Whether “Banning the provision of LGBT conversion counseling” is a Distorted and Unconstitutional Legislation?


Presented by: Jurisprudence Research Society

Email: jurisprudenceresearchsociety@gmail.com



Preamble


Regarding legislation of some states or localities banning the provision of LGBT conversion counseling to voluntary help-seekers (adult or minor) who want to leave their LGBT mindset or living, this paper will expound that those legislative premises on which this legislation is based are actually all distorted and incorrect. As for particularly the 2nd and 3rd premises claims, this paper will reveal: 


  1. how these claims obfuscate and distort the “LGBT conversion counseling” which is of UMLCC in goal and essence as being a kind of “sexual-orientation-conversion therapy/counseling” which is of SOCE in goal and essence; 

  2. how these claims leave it vague as to whether the persons receiving the counseling are voluntarily (or being forced or pressured by others) to do so;

  3. how the “research studies” on which these claims are based are highly questionable both in terms of the sampling methods used and the interview questions asked, and also the double standard held in perceiving what is “former LGBT” against what is “former person on other issues”.


As questionable legislative premises will naturally lead to questionable legislation and legislative consequences, this paper will also expound on how this legislation violates Article 1 of the Universal Declaration of Human Rights and Article 26 of the International Covenant on Civil and Political Rights and necessitates litigation to overturn it. And in such litigation, it is crucial to be able to clearly and effectively point out to the court (and the world) that those legislative premises on which the legislation is based are distorted and incorrect. **


** It is worth noting that although in the USA the 11th Circuit Court of Appeals struck down the bans on juvenile gay conversion therapy in South Florida in a 2-1 decision in November 2020 based solely on free speech rights (see the news report for the details), it shall be more secure and appropriate to present full arguments as stated in this article in filing the lawsuit. 


Glossary


The definitions of the terms used in this paper are as follows.


“LGBT” refers to Lesbian, Gay, Bisexual, or Transgender (for the purposes of this paper, Transgender also includes people who have undergone partial or full gender reassignment surgery, i.e. Transsexuals), respectively.


“LGBT mindset or living” refers to homosexual mindset or living, bisexual mindset or living, transgender mindset or living, respectively


  • “Homosexual mindset or living” refers to having the mindset or living of “seeking sexual behavior” with people of the same sex. ── [Note]: Mere having deep affection and close relationship with people of the same sex without a mindset or living of “seeking sexual behavior” does not belong to homo-sexual or bi-sexual.)


  • “Sexual behavior” refers to any intimate contact with sexual connotations (including hugging, kissing, fondling, oral sex, anal sex, etc.).


  • “Transgender mindset or living” refers to resistance or resentment towards one's biological sex, and the use of dressing up, transgender hormones, or gender reassignment surgery to assume the role of the other sex.


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“Orientation” refers to inclination before thinking or conscience filters.


“Mindset” refers to ways of thinking.


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“SOCE” (Sexual Orientation Change Efforts) refers to the act of helping others with the aim of changing their homosexual orientation. ── [Note]: This is a term established by the American Psychological Association (APA) in 2009.


“UMLCC” (Unwanted Mindset or Lifestyle Conversion Counseling) refers to the counseling that helps others with the aim of changing their unwanted mindset or lifestyle. And, should the situation involve the help-seeker having in the past traumatic or hard-taking experiences no matter in the family of origin or elsewhere, necessary psychological and spiritual therapy will also be provided (N.B. this kind of therapy, if applicable to an LGBT help-seeker, is not a kind of the so-called “sexual-orientation-conversion therapy” to which some people deliberately distort it as such) ──【Note】: UMLCC is a term established in this paper to facilitate indicating its difference from SOCE in terms of goal and essence. It is necessary to establish this term because “orientation” and “mindset” are essentially two concepts that need to be distinguished (refer to their definitions above), and “orientation conversion” and “mindset or living conversion” are two different things. Refer to further notes below on the definition of “Conversion Counseling”

“Counseling”, for the purpose of this paper, in short, refers to listening to and understanding the difficulties, backgrounds, feelings, and struggles faced by the help-seeker and the changes he/she wishes he/she could have; and then helping him/her understand what changes are feasible, and according to his/her situation giving him/her the cognitive, psychological, spiritual and relational guidance necessary to him/her. And if the situation involves the help-seeker having in the past traumatic or hard-taking experiences no matter in the family of origin or elsewhere, then necessary psychological and spiritual therapy will also be provided, so that he/she could gain strength to move towards those feasible changes and progress.


