Published date: 5 Aug 2021
NEWS: New Zealand has introduced legislation seeking to ban conversion therapy, which refers to the practice of trying to “cure” people of their sexuality, gender expression, or LGBTQI identity. [THE INDIAN EXPRESS]
LAW OF NEW ZEALAND
The Conversion Practices Prohibition Legislation Bill (the Bill) is an omnibus Bill introduced under Standing Order 267(1)(a). That Standing Order provides that an omnibus Bill to amend more than 1 Act may be introduced if the amendments deal with an interrelated topic that can be regarded as implementing a single broad policy. The policy implemented by the Bill is the prohibition of conversion practices in New Zealand.
Conversion practices encompass a broad range of practices that seek to change or suppress a person’s sexual orientation, gender identity, or gender expression. Research emphasises that conversion practices do not work and can contribute to issues such as low self-esteem, depression, anxiety, and suicidal thoughts and attempts.
The Government’s objectives in prohibiting conversion practices are to:
affirm the dignity of all people and that no sexual orientation or gender identity is broken and in need of fixing
prevent the harm conversion practices cause in New Zealand and provide an avenue for redress
uphold the human rights of all New Zealanders, including of rainbow New Zealanders, to live free from discrimination and harm.
Defining conversion practices
The Bill defines conversion practice as a practice that is:
directed towards a person because of their sexual orientation, gender identity, or gender expression, and
performed with the intention of changing or suppressing their sexual orientation, gender identity, or gender expression.
It is important to ensure that health practitioners and others are not discouraged from offering legitimate support or therapy for fear of incurring liability under the prohibition. As such, the definition explicitly excludes practices by health practitioners acting within their scope of practice, and other practices such as assisting a person who is undergoing a gender transition, or facilitating a person’s coping skills, development, or identity exploration. The definition clarifies that it does not capture the expression only of a religious principle or belief that is not intended to change or suppress a person’s sexual orientation, gender identity, or gender expression.
New criminal offences
To deter the performance of conversion practices, the Bill creates 2 new criminal offences where there is a heightened risk of harm (as in the case of children or people with impaired decision-making capacity) or where serious harm is caused.
It will be an offence for any person to perform conversion practices on a person who:
is under the age of 18 years, or
lacks, wholly or partly, the capacity to understand the nature, and to foresee the consequences, of decisions in respect of matters relating to their health or welfare.
The maximum penalty for this offence is a term of imprisonment not exceeding 3 years.
It will also be an offence for any person to perform conversion practices on any other person where the practices cause serious harm. The maximum penalty for this offence is a term of imprisonment not exceeding 5 years.
Civil redress scheme
The Bill utilises the Human Rights Commission’s (the Commission) existing functions and complaints system to provide a civil redress scheme for conversion practices. This provides another pathway of redress for survivors of conversion practices, with a focus on remedying harm and preventing it from happening again. The Commission will also play an important role in providing education about conversion practices and the prohibition, and in making survivors aware of how to access the support that they may need.
The Bill amends Part 2 of the Human Rights Act 1993 to provide that performing or arranging for the performance of conversion practices is unlawful. This will allow the Commission to receive and deal with complaints about the performance of conversion practices. The existing section 67 of the Human Rights Act 1993 will also allow the Commission to receive and deal with complaints about advertisements that indicate, or could reasonably be understood as indicating, an intention to perform conversion practices.
Where complaints about conversion practices cannot be resolved through the Commission’s process, parties will be able to take their case to the Human Rights Review Tribunal (the Tribunal). The Tribunal will be able to grant a range of remedies pursuant to the existing section 92I of the Human Rights Act 1993.
Main provisions of the bill
The following outlines some of the key provisions of the bill.
Clause 4 of the bill provides for a number of definitions. In particular, references in the bill to:
- health practitioner
- health service
- scope of practice
have the same meaning as in section 5(1) of the Health Practitioners Competence Assurance Act 2003.
Meaning of conversion practice
Clause 5 of the bill defines conversion practice as any practice that:
- is directed towards an individual because of the individual’s sexual orientation, gender identity, or gender expression; and
- is performed with the intention of changing or suppressing the individual’s sexual orientation, gender identity, or gender expression.
The meaning of conversion practice in clause 5 states that conversion practice does not include:
- a health service provided by a health practitioner in accordance with the practitioner’s scope of practice
- assisting an individual who is undergoing, or considering undergoing, a gender transition
- assisting an individual to express their gender identity
- providing acceptance, support, or understanding of an individual
- facilitating an individual’s coping skills, development, or identity exploration, or facilitating social support for the individual
- the expression only of a religious principle or belief made to an individual that is not intended to change or suppress the individual’s sexual orientation, gender identity, or gender expression.
Offence to perform conversion practice on person under age of 18 years or lacking decision-making capacity
Clause 8 of the bill provides for a new offence where a person performs a conversion practice on an individual and knows that, or is reckless as to whether, the individual is:
- under the age of 18; or
- lacks the capacity, wholly or partly, to understand the nature, and to foresee the consequences, of decisions in respect of matters relating to their health or welfare.
A person convicted of this offence is liable to a term of imprisonment not exceeding three years.
Offence to perform conversion practice that causes serious harm
Clause 9 provides that a person commits an offence if they perform a conversion practice on an individual that causes serious harm to the individual and the person knew, or was reckless as to whether, the performance of the conversion practice would cause serious harm to the individual.
A person convicted of this offence is liable to a term of imprisonment not exceeding five years.
Consent not defence
Clause 10 of the bill provides that it is not a defence to the offences in clauses 8 and 9 that the individual on whom the conversion practice was performed consented to that practice, or that the person charged believed that such consent was given.
No prosecution without Attorney-General’s consent
Clause 12 provides that no prosecution for an offence under clause 8 or 9 may be instituted without the consent of the Attorney-General.
Complaint may be made under Human Rights Act 1993
Clause 13 provides for civil liability relating to conversion practices under subpart 2 of Part 2. It provides that a person may make a complaint under the Human Rights Act 1993 alleging that there has been a breach of section 63A of that Act.