NZ’s conversion practices prohibition law: A wolf in wolf’s clothing

A commentary by Jan Rivers, Fully Informed.

What Has Happened?

Following a record 106,000 submissions, oral hearings conducted at breakneck speed, with sometimes as few as two MPs present, the New Zealand “conversion therapy: bill was presented  for its second reading on 8 February as the first item of business for 2022 and was passed into law a week later.  (NZ Government, 2022 Ministry of Justice 2022.) This undue haste speaks to the influence that the LGBTQIA++ lobby has both in and outside of Parliament, as was the case with the Births, Deaths, Marriages and Relationships Registration (BDMRR) legislation. Together with the BDMRR Act, this new law is part of a suite of legislation embedding gender identity in New Zealand law that cement the idea that there are ‘transgender children’ in New Zealand who need medicine and new legal identities.

The main concern of opponents is not opposition to conversion therapy, but the way in which the new law conflates the concepts of gender identity and sexual orientation. In addition, there is international evidence of a strong thrust to equate exploratory counselling with conversion therapy (D’Angelo, 2020)  that is reflected in the law. Unlike being gay or heterosexual, claiming a transgender identity is not a stable phenomenon, especially in children and young people. International research shows that most gender transitioners are actually same-sex attracted and/or have faced significant adverse childhood events and suffer from high levels of co-morbid mental health conditions including Autism Spectrum Disorder(ASD).  It is astounding that legislators think it is okay to sterilise and render anorgasmic minors and young adults especially those who are either LGB and ASD. The evidence for gender medicine’s benefits are extremely weak (Cohen & Barnes, 2021) and the levels of harm it causes are high (LGB Alliance Australia, 2022) with countries such as the UK, Finland, and Sweden (SEGM, 2021) (Kirkup, 2020) (Canadian Gender Report, 2020) and even practitioners from the World Professional Association of Transgender Health (WPATH) backing away from the treatment approaches used in New Zealand (Edwards-Leeper & Anderson, 2021) even as they are being enforced in law.

The best available research shows that almost 80% of young people desist without gender medicine whereas almost all of those who are treated persist to cross sex hormones. (WPATH, 2011) This means interventions like social transition and medical treatment drastically change the life course of gender-questioning youth.

Changes arising from the Select Committee process

There were no changes to the draft law as a result of the evidence provided by Genspect, Stella O’Malley in Genspect’s oral presentation (O’Malley, 2021), or by many other well-researched submissions (Fully Informed, 2021, LAVA, 2021). Following the Select Committee process, persisting concerns were so serious that at least one health practitioner organisation wrote to the Chair of the Select Committee asking for the bill to be deferred pending more consultation.  

The Select Committee has made three main changes to the law. The first is to protect not only religious opinion, but also personal beliefs (presumably provided they do not meet the test of being a conversion practice). The second is to change the rules for registered health practitioners working with gender questioning people to make them more restrictive. The third change provides examples of what would constitute conversion therapy.

The Parliamentary Process
In the Select Committee hearings, Government and Green party members asked ‘gotcha’ questions and frequently argued with the evidence of those raising concerns. Often, their body language registered frank disbelief. In their speeches in favour of the bill, on the other hand, they frequently referred to the overriding importance of the perspectives of rangatahi (our young people), making it clear that level heads and experience counted for little.

Deeply Confused and Ambiguous Legislation

Early in the process, Justice Minister Kris Fa’afoi was unable to answer basic questions about the bill, such as whether parents would be behaving illegally if they prevented their child from taking puberty blockers. The Minister did not seem to understand that the law should strive for clarity, rather than rely on the courts to sort out how it should be applied. (Parkinson, P 2021)

As a result of his confusion, the report on the bill from the Select Committee states: 

We consider that conversations between parents and children would not be criminalised [].  We believe that the standard for a behaviour to be considered a conversion practice in the bill is appropriately high.”  

However, this assurance is not matched by changes in wording. The report says that a single incident could constitute a conversion practice. The whole section of the legislation providing examples of conversion therapy was added almost verbatim from a single submission by a NZ academic who is also a notable transgender advocate. (Clark, 2022) One of his examples of conversion therapy now in the Act is:

encouraging an individual to believe that their [] gender identity, or gender expression needs changing because it is a defect or disorder. 

No examples of what might be allowed were added to the law. This lack of guidance is in stark contrast to other recent NZ legislation. The use of restraint in the NZ education system for example requires not only that there are detailed regulations outlining what is and is not allowed but the development and revision of these regulations must involve a large number of stakeholders. (Education and Training Act, 2020)

Gender identity and expression are not defined, either in this law or elsewhere in NZ legislation. This raises serious questions, for example: “Can only those people who claim a ‘gender identity’ also have a ‘gender expression’?”; “Are non-conforming gay people, or anyone whose social presentation is unusual,  also protected from discrimination? But this difficulty of definition appears to be not common. Neither the 2021 revision of the WPATH Standards of Care (Soc8) (WPATH, 2021) nor Soc7 from 2011 (WPATH, 2011) has an agreed term for the cohort of people their standard seeks to treat let alone a definition.

