The NSW government’s plans to ban gay conversion therapy will be expanded to include making it illegal to change or suppress a person identifying as trans or gender diverse.
Attorney-General Michael Daley has confirmed the government is pushing ahead with its own new laws, rather than backing independent MP Alex Greenwich’s bill later this month.
Before winning the state election, Premier Chris Minns promised to outlaw gay conversion practices, without explicitly extending his commitment to the trans community.
A leaked discussion paper, however, shows that the government wants to make illegal any activities attempting to change or suppress a person’s sexual orientation or gender identity, and this would be elevated to a crime if these practices were likely to cause harm. It also proposed to criminalise taking someone out of the state to participate in conversion practices.
Relationships of LGBTQ people with parents, friends, work colleagues, schools, health professionals and religious groups will all be covered by the proposed laws.
Daley said the form of the prohibition needed to be carefully considered, and the government’s intention was to “strike a careful balance between prohibiting harmful practices and ensuring freedom of religious belief”.
How the consultation paper defines its terms
Gender: one’s sense of whether they are a man, woman, non-binary, agender, genderqueer, genderfluid, or a combination of one or more of these definitions.
Transgender and gender diverse: these are inclusive umbrella terms that describe people whose gender is different to what was presumed for them at birth.
Sexuality: describes a person’s sexual, romantic, spiritual, or emotional attraction to other people.
Under the proposal, the powers of Anti-Discrimination NSW to oversee a civil complaints scheme would run parallel to any criminal regime, similar to how the body considers vilification complaints.
A government working group has begun closed consultations with key stakeholders including national LGBTQ group Equality Australia, LGBTQ health organisation ACON, and the Catholic Church that will close at the end of this month.
The consultation paper provides a carve-out for the expression of a belief, or delivery of religious practices such as sermons unless they have the direct or primary purpose of changing or suppressing an individual’s sexual orientation or gender identity.
It also suggests exemptions for any health service or treatment that is necessary in the health provider’s reasonable professional judgment or that is required to comply with their legal or professional obligations.
“Labor made an election commitment to ban LGBTQ+ conversion practices and consultation is a part of the process of developing our own bill to bring to parliament in due course,” Daley said.
“The aim of this policy is simply to protect people from harmful and damaging practices, so it is important that we get this landmark legislation right.”
A lawyer who is familiar with the consultation said the proposals applied in any setting, but the final legislation was unlikely to criminalise parents just for talking about their concerns with their children, pointing out that other jurisdictions have a serious harm test and took more of an educational approach.
Victoria, Queensland and the ACT already have varying bans on conversion practices for both sexuality and gender identity, while several other states have also promised change.
Sexual orientation and gender identity are separate concepts. The former is about sexual or romantic attraction to other people, while the latter is about one’s personal sense of being a man, a woman or non-binary.
Both ACON and the Royal Australian and New Zealand College of Psychiatrists, which is also part of the consultation, support a ban.
The discussion paper cites a 2019 study of more than 6000 LGBTQ people aged under 25 that found 4 per cent had attended counselling, group work, interventions or programs designed to change or suppress or change their sexuality or gender identity, and this was higher among trans or gender diverse people.
The paper says conversion practices include behaviour and talking therapies, prayer and exorcism, aversion therapies and other physical abuse, while harms include heightened risk of suicide, mental health problems such as depression, loneliness and social isolation, and physical injury.
The paper prefers the term “conversion practices” to the more common “conversion therapy” on the basis that there is no therapeutic evidence base.
A number of religious organisations are likely to oppose the ban on conversion practices – Catholic and Muslim leaders opposed the Victorian legislation in 2021, describing it as an unprecedented attack on people of faith in a joint letter. The Sydney Catholics and Sydney Anglicans declined to comment on Thursday because the consultation was confidential, while the Anglican Archbishop of Newcastle Peter Stuart has previously backed the need for reform.
One LGBTQ advocate, who spoke on condition of anonymity because the discussion paper was meant to be confidential, said the NSW proposal was potentially weaker than Victoria and New Zealand because it might allow religious practices if conversion was a secondary purpose.
However, it was stronger than Queensland’s law, which only applies to health care providers, and that of the ACT, which only protects children or people with impaired decision-making ability.
Some individual mental health professionals (but not their professional organisations), women’s organisations and LGB groups support a ban on gay conversion therapy but argue that gender dysphoria needs to be treated as a mental health problem.
A coalition of women’s groups that argue for rights based on biological sex rather than gender identity has rallied to fight the proposed changes, setting up a website and crowdfunding a billboard in Belmore in south-west Sydney that says: “Sex self ID gives men & boys the key to women & girls’ changing rooms & sports teams. Contact your NSW MP now. Say no to sex self ID!”
Kit Kowalski, co-founder of one of the groups, Women’s Rights Network Australia, said she believed the reason for the targeted consultation was “to limit debate because there was broad social consensus that gay conversion therapy was bad, but gender identity was more contentious”.
“We know young people who experience gender identity issues do often grow up to be happy and healthy gay adults,” she said.
Ghassan Kassisieh, legal director of national LGBTQ group Equality Australia, said conversion practices for both sexuality or gender identity caused real and lasting harm.
“Any scheme to end conversion practices will only be effective if it includes all of us, regardless of our sexual orientation or gender identity, where it occurs or causes harm,” he said.
Greenwich said he would push ahead with his bill. His proposed legislation would include a ban on conversion practice modelled on Victorian laws, amendments to anti-discrimination law, and provisions modelled on Queensland laws for Births, Deaths and Marriages to issue identity documents in someone’s affirmed gender identity without requiring the surgical removal of sex organs.
For counselling support call QLife for LGBTQ individuals 3pm to midnight or Lifeline 24/7. QLife: 1800 184 527. Lifeline: 13 11 14.
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