The Victorian government has proposed a bill to ban “conversion therapy”. We feel that the gender identity provisions in the Bill are incoherent and will cause harm by pushing an unqualified affirmation approach to body transitioning

The Bill also prohibits any conduct intended to “suppress or change” a second person’s gender identity, but it excludes from the ban assistance to a person considering or undergoing a gender transition.

The term gender transition is — unhelpfully — not defined. But presumably it means changing a person’s physical body so it looks more like, and has the anatomical features of, the person’s self-determined gender identity. For example, a biological female with a self-determined gender identity as male may seek to gender transition by using hormones and surgery change their bodies to develop facial hair or even to remove their breasts and uterus.

There is no evidence about practices intended to “suppress or change” a second person’s gender identity in the reports on which the government relies. A report from LaTrobe University and the Human Rights Law Centre, Preventing Harm, Promoting Justice: Responding to LGBT conversion therapy in Australia, described 14 stories of gay conversion practices in Australia (and one hearsay account of a foreign country practice concerning a trans person).

The Health Complaints Commissioner Report (of which only a two-page summary was ever made public) looked only at gay conversion practices. The Department of Justice and Community Safety conducted a consultation on the best way/s to implement a ban of conversion practices but in its outcomes summary only described four stories – all of gay conversion practices.

There is no evidence base put forward by the government for banning practices relating to change or suppression of gender identity. Remarkably, the government’s documents are silent on the controversies about gender (body) transition therapies.

Despite the serious concerns about young people being pushed too quickly into gender transition of their bodies, the government has provided no evidence for its ban on cautious approaches to body transition (which would be “suppression” practices).

The former Attorney-General Jill Hennessy asserted in her second reading speech that there is no evidence that gender identity can change. But that must be wrong. For many people, gender dysphoria does not begin as a young child but develops closer to puberty. At some point, those persons who had identified as their birth gender may begin to feel they are more like the opposite gender and identify as the opposite (or in theory another) gender. That is a change in gender identity.

In addition, more and more people who underwent a change of gender identity from their birth gender and transitioned their body to match have later regretted doing that and have de-transitioned by changing their gender identity (and, to the extent they can, their bodies) back to their birth gender. That is a change in gender identity.

In gender theory, gender identity is self-determined by the individual and is fluid (ie, the individual can change their self-determination). How then can anyone who is counselling or assisting a person with gender confusion could tell whether, under the Bill, they were illegally inducing the person to change their gender identity (clause 5(1)) or legally assisting the person to express their gender identity (clause 5(2)(a)(ii))?

The answer won’t be known until the person arrives at (or changes) their self-determined gender identity. But that is no help to the clinician or counsellor who faces imprisonment and civil sanctions if it turns out (retrospectively) that they were inducing a change in gender identity. With respect, these provisions are hopelessly confused — yet criminal liability turns on them.

The Bill also exposes a bizarre contradiction in government policy.

In 2019, the current Victorian government legislated to allow people to change their birth certificate gender once each year to reflect their gender identity – clearly this implies that people can change their gender identity at least annually. So how can the same government now propose a law to ban people from helping others to change their gender identity, when annual change is expressly contemplated by the birth certificate legislation?

These provisions about changing or suppressing gender identity are so incoherent that they should be dropped altogether or withdrawn and redrafted.

But there is a real practical harm in these provisions as well. The Bill prohibits everyone from inducing a person to “suppress” their gender identity.

Take an adolescent with gender dysphoria who believes they are in the wrong body and wants to take puberty blockers, sex hormones and eventually undergo surgery to transition their body to fit their self-determined gender identity. It will be an illegal gender identity “suppression” practice for a parent or doctor advising the adolescent to induce them to defer taking the drugs until after puberty or until after other co-existing conditions like depression or conditions relating to autism spectrum disorder have been treated.

A cautious approach in considering whether to proceed to body transition is the prudent medical course for people presenting with gender dysphoria – especially in childhood or adolescence. Many gender dysphoria cases present with other conditions like depression or factors arising from being on the autism spectrum and those issues need to be worked through to discover the real cause of the person’s sense of being in the wrong body and whether body transition is appropriate.

At least half a dozen medical studies cited in an open letter to the state’s Attorney-General, Jaclyn Symes, by Dr Philip Morris and Professor Patrick Parkinson show that a large percentage of children presenting with gender-related distress were reconciled to their natal sex before adulthood — without body transition:

The overwhelming evidence is that the great majority of children who attend gender clinics because they experience serious discordance between natal sex and gender identity tend to resolve these issues when they go through puberty – as long as a cautious therapeutic approach is adopted. These consistent clinical findings have been contested on theoretical grounds. However, no clinical studies have been conducted that contradict these findings.

