Clause 3 of the bill states the purpose of the legislation. That is to prevent harm caused by conversion practices, and to promote respectful and open discussions regarding sexuality and gender.

We consider that it is important for the purpose to explicitly acknowledge that conversion practices are inherently harmful. Accordingly, we recommend that clause 3 be amended to include a reference to recognising the harm caused by conversion practices.

Clause 4 provides definitions for terms used throughout the bill including “health practitioner”, “health service”, “scope of practice”, and “serious harm”.

“Serious harm” would be defined as “in relation to an individual … any physical, psychological, or emotional harm that seriously and detrimentally affects the health, safety, or welfare of the individual”. This definition relates to the new offence that would be created by clause 9, where a conversion practice had caused serious harm to a victim.

We consider that the definition of “serious harm” does not need to contain both the words “detrimentally” and “seriously”. We do not believe that “detrimentally” would provide further clarity for people interpreting the meaning of “serious harm”. The word “seriously” already describes the effect on a person’s health, safety, or welfare. Accordingly, we recommend that clause 4 be amended to remove the word “detrimentally” from the definition of “serious harm”.

Clause 5 provides a definition for “conversion practice”. Subclause (1) states that a conversion practice means any practice that:

• is directed towards an individual because of their sexual orientation, gender identity, or gender expression; and

• is performed with the intention of changing or suppressing the individual person’s sexual orientation, gender identity, or gender expression.

Subclause (2) provides a list of actions that would not be considered to be a conversion practice. It includes:

• a health service provided by a health practitioner in accordance with the practitioner’s scope of practice (clause 5(2)(a))

• assisting an individual who is undergoing, or considering undergoing, a gender transition (clause 5(2)(b))

• assisting an individual to express their gender identity (clause 5(2)(c))

• providing acceptance, support, or understanding of an individual (clause 5(2)(d))

• facilitating an individual’s coping skills, development, or identity exploration, or facilitating social support for the individual (clause 5(2)(e))

• the expression only of a religious principle or belief made to an individual that is not intended to change or suppress the individual’s sexual orientation, gender identity, or gender expression (clause 5(2)(f)).

Many submitters supported the bill’s inclusion of “gender identity” and “gender expression” in the definition of conversion practices in clause 5. They said that this helped to ensure that the bill reflected current best practice for working with the rainbow population in New Zealand.

Some submitters did not agree with this as they believed it was inappropriate to conflate gender with sexual orientation. Some of these submitters believed that the bill contradicted itself by supporting affirmative medication and practices such as the use of puberty blockers. They suggested that this was an example of a dangerous conversion practice.

We disagree that gender-affirming care or supporting a gender transition could be classified as conversion practices. The bill provides that one of the elements of a conversion practice is that it is performed with the intent to suppress or deny someone’s identity. We note that the bill would not amend legislation around decisions concerning the healthcare of children, including the prescription of puberty blockers.

Some submitters told us that clause 5 would disadvantage people who may want to transition to the sex they were assigned at birth, or to being heterosexual.

We do not consider that the bill would prevent people who wanted to transition to the sex they were assigned at birth, or to identify as heterosexual. The bill would only cover circumstances where external attempts are made to change or suppress someone’s gender identity, gender expression, or sexual orientation, regardless of what they may be.

Some submitters told us that the definition of a conversion practice, in clause 5, should include practices intended to change or suppress variations of sex characteristics. They believe this would help to better protect intersex people from unnecessary medical interventions, often performed on people without their consent.

Some submitters who support prohibiting unnecessary medical interventions on intersex people did not support including intersex people in the bill. They considered that these medical interventions should be dealt with by a more specific policy or piece of legislation.

We note that conversion practices performed on the basis of variations of sex characteristics would not explicitly be covered by the definition of a conversion practice. This is because sex characteristics are biological traits while sexual orientation, gender identity, and gender expression are socially constructed. Despite this, intersex people would still receive protection through the bill as conversion practices performed on the basis of gender identity and expression are captured.

We note that there are issues that fall outside the bill’s intent. The Government is considering opportunities to:

• move away from a solely medicalised view of intersex health care, and take a rights-based approach that focuses on ensuring that intersex people and their whānau have all the relevant information and support to make informed decisions about their health care

• support health practitioners to provide best practice health care for intersex people.

