The NSW government has introduced a Conversion Practices Ban Bill 2024 into the Parliament, with the apparent aim of moving it through very quickly. Legislation of this sort has been introduced in other jurisdictions around Australia and elsewhere. The aim of banning oppressive and violent practices designed to “convert” someone’s sexual orientation from homosexual to heterosexual is good, of course. But those practices, while they may have existed some time ago, are really no longer around. The problem with these laws now is that their drafting can be so broad that they interfere with the ordinary teaching of religious doctrines and life within families. These laws are also often premised on the assumption that “gender transition” is a good thing which should be freely available to children, whether or not with parental permission. They raise important issues of concern to all those interested in the welfare of children, whether or not from a religious perspective.

But laws of this sort can in particular have significant implications for religious freedom. I have previously provided a detailed analysis of the Victorian legislation on this topic, noting the serious problems that law has created. The good news in NSW is that the government does seem to have listened to some of the concerns about the law raised by religious leaders and other concerned citizens. The Bill is certainly an improvement on the Victorian model. But there are a number of areas where it could be clearer in protecting important rights of all members of the community, to speak and act freely in accordance with their convictions and biological reality.

The Bill received its first reading, and the second reading speech was tabled, in the lower house (Legislative Assembly) on 13 March 2024, and indications are that debate will resume as early as Tuesday March 19. Those who are concerned about these issues would be well advised to contact their Parliamentary representative as soon as possible to let them know their concerns. The organisation Freedom for Faith has provided an online link to allow folk to share concerns put forward by a group of faith leaders about ways in which the legislation should be improved, if it is to be passed. Below I will provide more information about these genuine concerns.

It may be best to be clear at the outset: I do not think we need this legislation. The sort of horrific practices that most of us think of when he hear the words “conversion therapy” only ever happened on a very small scale and were mostly illegal when they happened. However, since the current NSW government made a promise to introduce such a law before they were elected, it seems likely that NSW will have one. If we do have to have one, the version provided by this Bill at least provides some basic protections for religious freedom and the interests of children. But it should be improved before it is enacted.

1. How the Bill operates

(a) Enforcement

The Bill contains two major Parts, one creating criminal offences, and the other setting up a civil scheme where complaints can be made leading to an investigation and a possible award of damages. I won’t go into the mechanisms of enforcement in great detail.

I just mention briefly that Part 3 of the Bill creates criminal offences where deliberate “conversion practices” can be shown to have led to substantial mental or physical harm (or to endanger a person’s life) (cl 5) or where a person has “transported” someone to a different jurisdiction for “conversion practices” to be performed (cl 6). In the case of these criminal offences, the consent of the person to whom the practices are applied is not a defence. (However, the general exclusion of “consent” as a defence found in other jurisdictions does not apply to the civil scheme, as discussed below.)

Criminal cases are likely to be fairly rare. Part 4 of the Bill is more likely to be invoked, where a civil complaint mechanism is provided, based on a breach of cl 8:

8 General prohibition on conversion practices
An entity contravenes this Act if the entity provides or delivers a conversion practice.

The word “entity” picks up individuals, corporate bodies, and “an unincorporated body or organisation” (see the Sched 2 Dictionary)- presumably it is used because some churches and other community bodies operate without being formally incorporated.

Civil complaints are made first to the President of the Board established under the Anti-Discrimination Act 1977, but may later be escalated to a hearing before the NSW Civil and Administrative Tribunal (NCAT).

(b) What is a “conversion practice”?

The concept of a “conversion practice” is the key area where the Bill sets out what activities are prohibited, and I will spend most of the post now dealing with that notion and its exemptions.

The Bill defines “conversion practices” as follows, in cl 3:

3 Meaning of “conversion practices”
(1) In this Act, a conversion practice means a practice, treatment or sustained effort that is—
(a) directed to an individual on the basis of the individual’s sexual orientation or gender identity, and
(b) directed to changing or suppressing the individual’s sexual orientation or gender identity.

Bill, cl 3

The concept of “changing” sexual orientation seems fairly clear. There is a definition of “sexual orientation” in the Dictionary to the Bill (Schedule 2) as follows:

sexual orientation—
(a) means an individual’s sexual orientation towards—
(i) individuals of the same sex, or
(ii) individuals of a different sex, or
(iii) individuals of the same sex and individuals of a different sex, and
(b) includes having a lack of sexual attraction to any individual of any sex.

