Real harm

A new law to criminalise "conversion therapy" may hurt the very people it claims to help

Photo by Etienne Boulanger on Unsplash

A misguided law purporting to ban attempts to convert someone’s “gender identity” will in reality push more children into risky medicalised gender change, increase treatment regret in the future and expose government to litigation for negligence.

This is the warning strongly expressed in a letter to Ryan Park, the health minister of Australia’s most populous state, New South Wales (NSW), where the government has just finished secretive consultation on a proposal to criminalise “conversion therapy” intended to change sexual orientation or the novel concept of gender identity.

“The legislation you propose is likely to increase suicide attempts and other self-harm, not to reduce them,” says the letter’s author, Queensland University emeritus professor of law Patrick Parkinson.

With expertise in family law and child protection, he has collaborated with health professionals in scrutinising gender clinics and witnessing the effects of conversion therapy bans in other states. (In NSW, the independent MP Alex Greenwich is promoting his own bill to prohibit “LGBTQ conversion practices”.)

Professor Parkinson says: “In Victoria, especially, [where the maximum penalty is 10 years’ prison], mental health professionals are afraid that if they explore the reasons why a child or young person might hate their body, be terrified of going through puberty, or otherwise want to transition to another gender presentation, they will be accused of engaging in a conversion practice.

“The chilling effect is particularly strong when there are zealous activists who are intent on destroying the reputations and careers of professionals who do not share their view of matters, and who readily resort to complaints procedures or police reports.”

Earlier this year, mainstream peer-reviewed research linked to The Children’s Hospital at Westmead, Sydney, was denounced as “damaging” by gender clinician Dr Clara Tuck Meng Soo, the then president of the Australian Professional Association for Trans Health (AusPATH). The Westmead research has implications at odds with the “gender-affirming” treatment approach championed by AusPATH but under increasing international scrutiny.

In a report to AusPATH members, Dr Soo said: “Hopefully, the passage of laws banning sexuality and gender identity conversion in NSW championed by Alex Greenwich will clip their wings [at Westmead].”

In his letter to Mr Park, Professor Parkinson says the law proposed by the NSW government “will operate to prevent very troubled children and young people with multiple mental health problems, and who are also experiencing gender incongruence or struggling with a fear that they might be exclusively same-sex attracted, from getting the mental health support they need.

“There is nothing wrong with therapists helping people become more comfortable in their own bodies and to cope better with their gender incongruence. Many people want this kind of support.”

Professor Parkinson says the July 31 NSW consultation paper outlining the law “shows no understanding whatsoever” of the recent explosion in transgender-identifying minors often with serious psychiatric problems predating and potentially causing the distressing sense of incongruence between their body and an inner feeling of gender.

And he says NSW is proposing “very draconian legislation” supporting the gender-affirming worldview at the very time when “the medical and scientific consensus has shifted away from the ideas that [government officials and activists] want to entrench.”

Gender-affirming clinicians are more likely to promote a child’s social transition into an opposite-sex or non-binary role, followed by medical transition with puberty blockers, cross-sex hormones and surgery such as mastectomy for girls.

“One consequence [of an anti-conversion law such as Victoria’s] is that it pushes children and young people onto the pathway of life-changing and irreversible medications when their gender incongruence is more than likely transient and secondary to their other mental health problems,” Professor Parkinson says in his letter.

He says the law proposed by the NSW Department of Justice and Department of Health “will be detrimental to children and young people’s mental health”, with many coming to “deeply regret” trans medicalisation that failed to treat their real problems.

“Some will successfully sue the Department of Health for negligence in diagnosis, treatment recommendations or failure to obtain a fully informed consent,” he says.

Video: Paediatrician Dr Dylan Wilson says children cannot consent to puberty blockers. For the Channel 7 Spotlight program on gender clinics, with extended interviews, see here

Affirm or convert?

An appendix to the NSW consultation paper on the proposed law—which was sent to selected groups and is not available publicly—concedes there are no studies showing the true prevalence of conversion practices in Australia.

