Conversion Therapy Bans and Legal Paternalism: Justifying State Intervention to Restrict a LGBTQIA+ Individual's Autonomy to Undergo Conversion Therapy
| Author | Claudia Man-Yiu Tam |
| Position | DPhil Law Candidate at the University of Oxford |
| Pages | 1-28 |
2021
LSE LAW REVIEW
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Conversion Therapy Bans and Legal Paternalism:
Justifying State Intervention to Restrict a LGBTQIA+
Individual’s Autonomy to Undergo Conversion Therapy
Claudia Man-Yiu Tam*
ABSTRACT
Conversion therapy is harmful, in effective and lacks scientific and medical justification; yet 2%
of LGBTQIA+ individuals in the UK have undergone it, and a further 5% have been offered
it. This begs the question: why is conversion therapy still not banned in the UK? This article
aims to rebut a common argument employed against conversion therapy bans, that is the right of
LGBTQIA+ individuals to choose to change their sexual orientation or gender identity, put
simply, individual autonomy. Engaging with Gerald Dworkin’s hard paternalism and Joel
Feinberg’s soft paternalism, it posits that conversion therapy bans are a legitimate form of state
interference with an individual’s autonomy, as the decision to undergo such thera py is non-
rational and not voluntary enough. The argument relies on the logics behind existing paternalistic
bans on physician-assisted suicide for persons with disabilities, consensual cannibalism and
healthy limb amp utation to show that a ban on conversion therapy similarly upholds
LGBTQIA+ individuals’ equality and dignity. Ultimately, this article defends the position
that a paternalistic ban on conversion therapy is legally and morally justified, even if the decision
to undergo therapy is consensual.
* DPhil Law Candidate at the University of Oxford. LLM in Human Rights Law (LSE) ’20.
The author would like to thank the LSE Law Review and Professor Kai Möller for their
valuable comments on this piece.
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Conversion Therapy Bans and Legal Paternalism
Vol. VII
INTRODUCTION
Legal paternalism has gone ‘out of fashion’ since its heyday in the 1970s1
but continues to permeate our lives in subtle ways, from mundane seatbelt laws
to the increasingly ‘fashionable’ trend of banning conversion therapy, recently
seen in countries like Germany, Brazil and Taiwan. While states provide multiple
justifications for conversion therapy bans, the crux of the matter often boils down
to protecting lesbian, gay, bisexual, transgender, queer, intersex and asexual
(LGBTQIA+) individuals from its harms even if they have given their consent,
thus clearly being a paternalistic intervention. In this article, paternalism is defined
as an act or omission by A (the state) affecting B (the LGBTQIA+ individual) in
order to protect B from harm without regard to, or in spite of, B’s consent.2
Conversion therapy refers to any therapeutic approach that attempts to bring
about a change of sexual orientation or gender identity.3 Conversely, supporters
of conversion therapy champion the autonomy and self-determination of
LGBTQIA+ individuals, arguing that those who freely choose to redu ce or
remove their homosexual feelings should have the right to do so.4
In May this year, the UK announced legislation to ban the ‘coercive and
abhorrent’ practice of conversion therapy to protect LGBTQIA+ individuals,5
three years after Theresa May pledged to eradicate it in 2018.6 This provides a
timely opportunity to consider whether the state should intervene paternalistically
1 Christophe Salvat, ‘Behavioural Paternalism’ (2014) 15 Revue de Philosophie
Économique 109, 110.
2 Robert Young, ‘John Stuart Mill, Ronald Dworkin, and paternalism’ in C L Ten (ed),
Mill's On Liberty: A Critical Guide (Cambridge University Press 2009) 211.
3 UK Council for Psychotherapy (UKCP), ‘Memorandum of Understanding on
Conversion Therapy in the UK Version 2’ (UK Council for Psychotherapy, October 2017)
<https://www.psychotherapy.org.uk/media/cptnc5qm/mou2-reva_0421_web.pdf>
accessed 14 August 2021, 2.
4 Core Issues Trust, ‘Help’ (Core Issues Trust) <https://www.core-issues.org/help-we-
offer> accessed 14 August 2021.
5 UK Government, ‘Government sets out plan to ban conversion therapy’ (Gov.UK, 11
May 2021) <https://www.gov.uk/government/news/government-sets-out-plan-to-ban-
conversion-therapy> accessed 2 July 2021.
6 BBC, ‘Calls to ban LGBTQIA+ “conversion therapy” in UK’ BBC (London, 5 June 2020)
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