(Sept. 25, 2020) Two Australian jurisdictions recently enacted legislation banning practices that seek to change a person’s sexual or gender identity, often referred to as “conversion therapy.” The government of the state of Victoria has also committed to prohibiting such practices, releasing a discussion document seeking public comment on legislative options in October 2019.
Queensland Legislation
On August 20, 2020, the Health Legislation Amendment Act 2019 (Qld) (Qld Act) was enacted in Queensland. Part 5 of the Act includes provisions prohibiting “conversion therapy,” which it defines as “a treatment or other practice that attempts to change or suppress a person’s sexual orientation or gender identity.” (Qld Act s 28, inserting new s 213F(1) into the Public Health Act 2005 (Qld).) Such therapy expressly does not include a practice that
(a) assists a person who is undergoing a gender transition; or
(b) assists a person who is considering undergoing a gender transition; or
(c) assists a person to express their gender identity; or
(d) provides acceptance, support and understanding of a person; or
(e) facilitates a person’s coping skills, social support and identity exploration and development. (New s 213F(2).)
“Gender identity” is also defined in the act, which provides that
(1) Gender identity, of a person, is the person’s internal and individual experience of gender, whether or not it corresponds with the sex assigned to the person at birth.
(2) Without limiting subsection (1), the gender identity, of a person, includes—
(a) the person’s personal sense of the body; and
(b) if freely chosen—modification of the person’s bodily appearance or functions by medical, surgical or other means; and
(c) other expressions of the person’s gender, including name, dress, speech and behaviour. (New s 213G.)
Under the act, a health service provider commits an offense if he or she performs conversion therapy on another person, and may be subject to a fine of AU$13,345 (100 penalty units) (about US$9,750) or 12 months’ imprisonment, or to a fine of about AU$20,000 (150 penalty units) (about US$14,620) or 18 months’ imprisonment if the other person is a “vulnerable person.” A vulnerable person includes a child, a person with impaired capacity for making decisions about a particular service, and a person with an impairment “that is likely to significantly limit the person’s ability to understand a particular service offered by a health service provider.” (New s 213H.)
Australian Capital Territory Legislation
On September 4, 2020, the Sexuality and Gender Identity Conversion Practices Act 2020 (ACT) (ACT Act) was notified in the Australian Capital Territory (ACT), having been passed by the ACT Parliament in late August. The act includes an objects clause, which states that
The objects of this Act are—
(a) to affirm that—
(i) all people have characteristics of sexuality and gender identity; and
(ii) no combination of those characteristics constitutes a disorder, disease, illness, deficiency, disability or shortcoming; and
(b) to recognise and prevent the harm caused by sexuality and gender identity conversion practices. (ACT Act s 6.)
The act defines “sexuality or gender identity conversion practice” as “a treatment or other practice the purpose, or purported purpose, of which is to change a person’s sexuality or gender identity.” (S 7(1).) It also excludes certain practices using essentially the same terminology as the Queensland legislation, quoted above. (S 7(2).) It further excludes from the definition a practice by a health service providers that, “in the provider’s reasonable professional judgment,” is necessary to
(a) provide a health service in a manner that is safe and appropriate; or
(b) comply with the provider’s legal or professional obligations. (S 7(3).)
There are two offense provisions in the act, with the first prohibiting a person from performing a sexual or gender identity conversion practice on a “protected person” (s 8)—being a child or “a person who has impaired decision-making ability in relation to a matter relating to the person’s health or welfare” (ACT Act Dictionary). The penalty for this offense is up to AU$24,000 (about US$17,530), imprisonment for 12 months, or both. The second offense prohibits the removal of a protected person from the ACT for the purpose of a sexuality or gender identity conversion practice being performed on that person, and is subject to the same penalties. (S 9.)
The act “also provides for civil penalties, giving the ACT Civil and Administrative Tribunal the power to issue orders against people complained about, and order redress and compensation.” (See ACT Act sch 1, inserting new provisions into the Human Rights Commission Act 2005 (ACT).)