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Legislative options to implement a ban on conversion practicesConsultation outcomes report6985356362000Table of contents TOC \o "1-3" \h \z \u 1.Executive Summary PAGEREF _Toc54096347 \h 32.Background PAGEREF _Toc54096348 \h 42.1Consultation approach PAGEREF _Toc54096349 \h 52.1.1Engage Victoria consultation PAGEREF _Toc54096350 \h 52.1.2Face-to-face consultation PAGEREF _Toc54096351 \h 63.What we heard PAGEREF _Toc54096352 \h 73.1The stories of survivors PAGEREF _Toc54096353 \h 73.2What is banned? PAGEREF _Toc54096354 \h 8Survivors PAGEREF _Toc54096355 \h 9LGBT support and advocacy organisations PAGEREF _Toc54096356 \h 10Religious organisations PAGEREF _Toc54096357 \h 103.3Who is protected? PAGEREF _Toc54096358 \h 113.4Who is regulated? PAGEREF _Toc54096359 \h 133.5Should conversion practices be regulated by criminal law or civil law or both? PAGEREF _Toc54096360 \h 153.6How do we address concern about freedom of religion? PAGEREF _Toc54096361 \h 183.7Other things we heard PAGEREF _Toc54096362 \h 204.Terminology PAGEREF _Toc54096363 \h 20Appendix A: Text-equivalent descriptions of graphics used in this document PAGEREF _Toc54096364 \h 21Executive SummaryThis consultation feedback report provides an overview of the public consultations that sought the community’s views on the best way/s to implement a ban of conversion practices. The Victorian Government released a discussion paper that explored the key policy parameters on 14 October 2019. Consultation was open to the public through the Engage Victoria website, where participants were able to respond to questions contained in the discussion paper and upload a written submission. Key stakeholders, including survivors, LGBT support and advocacy organisations and religious organisations were invited to participate in face-to-face consultations. While stakeholders expressed a variety of views, their responses to key questions can generally be collated into the following themes: Key questionSurvivorsLBGT support and advocacy organisationsReligious organisationsWhat is banned? Supported a definition of conversion practices that referenced underpinning ideology and a ban that would prohibit conversion practices provided by all people and in all settings. Generally supported a ban that would capture all conversion practices, and did not support a definition or ban that would allow for ‘consensual’ conversion practices. Generally expressed concerns with banning conversion practices.Most supported a definition that does not capture religious beliefs and teachings around sexuality and gender. Some did not support a ban at all.Who is protected?Supported protections for everyone.Did not support a ban that would enable consent to be provided to conversion practices on the basis that this undermines the harm caused by conversion practices and disregards the complexities of whether consent to conversion practices can be free and informed. Most supported protections for everyone.Some supported protections that would enable people to consent. Some supported protections for certain situations such as where people are coerced or do not consent. Who is regulated?All people providing conversion practices.Most supported regulating all people providing conversion practices. Most supported regulation of health and medical professionals.Should conversion practices be regulated by civil or criminal law or both?Generally supported a combined civil and criminal law regulatory regime and the establishment of a Redress Commission. Generally supported a combined civil and criminal law regulatory regime and a Redress Commission. Some preferred a civil law only or criminal law only regulatory regime. Some supported a civil only or criminal law only regime.Some did not support any regulatory regime. How do we address concern about freedom of religion?Supported a human rights approach where freedom of religion does not extend to causing harm to others. Supported a human rights approach where freedom of religion does not extend to causing harm to others. Noted that LGBT people also have the right to freedom of religion and should be able to practice their religion in a safe environment. Noted the importance of freedom of religion and concerns about the potential impact on religious practices.Generally supported the ability of individuals to seek religious support for sexuality and gender identity matters.The views of survivors, LGBT support and advocacy organisations and religious organisations outlined in the above table were broadly mirrored in the responses received from members of the public through Engage Victoria. Overall, the majority of responses received through Engage Victoria were supportive of the broad Health Complaints Commissioner (HCC) definition (see section 3.1) and felt that the impact on religious freedoms were justified in light of the harm caused by conversion practices. A variety of views were expressed during the consultation and the government is grateful to everyone who contributed. The feedback heard, and the views expressed by key stakeholders and the broader community will inform future policy directions to implement an approach to the ban of conversion practices. Background In February 2019 the Victorian Government committed to prohibiting harmful conversion practices that target LGBT people. What are conversion practices?This discussion paper used the term ‘conversion practices’ to refer to any practice or treatment that seeks to change, suppress or eliminate an individual’s sexual orientation or gender identity, including efforts to reduce or eliminate sexual and/or romantic attractions or feelings toward individuals of the same gender, or efforts to change gender expressions.The consultation process directly sought input on the definition of conversion practices (section 3.1). Also see section 4 for further information on terminology. The government’s commitment to ban conversion practices follows recommendations from the Health Complaints Commissioner Inquiry into Conversion Therapy (HCC Report). The HCC Report sets out the long-term psychological harm and distress experienced by people who have undergone conversion practices, which include increased incidence of suicide. The report’s