On Thursday 10 December 2020, the Victorian Assembly will debate a bill to prohibit 'change and suppression practices.' This is bad law and should be opposed.
There is no evidence of gender-based conversion therapy occurring in Victoria so we're banning something which doesn't happen.
The bill may well have the impact of scaring health service providers into either not treating people with gender dysphoria or only treating them with the affirmation model, which was discredited in the recent Bell v Tavistock judgment in the UK.
The bill captures such a broad range of practices (i.e. conversations between friends) that it will require courts to interpret it very restrictively. This is terrible drafting.
The bill also provides such a broad defence to health service providers that it would likely be impossible to prosecute any - so again, this is a bill which is unworkable but could have a chilling effect on thought and therapy.
The bill contains ridiculous and unworkable definitions of gender and same sex attraction.
See our summary of the Bill below.
In 2018, the Human Rights Law Centre and La Trobe University released a report on conversion therapy in Australia. It focused on conversion therapy aimed at homosexual people and contains tragic stories of the terrible impacts of such practices. It also contained many references to conversion therapy aimed at transgender people, though no evidence of this as a practice.
In response to this report, later that year, the Andrews Government asked the Health Care Commissioner to inquire into such practices. The report of that inquiry was never released in full; only a three-page executive summary is available. The summary only refers to stories about people who experienced same sex conversion therapy, but conflates this with ‘gender identity conversion therapy.’ It does not appear that there is any evidence based for suggesting that 1) there is any shared or workable understanding of what conversion therapy is in relation to gender identity or 2) that there is any sort of actual problem of conversion therapy in relation to gender identity in Victoria.
The Department of Justice and Community Safety (DJCS) held an inquiry in October 2019 into conversion practices. They share four cases in their outcomes report regarding people’s experiences of these practices; all relate to same-sex attracted persons. There is no evidence in the Outcomes Report of any practices in Victoria aimed at changing or suppressing a person’s gender expression.
There should be widespread outrage that the Andrews Government is banning a practice on the basis of no evidence of that practice occurring. Unfortunately, it appears that many people do not understand the difference between attempts to conversion same-sex attracted people and so-called conversion therapy on the basis of gender identity.
Criticism of the Bill
1. There is no evidence of there being any sort of 'conversion therapy' on the basis of gender identity in Victoria, either now or in the past. The bill is based on several very small-scale consultations which focus on conversion therapy aimed at homosexual people and it conflates sexual orientation and gender identity.
2. The bill bans something which is unexplained at law and nebulous. What does it mean to change or suppress a gender identity? The bill says 'affirmation' is not change or suppression; is the 'wait and watch' approach a form of suppression? If a psychiatrist challenges a gender dysphoric teen as to whether or not they really could be the opposite sex, is this a change practice? This should clearly not be criminalised.
3. At section 5(3), the bill specifically names health services as possible sites of conversion or suppression practices, but at section 5(2), the bill sets up a defence that a health service provider practice is not a conversion or suppression practice where it was done, in their reasonable professional judgement, to provide a necessary health service. So probably most health service providers will have a defence, if they are charged; and this is bad law. What is the point of drafting a law which sets up health services as prima facie prohibited conduct to which all health service providers will have a reasonable defence? The point of this is to create a chilling effect on health services, so that any practitioner considering treating a gender dysphoric person will hesitate to either treat them or to do anything other than 'affirm' even where that conflicts with reality and requires the practitioner to collude with a delusion (the delusion being that a person can change their sex).
4. The bill does not provide an exhaustive list of sites of conversion or suppression practices, but notes that they include health services, religious practices, and referral to same. Presumably, a conversation between two friends would not be considered a conversion or suppression practice, but it could. The bill is so broad, that it will require courts to interpret it in such a way as to restrict its application. This is bad drafting and will be bad law.
5. The bill bans practices which occur with the person's consent. This conflicts with our understanding of consent in other parts of criminal law, which is that 'consent' is only possible when it is informed and freely given. The bill should only ban practices which are done without the person's consent.
6. The new definition of gender identity for the Equal Opportunity Act is entirely circular; and it is bad law to protect something which means nothing - you cannot create a protected category when the category is meaningless or worse harmful:
'gender identity means a person's gender-related identity:' so gender means gender. This is like defining a shoe as 'like a shoe.'
'which may or may not correspond with their designated sex at birth': sex is observed either in utero or at birth. The doctor, midwife, and parents do not arbitrarily assign a sex. There are only two possible sexes, male and female; not 'designated.'
'and includes the personal sense of the body (whether this involves medical intervention or not)': is there an impersonal sense of the body? or does it mean personal as in mine, and opposed to your sense of my body?
'and other expressions of gender, including dress, speech, mannerisms, names and personal preferences': do I express my female gender identity by wearing dresses? am I male on days I wear trousers, a shirt and no bra? are we really legislating to protect stereotypes?
The definition does not even require that gender identity be deeply held, so we're creating a fluid protected attribute against which discrimination is banned. Also, if gender identity does not have to be deeply held, then it can be easily changed - so why should practices which do change gender identity be banned?
7. The definition of sexual orientation is worse than the definition of gender identity: people will now be considered to be attracted to a person based on their gender (see above) rather than sex. This is offensive to gay and lesbian people; and farcical: a lesbian woman is attracted to women because they are women, not because they have feminine dress.
8. The bill is ideologically driven and not evidence based. It includes meaningless value statements in the purposes and objects of the Act; these section should help a court to interpret an act, but these do not. One purpose is to ensure that all people 'feel welcome and valued in Victoria and are able to live authentically and with pride.' What does this mean? Should a man be able to live 'authentically' as a woman? The Act's objects include to affirm that no sexual orientation or gender identity constitutes a disorder, disease, illness, deficiency or shortcoming; I note that Parliament is not a medical practitioner and cannot make pronouncements on what is or is not a disorder (and gender dysphoria is in the DSM-V; and surely most people would think that a person who felt so ill-at-ease in their body that the only solution was to surgically remove health body tissue had some kind of disorder.
Good law-making is based on evidence: that there is conduct requiring prohibition. It is not based on flights of fancy or on scare mongering. Good law-making provides clear terms and definitions which a court can give effect to, and is not required to engage in tortuous interpretation. Good law-making is based on material reality and not patently false ideas that a person can change their sex.
This bill should be opposed.