Why law reform is not enough
At the opening of the 2019 Victorian Pride March, Victorian Premier Daniel Andrews announced that his government would be the first in Australia to ‘introduce new legislation to ensure so-called ‘conversion therapy’ is against the law—once and for all’. Victoria joins over 20 jurisdictions around the world that have legislated or commenced legislative processes to limit or ban conversion practices targeting lesbian, gay, bisexual or transgender (LGBT) people. The Victorian announcement followed the publication of our pilot study report and a report by the Victorian Health Complaints Commissioner, which demonstrated that LGBT conversion therapy remains a significant problem in Australia (Jones et al, 2018; Jones, 2019; HCC, 2019). Yet, as is starting to be realised, legislation alone is limited in its capacity to end harmful LGBT conversion practices. Other, more challenging, interventions are also required.
What are conversion practices?
Conversion practices are grounded in the conviction that all people are born with the potential to develop—properly—into heterosexuals, with a gender identity that accords with the one assigned to them at birth. It views LGBT people as suffering from ‘sexual brokenness’, which is often attributed to childhood trauma, sin, or treated as an addiction. Advocates of conversion practices seek to ‘cure’ LGBT people or assist them to be celibate and suppress their gender and sexuality. Full membership and participation in faith communities can depend on LGBT people of faith committing to chastity and seeking ‘healing’ for their sexual brokenness (SOCE Survivor Statement, 2018). Religion-based conversion practices have not included forced medical interventions on people born with intersex variations. Harmful ‘intersex conversion therapies’ need to be addressed in their own right.
Though the term ‘gay conversion therapy’ is often used in media representations both in Australia and abroad, Australian self-advocates have chosen to refer to LGBT (or LGBTQA+) conversion practices. This is because formal therapy performed on gay men is only a small part of the broader set of conversion practices. These practices often occur in informal or secretive settings and regularly affect lesbian, bisexual+, and trans people. Psychological research has demonstrated conclusively that attempts to ‘heal’ LGBT people do not reorient their sexuality or gender identity and may, in fact, lead to long-lasting harms (What We Know Project, 2017). We estimate that 10% of LGBT Australians are currently vulnerable to LGBT conversion practices by being members of religious communities that promote conversion ideology and practices (Jones et al, 2018). In 2018, banning LGBT conversion ‘therapy’ was identified as LGBT Australians’ top priority (Karp, 2018).
Do conversion practices happen in Australia?
Religion-based LGBT conversion therapy has been practised in Australia for at least the last fifty years. At the same time as Australian psychiatric authorities were declassifying homosexuality as mental illness in 1973 and ceasing attempts to ‘cure’ it, conservative religious organisations in Australia were developing their own spiritual and counselling practices directed toward the sexual and gender reorientation of LGBT people. Over time, Australian LGBT conversion movements became affiliated with a global network of similar religious LGBT conversion organisations.
The range of LGBT conversion practices that emerged in the early 1970s, in what was then known as the ‘ex-gay movement’, have changed little over the past fifty years. They are an eclectic blend of popular self-help practices, behavioural and psychoanalytic therapies, and spiritual activities. These involve: twelve-step, Alcoholics Anonymous-style accountability groups (one was literally called Homosexuals Anonymous); individual, group, and online counselling; residential camps; testimonial and self-help literature and videos; exercises aimed at developing ‘normative’ gendered behaviour; prayer, spiritual deliverance and spiritual healing. Around 7% of Australian LGBTIQ+ students are currently exposed to related practices and messaging through schools (Jones, 2015).
Why is conversion attempted?
Behind these practices sits a curious and contradictory blend of ideologies that seek to explain the aetiology of LGBT and gender diverse identification, and hence how to reorient them. Heavily influential is the 1950s psychoanalytic view that trauma in childhood can disrupt normal psychosexual development. Therapeutic analysis—group or individual—is thus deployed to identify these traumatic events, enable the traumas to be healed and psychosexual development to be repaired (hence this approach is sometimes called reparative therapy). This psychoanalytic approach is combined incongruously with behavioural psychological approaches, which understand human sexuality and gender identity as homologous, and functionally equate identity with behaviour. Practicing and learning to perform heteronormative binary gender and sexual behaviour is believed to equate to sexual and gender reorientation. Alongside these contradictory ideologies of gender and sexuality, are religious beliefs that LGBT identification can be caused by malign spiritual interference. Deliverance from these spiritual forces, including through seemingly benign pastoral care and peer-based support groups, is believed also to lead to sexual and gender reorientation, or healing.
