The Victorian government will soon be debating a “conversion therapy” bill. It has been introduced in response to reports by people of practices they experienced as harmful and traumatic (at the time or later) which were intended to change their sexual orientation or sexual behaviour from same-sex attracted to opposite sex attracted or suppress the expression of same-sex orientation or behaviour.

Historical practices included invasive and non-consensual medical and psychiatric aversion therapies which were abusive and are no longer practised. According to Attorney-General Jill Hennessy, contemporary change or suppression practices include counselling or psychology, formal behaviour-change programs, residential camps, support groups, and religious-based approaches like prayer and deliverance.  These contemporary practices are usually sought and consented to by a person who, at the time, wishes to change or manage their sexual desires.

But the Bill is not limited to these historical or contemporary practices. The Bill proposes to ban any conduct (including a conversation) by any person directed towards any second person on the basis of the second person’s sexual orientation (or gender identity) where the conduct is intended to “suppress or change” the second person’s sexual orientation (or gender identity) or induce the second person to suppress or change their sexual orientation (or gender identity).

The scope of ‘suppressing or changing’

Instead of trying to define and ban “harmful” conduct and practices, the Bill makes illegal all practices and conduct (including a conversation or family discussion, counselling, pastoral care, prayer) engaged in for the purpose of “suppressing or changing” a person’s sexual orientation or gender identity, even if the conduct was requested and consented to by the person and even if that person experienced the conduct as beneficial rather than harmful.

The first major problem with the Bill then is that it bans far too broad a range of conduct by any person – ranging from non- consensual aversion therapy (which should be banned) to consensual counselling which people are free to join and leave, and even a simple conversation within a family or between friends.

The second major problem with the Bill is that it assumes that no person can ever benefit from the contemporary practices and conduct which it bans and no person (including an adult) can be trusted to make the decision for themselves whether to start or stop engaging in such practices.

Yet there is significant evidence (such as a recent Australian study of 78 ex-LGB people) that some same-sex oriented people who were unhappy in that orientation freely chose to engage in some practices the Bill would ban (such as secular and religious counselling) and experienced them as highly beneficial (even preventing suicidal ideation) and as helping them move to what they describe as a contented heterosexual orientation and relationship (a change practice under the Bill) or a celibate life (a suppression practice under the Bill).

This, of course, is not a claim that every same-sex oriented person is unhappy in that orientation or can change or ought to change. But there is also significant self-reported evidence that some same-sex attracted people who engaged in practices the Bill would ban have experienced them as very harmful, including causing them significant trauma and depression.

Both sets of accounts (including the pain of people in each group) can be taken at face value. Different people can react very differently to the same psychotherapy or counselling approaches on any issue – some might find it traumatic and others find it healing.

Rather than ban a vast range of conduct, some of which some people have found beneficial and some of which some people have found harmful, the Bill should confine the banned conduct much more narrowly to that which the evidence shows always causes harm to everyone. For all other practices, the Bill should let adults freely choose whether or not to engage in them and make up their own minds about what is beneficial or harmful for them. The only possible case for regulating those other practices is for minors and those who cannot judge benefit or harm for themselves.

Too broad, too harsh

There has been a campaign over the last 10 years by LGBT groups across Western countries to ban Sexual Orientation Change Efforts (SOCE) or more broadly Sexual Orientation and Gender Identity Change Efforts (SOGICE).

This has mainly succeeded in parts of North America and in 2020 draft legislation was introduced to Australia.

As of December 2020, there are legislative bans on “conversion therapy” (variously defined) in five countries covering 27 jurisdictions: Queensland, the ACT, Germany, Malta, 20 of the 50 USA States, three of the nine Canadian provinces (the “ban jurisdictions”). There is a proposed federal ban in Canada.

Similar legislation has failed to pass in Ireland, and several US States, including Colorado, New Hampshire, Maryland and Virginia. In the USA, one Federal Circuit Court of Appeal has declared some State conversion therapy bans to be unconstitutional restrictions on free speech, but challenges in two other Circuit Courts of Appeal have failed.

Compared with all other ban jurisdictions, the Victorian Bill would create the broadest and harshest ban in the world.

Every other ban jurisdiction in the world has limited the ban in one or both of two ways.

In every ban jurisdiction (except Queensland), the person who is subject to the conversion practice must be under 18 (in some Canadian provinces, 16) or have diminished mental capacity or be made to participate in the practice without their consent (in other words, adults of sound mind are not banned from receiving any advice, counselling, therapy or prayer they freely consent to).

But under the Bill in Victoria, adults of sound mind will not be able to consent to such advice, counselling, therapy or prayer, which will be illegal.

In 23 of the 27 ban jurisdictions in the world (including Queensland) the only people who are banned from engaging in conversion practices (e.g. advice, counselling, therapy) are health professionals.

So in most ban jurisdictions there is no restriction on parents, relatives, friends, religious and community leaders providing advice, counselling, therapy or prayer to people in relation to sexual orientation or gender identity.

But under the Victorian Bill, parents, relatives, friends, religious and community leaders providing advice, counselling, therapy or prayer to people in relation to sexual orientation or gender identity could find themselves committing an illegal act and could be subject to a range of civil enforcement by the Human Rights Commission and a criminal prosecution.

The Victorian Bill has the harshest criminal penalties of any legislation in the world – for “change or suppression” conduct causing psychological harm five years’ imprisonment or a A$100,000 fine or for serious psychological harm 10 years’ imprisonment or a $200,000 fine. Most other laws provide for at most one year’s imprisonment.

The Victorian Bill also gives enormous investigation and enforcement powers to the Victorian Equal Opportunity and Human Rights Commission to act on anonymous complaints from third parties not affected by the practice, investigate on its own motion and compel production of evidence and issue its own enforcement notices, which would be enforceable as VCAT orders.

The Commission is both investigator and judge of breaches; it does not have these powers in relation to sex, age, disability or any other discrimination — which are much bigger issues in terms of the number of Victorians affected by them.

This is part one of an edited 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. Tomorrow the second part will appear. 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.