By Stephanie Bastiaan
The Malinauskas Labor Government has introduced a 'conversion practices' ban bill by stealth in South Australia. The Conversion Practices Prohibition Bill 2024 (Bill), drafted by Attorney-General Kyam Maher and introduced by Deputy Premier Susan Close just two weeks ago, was debated and passed in the Legislative Assembly in under two hours – immediately after it was introduced. It is set to be debated in the Legislative Council today.
In his speech on the Bill in the Legislative Assembly, Liberal MP Jack Batty noted:
“The circumstances around this bill being introduced are highly irregular and unusual. I do not understand why members of this parliament were only provided with the bill about 30 minutes ago when the minister moved it. I do not understand why we are suspending standing orders to complete debate today, and I do not understand why it has only appeared on the weekly program about a couple of hours ago. That is very disappointing with a bill of such importance.”
Overview
While the Bill provides a clear definition of ‘sexual orientation’, there is no clarity on what ‘gender identity’ is.
Conversion Practices are defined in the Bill as “a practice, treatment or sustained effort that consists of more than one event or occurs on more than one occasion and that is...directed to changing or suppressing the individual's sexual orientation or gender identity”. On this reading, anything beyond a single conversation could be deemed a conversion practice, including providing advice for a more holistic 'watch and wait' approach in cases of gender dysphoria.
A conversion practice that “causes serious harm” carries up to 5 years imprisonment. A person also commits an offence if they take, or arrange to take, an individual outside South Australia for a ‘conversion practice’ or if they engage someone outside South Australia to provide a ‘conversion practice’ to an individual inside South Australia. This offence carries penalties of up to three years in prison and fines of up to $15,000.
Consent is not a defence in any circumstances.
The legislation also includes a civil response scheme under Schedule 1 which amends the Equal Opportunity Act 1984 (Act) to include ‘conversion practices’ as ‘unlawful acts’. Under the Act, individuals can lodge complaints with the Commissioner for Equal Opportunity within 12 months of the alleged incident, although this can be extended at the Commissioner's discretion. Any unresolved matters are to be referred to the South Australian Civil and Administrative Tribunal. While a threshold of harm must be met to engage the criminal offence scheme, no such threshold exists to trigger the civil complaints scheme.
Complaints made against medical professionals to the Commissioner are to be referred to the relevant health regulators.
Provisions in sections 4(3) and (4) of the Bill provide varying exemptions for health practitioners, parents and religious communities. However, as with NSW's law on which the Bill was based, they are arguably not robust or clear enough.
Key Issues
Conversion therapy has traditionally been associated with cruel physical and emotional 'treatments' including aversion therapy, shock therapy, lobotomies, castration, and drug treatments inflicted on people to change behaviours and tendencies, including same-sex attraction. These practices are abhorrent and should be banned. However, the label' conversion practices' has been used as a stalking horse by activists to legislate ‘gender-affirming care’. This Bill is no different.
The inclusion of gender identity is an enormous concern, as this is synonymous with gender dysphoria, a medical condition where a person believes their gender identity is incongruent with their biological sex. While this condition is rapidly rising among young people, young women and girls are significantly overrepresented due to a range of psychosocial reasons including social contagion and mental ill-health. A 2021 study by the Westmead Gender Clinic in Sydney found correlating factors, including childhood trauma, family dysfunction and sexual abuse in girls presenting with gender dysphoria. Dismissing gender dysphoria as a serious medical condition by including ‘gender identity’ as a protected attribute under 'conversion practices' laws is an enormous legislative failure and means patients will be fast-tracked into a ‘gender-affirmative’ model of care that puts them on the pathway of harmful drugs and surgeries to affirm their gender identity.
The definition of conversion practices is incredibly broad. This will limit the ability of medical professionals to treat gender dysphoria holistically and explore underlying issues that may be manifesting into gender dysphoria. Undiagnosed and undertreated mental-ill health is a common factor amongst the growing voices of young people living with gender transition regret. The theory that gender identity is fluid and interchangeable is at odds with ‘gender-affirming care’, in which the medical interventions are irreversible and often harmful.
The Bill divides young patients from their parents and medical professionals. Given that the Bill effectively enshrines the ‘gender affirmation’ approach as the gold standard for those presenting with gender dysphoria with harsh penalties for those who deviate, the Bill’s ‘exemptions’ will unlikely be sufficient to prevent the chilling effect on parents and health practitioners when it comes to assisting individuals struggling with gender dysphoria in a way that doesn’t simply affirm their gender identity. This is deeply concerning, particularly considering emerging studies show that most young people with gender dysphoria grow out of it, as well as the marked shift away from the ‘gender affirmation model’ of care in the UK and other jurisdictions, which is facing intense scrutiny.
Conclusion
The South Australian Labor Government's handling of this Bill has been alarmingly rushed and underhanded. Advocates both in favour and those concerned about the Bill have expressed outrage over the lack of consultation with organisations and within the community.
Just this week, the United Nation’s Special Rapporteur on violence against women and girls, Reem Alsalem, spoke out against the dangers of including 'gender identity' in bills legislating 'conversion practices' bans due to the risk of young women and same-sex attracted people in particular being put on a ‘fast track’ to irreversible gender transition (LGB advocates have also referred to such bills as ‘a new form of conversion therapy ‘for same-sex attracted people). Psychosocial factors contributing to gender dysphoria including social contagion and comorbid mental health issues were also identified in the explosive Cass Review earlier this year along with the lack of clinical evidence underpinning the medical affirmation model.
It is estimated that at least 2,000 children are receiving care for gender dysphoria in South Australian gender clinics, including children as young as six, with referrals growing over approximately 38% each year. It is criminal that the government is prioritising a virtue-signalling message of solidarity with the LGBTIQ+ community by ramming through this messy piece of legislation with potentially devasting consequences, rather than following reasonable and appropriate steps to consult broadly to ensure the ‘bans’ don’t prohibit the best medical practices for vulnerable young people with gender dysphoria.
Stephanie Bastiaan is Head of Advocacy at Women's Forum Australia.
Women’s Forum Australia is an independent think tank that undertakes research, education and public policy advocacy on issues affecting women and girls, with a particular focus on addressing behaviours and practices that are harmful and abusive to them. We are a non-partisan, non-religious, tax-deductible charity. We do not receive any government funding and rely solely on donations to make an impact. Support our work today.
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