At the beginning of the conversion therapy movement, practitioners expressed a high degree of confidence that motivated and faithful participants could achieve reorientation. In recent years, perhaps mindful of increased external scrutiny or in genuine acknowledgement that reorientation is rarely, if ever, achieved, proponents of the ex-gay and ex-trans movement have moved away from this confidence. At least in public statements, religious bodies and conversion organisations increasingly promote chastity and celibacy for LGBT believers and say that participants should not expect their identity to change. They nonetheless hold out the possibility of change, adding that nothing is impossible for God.
At the core of all these practices and ideologies, including the recent incarnations promoting celibacy, is the assertion that LGBT desires and identities are a form of psychological and spiritual brokenness. These beliefs enshrine deep contradictions and conflicts in LGBT believers. To be a member of a religious community that is not affirming of your LGBT status, is to be saturated in messaging that you are inherently and inescapably broken and sinful to your core.
Are conversion practices harmful?
Most of the psychological studies of formal LGBT conversion therapy to date have focussed on the efficacy of attempts to reorient people (APA Task Force on Appropriate Therapeutic Responses to Sexual Orientation, 2009). While all reputable studies have shown that reorientation is not effective, few studies have documented the harmful impacts of theses attempts to shift gender or sexual identity (Turban et al, 2019). In our pilot study, the harms reported by our participants were profound. All participants had experienced severe mental health difficulties, including suicidal ideation, as they struggled to integrate their sexual, gender and religious identities. Participants reported experiencing difficulty forming relationships and difficulties with sexual function following their experiences with conversion practices. Participants experienced feelings of guilt at the trauma they put others through, including other LGBT people they encouraged to engage in conversion activities. Those who had married a partner of the opposite sex in attempts to achieve reorientation expressed deep sorrow at the hurt and conflicts this led to. Many of them were estranged from members of their families. Other studies also showed young Australians exposed to conversion messages were considerably more likely to think about self-harm (81.8%), enact self-harm (61.8%), think about suicide (83.6%), and attempt suicide (29.1%) (Jones, 2019).
One of the least reported but most profound harms experienced by survivors of conversion therapy was moral injury, or spiritual harm. Many participants resolved their identity conflict by leaving their community of faith. They expressed deep sorrow at the loss of faith, community, and belonging that this entailed. Those who retained their faith lived with a continual tension, experiencing varying degrees of rejection from both their LGBT and their religious communities.
What should be done about this?
It is clear that conversion practices violate international human rights law in several aspects including the right to health for LGBT people, the right to non-discrimination, and the convention on the rights of the child. Conversion practices may also constitute torture, or cruel, inhuman and degrading treatment. In the light of their human rights obligations, numerous jurisdictions around the world have passed laws banning LGBT conversion therapy (Drescher et al, 2016). Most commonly, this has involved passing legislation forbidding health care professionals from conducting conversion therapy with minors. In 2016, Malta passed the most extensive legislation so far, which bans conversion therapy being practiced with minors or vulnerable people by any person, makes it unlawful for a professional to offer or perform conversion practices, criminalises referral to conversion therapy and prohibits conversion practices from being advertised.
Our pilot study report recommended that Australian jurisdictions pass laws similar those in place in Malta, but recommended civil rather than criminal penalties be imposed, for reasons which will be unpacked below. This recommendation was adopted by the federal ALP, who revised their policy platform to include provisions to make conversion practices unlawful and support communities to improve their care of LGBT people (HRLC, 2018). Our recommendation, and the ALP policy change, were not widely understood. The Australian Christian Lobby interpreted the ALP’s shift as stating that conversion practices should be lawful, and cited it as a victory for conservative religion. Some members of the LGBT community, perhaps viewing the recommendation and policy through the ACL statement, were outraged that broad criminal penalties were not proposed.
