The Victorian “Change or Suppression (Conversion) Practices Prohibition Bill 2020” currently before State Parliament (10/12/2020) casts a very wide net in seeking to outlaw any religious practice that might challenge question or denigrate a person’s self-perceived sexual orientation or gender identity. To help us understand some of its legal aspects and implications, we asked Associate Professor of Law in Newcastle Law School, Neil James Foster for his thoughts.

TGCA: Neil thanks so much for being willing to chat TGCA about the Victorian “Change or Suppression (Conversion) Practices Prohibition Bill 2020” which is about to be (10/12/2020) debated in Victorian State Parliament. I wonder if I could begin by asking you to compare this bill with others in Queensland and the ACT. Do you still believe this one is the most dangerous?

I think I do. The Victorian bill is the most extensive. They have gone to a lot of trouble to build in infrastructure that will give the bill teeth. There are a couple of criminal offences in part 2, and when you get to part 3 there is a whole section which gives the Human Rights Commission power to investigate people and organisations. It sets up the whole expectation that they’re going to be monitoring groups (primarily churches, since there’s nobody else in the community that’s even mentioned) for conversion or suppression practices.

The bill sets up the whole expectation that they’re going to be monitoring groups (primarily churches) for conversion or suppression practices.

That whole infrastructure is I think going to now going to be targeted at religious groups now—and it doesn’t even require a complaint by a person who has been a subject or target of these practices. Anyone can just complain to the commission and then they can go ahead and request further information about persons or organisations purported to be engaged in change and suppression practices.

Another thing worth noting is the Queensland bill seems mainly targeted at health professionals, and the ACT law was tightened up in the course of its passage through parliament —it’s got a narrower scope (focussed on children) and it also at least contains a formal recognition of religious freedom rights. But the Victorian Bill has no upfront acknowledgement that we’re interfering with the religious freedoms of groups who want to teach the traditional religious views. It doesn’t signal any interest in balancing the rights of people or consider the dangers of suppressing religious free speech.

TGCA: As you read over the bill, does it seem like a usual piece of legislation?

Well, a number of people have commented on the blatantly ideological nature of the bill. You don’t normally get the sort of political barnstorming that turns up in section 3, for example, where we read that the object of the bill is to “denounce” the harm caused by change or suppression practices and:

… to ensure that all people, regardless of sexual orientation or gender identity, feel welcome and valued in Victoria and are able to live authentically and with pride.

You might think that’s well and good, but what about people of religious faith in Victoria? Are they meant to be welcomed and valued and able to live authentically? The bill goes on:

… to affirm that a person’s sexual orientation or gender identity is not broken and in need of fixing [and] affirm that no sexual orientation or gender identity constitutes a disorder, disease, illness, deficiency or shortcoming …

This expectation that the bill will teach us what to think is not normal. What happens if I disagree?

This expectation that the bill will teach us what to think is not normal. What happens if I disagree? How is it parliament’s job to tell me what I need to think about these things?

Even some people on the left have taken issue with its ideological approach. For example, feminist activist and lawyer Nina Vallins, has recently made some very strong statements about the bill’s conflation of sexual attraction and gender identity and where it might leave those who want to de-transition. The confusion is compounded when we note that the central conceit of the bill—that people’s sexuality and gender identity are absolutely fixed—seems to contradict other progressive theories about gender fluidity.

Attempts to fix ideology into law like this creates all sorts of problems—as we see with the recent Keira Bell case in the UK.

TGCA: Just on that point. Bell’s case was that the GIDS should have challenged her more as a 15-year-old when she approached them wanting to begin transition. Would that case have any bearing on this bill?

Formally, of course, that case has no direct authority here—it doesn’t set precedent for Australian courts. But Australian courts do pay attention to what happens in the UK, and the issues that the Bell case highlights do apply here: for example, the fact that the Family Court in Australia has uncritically accepted the pro-gender transition side. The judges in the UK case have basically said “you haven’t been able to produce the evidence that this administration of blockers and hormones etc is all fine and reversible.”

TGCA: One of the surprising things in the Victorian bill is that change and suppression measures aren’t allowed even if people ask for them. Does this imply a view of human nature that makes sexual attraction and gender identity more fundamental and important than their cultural/religious identity?

Yes, it’s quite shocking (and paternalistic) when you look at section 5(1) to say to people who are fully grown and capable of deciding things for themselves in every other setting, that they have no right to ask for help in this area.

And, as you say, it does seem to make areas of sexual and gender identity the most important to a person’s identity and authenticity.

Another peculiarity is the way the bill attempts to control what is happening outside the state. On the one hand that means preventing people going (or being taken over) the border for the purpose of gender or sexuality conversion (who would do this?). But, more broadly, section 8 applies generally to conduct outside Victoria. So, in theory, if you offered a web seminar in Sydney about coping with unwanted same-sex attraction, and someone from Victoria watched it, then the organiser could find themselves subject to a criminal charge—and even extradition.

TGCA: Is there any hope for checks or revisions on this bill in light of this? Can we expect it to be knocked down in the high court?

There many issues of great concern about this bill, and I think it’s particularly concerning that the government may use its numbers to push it through very quickly.

If this was happening in NSW, this would probably have gone straight to a parliamentary joint committee of some sort, and that would have allowed the airing of views that opposed the ideology. Unfortunately, there’s no obligation under the current political situation for that to happen in Victoria, and the Liberal opposition doesn’t seem interested in challenging it.

In terms of court challenges, the fact is that we do not have anywhere near the protections for free speech or religious freedom that they do in the United States. We do have an implied freedom of political speech in our federal constitution, but it isn’t clear how that might apply to conversations within churches or between individuals.

If the federal religious discrimination legislation goes ahead there could be an argument there that someone prosecuted under the Victorian bill is being targeted on the basis of their religion, but that’s all very speculative because, of course, we don’t know whether the religious discrimination bill at the federal level is still going ahead.

TGCA: Thanks once again for sharing your insight on these matters, Neil. Do you have any final thoughts before we go?

I think that there are many issues of great concern about this bill, and I think it’s particularly concerning that the government may use its numbers to push it through very quickly.

I think it needs to stop and take some time to hear other voices—not just from Christians but various religious groups in the community who will be deeply concerned with the ideology promoted by the bill.