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Victoria’s Conversion Practices Prohibition Bill 2020: Best Practice or Ideology?

On 25 November 2020, Victoria State Government introduced to Parliament the Change or Suppression (Conversion) Practices Prohibition Bill 2020.  According to the then Attorney General Jill Hennessy, the Bill aims to stamp out “cruel and bigoted practices that seek to change or suppress a person’s sexual orientation or gender identity.”[1]  The Statement explains, “The Bill denounces such practices as deceptive and harmful, reinforces that the ideology behind these practices is flawed and wrong.”

In August 2020, Queensland became the first Australian state to ban gay conversion therapy.  Conditioning techniques such as aversion therapy, psychoanalysis and hypnotherapy that aim to change or suppress a person’s sexual orientation or gender identity are prohibited.  Health practitioners who administer conversion therapy can face fines and imprisonment.[2]

While the Queensland legislation limits itself to medical settings, the Victorian Bill goes further to target also practices done in religious settings as well as certain actions by family members.  According to the Bill, anyone who intentionally engages in a change or suppression practice towards another person, with or without the person’s consent, that results in injury can face up to 10 years imprisonment or heavy fines.[3]  Among the prohibited practices are psychiatric or psychotherapy consultation, treatment or therapy, or ‘carrying out a religious practice, including but not limited to, a prayer based practice, a deliverance practice or an exorcism.’  Giving a person a referral to such conversion practice is also prohibited.  The Bill would allow a practice if it ‘is supportive of or affirms a person’s gender identity or sexual orientation’.  It is also an offence to advertise for conversion practices, or to take a person from Victoria for conversion elsewhere.

In recent decades, increasing numbers of medical associations worldwide have supported the abolition of sexual orientation change efforts.  The American Psychological Association in 2009 reviewed the results of 83 studies carried out between 1960 and 2007 and found no sound scientific evidence that sexual orientation can be changed.  On the other hand, the harm such therapies can cause to individuals and communities remains an ethical concern.   While the abolition of gay conversion practices is necessary, the Victorian Bill needs significant amendment for the following reasons.

First, the Bill puts in the same basket two distinct and vastly different issues, namely sexual orientation and gender dysphoria/ incongruence, each of which deserves careful consideration in its own right from a health perspective.  Good medical practice requires adequate engagement with the concrete reality of each person and with the issue they present.  While some conversion practices are clearly harmful for recipients, the proposed legislation goes too far in promoting a monolithic approach which has problems of its own.  Take for example, the management of gender dysphoria/incongruence which currently remains a debated area in medical practice.  Research has shown that, while some young persons with gender dysphoria persist in their preference, many desist and become comfortable with their biological sex after puberty.  Some people, having transitioned, later regret their decision and want to revert back to their biological sex.  Given the current research data, a more nuanced and holistic approach is required for children with gender dysphoria/incongruence.

Second, there is no mention of the person’s age at which he or she expresses a sexual attraction or gender preference.  As childhood through to adolescence is a time of rapid growth and personal development, many aspects of a person’s identity including sexual orientation and gender do shift significantly.  It is contrary to common sense and best practice to consider the gender preference of a six year old as of equal weight to that of an eighteen year old.

Third, the prohibited practices are described in disturbingly broad and vague terms.  This lack of clarity is a cause for anxiety and uncertainty among parents, teachers, health practitioners, and pastors in regard to what they are allowed to do in their role as care providers.  Would parents – along with other care providers – be obliged to categorically affirm a child who expresses a gender preference no matter how young the child might be?  If a six year old boy tells his parents that he wants to be a girl, would the parents be legally bound to affirm his preference and assist him in the transition?  If the parents suggest that he wait until after puberty before he decides whether he wants to be a girl, is that a criminal offence? Admittedly, s. 5(2)(a)(v) gives some leeway for parents if what they do is a way of “facilitating coping skills, social support or identity exploration”.  Nevertheless, does what parents do in response to this six year old have to be “supportive of or affirm a person’s gender identity”?

In s. 5(2)(b)(i)-(ii), a practice is not considered a change or suppression practice if it is a practice or conduct of a health service provider that is necessary to provide a health service; or to comply with the legal or professional obligations of the health service provider.  While this provides some latitude for health practitioners, it is a cause for anxiety for practitioners nonetheless, due to the absence of a uniform set of guidelines across health professions on how to manage pre-pubertal children with gender dysphoria.  For instance, if a school counsellor does not assist the six year old above in the transition process, would she be regarded as a conversion practitioner for the purpose of the criminal law?  If a doctor refuses to  provide puberty suppression therapy for a nine year old, would that be a criminal offence?

Fourth, the vagueness in the description of prohibited practices would also prove too restrictive for parents, teachers, health practitioners and pastors in regard to questions of sexual orientation and gender identity.  In a fiduciary relationship, parents, health practitioners and pastors have a duty of care, and ought to exercise discretion in determining what is in the best interests of persons under their care.  For this reason, vague descriptions such as ‘a practice includes, but is not limited to the following…’, ‘providing a psychiatry or psychotherapy consultation, treatment or therapy, or any other similar consultation, treatment or therapy’ should be avoided.  It would be far more helpful to clearly define in concrete terms what specific conversion practices are prohibited, because each prohibition would incur a restriction on the freedom of discretion of the said care providers.

Fifth, it is not at all clear what kind of ‘religious practice’ or ‘prayer based practice’ would be regarded a criminal offence.  This vagueness provides a legal mine field for prosecutors as well as anxiety for pastors and religious communities.  If a person claims that he suffers injury at Sunday school where the Bible story of Adam and Eve is read, would the people in charge of Sunday school be liable to prosecution?  If another person claims to suffer harm by the Prayer of the Faithful at a wedding Mass, would that make the prayer a criminal offence?  And how can these restrictions on religious practice and prayer practice be reconciled with the Victoria’s Charter of Human Rights and Responsibilities Act 2006,[4] which states, “Every person has the right to freedom of thought, conscience, religion and belief, including… the freedom to demonstrate his or her religion or belief in worship, observance, practice and teaching, either individually or as part of a community, in public or in private”?

These concerns need to be addressed to ensure that conversion practices are abolished without unnecessary encroachments on the role of care providers and the freedom of religion of Victorians.  As presently drafted, the Victorian bill is over-broad and vague in key provisions which could impact adversely on the health and well being of vulnerable young people who need help and support from family members and professionals whom they can trust.  Those family members and professionals need legal certainty when determining what assistance is necessary or desirable.

[1] https://www.premier.vic.gov.au/banning-cruel-conversion-practices-good, accessed February 1, 2021.

[2] https://www.legislation.qld.gov.au/view/pdf/bill.first/bill-2019-069, accessed February 1, 2021.

[3] https://content.legislation.vic.gov.au/sites/default/files/bills/591143bi1.pdf, accessed February 1, 2021.

[4] https://content.legislation.vic.gov.au/sites/default/files/2020-04/06-43aa014%20authorised.pdf, accessed February 1, 2021.