Update 6 February 2021:
On Thursday night (4 February 2021), the Victorian Parliament passed the Change or Suppression (Conversion) Practices Prohibition Act 2021. Significantly, this Bill goes even further than recent reforms in Queensland and the Act in terms of the anti-gay and anti-trans practices that are now banned, including in religious settings.
This legislation is the product of decades of advocacy by the survivors of conversion practices, and sets the benchmark for other states and territories to follow, including obviously NSW (which, as with so many LGBTI law reform priorities, has fallen behind other jurisdictions). At this stage, it seems like Tasmania will be the next cab off the rank (with the issue currently being considered by the Tasmanian Law Reform Institute – see my submission to their consultation, here).
The Victorian Government is currently consulting on legislative options to ban conversion practices, including ‘ex-gay therapy’ and ‘ex-trans therapy’. Submissions close 24 November 2019, with more details here. The following is my personal submission:
Thank you for the opportunity to provide this submission in response to the Discussion Paper: ‘Legislative options to implement a ban of conversion practices.’
I write this as a long-term advocate for the lesbian, gay, bisexual, transgender and intersex (LGBTI) community, as someone who survived five years at an explicitly homophobic religious boarding school in Queensland in the early 1990s,[i] and as someone who has written on this issue previously.[ii]
While I am not Victorian, given early-adopting jurisdictions will be effectively setting the standard for other states and territories to follow (including my current state of NSW), I am interested to ensure that the scheme introduced by the Victorian Government is as strong as possible.
On that basis, my answers to the consultation questions are as follows:
Do you agree with the HCC’s definition?
Would you suggest any changes?
Should the definition of conversion practices be broad enough to capture the practices that do not involve health services or counselling?
What treatments and practices should be expressly excluded from the definition?
The Health Complaints Commissioner’s definition appears reasonable. It is particularly important that the second part of the definition – ‘including efforts to eliminate sexual and/or romantic attractions or feelings toward individuals of the same gender, or efforts to change gender expressions’ – is retained.
This is because the harms caused by conversion practices arise exclusively in the context of activities trying to prevent people from identifying as lesbian, gay, bisexual or transgender.
There is no evidence of harmful ‘conversion practices’ in the other direction (forcing people to be LGBT), and therefore care should be taken to ensure that support services for LGBT people, and especially LGBT children and young people, are not inadvertently captured in any definition of conversion practices.
The definition should, however, capture anti-LGBT conversion practices outside health services or counselling. Conversion practices are basically psychological torture and as such they should not be acceptable in any context.
There may nevertheless be scope for increased penalties, or additional regulatory responses, where these practices occur in health services or counselling given the duty of care involved in these settings.
Who do you think should be protected?
Should protection be limited to children and people experiencing vulnerability? If so, what vulnerable groups should be included?
Should protection be available to all members of the community?
In what ways do you think the issue of consent is relevant to determining who should be protected?
I think all people should be protected, including adults. Again, my starting position is that conversion practices are psychological torture. And torture is not acceptable in any context, or with respect to any victim.
We should also remember that an adult who seeks out conversion practices has likely grown up in a homophobic, biphobic or transphobic environment, and that the cumulative effect of years or even decades of this bigotry and intolerance is probably the primary causative factor in them agreeing to participate in such harmful activities. It is therefore not truly free and informed consent.
Of course, there are some groups who are particularly vulnerable, including children as well as people with mental ill-health or other reasons for diminished legal capacity. The penalties for engaging in conversion practices aimed at these vulnerable groups could be made higher than for other adults (for example, by making the vulnerability of the victim an aggravating factor in sentencing).
Who do you think should be banned from providing conversion practices?
Specific professionals or persons? Or everyone who offers conversion practices?
These practices should be banned by anyone. There is no justification to allow psychological torture in any context.
There may however be reasons to provide additional regulatory responses for health practitioners, including counsellors, who engage in these practices (including referring people to these practices). This could include being suspended, or deregistered from providing any health services in the future, in addition to criminal or other penalties which apply to everyone.
Do you think conversion practices should be regulated wherever they occur or only in certain contexts or places?
If only health professionals are regulated, then again it should not matter where the conversion practices take place, because psychological torture should be prohibited wherever it occurs. It is a breach of the duty to care for patients for health practitioners to engage in these practices, or to refer others to them, in any context or place.
Do you think conversion practices should be regulated through criminal law, civil regulatory schemes or civil laws, or a combination of these?
What aspects of each approach would be effective in regulating conversion practices?
What aspects of each approach would be less effective in regulating conversion practices?
Given the abhorrent practices involved, and their harmful consequences on the lives of victims, I believe there should be criminal penalties for providing conversion practices, and for referring people to conversion practices.
This is a proportionate response to the seriousness of the underlying offence, and necessary to send a signal to the community that such practices will not be tolerated, any time, any where.
However, acknowledging the potential difficulty in criminal prosecution in these areas, these laws should be supplemented by civil regulatory sanctions, enforced by the Health Complaints Commissioner, Commissioner for Children and Young People or another similar body.
Finally, victims of such practices should be able to make claims of negligence against the people providing them, especially where it involves health practitioners and/or counsellors. Again, this is in recognition of the damage caused to their lives. Any laws necessary should be changed to allow this outcome, and provide financial redress for the victims.
What rights do you think are relevant to consider when determining how best to implement a ban of conversion practices?
Can the impact on these rights be justified in light of the harm conversion practices cause?
The most important rights in terms of this debate are the right to health, and the right to non-discrimination (given conversion practices are an attack on people with diverse sexual orientations and/or gender identities).
I acknowledge that there may be an adverse impact on freedom of religion, in that some individuals and organisations may assert that these practices are in line with their religious beliefs against LGBT identities.
However, their religious beliefs do not justify the imposition of psychological torture on others, including children and vulnerable people. In the same way that religious beliefs do not justify physical torture, including female genital mutilation, a position already reflected in Australian law.[iii]
Are there other matters that you consider critical for the design of legislation or effective implementation?
I reiterate my view that the approach adopted in states like Victoria will exert considerable influence on the position that will ultimately be embraced in others states and territories. As such, I strongly encourage the Victorian Government to introduce the strongest possible ban on these abhorrent practices, for the benefit of LGBT people nation-wide.
Thank you in advance for taking this submission into consideration. Please do not hesitate to contact me at the details supplied should you require clarification or additional information.
[iii] And, hopefully, one day religious beliefs will not be used to justify male genital mutilation/circumcision either.