Practices seeking to change or suppress a person’s sexual orientation or gender identity (conversion practices) have been banned in Victoria following the passing of the Change or Suppression (Conversion) Practices Prohibition Act. The Act will come into effect on February 2022.
Some schools have sought our advice regarding religious education programs and whether they may be able to rely on religious exceptions which exist in anti-discrimination law in Victoria.
While the new Act does not ban religious education, schools need to be aware of how they should frame discussions about religion to avoid being potentially caught by the Act.
Alongside the Act, the Equal Opportunity Act 2010 (Vic) (EO Act) continues to prohibit schools from engaging in direct and indirect discrimination in education, including on the basis of gender identity and sexual orientation, unless an exception applies. It is not easy or straightforward for religious schools to rely on the exceptions in the EO Act, which are interpreted narrowly, so this should not be assumed. Importantly, in any event, schools are unable to rely on the religious exception under the EO Act as a defence to an allegation that it has engaged in a change or suppression practice.
The new law:
- introduces a general prohibition on change or suppression practices;
- makes it an offence for a person or organisation to:
- intentionally engage in a change or suppression practice (or practices) if that practice (one event or cumulatively) negligently causes injury and the person or organisation is negligent as to whether the practice will cause injury;
- take someone from Victoria or arrange for them to be taken from Victoria for the purposes of a change or suppression practice (or practices), if that practice (one event or cumulatively) causes injury and the person or organisation is negligent as to whether the practice will cause injury;
- advertise a change or suppression practice; and
- empowers the Victorian Equal Opportunity and Human Rights Commission (Commission) to:
- receive and respond to reports about change or suppression practices from any member of the community;
- conduct investigations into change or suppression practices; and
- direct a person or organisation to take, or refrain from taking, certain actions, to comply with the Act; and
- requires the Commission to establish information and education programs in relation to change or suppression practices.
Penalties apply under the new law – up to ten years’ jail or $10,000 for individuals or up to $50,000 for organisations.
What is a change or suppression practice?
A change or suppression practice is a practice or conduct:
- directed towards a person;
- on the basis of the person’s sexual orientation or gender identity; and
- for the purposes of changing or suppressing or inducing the individual to change or suppress that identity.
Change or suppression practices are prohibited regardless of whether the person has requested or given consent to the practice or conduct.
A change or suppression practice includes but is not limited to:
- psychiatry or psychotherapy treatment (or similar);
- religious practices, including prayer-based practices, deliverance practices or exorcisms ;and
- giving a person a referral for the purposes of a change or suppression practice being directed towards the person.
The Explanatory Memorandum released with the Act notes that the new law is “intended to capture a broad range of conduct, including, informal practices, such as conversations with a community leader that encourage change or suppression of sexual orientation or gender identity, and more formal practices, such as behaviour change programs and residential camps.”
What is allowed?
A practice is not a change or suppression practice if it is supportive of or affirms a person’s gender identity or sexual orientation. The Act expressly confirms that the following are not change or suppression practices:
- assisting a person undergoing or considering undergoing a gender transition;
- assisting a person to express their gender identity;
- providing acceptance, support or understanding of a person; or
- facilitating a person’s coping skills, social support or identity exploration and development;
The Act also protects a practice that is (in the health service provider’s reasonable professional judgement), necessary to provide a health service or comply with the health service provider’s legal or professional obligations. This will not be a change or suppression practice under the new law.
What about religious education or general discussions about religious beliefs?
The Act was accompanied by a Statement of Compatibility (a requirement to confirm that a proposed law is compatible with the Victorian Charter of Human Rights). That Statement says:
Although broad, the definition has been carefully designed to exclude conduct that is not directed at an individual, to reduce its impact on religious practices such as sermons. It also requires conduct be engaged in for the purpose of changing or suppression a person’s sexual orientation or gender identity (or inducing a person to change or suppress) to limit impact on general discussions of religious beliefs around sexual orientation or gender identity that aim to explain these beliefs and not change or suppress a person’s sexual orientation or gender identity. (emphasis added)
The legislation has been drafted to reduce or limit the impact on sermons and general discussions of religious beliefs. However, it remains possible that a sermon or discussion about religious belief could contravene the new law if it is found to be directed at an individual and to have a purpose of changing or suppressing the person’s sexual orientation or gender identity.
What about the exceptions for religious schools?
If a school is able to rely on an exception in the EO Actfor religious schools, this may provide the school with a limited right to discriminate in enrolment in favour of students who are members of the school’s faith group, church or denomination (or on the basis of race, sex, age or disability IF the school is established for such a specific group). In the faith context, these exceptions are typically only available to closed faith communities, whereas those with broader and more diverse families will struggle to meet the requirements, even if they are a religious school.
Even if a religious school can rely on the exception for religious schools, which may permit discrimination on the basis of particular attributes, this only applies to enrolment and faith. Importantly, it does not open the door to discrimination on other bases, and it does not dilute the obligations under the Act. That is, a school may be able to rely on an exception to only permit enrolment by students of its faith group, but it still cannot discriminate more broadly or undertake conversion or suppression practices without breaching the law.
What happens next?
The law will not come into effect until February 2022 to allow the Commission to prepare for implementation. During this period, the Commission will develop guidance on how it considers the law should be interpreted and applied.
Should you do anything in the meantime?
Schools should review their stance on inclusion and education regarding sexual orientation, gender identity and respectful relationships, as well as the teaching or expression of religious belief, to ensure that it is lawful and not directed at an individual..
The Commission will publish guidance, and we will keep you informed as this is communicated, along with the Commission’s plans on how it intends to exercise its new powers, appropriate preventative (or remedial) measures for organisations will become apparent.
How we can help
If you would like more information about your schools discrimination obligations or the impact of the change and suppression practices laws on your organisation, please do not hesitate to contact us.