So-called conversion therapy prohibition legislation now challenges religious freedom in Australia. It combines misplaced reliance on research, vague definitions, contested queer theory ideology and a clear targeting of Christianity and has produced objectively terrible laws.

With every new proposal comes a legislative model which further shifts the focus from the nature of conversion therapy to the beliefs which are said to support it. The human rights implications are huge, as many around the world are coming to appreciate. This is especially important for Australia as plans are now being laid for New South Wales and Tasmania.

I would pose this simple question: is it a legitimate and responsible use of power to pass legislation that is motivated to attack a particular “ideology” shared by millions of Australians?

Gay activists Nathan Despott and Chris Csabs attributed the crucial step that achieved this to the moment “when the Labor national conference dropped its existing policy of simply criminalising conversion therapy in favour of a new policy that targets the ideology behind the movement.”

Conversion therapy has an unpleasant history of pointless and obviously damaging clinical interventions such as chemical castration and aversive electric shocks. The term first caught on in the late 1970s, an era of popular pseudo-scientific psychobabble. Over ensuing decades, researchers tackled the question of whether externally applied techniques could reorientate same-sex to opposite-sex attraction. The prevailing belief was that they could not and that it was unethical to promise such an outcome. The “born that way” narrative crystalised.

Certain schools of thought assembled around the broadening discussion of sexual orientation and gender identity, of which the best-known is queer theory. This seeks to challenge hierarchies and social inequalities established by hetero-normal binaries and aims to deconstruct traditional heteronormative assumptions.

The proponents of conversion therapy legislation, particularly in Victoria, justified restrictions on religious freedom as a necessary response to the internalisation of bigotry, hate, homophobia and transphobia that was alleged to exist in Christianity and other “ideologies”. This process generated false negative messaging and then amplified it.

It grieves many to see Christians, churches, and the Christian message distorted and denounced in this way.

The rationale for banning so-called conversion therapy has shifted suddenly and radically.

The main concern used to be the nature of the practices. Until recently many believed that banning conversion therapy was justified because it involved coercion. The 2018 Preventing Harm, Promoting Justice report from the Human Rights Law Centre compared it to torture, cruel, inhuman or degrading treatment – all outlawed by international conventions.

It has become clear from Victoria’s legislation, and more recent proposals for Tasmania, that the cardinal purpose now is to eradicate the allegedly stigmatising assumptions that underlie conversion therapy. In other words, they seek to eliminate the promotion of any practical sexual moral code, particularly Christianity.

Australia’s first conversion therapy act, in Queensland, provides this as an example of what it criminalises: “using shame or coercion…to encourage gender-conforming behaviour”.

If the scope of the Queensland bans were enlarged from health measures to religious practices, to align more closely with subsequent ACT and Victorian legislation, the impact would be far-reaching. It is not hard to imagine how mere gospel-content conversation or prayer could exaggeratedly be said to use “shame,” and therefore attract criminal sanctions.

Any moral code can be said to induce shame in this sense.

The threshold in ACT and Victoria is very low. For example, the prohibitions in Victoria apply to “a practice or conduct” (which need not amount to torture, cruel inhuman or degrading treatment or anything remotely like it; it can include virtually anything) “directed towards a person” (i.e. to an individual, rather than directionlessly in a sermon) “on the basis of” (i.e. focusing on/because of), their sexual orientation or gender identity “for the purpose of changing or suppressing” it, or “inducing them to change or suppress” it. Consent changes nothing.

“Sexual orientation” now includes not only a person’s gender-based “emotional, affectional and sexual attraction to” others but also “intimate or sexual relations”. It is now a form of conversion therapy to help someone (e.g. by conversation, counselling or prayer) who wants to curb sexual relations which would ruin their marriage, would make them a sex-pest in the office, or would get them in real trouble at school in their first relationship.  

For instance, someone with concerns about how their sexual orientation or lifestyle aligns with Biblical teaching might approach their pastor for help. A discussion about the Biblical position which follows is likely to be “on the basis of” their sexual orientation or gender identity, since they raised it, and also be taken to be for the purpose of “inducing them” to suppress it. That help would be prohibited – even if the person sought it out and freely consented to it.

