The Conversion Practice Prohibition Act: what does it mean for counsellors, parents and teachers?

Guest post by Harriet. Further Notes from the CATA conference, the third post in a series about the Children, Adolescents and Gender – Impacts of transgender ideology conference hosted by the Child and Adolescent Therapists Association. Links supplied by author and editor.

During the select committee hearing of the Conversion Practice Prohibition Legislation Act concern was expressed that parents, counsellors, people of religious faith and teachers could be criminalized under the Act for not offering automatic affirmation of a person’s gender identity. The Act is now in effect.

Now that the dust has settled, Nicolette Levy QC and Annabel Markham, criminal barrister, give their take on what it all means.

The Act had unusual beginnings for a statute creating serious criminal offence. The bill was largely activist driven, by young Labour and the Greens who were joined by the young Nats. Labour pushed the Act through with haste, justifying this by claiming they were responding to “increasing public demand to ban conversion practices as soon as possible”. Yet there was little or no data on prevalence of conversion practices or efficacy of overseas models. Annabel noted other concerns about the Act including the “highly anomalous offence provisions”.

Section 3 of the Act states the purposes of the bill are:

• To recognise and prevent harm caused by conversion practices; and
• To promote respectful and open discussions regarding sexually and gender

Both laudable aims Nicolette Levy QC tells us.

Anyone can commence a prosecution for Conversion Therapy and they are not bound by the prosecution guidelines. Nicolette thinks it’s likely in the current climate there will be a lot of complaints. However, the Attorney General (in practice the Solicitor General) will need to give their consent for the prosecution to go ahead. And the District Court, before it agrees to go ahead, may need to see the private prosecutors’ evidence in support of the prosecution. If there is insufficient evidence for filing then a trial may not go ahead.

It is likely the courts will require a high threshold to be satisfied as the provisions were not intended to capture low-level attempts to change or suppress.

Will the Act catch counsellors or parents who don’t offer automatic affirmation for a young person who declares a gender identity?

Nicolette Levy, QC’s opinion is that the Act will catch those who intend that their actions will have the result in the change or suppression of a person’s gender identity or expression. An intention to change means that you have to want your actions to have that particular effect.

Counsellors, teachers and parents who, after careful consideration of the arguments or different approaches to gender identity, choose to practice “watchful waiting” or promote gender exploration over time rather than affirmative acceptance, are unlikely to be regarded as using a conversion practice.

The Act does not create, or seek to enforce, a professional or personal obligation to affirm a person asserting they are transgender.

So, if a mother continues to refer to her daughter as Harriet after the child insists that she be called Henry, then the court would need to make a finding about the mother’s intention. If the intention of the parent was to give the child time to develop and explore her gender identity, then the court would be unlikely to find an intent to change or suppress her daughters gender identity. However, if a mother removed all Harriet’s “boy” toys, clothes and activity options believing this strategy would “cure” her of her insistence that she was a boy, then the court could well find the mother’s intention was to suppress her gender identity.

Nicolette believes that the Courts will protect counselling, teaching and parenting practices that reflect genuine concerns about the affirmation approach leading to medical and social transition, and promote waiting or exploration as alternatives.

Arguably counsellors are not health professionals because they are not subject to the Health Practitioners Competence Assurance Act (2003). But if the counsellor is exercising reasonable professional judgement and complying with all legal, professional and ethical standards when treating a client, the likelihood of a successful prosecution is low.

The NZ Psychologists Board dictates the need for affirmation of sex, sexuality and gender diversity within psychological practices and other professional associations appear to have a high degree of support for this as well. Yet there are other models of treatment for gender dysphoric teens such as the gender exploration model. And in the UK the Cass report is calling into question the rush to affirm gender identity.

Stella O’Malley outlined in her conference key note, the problems with the affirmation model of treatment for gender dysphoria. It seems that counsellors in New Zealand will be able to offer the new model of treatment, gender exploratory therapy, under the law (Nicolette Levy recommends careful documentation of your assessment and reasons for choosing the model you feel is best for your client and also being explicit with clients about how you intend to work with their presenting issues, including that you will not be affirming, if that is your decision.).

The law is likely on the side of counsellors who reject the affirmation model if they do so for considered professional reasons. It seems that some of the professional bodies haven’t yet caught up with the problems of automatic affirmation.