Australia's first laws banning gay conversion therapy

Australia’s first law banning “gay conversion therapy” has been passed by the Queensland parliament.

The new law has been described by the Australian Christian Lobby (ACL) as enforcing a “radical gender ideology during a pandemic and in the final sitting days before an election,” while an advocacy group of survivors says it is “not strong enough“.

The “gay conversion therapy” law is part of the Health Services Amendment Bill, most of which was uncontroversial according to Health Minister Steven Miles (for example, giving First Nations peoples “a direct and fairer say in how health services are delivered throughout Queensland”).

But clause 28 amends the Public Health Act to prohibit “the practice of conversion therapy by health service providers in Queensland”.

What is Conversion Therapy?

“Conversion Therapy is a treatment or other practice that attempts to change or suppress a person’s sexual orientation or gender identity,” as defined in Clause 213F of the bill. Examples in the Bill include aversion therapy, psychoanalysis, hypnosis, counselling and group activities.

Does it apply to chaplains and pastors?

“Twenty-three submissions raised concerns that the definition of ‘health service provider’ is likely to extend beyond medical practitioners to psychologists, psychiatrists, counsellors of all types, pastors, Christian charities and school chaplains,” the Parliamentary Committee examining the Bill reported.

“Religious or spiritual interventions … are not prohibited by the Bill.”

Queensland Health advised the committee that … “the Bill only prohibits conversion therapy when performed by a health service provider. In general, this means conversion therapy is only prohibited to the extent that it involves the provision of a health service.”

“Religious or spiritual interventions, such as prayer or religious guidance or teaching, are not prohibited by the Bill, even if these practices aim to change or suppress a person’s sexual orientation or gender identity. Subject to the comments below, it is unlikely that the actions of a Christian charity, pastor or school chaplain would be considered conversion therapy for the purposes of the Bill.

“There may be instances where a person providing a faith-based conversion therapy is also providing a health service. For example, a doctor who administers a prayer-based treatment to a patient who has sought medical advice about treatments for gender dysphoria may be committing an offence. However, whether a practice is purely religious or spiritual, and is therefore permitted, or involves the provision of a health service will depend on the facts and circumstances of the case. Factors that may influence whether a practice is religious or spiritual or a health service include:

  • The setting where the practice is performed (for example, an office, clinic or church);
  • Whether the person performing the practice does so in a professional capacity or in their personal capacity as an advocate of religious or spiritual teachings; and
  • Whether the person performing the practice makes health related claims, such as that the individual has a disease or disorder that can be cured by the practice, or that the individuals’ experience of stress, mental health issues or other health issues will be alleviated by the practice.”

Pressure from the Doctors

An amendment was passed to meet objections to the Bill, raised by the Australian Medical Association (AMA) Queensland and other medical professional groups, that this legislation may promote gender-affirming treatment as the only form of treatment.

AMA Queensland’s submission said it was concerned that Clause 28 “could lead to the prosecution of health professionals providing evidence based practices and have the potential to limit therapeutic approaches supporting children and adolescents presenting with gender dysphoria. Our main concerns are:

i. The legislation could lead to the prosecution of health professionals providing evidence based practices.

ii. Potential for the legislation to limit therapeutic approaches supporting children and adolescents who present with gender dysphoria.”

The amendment added this clause

“Conversion Therapy does not include a practice that –
(a) assists a person undergoing a gender transition; or
(b) assists a person who is considering undergoing a gender transition; or
(c) assists a person to express their gender identity; or
(d) provides acceptance, support and understanding of a person; or
(e) facilitates a person’s coping skills, social support and identity exploration and development.”

Responses

Whether this amendment is sufficient to give the medical professions enough discretion is at the heart of ACL’s response.

“Doctors now face the risk of criminal sanctions for not affirming the chosen gender of a gender-dysphoric patient,” ACL state director Wendy Francis said.

“The amended Bill … is still fundamentally flawed and dangerous.” – Wendy Francis

“The bill was broadly panned by the AMA Qld, the National Association of Practising Psychiatrists, the Qld Law Society, eminent professors of medicine and law and the ACL itself.

“While the amended Bill allows the narrowest leeway for practitioners to adopt a cautious approach, it is still fundamentally flawed and dangerous.”

According to a LGBTIQ lobby group, the Bill should have captured religious activity. “The vast majority of survivors currently come from conversion practices that are done in informal spaces, like in religious groups or pastoral care,” said Chris Csabs from advocacy group SOGICE Survivors.

SOGICE is an acronym for “Sexual Orientation and Gender Identity Change Efforts,” the term activists prefer.

“The Queensland legislation focuses on the health stuff rather than anything else, so it’s actually missing the vast majority of survivors and it’s not actually very protective at all.”

Eternity covered the story of the SOGICE Survivors group’s lobbying efforts against religious activity on LGBTIQ issues.

The group claims to support religious freedom but would like to see conservative ideas banned from the public square, at least.

Another submission

Another objection was raised by the Coalition of Activist Lesbians (Australia) which submitted: “We are concerned that sexual orientation and gender identity are combined into the same clauses of this Bill. This results in significant tension in the Bill because harsh medical treatments are outlawed for sexual orientation conversion, while extreme surgery and dangerous hormones are condoned and supported for children, in the case of gender identity.”

The ACT plans a tougher law

A Bill before the ACT Legislative Assembly will target “conversion practices” beyond the health system.

“Recognising that conversion practices often occur outside of formal health settings, this Bill provides for a civil complaints mechanism in relation to any person who performs a conversion practice, and this is not limited to health providers,” according the the Bill’s explanatory statement.

The Sexuality and Gender Identity Conversion Practices Bill 2020 uses similar language to the Queensland Bill to define a conversion practice, but the balancing rules for medical practitioners appear to be narrower. The criminal sanctions in the Bill are directed at activities involving a vulnerable person (young or with a disability).

The Bill creates a path to complain about conversion practices to the ACAT (ACT Civil and Administrative Tribunal) which can order a person to “cease and desist” a practice and provide compensation to someone affected by the practice. This wide provision is likely to capture religious activity that seeks to change a person’s sexual orientation or gender identity. The bill specifies there is no monetary limit on the compensation the Tribunal may impose.

The Bill’s explanatory statement claims that a balance between religious freedom and preventing harm is being sought – but it is clear that some religious activities are being banned.

This is explicit: “The measure does not limit the right to have or adopt particular beliefs or to hold particular opinions and does not limit the right to teach religious tenets, but limits the demonstration or manifestation of those beliefs where they are directed at changing sexuality or gender identity, given the evidenced impacts on the rights of others.”

“Particular safeguards are in place to ensure that the measure is the least rights restrictive approach. The definition of conversion practice is deliberately targeted and confined to practices the purpose, or purported purpose, of which is to change a person’s sexuality or gender identity. This targets the prohibition at practices that are demonstrably harmful and based on unfounded claims as current evidence indicates that it is not possible to achieve such a change in reality. The prohibition does not interfere with religious teachings more broadly.”

Whether or not it is possible to neatly differentiate “teaching” and “manifestation of beliefs” will be tested if this Bill becomes law.

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