[AGTRT-BF29] The proposed law on criminalizing “gay healing” is now also about gender, and this leads to confusion

Jan Bergstra & Laurens Buijs
Amsterdam Gender Theory Research Team

Earlier this year, the Council of State (Raad van State, RvS) published an opinion on a proposal for a law criminalizing conversion acts. Conversion acts aim to change people’s sexual orientation or gender identity to the prevailing norm. This includes, for example, “homogenous healing.”

The RvS finds the intent of the bill positive, offering only technical criticism. The need for an additional criminalization for these types of acts is not sufficiently demonstrated by the RvS.

It is important to us that sexualorientation andgender identity have similar status in the bill. This is remarkable because in the literature we found there is a world of difference.

Sexual orientation is seen as a personality trait that a large number of studies have shown cannot be purposefully changed (converted), even though occasional cases of changing sexual orientation have been observed. That conversion of sexual orientation, by any method, can be reliably achieved is strongly doubted in the literature.

With gender identity, the situation is different anyway. To begin with, the literature is far from uniform on the meaning of “gender identity.” We found nowhere in the literature that research would have shown that conversion of gender identity would be impossible in a systematic way and without third-party influence. In doing so, we do not claim that conversion of gender identity would be desirable in any way, only that the situation around gender identity is not comparable to the situation around sexual orientation.

The bill was amended based on the RvS opinion. This also led to a revised explanatory statement on 11-11-2023. On p8 under 2.2. is written there (“they” are the bill’s proposers):

“They do value making it crystal clear that sexual orientation and gender identity are immutable personality traits.”

This is remarkable. Thus, with the possible acceptance of this law, we may assume that the government views gender identity as an immutable personal characteristic. We see no basis in the literature for that view. In ARTGT-13, we named an immutable characteristic on which gender identity might be based (for example, seeing gender identity as the result of self-perception of that immutable “deeper” characteristic) as gender orientation. But that is a speculative notion. We found no evidence in the literature that such a thing as gender orientation would also exist.

There is a conceptual clash here with the direction in which transgender law is to be amended. On the contrary, there they do strive to ensure that a person may and can change their own gender identity, even multiple times. Such repeated adaptation is irrational if it involves an immutable characteristic.

The proposed law criminalizing conversion acts would become much stronger if one criminalized only conversion acts concerning sexual orientation to begin with. Incidentally, we believe that even there the bill too easily discards the proven ineffectiveness of conversion therapy as motivating. In the hypothetical case that conversion therapy concerning sexual orientation did prove to be effective, we would not have arrived at this legislation, but rather the concrete disadvantages of such forms of therapy should have been considered. We assume that the aforementioned assertion that: it is “crystal clear that sexual orientation and gender identity are immutable personality traits,” is indefensible in a scientific sense at this time (at least as far as gender identity is concerned) and thus, due to the obvious unscientificness so imported, will create a roadblock in any subsequent attempts to arrive at a modified transgender law. Incidentally, we do see such an adjustment as useful (see AGTRT-BF18 for that).

Read more about our analysis of transgender legislation:
A new transgender law is indeed needed

The bill further speaks of suppression in addition to conversion. It is not clear to us how one can suppress a gender identity, nor how one can suppress an expression of gender identity. Presumably what is meant is the suppression of the expression of gender identity in favor of the expression of another gender identity. But we see no point of reference in the recent literature on gender theory (which we have, after all, been slowly reviewing fairly completely) for this notion(s) of suppression. The obvious thing to do is to try to suppress a desire to change gender, and that endeavor should indeed be “outlawed,” at least when practiced through improper means. But our advice would still be not to so easily apply a text that is easy to read regarding (conversion and suppression of) sexual orientation also to gender identity.

Gender identity is a completely different concept from sexual orientation, and such a uniform treatment of both notions, we expect, will eventually provoke more misunderstandings than it will help combat abuses. The first misunderstanding is already there: by portraying gender identity as an immutable personality trait, one loses connection with the modern literature on gender theory across the board.

By writing that the persistence of gender identity would even be crystal clear, the submitters only indicate that they have not properly studied the nevertheless ample literature on gender theory. We advise them to do so; then one sees at once how completely indefensible the Explanatory Memorandum is on that point.


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