Many submitters advocated including additional clarifications on what would not be classed as a conversion practice. Most of them discussed whether there should be a specific exemption for parents and whānau.

Many submitters accepted that the bill would allow parents and whānau to have conversations about sexual orientation, gender identity, and gender expression. However, some submitters were concerned that parents and whānau could be criminalised for having these conversations. Many submitters also recommended that an exemption should be included for religious groups.

We consider that many of these conversations would not meet the criteria for what the bill defines as a “conversion practice” or would be excluded by clauses 5(2)(b) to (f). Accordingly, we do not believe that any additional exemptions are needed or appropriate to meet the purpose of the bill.

Clause 8 would create an offence where a person performs a conversion practice on an individual under the age of 18, or where the individual lacks decision-making capacity. Clause 8(2) provides that someone convicted of this offence would be liable to a maximum term of imprisonment of 3 years.

Most submitters were in favour of this offence and told us that it would capture the behaviours and practices that should be criminalised.

Some submitters who oppose the clause 8 offence expressed concern about a lack of clarity as to what behaviours would be considered illegal. Others who oppose the offence do not consider that practices that would be captured by the offence should be illegal at all. These submitters told us that clause 8 would criminalise parents for giving their children advice or guidance about gender or sexual diversity. They were also concerned that the offence would prevent people under 18 years of age from choosing to engage in non-invasive conversion practices.

We consider that conversations between parents and children would not be criminalised under the offence in clause 8. We believe that the standard for a behaviour to be considered a conversion practice in the bill is appropriately high. As discussed earlier in this commentary, we recommend that the definition of a “conversion practice” be amended to include examples of what behaviours or actions would be captured.

If convicted of an offence under clause 8, a person would be liable to a maximum term of imprisonment of 3 years.

Some submitters told us that the maximum penalty was too severe and suggested that less punitive measures should be explored such as community-based sentences, or fines. One submitter suggested that, because conversion practices cause significant harm to family relationships, restorative processes should be considered.

Submitters who oppose the maximum penalty were concerned that health professionals, such as counsellors, would not feel able to work for fear of breaking the law.

Some submitters who support the clause 8 offence told us that the maximum penalty should be increased to reflect the seriousness of the offence.

We consider that the maximum penalty in clause 8 would be appropriate for the practices that would be captured by the offence. We note that the maximum penalty would be reserved for the most serious instances of offending.

Regarding penalties other than imprisonment, we note that the Sentencing Act 2002 gives judges discretion to impose an appropriate sentence. Possible sentences would include discharge without conviction, a fine, a community-based sentence, home detention, and imprisonment. Because of this judicial discretion, we see no need to specify alternative penalties in the bill.

The bill would also make a civil redress scheme available through the amendments it proposes to the Human Rights Act. This would include access to dispute resolution services that may be more appropriate in situations where those performing conversion practices have close relationships to the victim.

If convicted of an offence under clause 9 (performing a conversion practice that caused serious harm), a person would be liable to a maximum term of imprisonment of 5 years. We note that, even though individuals under the age of 18 and those lacking decision-making capacity are specifically covered by clause 8, the clause 9 offence would still be available to them if serious harm was caused.

Many submitters felt that the maximum penalty for the clause 9 offence was justified by the level of harm that would be caused by the offending. Other submitters opposed the maximum penalty for the clause 9 offence and expressed concern that it appeared higher than the penalty for violent crimes such as child abuse.

As noted in relation to the maximum penalty for a clause 8 offence, the maximum penalty would be reserved for the most serious instances of offending. We consider that the maximum penalty is appropriate for the behaviours and practices that would be captured by the clause 9 offence.

We note that the penalty for the clause 9 offence is comparable with the maximum penalty for the offence of causing injury with intent to do so or with reckless disregard for the safety of others.³

Clause 10 provides that a person’s consent to a conversion practice could not be used as a defence to a charge under clauses 8 or 9. This would also apply if a person consented on behalf of someone else to a conversion practice being performed on that person, or if the person charged believed that consent was given. It is designed to provide that consent should not be relevant to determining a defendant’s culpability. This is intended to lessen the impact of court processes on victims.