Bill, Sched 2 Dictionary

It seems clear that the term refers generally to a predisposition to be sexually attracted to one sex or the other, or to neither. This is unsurprising but significant in comparison with the Victorian legislation, the Change Or Suppression (Conversion) Practices Prohibition Act 2021, where the definition of “sexual orientation” (through a cross-reference to the Equal Opportunity Act 2010 (Vic)), means “a person’s emotional, affectional and sexual attraction to, or intimate or sexual relations with, persons…” This means that, on its face, the Victorian Act identifies any sexual activity as a person’s “orientation”, and hence, as I said in my previous post on that law:

This definition will mean that… any encouragement to someone to practice chastity and not to engage in sexual activity, can be seen as an inducement to the person to “suppress” their “sexual orientation” (even if there is no intention to address the emotional attractions that the person feels.)

Post on Victorian Act (Jan 15, 2021)

So the NSW Bill is much closer to the common understanding of “sexual orientation”, and makes much more sense.

However, the phrase “gender identity” contains a number of questionable assumptions. Does everyone in the community have a “gender identity”? The definition of this term in the NSW Bill follows a confusing pattern found in other laws dealing with this issue:

gender identity means the gender-related identity of an individual, which may or may not correspond with the individual’s designated sex at birth

Bill, Sched 2 Dictionary

If this seems to be circular, that is because it is! The word “gender” seems as hard for drafters to define as the word “woman” has been hard to pin down recently. We are also given the notion of a person’s “designated sex at birth”. The truth is that no-one “designates” a child’s sex- it is present prior to birth (which is why we have ultrasound scans for expectant parents keen to discover this), and is observed as a genetic and biological fact rather than “designated” by anyone.

Of course, one of the ironies of this type of law combining a prohibition on “conversion” based on both sexual orientation and “gender identity” is that determined proponents of “gender theory” are keen to allow a “transition” from one sex to another (if that were possible)- a transition which one may as well call a “conversion”. It could be strongly argued that these two phenomena are completely different, and should be dealt with in separate pieces of legislation if at all. There is mounting evidence that so-called “gender affirming” medical treatments have been provided to children and to others with no sound scientific basis showing that they are any real benefit to the people concerned. Certainly in the case of children, it is clear that young people ought not to be encouraged to make damaging medical decisions which they will need to live with for the rest of their lives. The UK National Health Service have recently announced they will no longer support provision of “puberty blockers” to minors.

However, as in other such laws around the world, this issue of “gender identity” is dealt with under the Bill. Here it is done by carving out an explicit exception to the ban on “conversion practices” for a health practitioner “genuinely assisting an individual who is exploring the individual’s … gender identity or considering or undergoing a gender transition” (note after cl 3(3)(a)(ii).

While this example is given in the context of a sensible exemption applying to registered health practitioners (see cl 3(3)(a)), it seems to be worded in a way which favours so-called “gender transition”, and does not refer, for example, to a practitioner who may be assisting a person who has undergone prior medical intervention and now seeks to “de-transition” (an increasingly large group). The issues in this area are so complex, and sound medical advice in such flux, that it would be far better for the whole question of “gender identity” to be removed from this Bill and dealt with, if needed, in another piece of legislation.

An important feature in the above definition is the use of the word “suppress”. The word is not defined, and in Victoria (coupled with the very broad definition of “sexual orientation” to include sexual activity) arguably any advice to anyone to comply with Biblical sexual morality (that sex is only right when between a man and a woman who are married to each other) might be regarded as “suppressing” sexual orientation. Even under the NSW Bill such a view might be arguable, though less clear.

Faith leaders in NSW have recommended some amendments to the Bill to make its operation clearer, and this is one example, which I support. They say:

 In the Second Reading speech, the Attorney General said that the key term suppression, which is not defined in the Bill, has its ordinary dictionary meaning, being “‘to keep in or repress’ something or ‘put an end to activities’.” This is too broad, and could include any recommendation or exhortation to restrain behaviour, including: telling a young person to reserve sex until marriage; counselling a married, heterosexual man to not have an affair with another woman; encouraging a homosexual person who wants to live accordance with their religious beliefs to remain celibate; [or] consensual prayer with an individual along the lines of “Please, God, help X stay faithful sexually”.

Faith Leaders’ letter

They then make the sensible request: “Define suppress as “attempt to eliminate”“. This is a good idea.

