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Submission: – Conversion Practices Prohibition Legislation Bill
About the New Zealand Council for Civil Liberties
- The New Zealand Council for Civil Liberties is a voluntary, not-for-profit organization which advocates to promote human rights and maintain civil liberties.
- We wish to make an oral submission before the Committee.
- The Council opposes conversion therapy practices due to the physical and psychological harms they cause.
- The Council supports this Bill. This submission makes recommendations for improvements.
Right to Health
- The Council agrees with the Human Rights Commission that people have a right to health. This right stems from Human Rights treaties including:
- Convention on the Elimination of all Forms of Racial Discrimination (CERD): Article 5(e)(iv) (1965)
- International Covenant on Economic, Social and Cultural Rights (ICESCR): Article 12 (1966)
- Convention on the Elimination of All Forms of Discrimination against Women (CEDAW): Articles 11(1)(f), 12 and 14 (2)(b) (1979)
- Convention on the Rights of the Child (UNCROC): Article 24 (1989)
- Convention on the Protection of the Rights of all Migrant Workers and Members of their Families (Migrant Workers Convention): Articles. 28, 43(e) and 45(c) (1990)
- Convention on the Rights of Persons with Disabilities (CRPD): Article 25(2006)
- The Council agrees with the Attorney General’s New Zealand Bill of Rights Act 1990 (NZBORA) Compliance Report. We agree that this bill limits our NZBORA freedoms of expression (section 14) and of religion (sections 13 and 15). The Council believes that this bill correctly balances these limitations against improvements to our right to health.
- The Council urges the Committee to act on the Human Rights Commission(p. 154) and UN Human Rights Council’s (128.64) calls to acknowledge our right to health in our laws.
- The Council agrees with the 2008 Human Rights Commission Inquiry To Be Who I Am Kia noho au ki tōku anō ao that while the the Human Rights Act 1993 (HRA) already protects transgender people from discrimination, HRA section 21(1) (a) “should be amended to state clearly that sex includes gender identity”.
Right not to be Tortured
- NZBORA Section 9 guarantees everyone the right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment.
- In 2020 the Independent Forensic Expert Group (IEFG) of the International Rehabilitation Council for Torture Victims (IRCT) reported that conversion therapy practices effectively constitute torture. They conclude that conversion therapy has no medical or scientific validity, and is likely to cause individuals significant or severe physical and mental pain and suffering with long-term harmful effects. The IEFG found that conversion therapy constitutes cruel, inhuman, or degrading treatment, and, depending on the severity of physical and mental pain and suffering inflicted, may amount to torture.(p 66 to 78)
- The long-term effect of many conversion therapies can be particularly harmful. Individuals often undergo therapy for several years. The long-term duration creates chronic stress causing a range of negative physical and psychological health conditions. Symptoms can be especially pronounced in children. At all ages, conversion therapy and its inevitable failure often exacerbate an individual’s feelings of inadequacy and shame. Survivors may believe they are unacceptable and a burden to their families.
- NZBORA section 13 guarantees everyone the right to freedom of thought, conscience, religion, and belief, including the right to adopt and hold opinions without interference; and section 15 the right to manifest that person’s religion or belief in worship, observance, practice, or teaching, either individually or in community with others, and either in public or in private. The Council supports the right of individuals to hold and to speak of their religious beliefs.
- The Council understands some faith community members and leaders are concerned that this Bill may restrict their ability to express their religious beliefs or tenets in respect of sexual orientation and gender issues. The Council does not believe that this right outweighs other people’s human rights. Freedom of religious beliefs does not include a right to coerce other people into sharing those beliefs.
- The Council agrees with the Ministry of Justice Regulatory Impact Assessment (RIA) that the bill does not restrict general expressions of religious beliefs or tenets which are directed towards a group rather than at an individual.
