Christian legal academic Neil Foster looks at “gay conversion therapy” under a proposed Queensland law. The Victorian and ACT governments are expected to propose similar changes to the law.
Prohibitions on “gay conversion therapy” are becoming popular with legislators. Of course, no sensible person supports someone being administered – against their will – electroshock therapy or chemicals or oppressive bullying to make them change their sexual orientation (which are the sort of things most people think of when this phrase is used). But there is a real danger that legislation which goes beyond targeting these specific things will itself interfere with the freedom of people to seek to change unwanted behaviours.
Suppose there is a devout Christian person who accepts the Bible’s teaching that same-sex sexual activity is not God’s will, and yet experiences same-sex attraction. They approach their pastor or their small group leader and ask for help to overcome what they see as a sinful attraction, by reading the Bible with them, counselling and regular meetings for prayer. Is that going to be caught by legislation?
Take the current proposals which are before the Queensland Parliament. The Health Legislation Amendment Bill 2019 was introduced on November 28, 2019, and is being considered by a committee before being returned for debate. (Public submissions closed on Monday, January 6, 2020, and the report is due on Friday, February, 21, 2020.) Under Clause 28 of the Bill, a new chapter (5B) has been introduced into the Public Health Act 2005 (Queensland). It provides new sections on “conversion therapy” as follows (text in italics below indicate it is a direct quote from the Bill):
“213H Prohibition of conversion therapy
(1) A person who is a health service provider must not perform conversion therapy on another person.”
The key issues are then:
1. What is “conversion therapy”?
2. Who is a “health service provider”?
What is conversion therapy?
“Conversion therapy” is defined in new clause 213F:
213F Meaning of conversion therapy
(1) Conversion therapy is a treatment or other practice that attempts to change or suppress a person’s sexual orientation or gender identity.
• conditioning techniques such as aversion therapy, psychoanalysis and hypnotherapy that aim to change or suppress a person’s sexual orientation or gender identity
• other clinical interventions, including counselling, that encourage a person to change or suppress the person’s sexual orientation or gender identity
• group activities that aim to change or suppress a person’s sexual orientation or gender identity
Up-front it seems that the situation posed above might be covered. The pastor or group leader has been asked to assist the person not to be attracted to persons of the same sex anymore – that is arguably a “practice” (a broad word) that “attempts to change or suppress [the] person’s sexual orientation”. In the notes in small print (which courts may refer to) we see that “counselling” is listed, though it has to be a “clinical intervention”, which may raise some doubt. Would a request of the person’s bible study group to pray for them be a “group activity”? These questions from clause 213F(1) just do not have a clear answer.
We then see that certain things are specifically excluded from being “conversion therapy” under clause 213F(2):
(2) Conversion therapy does not include a practice that—
(a) assists a person who is 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.
While paragraphs (a) to (c) are not directly relevant to our question, I have included them to show the flavour of what is allowed. Almost anything to do with “gender transition” is excluded from being “conversion therapy”. But it is possible that paragraphs (d) and (e) may assist with our example. Someone seeking prayer and counselling from their church family may be said to be receiving “acceptance, support and understanding” in their desire to change their sexual attraction or behaviour. They may also be getting help which facilitates their “identity exploration and development”, if they are allowed to say which direction that should be.
The thrust of these two paragraphs is arguably that if the person themselves has requested the “treatment” then it will not be “conversion therapy”. But there is still some doubt. It would clearly be better, to avoid this doubt, to include a paragraph (f), for example, that conversion therapy does not include a practice that “is undertaken at the free and informed request of the person concerned, who has requested counselling, prayer or other assistance to overcome an unwanted sexual attraction or cease engaging in an unwanted sexual activity”.
Who is classified as a “health service provider”?
To some extent the above issues would be moot if no pastor or small group leader would be regarded as being bound by section 213H. But, again, things are not so clear.
The definition of “health service provider” is taken from the Health Ombudsman Act 2013 (Queensland) – or “HOA” – section 8 (see the cross-reference in the new section 213E.) Under section 8(a)(ii) of that Act, this includes, as well “health professionals”, “an individual who provides a health service”. The phrase “health service” is, in turn, defined in HOA section 7(1) to include “a service that is, or purports to be, a service for maintaining, improving, restoring or managing people’s health and wellbeing”. A pastor who undertakes to assist someone, in our example, is offering a “service” (in broad terms) that is intended to “improve” or “restore” someone’s “wellbeing” (in broad terms).
It may be that a court, when confronted with the question as to whether a local pastor in this situation is intended by Parliament to be a “health service provider”, would say they are not. But it would again seem to be something that may need to be clarified.
Even if the end result may be that the Bill will not have an impact in the example given, there is, in my view, more than enough uncertainty for Parliament to clarify these matters before the Bill is passed. If MPs are sure that this situation is not what the Bill covers, they should be happy to say so by amending the draft to be clear.
In particular, the example I have discussed does not cover the situation of a Christian psychologist who is approached in similar circumstances. That person will clearly be a “health service provider”. If asked to assist by a patient who earnestly and freely desires to cope with unwanted sexual attraction, they should be able to do so without fear of legal penalty. In such a case they may also have some protection under section 213F(3):
(3) Also, conversion therapy does not include a practice by a health service provider that, in the provider’s reasonable professional judgment, is necessary to—
(a) provide a health service in a manner that is safe and appropriate; or
(b) comply with the provider’s legal or professional obligations.
But again, this wording is ambiguous. “Safe and appropriate” are very broad words. It would be better to specify that a patient is free to choose to seek this help and that a professional will not incur any penalty in providing it.