Navigating laws banning ‘conversion practices’

Queensland, the ACT and Victoria have passed laws banning ‘conversion practices’ aimed at changing or suppressing a person’s sexual orientation or gender identity.

This is an important topic for doctors due to their historical role in conversion practices and the negative mental health impacts associated with these practices. Doctors should be reassured the laws don’t prevent them supporting and counselling patients on gender identity issues, using evidence-based practices that comply with accepted professional practice.

In view of the changes, we provide some guidance to ensure doctors can offer care to the LGBTQI+ community while complying with the legislation.

Defining conversion practices

Conversion practices aim to change the sexual orientation or gender identity of lesbian, gay, bisexual, trans and gender diverse people to be heterosexual and cisgender. Practices include psychotherapy, clinical and pharmaceutical interventions, self-help, counselling, and faith-based interventions. In extreme cases, forced medications, electroconvulsive therapy, beatings and rape have been used.

The use of conversion practices by some health professionals, such as psychoanalytic, pharmacological or ‘aversion’ therapies prompted explicit inclusion of healthcare-related practices in the legislation.

Queensland legislation snapshot

In August 2020, Queensland was the first state to pass legislation prohibiting the provision of conversion therapy by health service providers, based on evidence suggesting it is harmful and delivers no benefits.

It is a criminal offence for health service providers to provide conversion therapy, with a penalty of up to 12 months’ imprisonment or a $13,345 fine. If conversion therapy is performed on a vulnerable person (i.e. a child or person with impaired capacity), doctors can face up to an 18-month jail term or $20,017 fine.

Examples of services doctors can offer which are not prohibited, include:

• Exploring psychosocial factors with a person or probing a person’s experience of sexual orientation or gender identity.
• Providing a speech pathology or gender transition service for a trans-gender or gender-diverse person wishing to alter the person’s voice and communication to better align with the person’s gender identity.
• Advising a person about the potential side-effects of sex-hormonal drugs or the risks of having, or not having, surgical procedures.

ACT legislation snapshot

The ACT government also passed legislation in August 2020, banning conversion practices defined as “a treatment or other practice the purpose, or purported purpose, of which is to change a person’s sexuality or gender identity.”

Criminal penalties apply when conversion practices are used on “protected persons” (children or people with a mental incapacity). The maximum penalty is 12 months’ imprisonment or a $24,000 fine, or both.

Practices including diagnosis and assessment of a person with gender dysphoria or gender non-conforming behaviour or identity, and support for a person with social adjustments related to gender dysphoria or for a person exploring and expressing their sexuality, are not banned.

Victorian legislation snapshot

In February 2021, Victoria was the latest state to introduce legislation making the use of conversion practices illegal.

People who intentionally engage in a change or suppression practice and cause serious injury, can face up to a 10-year jail term or a fine.

Psychiatrists should note the legislation specifically references, “providing a psychiatry or psychotherapy consultation, treatment or therapy” as being covered by the Act. However, doctors are not precluded from assisting patients who are considering undergoing a gender transition or assisting people to express their gender identity. Providing acceptance, support or understanding of a person, or facilitating a person’s coping skills, social support or identity exploration and development, is also appropriate.

The RANZCP’s position statement outlines the role of psychiatrists in recognising and addressing the mental health needs of people experiencing gender dysphoria/gender incongruence and some of the clinical approaches that you should consider.

Importantly, each of the state’s legislative frameworks ensure doctors can provide treatment to their patients in accordance with their “legal or professional obligations,” i.e. treatment that complies with peer professional practice.

Other states and territories

South Australia, Tasmania, Western Australian, New South Wales and the Northern Territory do not currently have specific legislation in place banning conversion practices. Doctors in these states and territories should comply with the Health Practitioner Regulation National Law and be aware that engaging in conversion practices could breach their professional codes and standards.

Key take-aways

• It’s important for doctors to understand how the relevant state legislation regulates their practice in the context of LGBTQI+ patients.
• This may include managing a patient’s gender transition or mental health care of patients in transition. Doctors may also care for patients who are distressed by issues surrounding sexuality and gender identity.
• Ideally, the medico-legal issues should be managed with sensitive and supportive discussions with the patient, and a commitment to evidence-based practice, as well as good documentation.
• Using the scenario below, we offer some suggestions on communicating with patients in this context, and ensuring your treatment is medico-legally sound.

Scenario

An 18-year-old male attends a GP appointment. The patient describes several years of feeling attracted to the same sex. This is causing distress due to his religious beliefs, and those of close family, that forbid any sexual orientation or behaviour that is not heterosexual. The patient feels torn between his sexual orientation and religious values. He asks what might help to manage these distressing thoughts about sexuality.

In this scenario, a doctor can provide care and support to enable the patient to understand their feelings about their sexuality. This support can be provided so the patient can explore and express their sexual orientation if they want to.

It may be helpful to advise the patient that the aim is not to change or suppress their identity, but to support them to understand and come to terms with their experience. It may also be necessary to explain that no intervention to change or suppress sexual orientation has been shown to be effective, and these interventions may be harmful.

Any patient discussions should be clearly documented in the medical record, along with the reasons why the doctor considered the treatment/discussions to be necessary. We recommend doctors document their approach as supportive and/or exploratory.

An evidence-based, supportive and carefully documented approach should help to protect doctors from any medico-legal issues and provide reassurance that their treatment is safe and appropriate.