As it stands, the proposed legislation would neither help survivors nor allow offenders to be prosecuted. If conversion practices are to be stamped out, substantial changes are needed, argues Shaneel Lal.
This piece includes reference to suicide.
The Conversion Practices Prohibition Legislation Bill passed with a majority at its first reading. The Labour, Green, Māori and Act parties voted in favour, leaving National as the only party to vote against sending the bill to select committee. Aotearoa was rightfully celebrating a moment of progress for queer people. The bill aims to ban conversion practices, which is more widely known as conversion therapy. However, survivors and grassroots activists aren’t convinced this bill will achieve that.
With only nine days left for select committee submissions, it is time to amend the bill.
National voted against banning conversion practices because they feared the bill would criminalise parents for advising their children against taking puberty blockers. The bill does not do that.
Section 5 of the bill defines conversion practices:
(1) In this Act, conversion practice means any practice that—
(a) is directed towards an individual because of the individual’s sexual orientation, gender identity, or gender expression; and
(b) is performed with the intention of changing or suppressing the individual’s sexual orientation, gender identity, or gender expression.
The bill is abundantly clear that advising your children not to take puberty blockers won’t be criminalised. The bill requires a practice. Advising your children or having a conversation does not meet the definition of a practice and the threshold for criminalisation. The bill does not criminalise parents for failing to provide puberty blockers for their children either. The bill criminalises acts rather than omissions, and failing to do something is an omission. What may be criminalised is if a parent forcefully stopped their child from taking puberty blockers because of their child’s gender identity or gender expression with the intent of changing or suppressing their child’s gender identity or gender expression. Why shouldn’t this be criminalised? If a medical professional and a young person decide that puberty blockers are best for the child, a transphobic parent should not be allowed to stop that. Simply put, the National Party’s rhetoric is bogus.
If the National Party and I agree on something, it’s that I too support the intent of this bill. The government has unlimited power to legislate an effective ban, but it is putting forward an inadequate bill that fails to ban the practice or compensate the victims.
The minister of justice Kris Faafoi was clear that this bill’s primary function is to prevent harm and compensate the victims, rather than to criminalise people. However, the bill is pointing victims in the direction of a pathway that does not exist. The bill is silent on whether victims and survivors are guaranteed any financial compensation.
Survivors and victims may seek redress from the Human Rights Commission and the Human Rights Review Tribunal. The Human Rights Review Tribunal may provide a declaration that a wrong has occurred without providing compensation to the victim for mental health services. The larger issue is that victims and survivors are expected to enter a lengthy and expensive process if they want to have a chance at compensation.
There has been a high rate of suicide among victims and survivors, who often suffer from severe levels of depression. They are already on edge, and do not have the emotional capacity to enter a quasi-judicial process in the hope that they may receive compensation.
The government has a real opportunity to redress victims and survivors. Conversion practices are proved to cause demonstrable harm to the victims, so the ACC scheme should be extended to cover mental injury as a result of conversion practices. ACC covers mental injury in limited circumstances, and all this would require is a simple edit to add the offence of conversion practices to schedule 3 of the Accident Compensation Act 2001.
If the excuse for providing weak criminal offences is that this bill is to remedy victims rather than criminalise people, the government has missed by a mile. The government is throwing victims and survivors into a bureaucratic jungle when they can provide a simple and certain remedy by extending the scope of ACC to cover mental injury suffered as a result of conversion practices.
The bill creates two criminal offences. Under section 8, any person who performs conversion practices on a person under the age of 18 or lacking decision-making capacity is liable on conviction to a term of imprisonment not exceeding three years. Under section 9, any person who performs conversion practices on a person and causes serious harm to them is liable on conviction to a term of imprisonment not exceeding five years.
The bill distinguishes people under the age of 18 from those aged 18 and above, but is unnecessary and harmful to exclude people above the age of 18 from section 8. Section 8 does not require the victims and survivors to suffer any harm for prosecution, but anyone aged 18 or above who goes through conversion practices will only be able to hold their practitioner accountable in the criminal justice system if they can prove they’ve suffered serious harm.
The bill defines serious harm as any physical, psychological or emotional harm that seriously and detrimentally affects the health, safety or welfare of the individual. Serious harm in criminal law usually means grievous bodily harm. Evidence shows that conversion practice increases the risk of suicide and severity of depression, but, despite there being signs in criminal law that diagnosable mental health problems may be considered serious harm, it is unlikely this would meet the threshold.
Harm resulting from conversion practices can be delayed. Conversion practice affects people at a deep psychological level, which victims and survivors may not realise immediately. My friend’s partner experienced conversion practice in Taranaki in the 90s, which triggered his battle with anxiety and depression and left him damaged for years. Twenty years later, he committed suicide. If victims and survivors cannot prove harm in the present, there will be no opportunity for prosecution. The longer the harm takes to present itself, the more causation and time limitation issues may arise.
Ultimately, we want to stop people from practising conversion practices. However, if the practitioners do not cause serious harm to those above the age of 18, the criminal justice system cannot get involved. Section 9, which covers people above the age of 18 and requires the victim to suffer serious harm, will become redundant because victims and survivors will not meet the unattainable requirements of serious harm. Those aged 18 and above will be left without protection. It is vital for justice that section 8 includes people of all ages.
The bill has created multiple barriers to a successful prosecution. This may be consistent with the minister’s view that this bill is to remedy victims rather than criminalise people. However, the bill fails to remedy victims but still makes prosecution implausible.
Section 12 states that there will be no prosecutions without the attorney general’s consent. The minister has provided no justification for this. The police can prosecute a case of murder or sexual violation without the attorney general’s consent. These offences carry a hefty penalty and are considered much more serious. Strangely, the attorney general needs to consent to prosecute cases of conversion practices, which carry a maximum penalty of three years in section 8. Under section 8, most penalties will result in home detention.
Section 12 is deeply concerning. The attorney general is a member of the government of the day. This bill gives the attorney general the absolute power to determine whether a case will be prosecuted or not. If a government that does not support this ban comes into power, the prohibition on conversion practices ceases. The National Party has been clear that it would not criminalise parents for stopping trans children from being trans. A queerphobic attorney general or an attorney general of a government that does not support a ban on conversion practices could refuse to prosecute all cases under this ban and immediately render it useless.
In theory, there may be a process of judicial review available. In practice, it simply is not a possibility. The police would have the onus to challenge the attorney general’s decision to decline prosecution. That will never happen. Courts have been unwilling to interfere with prosecutorial discretion, and when they do, the threshold is extremely high.
There is an unsettling amount of uncertainty about whether this bill will have any effect under future governments. It should be left to the moral judgment of a potentially queerphobic attorney general whether victims receive justice. Section 12 should be omitted.
This is not an exhaustive list of amendments. The Conversion Practices Prohibition Legislation Bill has the right intention, but it fails to achieve its goals in practice. Victims and survivors must be the focus of the ban on conversion practices. A small change to the ACC scheme can mean victims and survivors will receive the help they need. However, more significant changes are required for this bill to stamp out conversion practices.
The Conversion Therapy Action Group has created three comprehensive submission templates for parents, allies and queer people to use for the select committee. Access all the template submissions and instructions on how to submit to the select committees here.
Shaneel Lal is the co-founder of the Conversion Therapy Action Group, a group working to end conversion therapy in Aotearoa New Zealand