There is a recent trend in some gender clinics to always affirm the “wrong body” feelings of an adolescent and quickly move them to body transition. This approach has been criticised by the High Court of England as “experimental” in the Keira Bell case.

In that case a 16-year-old girl consented to a course of body transition treatments including hormone therapy, which potentially rendered her infertile. She later had a double mastectomy. In her early 20s she greatly regretted her decision and sought to de- transition her body to match her female birth gender. Bell and another person made a claim for judicial review of the policy and practice of the Tavistock and Portman NHS Foundation Trust of prescribing puberty-suppressing drugs to persons under the age of 18 who experience gender dysphoria. The claimants’ case was that children and young persons under 18 are not competent to give informed consent to the administration of these drugs.

The Court gave the following guidance in respect of children under 16:

A child under 16 may only consent to the use of medication intended to suppress puberty where he or she is competent to understand the nature of the treatment. That includes an understanding of the immediate and long-term consequences of the treatment, the limited evidence available as to its efficacy or purpose, the fact that the vast majority of patients proceed to the use of cross-sex hormones, and its potential life changing consequences for a child.

There will be enormous difficulties in a child under 16 understanding and weighing up this information and deciding whether to consent to the use of puberty blocking medication. It is highly unlikely that a child aged 13 or under would be competent to give consent to the administration of puberty blockers. It is doubtful that a child aged 14 or 15 could understand and weigh the long-term risks and consequences of the administration of puberty blockers.

Different guidance was given for young persons aged 16 and over. The legal position in respect of such persons:

…. is that there is a presumption that they have the ability to consent to medical treatment. Given the long-term consequences of the clinical interventions at issue in this case, and given that the treatment is as yet innovative and experimental, we recognise that clinicians may well regard these as cases where the authorisation of the court should be sought prior to commencing the clinical treatment.

Expert evidence in that case showed that body transition drugs are themselves harmful, for example by producing infertility and reduction in bone density. Natal-sex girls transitioning to boys were encouraged to have their eggs harvested and choose a sperm donor (because a frozen embryo fares better than a frozen egg).

The Economist has described a Western world trend among some clinics of hastening people into body transition, with increasing numbers of such people desisting from the treatment or later regretting and attempting to de-transition their bodies back to their birth sex. None of this is addressed in the government case for this Bill.

The number of referrals of cases of childhood gender dysphoria to the Melbourne Royal Children’s Hospital Gender Clinic per year has increased 40-fold from 8 in 2011 to 336 in 2019, after being stable for the previous eight years. Referrals to the London Tavistock NHS Gender Clinic have increased 30-fold from 2011 to 2019 (there were 2700 in 2019). Both clinics use the affirmation approach.

The Bill will effectively force clinicians to affirm a person’s desire for body transition and prescribe the drugs for body transition because to do otherwise will leave them open to the accusation of engaging in a “suppression” of gender identity inviting criminal investigation, Victorian Equal Opportunity & Human Rights Commission investigation and compliance notices and presumably professional sanctions.

(Clinicians have a defence under the Bill, but only if they can show that their advice and treatment was “necessary” to provide a health service. “Necessary” is too high a standard. The Queensland Bill was amended following representations by the Queensland AMA and the Queensland Law Society to use a better standard of whether the treatment was “clinically appropriate”, which recognises that there is often a range of appropriate treatment choices.)

The treatment of gender dysphoria involves complex and delicate judgments specific to the person. They are not judgments that the Parliament should be determining by threatening criminal prosecution or civil sanctions for parents or doctors simply because they are not uncritically affirming and facilitating a child’s desire to transition their body to a different gender.

Appropriate medical decisions for a particular child are a matter for the child, the parents and the health practitioner, not for blanket rules set by the Parliament. This part of the Bill risks rushing young people with gender dysphoria into body transition, leading to more regret and de-transitioners and more litigation over the next 10 years.

Overall, this Bill is motivated by a good intention of protecting people from some demonstrably abusive practices. But its incredible overbreadth in definition and scope causes more harm than it remedies. The Bill needs significant amendments or a rewrite to avoid creating that harm. The proposals in the Bill have never had a transparent public inquiry. Rather, government consultations have occurred behind closed doors with very limited reports. A fully transparent parliamentary inquiry would be very welcome.

This is part two of a report from the Institute for Civil Society on Victoria’s proposed Change or Suppression (Conversion) Practices Prohibition Bill 2020. It has been republished with permission. Part one appeared yesterday. For the original version, with its footnotes, click here.

Mark Sneddon is the Executive Director of the Institute for Civil Society, a social policy think tank based in Melbourne.