Abstract
Sexual orientation change efforts (SOCE) have been promoted aggressively under the belief that homosexuality is a curable disease. However, scientific research has shown that such practice can cause detrimental effects such as self-loathing, depression and even suicidal urges. It has also revealed that homosexuality is a mere variation of human sexuality and dispelled the myth that it is a ‘contagious disease’. This raises some concerns that the practice of SOCE could amount to human rights violations, and thus this article shall tackle the issue of whether such practice is compatible with international human rights law. Given that children have been identified as a group that is particularly vulnerable to SOCE, this article shall commence by scrutinising whether there is an obligation to ban SOCE for minors under the jurisprudence of the Convention on the Rights of the Child. This article shall then proceed to the question of whether a similar obligation is also applicable to SOCE for adults through the application of the right not to be subjected to torture or cruel, inhuman or degrading treatment.
Keywords
1. Introduction
Various therapies have been advertised by several groups who claim that they can ‘cure’ homosexuality. Such therapy is usually founded on religious principles or is purportedly scientific. 1 As an illustration, the Indonesian Clinical Hypnotherapy Association argued that homosexuality could be ‘reverted’ into heterosexuality through hypnosis based on the belief that same-sex orientation is caused by ‘subconscious thoughts induced by a traumatic past’. 2 Moreover, one of the largest Indonesian Muslim organisations, Muhammadiyah, planned to establish an institution that would provide counseling sessions to remove homosexuality from children, 3 while a spiritual healing session for homosexuals was offered in a mosque in Jakarta. 4 A film sponsored by the Malaysian government’s family, social and development department has even openly endorsed sexual orientation change efforts in general. 5 Meanwhile, in the Netherlands, several Christian-inspired mental health organisation such as ‘Different’ claimed that they could provide therapy to repress homosexuality. 6 In the United States, such therapy is advocated and promoted by various Christian-related groups. 7
Scientific findings, however, have demonstrated that sexual orientation change efforts could have detrimental effects on its subject. 8 These include stress, depression, or even suicidal thoughts. 9 The efficacy and validity of sexual orientation change efforts have also been questioned by mainstream health organisations such as the American Psychological Association, 10 the American Psychiatric Association, 11 and the Pan American Health Organization. 12 Furthermore, homosexuality has long been removed from the list of mental illnesses in the Diagnostic and Statistical Manual of Mental Disorders, and major medical organisations concur that both homosexuality and heterosexuality are ‘normal expressions of human sexuality’. 13 As a result, SOCE have been condemned by major health organisations and it is advised that such therapy be avoided due to its potential harm. 14 Instead, organisations such as the American School Counselor Association recommend the promotion of self-acceptance among LGB people. 15
Despite the lack of credible scientific grounds and the risks that it presents, efforts to change homosexual orientation are still being promoted aggressively. 16 The American Psychological Association has noted the particular vulnerability of sexual minority children and youth, as they ‘lack adequate legal protection from involuntary or coercive treatment’. 17 In response to this, SOCE for minors have been banned by several States and provinces in the United States and Canada, including Manitoba, 18 California, 19 and Washington D.C. 20 Principle 18 of the Yogyakarta principles also states that ‘no person may be forced to undergo any form of medical or psychological treatment, procedure, testing, or be confined to a medical facility, based on sexual orientation or gender identity’. 21 Nonetheless, efforts to change the sexual orientation of minors are still legal in almost all parts of the world. Since such effort is considered harmful to the subject’s well-being, this raises a concern of whether SOCE are contrary to human rights. Thus, in light of the available scientific evidence, this article analyses the existing legal framework to determine whether SOCE infringe international human rights law. It will first consider the compatibility of SOCE with the ‘best interests of the child’ principle in the Convention on the Rights of the Child (CRC), as sexual minority children and youth have been identified as a particularly vulnerable population. It will then argue that, objectively, SOCE are not in line with this principle, which implies that this deliberation must be primarily considered in all measures concerning children that are undertaken by public or private social welfare institutions, administrative or legislative bodies and courts of law. 22 Subsequently, it will take a step further by applying Articles 3 and 19 of the CRC to demonstrate that States Parties are required to ban SOCE for minors. This obligation, however, is a lex specialis that is only applicable for children. In order to examine whether a similar obligation also exists for SOCE in general, this article shall rely on the lex generalis that stems from the prohibition of torture or cruel, inhuman or degrading treatment under the the International Convention on Civil and Political Rights (ICCPR) and the Convention against Torture (CAT). The result is decisive in establishing an overarching prohibition of SOCE.