The main study cited by the consultation paper extracted data from a low-quality online survey promoted on social media and with a sample unlikely to be representative.

The conclusion: 4 per cent of 6,418 “LGBTQA+” Australians aged 14-21 said they had taken part in conversion practices. It’s not clear how many of these 265 cases involved gender identity, rather than sexual orientation.

Despite the low rate reported and the uncertain data, the researchers from Macquarie University’s School of Education conclude that “banning conversion practices is not enough.” They urge a raft of other “LGBTQA+inclusive” policy changes.

They note in passing that higher figures for conversion practices are reported in Iran, but do not discuss that country’s record of pressuring homosexuals to undergo the medical sex reassignment known elsewhere as “gender affirming”.

The researchers acknowledge funding from the NSW Department of Health; the department did not reply when GCN asked if it should have declared a conflict of interest in the consultation paper.

Anti-conversion laws internationally follow a template, treating gender identity as if it were stable like sexual orientation.

These laws include an exemption so that medicalised gender change is not prohibited as conversion, despite research suggesting that many gender non-conforming minors would emerge as healthy lesbian, gay or bisexual (LGB) adults, were they not medicalised as trans or non-binary.

The NSW consultation paper acknowledges that without a specific exemption, its own definition of conversion practices “risks being interpreted as capturing gender-affirmative care [social transition and medicalised gender change], which is particularly important for trans and gender diverse people.”

Yet the practices to be criminalised in NSW explicitly include non-invasive talking therapies such as counselling, if they are deemed to be harmful attempts to change or suppress someone’s gender identity. More serious conduct that could be construed as a conversion practice—physical harm, for example—is prohibited by existing law.

Video: America’s veteran gay rights campaigner Fred Sargeant tells his story

LGB without the T or Q

“What strikes me most about these proposed state bans [in Australia and the United States] is the scent of desperation coming from the proponents,” says Fred Sargeant, a gay rights veteran of New York’s 1969 Stonewall riots and co-founder of the first Pride March in 1970.

“The problem for them is that medical figures are speaking up now in that slow, plodding scientific way about the unsound experimental nature of what’s being concretised with such laws, Mr Sargeant told GCN.

He is referring to the fact that anti-conversion laws treat gender identity as immutable—when it may be fluid, especially during adolescent development—and allow its medicalisation with puberty blockers, cross-sex hormones and surgery.

Mr Sargeant says the strategy of piggybacking an extreme trans agenda on mainstream acceptance of same-sex orientation is unravelling.

“A not insignificant segment—and growing every day—of gays and lesbians see no real overlap of same-sex orientation and gender identity goals or interests,” he says.

Discontent with the Queer Theory-capture of former gay rights groups led to the 2019 foundation of the LGB Alliance in the United Kingdom, quickly followed by similar groupings around the world. The hashtag “Trans away the gay” became popular. Mr Sargeant helped set up LGB Alliance USA.

LGB Alliance Australia (LGBAA), which was not invited to take part in the NSW consultation process, says it believes the proposed law is “designed to cement ‘gender-affirmation’ into the Australian legal, health, education and social systems, in the face of growing criticism and a dearth of evidence supporting this approach to treating gender dysphoria.”

In its submission, LGBAA says: “The legislature needs to be aware that an increasing number of young people distressed about their homosexuality are seeking hormones and surgeries to medically ‘correct’ themselves, in order to appear straight. This is a complex form of self-loathing, which meets the criteria of a conversion practice.”

The group cites a survey of patients at the world’s largest youth gender clinic, the London-based Tavistock service, in which more than 90 per cent of females said they were same-sex attracted or bisexual. One Tavistock staffer, Matt Bristow, came to the view that the clinic was conducting “conversion therapy for gay kids.”

LGBAA says the NSW case for a new criminal law against conversion therapy suffers from a lack of evidence, ideological language, conflicts of interest, ill-defined terms and a raft of possible unintended effects.

“The proposed legislation risks having a chilling effect on research, public and scientific debate and therapy. This new legislation would criminalise any opposing or dissenting view to gender identity ideology,” the submission says.

