In just the first two months of 2022, Canada and New Zealand joined a growing number of progressive countries like Germany, Malta and Taiwan in banning so-called “conversion therapy”. These practices aim to change a person’s sexual orientation or gender identity because they are perceived to be abnormal or immoral. Such practices have been denounced by the World Psychiatric Association for causing serious physical and emotional harm to vulnerable lesbian, gay, bisexual, transgender and queer (LGBTQ) people.[1] Some United Nations (UN) experts have even characterised such practices as amounting to torture.[2]
In Singapore, meanwhile, queer advocacy group Heckin’ Unicorn launched a letter campaign in 2021 calling on the Singapore government to outlaw conversion practices in Singapore as well.[3] In a joint report to the UN Human Rights Council, LGBTQ counselling organisation and Pink Dot SG also urged that the Singapore Government implement legislation to protect LGBTQ persons from conversion practices.[4] However, despite these advocacy efforts, there has been no indication that such a ban is being considered. The recent repeal of Section 377A of the Penal Code is also unlikely to portend any state action on this issue in the near future either, given the Singapore government’s persistence in promoting compulsory heteronormative monogamy.[5]
Yet, perhaps the LGBTQ community need not wait for legislators to address the harms of conversion therapy. Drawing on two case studies in China and the United States, this article proposes an alternative avenue for activists and victims to combat and deter conversion practices in Singapore: consumer protection litigation.
Conversion therapy as consumer fraud
In 2015, the New Jersey Superior Court found that conversion services offered by a group called Jews Offering New Alternatives for Healing (JONAH) violated the state’s Consumer Fraud Act.[6] In advertising its services, JONAH had made several misrepresentations about homosexuality. Specifically, the jury held that the organisation had fraudulently misrepresented that being gay is a disease that can be cured by its conversion program.
A year earlier, Chinese gay activist Peng Yanzi also successfully sued a psychotherapy centre in a Beijing court on the same ground that it had fraudulently claimed to be able to “cure” homosexuality.[7] Notably, the Beijing court had explicitly affirmed that homosexuality was not a mental illness and should not be treated as such. That this strategy can work in another conservative Asian country that is similarly unwelcoming of LGBTQ rights suggests that it may potentially work in Singapore as well.
In this regard, Singapore’s consumer protection legislation – the Consumer Protection (Fair Trading) Act (CPFTA) – can be employed to go after those providing conversion services and goes further than other countries’ laws. Under Section 4 of the CPFTA, an unfair practice is defined not only as making false, misleading and deceptive claims, but also taking advantage of a consumer who is not in a position to protect their own interests. While the CPFTA’s protection of vulnerable consumers did not explicitly contemplate such a scenario, it is arguable that LGBTQ people would fall within this category.
Those struggling with their sexuality may not be able to protect themselves from coercion from family, peers, or other authority figures. This is especially since many survivors of conversion services are teenagers or young adults, which puts them in an even more vulnerable position. In fact, a global survey of over 8,000 respondents by the LGBT Foundation found that around 3 in 10 had participated in conversion therapy because of family or community pressure while more than 1 in 3 had done so because of the recommendation or decision by their employer, medical or mental health professional, religious leader, school, or government authorities.[8]
For example, Sam – who is now in his late thirties – first joined a conversion program when he was 15 after his family pressured him to “fix” his sexual orientation.[9] The experience was so traumatic that he was subsequently diagnosed with fibromyalgia and still struggles with dating other men. Insofar as organisations offering such services told victims like Sam that they can “cure” his homosexual attraction and that his sexual orientation is a mental illness, they would arguably be able to seek recourse under the CPFTA. Notably, the CPFTA specifies different types of unfair practices including the making of a false or misleading representation concerning the need for any services. This is also consistent with the government’s position on these issues. In May 2020, the Health Minister unequivocally declared in Parliament that “sexual orientation alone is not to be regarded as a clinical disorder that needs to be cured”.[10]
Granted, there is an obvious limitation to a consumer litigation approach compared to an outright comprehensive ban against conversion practices as it has been enacted in Canada or New Zealand. Specifically, if the conversion services were provided outside of a commercial relationship (i.e. no money was paid for those services), then the CPFTA would presumably not apply.
