Submission on the Conversion Practices Prohibition Legislation Bill
We support the intent of this Bill, however as it stands we believe it does not fulfill it’s intent to protect transgender populations from conversion practices. The following are our main (though not only) concerns.
Every year we hear the personal stories of a great number of transgender people who have experienced conversion practices in healthcare settings.
They are offered anti-depressants as an alternative to being trans, or told that are simply confused and need counseling, while being referred to a counselor who doesn’t “believe in” being transgender.
Conversion Practices Carried Out in a Healthcare Setting
The Bill states that:
The purpose of this Act is to—
1. prevent harm caused by conversion practices; and 2. promote respectful and open discussions regarding sexuality and gender.
However, in its current state it defines conversion practices as not including conversion practices which are carried out in a healthcare setting. This allows healthcare providers to continue to engage in conversion practices with vulnerable patients, and effectively excludes transgender and intersex people from protection in the setting where they are most likely to experience conversion practices.
In clause 5, the Bill states:
Meaning of conversion practice
(1) In this Act, conversion practice means any practice that—
a) is directed towards an individual because of the individual’s sexual orientation, gender identity, or gender expression; and b) is performed with the intention of changing or suppressing the individual’s sexual orientation, gender identity, or gender expression.
(2) However, conversion practice does not include—
a) a health service provided by a health practitioner in accordance with the practitioner’s scope of practice; or b) assisting an individual who is undergoing, or considering undergoing, a gender transition; or c) assisting an individual to express their gender identity; or d) providing acceptance, support, or understanding of an individual; or e) facilitating an individual’s coping skills, development, or identity exploration, or facilitating social support for the individual; or f) 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.
The Bill compares this to similar legislation in Australia, however, all the similar exemptions in the Victoria Act are prefaced by the requirement that the practice “is supportive of or affirms a person’s gender identity or sexual orientation”.
This exemption for conversion practices in healthcare settings is not something that was suggested in the Regulatory Impact Assessment (RIA). The RIA only suggested that conversion practices are not common in healthcare settings. While this may be true for gay, lesbian, bisexual, and other sexuality minorities, it is complely contradictory to the available evidence on transgender and intersex populations, including the evidence cited by the RIA.
We need to ensure that this error is not carried through into the legislation and compounded.
Conversion Practices in Healthcare Settings Target Transgender People
The Counting Ourselves (2019) transgender research report found that more than one in six of all participants (17%) reported that a professional, “such as a psychiatrist, psychologist or counsellor”, had tried to stop them being trans or non-binary. A further 12% were not sure if this had happened to them. (p.38).
Researchers asked (p.37) “Have you had any of these things ever happen to you, as a trans or non-binary person, when you were trying to access healthcare? You were discouraged from exploring your gender…” This means that while trying to access healthcare, these transgender people were told that they should stop being transgender. This is conversion therapy, in a healthcare setting.
16% of trans people said yes, they had experienced this. 4% said they had experienced this in the last year. This means 16 out of every 100 transgender people face routine conversion therapy from doctors, therapists, and other professionals in a healthcare setting.
While healthcare practitioners must be able to make medical decisions in the best interest of their patients, that is not what conversion practices are. This Bill should not include exceptions for carrying out conversion practices in healthcare settings.
If we acknowledge that conversion practices are harmful and we want to protect rainbow people from them, we should not exclude transgender people from these protections by allowing their abuse in healthcare settings.
Nothing raised in the Regulatory Impact Assessment suggests that including conversion practices done by healthcare practitioners in the definition of conversion practices would create any issues or further risks.
Conversion Practices in Healthcare Settings Target Diverse Sex Characteristics
The exclusion from the legislation of conversion practices that are directed/performed on the basis of sex characteristics is also unacceptable. While sexual orientation, gender identity, and gender expression are currently protected in the wording of the Bill, the Bill as it stands would allow conversion practices that target people on the basis of their variations of sex characteristics, or that aim to change their sex characteristics. This affects almost all transgender people – whose sex characteristics are not typically associated with people of their gender.
Historically, conversion practices have almost always been targeted at people based on perceived mismatches between their sex characteristics and other aspects of their sexuality and gender. Sex characteristics have often been a specific target of coercive control. It is important that the definition of conversion practices in this Bill encompasses all types of conversion therapy.
It is not necessary to use a narrow framework here: most strong definitions of conversion practices, and indeed most human rights frameworks that intend to protect rainbow communities, such as the Yogyarkata Principles plus 10, and the PRISM report by the Human Rights Commission, do not exclude sex characteristics. This is especially relevant because the Conversion Practices Prohibition Legislation Bill includes an amendment to the Human Rights Act, and therefore the definition of conversion practices in that Act will be based on the language in this Bill, should it become an Act.
