The objective of amendments to the Public Health Act prohibiting conversion therapy is to protect the Queensland LGBTIQ community from the harm caused by conversion therapy, and to send a strong message that being a LGBTIQ person is not a disorder that requires treatment or correction. Conversion therapy is a term used to describe treatments and practices that attempt to change or suppress a person’s sexual orientation or gender identity. There is no evidence of any benefits from conversion therapy, nor that sexual orientation or gender identity can be changed through therapeutic or other interventions. To the contrary, clinical and social science research has produced overwhelming evidence that conversion therapy is psychologically harmful and correlated with higher rates of suicidality, self-harm and other adverse health outcomes. Many professional and expert bodies, including the Australian Psychological Association, Australian Medical Association and World Health Organization, formally oppose the use of conversion therapy and acknowledge that these practices are harmful and unethical. Despite this strong consensus and evidence of harm, it is not unlawful for health service providers to perform conversion therapy in Queensland or in any other Australian jurisdiction.
In November 2018, the Minister for Health and Minister for Ambulance Services convened the Ending Sexual Orientation Conversion Therapy Roundtable to consider how to end conversion therapy in Queensland. The roundtable, attended by representatives of the community and government, concluded that the Government should consider legislation making it an offence for health practitioners to perform conversion therapy. The roundtable also recommended that consideration be given to protecting children, young people and vulnerable groups from these practices. ...
The Bill amends the Public Health Act to prohibit health service providers from performing conversion therapy and makes it an offence for a health service provider to perform conversion therapy. The new offence carries a maximum penalty of 100 penalty units, 12 months imprisonment or both. If the recipient of the conversion therapy is a vulnerable person, such as a child, the maximum penalty increases to 150 penalty units, 18 months imprisonment or both.
The offence is a misdemeanour, which is an indictable offence, and may be heard summarily or on indictment, at the prosecution’s election, unless a Magistrates Court is satisfied that the offence should not be heard summarily because of exceptional circumstances. The creation of the offence will protect the public by prohibiting health service providers from performing conversion therapy. Health service providers who continue to perform conversion therapy will commit an offence carrying substantial penalties. Consistent with the recommendations of the Ending Sexual Orientation Conversion Therapy Roundtable, the increased penalties for conversion therapy performed on a vulnerable person will provide enhanced protections for children, people without legal capacity and people with an intellectual disability. This recognises that these people may be especially susceptible to health service providers offering conversion therapy services and more likely to suffer harm as a result of their treatment.
The Bill defines conversion therapy as a treatment or practice that attempts to change or suppress a person’s sexual orientation or gender identity. Gender identity is a broad term that encompasses a person’s internal and individual experience of gender, including the person’s personal sense of the body and how they express their gender to themselves and others.
The Bill targets practices that are based on the idea that being a LGBTIQ person is a disorder or deviant behaviour that requires correction or suppression. These ideas have long been discredited by the medical community and are not evidence-based. Examples of practices and treatments that are prohibited under the Bill include:
- aversion therapy, which may include administering an electric shock or nausea inducing drugs while showing a person an image of a person of the same sex;
- regression or hypnotherapy to unlock latent heterosexual feelings; and
- counselling sexual identity management which promotes individuals distinguishing between their public and private sexual feelings or gender identity.
In contrast, the Bill does not prohibit treatments or practices that:
- assist individuals who are undergoing or considering a gender transition;
- assist individuals to express their gender identity;
- provide acceptance, support and understanding to these individuals; or
- facilitate an individual’s coping, social support or identity exploration and development.
These practices are expressly excluded from the definition of conversion therapy, and will not constitute an offence, because their purpose is to affirm and support, not to change or suppress, a person’s sexual orientation or gender identity. Conversion therapy also does not include treatments or medical interventions relating to gender transition.