recommendations included:Introduction of legislation that clearly and unequivocally denounces conversion practices and prohibits conversion practices from occurring in Victoria; andEstablishment of sources of funding for counselling/support services by appropriately trained providers, for survivors of conversion practices.Prior to the HCC Report release the Human Rights Law Centre published Preventing Harm, Promoting Justice: Responding to LGBT conversion therapy in Australia (HRLC Report). The HRLC Report highlighted the severity of the harms caused by conversion therapy. It made recommendations to the state government, the Commonwealth government and health associations, and promoted a multi-faceted strategy to respond to conversion therapy.On 14 October 2019 the Department of Justice and Community Safety (DJCS) released a discussion paper for public consultation via the Engage Victoria Website. The discussion paper used relevant international and Victorian examples to outline policy options on the key elements of a legislative prohibition on conversion practices. It raised issues and questions to illicit feedback on how best to implement the ban in Victoria. These include:What is banned? – including how to define conversion therapy, whether the definition should be broad enough to capture practices that do not involve health services or counselling, and whether any practices should be expressly excluded from the definition.Who is protected? – including whether protection should be limited to children and people experiencing vulnerability or available to all members of the community, and whether the issue of consent is relevant to determining who should be protected.Who is regulated? – including whether regulation should be limited to specific professionals and persons or apply to everyone who offers conversion practices, and whether conversion practices should be regulated wherever they occur or in certain contexts or places.Should conversion practices be regulated by the criminal law or the civil law or both? – including what aspects of the criminal and civil law would be effective in regulating conversion practices. How do we address concern about freedom of religion? – including what rights are relevant to implementing a ban of conversion practices, and whether the impact on these rights can be justified in light of the harm conversion practices cause. Consultation approach The government utilised a dual consultation approach to ensure that the process was open and inclusive and that key stakeholders could provide input. This approach involved: Seeking online response and written submissions from the public and organisations through the Engage Victoria website in response to the discussion paper.Face-to-face consultations with key stakeholders to ensure they had the opportunity to address the questions raised in the discussion paper. Engage Victoria consultationThe government invited individuals and organisations to contribute their views through Engage Victoria, where they were able to complete survey questions, include free text responses to questions and upload written submissions.A total of 603 contributions were received in response to the online form on Engage Victoria, and 82 written submissions were uploaded. DJCS received written submissions from interested members of the public as well as organisations and groups including medical, legal and religious bodies.Participants who responded to the survey questions were also asked to nominate their primary interest in the consultation. This question was optional, as participants were able to skip answering the question if they wished. Of those who answered the question, the responses received were as follows: Image 1: Primary interest of participantsFace-to-face consultationDJCS held a total of 21 face-to-face consultations with stakeholders including survivor organisations, LGBT support and advocacy organisations and religious organisations. The key questions outlined in the discussion paper were utilised to guide the face-to-face consultations and stakeholders who participated in the face-to-face consultations could also provide a written submission. What we heardThis overview of the consultation findings is informed by the responses and written submissions received through Engage Victoria and targeted consultations. It includes a sample of quotes from stakeholder submissions in order to illuminate key views expressed. The following sections of this report are structured in alignment with the major themes that were canvassed in the discussion paper and guided consultations. The responses to the issues and questions raised in the discussion paper have been collated into three key categories: survivors, LGBT support and advocacy organisations, and religious organisations. These categories best characterise the various perspectives that were heard in the consultation process and reflect that the majority of submissions were received from survivors of conversion practices, LGBT support and advocacy organisations and religious organisations. The perspectives of survivors of have been elevated (see 3.1) in this report to give voice to their lived experience, and to reflect the first recommendation of the Social Orientation and Gender Identity Change Efforts Statement (SOGICE Statement) that ‘survivors must be equal partners defining the movement.’ A number of LGBT support and advocacy organisations also expressed their support for the primacy of survivor perspectives in the consultation. Survivors are members of the LGBT community and some are also still members of religious organisations. Some online submissions were received from groups of individuals who can be characterised within the same key categories. Submissions from professional bodies have been referred to throughout the discussion below. The views of individuals and responses received from the general public are captured in the Engage Victoria Website data (see Appendix A). The stories of survivors During the consultation, many survivors shared their lived experience of conversion practices. Some of these stories are included below. ‘I was married with 5 children when I was involved in my church community. I had traumatic memories of abuse and I knew I was attracted to women, which I kept secret. At the time, I asked a fellow Christian friend to suggest a therapist and she recommended one with a specialty in abuse and homosexuality. Our meetings were in a church building and involved a prayer group to support me in my process of healing. Within weeks of therapy I mentioned my same sex attraction and I was told by my therapist that I needed to pray when feelings surfaced. If I succumbed in any way, physically or mentally, my therapist would organise a group prayer session. Unable to hide my feelings, I succumbed to prayer sessions and 10 hour deliverance sessions, with my therapist checking on me 3 times a day to see that I hadn’t succumbed to any same sex relationships in any way. My therapist constantly told me God would abandon me for this terrible sin. The pressure led me to attempt to take my life.’