“Conversion Counseling” is just a short name for the “Unwanted Mindset or Lifestyle Conversion Counseling” (UMLCC) mentioned above. The following are further notes. “Conversion counseling” can be applied in a variety of scopes, including the cessation of gambling, smoking, drugs, or pornography; the turning away from certain temperaments, personalities, or mindsets, etc. If it is applied in the scope of LGBT, it means helping LGBT voluntary help-seekers turn away from their unwanted “homosexual mindset or living” or “transgender mindset of living”.  ── 【Important Note for the provision of “conversion counseling” to LGBT】:


  1. The nature of the “conversion counseling” provided to LGBT help-seeker is not drug-based treatment (unless the help-seeker has symptoms such as depression and needs to be given corresponding drugs), nor is it an exorcism, nor is it a “treatment” for achieving body hurt, nor is it a “treatment” for achieving self-esteem hurt, as slandered by some people. It is the counseling that is to listen and talk with love and respect, and this is simply the basic attitude and approach that any professional counselor shall have towards a client. Also, refer to the meaning of “counseling” above.


  1. The “conversion counseling” provided to LGBT help-seekers is aimed to help them turn away from their unwanted “homosexual mindset or living” or “transgender mindset or living”. And, should the situation involve the help-seeker having in the past traumatic or hard-taking experiences no matter in the family of origin or elsewhere, necessary psychological and spiritual therapy will also be provided (N.B. this kind of therapy is not a kind of the so-called “sexual-orientation-conversion therapy” to which some people deliberately distort it as such). In the case of homosexuality, although the person being counseled may perhaps later experience varying degrees of homosexual-orientation change, the homosexual-orientation change per se is not the goal and essence of “conversion counseling” provided to homosexual help-seekers. The goal and essence of “conversion counseling” provided to homosexual help-seekers are not SOCE-based, but UMLCC-based, and this is what a professional counselor will let the help-seeker know during the first interview. 

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“Former LGBT”, also known as “ex-LGBT, post-LGBT, rainbow crosser”, refers to a person who has comfortably left the mindset and living of LGBT. ──【Important Note】:


  1. A “former homosexual” is not necessarily someone who is no longer tempted by “same-sex sexual behaviors” at all, and a “former transgender” is not necessarily someone who is no longer tempted by “transgender behaviors” at all. The rationale behind this is simple, as (for example) a “former gambler” is not necessarily someone who is no longer tempted by “gambling behavior” at all, but simply someone who no longer continues to be influenced by his/her “gambling inclination”, and has comfortably left his/her gambling mindset and living. Likewise, even though a “former homosexual” or “former transgender” may still be subject to “homosexual temptation” or “transgender temptation” to some extent, he/she no longer continues to be influenced by his or her “homosexual inclination” or “transgender inclination” and has comfortably left his or her homosexual/transgender mindset and living.


  1. Just as same as it is inappropriate and unprofessional to define (for example) “former gambler” as “a person who has been completely immune to the temptation of gambling”, it is inappropriate and unprofessional to define “former homosexual” or “former transgender” as “a person who has been completely immune to the temptation of same-sex sexual behavior” or “a person who has been completely immune to the temptation of transgender behavior”. Yet, certain “professional organizations” are obviously holding double standards in perceiving what is “former homosexual”/“former transgender” and what constitutes a “former gambler” etc., in order to deny, conceal, or vilify the true existence of “former LGBT”.


  1. Even though there are some people who were once “former LGBT” (whether or not he/she has ever been seen as, to some extent, a leading or influential figure amongst some “former LGBTs”）who subsequently returned to the LGBT living, this does not mean that most “former LGBT” have this return, just as (for example) even though some people who were once “former gambler” who subsequently returned to gambling, this does not mean most “former gambler” have this return. This is simply basic logic and cognition. Yet, some “professional organizations” obviously also hold double standards in this regard, in order to deny, conceal, or vilify the true existence of “former LGBT” with faulty generalization. 