At a time when the sexual sins of the churches are more in public view than ever before, there is significant public appetite for the churches to be called to account. The Royal Commission into Institutional Responses to Child Sexual Abuse exposed long histories of grave sexual offences being covered up, denied or minimised. Religious opposition to marriage equality was bare faced, and often brutal (Eades & Vivienne, 2018). In this context, it is not surprising that there is outrage at the harmful practices and teachings of the LGBT conversion movement: they deny the dignity and humanity of LGBT people, including LGBT people of faith. And it is not surprising that the apparently moderate position of making such actions unlawful, but not criminal, needs explanation.
Why make practices ‘unlawful, but not criminal’?
There is a fine, but significant, distinction between ‘unlawful’ and ‘criminal’. Unlawful conduct is prohibited by law, but not necessarily at the more serious or higher level of a criminal offence. The practical difference is that unlawful acts are pursued by the victim, seeking a personal remedy, such as financial compensation. Criminal acts are pursued by the police in order to punish the perpetrator on behalf of the state.
There are a number of reasons why it may be better to make many LGBT conversion practices unlawful, rather than criminal offences. Broad based criminalisation of conversion practices could potentially criminalise the victims of these practices. Most adult recipients of conversion practices have sought those practices out. If the acts that they sought were made criminal, they would potentially be accomplices in a criminal offence to which they are also victim. Similarly, many conversion practices involve peer activities, where the victims of conversion practices and teachings are effectively perpetrating on each other. Because civil law is focussed on remedy for victims, rather than punishing crimes it allows for an appropriately nuanced application. It also has a lower burden of proof that the victim is required to meet.
A range of criminal and civil penalties have been imposed in the conversion therapy bans that have so far been passed around the world. But recent research is showing that these are largely ineffectual. A recent study of conversion practices in the US showed that of the nearly 80,000 minors that will undergo conversion therapy there, only 25% of them will see a licensed health practitioner subject to the laws currently in place (Mallory et al, 2018). The vast majority of people subjected to conversion practices will experience them in religious settings, where the bans do not apply. And in many jurisdictions, even licensed mental health practitioners are exempted from conversion therapy bans if they affirm that their conversion practices are religious, and not connected to their professional license. New York City recently announced that it would be rescinding its ban on LGBT conversion therapy to avoid legal challenges that could end up protecting LGBT conversion therapy (Mays, 2019). While we welcome the law reforms proposed in Australia, the problem is so complex that law reform alone will not be enough to end it.
In conclusion …
We know that attempts to reorient the gender and sexuality of LGBT people are futile and harmful. While law reforms banning these practices have some use, they have so far had limited impact on conversion practices. Most existing law reforms have not applied to the majority of conversion practices. And none of them have, or could, address the toxic environments that saturate LGBT people of faith in messages that they are inherently and inescapably broken and sinful to their core. This is why law reform is not enough. The law can ban some, but not all, conversion practices. However, it cannot ban the ideas behind those practices. To address these toxic ideas, the more difficult work of social and cultural change is required.
This cultural work requires us to peer behind the rhetoric of the culture wars, which masks the complexities of LGBT spiritual health behind a false opposition between the LGBT community and communities of faith. This false culture war binary has left many LGBT people bruised and spiritually wounded, and many religious communities fearful, and feeling under siege. Yet when we look beyond the culture wars rhetoric, we see that many LGBT people are religious, and all religious communities have LGBT members. Tragically, a majority of Australia religious leaders (63%) feel ill equipped to provide pastoral care related to gender and sexuality, more than any other issue (AIFC, 2017). What is needed, then, is not just to ban harmful conversion practices, but to educate our communities about how to provide spiritual care to LGBT people that nourishes and affirms them. For, as the psalmist said, we are all ‘fearfully and wonderfully made’.
Australian Institute of Family Counselling [AIFC](2017). ‘Get Equipped: Responding to the growing mental health needs in our churches and communities’. Australian Institute of Family Counselling Report.