2. The peril of sexual orientation change efforts
The term ‘sexual orientation change efforts’ (SOCE) has been defined by the American Psychological Association as ‘methods that aim to change a person’s same-sex sexual orientation to other-sex, regardless of whether mental health professionals or lay individuals (including religious professionals, religious leaders, social groups, and other lay networks such as self-help groups) are involved’. 23 Other umbrella terms that have been coined include ‘conversion therapy’ or ‘reparative therapy’. 24 The scope of these terms seems to be narrower, since they refer only to ‘counseling and psychotherapy aimed at eliminating or suppressing homosexuality’. 25 Nonetheless, these terms are included within the more general definition of SOCE.
Methods of SOCE may include behavioral, psychoanalytic, medical, religious and spiritual techniques. 26 As an illustration, the widely discredited Bieber methodology claimed that long-term psychoanalytic therapy is required to remove ‘unconscious childhood conflicts’ that are deemed to be responsible for homosexuality. 27 Another therapy is designed to condition homosexuals to heteroerotic content and associate homoerotic content with an aversive stimulus. 28 The example of this is ‘the application of electric shock to the hands and/or genitals, or nausea-inducing drugs, which would be administered simultaneously with the presentation of homoerotic stimuli’. 29 Other approaches include ‘masturbatory reconditioning, visualization, and social skills training’. 30 There are even methods that involve the use of drugs, hormones, exorcism, X-Ray treatment, anaphrodisiacs, hydrotherapy, hypnosis, and ‘fantasy satiation’ that bombards the subject to sexually arousing stimuli until he/she is ‘satiated’. 31
In general, SOCE are grounded on the belief that homosexuality is an illness or disorder that needs to be cured, and thus it has been actively promoted by several religious and political organisations, particularly the so-called ‘ex-gay movement’
32
However, scientific findings have demonstrated that such conjecture is erroneous. Homosexuality was removed from the International Classification of Diseases (ICD-10) in 1990
33
and from the Chinese Classification of Mental Disorders by the Chinese Society of Psychiatry in 2001.
34
The American Psychiatric Association also declassified homosexuality from the Diagnostic and Statistical Manual of Mental Disorders (DSM) in 1973 for the reason that it ‘implies no impairment in judgment, stability, reliability, or general social or vocational capabilities’.
35
The American Psychological Association, the American Psychiatric Association, and the National Association of Social Worker further explained in an amici curiae brief before the Californian Supreme Court in In re Marriage Cases that: Professionals in medicine, mental health, and the behavioral and social sciences reached the conclusion that it was inaccurate to classify homosexuality as a mental disorder and that the DSM classification reflected untested assumptions based on once-prevalent social norms and clinical impressions from unrepresentative samples comprising patients seeking therapy and individuals whose conduct brought them into the criminal justice system.
36
It should also be noted that the claim that homosexuality is a choice or a learned behaviour is unsubstantiated. Scientific findings have indicated that sexual orientation in general is determined by a combination of genetic, hormonal and environmental factors. 39 As for the root cause of homosexuality itself, the American Academy of Pediatrics (AAP) in Pediatrics explained that biological theories are favoured, since they are supported by ‘the high concordance of homosexuality among monozygotic twins and the clustering of homosexuality in family pedigrees support biological models’. 40 Research has also demonstrated that the development of sexual orientation is influenced by prenatal hormonal exposure. 41 While there might still be some controversies over the origin of homosexuality, the AAP emphasised that ‘there is no scientific evidence that abnormal parenting, sexual abuse, or other adverse life events influence sexual orientation’. 42 Psychologists Glenn Wilson and Qazi Rahman further affirmed that ‘modern scientific research indicates that sexual orientation is largely determined by the time of birth, partly by genetics, but more specifically by hormonal activity in the womb arising from various sources’. 43
Thus, from a scientific perspective, it is inaccurate to claim that SOCE methods constitute a medical therapy. A therapy is designed only to treat physical or mental illness, and it has been scientifically established that homosexuality is not a disease.
44
In the field of psychology, it is not even diagnosable as a mental disorder. As a result, ‘treatments’ that purport to ‘cure homosexuality’ seem to be senseless. This is further reinforced by the fact that SOCE proponents have failed to produce credible evidence of its effectiveness.