Reveal the first distorted premise on which this legislation is based: Any matter not belonging to disease requires no change and should not change


The first premise on which this legislation is based is that any mindset or mentality or behavioral manifestation that does not fall within the definition or the extent of “mental illness” or “mood disorder” is a mindset or mentality or behavioral manifestation that requires no change and should not change.

Putting aside whether homosexual behavior or transgender behavior is to be defined as pathological behavior, mere the statement “any matter not belonging disease requires no change and should not change” is obviously wrong already. Realistically, there are many mindsets or mentalities or behavioral manifestations (e.g. pride, arrogance, vanity, inferiority, shyness, irritability, impatience, greed, gambling, capriciousness, jealousy, etc.) not fall within the definition or the extent of “mental illness” or “mood disorder”, are not mindsets or mentalities or behavioral manifestations that requires no change and should not change.


Reveal the second distorted premise on which this legislation is based: LGBT Conversion Therapy or Counseling is harmful


The second premise on which this legislation is based is that providing Conversion Therapy or Counseling to LGBT is harmful as it will cause depression, anxiety, self-hatred, self-destructive behavior, suicide, or suicidal ideation to those being treated or counseled. The following will reveal how this premise is radically a smearing claim through obscuring, concealing, and distorting certain facts, and how the “research studies” behind it are deeply flawed.


【1】  Firstly, “conversion counseling” can be applied in a variety of scopes, see its definition above. But no matter what scope it is applied to, whether (and to what extent) a person was willing to receive the counseling will make a difference in the outcome (or even counter-effect or consequence) of that counseling. This is just common sense and general knowledge, and this common sense is no exception to the “conversion counseling” provided to LGBT. Thus, if obscuring/concealing/false telling whether the LGBT receiving the “conversion counseling” was voluntary to do so or not, and then alleging that its provision to LGBT is harmful, such allegation will not only be unjust and dishonest but will also exhibit its incompatibility with the realistic scenarios. ─── 


  1. Because should an LGBT be voluntary in receiving the “conversion counseling”, then in the real situation, if he/she is not willing to continue the counseling, or even wishes otherwise to seek “affirmative counseling”, he/she is definitely able to do so easily at any time because he/she is not being forced or pressured by others to receive the conversion counseling. As being so, how could he/she fall into depression, anxiety, self-hatred, self-destructive behavior, suicide, or suicidal ideation as a result of voluntarily receiving or having received LGBT conversion counseling? 


(b) What's more, he/she should be completely free to change his/her mind at any time just to “deny LGBT conversion counseling” and “affirm oneself” by simply taking the ideologies pervasively promulgated in “the LGBT Pride Movement” and “those films, TV dramas, advertisements, cartoons, articles, books, novels, websites, etc. that beautify LGBT life”, couldn’t he/she? If so, then how could his/her voluntary receiving or having received LGBT conversion counseling lead to his/her depression, anxiety, self-hatred, self-destructive behavior, suicide, or suicidal ideation? 


It could thus be seen that some people are obviously obfuscating, concealing, or falsely telling the fact of whether the counselees are voluntary in receiving the LGBT conversion counseling, and then discredit and vilify the LGBT conversion counseling, otherwise, how could there be such a claim of harm that cannot actually be reasonably explained under realistic circumstances?


【2】  Some of the documents pushing this legislation then explain that “The reason why LGBT conversion therapy or counseling is harmful is that its essence and purpose is to promote the rejection of sexual minorities from same-sex sexual orientation or transgender identity, which will bring about and strengthen their self-exclusion, internalization of stigma, and negative emotions”. What are the problems and loopholes in this "explanation"?


(a) On the one hand, this so-called explanation is obviously obscuring, concealing, and distorting the essence, purpose, and practice of LGBT conversion counseling, refer to the definitions of “counseling” and “conversion counseling” above for detail. 


(b) On the other hand, it is noticeably incompatible with the real scenario because those LGBT help-seekers who voluntarily receive LGBT conversion counseling are themselves seeking help to turn away from their unwanted “homosexual mindset or living” or “transgender mindset or living”. And the counselor is just there to help them according to their wishes. 


(c) As for what if the help-seeker changes his/her conversion wish later, refer to the exposition in【1】above.