‘In youth group we had regular sermons about sex and purity. It was made very clear that homosexuality was sinful and that it was perverted and unforgiveable. By the time I reached adulthood that message was reiterated so regularly that I started to teach it to youth. “Love the sinner but hate the sin.” Young people came to me questioning their sexuality and I would echo the words I heard: purity and celibacy are necessary for those perverted thoughts. I felt uncomfortable teaching it but I didn’t know anything else. It took me a long time to reconcile my faith and sexuality because I didn’t think I could be Christian and queer. I only knew that if I admitted my sexuality I was admitting that I was perverted and sinful. The theology and ideology I was taught in my teenage years in youth group really impacted me because they became so ingrained in my mindset that I looked upon others with disgust and hate for their sexuality, and I then taught this ingrained theology to others. Now, my mental health is shaky and I get overwhelmed at the thought of having a leadership position in church if I admit my sexuality. It has been and will continue to be a process to unlearn the theology which has damaged me and those I influenced’. ‘I was ten years of age when I had my first crush on someone of the same gender. I was also heavily involved in a Christian community from a young age, until I came out at the age of 39 a few years ago. I grew up in a regional town in a community of people who had very conservative views of the Bible. I heard it preached in church, at school, Sunday school, kids club and youth groups. I listened to the adults talk. I knew to hide. By my mid teens I already understood that being queer was an abomination to God and I would need to be fixed. I believed the rhetoric of brokenness for enough years that I went to prayer therapy with a small group associated with a break away Uniting church in NSW who thought I needed to fix my “sexual deviance” by casting off demons that had been passed down family lines. I internalised my feelings of shame to such a degree that my mental, physical and spiritual health all suffered. Suicidal ideation was an ongoing lived reality in my life alongside two failed suicide attempts and a complete breakdown which required hospitalisation. I cannot express strongly enough how important it is to see these messages of brokenness stopped. It is a matter of life and death’. ‘I was introduced to the church in my early years of life. When I noticed my same sex attraction in high school I addressed it with the school's youth Minister who encouraged me to reflect biblical sexuality, not act on my feelings and to seek assistance from ministries specialising biblical sexuality, most commonly known as gay conversion therapy. I was constantly told that I was broken because of original sin and that my homosexuality was a symptom of that. I became obsessed with biblical sexual morality and was ultimately let down due to not being able to live up to these ideals. I tried to attend church but I ended up bouncing from church to church, denomination to denomination trying to find a fit. I didn't feel welcomed anywhere and this increased my isolation. I recall days where I would go home and do countless programs and go on message boards to discuss my same sex attractions. I tried to suppress a lot of what we discussed in these groups but I was told that my brokenness was created by a smothering mother and a distant father. I related more with my mum and I displayed more feminine characteristics and I was told it was my task to become a "rough and tumble" kid. In other words, a lack of masculinity was to blame for my sexuality. All of this developed from countless hours online, during one on one counselling where I was told I was inhabited by numerous demonic forces, and also from interstate travel to see well known ex-gay ministers. This whole experience increased my depression and anxiety so that I was in a constant state of worry and suicidal ideation. I am currently on medication and see a psychiatrist on a regular basis. This all began when I was around 14. I stopped at 21, 8 years later I still suffer daily from what happened. Because of this experience with the church I took my spirituality elsewhere. At the core I am still a Christian but I was turned off by the church because of the hypocrisy that too often was present with ministries’. What is banned? Conversion practices can be defined broadly or narrowly. The discussion paper used the HCC report as a starting point for consultation which defined conversion practices as:Any practice or treatment that seeks to change, suppress or eliminate an individual’s sexual orientation or gender identity, Including efforts to eliminate sexual and/or romantic attractions or feelings toward individuals of the same gender, or efforts to change gender expressions. DJCS asked for input on:How to define conversion practices, including whether to use the HCC definition. Whether the definition should be broad enough to capture the practices that occur outside of health services or counselling.Whether any practices should be expressly excluded from the definition.Engage Victoria participants The majority of participants on Engage Victoria who responded to questions about the definition agreed with the HCC definition of conversion practices, and supported a definition that captured conversion