If conversion practices on the basis of sex characteristics are not prohibited by this Bill, these harmful practices will continue in Aotearoa.
Nothing raised in the Regulatory Impact Assessment suggests that it would create any risks or issues to include conversion practices on the basis of sex characteristics, or aimed at changing sex characteristics, in the definition of conversion practices.
What Needs to Change
The RIA identified a risk that conversion practitioners may adapt their practice to get around the legislation, while still performing conversion practices. In our professional opinion, this risk applies in healthcare settings. Therefore, it is imperative that the definition of “conversion practices” is robust.
Conversion practices in healthcare settings must be included in this definition, along with the explicit addition of conversion practices on the basis of “sex characteristics” alongside “sexual orientation, gender identity, or gender expression.”
The government has proposed changes to the Human Rights Act, aiming to protect groups from speech that incites hatred, and improve protections against discrimination.
They have invited submissions on this, which close August 6th 2021.
Unfortunately, as they chose to put these changes forward at the same time as the BDMRR Bill, and the Conversion Therapy Bill, we have had limited time on work on this. However, we’re publishing our submission here, and encourage you to submit on this if you haven’t already done so.
Click the “Proposed Changes” button to read the 6 changes they have proposed, and find out how to make a submission.
Gender Minorities Aotearoa is a nationwide transgender organisation in Aotearoa New Zealand. It is run by and for transgender people; including binary and non-binary, intersex, and irawhiti takatāpui. We operate within a kaupapa Māori public health framework and The Ottawa Charter (1986), with the aim to facilitate health and well-being for transgender populations, as defined by The World Health Organisation – complete physical, mental, emotional, spiritual, and social well-being.
We support the intent of the proposed changes.
We wish to comment on proposals 2, 5, and 6.
Proposal 2: Many who incite hatred do so behind a mask of respectability. We are concerned that the wording in proposal two, which replaces the current standard in the existing sections on racial disharmony, incitement, and racial harassment, of ‘hostility’, ‘ill-will’, ‘contempt’, and ‘ridicule,’ may significantly weaken the bill. We are worried that the replacement of these specific terms with a general standard of ‘hatred’ will place more of the burden of proof on the victims of incitement, hatred and harassment. We recommend maintaining prohibitions against inciting hostility, ill-will, contempt and ridicule, to ensure that groups who intend to incite these against protected groups would be accountable under this legal change.
Proposal 5: We strongly support making “incitement to discriminate” against the law. When wording this legislation, it must be considered that there is a great difference between – for example – encouraging a service discriminate against transgender people, and in contrast encouraging a venue not to host an anti-trans group which calls itself a womens group. It is important that transgender youth in particular are not criminalised for defending themselves against transphobic campaigns in this way. We want to make sure that the legislation cannot be misapplied in this way.
Proposal 6: We agree that the law should be more clear that the protected aspects of sex include gender identity, gender expression, sex characteristics, and intersex status.
In natural language, sex and gender are often understood interchangably, and we believe it is important that any law change reflects the intent to protect all of these aspects of sex equally.
Currently there are legal exceptions to provisions against sex based discrimination, where discrimination is legal under certain circumstances. We are concerned that trans people and intersex people will be included in these exceptions by default, and don’t want to see anti-transgender and anti-intersex discrimination enshrined in law.
This is especially important given that transgender people twice as likely to be forced to have sex against their will, (32% of trans people vs. 11% of women in the general population) and currently face discrimination in access to “counselling services around sexual matters or the prevention of violence,” with only 2% of these trans people being able to access a “rape or sexual abuse service” at the time of their abuse. Access to “counselling services around sexual matters or the prevention of violence” is currently one of the exceptions to the HRA’s application where discrimination on the basis of sex is currently allowed. (Counting Ourselves, p. 78, https://countingourselves.nz/wp-content/uploads/2020/01/Counting-Ourselves_Report-Dec-19-Online.pdf)
While we do not have similar statistics for the intersex population in this country, due to a lack of appropriate research, we know that there are similar issues to access to these kinds of services for intersex people, if not worse.
It is also important to note that currently under the HRA, discrimination on the basis of sex is currently allowed across a very wide range of areas, including examples such as “the provision of separate facilities for each sex on the ground of public decency,” where the old-fashioned language “each sex” de facto precludes the consideration of gender identities outside of the binary, and the consideration of bodies with diverse sex characteristics, including intersex people.
One option to avoid this is to take sex out of the many exceptions it is currently included in, another is to specify in the general qualification on exceptions that exceptions on the basis of sex do not allow for exclusion based on transgender or intersex status, and a third is to enshrine transgender and intersex non-discrimination in a separate category other than sex; so that it would not be included by default in the exceptions to legal protection.
We believe that there is some urgency in updating the law to protect vulnerable populations.
Counting Ourselves, a national report on transgender health, has just been released.