“Parents may be accused of attempted ‘conversion’ by children or the child’s associates, for simply using their child’s birth name rather than their chosen name, for using their sex-appropriate pronouns, or for refusing to provide consent for the use of off-label experimental drugs, such as puberty-blockers and cross-sex hormones.”

On its website, Victoria’s Equal Opportunity & Human Rights Commission includes in a list of illegal conversion practices—

• “a parent denying their child access to any health care services that would affirm their child’s gender identity because they do not want their child to have access to information or advice that would affirm their child’s gender identity

• “a parent rejecting the recommendations of qualified health professionals and refusing to support their child’s request for medical treatment [off-label puberty blocker drugs] that will prevent physical changes from puberty that do not align with the child’s gender identity, because the parent believes it is against nature and a boy should be a boy and a girl should be a girl”

Video: Therapist Stephanie Winn, detransitioner Camille Kiefel and other witnesses give evidence against a proposed ban on gender identity conversion in the US state of Oregon

Apples and oranges

Australia’s National Association of Practising Psychiatrists (NAPP) says the drafting of any conversion therapy law has to begin by clearly distinguishing between sexual orientation and gender identity. The law should also take account of more cautious developments in the treatment of gender dysphoria, the NAPP says.

“Psychological interventions that promote exploration of gender identity, while identifying and addressing any underlying conditions or family circumstances, have become the standard for first-line treatment internationally,” the NAPP submission says.

It says the law should include a clear exemption for “non-directive” psychotherapy, which seeks to promote “the well-being and self-discovery” of young patients and does not cut short this exploration by “proactively affirming” a gender identity declared at one point in time.

“For example, the Queensland Government’s conversion practices legislation provides some level of protection for health practitioners in that it allows for evidence-based and reasonable clinical practices even if they do not actively affirm or support a person’s sexual orientation or gender identity,” the NAPP says.

“This exemption recognises the importance of individualised treatment plans that prioritise a person’s well-being and overall care.”

However, Queensland child and adolescent psychiatrist Dr Jillian Spencer says this state legislation in practice “has had an extremely negative effect on the quality of care provided to children with gender dysphoria.

“In the private sector, a lot of very experienced and talented child psychiatrists and mental health practitioners such as psychologists now do not accept referrals for children with gender dysphoria as they perceive it to be too risky to provide a comprehensive assessment and exploratory approach,” Dr Spencer told GCN.

“Due to this, in the private sector, the treatment of young people with gender dysphoria often falls to enthusiastically affirming mental health clinicians.

“In public children’s mental health services [in Queensland], child psychiatrists and other mental health clinicians—those working in teams in services outside of the gender clinic—have stopped thinking about gender dysphoria as related to a child’s mental health presentation.

“The child’s preferred pronouns are always used and the mental health teams pretend that the child has changed sex. The child’s gender dysphoria is not discussed in multidisciplinary teams or explored with the patient and their family.”

“Exploratory therapy for gender incongruent clients needs to be explicitly protected in law and professional codes of practice from attempts to impose gender identity affirmative therapy as the default therapeutic response to clients with gender identity issues.”—scoping survey, Thoughtful Therapists, 2021

Sounds reasonable?   

The NSW consultation paper on a conversion practices ban suggests an exemption for healthcare that is necessary in the “reasonable professional judgment” of a practitioner.

However, traditional holistic psychotherapy that fails to affirm a child’s self-declared gender identity at the outset is often characterised as conversion therapy by advocates for the dogmatic gender-affirming model.

The gender-affirming lobby the Australian Professional Association for Trans Health issued a statement last year saying it does “not support ‘exploratory therapy’ which is often used as a euphemism for conversion therapy.”

A comprehensive assessment of a child might conclude that what is presented as gender distress may be secondary to trauma from family dysfunction, sexual abuse, awkward same-sex attraction, autism or psychosis.

Yet the NSW consultation paper says conversion practices include “framing negative life experiences (e.g. poor relationship with parents) and current problems (e.g. anxiety, depression) as both a cause and consequence of LGBTQ+ identity.”