practices that occur outside of health services or counselling. Figure 2: Responses to questions about the definition of conversion practicesSurvivors The harmful ideology underpinning conversion practices needs to be addressed. Conversion practices are ‘characterised by an ideology that teaches people ‘that to be LGBTQA+ is to be broken, damaged, sick, perverted or even possessed’. One survivor stated that ‘I cannot express strongly enough how important it is to see these messages of brokenness stopped. It is a matter of life and death’. One organisation provided a definition for conversion ideology, and said that it manifests in beliefs and values that include: ‘With almost no exceptions humans are born with the potential of developing into heterosexual people whose gender identity reflects their sex assigned at birth.In people who are same-sex attracted, trans or gender diverse, this development has been halted or stunted due to one or several factors: abuse, neglect, inappropriate parenting dynamics, social influence, and even spiritual issues. This phenomenon is often labelled as “sexual brokenness”.Through consistent long-term Christian discipleship; committed involvement in a ‘Biblebelieving’ faith community; spiritual mentoring; the avoidance and suppression of all lesbian, gay, bisexual, trans or queer influences; connection to an ex-gay/ex-trans support group; and/or ongoing counselling, a person’s sexual orientation and gender identity can be restored…Same-sex attracted, trans and gender diverse people should live celibate lives or seek healing for their sexual brokenness. This is a core obligation in the faith practice of same-sex attracted, trans and gender diverse people’.Survivors have lived experience of a wide range of conversion practices (see 3.1). Some survivors were subjected to practices that caused physical harm. Survivors have also experienced formal practices and/or informal practices such as pastoral care, prayer groups and religious messaging that targeted their “brokenness” and had caused them significant harm. Lasting psychological harm is caused by ideology that characterises LGBT people as “wrong” or “broken” people in need of fixing or saving. Conversion practices cause ongoing poor mental health (such as depression, anxiety and self-harm) and in some cases, prevented survivors from being able to practice their faith in community with others without being exposed to harm. The term “conversion practices” should be used instead of “conversion therapy” and the terms “conversion movement” and “sexual orientation and gender identity change efforts” can also be used. The definition could also expressly reference change efforts. The definition should be broad.It should capture informal and formal practices. Informal practices are more common in Australia and a ban on only formal practices would drive conversion practices underground. It should capture the ‘wide and nuanced range of conversion practices that occur within Australian religious communities’ in order to prevent harm from occurring. It should include a ban on referring individuals to conversion practices, because referrals can serve to legitimise conversion practices or act as the pathway between informal and formal/structured practices. Other stakeholders generally supported the inclusion of referrals, with one legal organisation noting that it should not apply to survivors of conversion practices who previously referred others whilst they were also participants to that practice. Advertising conversion practices and any accompanying messages about heterosexual attraction being preferable to same-sex attraction or messaging on the proposed origins of a person’s same-sex attraction should be captured.LGBT support and advocacy organisations The perspectives of survivors should inform the definition and ban. The ban should apply to any type of conversion practices, as all conversion practices cause harm regardless of the context in which they occur. One organisation noted that the ban should be of general application and not differentiate between secular and religious conversion practices.The definition should be connected to ‘the problematisation of non-heterosexual sexual identities’. The ideology of “brokenness” is often also applied to individuals who are attracted to more than one sex, or individuals who do not experience romantic or sexual attraction. A strong religious culture in particular communities can exacerbate the idea that LGBT people are broken and sinful and lead to social exclusion. The HCC definition might inadvertently impact the ability of transgender individuals to transition, and so the definition should include an exemption for this purpose. This was supported by a medical organisation who submitted that the definition of conversion practices should include an exemption of ‘treatments and practices that provide evidence-based acceptance, support and understanding for the facilitation of an individual’s coping, social support, and identity exploration and development’. The definition should also specify that practices do not have to be “effective” to constitute a conversion practice, as ‘the harm inflicted on survivors comes from attempts to change, suppress, and eliminate sexual attraction, sexual identity, gender identity and gender affirmation’. Religious organisations The definition should be narrower than that proposed by the HCC and only cover certain conversion practices, such as: Physically harmful conversion practices, such as electroshock or other “aversion therapy”. There is a difference between physical and psychological harm caused by conversion practices. Practices such as “talking therapy” or “reparative therapy” should not be banned as these do not cause physical harm. Physically harmful conversion practices are generally historical and do not currently occur. One organisation stated that ‘contemporary change-allowing therapy does not use aversive methods’ and is ‘physically non-invasive’. Coercive or forced practices, but not people who wish to voluntarily engage in conversion practices. People of faith who have unwanted same-sex attraction or who identify as LGBT and wish to remain celibate should be free to seek religious counselling and support if they