Graham Adams: Greens stir the pot on banning conversion therapy

Democracy Project 23 February 2021
Banning gay conversion therapy obviously presents its own problems — including infringing upon freedom of religion and freedom of speech — but a ban on gender identity conversion therapy adds another level of complication when transitioning from one gender to another can involve puberty blockers, cross-sex hormones, mastectomies, vaginoplasties or other medical treatments.

A comment on Green MP Julie Ann Genter’s Facebook page summed up some of the uneasiness: “Overseas there have been problems with the trans activists using [a ban on conversion therapy] to stop concerned parents and therapists from pursuing a watchful waiting approach for children.”

Any counselling or advice that supports and encourages someone to transition is generally exempt from a ban. Consequently, it has been claimed by opponents that a ban on gender identity conversion therapy effectively means any doctor, counsellor or psychologist who doesn’t immediately affirm a person’s belief that they have been born in the “wrong body” would be liable for prosecution.

The problem with trying to assess right now exactly what a legal ban might mean — and whether it would be used to discourage attempts to question suitability for transition in particular — is that there is no draft legislation before Parliament to steer the debate.

Nevertheless, we can get a rough idea of what legislation might look like from the member’s bill that Labour list MP Marja Lubeck put into Parliament’s biscuit tin in 2018. It was endorsed enthusiastically by Labour’s leaders but lapsed when Parliament was dissolved in September last year.

In February 2020, Jacinda Ardern told express magazine that she was confident that Lubeck’s Prohibition of Conversion Therapy Bill would pass into law if it was drawn — adding that it had her full backing, as well as that of the Labour caucus. “We support it. I support it,” she said.

In October, less than a fortnight before the election, Grant Robertson said Lubeck’s bill would be adopted as a government bill if Labour were re-elected, and confirmed that the Greens also endorsed her proposed legislation.

In the bill’s preamble, Lubeck outlined the scope of her draft law: “Conversion therapy is a practice or treatment that seeks to change, suppress, and/or eliminate a person’s sexual orientation, gender identity and, or gender expression… This bill creates an offence for any person who advertises, offers, or performs conversion therapy on another person. Under this bill, any person is guilty of an offence if they remove another person from New Zealand for the purposes of conversion therapy.”

Lubeck also claimed — both in the preamble to her bill and in her press release announcing its lodging — that it was “modelled on legislation currently before Ireland’s Seanad Éireann that has progressed with cross-party support”.

In fact, Lubeck failed to acknowledge a significant difference between her bill and her Irish model. She had inserted another clause which vastly expanded the categories of those who might be exposed to prosecution.

Clause 10 — titled “Parties to Offences” — states that “every person is a party to and commits an offence who aids, abets, counsels, procures, or incites a person or professional to commit an offence”.

Lubeck recommended penalties of up to a year’s imprisonment, a fine of up to $10,000, or both, for anyone found guilty of being a party to an offence.

Unfortunately, this section could plausibly include a person who voluntarily asked for help from a pastor or priest to modify their same-sex attraction to align with their religious views or someone who was considering transitioning but wanted to discuss other possibilities and sought advice from a counsellor.

It could also ensnare parents who might think their child had other motivations for wanting to transition than those they expressed — and possibly ones they were not entirely aware of. The parents might reasonably want to explore these motivations with the help of others.

I asked Lubeck by email whether it had been her intention to include among those liable for prosecution the parents of a child wanting to transition who sought help to explore other reasons for this desire and other possible solutions to whatever distress they were experiencing.

And, if that wasn’t her intention, did she accept this was a possible interpretation of that section.

I also wanted to know why in public statements comparing her bill to the Irish bill she didn’t mention her dramatic expansion of the category of those liable for prosecution.

Lubeck didn’t answer my questions but offered the following information: “The government is committed to banning conversion practices… [It] is treating this matter with urgency and expects to have legislation introduced to Parliament by the middle of the year with the aim of having it passed by the end of the year, or February next year at the latest…

“But creating a new crime and/or civil offence needs to be done correctly so we don’t create unintended consequences or fail to adequately stop the damaging practices we are trying to ban.

“The Minister of Justice is developing legislation that both protects people from the harms of conversion practices and upholds everyone’s human rights.”

Caution is definitely advised. And it’s easy to see why Ardern seems less gung-ho than she was last year and why the Justice Minister is now apparently “developing legislation” rather than simply adopting Lubeck’s bill.

Last week, Family First pointed out that an Official Information Act request had turned up advice given in 2018 to then Associate Minister of Health Julie Anne Genter that reminded her that protections against conversion therapy already exist in the health sector as well as laws to deal with any encroachments on “bodily integrity”.

It also advised that a ban “could be inconsistent” with the NZ Bill of Rights Act 1990 “which provides for rights of assembly, free speech and rights to freedom of religion”.

The ministry’s advice stated: “Due to the current protections that are in place, and the need to balance the rights of people with preventing harm, it is not recommended that a legislative ban of conversion therapy would be the most effective way to reduce the harm it causes.”

In 2019, the Justice select committee also declined to recommend a ban on the same grounds of a clash between freedoms guaranteed in the Bill of Rights and the right to be free from discrimination. “The desire to reduce harm by banning conversion therapy must be balanced against the desire to protect freedom of beliefs and religion for those offering the therapy.”

The government is going to have to be extremely agile if it sincerely intends to attempt to pull off this particular juggling act. Not least, the state penalising voluntary interactions between adults that in most cases will involve them doing nothing more than talking in private is difficult to see as anything but a major overreach.

As one law academic put it on Facebook: “In my opinion there’s a big gap between ‘This is bad’ and ‘This should be criminal’.”

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