Legislate Away the Hate: the Future of Conversion Therapy in New Zealand

Lauren White

On the surface, New Zealand seems to be a nation where LGBTQIA+ people can freely live as themselves. With recent legislative developments such as the legalisation of same-sex marriage and the new ability to wipe convictions for homosexual activity from criminal records, it seems New Zealand has become a nation that is tolerant and accepting of LGBTQIA+ people [1]. However, there are still legislative gaps that contribute to the oppression of the LGBTQIA+ community. This is most notable in the status of conversion therapy as legal.
Theresa May’s recent announcement that the UK will finally ban conversion therapy has bought to light this discrepancy in New Zealand [2]. Pressure for the Government to act is building, with nearly 15,000 people signing a petition to ban conversion therapy [3]. The people have spoken – it is time for Parliament to decide if it truly stands on the side of the LGBTQIA+ community.

What is Conversion Therapy?
Conversion therapy is any treatment undertaken to change or suppress the sexual orientation or gender identity of an LGBTQIA+ person, based in the belief that being LGBTQIA+ is a psychological or unnatural condition [4]. Most modern conversion therapists primarily use psychotherapy, but conversion therapy has been known to involve a wide range of techniques, from hypnosis to electric shock therapy [5]. The effectiveness of conversion therapy is contested. While groups that practise it claim that it is possible to change a person’s gender or sexual orientation, the predominant perspective amongst healthcare professionals is that there is no evidence that conversion therapy works [6]. However, there is extensive evidence pointing to harm resulting from treatment. The mental pressure often leads to depression, anxiety and ongoing intimacy or sexual issues [7]. It also can lead to family issues where an LGBTQIA+ person feels pressured into marrying and having kids [8]. Conversion therapy can seriously damage the lives of the people it is trying to “help.”

Not all of those who practice what would be considered conversion therapy refer to it as such. As seen in Sunday’s recent investigation into conversion therapy in New Zealand, multiple people when asked denied they were practicing conversion therapy for several reasons, such as they only help those who come to them or they don’t claim to be actual therapists [9]. However, they all provide advice or treatment with the same goal and guarantee – to change an LGBTQIA+ person’s sexual or gender identity – therefore they can be considered to be providing a kind of conversion therapy.
Conversion therapy is most often associated with religion, where religious advisors hold that being LGBTQIA+ is sinful, and that conversion back to being cisgender or heterosexual is possible [10]. However, it is also been employed by healthcare professionals, such as therapists [11]. It must be noted that not all religious groups and healthcare professionals use conversion therapy, but there are enough practising to cause concern.

Conversion Therapy in New Zealand
There is a general perception that conversion therapy is not an issue in New Zealand. However, Rainbow Youth has become aware of hundreds of conversion therapy patients in Auckland alone [12]. A recent investigation by Sunday showed that it is incredibly easy it is to find many different people and organisations offering conversion therapy services [13].

Even though there is no ban on conversion therapy in New Zealand, it is not completely acceptable either. The New Zealand Psychological Society, NZ College of Clinical Psychologists and the New Zealand Psychologists Board all have adopted a code of ethics that prioritise the well-being of patients and non-discrimination as core tenants to ethical practice [14]. Under these guidelines, conversion therapy does not constitute ethical practice, according to clinical psychologist Rita Csako [15]. Counselling on the basis that LGBTQIA+ identities are unnatural is discriminatory and does not demonstrate respect for the patient, and engaging in a practice that has a mostly negative impact on mental health means a practitioner is not prioritising the patient’s well-being. However, this code is not legally binding, and does not apply to the many non-professionals who practice conversion therapy either.

New Zealand also has the Bill of Rights Act 1990 and Human Rights Act 1993 which prohibit discrimination based on sexual orientation [16]. The Human Rights Commission states on its website that LGBTQIA+ people have the right to “not be subject to any forms of therapy…to change your sexual orientation or gender identity [17].” However, these do not result in a legal ban on conversion therapy. The Human Rights Act 1993 only targets discrimination done by public bodies such as government activity or providers of goods and services [18]. Moreover, the Human Rights Act 1993 on two occasions notes reluctance to prevent counselling aimed at people of certain sexual orientation “where highly personal matters, such as sexual matters…are involved [19].” These acts most likely would only ban conversion therapy where it was forced upon an LGBTQIA+ individual by a state or public provider of counselling. A lot of conversion therapy would not fall under this category – most people who undergo conversion therapy are not forced into it by a public body and it appears it is only private individuals or healthcare professionals employ conversion therapy tactics.