choose. Practices that “guarantee” changes in a person’s sexual preferences. One religious organisation indicated they would only support a ban on ‘an individual or organisation “guaranteeing” that they can somehow change a person’s sexual preferences’. This organisation noted that they have a Biblically-mandated internal-church procedure that ‘ultimately return[s] the sinner to Godly behaviour or require that they leave the church’.However, some religious organisations supported a broad definition, with one stating that ‘we do not believe there are any ethical treatments or practices that are aligned with modifying, or attempting to modify, an individual’s identity and/or expression’ and a broad definition would ‘reduce the risk of religious institution/s using “soft” techniques to attempt to modify an individual’s sexual orientation or gender expression’. Some religious organisations stated that there is no body of evidence or valid research that proves non-physical conversion practices are harmful. One religious organisation said that feelings of guilt and shame are a proper response to sin and brokenness. The definition and ban should expressly exclude Church doctrine and teachings (including on sexuality, gender, family and marriage) and pastoral care (including pastoral advice and counselling). One organisation said that the ban should not cover prayer or everyday church services unless these include a specific focus on telling LGBTIQ people that they are broken.Who is protected? Protections could be limited to a specific group(s) of people, such as children or adults experiencing vulnerability, or could apply broadly. The discussion paper noted the relevance of consent and that it is important to reflect upon on the extent to which those engaging in conversion practices are in a position of greater power and influence than the individuals who are subject to such practices. This is particularly relevant when considering consent and conversion practices.DJCS asked for input on:Who should be protected.Whether protection should be limited to children and people experiencing vulnerability. How the issue of consent is relevant to determining who should be protected.Engage Victoria participantsThere was strong support for protections that extend to all people and are not limited to children or people who experience vulnerability. Figure 3: Support for protections that extend to all peopleSurvivorsProtections should cover all people in order to prevent any harm from occurring due to conversion practices. ‘LGBTQA+ individuals are a minority group and any that are involved in conversion practices are already extremely vulnerable, regardless of age’. One organisation noted that the majority of harm that had been witnessed occurred in adult survivors. People should not be able to consent to conversion practices, because conversion practices are harmful and damaging even when consented to. It is also very difficult to provide free and informed consent in the context of vulnerability, power imbalances and communities who promote messaging that being LGBT is “wrong”. LGBT support and advocacy organisations Protections should cover everyone. There should be additional protections that would expressly refer to individuals who may be particularly vulnerable, such children and adults with a cognitive impairment, intellectual disability or mental illness. All LGBT people can be vulnerable to conversion practices. This was also supported by legal organisations, with one expressing a firm view that ‘people of all demographics are vulnerable to conversion therapy, not just children’. There should not be exemptions for people to consent to conversion practices. Ideology and community and social pressures, especially in the context of ‘closed’ religious communities or communities where religion is closely tied with culture, were highlighted as factors that can impact a person’s ability to freely consent. One organisation noted that in some communities, LGBT individuals are presented with only two choices – “change” or leave the community. Another organisation submitted that ‘conversion practices are harmful even when consenting adults seek them…consent is irrelevant in the context of conversion practices’. One LGBT support and advocacy organisation supported a ‘carefully worded’ consent exemption to ‘respect the autonomy and self-determination of competent adults to make choices over their own healthcare, even if those choices may be ill-considered and counter to their own wellbeing’. Religious organisations Protections should be limited to:People who are forced or coerced. There should be exemptions that allow adults to provide consent to conversion practices. This includes enabling people who ‘freely choose to discuss, seek advice, guidance and counselling for any change – including those wishing to reflect upon heterosexual attraction or to reaffirm their biological gender’ to consent. Children and adults with cognitive impairment, intellectual disability or mental illness. One organisation did not support protections for children, stating that parents should be able to provide consent to conversion practices on behalf of their children as parents ‘have the right to choose the type of counselling and medical treatments given to their own children’.Adults who face external pressures to comply with conversion practices, through including those who are ‘unable to protect themselves against the risk, harm or exploitation created by social, familial or religious pressures. Including threats of exclusion from community, removal of family supports and relations and/or excommunication/exclusion from religious congregations/communities’. Formal practices only (such as dedicated programs or practices that occur in a clinical setting), with informal practices (such as pastoral advice) allowed. Who is regulated? Another key area for input was the question of who should be regulated by the ban on conversion practices. The ban could apply broadly to regulate any person providing conversion practises or be limited to certain professions (such as medical and health professionals). DJCS asked for input on:Whether all people should be banned from providing conversion practices, or whether it should be limited to specific