45
The American Psychological Association has reviewed various studies related to the effectiveness of SOCE and concluded that lasting change of sexual orientation is rare.
46
Studies have also revealed that SOCE participants still experience same-sex attractions and that reports of change could not be empirically confirmed.
47
Furthermore, while there might be some anecdotal reports of participants being ‘cured’, this is ‘counterbalanced by anecdotal claims of psychological harm’.
48
Consequently, as was concluded by the Task Force on Appropriate Therapeutic Responses to Sexual Orientation of the American Psychological Association: There are no studies of adequate scientific rigor to conclude whether or not recent SOCE do or do not work to change a person’s sexual orientation. Scientifically rigorous older work in this area found that sexual orientation was unlikely to change due to efforts designed for this purpose.
49
As a note, it has been demonstrated that the appropriate response to homosexuality is acceptance, support and understanding.
57
Various studies have demonstrated that ‘sexual minority adolescents in schools with support groups for LGB students reported lower rates of suicide attempts and victimisation than those without such groups’.
58
The American Psychological Association has further affirmed: Our review of the scholarly literature on individuals distressed by their sexual orientation indicated that clients perceived a benefit when offered interventions that emphasize acceptance, support, and recognition of important values and concerns.
59
The promotion in schools of efforts to change sexual orientation by therapy or through religious ministries seems likely to exacerbate the risk of harassment, harm, and fear for these youth. One result of the isolation and lack of support experienced by some lesbian, gay, and bisexual youth is higher rates of emotional distress, suicide attempts, and risky sexual behavior and substance use.
61
3. Sexual orientation change efforts, the best interests of the child and the CRC
The principle of the best interests of the child is among the cornerstone principles of the Convention on the Rights of the Child. 64 Article 3(1) of the CRC enshrines that the best interests of the child shall be assessed as a primary consideration ‘in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies’. 65 Within the jurisprudence of the CRC, the best interests of the child are multifaceted and can be regarded as a substantive right, interpretative legal principle and a rule of procedure. 66 As a right, the best interests of the child create obligations for States that are ‘directly applicable and can be invoked before a court’. 67 The Committee on the Rights of Children (CRC Committee) observed that these obligations consist of the duty to ensure that the best interests of the child are ‘appropriately integrated and consistently applied’ in every measure taken by a public institution. Furthermore, this duty entails that this principle is regarded as a primary consideration in all judicial and administrative decisions, and that the best interests of the child are ‘assessed and taken as a primary consideration’ in all decisions made by the private sector, including in service provision. 68 At the same time, in the event of uncertain or conflicting interpretation over a legal provision in the CRC, the best interests of the child as a principle mandate that the interpretation that serves the child’s best interests should be selected. 69 The best interests of a child as a rule of procedure further require that decision-making process must evaluate the possible impact of a measure to the interests of the children concerned. 70 This implies that there is an obligation for the State to legislate and implement such a mechanism. 71
While the legal nature of this concept has been clarified by the CRC Committee, the meaning of ‘the best interests of the child’ per se is complex and requires an assessment on a case-to-case basis.
72
As was stated by the CRC Committee: The concept of the child’s best interests is flexible and adaptable. It should be adjusted and defined on an individual basis, according to the specific situation of the child or children concerned, taking into consideration their personal context, situation and needs.
73
As for SOCE, scientific findings elaborated in the previous section seem to demonstrate that it is against the best interests of the child when the elements to identify such interest that are elaborated in the previous paragraph are considered. SOCE claim to change the sexual orientation of an LGB child. While science has demonstrated that its efficacy is dubious, such efforts are still contrary to the right of a child to have his or her identity respected under Article 8 of the CRC. Moreover, there have been cases of LGB children being forced to undergo SOCE as a result of their parents’ or legal guardian’s insistence, and this is not in line with the right of the child to be heard under Article 12 of the CRC. As was stressed by the CRC Committee, ‘any decision that does not take into account the child’s views or does not give their views due weight according to their age and maturity, does not respect the possibility for the child or children to influence the determination of their best interests’. 78 Furthermore, the situation of an LGB child is already vulnerable, as they are often facing a homophobic environment, and administering SOCE could produce self-loathing. 79 This is further exacerbated by the fact that SOCE techniques (such as the use of aversive stimuli) could constitute a form of torture or cruel, inhuman or degrading treatment. 80 Most importantly, SOCE jeopardise the health of LGB children. The CRC Committee has held that ‘the child’s right to health and his or her health condition are central in assessing the child’s best interest’, and added that in light of uncertainty ‘the advantages of all possible treatments must be weighed against all possible risks and side effects’. 81 SOCE can induce harmful effects such as depression and suicidal urges, which can be further exacerbated when it is propagated in schools as it could create a hostile environment for LGB children. Its proponents have also failed to produce evidence of its supposed beneficial effects. Instead, as was demonstrated in the previous section, health professionals recommend acceptance and support. The promotion of SOCE in school is also discouraged due to its negative backlashes toward the mental health of LGB children. Therefore, based on these elements, it can be concluded that SOCE in any form or in any terminology contravene the best interest of LGB children. It should also be highlighted that qualified health professionals have established the facts about the detrimental effects of SOCE. The CRC Committee has stressed the importance of obtaining relevant facts and information from well-trained professionals ‘in order to draw up all the elements necessary for the best interest assessment’. 82 Thus, the conclusion of the experts in the previous section has weight in the evaluation of the best interests of the child.