【3】   Some of the documents pushing this legislation also explained that “Another reason why LGBT conversion therapy or counseling is harmful is that after receiving therapy or counseling for a period of time, should the help-seeker finds that his/her sexual or transgender orientation has not changed, he/she will have a strong sense of failure, self-doubt, low self-image, and emotional distress.” What are the problems and loopholes in this "explanation"?


(a) First, this so-called explanation is obviously still an explanation obscuring, concealing, and distorting the essence, purpose, and practice of LGBT conversion counseling, refer to the definitions of “counseling” and “conversion counseling” above for detail.


(b) Second, it is just a very far-fetched explanation as if someone were to claim “Conversion therapy or counseling for gamblers is harmful because after receiving therapy or counseling for a period of time, should the help-seeker finds that his/her gambling ‘orientation’ has not changed, he/she will have a strong sense of failure, self-doubt, low self-image, and emotional distress.” It is important to note that “orientation” and “mindset” are two different conceptions (refer to the definitions above). To mix up the two in a saying is to steal and replace the latter notion with the former. Actually, in using a notion-replacement way of saying, many behavioral problems could likewise be distorted and rationalized. 


(c) Third, in terms of the provision of LGBT conversion counseling to LGBT voluntary help-seekers, one who received the counseling with no subsequent change in mindset and living would in real situations often tend to “deny LGBT conversion counseling” rather than “deny oneself”, refer to the exposition in【1】(b) above. This so-called explanation is simply incompatible with facts in realistic scenarios.


【4】  Regarding those states or localities pushing this legislation claiming that they are according to the “research studies” conducted by certain “professional organizations” (or also conducted by their own government) to conclude that providing Conversion Therapy or Counseling to LGBT will cause them “depression, anxiety, self-hatred, self-destructive behavior, suicide, or suicidal ideation”, the following will reveal how these “research studies” and their results are deeply flawed and questionable.


(a) The sampling method of these alleged research studies was firstly to recruit from the “sexual minority community” the LGBT who claimed to have ever received “conversion therapy”, and were willing to be interviewed by the research organization through video calls. And then based on the preliminary information provided by the respondents to the recruitment, the research organization selected some of them for the interview. As for the publicity of the recruitment, it was conducted in the “sexual minority community” through the social media of certain sexual minority groups or organizations, weekly bulletins of some sexual minority religious groups, and flyers for the LGBT Pride events. What great problems inherent in such sampling are that: (i) as very few “former LGBT” (refer to the definition above) would still occasionally contact the social media, publications, or flyers of sexual minority groups or organizations, most of them were unaware of such recruitment for research study; (ii) even if there was “former LGBT” aware of the recruitment and had sent preliminary information to the research team, the research team could still not select him/her (or failed to choose him/her) for the research. 


(b) These alleged research studies seem to have no intention to recruit people who have ever received the kind of LGBT “conversion counseling” stated in the definition above for their interviews, otherwise, they should have no difficulty in finding certain “former LGBTs” who have received that kind of LGBT “conversion counseling” for their interviews through certain organizations. Yet, these reports vaguely describe the LGBT “conversion counseling” which is of UMLCC in goal and essence as being a kind of “sexual-orientation-conversion therapy/counseling” being SOCE in goal and essence. Alleged research studies and reports as such could only be said as pretended research studies and reports designed to obscure and conceal and distort the essence and practice of LGBT conversion counseling, and then erect and beat the straw man.

 

(c) As for the interview questions, it seemed that no question has ever been asked the interviewees as to whether he/she was voluntary (or was forced or pressured by others, and under what kind of pressure) in his/her receiving of the said “conversion therapy of counseling” in the past. As far as the topic of this research is concerned, it is strange that questions in this aspect were not asked, because it would just be common sense and general knowledge that whether or not a person was voluntary in receiving counseling would not be irrelevant to the effectiveness (or even counter-effects or consequences) of it. Given this, could it be that such questions have actually been asked, but the researchers simply did not include such information in the report so as not to influence the conclusion they had to make? 


(d) Besides, given that to recruit and select interviewees from the “LGBT community” which is a community that fundamentally refuses to accept the existence of “former LGBTs” and has to deny them to the world, the comprehensiveness and truthfulness of certain crucial information provided by them in the interview would also be dubious. 