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Drescher, J., Schwartz, A., Casoy, F. et al (2016) ‘The Growing Regulation of Conversion Therapy’. Journal of Medical Regulation 102(2): 7-12.
Eades, Q, & Vivienne, S. eds. (2018) Going Postal: More than ‘Yes’ or ‘No’. Melbourne: Brow Books.
HRLC (2018). ‘ALP’s ‘conversion therapy’ platform provides better outcomes for survivors. Human Rights Law Centre News. December 18. Retrieved from: https://www.hrlc.org.au/news/2018/12/18/alps-conversion-therapy-platform-provides-better-outcomes-for-survivors
Jones, T.M. (2015). Policy and Gay, Lesbian, Bisexual, Transgender and Intersex Students. Cham, Heidelberg, New York, Dordrecht and London: Springer.
Jones, T.M. (2019). Voices of Experience: A student-centred sociology of Australian education. Dordrecht: Springer.
Jones, T.W., Brown, A., Carnie, L., Fletcher, G., & Leonard, W. (2018). Preventing Harm, Promoting Justice: Responding to LGBT conversion therapy in Australia. Melbourne: HRLC & GLHV.
Karp, P. (2018). ‘Gay conversion therapy ban found to be LGBTIQ Australians’ top priority’. Guardian. 4 August. https://www.theguardian.com/world/2018/aug/04/gay-conversion-therapy-ban-found-to-be-lgbtiq-australians-toppriority [accessed 3 December 2018].
Mays, J. (2019). ‘New York City Is Ending a Ban on Gay Conversion Therapy. Here’s Why.’ New York Times. Accessed on 12.9.19. Retrieved from: https://www.nytimes.com/2019/09/12/nyregion/conversion-therapy-ban-nyc.html
Mallory, C., Brown, T. & Conron, K. (2019). ‘Conversion Therapy and LGBT Youth’. The Williams Institute: UCLA School of Law. January 2018. Accessed on 1.9.19. Retrieved from: https://williamsinstitute.law.ucla.edu/wp-content/uploads/Conversion-Therapy-LGBT-Youth-Jan-2018.pdf
SOCE Survivor Statement.Written by survivors of Sexual Orientation Change Efforts and the Gay Conversion movement. (2019) http://socesurvivors.com.au/
Turban, J., Beckwith, N., & Risner S. et al. (2019). Association Between Recalled Exposure to Gender Identity Conversion Efforts and Psychological Distress and Suicide Attempts Among Transgender Adults. JAMA Psychiatry. Accessed on 9.9.19. Retrieved from: doi:10.1001/jamapsychiatry.2019.2285.
What We Know Project (2017). ‘What does the scholarly research say about whether conversion therapy can alter sexual orientation without causing harm?’ Ithaca: Center for the Study of Inequality, Cornell University. https://whatweknow.inequality.cornell.edu/ [accessed 20 June 2018].
Dr Timothy W. Jones is a cultural historian and Senior Lecturer in History at La Trobe University. Timothy’s research interests encompass the intersections of gender, sexuality and religion in modernity. His PhD was published as Sexual Politics in the Church of England, 1857-1957 (Oxford University Press, 2013). He was lead author of the La Trobe University and Human Rights Law Centre report, Preventing Harm, Promoting Justice: Responding to LGBT Conversion Therapy in Australia (2018).
Dr Jennifer Power is a public health sociologist who specialises in research on sexual health, sexuality and wellbeing. In particular, her research has focused on wellbeing and quality of life among vulnerable communities including people living with HIV and LGBT families. She is currently lead CI on the HIV Futures study, a major national survey of people living with HIV, funded by the Australian Department of Health.
Associate Professor Tiffany M. Jones is a sociologist who researches and publishes on LGBTIQ+ issues in education, education policy, health and social policy. She was awarded an ARC DECRA to study the influence of global polity on gender and sexuality on a range of regional contexts and laws (DE160101047). She has undertaken consultancies with: UN bodies collecting data on gender and sexuality in bullying; with the Victorian Government on decision-making for intersex infants; and currently CIHR funded project on reforming health industry responses to intersex youth across Canada, Belgium and the UK.