Since scientific findings have demonstrated that objectively SOCE are against the best interests of the child, it can be deduced based on the multifaceted nature of Article 3(1) of the CRC that it bestows the right of LGB children to have their best interest of not being subjected to SOCE being ‘appropriately integrated and consistently applied’ in all governmental measures. It also creates a procedural safeguard against SOCE, as governmental bodies must evaluate this interest in their decision-making process as a primary consideration. As an illustration, in November 2015, several conservative Christian groups held conversion therapy seminars in the building of the South Korean National Assembly Members Office. 83 The best interests of the child principle requires the National Assembly of South Korea as a governmental institution to assess the best interests of LGB children in the authorisation process. The authorities involved seem to have failed to consider this, particularly in light of the fact that children have been identified as a group that are particularly vulnerable to SOCE. Furthermore, when the scientific conclusion on the harms of SOCE to LGB children is included in the evaluation as a primary consideration, the measure should have been rejected. Thus, it can be concluded that in this case the South Korean government violated the right and the procedural safeguard provided under Article 3(1) of the CRC. Similarly, a parliamentary body that passes a law which allows non-consensual conversion therapy by parents or legal guardians has also ignored the best interest of LGB children of not having to endure the damaging effects of SOCE in its assessment, and accordingly has acted contrary to the best interests of the child.
This line of thought, however, might be challenged by the claim that the best interests of the child principle is not an objective notion per se. During the drafting process of the CRC, a representative from Venezuela highlighted that the concept is ‘inherently subjective’ for the reason that it lacks reference to ‘physical, mental, moral, spiritual and social development’, which is present in the 1959 Declaration of the Rights of the Child and the original draft of the CRC. 84 The implication of this is that the interpretation of the best interests of the child would depend on the judgment of the relevant authorities. 85 Based on this argument, States who are still hostile to LGB people could invoke the preamble of the CRC, which enunciates that States Parties to the convention are ‘taking due account of the importance of the traditions and cultural values of each people for the protection and harmonious development of the child’. 86 They would then contend that the application of the best interests of the child principle in their country should include their cultural or religious considerations that homosexuality is a ‘grave sin’ or a ‘perversion’. For instance, the Tunisian Minister of Human Rights and Transitional Justice, Samir Dilou, refused to recognise the rights of homosexuals based on the conviction that Tunisia ‘has its own history, heritage, religion and customs and we need to deal with everything on such a basis’. 87 He even stressed that homosexuality is a ‘sexual perversion’ that ‘needs to be treated medically’. 88 Similarly, amid a string of anti-LGBT comments by public officials in Indonesia, a member of the Indonesian House of Representative, Reni Marlinawati, emphasised that homosexuality violates both religious norms and positive law in Indonesia, while the mayor of the city of Tangerang, Arief R Wismansyah, believes that ‘adherents of LGBT [sic] should be returned to the appropriate nature of gender’. 89 Such relativistic arguments have been echoed from time to time when it comes to LGB rights. 90 Hence, they could assert that since LGBT is regarded as a cultural and religious perversion in their countries, from their perspective SOCE would be in line with the best interest of the child to ‘develop as a heterosexual and cisgender human being’. Additionally, even if it is assumed that SOCE are against the best interests of the child, it could be claimed that the CRC employs the term ‘a primary consideration’ instead of ‘the primary consideration’, which implies that that the best interests of the child would not always trump other interests, such as the interests of the parents or the State. 91
In response to the claim that the best interests of the child are ‘inherently subjective’, it seems that the CRC itself is silent on this issue. Literal interpretation of Article 3(1) demonstrates that it does not refer to the concept as being objective or subjective; the convention itself does not even define the best interests of the child.
