Loose ends left after Victoria's Change and Suppression Prohibition Bill passes

Getting the Change or Suppression (Conversion) Practices Prohibition Bill 2020 through the Victorian upper house was a long night for the Attorney-General Jaclyn Symes. The bill was not created under her watch, as she’s recently taken over the portfolio, so we should cut her some slack when we describe what seems to us to be a slip in answering a question on the night.

It’s on the important subject of celibacy. For Eternity it appears to be a major unresolved issue. Here’s a key part of the debate in the Victorian Upper House during the late-night session that passed the bill.

Victoria's Conversion Therapy Bill


“Mr LIMBRICK: In clause 5(1)(b), where it refers to: for the purpose of—
(i) changing or suppressing the sexual orientation or gender identity of the person … one thing I would like to clarify that has been put to me and is of concern to a number of organisations—I would like to get the Attorney’s thoughts on this—is: is encouraging someone to remain celibate suppression? Assuming that it meets the other criteria for coming under this act, is encouraging celibacy—so accepting their sexuality, so we are not rejecting that they are same-sex attracted or anything like that? So we are accepting that they are same-sex attracted but we encourage them to remain celibate.

“Ms SYMES: The short answer is no, not if it is taught regardless of sexuality.

“Mr LIMBRICK: I thank the Attorney for her answer. One of the specific cases of this that was put to me in a letter from the Board of Imams Victoria was around, I think it is a doctrine called Nasiha. My understanding is under Islam it is an obligation to provide direct advice, and so their concern they said was that they do not see people as broken or ill or anything like that, but they have an obligation when someone says that they are same-sex attracted to tell them to not engage in same-sex practices. They are not denying their sexual orientation. Can the Attorney confirm that that would not be caught by this definition and it would be safe for them to continue this practice?

“Ms SYMES: Without giving my personal views on telling someone what they should and should not do sexually, I would bring you back to the definition of a ‘change or suppression practice’. Telling someone not to engage in sexual activity does not offend the bill because it does not induce the person to change or suppress their sexual orientation or gender identity. If just simply the instruction is not to engage in sexual activity, that does not offend the bill.

“Mr LIMBRICK: Thank you, Attorney. That does clarify it somewhat. Even if the intent of encouraging them to remain celibate is because they are same-sex attracted, that still would not fall under the provisions of this bill?

“Ms SYMES: No. You could tell somebody who is same-sex attracted not to have sex or you could tell somebody who is attracted to the opposite sex not to have sex, and that would not offend this provision. This provision is only enacted if you are seeking to change that person’s sexual orientation of who they want to have sex with.”

The attorney made this point twice, not once, answering two separate questions.

Eternity will be surprised if it turns out that teaching, prayer or counselling directed at a LGBTQ individual that they should be celibate (refrain from sex) is not a practice banned by this bill.

When we asked the office of Commissioner for LGBTIQ+ Communities about praying with a LGBTQ person that they would be celibate Eternity was told “The .. point, around celibacy, would probably only be triggered by this law if the celibacy was on the basis of a person’s sexual orientation or gender identity with the purpose of suppressing that person’s sexual orientation or gender identity.”

As the Attorney mentioned many times during the debate there’s a three-point test to work out what is a practice aimed at changing or suppressing a person’s sexual orientation or gender identity.

As the Attorney repeatedly said in the debate, “To amount to a change or suppression practice (CSP)

  • it has to be directed to an individual
  • on the basis of that person’s sexual orientation or gender identity
  • and the action must be attempting to change or suppress, or induce that person to change or suppress, their sexual orientation or gender identity.”

So, a sermon is not a CSP for the purposes of the bill. Most if not all sermons are aimed at changing human behaviour. But because they are not directed to an individual, they are not captured by the bill. Similarly, a prayer in a church service is not a CSP as it is not directed at an individual. But a prayer meeting, counselling, a camp or a Bible study might be if it meets all three criteria.

As the office of the Commissioner for LGBTIQ+ Communities told Eternity “Praying in general terms will not engage this law. In short, you can pray for a person, but not at them or over them.” We take that to mean that prayer directed a getting an individual to change is a CSP. But when we asked about “Praying in general terms that LGBTIQ persons might change or be celibate?” Eternity was told “If general prayer [that we asked about] is reported to the Commission, the Commission would not be required or empowered to do anything as this is not a change or suppression practice. The Commission would decline to consider the report.” It would be reasonable to assume the size of the gathering would probably feature too. It’s worth reading the full comments here.

The Commissioner also told Eternity “Despite what some people may have heard, any Christian, parent or teacher is still able to express their views and beliefs. It’s possible that someone may ask, for example, what you believe and, of course, you would give an honest answer. The constraints and guidance are quite clear on discussing this in private or public with anyone, including an LGBTIQ person.” With respect, we are not sure the boundary is clear. For example, we discuss families below.

