Victoria's Conversion Practices Bill - detailed answers from the Victorian Commissioner for LGBTIQ+ Communities
Eternity has received answers to a long list of questions about the Victorian Conversion Bill which we sent to the office of the Commissioner for LGBTIQ+ Communities, within Victoria’s Department of Premier and Cabinet. We believe that this information will help people gauge the effect of the bill. We hope we asked the right questions. Our aim is neither to argue for or against the bill, but to provide information. We’d like to thank the Commissioner, Ro Allen, for making staff time available to answer our questions. In this article, we use the descriptor LGBTQ – as used in the bill and at the suggestion of the Commissioner’s staff – because the bill is focused on those communities. Eternity’s questions are in italics. Any comment by us subsequent to the DPC answers are in [square brackets]. John Sandeman
1. In the Change or Suppression (Conversion) Practices Prohibition Bill 2020 a “change or suppression practice” is defined to include “carrying out a religious practice, including but not limited to, a prayer-based practice, a deliverance practice or an exorcism.” Is it possible to have a fuller list of what religious practises will be regarded as a change or suppression practice?
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These religious practices given as examples are among those known to cause the most harm to people. Other religious practices that will be covered by the law will be any religious practice that is directed at an individual person to try to change or suppress their sexual orientation or gender identity.
As the Explanatory Memorandum goes on to say, the Bill “is intended to capture a broad range of conduct, including, informal practices, such as conversations with a community leader that encourage change or suppression of sexual orientation or gender identity, and more formal practices, such as behaviour change programs and residential camps.”
2. Bearing in Mind the Statement of Compatibility presented alongside the bill includes “Although broad, the definition has been carefully designed to exclude conduct that is not directed at an individual, to reduce its impact on religious practices such as sermons. It also requires conduct be engaged in for the purpose of changing or suppression a person’s sexual orientation or gender identity (or inducing a person to change or suppress) to limit impact on general discussions of religious beliefs around sexual orientation or gender identity that aim to explain these beliefs and not change or suppress a person’s sexual orientation or gender identity.”
Does this mean a general sermon or teaching, or prayer, not directed at an individual, will not be regarded as a cause of harm or serious harm? It should be noted that sermons often are aimed at changing behaviour.
It’s not for us to say whether general teachings may cause harm. We can say that general sermons or teaching, or prayer, that are not directed at an individual, are not covered by this Bill. As the Statement of Compatibility says, this is “…to reduce its impact on religious practices such as sermons”.
Victoria’s Charter of Human Rights and Responsibilities is about balancing rights, and people have the right to their beliefs. Some sermons may express beliefs that seem contrary to the aim of this Bill, which affirms that people of faith have the right to express their views, but not to force them upon other people. The law becomes triggered when it is aimed at changing or suppressing an individual.
3. In the study “Preventing Harm Promoting Justice: responding to LGBT Conversion Therapy in Australia” a number of case studies involve the experience a LGBT people in religious environments. Their experiences include teachings to “pray the gay away”, experiencing the disapproval of ministers and congregations which experiences they report harmed them. These activities may or may not have been targeted at the individual person in each case. Will there be experiences regarded as harm by LGBTIQ persons not covered by the bill?
This is unclear and may be determined when such a case is raised. If, for example, a religious leader was providing lessons to LGBTIQ people to “pray the gay away”, it could possibly be captured under this law as inducing a person to try and change their sexual identity or gender identity.
This law will be reviewed in two years.
4. Prayer is specifically mentioned in the Bill. Which prayer practices will be regarded as offenses?
a) Praying with a LGBTIQ person that they might change their sexual orientation.
b) Praying with a LGBTIQ person that they might be celibate.
c) Praying in general terms that LGBTIQ persons might change or be celibate?
If general prayer in c) is reported to the Commission what is the likely response? Will the Commission attempt to stop that sort of prayer?
The law would possibly be engaged by the first practice, where the praying is with the LGBTQ person in an attempt to change or suppress their sexuality or gender identity. The second 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. Praying in general terms will not engage this law. In short, you can pray for a person, but not at them or over them. [The writers of this answer are possibly unaware that “praying over” is used metaphorically by many Christians to mean “praying for”].
If general prayer in c) 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.
There will be a 12-month period before the law starts, in order to allow important implementation work to be completed. The Victorian Equal Opportunity and Human Rights Commission will lead this and consult widely with Victorians.