Striking a delicate balance
At the same time, compared to a legislative ban, a consumer protection approach may be preferable because it strikes a delicate balance between individual autonomy and the protection of vulnerable LGBTQ persons from coercive practices.
Over the past few years, a campaign called TrueLove.Is has sought to create space for Christians “struggling” with same-sex attraction by featuring those who have chosen to express their sexuality “differently” either by entering a heterosexual relationship or remaining celibate.[11] The group has been criticised by gay activists for promoting conversion services.[12] However, pastor Ian Toh – who leads the campaign – has clarified that the campaign also stands against “coercive, manipulative and abusive practices” especially when they are carried out on children and young people.[13] He even encouraged those who have been subject to such practices to pursue necessary legal recourse.
A consumer litigation strategy under the CPFTA ensures that those who wish to advocate for non-affirming conceptions of sexual diversity, like Toh and his supporters, can still continue to do as long as they do not make false or misleading claims about the scientific and medical basis of sexual orientation. In contrast, an outright ban may inadvertently inhibit legitimate differences in society over how an individual should think about or relate to their sexual attraction.[14] This is problematic not only because it may infringe on religious freedom but also because it runs contrary to the very foundation of queer justice.[15]
According to political scientist Joanna Wuest, laws banning conversion practices run the risk of imposing a “constricted view of what constitutes the good (queer) life and who has the authority to proclaim its contours”.[16] If the goal of queer liberation is to grant individuals the freedom to pursue their life as they see fit, then a ban that prohibits alternative ways of understanding one’s sexual identity may go too far because it fails to distinguish between harmful conversion practices and legitimate support services. A consumer protection approach sidesteps this complicated question as to where the line is drawn by focusing instead on the representations that providers make in advertising their services.
This delicate balance reflects the experiences of those who have chosen to participate in conversion programs. For example, Gerald – who was a part of Choices Ministry which “assists those who desire to overcome homosexuality in their lives” – has said that he does not regret attending the programme nor should it be completely outlawed.[17] Indeed, it would be presumptuous to assume that all those who regard their sexual attraction as unwanted are necessarily brainwashed or oppressed. As Gerald puts it, “I’m very inquisitive and think critically of anything thrown my way. I needed to discover the truth for myself.” Scholars like Tanya Erzen and Michelle Wolkomir have found similarly nuanced views among “ex-gay” communities elsewhere too.[18]
Rather than simply banning programs that purport to help manage one’s unwanted same-sex attraction, Gerald suggests that these programmes should come with mandatory warnings – a common consumer protection measure – about their ineffectiveness and lack of scientific basis. However, given that such regulations are unlikely to be forthcoming any time soon, the next best alternative is to empower victims to take action against those who have made false claims about homosexuality and conversion practices through the CPFTA.
A successful lawsuit can also help to counter negative stereotypes and unfounded assumptions about LGBTQ people. Once the court declares that the claims made by conversion providers constitute false or misleading advertising, this can also send a strong signal to society that homosexuality is a natural variation of human diversity and that it cannot be “fixed”.
Ultimately, LGBTQ activists and victims of conversion therapy do not need to sit and wait for legislators to enact a ban against such practices. Indeed, the repeal of Section 377A was catalysed by the persistent constitutional litigation brought by activists and lawyers over the years as well.[19] Where the government has been slow to act to address the harms of conversion practices, consumer litigation under the CPFTA can offer a potent alternative to seek redress for victims and deter those who peddle such services.
Image Source: Pink Dot SG
[1] Olivia Lace-Evans, “Global Health Group Takes on Gay Conversion Therapy,” BBC News, March 29, 2016, sec. Magazine, https://www.bbc.com/news/magazine-35893729.
[2] “‘Conversion Therapy’ Can Amount to Torture and Should Be Banned Says UN Expert,” OHCHR, July 13, 2020, https://www.ohchr.org/en/stories/2020/07/conversion-therapy-can-amount-torture-and-should-be-banned-says-un-expert.