As well as the threat of 3 to 5 year imprisonment (although that would need to be authorised by the Attorney General) there are also remedies available through new roles given to the Human Rights Commission and the Human Rights Review Tribunal. The Act does not come into force for 6 months while these new capabilities are built into the operations of the Commission and the Police. However, the HRC already has a well-documented track record in advocating for transgender people over other interests. (Rivers & Abigail, 2021) Nowhere is there information about what level of ‘misdemeanour’ would trigger which route or what fines and reparations could be levied. The implication is that complainants should take all issues first to the police and then be directed to the Commission if police felt the action did not meet the bar for a criminal offence. (Parkinson & Morris, 2021)

Not Just in New Zealand

There has been a similar pattern in many other jurisdictions. Similar laws have been rushed through in Victoria, Queensland, Australian Capital Territory, and most recently in Canada and France.

In NZ, there was no public consultation prior to drafting the law, and Ministry of Justice officials only conferred with hand-picked ‘stakeholders’. The Bill was written uncritically in the interests of transgender advocates and has the hallmarks of an international report for IGLYO ( International Lesbian, Gay, Bisexual, Transgender, Queer & Intersex Youth and Student Organisation) – written pro-bono by Denton and Thomson Reuter. The report advised that transgender advocates wanting to see condition-free medical transition made available for children and young people should:

  • keep the issue below the radar.
  • coach politicians for the kind of bill they would like to see.
  • tag the gender identity issue to better known issues such as gay and lesbian rights.(IGLYO, 2019)

The IGLYO approach has largely succeeded, and the NZ media have barely covered the concerns about the bill’s impacts on gender questioning youth while hundreds of articles anticipated and celebrated the legislation.

Freedom to suggest a transgender identity?

The new law says that supporting a person to transition to a preferred ‘‘gender identity or expression” is not a conversion practice. Thus gender advocacy organisations, queer clubs and societies in schools, and counselling services where children are primed with the idea that they might be transgender are all protected. Also protected would be arranging a social transition in school based solely on a child’s request, and sometimes even without informing parents. Parent’s and detransitioner’s reports show that such interventions appear to be far from uncommon. (Genspect, 2022; Detrans Voices, 2022)

On the other hand, because they are not registered health practitioners counsellors (including school counsellors), teachers and others will have no option, on, except to affirm transgender identities, no matter what other issues are in play, without facing a risk of breaking the law.

Serious limits on clinical practice.

While the Select Committee report:

‘note[s] that the bill would not amend legislation around decisions concerning the healthcare of children, including the prescription of puberty blockers.”  

this simply cannot be true. The Act will  constrain the options for registered health practitioners more severely than in the original bill. Instead of being able to practice “within their scope of professional competence”, health practitioners must now:

  1. Consider[s] in their reasonable professional judgement it is appropriate to take that action; and
  2. Complie[s] with all legal, professional, and ethical standards when taking the action; 

This heavy-handed language is a serious constraint against evidence-based health practice which effectively creates new practice standards that tip the balance towards medication and medicalisation. Even WPATH whistle-blowers recognise  that the preference for medicalisation of the kind already happening including in New Zealand (Rewoman, 2021) (Z, 2020) is harmful and represents over-treatment (Shrier, 2021). In fact the NZ transgender health guidelines and many of NZ’s health and social care organisations have already signed up to an affirmative-only approach often going beyond the WPATH Standards of Care. 

Whether the permissions granted in the new law could nullify the protections provided by the Health and Disability Commission that mandate clinicians to do no harm and to provide proper informed consent is unclear and should have raised serious red flags. (Parkinson, 2021)

How can practitioners act ethically when there will be confusion as to which law has precedence, and when they are legally compelled to pretend a belief in being the opposite sex can never be the result of defective or disordered thinking? New Zealand’s psychiatrists will be in a particularly interesting situation: Their 2021 position statement is thought to be the first in recent years from a professional body that does not endorse an affirmative approach (SEGM, 2021). Could psychiatrists professionally bound to explore the aetiology of Gender Dysphoria be breaking the law if they apply their own ethical standards?

Health practitioners will be reported to police by incentivised clinicians or trans advocates if they are unwilling to push children and young people to transition. This is already advised by a senior Australian psychologist where similar laws apply (Riggs, 2019). NZ activists certainly expect the provisions to be used (Tweedie, 2021), and practitioners who favour exploratory approaches have already been targetted and sacked in NZ (Letham, 2021).