The Bill also excludes from the definition of conversion therapy treatment decisions and other practices by a health service provider that are reasonably necessary to provide a health service in a safe and appropriate manner or to comply with the provider’s legal or professional obligations. This exclusion will not allow health service providers to engage in prohibited practices such as those described above, which have been discredited and would not be performed by a reasonable health service provider. Rather, the exclusion will ensure that the prohibition of conversion therapy does not discourage practitioners from treating LGBTIQ patients out of concern that clinically appropriate decisions could be perceived as not affirming or supporting a patient’s sexual orientation or gender identity. The exclusion will protect practitioners who, acting reasonably, in good faith and in accordance with relevant professional standards, treat a patient in a manner that could be subjectively perceived as not affirming or supporting their sexual orientation or gender identity. For example, a doctor may advise against surgery because a patient has a pre-existing condition that means the surgery is not safe. A doctor may also be required to advise a patient about potential side effects of drugs. In cases such as these, health service providers will be able to rely on the reasonable professional judgment exception to ensure that the health services provided are delivered in a safe and clinically appropriate manner.
The new offence applies to health service providers, as defined in section 8 of the Health Ombudsman Act 2013. The Bill is limited to health service providers because, as health professionals, they have ethical obligations not to engage in practices that are harmful and not evidence-based. It would be a violation of the trust that the community places in health service providers to allow these practices to be carried out in the health care system. Prohibiting conversion therapy by health service providers also sends the message that these practices are opposed by the Queensland Government and that being a LGBTIQ person is not a disorder that requires treatment.
The definition of a health service provider is broad, comprising any individual or entity that provides a service that is, or purports to be, for maintaining or improving a person’s health or wellbeing. The definition includes registered health practitioners such as doctors, nurses and psychologists and unregistered health practitioners such as counsellors, naturopaths and social workers. The offence will apply regardless of whether the service is paid for or provided for free or the location where the service is provided.
Legislating to restrict ordinary activities, without sufficient justification, may be a breach of section(4)(2)(a) of the Legislative Standards Act, which requires legislation to have sufficient regard to the rights and liberties of the individual. Clause 28 of the Bill provides that a health service provider must not perform conversion therapy on another person in their professional capacity. This may be seen to infringe on the right of health service providers to go about ordinary activities and to conduct business without interference.
The prohibition on conversion therapy is considered justified, as it is necessary to protect people from the harm caused by conversion therapy. Health service providers have an ethical obligation not to engage in practices that cause harm. There is a considerable body of evidence showing that conversion therapy is harmful and does not offer clinical or therapeutic benefits. The United Nations General Assembly states that conversion therapies have been found to be ‘unethical, unscientific and ineffective’. This is supported by the 2018 La Trobe University report Preventing harm, promoting justice: Responding to LGBT conversion therapy in Australia, which found significant negative health outcomes for individuals who have undergone conversion therapy.
Under the Human Rights Act 2019 and the International Covenant on Civil and Political Rights, a person has the right to protection from torture and cruel, inhuman or degrading treatment. In its 2015 report Discrimination and Violence Against Individuals Based on Their Sexual Orientation and Gender Identity, the United Nations General Assembly commented that some forms of conversion therapy may be considered torture and breach the human rights of those subjected to the practices.
It is therefore appropriate to ensure that these practices are not engaged in by health service providers, and that the rights of the LGBTIQ community are protected, even if the prohibition may result in a limitation on the rights of health service providers who perform conversion therapy.
Any further restriction of the religious rights and liberties of individuals is limited by the scope of the prohibition on conversion therapy, which applies only to treatments or practices performed by health service providers. As such, the prohibition applies to conversion therapy that is performed in the course of providing a health service. The right to freedom of thought, conscience, religion and belief is not limited by the Bill. Religious or spiritual practices, such as praying for a person to change their sexual orientation, are not prohibited by the Bill. Further, only the practice of conversion therapy is prohibited; holding and expressing views or beliefs on conversion therapy, religious or otherwise, is not prohibited.
To give effect to the prohibition of conversion therapy, clause 28 of the Bill makes it an offence for a health service provider to perform conversion therapy on another person. The offence is subject to a maximum penalty of 150 penalty units, 18 months imprisonment, or both, if the person who is subject to conversion therapy is a vulnerable person. Otherwise the maximum penalty is 100 penalty units, 12 months imprisonment or both.
