Conversion Therapy laws and religious freedom

Australia has seen two recent initiatives by local Parliaments aimed at what are often called “conversion therapy” practices. No-one supports coercive electro-shock or other oppressive practices imposed on someone without their consent, to change their sexual preferences or identity. But the problem with the recent legislative proposals is that the laws do not target these practices alone (as to which it is hard to find any evidence of them occurring in Australia in recent years), but seem to reach further and to prevent religious groups sharing the teaching of their faith.

The Legislation

There are two legislative initiatives here.

(a) The Queensland Act

Queensland has already enacted its version among other changes to its health laws. The Health Legislation Amendment Act 2020 (Qld) (No 31 of 2020) received the Royal Assent on 20 August 2020. As no other provision is made for commencement of the relevant provisions in Part 5, it has now commenced operation (see the Acts Interpretation Act 1954 (Qld) s 15A).

Part 5 amends the Public Health Act 2005 (Qld) (“PHA”) by inserting a new Chapter 5B into that Act, entitled “Conversion therapies”.

The central feature of the new Ch 5B is the criminal offence created by s 213H:

213H Prohibition of conversion therapy

(1) A person who is a health service provider must not perform conversion therapy on another person.

Maximum penalty—(a) if the other person is a vulnerable person—150 penalty units or 18 months imprisonment; or

(b) otherwise—100 penalty units or 12 months imprisonment.

It is important, then, to know: who is a “health service provider”, and what is “conversion therapy”? (The differential penalty means that there is a more serious penalty if the therapy is performed on a child or someone who doesn’t properly understand what is being done.)

The phrase “health service provider” is defined in another piece of legislation, the Health Ombudsman Act 2013, section 8, as someone who is a formal “health practitioner” (a registered health professional such as a doctor or clinical psychologist), or anyone who provides a “health service”. This term is defined as “a service that is, or purports to be, a service for maintaining, improving, restoring or managing people’s health and wellbeing”.

I commented on this definition in a previous article dealing with the legislation when first introduced as follows:

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.

The example I was dealing with was this:

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.

The legislation still does not make clear whether a pastor in these circumstances would be covered.

Turning, then, to the definition of “conversion therapy”- this term is defined in s 213F(1):

(1) Conversion therapy is a practice that attempts to change or suppress a person’s sexual orientation or gender identity.

Examples—a practice attempting to change or suppress a person’s sexual orientation or gender identity by—

• inducing nausea, vomiting or paralysis while showing the person same-sex images;

• using shame or coercion to give the person an aversion to same-sex attractions or to encourage gender-conforming behaviour;

• using other techniques on the person encouraging the person to believe being lesbian, gay, bisexual, transgender or intersex is a defect or disorder.

The examples given are helpful, in that they refer to some pretty clearly awful practices. But some of the terminology is open to a range of interpretation. Is it “using shame” to help a person see that the Bible teaches that same-sex sexual activity is wrong? Probably not, because such teaching is not of itself aimed at giving the person “an aversion” to such attractions. Would teaching that the Bible recognises different roles in a marriage for men and women “encourage gender-conforming behaviour”? How about preaching from a Bible passage that teaches that there are different roles for men and women in the life of the church?

There are, however, important clarifications in s 213F(2) about what does not amount to such therapy:

(2) Conversion therapy does not include a practice by a health service provider that, in the provider’s reasonable professional judgement—

(a) is part of the clinically appropriate assessment, diagnosis or treatment of a person, or clinically appropriate support for a person; or

(b) enables or facilitates the provision of a health service for a person in a manner that is safe and appropriate; or

(c) is necessary to comply with the provider’s legal or professional obligations.

(3) Without limiting subsection (2), the following are examples of the types of practices to which that subsection may apply—

(a) assisting a person who is undergoing a gender transition;

(b) assisting a person who is considering undergoing a gender transition;

(c) assisting a person to express the person’s gender identity;

(d) providing acceptance, support or understanding of a person;

(e) facilitating a person’s coping skills, development or identity exploration, or facilitating social support for the person.

