Calgary Bans Conversion Therapy with New Prohibited Businesses Bylaw

By Maddison Canuel

On May 25th, 2020, Calgary City Council voted to ban conversion therapy via the Prohibited Businesses Bylaw (bylaw number 20M2020, (the bylaw)). Conversion therapy, also known as reparative therapy, ex-gay therapy, and sexual orientation and gender identity and expression change efforts (SOGIECE), is a therapeutic attempt to change the sexual orientation, gender identity, or gender expression of LGBTQ2S+ persons to heterosexual or cisgender. The Canadian Psychological Association states that “[Conversion therapy] can include prayer or religious rites, modification of behaviours, and individual or group counselling.” According to DC Haldeman, conversion therapy has been shown to be ineffective, and the American Psychological Society says it can cause serious negative outcomes including depression, suicidality, internalized homophobia, and interference with intimate relationships. Conversion therapy is opposed by both the Canadian Psychological Association, the World Health Organization and several other official organizations.

How does the Bylaw Define Conversion Therapy?

The bylaw defines conversion therapy as:

‘Conversion therapy’ means a practice, treatment, or service designed to change, repress, or discourage a person’s sexual orientation, gender identity, or gender expression, or to repress or reduce non-heterosexual attraction or sexual behaviour. For greater certainty, this definition does not include a practice, treatment, or service that relates 

(a) to a person’s social, medical, or legal gender transition; or 

(b) to a person’s non-judgmental exploration and acceptance of their identity or development.

Who is Prohibited from Offering Conversion Therapy?

A person is prohibited from engaging in or operating a business of conversion therapy. ‘Business’ and ‘person’ are defined in the bylaw as:

2(2)(a) ‘business’ means: 

(i) a commercial, merchandising or industrial activity or undertaking, 

(ii) a profession, trade, occupation, calling or employment; or 

(iii) an activity providing goods or services; 

Whether or not for profit and however organized or formed, including a co-operative or association of persons;

…

(e) ‘person’ means an individual human being or a corporation and includes a partnership, an association or group of persons acting in concert unless the context explicitly or by necessary implication otherwise requires; 

The bylaw also includes provisions that allow landowners, employers, employees, and partners to be held responsible for the acts of respective land users, employees, corporations, and partners:

5(2) The owner of real property, who is registered on title at the Land Titles Office, shall be responsible for any act of a person carrying on business on the premises located on the property that constitutes an offence under this Bylaw, in the same manner and to the same extent as though the act were done by the owner. 

(3) For the purposes of this Bylaw, an act by an employee or agent of a person is deemed to be an act of the person if the act occurred in the course of the employee’s employment or agency relationship with the person. 

(4) If a corporation commits an offence under this Bylaw, every principal, director, manager, officer, employee, or agent of the corporation who authorized, assented to, acquiesced, or participated in the act that constitutes the offence is guilty of the offence whether or not the corporation has been prosecuted for the offence. 

(5) If a partner in a partnership is guilty of an offence under this Bylaw, each partner in the partnership who authorized, assented to, acquiesced, or participated in the act that constitutes the offence is guilty of the offence.

The penalty for contravention is a fine up to $10,000.00. If fines are not paid, a person may be subject to a period of imprisonment up to one year.

What were some Concerns about the Bylaw?

The bylaw’s definition of ‘conversion therapy’ created concern that people seeking therapy or counselling regarding their sexual orientation, gender identity, or gender expression would be unable to receive it. as conversations with faith leaders, doctors, therapists, or other individuals on these topics would be prohibited. This is not the case, as ‘non-judgemental’ practices that support people who are questioning these topics are not prohibited. According to the City of Calgary’s conversion therapy Bylaw Clarification Memo, ‘non-judgemental’ means that the practice starts with an open and unbiased perspective and is not based on the pre-conceived notion that the LGBTQS2+ person needs to change. Therefore, practices that help a person to explore and understand, but not change aspects of their identity in a specific, pre-determined way, would not be prohibited. Whether or not a practice is ‘non-judgemental’ will be determined on a case by case basis after investigating the circumstances and context of the practice.

On a similar note, the inclusion of the words ‘non-heterosexual attraction or sexual behaviour’ raised concerns that homosexual people would not be able to access counselling or therapy for sexual addiction or efforts to reduce sexual desires. The City clarified that that professionals can provide support on these issues because they are governed by bodies that already oppose conversion therapy, and instead promote acceptable forms of help that would be considered ‘non-judgemental’.

An argument raised against this bylaw was that it violates Calgarian’s section 2(a) freedom of religion rights under the Charter of Rights and Freedoms. People questioned if churches or other religious organizations would be limited in their practices of preaching or teaching. In Syndicat Northcrest v Amselem, 2004 SCC 47 (CanLii) at para 58, the Supreme Court stated that for a violation of the freedom of religion to occur, the law must objectively interfere with individual’s ability to act in accordance with that practice or belief in a manner that’s more than trivial or insubstantial. The City’s memo states that they are confident that the bylaw does not violate the freedom of religion, as it “does not prevent or restrict religious thought or beliefs, nor does it prevent the right to worship”.

Finally, questions were raised as to why the definition of the prohibited conversion therapy did not specifically require coercion or bodily harm. The City responded by explaining how defining every harmful method used in conversion therapy would be too lengthy and would be inconsistent with other bylaws of this type. A list would imply that unlisted methods were acceptable, which is not consistent with the intention of the bylaw to prohibit all forms of conversion therapy.

Conclusion

In a report from the Community-Based Research Centre (CBRC) titled ‘Ending conversion therapy in Canada’, the authors state that: “SOGIECE encompass a wide range of settings and practices. It is not a single, delineated practice. As such, there is no ‘silver bullet’ that will eradicate it from Canadian society.” They go on to propose that legislative bans are one part of the multi-faceted response needed to end the harm caused by SOGIECE/conversion therapy. In enacting this bylaw, Calgary has taken a step forward in the fight against conversion therapy.