By Shaneel Lal*
Opinion - Queer activist Shaneel Lal says the draft law to ban conversion therapy has some major loopholes, won't end it, and more must be done.
Following a record-breaking number of submissions to the Conversion Practices Prohibition Legislation Bill, the select committee process is now underway. The Pacific Cooperation Foundation asked leading Indo-Fijian activist Shaneel Lal, founder of the Conversion Therapy Action Group, to provide their views on the bill in its current form as it undergoes intense scrutiny here in Aotearoa New Zealand.
The Labour party conceded to the political pressure to ban gay and gender conversion therapy during the 2020 election. However, the Government has put forward an ineffective and inadequate bill that provides loopholes for conversion therapy to continue.
The Government claims the bill will end conversion therapy, however it only creates a criminal ban. Banning conversion therapy is a part of ending conversion therapy, but that alone won't end conversion therapy. A ban relies on the criminal justice system to catch and punish people. Most reported cases of crime aren't prosecuted. Most prosecuted cases aren't convicted. And most convicted people re-offend.
The criminal justice system disproportionately affects Māori and Pacific peoples in Aotearoa. Homophobia and transphobia are pervasive remainings of colonisation in the Pacific community. Any effort to criminalise queerphobic practices without addressing the underlying lack of education will increase the disproportionate incarceration of Māori and Pacific peoples.
Ending conversion therapy requires mandating LGBTQIA+ education to change the mindset of generations of people towards queer people so that conversion therapy ceases to exist. It requires the Government to provide affirming care to queer people, so queer people do not feel coerced to enter conversion therapy. There is no indication that the Government will take steps that will end conversion therapy.
The bill does not guarantee victims any compensation to seek help. Victims may seek redress from the Human Rights Commission and the Human Rights Review Tribunal. Neither body is obliged to give victims financial compensation.
All stories of conversion therapy end with a queer person debating whether it is still worth living. Expecting victims to enter a lengthy and expensive quasi-judicial process in the hopes that they may receive compensation is a demonstrable failure of this bill. The Government can ensure victims and survivors receive support by extending the scope of ACC to cover mental injury suffered as a result of conversion therapy.
The bill creates two criminal offences. Section 8 protects people under 18 and does not require the victim to suffer any harm for prosecution. Section 9 covers all ages and requires the victim to suffer serious harm. Anyone aged 18 or above can only hold their practitioner accountable if they can prove they've suffered serious harm. The bill defines serious harm as any physical, psychological or emotional harm that seriously and detrimentally affects the individual. Serious harm in criminal law means grievous bodily harm.
Queer people who've experienced conversion therapy are twice as likely to attempt suicide as queer people who haven't experienced conversion therapy, but this won't be captured by serious harm. Section 9 will become redundant because victims won't meet the unattainable serious harm requirement, leaving people aged 18 and above with no protection.
This is a glaring loophole in the bill. It means that people can practise conversion therapy on an 18-year-old as long as they do not cause them serious harm. Section 8 should cover people of all ages.
The Labour party has created insurmountable barriers to a prosecution. Section 12 of the bill states that there will be no prosecutions without the Attorney General's consent. The police can prosecute a case of murder that carries a penalty of life imprisonment without the Attorney General's consent.
Section 12 is profoundly concerning. The Attorney General is a member of the Government of the day and has absolute power to decide whether a case will be prosecuted. The National party has been clear that it would not criminalise people from stopping trans children from being trans. An attorney general of a National government can refuse to prosecute all cases under this ban and immediately render it useless. Section 12 should be removed.
The Labour party hold a majority at every stage of the process. Whatever bill we receive after the select committee will be what the Labour party decide to put in front of us. There is nothing the National or ACT parties can do to stop a ban. The Labour party must alleviate the collective suffering of queer people. If they allow this torture to continue, they have failed queer people.
* Shaneel Lal was the 2020 Pacific Cooperation Foundation's Supreme Award Winner for Inclusion and is the founder of the Conversion Therapy Action Group, a group working to end conversion therapy in Aotearoa New Zealand. They are an executive board member of Rainbow Youth and the Auckland Pride Festival and a trustee of Adhikaar Aotearoa.