Examples of the types of practices—

• exploring psychosocial factors with a person or probing a person’s experience of sexual orientation or gender identity

• providing a speech pathology or gender transition service for a trans-gender or gender-diverse person wishing to alter the person’s voice and communication to better align with the person’s gender identity

• advising a person about the potential side effects of sex-hormonal drugs or the risks of having, or not having, surgical procedures

These are important exceptions to the general rules stated previously. Again take our example of a pastor asked by someone to help them live in accordance with Biblical norms of sexual behaviour. Even if viewed as a “health service provider” (and this of course is by no means certain), the pastor can say that providing teaching from the Bible “enables or facilitates the provision of a health service for a person in a manner that is safe and appropriate” in their professional judgement. From their perspective, the person’s relationship with God will be impaired by deliberate disobedience to God’s word, and so it will neither be “safe” nor “appropriate” for them to continue in such manner.

In short, while not entirely clear, it seems that the Queensland law as enacted (there were some changes in its passage through Parliament) does allow enough leeway for a person to seek, and obtain, guidance from a pastor or fellow believer which will help them live in accordance with religious guidelines, even if those guidelines do not support same-sex sexual activity.

(b) The ACT Bill

The Bill presently before the ACT Legislature, however, has a number of problems. The Sexuality and Gender Identity Conversion Practices Bill 2020 was tabled in the Legislative Assembly on 13 August 2020. 

The Bill, a stand-alone law, seeks to take a much broader approach to the area. For example, it starts with an objects clause, cl 6, which asserts:

The objects of this Act are—(a) to affirm that— 

(i) all people have characteristics of sexuality and gender identity; and 

(ii) no combination of those characteristics constitutes a disorder, disease, illness, deficiency, disability or shortcoming.. 

Clause 6(a)(i) is an assertion of an apparent fact (whether biological or metaphysical, it is hard to say) which of itself may be disputed by some. For example, some might say that human beings do not have a “gender identity”- they simply have a “gender” which corresponds to their biological sex. (This of course is a hot topic, as to which noted author J K Rowling has been attacked, and on which she has responded, in recent months. But it is at least clear that reasonable minds may differ on these issues, and interesting to see the ACT apparently trying to legislate the answer to one of the most controversial debates of our current time.)

But in particular, it seems that cl 6(a)(ii) wants to “affirm” that “no combination” of “sexuality” and “gender identity” constitutes a “shortcoming”. The language is obscure: what does it mean to “combine” these things? Is it only in “combination” that they must be affirmed? Can one say that there is something wrong in someone living as a “homosexual” (presumably this is a statement of their “sexuality”) when one does not at the same time mention their “gender identity”? Or does this odd formulation mean that no assertion about either or both of these things can be made which suggests that one these things is in any way a “shortcoming”? And is it calling something a “shortcoming” to say (as mainstream religious traditions do) that some sexual activity is a “sin” or “contrary to God’s will”?

Perhaps this obscurity can be passed over on the basis that this is merely an “objects” clause and does not impose any direct obligations. But as these type of clauses are meant to inform the judicial interpretation of a law, this is not a good start.

The nub of the Bill is cl 8(1), which makes it a criminal offence to “perform a sexuality or gender identity conversion practice on another person” if “the recipient is a protected person”. The definition of “protected person” in the “Dictionary” at the end of the Bill refers to children or people whose mental judgment may be impaired. (Unlike the Queensland Act, this Bill does not make it an offence to perform a “conversion practice” on a competent adult.) But cl 8(2) is striking:

(2) A person commits an offence against subsection (1) whether or not the recipient, or a parent or guardian of the recipient, consented to the practice.  

Hence the offence in this Bill can be committed even if a young person (say a 16-year-old) is fully and personally convinced that they have sexual attraction to someone of the same sex, but they wish in obedience to their reading of the Bible to be helped not to act on such attraction. So does the Bill apply to a pastor who undertakes (with their full consent and encouragement) counselling and Bible study with that young person?

