The Sexuality and Gender Identity Conversion Practices Bill 2020 (ACT) (the Bill) was presented to the ACT Assembly on Thursday 13 August 2020, by Mr Andrew Barr MLA, the Chief Minister and Mr Shane Rattenbury MLA, the Minister for Justice. The Bill seeks to prohibit certain practices aimed at changing a person’s sexuality or gender identity (known as "conversion practices") and to consequentially amend the Human Rights Commission Act 2005 (ACT) as a result.
The Bill, according to a joint media release, is following up on an ACT Government commitment in 2018 to introduce new legislation to ban sexuality and gender identity conversion practices. According to the media release:
The 2018 commitment was made in the Capital of Equality First Action Plan 2019-20 and is said to build on the Government's "pledge to make Canberra the most LGBTIQ+ welcoming and inclusive city in Australia.
According to the Bill's Explanatory Statement:
The Explanatory Statement outlines that evidence from survivors of conversion practices in the ACT is that they cause long-term harm that has a deep impact. Conversion practices have been reported to cause depression, suicidal tendency, anxiety, decreased sexual function, poor self-esteem, social isolation, and decreased capacity for intimacy.
Further, the Explanatory Statement indicates that there is no evidence to suggest any benefits, nor that sexuality or gender identity can be changed by undertaking sexuality and gender identity conversion practices.
The Bill makes it a criminal offence to conduct identity conversion practices on a protected person, or to remove a protected person from the jurisdiction for the purpose of conducting identity conversion practices. The term protected person means "a child or a person who has impaired decision-making ability in relation to a matter relating to the person’s health or welfare".
The Bill also provides a civil mechanism through the ACT Human Rights Commission (the Commission) for people who are harmed by identity conversion practices to make a "conversion practice complaint" which, if not successfully conciliated, can then be referred to the ACT Civil and Administrative Tribunal (ACAT)
The Bill does not prohibit the provision of support and affirmation of an individual’s identity and choices. The concept of "conversion practices" does not include practices that assist a person undergoing or considering undergoing a gender transition, assist a person to express their gender identity, provide acceptance, support or understanding of a person, or facilitate a person’s coping skills, social support or identity exploration and development.
Further, the Bill also does not prohibit practices which are in line with professional medical standards. The term "conversion practices" does not include a practice provided by a health service provider that, in the provider’s reasonable professional judgment, are necessary to provide a health service in a manner that is safe and appropriate or compliant with the provider’s legal or professional obligations.
According to the explanatory statement, conversion practices can occur outside of formal health settings and the Bill provides for a "civil complaints mechanism" to allow complaints against any person who performs a conversion practice, and this is not limited to health providers.
The Bill makes provision for the Commission to have jurisdiction to handle complaints about conversion practices and allows the Commission to have the capacity to deal with complaints from individuals made against individuals and/or organisations providing conversion services in the ACT. Under the Bill the Commission will also have the power to initiate and conduct considerations or systemic reviews into conversion practices.
Where a matter dealt with by the Commission is not resolved through conciliation, the matter can be referred to the ACAT, who can then make a binding determination as to whether a conversion practice had occurred and could make a range of orders to remedy the situation. Such orders include "cease and desist orders" in relation to a conversion practice.
The ACAT must consider whether the person complained about engaged in a harmful practice before granting a remedy.
Criminal penalties apply where a child or a person who has impaired decision-making ability in relation to a matter relating to the person’s health or welfare is the subject of conversion practices or is removed from the ACT in order for the conversion practice to be performed. The justification for the criminal penalties is the "recognition of the serious harm that can be caused by conversion practices and the particular vulnerability of people who aren’t able to consent to exposure to harm".
The Minister concluded his explanatory statement by saying:
As reported by the Star Observer, a Survivors group has commented that the ACT Bill includes prohibitions on conversion practices performed by any person, as opposed to similar Queensland legislation which is limited to health service providers. The same report also calls for "greater clarity regarding preventive measures, including strategies for dealing with referrals, advertising, and false and misleading claims made in informal spaces about the origin and nature of a person’s sexual orientation or gender identity". The group has also called for a redress scheme to enable survivors to have the best chance of accessing support.
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Sexuality and Gender Identity Conversion Practices Bill 2020 [ACT], explanatory statement and presentation speech, available from TimeBase's LawOne Service.
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