Is Sanity Returning to the Australian Gender Debate?
There have been numerous incidents of vociferous trans activism in Tasmania, yet it was still possible to pass sensible legislation.
“Draft bill to ban gay conversion practices in Tasmania criticised by advocates for having too many loopholes,” declared an ABC News headline on 13 December, the day that draft legislation to ban conversion therapy was published in that state. What these “advocates” are criticizing is, in fact, good news for those of us who have been waiting for cooler, saner views to prevail in the highly politicized debate over sex and gender identity here in Australia.
Tasmania is a large island off Australia’s south-east coast, famous for the Tasmanian Devil, Hannah Gadsby, and for being the butt of other Australians’ jokes about inbreeding. In gender-critical circles, it is also notorious for being the first Australian state to introduce self-identification for legal sex, including the option of not registering any legal sex at all.
In what appeared to be a race to the bottom among identity-obsessed leftists, my home state of Victoria followed Tasmania’s lead in introducing self-identification for legal sex, and then—not to be outdone by Tasmania—proposed both conversion therapy and vilification legislation as well. Tasmania quickly followed suit. All three pieces of legislation have been presented as crucial to the protection of transgender rights.
When it comes to self-identification of legal sex, Australia’s process differs from the better-known procedure favoured by the UK. The UK offers a Gender Recognition Certificate, which makes it possible—at least in principle—to track both a person’s biological sex and their legal gender. Australia, by contrast, now allows people to directly change their legal sex on their birth certificates (it was already possible to change one’s legal sex status on other official documents, including driver’s licences and passports).
Victoria’s proposed vilification legislation aims to expand the list of protected attributes from race and religion only to include gender identity, among other things. Current anti-vilification provisions protect people from “conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of” them on the grounds of their race or religious beliefs or activities. The original bill met with opposition and failed, but the matter went to parliamentary sub-committee and new draft legislation is expected this year.
All three pieces of legislation have serious implications. Here, I’d like to focus on conversion therapy legislation, which has passed in Victoria and has been under consideration in Tasmania for the past several years.
Conversion therapy legislation aims to prohibit attempts to change or suppress a person’s sexual orientation or gender identity. (Such attempts have been better documented in cases of sexual orientation, but multiple countries have since proposed new legislation that adds the category of gender identity.)
Victoria has the most draconian version of this legislation in Australia, and perhaps the world. There are versions of the legislation in Queensland and in the Australian Capital Territory, but in Queensland restrictions apply only to health service providers (with some exceptions), and in the Australian Capital Territory, restrictions apply only when clients/patients are protected persons (i.e., children or people with impaired ability to make decisions about their own health or welfare). In Queensland, conversion practices are punishable by a fine of up to around $22,000 or 18 months in jail; in the Australian Capital Territory, the maximum penalties are a fine of around $28,000, or 12 months in jail, or both. In Victoria, on the other hand, restrictions apply to almost everyone—anyone can be considered a perpetrator or a victim—and the maximum punishments are 10 years in prison or a fine of around $222,000. (All amounts are in Australian dollars.)
Given that Tasmania started this and Victoria two-upped them, some of us feared that Tasmania’s conversion therapy legislation would be especially harsh. The stakes here are very high. Those who believe in innate and immutable gender identity are likely to view a reluctance to affirm someone’s gender as a “change or suppression practice.” Those who don’t believe in innate and immutable gender identity are likely to view the same approach as protecting a child—who might be gender non-conforming, gay, autistic, or depressed—from an experimental medical and surgical pathway that might result in loss of sexual function and infertility, among other things. The empirical evidence necessary to settle that disagreement is not yet available. (There is considerable literature on gender dysphoria but not on the much broader phenomenon of gender identity).
The Tasmanian Law Reform Institute produced an issues papers in 2020 and a final report in 2022 (see drop-down menu here under “Sexual orientation and gender identity (SOGI) Conversion Practices”). They undertook a literature review to look at “the impacts of SOGI conversion practices on people who are subjected to them.” Of the 35 papers they considered, only two had anything to say about gender identity, and the conclusion of one of them—itself a study of the literature on conversion therapy for transgender people—was “We found limited evidence in the research literature of the use of conversion therapies that aimed solely at suppressing or modifying what was considered by the therapist as abnormal gender identity.” Nonetheless, the state went ahead with including both sexual orientation and gender identity in the draft legislation. (For an overview of the issues paper’s literature review, see this video. There’s also a more detailed discussion in this draft paper, which will soon be updated to the final version).
Tasmania’s draft legislation is open for consultation until 13 February. As the ABC reported, while the law “would make it a criminal offence to ‘attempt to change the sexual orientation or gender identity’ of a person in a way that causes physical or mental harm to the recipient,” it would also “allow a defence if the person subjected to the practice was an adult, consented to it and understood that the practice could cause physical or mental harm.” The draft apparently elicited “a furious response from Equality Tasmania spokesperson Rodney Croome,” who complained that the “consent” proviso would allow conversion practices to continue.
The Victoria state legislation against conversion therapy is paternalistic. It makes it impossible for consenting adults to seek third-party support in choosing to preserve a heterosexual marriage or honour a faith, for example, without putting those third parties at risk of criminal punishment. The Tasmanian legislation, on the other hand, leaves adults free to make such decisions for themselves—both when seeking and when providing support. It strikes a better balance between religious freedom, on the one hand, and the expressed support for minority sexual orientations and atypical gender identities provided by conversion therapy bills.
Peter Gajdics
Most importantly, the Tasmanian legislation does not mandate an “affirmation-only” approach to gender identity, as the Victorian legislation does. One of the main purposes of the Victorian legislation is “to denounce and prohibit change or suppression practices.” It exempts from punishment any practice that is “supportive of or affirms a person’s gender identity,” or that provides “acceptance, support or understanding of a person.” The implication is that if you’re not supporting and affirming, you might be changing or suppressing, and may therefore fall foul of the law.
The Tasmanian legislation, on the contrary, states explicitly:
For the avoidance of doubt, a practice that amounts to no more than the expression of an opinion, idea or belief by a person, including a statement of religious principle or the provision of parental guidance, is not a conversion practice for the purposes of this Division.
Tasmania’s maximum punishments are also more reasonable than Victoria’s. They are comparable with those mandated by Queensland and the Australian Capital Territory: a fine of roughly $19,500, or 6 months in jail, or both.
There have been numerous incidents of vociferous trans activism in Tasmania, yet despite that political climate, it was still possible to pass sensible legislation. There may be hope for the rest of Australia yet—and even for my home state.
