Using the law to fight Conversion Therapy.

I was raised a Catholic and for a brief period of my life became a born again Christian. I left most of organised Christianity about the same time as I began identifying as bisexual when I hit university. I absorbed a bunch of unhelpful attitudes about sexuality and gender from both the wider culture and the Christian organisations I was a part of growing up, including clearly homophobic messages, but I never went through any form of conversion therapy to get me to identify as straight or to be more unambiguously masculine. By the time my churches knew this was my situation I was already out the door.

I mention this so that you can, if you want, disregard the rest of this post on the Victorian Government’s “change and suppression bill”. You might prefer to listen to the direct voices of survivors of conversion therapy, some of whom have been involved in developing this bill. I have felt conflicted in writing this. I feel I have a responsibility to comment which I explain at the end of this piece. I also feel I have a responsibility to acknowledge my lack of direct experience of conversion strategies and my lack of expertise in truly knowing their current reach. I hope I am doing the right thing in publishing this. 

The proposed Victorian law will penalise, with up to 10 years in prison, attempts to change or suppress peoples sexuality or gender identity, that result in injury. Injury is not defined in the legislation. It is fair to predict that injury is meant to include psychological injury as well as physical. It does not seem to matter if the injury was unforeseen or unintended and it definitely doesn’t matter if the victim was an adult and consenting participant. Certainly the meaning of attempt is intended to be as broad as possible and from the statement issued by survivors may even include excluding someone from a faith community, as well as informal prayer ministries and publishing “stories of supposed ‘successful’ instances of conversion”. The broadest definition of the law can’t be dismissed as impossible; that the bill will permit jailing any one who counsels someone against same-sex relationships if that person could say they suffered distress because of it, even if they actually sought out the counsel. It may be that this wont ever happen for less serious instances due to discretion at the prosecutor or judicial level but it remains within the scope of the law.

I want to to argue against a conflation that is happening with this bill. The Victorian Premier has called “suppression and change” practices bigoted, cruel and harmful. The victims of these programs know their harms first hand. What the government then goes on to also argue, with the support of survivors, is that people who practice conversion and suppression practices should be intimidated to stop with the threat of legal penalties. I want to state that, if suppression and changes strategies are as broadly defined as they seem to be, one does not follow the other. I consider, for example, a prayer circle held over a person to ask God to make them less gay, as a practice that is just wrong for multiple reasons (wrong about God and wrong about sexuality) and I want to end this practice, but I don't want to threaten the people organising or participating in this event with jail time. Because this is primarily a philosophy blog I am going to talk about this in terms of some general principles.

Life presents us with many things that will harm us. Some are performed by others out of malice or error. It is reasonable to think that the law is there to deter these harmful acts by making them crimes so that we can all have our best life. The opposing argument is that the law is simply there to reflect a universally true set of moral arrangements between people, even when those arrangements causes pain. For example, it is theft to take someone’s jacket out of their bin even if you are freezing according to the strict application of the law. The law’s primary function in this second view is to acknowledge our true rights and freedoms regardless of harms or benefits.

This classic liberal legal philosophy, that the law is simple a framework of rights unconcerned with outcomes, is just a lie. It chooses to forget the law exists between parties who are deeply unequal in power and who have historically been brought to be so unequal through obvious injustices. If you want to prosecute those historical injustices you will be told that would be too hard or cause too much harm. Likewise a robodebt for the rich who pay little tax is never as likely to be enacted as such a scheme for those on centrelink payments. You will see free speech advocates also prosecuting whistle blowers who expose corruption and pillorying anyone who criticises Anzac Day. In this and numerous other cases, the championing of rights and freedoms is unconcerned with outcomes right up until it impacts negatively on the powerful and their preferences. Then the same law makers are as pragmatic as possible. If the law was ever genuinely applied mercilessly across all classes it would be unlike anything we have ever seen.

I myself believe that the law has no exact job and we as a society might reasonably use it to achieve some things which another equally reasonable society might not use the law to do. There is no “pax-ratio” (peace by reason) here that tells us exactly what should be crimes and exactly where the boundaries of right to property or free speech lie. In saying this I reject the position of those who think the law must either always respect free speech or freedom of religion or the integrity of a person’s sexual orientation or the right to live as the gender of one's choice for that matter. In deciding what the law should do we must make choices about the society we want and the harms we are willing to inflict or overlook to create it. There are often competing values in play.