- In April 2021, the UN Special Rapporteur on Freedom of Religion or Belief said that “banning such discredited, ineffective, and unsafe practices that misguidedly try to change or suppress people’s sexual orientation and gender is not a violation of the right to freedom of religion or belief under international law”. He concluded “International human rights law is clear that the right to freedom of religion or belief does not limit the state’s obligation to protect the life, dignity, health and equality of LGBT+ persons.”
Remove Exemption for Health Practitioners
- Section 5(2)(a) of the bill currently allows health practitioners to offer conversion therapy treatments. 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.
- The RIA identified the risk that conversion practitioners might adapt how they approach their work to get around the legislation, while still performing conversion practices. That risk would also apply in healthcare settings.
- The RIA suggested that conversion practices are not common in healthcare settings. Transgender and intersex people disagree. The 2019 Waikato University Counting Ourselves transgender research report found that 17% of all participants reported that a professional, “such as a psychiatrist, psychologist or counsellor”, had tried to stop them being trans or non-binary. While trying to access healthcare, these transgender people were told that they should stop being transgender. This is conversion therapy in a healthcare setting.
- The Council does not agree with the exemption for health practitioners. In order to protect transgender and intersex patients facing conversion pressure in healthcare settings, either a conditional requirement could be included similar to that in the Victoria Act; or the exemption for healthcare practitioners should be removed.
Medical Treatment of Intersex Infants
- NZBORA recognises the right of a person not to be subjected to medical or scientific experimentation without consent (Section 10); and the right to refuse to undergo any medical treatment except in the case of involuntary commitment (Section 11). In 2020 the Human Rights Commission’s Prism report found the main human rights issue for intersex people was unwanted medical interventions.
- The RIA excluded from consideration in the Bill, “practices in relation to sex characteristics and surgical sex assignment of intersex children” suggesting that these are more appropriately addressed through the health system than the justice system. The Council finds this surprising given how similar the situation is to Female Genital Mutilation, which was outlawed by Section 204A Female Genital Mutilation of the Crimes Act 1961. The Select Committee considering the 2020 Crimes (Definition of Female Genital Mutilation) Amendment Bill heard submissions against Intersex Genital Mutilation and recommended to Parliament there be further work on the the issue of intersex genital mutilation.
- The Council believes “normalizing” genital surgery on intersex infants and children, and subsequent treatments, are the most extreme form of conversion therapy. The Council opposes surgery on intersex infants or children to meet social norms.
- The Council does not believe that parental consent to such surgery on their children has been an effective safeguard, especially as parents are often provided with the inaccurate medical advice that the surgery is necessary. The Council understands from feedback from intersex adults who survived such surgery, and from research, that there are difficulties with opposing, or subsequently accessing information about, procedures performed on them when young. Intersex organisations and advocates in Australia and Aotearoa New Zealand have called for the end to laws enabling surgical practices.
Additional Sentencing Options
- The Council does not believe that incarceration is an effective treatment. The Council believes that prisons should be a tool of last resort and should only be available as a sentencing option for the most serious crimes.
- The Council asks that non-custodial sentencing options be added to the Bill, and that custodial sentences be reserved for repeat offenders causing severe harm.
- The Council believes that the penalties in section 101 of the Health Practitioners Competence Assurance Act 2003 are more suitable when the offender is a professional health practitioner.
- The New Zealand Council of Civil Liberties recommends that the Conversion Therapy Practices Bill be passed with the following amendments:
- That gender assignment surgery on infants be criminalised either by adding it as a new section 5(1)(c), or by amending Section 204A of the Crimes Act 1961 to add Intersex to the Female Genital Mutilation clause.
- That section 5(2)(a) exemption be struck from the bill so that health practitioners are not permitted to do harm.
- That non custodial sentencing options be added to the bill.
- That this bill be added to sections 67 and 100 of the Health Practitioners Competence Assurance Act 2003 so that offenders who are health practitioners can be sanctioned by its processes when appropriate.