Conversion Therapy in Other Countries
Around the world there are number of countries with some form of limited ban on conversion therapy, but very few countries with comprehensive nationwide bans. To look at what a law against conversion therapy in New Zealand would look like, it is helpful to look at the bans in similar legal jurisdictions. Two countries that provide good examples are Australia and the US.

Conversion Therapy in the US
Conversion therapy has been targeted, but not completely eradicated, in multiple US states through state legislation. In fourteen states and Washington D.C., conversion therapy is banned to some extent [20]. All US legislation only bans conversion therapy for youth under 18, with healthcare professionals banned from practising – leaving religious groups free to continue their activities [21]. In the states of Connecticut, Illinois and New Jersey, the ban extends to anyone being paid to provide conversion therapy [22]. Out of all the states, only New Jersey extends the ban beyond minors, but only in regard to those being paid for therapy [23]. These pieces of legislation reflect the priorities of the American legal system. As pointed out in a decision upholding the New Jersey legislation, this law and the others like it “[do] not seek to target or burden religious practices or beliefs,” and just focus on preventing any medical practitioner from engaging with and posing a “health risk” to minors, without focusing on motivation [24]. The freedom to express religious beliefs without interference from the state is part of the First Amendment of the US constitution. The US legislates on conversion therapy more conservatively to prevent any unconstitutional clashes. However, with this cautious approach, the US will be unable to completely eradicate conversion therapy, as there is still a massive loophole.

Conversion Therapy in Australia
Australia has only one state with a law that can be used to ban conversion therapy, but Victoria’s ban is likely to be more comprehensive than the laws employed in the US. The state of Victoria enacted the Health Complaints Act 2016, a law that created a Health Complaints Commissioner [25]. This Commissioner is empowered to independently investigate and ban ‘general health providers’ if they do not comply with the Act’s general code of conduct, which includes providing health services in a safe and ethical manner, and not assuring an outcome that cannot be substantiated [26]. Although this Act was not dedicated to conversion therapy, it is intended to have the effect of soon banning conversion therapy. The broad definition of health service and general health service given in the Act means that even non-professional practitioners are subject to standards and investigation, as long as they explicitly or implicitly claim to provide a service that impacts on a person’s physical, mental or psychological health [27]. This broad definition means that all conversion therapy practitioners are subject to the Act, as they all purport to ‘cure’ LGBTQIA+ orientations, as part of psychological health. This was not accidental. Victorian Health Minister Jill Hennessey made it clear prior to the passing of the bill was intended to crack down on questionable health services such as conversion therapy [28]. Furthermore, the Commissioner has begun its formal investigation into conversion therapy generally, which marks the beginning of legal consequences for practitioners [29]. Until the end of the investigation, there is no actual ban or limitation on conversion therapy. However, it seems that the intent of the Victorian state Government is to ensure conversion therapy is banned on all levels. The inclusion of non-professional healthcare providers is a step further than the US. In that sense, it will be more effective in ending the harmful practice of conversion therapy for everyone, once and for all.

What Would a Law Banning Conversion Therapy Look Like in New Zealand?
If Parliament is committed to protecting the LGBTQIA+ community from discrimination and stigmatisation, it should lean towards the Australian approach to conversion therapy law.
The approach in Victoria, although not fully developed, appears to see all types of conversion therapy in the same way – as a practitioner that either implies or states that they will perform psychological treatment to change a person’s sexual orientation. This approach makes banning conversion therapy easier and more comprehensive.
On the other hand, the US approach allows for a nuanced balance of rights. This can be desirable, as it is preferable to not alienate one groups rights in favour of another’s. However, the right to religious expression is not as entrenched in New Zealand as it is in the US. In New Zealand, although there is the Bill of Rights Act that protects freedom of religion, the rights can be subjected to limitations that are justifiable “in a free and democratic society[30].” Arguably, the protection of the well-being of individuals or the well-being of society could constitute a justifiable limitation, especially when the practice also infringes on the rights of LGBTQIA+ people. There is no such caveat in the US. Therefore, New Zealand has more flexibility in designing its legislation.