2. Areas where this Bill provides protection for religious freedom and the welfare of children

The Bill contains a number of clear “carve-outs” from the overall definition. One, noted above, in cl 3(3)(a), applies to a registered health practitioner where treatment has been assessed as clinically appropriate in the practitioner’s reasonable professional judgement, and this “(ii) complies with all relevant legal, professional and ethical requirements”. While there is some lingering doubt about who gets to establish those “professional and ethical” requirements, on the whole this seems a sensible provision. It will allow a medical practitioner who regards active “gender transition” as inappropriate for a young person who may have a range of issues, to give that advice without it being regarded as a “suppression” of “gender identity”.

Under s 3(3)(b) we see that a conversion practice does not include:

genuinely facilitating an individual’s coping skills, development or identity exploration to meet the individual’s needs, including by providing acceptance, support or understanding to the individual

This seems fine, though as the Faith Leaders point out it would be improved by making it very clear that a person’s “needs” are not to be determined by someone else who thinks that they “need” not to have advice about how to live in accordance with their Christian faith. They say:

When a person seeks assistance or support, the person from whom they are seeking support needs to be able to respond to the expressed needs, without having to second guess what a court might determine was a true “need” in retrospect.

Hence the sensible suggestion that cl 3(3)(b) be amended to refer to “meeting the individual’s needs or request“.

Under cl 3(3)(c) there is an exemption concerning expressions of religious faith. These are said not to be “conversion practices”:

the following expressions if the expression is not part of a practice, treatment or sustained effort, directed to changing or suppressing an individual’s sexual orientation or gender identity—
(i) an expression, including in prayer, of a belief or principle, including a religious belief or principle,
(ii) an expression that a belief or principle ought to be followed or applied.

While sub-paragraphs (i) and (ii) are sensible, the effect of the whole paragraph is undermined when the introductory words are considered, which in effect say merely that something is not a conversion practice if it is not a conversion practice! To quote the Faith Leader’s letter:

 The effect of this section is to say, “a religious teaching is not a change or suppression practice unless it is a change or suppression practice”. This makes the exemption circular and risks a lack of clarity as to how it will be interpreted by a court or tribunal. Combined with the overly broad definition of suppression, this renders the exemption meaningless, giving no certainty as to whether a particular religious exhortation is a “suppression practice”. 

I agree. The circular reference here should be removed. Perhaps the sense of the clause could be captured by exempting the relevant expressions “so long as they do not form part of an oppressive and sustained effort directed at an individual without their consent”.

The Bill then provides a number of further examples of things that are not conversion practices, in cl 3(4):

(4) To avoid doubt, the following are examples of what does not constitute a conversion practice under this section—
(a) stating what relevant religious teachings are or what a religion says about a specific topic,
(b) general requirements in relation to religious orders or membership or leadership of a religious community,
(c) general rules in educational institutions,
(d) parents discussing matters relating to sexual orientation, gender identity, sexual activity or religion with their children.

Bill, cl 3(4)

These are very helpful. Simply presenting the teaching of the Bible on sexual morality, and the goodness of God’s creation of us as either of one biological sex, or the other, will not be prohibited, whether in sermons, small groups, or private conversations. “General” requirements or rules under paragraphs (b) and (c) should not in any event be seen as conversion practices. Paragraph (d) makes clear what the Victorian law very much leaves up in doubt- parents can have clear conversations with their children about living in accordance with their faith in these areas.

As the Faith Leaders note, however, this paragraph would be better if it applied to a “wider range of familial and care relationships“, and

The right of parents to raise their children consist with their moral and religious beliefs should be respected.

This right is recognised in international law, under the International Covenant on Civil and Political Rights, art 18(4). Here this should be reflected by para (d) being clearer that it is not just “discussions” that are acceptable, but parents may also set family rules and behavioural standards.

3. How the Bill needs to be improved

To sum up, if NSW has to have a law on this topic, the current Bill is much better than similar laws elsewhere, and does go a good way toward protecting the rights of religious freedom, and seeing that parents are able to provide appropriate care for their children.

But I would strongly recommend that:

• questions of “gender identity” be removed from this Bill and addressed, if needed, in some other law
• the word “suppress” be clearly defined to refer only to attempting to “eliminate” someone’s sexual orientation
• cl 3(3)(b) be amended to refer to “meeting the individual’s needs or request“
• circular references in cl 3(3)(c) be removed and the only expressions of religious belief not exempted are those where is there is an oppressive and sustained effort directed at an individual without their consent
• rights of parents to discuss religious and other matters with their children should be extended to wider family members and care-givers, and it be made clearer that parents have the right to set appropriate standards of behaviour for their children.