(e) Questionable “research studies” will naturally lead to questionable “research studies results” and questionable “explanations”. As to how obviously the “explanations” made by these research studies are incompatible with facts in realistic scenarios, refer to the exposition in【2】and【3】above.


Reveal the third distorted premise on which this legislation is based: Insufficient evidence to support that LGBT Conversion Therapy or Counseling is effective


The third premise on which this legislation is based is that there is insufficient evidence to support that LGBT Conversion Therapy or Counseling is effective. The following will reveal how this claim exposes its previous claim as untrue, in addition to pointing out that the same ambiguity, concealment, distortion, and smearing are inherent in this claim itself.


【1】  First, by looking at the legislative premises claims “LGBT Conversion Therapy or Counseling is harmful” and “There is insufficient evidence to support that LGBT Conversion Therapy or Counseling is effective” together, the untruthfulness of the former claim could in fact be already alerted and perceived. Because, if the former claim is true, the latter claim shall be completely unnecessary, the seriousness of the former absolutely outweighs and overrides the latter. The latter claim appears to be nothing more than an attempt to use another lie to help cover up the former untrue claim and the underlying pretended research studies that could be discerned by clear-minded people.


【2】  Regarding the legislative premise claim “There is insufficient evidence to support LGBT Conversion Therapy or Counseling to be effective” itself, the same ambiguity, concealment, distortion, and vilification as in the former legislative premise claim are inherent and are listed as follows.


(a) First, in terms of how to obscure, conceal, and distort the goal and essence, and practice of LGBT conversion counseling behind this claim, so as to erect and beat the straw man, the trick is the same as that described in the former claim, refer to the above for details.


(b) Second, in terms of how to obscure and conceal the fact of “whether a person is voluntary or not in receiving the counseling” behind this claim, so as to erect and beat the straw man, the trick is also the same as that described in the former claim, refer to the above for details.


  1. Third, what is the difference between “no evidence” and “insufficient evidence”? Why does this claim not say “no evidence” but say “insufficient evidence”, and what is “sufficient”? Indeed, “no evidence” is not a fact, nor is “insufficient evidence” a fact, but rather a vague term used by some to hide the fact. And, the alleged “research studies” on which this claim is based are just the same as the alleged “research studies” on which the former claim is based, which are found to be deeply flawed in five ways as have been expounded in the above. In reality, it is not difficult to find the testimonies of “former LGBT” (refer to the definition of this term above), and it is also not difficult to find ways on the internet to contact them and invite or recruit them for the interviews, for example:


Sensibly, it would not be difficult to perceive whether the researchers of the alleged research studies were deliberately choosing not to interview “former LGBTs”, or just did not know how to find out and contact them, It would not be difficult also to perceive as to whether the researchers were holding double standards in defining what is “former LGBT” and what is (for example) “former gamblers” etc.    


This legislation violates human rights and is hence unconstitutional 


As has been unveiled in detail above, the three legislative premises claims on which “banning the provision of LGBT conversion counseling” is based are all distorted and incorrect. With all of this, it would be difficult not to make people with clear thinking and discernment perceive that the obvious purpose of this legislation is to obfuscate, distort, and smear LGBT conversion counseling, and then ban it, in order to prevent any more LGBTs from becoming “former LGBTs” and share their life-changing testimonies.


Questionable legislative premises will naturally lead to questionable legislation and questionable legislative consequences. It will show below that this legislation violates human rights and is hence unconstitutional, it is violating both Article 1 of the Universal Declaration of Human Rights and Article 26 of the International Covenant on Civil and Political Rights.


【1】  Article 1 of the Universal Declaration of Human Rights states that “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” 


  1. Under this principle, it is a corollary that everyone who is LGBT shall also be “equal in dignity and rights” – Being so, each LGBT shall have the right to obtain the “conversion counseling” he/she wants to obtain, as well as shall have the right to obtain the “affirmative counseling” he/she wants to obtain. Therefore, any legislation that would indirectly result in the deprivation of the availability and hence the right of any LGBT voluntary help-seeker (at whatever age) to receive the essentially harmless LGBT conversion counseling that he/she wants to obtain is in violation of Article 1 of the Universal Declaration of Human Rights in the aspect of “equal in rights”.