This demonstrates just how far detached “conversion therapy” has become from the invasive, coercive or abusive nature of the practices themselves, which have receded into the distant past. The new model legislation demonises ideology, in particular Christian ideology, and on false grounds. In a revised version of the famous parable, the Good Samaritan is escorted away in handcuffs and jailed. In fact, in the Tasmanian model anyone who publicly applauds what the Good Samaritan did could be charged with hate speech.

If this seems far-fetched, consider the 2020 SOGICE Survivor Statement. This is a presentation by “survivors of the LGBTQA+ conversion movement and Sexual Orientation and Gender Identity Change Efforts (SOGICE)”.

In addition to particular practices, they target the “ideology” as such, which could be construed as texts from scripture, teachings about scripture, and counselling on scriptural living.

Amongst its recommendations are:

  • an “awareness campaign to explicitly target those at risk of the movement’s influence and refute its ideology;”
  • “enforced standards”
  • “compulsory content” in counselling that systematically refutes “the ideology and practices”
  • “tighter regulation to prevent the promotion, broadcast and advertising of conversion practices and ideology”
  • official “statements that clearly address and condemn the damaging ideology”
  • a tribunal of experts “who deeply understand the ideology of LGBTQA+ conversion as well as the doctrines of a range of faiths”  
  • “curtailing the prevalence and communication of conversion ideology through regulation and education”

The downgrading to the status of ideology of conventional religious beliefs, held since antiquity and embedded in Scripture, is strained. It is a device to deprive established religious doctrine of legitimacy and to denounce adherents of traditional faiths.

Religious sources include the Hebrew Bible for Jews (and the Shulchan Aruch which guides Orthodox Jews in particular), the Old and New Testaments for Christians, and the Qur’an (combined with the Sunnah andHadith) for Muslims, both Sunni and Shi’a. They contain clear proscriptions concerning sexual practice and marriage.

As regards religious freedom, the important point, as the UN Human Rights Committee has repeatedly stressed, is that everyone is free to choose their belief system, and any attempt to limit that has no legitimacy whatsoever. It has stated that “article 18 does not permit any limitations whatsoever on the freedom of thought and conscience or on the freedom to have or adopt a religion or belief of one’s choice.”

Proposals for future legislation are even more radical than Victoria’s. The Survivor Statement is the principal inspiration for a report prepared by the Tasmania Law Reform Institute. The TLRI proposals go even further than existing Victorian legislation, and characterise the mere promotion of a prohibited practice (which could take the form of counselling, advice or prayer) as a form of hate speech.  

Developments overseas may influence events in Australia. In October an Expert Advisory Group on Ending Conversion Practices published a report with far-reaching recommendations for Scottish legislation. This would outstrip Australian standards of human rights encroachment. It barely attempts to justify, on the basis of harm, the extensive prohibitions it recommends. Harm is largely assumed.

It specifically targets conversion ideology and “anti-LGBT+ sentiment” — which obviously includes Christianity. A real concern of the report is moral instruction. The report declares:

LGBT+ conversion ideology, both didactic and non-didactic, is insidious and harmful and takes root in societies. We feel that legislation will only succeed in ending conversion practices if it includes civil measures that can get to the root of this ideology. Open conversation about conversion ideology, especially as part of anti-conversion practices advocacy, is important.

Like the TLRI report, the Scottish recommendations include civil liability for natural and legal persons engaged in conversion practices so that those who have been subjected to them may initiate legal proceedings to obtain redress and compensation. Criminal offences abound.

The trajectory of this progression is alarming. The fact that there has been so little pushback no doubt encourages greater ambition, which will fuel the expectations for even more expansive conversion therapy models for New South Wales and Tasmania.

John Steenhof is the principal lawyer at the Human Rights Law Alliance, a not-for-profit law firm in Canberra that specialises in religious liberty and freedom of thought, speech, and conscience.