professionals or persons.If the ban applies only to professionals, whether it should only cover conversion practices within the scope of that professional practice.Whether conversion practices should be regulated wherever they occur, or only in certain contexts. Engage Victoria participantsThere was strong support for regulating all people who provide conversion practices, not just professionals. The majority of participants also supported regulating conversion practices wherever they occur.Figure 4: Support for regulating all people who provide conversion practicesSurvivorsThe ban should prevent people from providing conversion practices in any setting, in order to prevent harm. The ban should include an explicit reference to conversion practices provided by health and medical professionals and counsellors, and these should be more highly scrutinised and regulated. Counsellors are a key concern, with one submission stating that ‘the lack of regulation in the counselling industry is one of the greatest concerns to conversion survivors’.School settings are a key concern for conversion practices, with survivors noting that ‘young people’s exposure to conversion ideology often occurs when third parties enter Australian schools’. LGBT support and advocacy organisations A ban should prevent all people from providing conversion practices and cover all settings, because ‘conversion therapy can occur in settings other than health provision, including social work and education’. This was also supported by a medical body who stated that ‘we believe the clear lack of evidence for the efficacy and utility of conversion practices in any form demonstrates the need for a ban which encompasses all conversion practices’. The ban should cover:School settings, as individuals such as school chaplains, teachers, guidance counsellors and social workers are of concern for conversion practices to children and young people. Conversion practices that occur within families, such as where a parent provides conversion practices to their child. Some suggested that conversion practices performed by a family member should be specifically included in legislation as an example of family violence. Providers of any service funded by the Commonwealth or the State of Victoria because ‘public funds should not be used to fund discredited and harmful …conversion practices’. Religious organisations Most organisations suggested that only health and medical professionals, such as doctors, psychologists and psychiatrists, should be banned from providing conversion practices. There is a difference between religious practices (such as pastoral care) and clinical medical care. One organisation expressly supported regulation of counsellors. Another did not support regulation of professionals at all, submitting that individuals who wish to ‘overcome same-sex attraction or to realign gender identity with biological sex’ should be able to ‘discuss this with a counsellor, either in a medical, psychological or religious context’. There should be exemptions for educational, familial, church and/or community settings, including:Teachers and curriculum in Christian schools, as they provide religious advice and education to students. The exemption should guarantee that ‘Christian schools can continue to teach Biblical sexual ethic and a biologically and medically accurate view of sexuality’. Conduct between parents and children, as parents have the right ‘to offer Biblical counselling and advice, themselves or through the church, to their own children’. Pastors and members of religious communities (including prayer groups and the laity) as they should be able to preach and express their beliefs freely. Should conversion practices be regulated by criminal law or civil law or both? Conversion practices could be regulated through criminal law, civil law, civil regulatory schemes or a combination of these. The discussion paper outlined the key differences between each of these mechanisms. DJCS asked for input on:Whether conversion practices should be regulated by the criminal law, the civil law, civil regulatory regimes or a combination of these.Engage Victoria participants The most preferred option was a regulatory regime that combines aspects of criminal law, civil law and/or civil regulatory regimes. There was also support for regulation through criminal law alone.Figure 5: Preferred options for a regulatory regimeSurvivors There should be a combined civil and criminal law regulatory regime, and a Conversion Practices Redress Commission should be established. Civil penalties should apply to people acting in non-clinical, non-professional and informal roles. Many people involved in informal practices ‘through religious communities are also victims of the conversion movement themselves, thus applying criminal penalties would be inappropriate’. A punitive criminal response is appropriate in some circumstances, such as in cases of assault, abuse, family violence and prejudice-based crime, but the focus should be on preventing harm, supporting survivors and educating the community rather than on punitive justice. A Redress Commission is an important part of the regulatory regime that has ‘been missing from international examples’. It should:Comprise a panel of experts, or a tribunal, ‘whose members deeply understand the ideology of LGBTQA+ conversion, as well as the doctrine of the Christian and Muslim faiths’. Be able to ‘review and investigate accusations’ about the provision of conversion practices or the promotion of underpinning ideology in ‘informal and religious settings’, as well as commission research to ‘further inform initiatives in this area’. Have the power to issue cease and desist orders for those providing conversion practices, order fines for a contravention of the ban, and provide referrals for survivors to seek help.Be able to provide financial support to survivors for recovery, in recognition of the costs of psychological support and reduced capacity to earn income.LGBT support and advocacy organisations LGBT people may face barriers in reporting conversion practices due to systemic discrimination or the psychological harm caused by conversion practices. One medical body also noted this and recommended that any regime adopt a