The forbidden practice is defined in cl 7(1):

sexuality or gender identity conversion practice means a treatment or other practice the purpose, or purported purpose, of which is to change a person’s sexuality or gender identity 

In the example above, it could be argued that the purpose of the counselling is not to change a person’s “sexuality”- but rather to help them resist sexual temptation to same-sex sexual activity. Yet in the past the courts have refused in other contexts to recognise a difference between “sexuality” and “sexual activity”, saying that the latter is an essential part of the former identity, and hence that any action based on a person’s sexual activity is automatically based on their “sexuality”. (I discussed some cases on this issue in a previous post, “Sexual orientation and sexual behaviour: can they be distinguished?“)

So if such counselling does amount to an attempt to change a person’s “sexuality”, is it otherwise covered? As with the Queensland Act, it is possible that a pastor might be viewed as a “health service provider” (the term in the ACT is defined in the Health Act 1993 (ACT), sections 5 & 7, and includes a service designed to “improv[e] the physical, mental or emotional health, comfort or wellbeing of the service user”.) Again, however, there are exceptions under the ACT Bill for a practice that:

in the provider’s reasonable professional judgment, is necessary to— (a) provide a health service in a manner that is safe and appropriate. 

cl 7(3), ACT Bill

 If “health service” can extend to counselling on behaviour drawn from the Bible, then it seems that “safe and appropriate” advice should allow judgments to be made about what counsel should be given based on the Bible’s teachings.

It could also be argued that, under cl 7(2), such advice given to someone who was seeking help allows the pastor to:

(d) provide acceptance, support or understanding of a person; or

(e) facilitate a person’s coping skills, social support or identity exploration and development. 

If a Christian young person sees their “identity” as a “child of God” living in accordance with their heavenly Father’s guidance, then to help them live in accordance with that guidance will facilitate their “identity exploration”.

The ACT legislation differs from the Queensland Act in that it makes amendments to the Human Rights Commission Act 2005 (ACT) to allow complaints to be taken to the Commission relating to “conversion practices”.

Unlike the Queensland Act, the ACT Bill has not been passed by the Legislature, and there is still some scope for amendments to clarify its operation. If those supporting it are simply seeking abolition of coercive practices using things such as electrode therapy or inducing nausea, it would be good to spell that out through amendments such as those introduced in Queensland.

On the other hand, it may be that the proponents of the legislation really do think that Christians and other religious groups should be forbidden to teach the doctrines of their faith, even when requested to by young people seeking help. An example is a recent online article by Rodney Croome, “Qld conversion law shows resurgent prejudice is a threat we must stand up to” (OutinPerth, 21 August 2020). The article criticises the Queensland Act because it does not go far enough:

Conversion survivors have criticised the new law for a number of reasons, chiefly that it is limited to the non-problem of formal conversion practices by health professionals and doesn’t tackle the actual problem of informal practices in religious settings.

The table included with the article makes it clear that activists in this area would like to prohibit, for example, “conversion practices delivered to minors and adults in unpaid informal pastoral care contexts”.

It seems that for some, the fact that religious texts teach that not all forms of sexual activity are acceptable, means that those who hold and teach such beliefs must be subject to legal penalties. Arguably enactment of a law of this sort would be a clear breach of internationally recognised rights to religious freedom. Indeed, if (as seems likely) the ACT as a Commonwealth Territory is subject to the provisions of s 116 of the Commonwealth Constitution, enactment of a law penalising the teaching of an important doctrine of the Christian faith even to those who want to learn would be an undue infringement of the “free exercise of religion” guaranteed under that section.

For example, in Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth (1943) 67 CLR 116 (the main High Court decision on “free exercise” under s 116), while the court as a whole ruled that subversive activities of a church could be limited while the country was at war, Williams J in the course of his decision commented on some regulations which would have had the effect of criminalising ordinary Christian doctrines.

His Honour commented that any law which:

has the effect of making the advocacy of the principles and doctrines of the Christian religion unlawful [would be] prohibited by s. 116

(1943) 67 CLR 116 at p 165.

Coercive and oppressive techniques designed to change someone’s view on sexual issues against their will are obviously repugnant and should be rejected. But there are a range of views on matters connected with sexual morality in our multi-cultural and diverse community, and expression of religious views on these matters must not be suppressed in the interests of a sexual orthodoxy which undermines the right of persons to change their behaviour when they believe they want to.

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