Dutch Council of State Opinion: "Conversion Therapy" Banns Violate Religious Freedom
One year after a group of MPs proposed a Bill in the Netherlands to ban "conversion therapies" (February 2022), the Dutch Council of State declared that the proposed bill would be a violation of religious freedom. The proposed bill aimed to impose a fine of up to 22,500€ and a year of prison for anyone found guilty of offering conversion therapies. But in a recent opinion, the Council announced that there was no clear way to differentiate between actual victims of coercion and participants who chose such a practice voluntarily, emphasizing that intrusive forms of "conversion therapy" and coercion are already prohibited by the existing laws.
The bill proposed in February 2022 intended to introduce a fine for those offering conversion therapies up to 22,500€ and a year in prison for first-time offenders, and two years for repeaters.
Some LGBT groups had called for such legislation in the past, seeking to protect individuals from abuse or coercion, which is an important task and motive. The legislation proposal was postponed by the cabinet until sufficient research had been done into the possible implications of such a law for fundamental rights, such as the freedom of religion and choice, and to asses, whether this law would be necessary.
The Advisory Division of the Council of State is the organ that advises the government and Parliament on legislation and governance. In the recent opinion emitted on 27 January 2023, the Advisory Division stated that despite understanding the goal of the proposed ban, it would be unreasonable to add it to the current Dutch legislation, as it would clash with freedom of religion —since these therapies are often carried within religious communities— and with the free will of the individuals that voluntarily want to practice them.
The assessment framework followed by the Advisory division was to examine two principal aspects of the proposal: First, whether the proposed ban is in line with fundamental rights constitutionally protected in the Netherlands, and second, whether the proposal adds something to what can already be achieved with criminal law. Respectively called “constitutional and legal analysis”, and “policy analysis”.
As previously mentioned, the Advisory Division states the opinion that approving this law could limit the freedom of religion protected by article 6 of the Constitution of the Netherlands “if there is a religious motive” to “offer and perform” these therapies. Then, it also questions how the law could safely differentiate between "victims of actual coercion" and participants that want to try such a practice voluntarily. The Advisory Council believes it would be hard to safely enforce this law.
Finally, the report notes that severe or abusive forms of “conversion therapies” are already punishable under existing penal provisions, such as assault or coercion, and that the MPs that proposed this law did not provide any example of such conversion acts that are not already punishable.
Sources: Raadvanstate.nl (Full Opinion), Raadvanstate.nl (Summary), DutchNews, European Conservative
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