  1. Under this principle, it is also a corollary that all “non-LGBT”, “LGBT”, and “former LGBT” shall also be “equal in dignity” and should act towards one another in a spirit of brotherhood. Any legislation that, in essence, directly or indirectly negates, denies, slanders, or discredits the existence of “former LGBT” (refer to the definition above) is impairing the integrity and dignity of “former LGBT”, and is thus violating Article 1 of the Universal Declaration of Human Rights in the aspect “equal in dignity”. Hence, the legislation “banning the provision of LGBT conversion counseling” is also in violation of Article 1 of the Universal Declaration of Human Rights in this regard.

【2】  Article 26 of the International Covenant on Civil and Political Rights (ICCPR) states that “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall forbid any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” 


  1. Under this principle, it is a corollary that everyone who is LGBT regardless of his/her “political or other opinions” or “other status” (N.B. no matter in whatever state of change in his/her “other status”) shall also be legally and effectively protected by law without discrimination. Any legislation that would indirectly result in the deprivation of the availability and hence the right of any LGBT voluntary help-seekers (at whatever age) to receive the essentially harmless LGBT conversion counseling that they want is actually discriminating against that portion of persons (who are in their state of seeking change) in the LGBT population (by preventing them from receiving the psychological and spiritual and sexual health care counseling and protection that they seek for and may work for them), and is thus violating Article 26 of the ICCPR.in the aspect of “guarantee to all persons equal and effective protection against discrimination on any ground including one’s ‘other opinion/other status/state of other status’ ”. Hence, the legislation “banning the provision of LGBT conversion counseling” is in violation of Article 26 of the ICCPR in this regard.


  1. Under this principle, it is also a corollary that, as far as “other status” is concerned, any legislation that, in essence, directly or indirectly negates, denies, slanders, or discredits the existence of “former LGBT” (refer to the definition above) is, in fact, making discrimination, contempt, rejection, suppression, and hatred against them for their status of “former LGBT”. This is to hurt them, rather than to protect them, and is thus violating Article 26 of the ICCPR in the aspect of “guarantee to all persons equal and effective protection against discrimination on any ground including one’s ‘other status’ ”. Hence, the legislation “banning the provision of LGBT conversion counseling” is also in violation of Article 26 of the ICCPR in this regard. 


【3】  What about the legislation which only forbids the provision of LGBT conversion counseling to LGBT voluntary help-seekers who are minors? In fact, such a way of legislation is still based on the three fundamentally distorted and incorrect legislative premises claims. What is added to such legislation is an implicit legislative premise which is that “there should have no LGBT minor who wants to leave the mindset or living of LGBT”. This implied premise is distorted and incorrect too, as in reality both LGBT minors and adults would want to leave the mindset or living of LGBT in which they feel disturbance, and both could have easy access to the real persons’ life-changing testimonies of “former LGBTs” on the internet. Besides, should LGBT conversion counseling be really harmful, its provision should be forbidden to any LGBT voluntary help-seeker no matter who is a minor or an adult. If so, why does the legislation not also forbid its provision to LGBT voluntary help-seekers who are adults? 


Questionable legislative premises will, of course, lead to questionable legislation and legislative consequences. The legislation that mere forbidding the provision of LGBT conversion counseling to voluntary help-seekers who are minors is obviously still violating Article 1 of the Universal Declaration of Human Rights and Article 26 of the ICCPR, for the same reasons as expounded in the【1】and【2】of this section.


Concluding Remarks


Legislation that forbids the provision of LGBT conversion counseling to voluntary help-seekers (no matter adult or minor) who want to leave the mindset or living of LGBT is a kind of distorted and unconstitutional legislation and does require litigation to overturn it. In the litigation, it is important to point out not only how the consequences of the legislation would be unconstitutional, but also how all the four legislative premises (being the three “premise claims”, and the additional “implicit premise” in case the legislation forbids the provision of the LGBT conversion counseling to the minors only)on which the legislation is based are distorted and incorrect. Note that it is crucial to clearly and effectively reveal the latter to the court (and the world), as failure or inability in doing so will make the four legislative premises (especially the second premise claim) be still taken as true. If so, the claim that such legislation violates Article 1 of the Universal Declaration of Human Rights and Article 26 of the ICCPR will not be valid.