There is a huge need for mental health interventions, given the high burden of psychiatric co-morbidity that people with gender issues also suffer. In the Select Committee submissions, legislators were repeatedly warned of the likelihood that those in the helping professions will not want to counsel young people with gender issues if they may face accusations of criminality. This will leave gender questioning young people with only those practitioners who already concur with ‘born in the wrong body’ thinking.  (Fully Informed, 2021), (O’Malley, 2021)

Minority Reports

The National Party (Conservatives) allowed a conscience vote, and seven MPs voted against the bill. 

The ACT Party (extreme fiscal conservatives and libertarians) was against the bill after the Select Committee stage, saying that it impinged on freedom of speech, that a person should be able to seek to be converted from an unwanted sexuality or identity, and that they:

“do not agree with harmful conversion practices taking place. Whenever a person has an important issue to consider, they usually seek out varying views. It is a way of understanding their own true determination. This bill only allows a one-sided conversation to take place and deems everything else as potentially being harmful. The promotion of discussion only runs one way.”

However, at the Second Reading ACT had decided to support the legislation, provided Supplementary Order Papers addressing their concerns were considered. The bill was passed into law without any of these SOPs being adopted, but still, ACT supported the legislation. The reasons for this about face were not clear but might be found in the hostility –  vociferous and even threatening – that has been directed towards the National Party MPs who voted against the bill. (NZ Government, 2022a) Another factor may be the number of parliamentarians who have an affirmed transgender child or family member.

Relationship to Hate Speech

One small, apparently positive, change is that the expression of a personal opinion in relation to whether a gender identity is a good thing would be protected. The report says: 

“We do not consider that the definition of conversion practice” in clause 5(1) would include the expression of a non-religious belief. […] We recommend that clause 5(2)(f) be amended, for the avoidance of doubt, to include reference to a personal belief”.  

Whether free expressions of personal belief could be made to someone who is already questioning their gender is unclear. For example would saying, ‘personally, I don’t believe it is possible to change sex’ or ‘I believe you can be a tomboy or a girly man’ or ‘No-one needs to change their gender’ break the law? Even the meagre protections for holding a personal belief may be extinguished by the hate speech legislation waiting in the wings.

Parliament has not considered organisations campaigning against puberty blockers like Genspect internationally or Fully Informed in NZ. Neither are captured explicitly by the legislation. It does, however, create an additional risk for members of such organisations who are obvious targets for accusation. 

The original bill says it supports open and respectful discussions, but the way it uses ideologically derived, unscientific beliefs is worrying. The belief, for example, that aligns body discomfort with being transgender. The new law will make it risky to explore the causes of gender questioning and come to a different diagnosis. Parents and their children deserve better than this.  As former UK Green Party Executive Committee member Zoe Hatch (Hatch, 2022)  wrote recently, ”Our young people need us to show we care for their welfare, not their ideology”.

References

Canadian Gender Report. (2020). Finland Issues Strict Guidelines for Treating Gender Dysphoria. Canadian Gender Report. https://genderreport.ca/finland-strict-guidelines-for-treating-gender-dysphoria/

Clark, E. (2022, February 2). Https://t.co/IPyfsZjPke [Tweet]. @Publicwrongs. https://twitter.com/Publicwrongs/status/1488711908844732416

Cohen, D., & Barnes, H. (2021, April 9). Evidence for puberty blockers use very low, says NICE -. BBC. https://www.bbc.com/news/health-56601386

D’Angelo, R., Clarke, P., Syrulnik, E., Kenny, D. T., Marchiano, L., & Ayad, S. (2020, November 1). Jack Turban’s Dangerous Campaign to Smear Ethical Psychotherapy as Anti-Trans ‘Conversion Therapy’. Quillette. https://quillette.com/2020/11/01/jack-turbans-dangerous-campaign-to-smear-ethical-psychotherapy-as-anti-trans-conversion-therapy/

Detrans Voices. (2022). Read Stories. https://www.detransvoices.org/read-stories/

Education and Training Act, (2020). https://www.legislation.govt.nz/act/public/2020/0038/latest/whole.html?search=qs_act_restraint_resel_25_h&p=1#LMS170676

Edwards-Leeper, L., & Anderson, E. (2021, November 24). Trans kids don’t get the mental health care they’re entitled to. Washington Post. https://www.washingtonpost.com/outlook/2021/11/24/trans-kids-therapy-psychologist/

Fully Informed. (2021). Conversion Practices Prohibition Bill Hearings—Fully Informed: Vol. Starts at 1 hour 1 Minute 30 Seconds. 13 October 2021. https://fb.watch/b0g9rS10kc/