92
Historically, the concept originated from the British and French legal systems, which then spread throughout the world.
93
In the preparatory works, despite the claim of the Venezuelan representative, the delegates did not actually discuss the content of the concept, as it was assumed to be clear already due to its presence in their own legal system.
94
It was thus observed by legal scholar Marina Eudes that: The fact that since the year 1990s a number of international instruments and also national and European jurisprudences have referred to the concept of ‘the best interests of the child’ seems to demonstrate the existence of an international consensus around a concept whose meaning however is not evident.
95
The explanation above refers to the obligations of governmental institutions (including the trias politica of the executive, legislative and judiciary), and the question now is whether it extends to private institutions. Article 3(1) of the CRC merely refers to ‘public or private social welfare institutions, courts of law, administrative authorities or legislative bodies’.
100
The scope of the term ‘private social welfare institutions’ appears to be much more restrictive compared to the original Polish proposal to the Working Group, which qualifies actions taken by ‘parents, guardians, social or State institutions, and in particular by courts of law and administrative authorities’.
101
The deletion of the term ‘parents’ and ‘guardians’, therefore, seems to denote that the obligation shall not be imposed on them.
102
However, the original American draft to the working group employed the terminology ‘official actions’.
103
With the non-inclusion of the term ‘official’ in the final version of Article 3(1) of the CRC, it can be deduced that the scope of the article does include private entities.
104
Since the CRC does not define ‘private social welfare institutions’, the term should be defined ‘in accordance with the ordinary meaning to be given (…) in their context and in the light of its object and purpose’ as articulated by Article 31 of the Vienna Convention on the Law of Treaties.
105
In this respect, the CRC Committee has ruled: Private social welfare institutions include private sector organizations – either for-profit or non-profit – which play a role in the provision of services that are critical to children’s enjoyment of their rights, and which act on behalf of or alongside Government services as an alternative.
106
While the description above has emphasised the obligation of States to ensure that the best interest of the child of not being forced to undergo SOCE is integrated and considered in their decision-making process, under the jurisprudence of the CRC it can be established that there is an obligation for States to forbid SOCE for minors in general. The CRC Committee has ruled that the term ‘in all actions’ in Article 3(1) of the CRC includes ‘inaction or failure to take action and omissions’, such as ‘when social welfare authorities fail to take action to protect children from neglect or abuse’.
108
This implies that Article 3(1) of the CRC prescribes the imperative to protect children from the abuse of SOCE. However, as was revealed in the previous paragraph, the scope of Article 3(1) of the CRC is limited to public or private social welfare institutions and administrative, legislative and judicial bodies. If this article is applied alone, it would exclude parents, legal guardians or extended families. Nonetheless, when Article 3(1) of the CRC is read in conjunction with other articles in the CRC, it shows the obligation to ban SOCE for minors completely. Article 3(2) of the CRC pronounces that ‘States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being (…) and, to this end, shall take all appropriate legislative and administrative measures’.
109
Moreover, Article 3(3) of the CRC underlines the obligation for the State ‘to ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision’.
110
Parents or legal guardians themselves cannot be excluded, as Article 18 of the CRC requires them as the primarily responsible person(s) to include the best interests of the child as their ‘basic concern’.
111
Most importantly, Article 19 of the CRC enshrines that: States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
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4. SOCE and the prohibition of torture
The practice of SOCE has also raised concern that its methods can be regarded as a form of torture or degrading treatment, particularly when it is forcefully administered. The UN Special Rapporteur on torture, Sir Nigel Rodley, found that: In a number of countries, members of sexual minorities are said to have been involuntarily confined to state medical institutions, where they were allegedly subjected to forced treatment on grounds of their sexual orientation or gender identity, including electric shock therapy and other “aversion therapy”, reportedly causing psychological and physical harm.
116
As an aggravating factor, there have been a growing number of reports about degrading treatments, and physical and sexual harassment under the guise of such “therapies,” which are often provided illicitly. In some cases, adolescents have been subjected to such interventions involuntarily and even deprived of their liberty, sometimes kept in isolation for several months.
