Criminalising Conversion Therapy in Victoria
The article Criminalising Conversion Therapy in Victoria is written by Doogue + George Defence Lawyers.
Doogue + George are experts in criminal law and have been involved in thousands of criminal matters and defended clients in hundreds of jury trials and thousands of other criminal cases. Our experienced lawyers have unparalleled experience in criminal law.
On 17 February 2022, the Victorian Government enacted the Change or Suppression (Conversion) Practices Prohibition Act 2021 (‘the Act’), legislatively denouncing change and suppression practices as bigoted, deceptive, and seriously harmful. The Act puts in place new measures to protect lesbian, gay, bisexual, trans, queer and other identifying Victorians (‘LGBTQ+’) from the serious harm, trauma, long-term mental health issues and, in some cases, suicide resulting from change or suppression practices.
In essence, the Act achieves this by criminalising and providing civil remedies against practices that seek to change or suppress a person’s sexual orientation or gender identity or, as it is more colloquially known, ‘conversion therapy’. The Act is reflective of the harmful and traumatic consequences that flow from these insidious practices to LGBTQ+ community, and culmination of overwhelming research that has found these practices to be unethical with no basis in medicine and no evidentiary foundation.
What are Change or Suppression (Conversion) Practices?
Broadly, ‘conversion therapy’ can be defined as ‘practices aimed at changing the sexual orientation, gender identity or expression of lesbian, gay, bisexual, trans and gender diverse people’. Its aim, whilst perhaps self-explanatory, is to force, coerce or convert a person into their prescribed biological gender or to a heterosexual and cisgendered identity. Conversion therapy is deeply rooted in homophobia and bigotry towards the LGBTQ+ community, who for many centuries have faced the rhetoric that they are broken, deviant and mentally ill. This rhetoric is so recent in fact, that homosexual offences were only removed from Victorian criminal law in 1980, following pioneering legislation in South Australia in 1972 and 1975.
In Australia, conversion therapy is reported to most commonly occur in faith-based contexts. Typical practices tend to involve counselling, prayer, scripture reading, fasting, retreats or ‘spiritual healing’. However, conversion therapy may also take the form of psychotherapy, clinical and pharmaceutical interventions, self-help and counselling. Consistently ‘conversion therapy’ has been proven to be medically and scientifically unfounded, unethical, and physically and psychologically dangerous for those subjected to such practices and is presently banned in many jurisdictions around the world.
Despite this definition, the Victorian Government has opted for the terminology of ‘Change or Suppression (Conversion) Practices’ for their legislation. This, as put by the Attorney General, is not only in recognition of the religious significance of the term ‘conversion’, but also in acknowledgement that use of the term ‘therapy’ ‘inappropriately legitimises these practices by suggesting they have a basis in medicine’. Additionally, the Act amends the Equal Opportunity Act 2010 to include sex characteristics as a protected attribute under that Act, as well as making consequential amendments to the Family Violence Protection Act 2008 and the Personal Safety Intervention Orders Act 2010 such that, in some circumstances, change or suppressions practices can be considered a form of family violence or harassment.
Under the Act, it is now a criminal offence to engage in a change or suppression practice; engage in one or more change or suppression practices that cause serious injury or injury (as defined by the Crimes Act 1958); take a person from Victoria for change or suppression practice; or advertise or produce documents advertising change and suppression practices. This applies to both natural persons and corporations, with proceedings capable of being brought by Victoria Police, the Victorian Equal Opportunity and Human Rights Commission or a person who is duly authorised.
In order to be convicted under the Act, there are three criteria which must be established beyond reasonable doubt:
- The practice must be directed at an individual;
- The practice must occur on the basis of the person’s sexual orientation or gender identity; and
- The practice must have the aim to change or suppress that person’s identity.
In the case of a natural person, the maximum penalty is 10 years imprisonment or a fine of up to 1200 penalty units or both, whilst a corporation faces a maximum penalty of a fine of 6000 penalty units.
Importantly, the definition of change or suppression practice provides exceptions for ‘conduct which is supportive or affirming of a person’s sexual orientation or gender identity, or appropriate practices by a health professional’, such that conversations between children and their parents or other family caregivers about sexual orientation or gender identity would only be captured by the Act where the conversation falls into the above categories.
In addition to the criminal redress, which falls within the ambit of Victoria Police, the Act also creates a civil scheme which allows the Victorian Equal Opportunity and Human Rights Commission (‘the Commission’) to assist complainants that do not meet the criminal threshold.
The civil redress scheme creates options for preventing and responding to change or suppression practices, by empowering the Commission to consider and respond to reports of change or suppression practices, launch investigations, and enforce outcomes where evidence of serious or systemic suppression practices are found. The Commission will also serve an educative and facilitative function, with a survivor and trauma informed focus, demonstrating that long-term cultural change is essential in eliminating change or suppression practices and ensuring they do not move ‘underground’.
Although a hard-fought battle for the basic rights and equality for the LGBTQ+ community, the Act delivers a clear message that everyone has the right to be treated equally and without discrimination, and that practices that seek to change or hide someone’s sexual orientation or gender identity are harmful, unlawful and will not be tolerated in Victoria.
It is early days for this legislation, so we are yet to fully understand the application of the Act and capability for preventing and responding change or suppression practices. Having said that, the Act is an enormous step forward for the LGBTQ+ community and closes gaps in relevant legislation, such as the Equal Opportunity Act 2010 and Family Violence Protection Act 2008 to further recognise and protect the LGTBQ+ community.
Date Published: 24 August 2022