There is an argument that people should have the autonomy to seek out conversion therapy treatments, especially when it is a part of their religious beliefs and expression. This raises questions – can these practitioners be blamed when individuals approach of their own free will? Does banning conversion therapy interfere with a LGBTQIA+ person’s religious identity and expression? Ultimately this will have to be another consideration in deciding whether a comprehensive act is a justifiable limitation.

Conversion therapy is a practice that causes a lot of damage to LGBTQIA+ individuals and the people around them. If Parliament is serious about putting an end to the marginalisation of the LGBTQIA+ community, it must listen to the public and implement a comprehensive ban on conversion therapy. New Zealand must keep up with international progress.

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Feature image: http://www.dazeddigital.com/politics/article/40598/1/gay-conversion-therapy-uk-lgbt-government-survey

[1] Marriage (Definition of Marriage) Amendment Act 2013, Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Act 2018.
[2] Sarah Robson “Pressure mounts for government to ban gay conversion therapy” Radio New Zealand (online ed, Auckland, 10 July 2018).
[3] Max Tweedie “Petition of Max Tweedie for Young Labour and the Young Greens – Ban Gay Conversion Therapy” (19 July 2018) New Zealand Parliament – Paremata Aotearoa <www.parliament.co.nz>.[4] Christy Mallory, Taylor N.T. Brown and Kerith J. Conron “Conversion Therapy and LGBT Youth” (January 2018) The Williams Institute – UCLA School of Law <williamsinstitute.law.ucla.edu> at 1-2.
[5] Mallory and others, above n 4 at 1-2.
[6] Jack Drescher and others “The growing regulation of conversion therapy” (2016) 102(2) J Med Regul. 7 at 4.
[7] Jack Drescher and others, above n 6 at 5.
[8] Jack Drescher and others, above n 6 at 5.
[9] Sunday “’Pray the gay away’ – Homosexual conversion therapy happening in NZ” (18 June 2018) 1 News <www.tvnz.co.nz>.
[10] Mallory and others, “Conversion Therapy and LGBT Youth”, above n 4 at 1.
[11] Mallory and others, “Conversion Therapy and LGBT Youth”, above n 4 at 1.
[12] Robson, “Pressure mounts for government to ban gay conversion therapy”, above n 2.
[13] Sunday, above n 9.
[14] Code of Ethics Review “Code of Ethics For Psychologists Working in Aotearoa/New Zealand” (6 December 2002) New Zealand Psychologist Board <www,psychologistsboard.org.nz>.
[15] Sunday, above n 9.
[16] Bill of Rights Act 1990, s 19(1), Human Rights Act 1993, s21 (1) (m)
[17] Human Rights Commission “Sexual Orientation and Gender Identity: FAQs” <www.hrc.co.nz>
[18] Human Rights Act 1993, s21A (2).
[19] Human Rights Act 1993, ss45 and 59.
[20] “Conversion Therapy Laws” (24 July 2018) Movement Advancement Project <www.lgbtmap.org>.
[21] Mallory and others, above n 4, at 2-3.
[22] Mallory and others, above n 4, at 3.
[23] Ferguson v Jonah, No. L-5473-12 (NJ 2015).
[24] King v. Christie, No. 13-5038 (DNJ, 8 November 2013), at 332-333.
[25] Health Complaints Act 2016 (Vic) s110.
[26] Health Complaints Act 2016 (Vic) ss 45, 95 and schedule 2.
Health Complaints Act 2016 (Vic) s 3 (1).
[27] “Gay conversion therapy, fake doctors to be banned in Victoria” ABC News (online ed, Australia, 9 February 2016).
[28] Health Complaints Commissioner “Inquiry into Conversion Therapy” (press release, 17 May 2018).
[29] Bill of Rights Act 1990, ss 5 and 15.
[30]Douglas C. Halderman “Gay rights, patient rights: The implications of sexual orientation conversion therapy” (2002) 33(3) Professional Psychology: Research and Practice 260 at 4.