[3] “‘Conversion Therapy’ in Singapore: ‘It Hurts When I Touch Myself Now,’” Heckin’ Unicorn, September 16, 2021, https://heckinunicorn.com/blogs/heckin-unicorn-blog/sam-story-of-conversion-therapy-in-singapore-lgbt-rights-in-singapore.
[4] Oogachaga and Pink Dot SG, “United Nations Human Rights Council Universal Periodic Review on Singapore,” October 15, 2020.
[5] Aqil Haziq Mahmud, “NDR 2022: Singapore to Repeal Section 377A, Amend Constitution to Protect Definition of Marriage – CNA,” CNA, August 21, 2022, https://www.channelnewsasia.com/singapore/section-377a-repeal-law-sex-gay-men-marriage-constitution-pm-lee-ndr2022-2891381; Davina Tham, “Definition of Marriage and Related Policies Should Not Be Determined by Courts: Masagos,” CNA, November 28, 2022, https://www.channelnewsasia.com/singapore/377a-repeal-marriage-definition-courts-parliament-masagos-3105361.
[6] Michael Ferguson, et al., v. JONAH, et al., No. HUD-L-5473-12 (Superior Court of New Jersey Law Division – Hudson County February 5, 2015).
[7] Fighting against Gay Conversion Clinics in China, Video (AJ Plus, 2015), http://america.aljazeera.com/articles/2015/6/25/a-man-fights-gay-conversion-clinics-in-china.html.
[8] Tyler Michael Adamson et al., “The Global State of Conversion Therapy – A Preliminary Report and Current Evidence Brief,” SocArXiv, SocArXiv, April 25, 2020, https://ideas.repec.org//p/osf/socarx/9ew78.html.
[9] “‘Conversion Therapy’ in Singapore.”
[10] Ministry of Health, “Government’s Stance on Changing One’s Sexual Orientation through ‘Conversion Therapy,’” May 4, 2020.
[11] “#WeExist – TrueLove.Is,” July 23, 2020, https://truelove.is/weexist/.
[12] Grace Yeoh, “The Brilliant Marketing of Truelove.Is: Homophobia Rebranded or a Chance for Acceptance?,” RICE (blog), August 24, 2018, https://www.ricemedia.co/current-affairs-features-brilliant-marketing-truelove-homophobia-rebranded-chance-acceptance/.
[13] Ian Toh, “Response to Heckin’ Unicorn – TrueLove.Is,” January 8, 2021, https://truelove.is/article/response-to-heckin-unicorn/.
[14] Darius Lee, “Conversion Therapy Bans: Enshrining a Contested View of Human Nature in Law” 33 (March 11, 2021): 483–530.
[15] Lee.
[16] Joanna Wuest, “From Pathology to ‘Born Perfect’: Science, Law, and Citizenship in American LGBTQ+ Advocacy,” Perspectives on Politics 19, no. 3 (September 2021): 838–53, https://doi.org/10.1017/S1537592720002881.
[17] “Choices Ministry,” July 7, 2007, https://web.archive.org/web/20070707215551/http:/www.choices.org.sg/; Yeoh, “The Brilliant Marketing of Truelove.Is.”
[18] Tanya Erzen, Straight to Jesus: Sexual and Christian Conversions in the Ex-Gay Movement, 2006; Michelle Wolkomir, “Be Not Deceived”: The Sacred and Sexual Struggles of Gay and Ex-Gay Christian Men (New Brunswick, N.J: Rutgers University Press, 2006); NPR, “‘Straight to Jesus’ and the Christian Ex-Gay Movement,” NPR, October 9, 2006, https://www.npr.org/templates/story/story.php?storyId=6225399.
[19] Tham Yuen-C, “Real Risk of Courts Striking down Section 377A in Future If Law Is Not Repealed: Panellists,” The Straits Times, September 26, 2022, https://www.straitstimes.com/singapore/politics/real-risk-of-courts-striking-down-section-377a-in-future-if-law-is-not-repealed-panel.