The offence and penalties are justified as an appropriate response to the harm caused by conversion therapy and the need to ensure these practices are not carried out in a health care context. A term of imprisonment is necessary to send the message that conversion therapy is not condoned by the Queensland Government and to ensure the offence is a strong deterrent. A term of 12 months imprisonment (or 18 months imprisonment if the treatment is performed on a vulnerable person) is appropriate as, under the Health Practitioner Regulation National Law, registered health practitioners are required to notify the relevant registration body if charged with an offence punishable by 12 months imprisonment or more. This may result in registration consequences for the practitioner, which is a further disincentive for health practitioners to engage in conversion therapy. It is appropriate to impose a higher penalty where the subject of the conversion therapy is a vulnerable person. A higher penalty acknowledges that vulnerable people, including children, people without legal capacity or people with an impairment that may limit their understanding of the treatment, are especially susceptible to these unproven and unethical practices.
A person who commits the offence of performing conversion therapy will commit a misdemeanour. This is an indictable offence, which is appropriate given the serious breach of public trust involved when a health service provider engages in a practice that is known to be harmful and discriminatory and to offer no countervailing benefit to a person’s health or wellbeing. Additionally, as an indictable offence, the offence will not be subject to a limitations period for laying charges or bringing prosecutions. Limiting the time during which charges can be laid could frustrate enforcement because claimants are vulnerable, private and unlikely to come forward immediately. In some cases, victims may be underage when the alleged offence occurred and may not be able to make a complaint until several years later.
Proceedings for the offence of performing conversion therapy will be dealt with summarily or on indictment, at the prosecution’s election. However, to ensure fairness and protect the rights of defendants, a Magistrates Court must abstain from hearing or deciding the proceeding summarily if the defence demonstrates that this would be inappropriate because of exceptional circumstances, including the need to decide important questions of law or to have a jury consider issues involving contemporary community standards.
The amendments to prohibit conversion therapy may engage the right to freedom of thought, conscience, religion and belief under section 20 of the Human Rights Act. The Bill does not limit this right, as the prohibition applies only to treatments and other practices provided by health service providers. It does not extend to prohibiting a health service provider from holding and expressing views or beliefs on conversion therapy, or from engaging in religious or spiritual practices that are not performed in their capacity as a health service provider, such as praying for a person to change their sexual orientation.
If there is any limitation on the right to freedom of thought, conscience, religion and belief, this must be balanced against the purpose of the limitation and the protection of human rights of those who may be subjected to conversion therapy. The purpose of the limitation is to protect LGBTIQ individuals from the harm caused by conversion therapy. Health service providers have an ethical obligation not to engage in practices that cause harm and there is considerable body of evidence showing that conversion therapy is harmful and does not offer therapeutic benefits. Conversion therapy may also violate the human rights of LGBTIQ people.
Section 17 of the Human Rights Act provides that a person must not be subjected to torture or treated in a cruel, inhuman or degrading way. In its report Discrimination and Violence Against Individuals Based on Their Sexual Orientation and Gender Identity, the United Nations General Assembly condemned conversion therapy, stating that conversion therapy may be ‘tantamount to torture’ and that ‘states have an obligation to protect all persons, including LGBT and intersex persons, from torture and other cruel, inhuman or degrading treatment or punishment in custodial, medical and other settings [which includes] conversion therapy’.
Section 37 of the Human Rights Act provides that every person has the right to access health services without discrimination. This right has been interpreted in international jurisprudence as requiring states to ensure health services are accessible without discrimination, accompanied by access to appropriate information, acceptable from a gender, cultural and age perspective, and scientifically and medically appropriate. There is broad scientific consensus that conversion therapy offers no clinical or therapeutic benefits. The United Nations General Assembly states that conversion therapies have been found to be “unethical, unscientific and ineffective”. This is supported by the 2018 La Trobe University report Preventing harm, promoting justice: Responding to LGBT conversion therapy in Australia, which found significant negative health outcomes for individuals who have undergone conversion therapy.
Prohibiting conversion therapy by health service providers is a reasonable and appropriate limitation to protect LGBTIQ people from treatments and practices that amount to torture and ensure they can access appropriate and scientifically supported health care without discrimination.