We can proceed by just imagining the world as we want it and then doing what we can to make it so. This was a legal philosophy I heard repeatedly from opponents to same sex marriage only recently. “Other groups are able to argue for the view of marriage they want so why shouldn’t Christians do the same.” is an actual quote from when I listened to a Bendigo Baptist panel on the same-sex marriage plebiscite. Likewise why not argue for chaplains in schools if you believe that Christians can bring a special something to the job, even if in practice this treads on norms about no religious discrimination in public sector employment. If you like the outcome that should be enough to pursue it and other sections of society can pursue their societal dreams too. It’s all part of a pluralist nightmare.

I say nightmare because in this scenario the only people restraining us from cultural totalitarianism are our opponents. We do not obligate ourselves to do so. We have seen such a cultural tyranny emerge in post ww2 western societies and queer people faced the pointy end of that stick. Jail time for being gay, murders of queer people overlooked, instant dismissal from employment and eviction from homes, loss of parenting rights, forced treatments, public hero worship of those who profess to have cured us…. Look to Poland and you can see it happening again. A few churches took a principled stand in their culturally dominant position and defended us. Others, along with all the lukewarm masses who follow whoever is in power, were happy to let disgust be the sole arbiter of the law. And queers disgusted them so why not use the law to eliminate us.

I want to address the queer movement in today's historical moment. I want us to consider what we are forming an alliance with in order to pursue the world we want. I don’t want us to step away from the hope we have. We should not be content that kids are being told they are broken in their sexualities. We should not be ok that God is being wielded as a weapon against queer people. But let’s notice that queer groups in Victoria are increasingly entering an alliance with government and state power. I don’t think anyone could look at the relationship between queer groups and the state and not think the state is the more powerful of the two but queer groups are obtaining certain victories even if they might eventually be pyrrhic ones. We see this in education and we see it in this change and suppression bill. The federal government is pretty much doing the same with conservative churches so I am not trying to make some argument about who holds more power here or who is willing to lie down with government more (it's still the churches). I am simply elevating our own activist strategy up for scrutiny.

I don’t think there is never a time for involving the state, the police, the judiciary and even prisons. If this legislation was about harms inflicted on people who did not consent or on children or if we were talking about people making false medical claims then I think it's much more justified to bring in the handcuffs. I don’t think though that prison is justified whenever engaging with adults we disagree with. We might even be disgusted by their homophobia and transphobia but that is not enough to lock them up. This is our cultural moment to show legislative restraint by restricting the scope of this legislation to cases where adult consent is not present.

It is also our time to repay those churches who historically defended us when they held cultural power over us. A defender is not an ally. They do not share causes with those they defend. They still want to win against those they defend in the argument they are having. A defender however refuses to concede their enemies humanity and rights. An example of a defender would be Catholic priest Father Paul Kelly who fought for the abolition of the gay panic defence in Queensland in 2008. I have no idea whether Kelly wants the same world I want in terms of queer issues but I feel confident in naming him as a defender and frankly a bit of a hero for his work. Less impressively, through the late 60’s and 70’s, several churches opposed the criminalization of homosexuality. In some cases these statements were qualified by reiterating that this would improve the chance of people obtaining treatment for their homosexuality. It was a long way from embracing their queer congregants and a queer agenda but they were limited defences of queer peoples basic humanity. 

I want Christians to rejoice in same sex relationships, to acknowledge their good fruit and pray for God’s blessing over them. I want them to listen and accept their transgender members insight and faith. I want congregants to stop listening to puffed up men who pretend to know God's will in ways that entrench their own authority. I want churches that shame and belittle those who challenge authority to empty. I would consider using the police, courts and the prison system to achieve only very limited ends in pursuing this goal however. That would include stopping treatments like electro shock therapy or therapies that lack adult consent. In other cases I would rather picket churches and disrupt services, or do the hard slow and frustrating work of conversation and relationship building, to elicit change. I think we need to step back from the suppression and change bill as it is proposed and rethink the long term strategy here in giving such a powerful role to the state to achieve our goals.

I come to this conclusion while acknowledging that a reasonable person may disagree with me. All laws trade off rights and freedoms to reduce harms. You may consider the conversion industry to be duplicitous and manipulative enough that a broad and harsh law is the only thing that will give its current victims any power. You may also not consider the rights of evangelical homophobes an issue that warrants your attention. There are many groups having their rights trashed by governments in Australia. The federal minister who signed off on Rio Tinto’s destruction of the Juukan Gorge caves is still in their job and the laws that permitted it are still unchanged. I could've written on that instead. I didn’t write this piece because what happens to Christians with a problem with homosexuality and transgender identity is my biggest concern, however. I wrote it because I have higher hopes for queer activism and my concern is with its direction.