Most submitters we heard from on this matter discussed whether it was possible to consent to conversion practices at all. These submitters said that clause 10 would remove any blame from the victim and shift it to the perpetrator. Some submitters told us about their personal experiences where the potential loss of their family, loved ones, and community had led to them seeking out conversion practices.

Some submitters who oppose clause 10 said that it would breach a parent’s right to make decisions on behalf of their children. Others in opposition were concerned that clause 10 would interfere with a person’s ability to seek or impart counselling. They argued that removing consent as a defence would breach rights and freedoms guaranteed by the New Zealand Bill of Rights Act 1990 (NZBORA).

We note that clause 10 would only apply to an offence under clauses 8 or 9. It would not apply in situations covered by the civil redress scheme in the bill.

Other jurisdictions have excluded consent as a defence for criminal offences relating to the performance of conversion practices, including Victoria and the ACT in Australia.

We do not consider that clause 10 would place an unjustified limit on the rights and freedoms in NZBORA. We note that Crown Law provided advice to the Attorney-General that the bill is consistent with NZBORA.

Clause 12 would require the Attorney-General’s consent for the prosecution of an offence under clause 8 or 9.

Most submitters who commented on this provision suggested its removal, considering it an unnecessary threshold for prosecution. Some submitters recommended that it be removed because other crimes that require the Attorney-General’s consent are usually offences that have international political ramifications or a clear public interest. These submitters told us that there are more comparable crimes that do not require the Attorney-General’s consent.

The Human Rights Commission told us that the Attorney-General’s consent can be required in cases requiring complex human rights considerations. However, it believed that in the case of conversion practices this could create a barrier to justice.

Those who support the inclusion of clause 12 consider that it would provide an additional check and balance before prosecution. These submitters believe it would be especially necessary for parenting or religious expression that some might view as being covered by the definition of a “conversion practice”.

We consider that clause 12 should remain in the bill. We note that Crown Law’s advice on the bill’s consistency with NZBORA identified clause 12 as a way to mitigate any limitation the bill would place on the freedom of expression.

We consider that requiring the Attorney-General’s consent would help to ensure that the evidential test for prosecution of an offence under clause 8 or 9 is met.

We note that there are several other offences that can only be prosecuted with the Attorney-General’s consent, including section 131 of the Human Rights Act. That section is also related to freedom of expression, with the offence being the incitement of racial disharmony.

Some submitters expressed concern that the requirement for the Attorney-General’s consent would introduce a risk of politicisation and bias into the prosecution processes. We note that although the Attorney-General has a political role as a Minister with multiple portfolios, as the Attorney-General they act free from political consideration. We also note that in the process of providing consent for prosecution, this function is exercised in conjunction with the Solicitor-General.

Clause 15 would amend the Human Rights Act to insert new section 63A. That section would make it unlawful for a person to perform a conversion practice on another person. It would also apply to persons who arrange for a conversion practice to be performed on another person.

Any breaches of new section 63A would be dealt with under the existing dispute resolution processes in the Act. Clause 13 of the bill provides that any person who has a conversion practice performed on them could make a complaint under new section 63A of the Human Rights Act.

Some submitters who commented on clause 15 expressed support for a civil redress scheme. The Office of the Health and Disability Commissioner told us that recourse to the Human Rights Commission was appropriate for complaints about practices carried out by religious organisations or individuals. However, it said that conversion practices carried out in healthcare settings, which would lead to complaints about health and disability services, should be referred to its office.

We note that the criminal offences in the bill would only be intended to capture serious cases of conversion practices. We believe that the civil redress scheme would provide another path of redress for victims. The civil redress scheme would also focus on remedying harm and preventing it from happening again.

Under the Human Rights Act, the Human Rights Commission performs a range of functions such as providing education and preparing and publishing guidelines and voluntary codes of practice to promote consistency with the Act. We believe that these functions are an important part of achieving the purpose of this bill.

We acknowledge the view of the Office of the Health and Disability Commissioner. However, we do not consider it necessary for the bill to explicitly provide a power for the Human Rights Commission to refer a complaint regarding conversion practices in the health and disability sector to the Health and Disability Commissioner. If the commission declined to take further action in relation to a complaint, it could choose to refer the matter to another avenue of redress.