no longer considered ethical.

Reviewing the vast number of relevant professional guidelines and standards of care, relevant scientific principles, and available scientific evidence is beyond the scope of this paper, and I will only note that the consensus is strengthened by various studies as well as the reclassification of transitude in the DSM-5 and ICD-11. Though even if there were no scientific evidence that conversion therapy leads to worse outcomes, I would argue that it remains unethical insofar as it is anti-egalitarian and fails to be salvaged by better outcomes. Between two choices, equal in outcomes but one of which is dehumanising, a reasonable person would always choose the one that is not dehumanising.

Once it has been established that the usual standards of care have not been respected, we must consider whether conversion therapy is a respectable minority practice in the meaning of ter Neuzen v Korn ([1995] 3 SCR 674). Here, the teachings of R v Tran are useful: would a practice be respectable if it sought to prevent people from being transgender under the belief that it is better to be cisgender and/or that being trans is a mental illness? I think not. To discourage transitude is repugnant to Canadian sensibilities, which have been touched by the Charter’s commitment to equality. (This is perhaps a bit of projecting and wishful thinking on my part.)

Though the sketch I have provided here is rough, I hope it helps readers realise the potential of laws of general application in curtailing conversion therapies. Legislative will is fickle, and though it would be best to have a clear and detailed law such as the one I proposed,3 cause lawyering can provide a viable alternative to statutes. More than four years since the first law prohibiting conversion therapy was passed in Canada, and with only one province having followed suit, it is perhaps time for courts to have a go at it




FLORENCE ASHLEY is a transfeminine jurist and bioethicist. Their master's thesis bears on the laws prohibiting conversion therapy. They frequently contribute to public debate on trans issues and have been published in the University of Toronto's Law Journal, Dalhousie Law Journal, Journal of Medical Ethics, and Clinical Child Psychology and Psychiatry.