trauma-informed approach.Any regime needs clear ownership so that there is ‘an enduring effort to address the issue of’ conversion practices.There should be a combined civil and criminal law regulatory regime and a Redress Commission. A combined regime:Offers the most flexibility as it would provide survivors with options on what action they would like to take. There should be a ban in criminal law to provide a strong legislative standard, but more flexible and potentially more successful enforcement options should be available through civil law.Is similar to existing frameworks for family violence or personal safety intervention orders, where there is a civil order to stop providing conversion practices, but police are responsible for enforcing the order and prosecuting any breaches of it as a criminal offence.Could be a “cascading regime” that would utilise civil penalties as a first option but escalate to criminal penalties in certain circumstances, such as repeated contraventions of the ban by the same individual or organisation, forced or coercive conversion practices, removing a person from Victoria for the purpose of conversion practices, where serious physical harm occurs or where conversion practices provided children or adults with a cognitive impairment, intellectual disability or mental illness.Conversion practices should fall within the conduct of reportable conduct in the child protection scheme. A civil only regime should also be considered because:Monetary compensation is available to support survivors with recovery costs. The balance of probabilities standard of proof is easier to satisfy than the standard of beyond reasonable doubt in criminal law. The criminal law standard of proof might not capture the more ‘subtle’ conversion practices, and police might have difficulty investigating and prosecuting these cases. The personal injury law framework can be adapted to conversion practices, particularly the concept of persons who provide conversion practices having a duty of care to participants. Conversion therapy should be explicitly listed in legislation as giving rise to civil actions in negligence, or that the provision of conversion practices should be characterised as an aggravating factor in medical negligence cases where the conversion practices are provided by a health professional. Another option proposed is a ‘protection order’ scheme whereby:A regulator could seek a protective order from a court where there is evidence a person is providing conversion practices to people who are unable to provide consent, do not consent, or to children. Protection orders could include requirements for the person to not provide conversion practices to a particular person or any person, and attend training on the harm caused by conversion practices, Breaching the protection order would be a criminal offence. This scheme could cover professionals as well as non-professionals including those acting in a ‘private, familial or spiritual capacity’ and operate alongside ‘existing civil and criminal mechanisms’.A criminal law approach could also be beneficial as:It would send the strongest message of denouncement.It would empower survivors as well as LGBT people targeted by conversion practices to be able to state that conversion practices are against the law. A civil law regime could be too onerous for survivors, as they would be responsible for bringing cases, bear the burden of proof and expose themselves to financial risks through the possibility that costs are awarded against them. Police may be best placed to regulate and enforce the conversion practices ban. Religious organisations A civil law regime is preferred because: The criminal law is too heavy-handedContraventions of the ban should not be characterised as a criminal offenceIt could include a Commission with the power to conciliate complaints, engage in education and conduct community awareness initiatives. A criminal law approach does have some benefits, such as that police act as independent regulators. One organisation also said that it sends a strong message of denouncement, and criminal penalties could apply to targeted services that set up ongoing formal programs with an objective and deliberate change effort focus.Alternatively, a regulatory regime is not necessary because:There is no evidence on the extent of harm caused by conversion practices.Existing laws about bullying, harassment and assault already provide sufficient protections.Church doctrine and activities should not be regulated. How do we address concern about freedom of religion? The discussion paper noted that both the HCC and HRLC reports highlight that many modern LGBT conversion practices are religious rather than medical in nature, in that they involve or consist entirely of pastoral and prayer activities. The right to freedom of religion protects religious beliefs and manifestations of belief through religious practice, although the right to manifestation of religion is not absolute. DJCS asked for input on:What other rights are relevant.Whether the impacts on rights are justified given the harm conversion practices cause. Engage Victoria participants Around half of participants agreed that the impact on rights was justified in light of the harm conversion practices cause.Figure 6: Can the impact on rights be justified in light of the harm conversion practices cause?SurvivorsMany survivors are religious and/or seeking out religious and spiritual community, and they too have a right to religious freedom and to participate in their religion in a safe environment that does not expose them to harm. Freedom of religion should be balanced with protecting LGBT people from harm. ‘Freedom of belief must be protected, however, activities, behaviour and practices that infringe on the rights of other human beings cannot be reconciled with the right to religious freedom’. Religious Australians and faith communities have the freedom to believe and preach what they like, but are ‘not free, however, to harm or promote harm towards LGBTQA+ people.’ For example, a faith community who merely preaches that homosexuality is a sin would not be considered to be providing conversion practices. However, if that faith community preached that LGBT people need to be ‘fixed’ and seek ‘healing’, this would be promoting harm as ‘conversion ideology and practices are known and understood to be significantly harmful to LGBTQA+ people’. There is a difference between ‘freedom of religious expression and life-threating pseudoscientific practices that have been carefully disguised as traditional religious activities’. LGBT support and advocacy organisations Freedom of religion should be balanced with the rights of LGBT people to be free from discrimination and harm, and as such freedom of religion should not extend to causing harm to others. This approach:Recognises that conversion practices are harmful and protects people from harm. ‘Harm is harm, even under the guise of love, care or prayer’ and ‘religious freedoms should not override the rights of someone else’. A medical body also submitted that ‘the lack of evidence supporting efficacy or clinical utility of conversion practices, as well as the evidence demonstrating the harm of such practices, justifies the implementation of a ban on conversion practices’. Is similar to the harm prevention approach taken regarding laws about child abuse and the confessional seal. Also protects the rights of LGBT people to practice their religion without being exposed to harm. There is a difference between being able to hold a religious belief, and manifesting this belief in a way that causes harm. A legal organisation also noted that there is a difference between ‘internal right to hold a belief’ and the ‘external right to manifest that belief’. The internal right is absolute, but the external right can be restricted if necessary, such as for public safety or to protect the freedoms and rights others. The right to be free from torture or cruel, inhuman and degrading treatment is also relevant to conversion practices. Religious organisations Freedom of religion is a fundamental right that should be protected, and the ban is concerning because:It discriminates against faith groups, and ‘targets a wide variety of practices common to people of faith’ and ‘bans the whole Christian faith and way of life’. The impact on religious rights is not justified or proportionate because there was no clear evidence of harm caused by conversion practices, or evidence that harmful conversion practices are widespread. One organisation instead said that there should be a ‘balancing of rights’ where freedom of religion cannot extend to impacting others through abuse or through discrimination, because ‘it is fundamental that all individuals in our community are afforded the right to live without threat of or actual abuse’. People should not be prevented from seeking religious support for sexual orientation or gender identity matters in accordance with their religious beliefs.Other things we heardEducationCommunity education about conversion practices and the harm they cause is essential to support the implementation of the ban, and drive change. A community education campaign should include people with lived experience of conversion practices.There should be targeted campaigns for religious bodies to inform them of any new framework and their obligations under it. Education should include specialised training for individuals such as teachers, school chaplains, doctors, psychologists and counsellors, as well as professionals working in youth and mental health services. Any community education campaign should reflect the diversity in the community and be provided in languages other than English. TerminologyConversion practices The term “conversion practices” is preferred to “conversion therapy” which suggests that there are therapeutic benefits to such practices. The discussion paper and this report only use the term “conversion therapy” where necessary to accurately reflect the titles of reports and approaches in other jurisdictions or quotes in submissions. LGBT conversion practices The HCC and HRLC Report focus on gay conversion therapy with some references to conversion practices that affect transgender individuals. While intersex medical interventions are an important issue, the concerns they raise are being considered separately. Consequently, the discussion paper and this report are focussed on LGBT conversion practices.Appendix A: Text-equivalent descriptions of graphics used in this documentFigure 1: Primary participants of interestInterested member of the public 58.4 per cent Professional – social worker, psychologist, counsellor 8.2 per cent Person with a lived experience of conversion practice 6.24 per centFamily member of a person with a lived experience 2.14 per centFriend of a person with a lived experience 7.66 per centPartner of a person with a lived experience 1.07 per centFoster or kinship carer of a person with a lived experience 0.36 per centReligious group 5.88 per centOther 8.38 per centFigure 2: Responses to questions about the definition of conversion practicesDo you agree with the HCC’s definition of conversion practices? 43.75 per cent agreed, 56.25 per cent disagreedShould the definition be broad enough to capture the practices that do not involve health services or counselling? 39 per cent agreed, 61 per cent disagreedFigure 3: Support for protections that extend to all peopleShould protection be limited to children and people experiencing vulnerability? 21.58 per cent agreed, 78.42 per cent disagreedShould protection be available to all members of the community? 75.59 per cent agreed, 24.21 per cent disagreedFigure 4: Support for regulating all people who provide conversion practicesWho do you think should be banned from providing conversion practices? 73.22 per cent everyone, 26.78 per cent specific professionals or personsHow should conversion practices be regulated? 66.41 per cent wherever they occur, 33.59 per cent only in certain contexts and places Figure 5: Preferred options for a regulatory regimeDo you think conversion practices should be regulated through:31.05 per cent through criminal law16.33 per cent through civil regulatory scheme8.47 per cent through civil law44.15 per cent through combination of theseFigure 6: Can the impact on rights be justified in light of the harm conversion practices cause?51.68 per cent agreed48.32 per cent disagreed ................
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