Genspect. (2022). Parent stories—Genspect. https://genspect.org/stories/

Hatch, Z. (2022, February 5). Why I’m resigning from the Green Party [Substack newsletter]. https://grahamlinehan.substack.com/p/why-im-resigning-from-the-green-party

IGLYO. (2019). Only adults?  Good Practices in Legal Gender Recognition for Youth. International Lesbian, Gay, Bisexual, Transgender, Queer and Intersex Youth & Student Organisation. https://www.iglyo.com/wp-content/uploads/2019/11/IGLYO_v3-1.pdf

Kirkup, J. (2020). The NHS has quietly changed its trans guidance to reflect reality. The Spectator. https://www.spectator.co.uk/article/the-nhs-has-quietly-changed-its-trans-guidance-to-reflect-reality#

LAVA. (2021, October). Lava submission to the Conversion Practices Prohibition Bill. https://www.lava.nz/lava-submissions-to-nz-parliament

Letham, P. (2021, September 9). A Small Cancellation [Substack newsletter]. Shadowbox. https://shadowbox.substack.com/p/a-small-cancellation

LGB Alliance Australia. (2022, January). In defence of Children: Defending Children Letter to APS from LGB Alliance. https://www.indefenceofchildren.org/genderguidelinesofapsharmslgb

Ministry of Justice. (2022). Departmental Report: Conversion Practices Prohibition Legislation Bill. Ministry of Justice. https://www.parliament.nz/resource/en-NZ/53SCJU_ADV_113397_JU226248/294776e87207d3db0411cb24645ed8072dc02366

NZ Government. (2022). Conversion Practices Prohibition Legislation Bill 56-2 (2021), government Bill – New Zealand Legislation. https://www.legislation.govt.nz/bill/government/2021/0056/latest/whole.html#LMS487197

NZ Government. (2022a). Third reading of the Conversion Practices Prohibition Bill. NZ Government (Hansard). https://www.parliament.nz/en/pb/hansard-debates/rhr/combined/HansD_20220209_20220209

O’Malley, S. (2021). Conversion Practices Prohibition Bill Hearings—Genspect. 13 October 2021. https://www.facebook.com/JUSCNZ/videos/2981264365430370/

Parkinson, P. (2021). Conversion Practices Prohibition Legislation Bill Submission. University of Queensland. https://www.parliament.nz/resource/en-NZ/53SCJU_EVI_113397_JU2536/96bbf47096cd3525bdbe75f80ac3a69905c4cb34

Parkinson, P., & Morris, P. (2021). Psychiatry, psychotherapy and the criminalisation of ‘conversion therapy’ in Australia. Australasian Psychiatry, 29(4), 409–411. https://doi.org/10.1177/10398562211014220

Rewoman. (2021, August 16). My FTMTF Detransition Story. https://www.youtube.com/watch?app=desktop&v=KmEao1QHiPI

Riggs, D. (2019). Supporting transgender and non-binary people in Australia (Australian Psychological Society). Australian Psychological Society. https://www.psychology.org.au/for-members/publications/inpsych/2019/august/Supporting-transgender-and-non-binary-people-in-Au

Rivers, J., & Abigail, J. (2021). Sex, Gender and Women’s Rights. Policy Quarterly, 17(4), 38–49. https://doi.org/10.26686/pq.v17i4.7316

SEGM. (2021). Sweden Ends the Use of Puberty Blockers https://segm.org/Sweden_ends_use_of_Dutch_protocol

SEGM. (2021). First Mental Health Guideline to Explicitly Deviate from Gender Affirmation. Society for Evidence-Based Gender Medicine( SEGM). https://www.segm.org/first_mental_health_guideline_to_deviate_from_gender_affirmation

Shrier, A. (2021, August 10). A Pediatric Association Stifles Debate on Gender Dysphoria—WSJ. Wall Street Journal. http://archive.is/Dl5bT

Tweedie, M. (2021). Activists argue for criminalisation as the Minister is unable to explain whether a parent barring a child from puberty blockers could be criminalised. [Twitter]. https://twitter.com/max_tweedie/status/1422391631152443394

WPATH. (2011). WPATH Standards of Care V7—2011. WPATH. (Page 11) https://www.wpath.org/media/cms/Documents/SOC%20v7/Standards%20of%20Care%20V7%20-%202011%20WPATH.pdf

WPATH. (2021). Standards of Care version 8 (Terminolgy) (Standards of Care Version 8). https://www.wpath.org/media/cms/Documents/SOC%20v8/SOC8%20Chapters%20for%20Public%20Comment/SOC8%20Chapter%20Draft%20for%20Public%20Comment%20-%20Terminology.pdf?_t=1638406852

Z. (2020, March 7). My journey of transition and detransition—YouTube. https://m.youtube.com/watch?v=T9UYDyqkH2E

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