In late 2020, the Change or Suppression (Conversion) Practices Bill was introduced into the Victorian parliament and passed into law in early 2021. While the Victorian Women's Guild supports the banning of harmful conversion practices, we raised several concerns related to the proposed legislation and brought these to the attention of politicans. Our concerns centered around the fact that the Bill was poorly drafted with vague language that conflates sexual orientation and gender identity and will ultimately harm vulnerable members of society rather than help them.
Three inquiries into change and suppression practices in Victoria found evidence of these practices were aimed at same-sex attracted people only; and that the most harmful of these were historic. They found no evidence of change or suppression practices based on a person’s gender identity, but recommended a prohibition regardless.
What follows are the concerns of the Guild that were sent to all politicains leading up to the parliametary debate in early 2021
Don’t change the definition of sexual orientation or gender identity:
The Guild supports banning harmful conversion or suppression practices on the basis of sexual orientation. It is the way this bill has changed the definition of sexual orientation in the Equal Opportunity Act that we object to. The current definition of sexual orientation: “homosexuality (including lesbianism), bisexuality or heterosexuality” is a clear and workable definition.
Meanwhile, the suggested new definition: “a person’s emotional, affectional and sexual attraction to or intimate or sexual relations with, persons of a different gender or the same gender or more than one gender,” is unintelligible because 1) sexual orientation is experienced on the basis of a person’s sex, not gender; and 2) the Bill does not define gender and poorly defines gender identity.
The Bill proposes redefining gender identity as “a person's gender-related identity…” and then proceeds to suggest a person would express this gender identity by performing stereotypes of this “gender” through mannerisms, style of dress, etc.
This is a poor definition because:
A definition of an object cannot refer to the object. This is called circular reasoning and it is a logical fallacy.
The way this definition of gender could then be applied to the definition of sexual orientation ignores the fact that most people understand their sexual preferences to be based on sex, rather than gender.
Sex is an observable, material reality. Gender is a set of cultural traits imposed on people of a particular sex. They are different concepts and should not be used to positively define the other, only to state that one is not the other. Is this bill meant to help/protect people of a specific, observable and definable class or is it designed to protect people who perform stereotypes of a class?
Revise politicised language and provide clearer definitions
The Bill’s Objects include ensuring that “all people feel welcome and valued in Victoria and are able to live authentically and with pride.” The Purposes and Objects of an Act should assist a court or tribunal to interpret the Act, where such questions arise. How would this object help a court or tribunal? These are some common scenarios we see taking place that would be hard to adjudicate:
If a youth worker is investigated by the Victorian Equal Opportunity and Human Rights Commission for engaging in suppressive conduct for having chatted to her female client to explore whether she is lesbian rather than a transman, and that youth worker is a lesbian woman who had the same questions of herself when she was a teenager, how would the Commission balance the right of the lesbian youth worker to live with pride and that of the teenager?
If a group of lesbian women, concerned about the growing preference amongst young women for being trans rather than lesbian, handed out pamphlets encouraging young women to consider that they may be lesbian rather than undertaking gender transition, and one of those people (or group) made a complaint against the lesbians for engaging in conduct aimed at suppressing their transgender identity, how would the Commission interpret lesbian's rights to live authentically and with pride promote their own preference? We say that it is unlikely that the lesbians would be protected. The intent of this bill is more to repress lesbian rights and prioritise trans rights.
The bill aims ‘to denounce’: this is highly unusual language for Victorian law and points at the politicised nature of the bill’s development. As A/Prof Neil Foster notes, we only see Victorian law refer to denunciation as one of the purposes of sentencing of convicted offenders, whereby judges are allowed to order sentences which denounces the type of conduct in which the offender engaged.
Explain this: What does it mean to suppress gender identity? What does change or suppression conduct mean?
There is a common understanding in the community of what changing someone’s sexual orientation means. However:
The bill actually criminalises any therapy that would allow a person to explore whether they are homosexual rather than heterosexual.
Changing gender identity could mean helping a person ‘detransition’ - for example supporting a girl who identified as a transgender boy but now returns to being a girl (or a boy > girl > boy). Would this be criminalised?
The act does not define ‘suppress.’ Do these acts count as suppression?
If a feminist exhorts a woman to stop wearing gendered clothes, or to reject gendered mannerisms or personal preferences (“Hey sister, you participate in your own oppression when you wear high heels and make-up”), is she suppressing the woman’s gender identity?
If a woman consults a therapist in the course of exploring and/or questioning her sexual orientation, is the therapist suppressing the woman’s (former) orientation?
The act does not define change or suppression conduct. Do these scenarios count as change or suppression conduct and would it make criminals of parents, youth workers, teachers and healthcare workers?
Parents want their daughter to wait until their daughter is older before making a decision to go on cross-sex hormones to transition their appearance to being more sterotypically male. The parents concern is based on the severe effects this would have on their daughter’s fertility, sexual function and overall health;
A teacher encourages her female student to consider whether the discomfort this young person feels with their body is because of a range of alternatives that don’t equate to being trans. For example: it may be simply because they don’t conform with gender stereotypes for women; the young woman may actually be a lesbian; it may just be the typical discomfort most youth experience as part of the course of puberty;
A youth refuge worker refuses to allow a male youth who says he identifies as a woman to share the sleeping quarters with young women;
A doctor does not immediately affirm a person’s claim to be the opposite sex but instead suggests that they wait for a while and explore a range of psychological and health issues before commencing any medical treatment.
We note that in Victorian law, a person can change their legally recorded sex on their birth certificates as often as once a year. If a person supports a person to change their legally recorded sex (which some would say is the same as a gender identity), is this person in breach of the law? Or are they only in breach if they’re helping the person go from being transgender to their sex?
Change how the Bill handles matters of consent:
The bill even bans practices done with a person’s consent. It seems to fly in the face of established legal principles that even practices done without coercion should be criminalised and subject to sanctions of up to ten years imprisonment.
If a young person who has transitioned would like the assistance of a health service provider to detransition, and wants the support of their teachers to manage this in the school community, the professionals should be able to do so without fear that they’re breaching the law.
Decrease the powers of the Victorian Equal Opportunity and Human Rights Commission (VEOHRC):
The Bill requires VEOHRC to engage in public information campaigns. The bill also gives VEOHRC extraordinary powers to accept reports of change or suppression practices and facilitate mediations; and to investigate complaints. This puts VEOHRC in the position where it has a vested interest in finding change or suppression practices in Victoria, even though the three inquiries leading to the bill did not identify harmful conversion practices in Australia on the basis of gender identity. So what will VEOHRC find and who will they subject to investigation and ‘re-education’?
The Bill became law in early 2021.
The situation in other Australian States and Territories
NSW: The state Labor opposition has come out in support of the Victorian legislation.
QLD: The Health Legislation Amendment Bill was passed in 2020 banning conversion therapy
SA: A Bill will be introduced soon
WA: The Labor party went to the last election with a commitment to introduce a Bill as soon as possible.
TAS: The Tasmanian Law Reform Institute recently conducted a consultation process on the issue. Legislation has yet to be introduced.
ACT: The Sexuality and Gender Identity Conversion Practices Bill was pased in 2020
NT: There is currently no discussion in the NT about possible legislation..