5. There are verses in the Bible that traditionally are held to teach that homosexual activity is against God’s will. Which teaching practices (for example a sermon or bible study) will be regarded as offenses.
a) Is it an offense to teach that the Bible says homosexual sex is wrong?
b) Is it an offense to teach that the Bible is authoritative for Christians and that it says homosexual sex is wrong?
c) Is it an offense to teach that LGBT persons should be celibate?
Do these teaching activities cross the line to become offences if an individual is targeted – in public or in private?
Will the educational role of the Commission act to discourage the general teaching that the Bible says homosexual sex is wrong?
None of the above scenarios are offences, as suggested by the question, as offences require injury to be proven which is very unlikely to arise from a sermon about religious views.
The educational role of the Commission will be determined during the 12 months before the Bill commences
6. a) Is it an offense for Eternity (or other Christian media) to report that Christians are teaching that homosexual sex is against God’s will?
b) Is it an offense for Eternity to run an opinion piece, or report someone’s opinion that homosexual sex is against God’s will?
c) Is publishing, distributing or selling documents such as the catechism of the Catholic church an offense? What about books or other material that espouse the conservative view?
Again, it will not ban discussing and sharing religious teachings on sexuality – unless it is directly used to change or suppress sexual orientation or gender identity.
It will make it an offence to “publish, display or authorise the publication or display of an advertisement or notice that indicates that a person intends to engage in a change or suppression practice (or practices), other than for the purposes of warning of the harm caused by such practices.” This will include advertising of paid and unpaid services or practices. Importantly, the offence only applies to advertising that person intends to engage in change or suppression practices, not about a person’s views on such practices.
7. Will denominations or churches be liable if a preacher, or simply an adherent is found to have engaged in conversion or suppression practices?
There are certain scenarios where an employer or similar may be liable for actions.
In relation to criminal offences, clause 15 outlines scenarios where a body corporate may be found to have committed a criminal offence. However, it is a defence for the body corporate to prove that it exercised due diligence to prevent the conduct engaged in by the officer
In relation to the civil scheme, clause 47 states that if someone engages in a change or suppression practice in the course of their employment (including as a volunteer) “both they and their employer or principal are taken to have engaged in the change or suppression practice” and that both the person and/or the employer or principal could be reported to the Commission.
There’s a subclause which suggests that provides an exception to this vicarious liability “if an employer or principal can prove, on the balance of probabilities, that they took reasonable precautions to prevent the natural person from engaging in the change or suppression practice.”
8. There are churches in Victoria that hold conservative doctrine on LGBTQ matters. Is the bill and the activities of the Commission aimed at making churches change their doctrine?
If we consider Church doctrine to be “a belief, or set of beliefs, held and taught by a Church” then the Bill will not impact on those beliefs being held. No church is being asked to change their beliefs.
9. If a Christian holding a traditional view is asked what they believe what are the constraints on discussing this in private or public with an LGBTIQ person? Are there any guidelines as to what is permissible? How does this affect parents? Teachers of religion in schools? Are there guidelines to help people respect the intent of the bill?
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.
10. Barney Zwartz asked in The Age: “For two millennia, the Church has advocated that people should refrain from sexual relations outside marriage. What if a young heterosexual and a young homosexual seek counselling about struggles in this area – a not uncommon scenario? Is a pastor to advise the heterosexual but remain silent to the homosexual?”
A question that I have been pondering is where does the boundary lie between a “general discussion” of a religion’s teaching and something directed at an individual? Imagine you are at the Melbourne Cricket Ground and Billy Graham is preaching. He’s preaching to the crowd, but when he asks people to believe in Christ, it feels like he is talking to you personally.
It is not a change or suppression practice to provide support to someone to remain celibate before marriage, regardless of whether the individual is heterosexual or homosexual. This is because ‘saving sex for marriage’ is not done on the basis of an individual’s sexual orientation or gender identity. However, practices which require LGBT people to remain celibate for their entire life on the basis that they are LGBT is likely to be a change or suppression practice.
It’s consistent with the other answers that, if the preacher is talking about people refraining from sex outside of marriage, then they will be addressing anyone who may get married, which now includes gay, lesbian, bisexual and trans and gender diverse people in Australia. Those who sermonise will not be restricted from doing so by this law.
[The interaction between a church teaching against same sex marriage and teaching about celibacy outside of marriage is an obvious follow up question.]