And while the consultation paper acknowledges the legitimacy of therapy supporting a patient’s exploration of gender identity, it links this exploration with “gender-affirming care” as if they are much the same thing.

In fact, as suggested by the UK’s Cass review of youth gender dysphoria care, an open-ended exploratory approach is in tension with the gender-affirming treatment model.

Trivialising harm

For a criminal offence to be made out, the NSW consultation paper says “a reasonable person” would have to judge the conversion practice to be “likely to cause harm”, yet the legislative project itself is predicated on the assertion that “conversion practices are deeply harmful.”

In its submission, the LGB Alliance Australia says it is “very concerned that the ever-expanding definition of ‘harm,’ which may include psychological and emotional distress, is far too diffuse for a legal statute and may impinge on freedom of speech, opinion and association.”

Maltese model

Like other jurisdictions, NSW holds up Malta as a model of the new-look conversion therapy ban that enshrines gender identity. That country’s progressive credentials have been questioned by documentary maker Malcolm Clark, one of the founders of the LGB Alliance.

Missing from the NSW consultation paper, apart from reference to a dated survey, is the experience of the UK. The government there began with uncritical enthusiasm for the kind of conversion ban demanded by trans rights activists, but in time heeded warnings that gender identity raises different and more complex issues than sexual orientation.

In April last year, Nikki da Costa, former director of legislative affairs at No. 10 Downing Street, told BBC Radio 4 that promotion of the LGBTQ conversion therapy ban in the media was obscuring the fact that it would have “profound consequences for children struggling with gender dysphoria.

“It would create a situation where doctors, therapists, even parents, would be deterred from exploring with a child any feelings of what else may be going on, for fear of being told that they are trying to change a child’s identity,” Ms da Costa said.

She said this was “deeply concerning” because of the unprecedented and poorly understood explosion of youth gender dysphoria, with a troubling over-representation of girls, autism and same-sex attraction in the cases seen at the Tavistock clinic.

In May, it was reported that Equalities Minister Kemi Badenoch was looking at a conversion therapy ban that would not criminalise or have a chilling effect on parents, teachers, religious leaders or health professionals having “exploratory or even challenging conversations” with young people about gender.

“The Coventry study [commissioned by the UK Government Equalities Office] sets out to show that ‘conversion therapy’ in relation to gender identity is similar to religiously motivated attempts to ‘pray the gay away’ or to pseudoscientific therapies. No robust evidence is presented for this.”—rapid review, Sex Matters, 2021

Swedes unswayed

Also missing from the NSW consultation paper is Sweden, a progressive country which looked at the case for a new criminal law targeting conversion therapy and found it wanting.

“There is nothing indicating that [conversion] methods affecting the body take place in Sweden,” July’s official report says. “There is also no clear indication that therapy-imitating methods occur.

“Since criminalisation should not be applied for pre-emptive or preventive purposes, there is no reason to consider criminalisation of these forms of conversion efforts. Criminalisation should be the last resort.

“In order to determine the need for such a measure, it is necessary to be able to point to the existence of a behaviour that may cause significant danger or harm, and to the fact that a penalty is an effective means of counteracting the behaviour.

“It is reprehensible to try to change or suppress another person’s sexual orientation, gender identity or gender expression. Criminalisation would send a message from society regarding this and could have a normative effect. However, a new penalty provision should not be introduced for the sole reason that the legislator wishes to send a message.

“It should also be foreseeable that the provision will be applied to some reasonable extent in practice and help counteract the undesirable behaviour.

“Further, for a provision to have a normative effect, it is required that the provision can be drafted in a sufficiently clear manner.

“The overall conclusion is that further criminalisation would not be an effective means of countering conversion efforts. A separate regulation criminalising them should therefore not be introduced.”

Sweden has also adopted a more cautious treatment approach for youth gender dysphoria, following a systematic review of the evidence base.

Note: GCN sought comment from the NSW Justice Department, the Health Department, Mr Greenwich and former gay rights body ACON, which promotes trans rights and the gender-affirming treatment model