Family First NZ has released a legal opinion on the proposed law to ban ‘conversion therapy’ bill which says that the bill will have a ‘chilling effect’ on freedom of expression concerning gender issues, and will fail in its stated purpose of promoting respectful and open discussions regarding sexuality and gender.

The opinion by Grant Illingworth QC also warns that parental guidance and counselling could potentially be caught if expressed in words or conduct, that conversion “practice” could readily include teaching, counselling and praying for someone, and that there is a risk of serious disruption within religious communities including Muslim and Christian faiths which will be significant and substantial.

The opinion says that if enacted, “the Bill would undoubtedly restrict personal autonomy”, and that “At the root of many of the rights and freedoms affirmed by the Bill of Rights Act is the ability of individuals to decide their own destiny without interference from the state, except as provided by law”. It rightly questions whether the proposed restriction is “demonstrably justified in a free and democratic society”.

With regards to a parent who tells their child that they cannot go on puberty blockers, wear chest binders or identity as the opposite sex, the opinion says that “the definition of ‘conversion practice’ is a debatable issue. But if providing parental guidance is a “practice” then the conduct outlined above would fall within the proposed restrictions and would amount to a criminal offence in relation to a person under 18 years of age, if the Bill is enacted into law.”

The Opinion also says:

• The effect of the bill “could represent a significant interference with ‘the right to manifest a 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’ affirmed by section 15 of the New Zealand Bill of Rights Act 1990”.
• “If prayer and counselling were to be classified as a ‘practice’ then the conduct of the religious leader or counsellor could fall within the scope of sections 8 or 9.”
• In a warning to religious leaders, ”it would be very easy for a preacher or teacher to overstep the mark, inadvertently, in relation to subject-matter of this kind…” (for example “Exhorting others to “repent of their sins”) …It would also be very easy for a person hearing such preaching or teaching to take the issue personally and to complain that the message was targeted at them. The risk of serious disruption within religious communities is therefore significant and substantial.”
• If a person wanted to align their sexuality or gender with the teachings and values of their faith, and sought help to do so from a teacher, counsellor or church pastor, “the person would be inviting the teacher, counsellor or church pastor to engage in a conversion practice which would be unlawful and could be criminal in some circumstances.”
• The opinion notes that “[I]t is worth recalling that one of the stated purposes of the proposed legislation is ‘to promote respectful and open discussions regarding sexuality and gender.’ If enacted into law, and even if a narrow interpretation of ‘conversion practices’ were to be accepted by the courts, the proposed legislation would almost certainly have a profound ‘chilling effect’ on freedom of expression concerning gender issues. Some people would be afraid to talk about the subject, or to advance strong opinions, for fear of being prosecuted or being subjected to a claim for damages under the Human Rights Act 1993. The idea that the proposed legislation would promote respectful and open discussions regarding sexuality is therefore difficult to accept, despite the limited exemptions in clause 5(2).”

The new legal opinion is consistent with legal advice that the Government has already received. The Ministry of Justice’s own analysis of the proposed law sent a clear warning: “It would be a criminal offence for parents, or other members of a family, to attempt to change or suppress the sexual orientation, gender identity or expression of children within the family”. Crown Law advice also refers to this “chilling” effect on expressions of opinion within families & whanau.

Official Information Act requests show that in 2018, then-Associate Minister of Health and Green MP Julie Anne Genter was advised by the Ministry of Health: “Due to the current protections that are in place, and the need to balance the rights of people with preventing harm, it is not recommended that a legislative ban of conversion therapy would be the most effective way to reduce the harm it causes…” The ministerial advice also notes that people have the freedom to willingly engage in the practice, that protections already exist in the health sector, and that a ban “could be inconsistent” with the NZ Bill of Rights Act 1990 “which provides for rights of assembly, free speech and rights to freedom of religion”.

In 2019, the Justice Select Committee, consisting of MPs from Labour and National, considered two petitions wanting to ban ‘conversion therapy’. In their report, they rightly declined to support such a ban, stating: “The Bill of Rights Act affirms, protects, and promotes human rights and fundamental freedoms in New Zealand. It allows all New Zealanders to live free from discrimination, including in relation to their sexual orientation. New Zealanders also have the right to freedom of religion. This protects those who offer and seek out conversion therapy because of their religious views.”

A nationwide poll at the beginning of this year also found that there is widespread public opposition to the legal effects of a ‘conversion therapy’ ban. 81% of respondents said they believed a person should be able to seek counselling support to determine their own direction if they are unsure about their sexual orientation or gender identity. 81% said that it should not be a crime for a parent to affirm to their daughter that she’s a girl or to their son that he’s a boy. And just 16% think it should be a crime for a faith leader to teach a Biblical or Koran view of sexuality, and of gender being determined at birth. In all three questions, there was no significance difference in responses based on gender, age, area, socio-economic factors or political party support.

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