NSW must not repeat the mistakes of other states about conversion therapy legislation

John Steenhof
March 2, 2023
Reproduced with Permission
conversion therapy

In coming weeks conversion therapy will again be debated, as Independent MP Alex Greenwich has now drafted a bill to ban the practice in New South Wales. Tasmania's Premier Jeremy Rockliff is similarly committed to pushing ahead with conversion therapy legislation after pressure from the Greens.

"This is about stamping out a really cruel form of torture that targets the LGBT community," Greenwich said. However, the real area of contention is how far the ban goes in preventing prayer, parental support, and even "talk" based help.

My hope is that the processes in these jurisdictions will not be as deficient as the acts banning conversion therapy in Queensland, the ACT and Victoria.

In Queensland, the "conversion therapy" text within the omnibus Health Legislation Amendment Bill 2019 (Qld) was presented on 28 November 2019. Representatives of professional groups, including the Law Society of Queensland, were able to narrow the ban to health service providers, who were already regulated, by excluding religious practices. Rodney Croome, president of Equality Tasmania, called on the Labor Party in other states to do better.

The Sexuality and Gender Identity Conversion Practices Bill 2020 (ACT) was next. COVID conditions allowed only limited community consultation (although COVID did not inhibit the ACT government publicly consulting on other issues.) Consultation was confined largely to interested groups that helped shape the legislation. The Bill was first presented on 13 August 2020 for a vote the following week, which was postponed after a public outcry. The Bill was passed on 27 August 2020. Go to whoa in two weeks. Amongst its other shortcomings were the absence of formally endorsed Terms of Reference to guide stakeholders, confined stakeholder access to the Bill on which to base their comments, submissions not being published in the usual way, the absence of public hearings, and no detailed analysis of submissions, and no report with recommendations.

The Change or Suppression (Conversion) Practices Prohibition Bill 2021 (VIC) was introduced in the penultimate sitting week before Christmas 2020 and was passed a little over two months later. It deserves closest attention because it is the most radical.

Consultation began two years before the Bill was introduced but was deeply flawed. Its emphasis was which of the legislative options to ban conversion practices was favoured by the community, rather than whether such a ban should proceed. The government received repeated criticism for selective consultation: for failing to consult anyone but their own carefully hand-picked groups when drafting the legislation; for not consulting certain gay and lesbian organisations which strongly opposed the legislation; and for not listening to the "huge variety of important points" raised by parents, doctors, lawyers and members of the LGBT community.

Evidence contradicting the government's narrative was sidelined. The La Trobe University report, Preventing Harm, Promoting Justice, was an important influence on the legislation, but it reported only negative experiences, from only 15 people, and focused mainly on religious practices. Another survey, with five times the number of responses and contrary findings supporting religious practices, was ignored. Dozens from one Legislative Council member's constituency complained that they had responded to the consultation with free-form comments with their positive experiences, yet none of them were included in the report's consultation outcomes.

Inconvenient issues were not explored. Neither the La Trobe study nor an Engage Victoria consultation appeared to consult with transgender individuals, in spite of the Bill's coverage of gender identity. Appeals fell on deaf ears to reconsider the Bill in light of the discredited "affirmation treatment model" in gender transitioning which led to the closure of the Tavistock Clinic.

The essence of the government's position was, "change and suppression are effectively the same". It was pointed out that although the legislation was based on "survivor" experience of change practices, it applies equally to suppression practices which are quite different, as it is quite common for people to suppress part of their sexuality for many various reasons.

Pointing to inconsistent assumptions made by the Victorian government about the efficacy of suppression it was observed that there are effective behaviour change programs in Victoria for sex offenders who are required to undergo treatment. In debates the questioning of virtually any aspect of conversion therapy legislation was represented as homophobia and transphobia.

Restrictions on prayer in the Bill attracted a lot of criticism, particularly since polls indicated that as many as 75 percent of Victorian adults considered that praying for a person struggling with gender identity should not be a criminal offence. The newly installed Attorney-General Jaclyn Symes explained that she had to refrain from unparliamentary language in her response:

I will say it again and I will continue to say it, that this bill does not outlaw prayer, it does not prevent health professionals from doing their job, it does not stop parents from talking to their kids about their views on sexuality or gender, and - to use the words of Ms Terpstra, because anything else would be unparliamentary -to suggest anything to the contrary is rubbish... some of those people pushing those falsities have done nothing more than do their cause harm.

The Attorney was referring to Sonja Terpstra's remarks that: '[t]his idea that...it is going to stop people from praying - rubbish, rubbish, rubbish, and you know it is rubbish... And...people being not allowed to pursue their faith is rubbish, absolute rubbish,' '[h]ow ridiculous...you can pray, do whatever you like.' Only to be clarified by Ms Terpstra, but '[i]f you are praying at somebody by saying, "You must repent", or whatever it is, that is offensive, and that will be captured by the legislation.'

The Attorney-General had to concede that practices such as prayer could be considered a "change or suppression practice". The factsheet posted by the Victorian Equal Opportunity and Human Rights Commission confirms this.

All amendments (except to correct the government's own typo) were rejected. The insistent government approach was "It's all or none".

The enforcement powers add to the impression that the results will be dire and divisive. It was pointed out that the new complaint mechanism could encourage activists to flood the government with spurious complaints. The new Act singles out religious practices.

Are these concerns exaggerated? Victoria Police have a webpage that makes it easy to report a change or suppression (conversion) practice, and assures the public that Victoria Police takes all reports of these practices seriously, including by conducting criminal investigations. By the way we are still just talking about things like counselling, support groups, and prayer, not (in this day and age) electric shocks. "If anyone is in danger, a crime is currently occurring, or you need immediate police attendance, please call Triple Zero (000)."

The NSW Parliament must resist pressure to repeat the same mistakes. It should open an evidence-based parliamentary inquiry. It should hold public hearings. It should listen to the voices of dissenting gays and lesbians. It should protect the right of people to seek whatever help they want, from whoever they want, in accordance with the human rights of all concerned.