117
The problem with this is that SOCE is an umbrella term that incorporates multifarious methods. Some methods that involve electric shock or other physical or mental harm might fall within the scope of torture.
119
However, it is unclear whether this is the case for techniques that rely on psychoanalysis or prayers. At the same time, SOCE might be performed by governmental or private actors, or by the later endorsed or supported by the former. In order to settle this question, it is firstly necessary to recall the definition of torture in the Convention against Torture (CAT): The term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
120
It is the duty of the State Party to afford everyone protection through legislative and other measures as may be necessary against the acts prohibited by Article 7, whether inflicted by people acting in their official capacity, outside their official capacity or in a private capacity.
126
Within the jurisprudence of the ICCPR, the terms ‘torture’ and ‘CIDT’ are not defined. 127 The HRC held in General Comment 20 that the distinctions between the two terms ‘depend on the nature, purpose and severity of the treatment applied’. 128 Despite the uncertainty, methods that inflict physical pain such as electric shocks, beatings or sexual harassment appear to have passed the severity threshold. The United Nations Special Rapporteur on Torture considered these acts as a form of torture in his report to the United Nations Commission of Human Rights. 129 With regard to electric shocks in particular, there are even cases in which the Human Rights Committee has classified it as torture, such as in the case of Tshitenge Muteba v. Zaire. 130 Therefore, it follows that SOCE involving these methods could be categorised as torture. The issue now is whether SOCE methods that do not inflict physical pain can fall within the scope of torture as a result of its mental harm. The HRC has established in General Comment 20 that the prohibition under Article 7 of the ICCPR includes both physical and mental pain. 131 Various cases have also demonstrated that the lack of physical injury does not mitigate the fact that an act of torture has been conducted. In the case of Miguel Angel Estrella v. Uruguay, for instance, the HRC recognised that the applicant was subjected not only to physical but also psychological torture, which includes the threat of torture or violence to the victim or his/her family or friends. 132 However, this begs the question of to what extent the infliction of mental pain should be considered as torture. In this respect, the jurisprudence of the HRC is rather unclear, since in the case of Dwayne Hylton v. Jamaica it considered death threats by wardens as CIDT. 133 This seems to be inconsistent with the finding in Miguel Angel Estrella v. Uruguay that threat of violence is a form of psychological torture. Due to the lack of a clear-cut distinction or definition, it is important to evoke the observation of the HRC that each case should be assessed individually based on the nature, purpose and severity of the act. 134 Despite this, it is still possible to establish a general framework that SOCE methods that do not involve physical pain should at least be classified as CIDT if the act inflicts prolonged mental harm that could cause self-loathing, depression and even suicide. This is particularly the case if the act is aggravated by the deprivation of liberty, which in itself is a violation of Article 9 of the ICCPR. Since the obligations under Article 7 of the ICCPR include positive measures, it can be inferred that this article requires States to ban SOCE methods that inflict both physical and mental pain.
5. Conclusion
While scientific findings have revealed that SOCE can cause detrimental effects, it is still practiced in many parts of the world. SOCE are often administered on minors, and this is contrary to the best interests of the child under the jurisprudence of the CRC. Such determination is essential, since the best interests of the child principle is a cornerstone principle of the CRC and functions as an interpretative legal principle and a rule of procedure. It also bestows a substantive right to children and this implies that the best interest of LGB children to be protected from SOCE as a primary consideration shall be ‘appropriately integrated and consistently applied’ in all governmental measures. However, although this primary consideration applies to private welfare institutions, parents and legal guardians are excluded from the scope. Therefore, this article needs to be read together with Article 3(2), Article 3(3), and particularly Article 19 of the CRC, which establish positive obligations to curb all practices that are harmful to children. Based on such reading, it could be concluded that the CRC establishes a lex specialis that requires States to prohibit SOCE for minors as a whole. Meanwhile, as for the issue of whether there is a lex generalis that is also applicable for SOCE as a whole, there are grounds to establish that SOCE methods could amount to torture or CIDT. This is especially the case for methods that incorporate physical pain, such as aversion therapy with electric shocks. In the case of psychological pain, however, the distinction between torture and CIDT is rather unclear, and thus each method needs to be assessed individually based on its nature, purpose and severity. Nevertheless, States in general are obliged under Article 7 of the ICCPR to undertake positive measures to ban SOCE methods that induce physical and psychological suffering.
Footnotes
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.