But Eternity is puzzled by the Attorney’s celibacy answer. Telling an individual, on the basis of their sexual orientation, that they should be celibate, seems to be a suppression practice. We have asked the Attorney’s office about this and await clarification. We could be wrong.

If the attorney has it right that is good news for “Side B” gay Christians (who are celibate in obedience to Christ).

But also expect a big backlash from the left if counselling someone on the basis of their sexual orientation or gender identity to be celibate is not banned.

The Attorney is not the only one who may not be entirely clear on this bill’s effects. From the left progressives, including MPs appear to exaggerate the outcome from this bill. And conservative groups have painted vague or provided exaggerated commentary.

For example, the Greens member Dr Ratnam said during the upper house debate said of pastors, counsellors or doctors: “Instead of making you feel like you are okay and helping you understand that what you are going through is normal, they make you feel broken and in need of being fixed. That is what happens to members of our LGBTQ community. It happens in overt ways and it happens in covert and insidious ways. Today we close that dark chapter here in Victoria and begin a new era.” But speech such as sermons criticising homosexuality are not banned. The bill denounces referring to same sex attracted persons as broken, but it does not ban it.

Similarly, some Christian organisations have insisted that family discussions of homosexuality, where a parent might say the homosexuality is wrong are banned or make a blanket statement that “Traditional Christian doctrine is now the subject of criminal prosecution.” It’s vital to understand that in some instances this is true, but it would be helpful to be more precise.

So, what is banned?

Counselling, prayer, one-on-one conversations which meet that three-point test. If a claim is made that someone can change, orientation or suppress their sexual behaviour then the bill in engaged.

This extends to small groups, camps, and behaviour change courses (which are given as an example in the bill) where individuals are targeted.

What are the penalties?

For “serious injury” up to 10 years’ jail, or up to $10,000 in fines Serious injury is defined in the Crimes Act 1958 as one that endangers life and is substantial and protracted. Taking someone outside Victoria to perform a change or suppression practice could attract a two-year jail term. advertising a change or suppression practice could involve a fine of $10,000. If “Injury” is found by a court to have occurred lesser penalties apply.

For “serious or systemic” cases that don’t meet the level of criminal sanctions, the Victorian Equal Opportunities and Human Rights Commission “civil response schemes” can launch investigations and impose enforceable undertakings. (More details below)

So, can I say gay is not okay?

Yes. Here’s how the Attorney addressed that question in her speech during the debate. “I would acknowledge that for some this bill does not go far enough. It does nothing to prevent telling gay people they are broken. It does not stop anyone telling them they are sinners, or that they should be ashamed or worse. In a sense I am sorry that it does not do this, but I hope this bill does send a message that these views are wrong—and of course the vast majority of Victorians agree. The bill will also ensure that if you hold these views and you act on these views for the purpose of changing someone from who they are, you will be breaking the law.”

This applies to sermons, conversations, and family discussions.

Family discussions – need to clarify the boundaries

Eternity was given this response from the Commissioner for LGBTIQ+ Communities: “Despite what some people may have heard, any Christian, parent or teacher is still able to express their views and beliefs. It’s possible that someone may ask, for example, what you believe and, of course, you would give an honest answer. The constraints and guidance are quite clear on discussing this in private or public with anyone, including an LGBTIQ person. The Commission will develop guidance on many of these matters during implementation of the Bill, should it pass.”

However the bill also makes a change to the Family Violence protection Act adding an extra example of what is banned under that Act. “An adult child repeatedly denigrating an elderly parent’s sexual orientation, including by telling them it is wrong to be same-sex attracted and that they must change, or the adult child will no longer support them.”

This suggests that other acts of repeated denigration will be captured.

The examples at either side of what is permitted and what is banned are reasonably clear. But drawing a boundary between the two may be difficult.

A clear example of a banned change or suppression practice by families would be referring a family member to a course or a camp that seeks to change sexual orientation or gender identity.

Education efforts

Some details about how the Victorian Equal Opportunities and Human Rights Commission will carry out its “education” efforts against CSPs remains unclear. The staffing and budget have not been revealed, despite questions from opposition MPs, and may not have yet been determined. There will be a 12-month implementation period from when the bill is assented to. But the Commission has been given powers to investigate “serious” CSPs.

“This may then result in directing a person or organisation to take, or refrain from taking, certain actions, to comply with the Act. These undertakings and notices will be enforceable at VCAT (Victorian Civil and Administrative Tribunal).” according to a commission statement. VCAT orders, which can involve payments or orders that certain actions be taken or cease, can be enforced by a court.

From the parliamentary debate this is where the Government believes many CSP cases will be dealt with.

What’s clear

While parts of this bill need further clarification, the effect on many Christian ministries is already clear. Ministries meeting the three criteria for a change or suppression practice now have to decide whether or not to obey or defy this law. The Bill, key speeches, and official explanatory memoranda can be read here. Responses from close observers of the bill in our earlier coverage are here.

 

 

 

 

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