The survey had 1,178 participants, from all regions of Aotearoa, ranging from 14 to 83 years old.
The research, funded by the Health Research Council and with support from University of Waikato and Rule Foundation, found that trans people experience discrimination at more than double the rate of the general population, almost half of trans people had someone attempt to have sex with them against their will since age 13, and almost a third reported someone did have sex with them against their will since age 13. Participants reported high or very high levels of psychological distress at a rate nine times that of the general population. In the last 12 months, more than half had seriously considered suicide, and 12% had attempted suicide.
In the last 12 months, 13% of participants were asked unnecessary or invasive questions during a health visit
17% reported they had experienced reparative therapy (a professional had tried to stop them from being trans)[note: sometimes called “conversion therapy”]
36% avoided seeing a doctor to avoid being disrespected
Stigma, Discrimination, and Violence
67% had experienced discrimination at some point
44% had experienced discrimination in the last 12 months – this was more than double the rate for the general population (17%)
21% were bullied at school at least once a week, much higher than the general population (5%)
83% did not have the correct gender marker on their New Zealand birth certificate
32% reported someone had had sex with them against their will since they were 13
47% reported someone had attempted to have sex with them against their will since they were 13
Compared to the general population, participants were almost three times more likely to have put up with feeling cold (64%) and gone without fresh fruit or vegetables (51%) in order to reduce costs.
Distress and Suicide
71% reported high or very high psychological distress, compared with only 8% of the general population in Aotearoa New Zealand
56% had seriously thought about attempting suicide in the last 12 months
37% had attempted suicide at some point
12% had made a suicide attempt in the last 12 months
Participants who reported that someone had had sex with them against their will were twice as likely to have attempted suicide in the past year (18%) than participants who did not report this (9%)
Participants who had experienced discrimination for being trans or non-binary were twice as likely to have attempted suicide in the past year (16%) than participants who did not report this discrimination (8%)
Participants’ rate of cannabis use in the last year (38%) was more than three times higher than the general population (12%)
57% reported that most or all of their family supported them. Respondents supported by at least half of their family were almost half as likely to attempt suicide (9%).
62% were proud to be trans, 58% provided support to other trans people, and 56% felt connected with trans community.
GMA National Coordinator talks feminism, the Green party magazine, and anti-trans activism with 95bFM [listen here, 5 mins].
Main points transcribed, or summarised by the speaker:
1. ”it’s not Green policy that’s anti trans, it was one member out of thousands whose writing was unfortunately published without being snapped as anti trans. It’s important not to throw the baby out with the bathwater.
2. ”throughout history, lots of different groups of women have been treated as though they are a threat – we shouldn’t include them, we shouldn’t give them rights, whether that’s been racial… or disabled women… lots of minority women have been excluded from human rights, and really harmed as a direct result. Far from accidental, anti-trans activists are spreading a targeted campaign of misinformation against trans women, which has really harmful effects on the lives of all trans people.
3. ”Quite often, anti-trans activists try to talk about ”biological sex” as though it has more scientific truth to it than gender has. But that’s sort of the opposite of what feminism says, which is that if sex [or gender] is a class, that’s about the way you’re treated, its about the way society perceives you. So when feminists says ”gender is a construct” or it’s socially constructed, they’re saying it’s something that’s created, based on how people perceive your gender and they therefore treat you – like a traffic light, it’s not a fake traffic light, they’re not pretend and make-believe, they’re constructed by humans, they have specific constructed meanings attached to a red light or a green light. [The constructed meanings are very real]. So when people see you as a trans woman, they’re not likely to treat you better than they would treat you if they just saw you as a woman and didn’t know you were trans. But they are likely to treat you with misogyny, if that is how they treat women. There is no scientific fact to sex that is different to or beyond the science of how gender works.
Note; the research quoted at the beginning of the interview doesn’t cover trans statistics as victims or survivors of sexual violence, but NZ research In Our Own Words shows that trans women experience sexual violence at a rate of 1 in every 2.
Department of Internal Affairs Minister Tracey Martin has established a working group to advise on improving the process fro updating the gender marker on one’s birth certificate under the current legislation.
”The group will include representatives of the transgender and intersex community as well as medical and legal experts with experience in transgender issues. Kate Scarlet, a lawyer with substantial expertise in the process for changing registered sex, will chair the group. Other members are Jack Byrne, Mani Mitchell, Georgina Beyer, Jeannie Oliphant, Fleur Fitzsimons and Ahi Wi-Hongi.
“They will meet from August to December 2019 and produce recommendations to me early next year,” the Minister says.
We are not able to go into any specifics regarding the working group, so all inquiries must be sent to the Minister’s office. You can read the the press release from Department of Internal Affairs Minister Tracey Martin by clicking here.
DIA also announced a waiver on fees for updating the gender marker on birth certificates.