Daniel Andrews’ Latest Ill-Considered Outrage

Victorian Labor likes to boast that it is the country’s most progressive government. The obverse of this reality is that it has consistently enacted an agenda that collides with, and often encroaches upon, the concerns of traditionalists — especially those of a more religious bent.

The past six years of Premier Daniel Andrews’ government are replete with examples of such confrontations. Restrictions on pro-life protestors, forcing Catholic priests to break the confessional seal, euthanasia, banishing religious education from school classrooms, the introduction of the ‘Safe Schools’ initiative: each policy represents a victory for Labor’s rapidly advancing program of progressive thought, and a corresponding loss for the state’s diminishing band of religious, moral, and social conservatives.

The latest skirmish in this smouldering culture war has been triggered by the state government’s proposed Change or Suppression Practices (Conversion) Prohibition Bill 2020. With its unwieldy title, the bill is designed to outlaw so-called ‘conversion therapy’ that seeks to change or suppress a person’s same-sex orientation or gender identity. It is largely aimed at techniques grounded in religious ideology, and to that end, makes more than one reference to such things as prayer-based practices. However, it appears that others — medical practitioners, counsellors, psychologists, and the like — would also be captured by the legislation. If it can be shown that certain efforts to elicit a change in someone’s sexual orientation or gender identity trigger serious physical or mental harm, the offender is liable to up to ten years in prison or thousands of dollars in fines.

Were the legislation seeking only to protect the vulnerable from manifestly coercive or injurious practices, Victorian government ministers would hear no objection from most conservative religious folk in the state. No mainstream faith group endorses the archaic and barbarous techniques that were once used, say, to ‘cure’ people wrestling with same-sex attraction. Similarly, no church that isn’t already languishing on the fringes of society would defend their legitimacy. This isn’t to say that forcible or harmful conversion therapies have entirely died out — merely that they are so vanishingly rare that one could be forgiven for thinking the government is pushing on an open door. In any case, I think journalist Barney Zwartz is correct: whatever horrors occurred historically, nothing in present Victorian society can ‘justify legislation of this magnitude’.

Of course, the aspirations of Premier Andrews and his colleagues are more ambitious, as suggested by scrutiny of the act’s articulated objects and intentions. Behind its bland, bureaucratic text lies an expansive project, which goes well beyond the goal of shielding people from serious and demonstrable injury (a theme to which I will return). Indeed, the bill leaves anyone but the most glassy-eyed activist with a battery of pointed questions about the practices captured by the bill’s wording, as well as implications for freedom of religion and conscience. These issues have featured most prominently in recent critical commentary.

CONSIDER the disturbingly vague language the legislation uses to proscribe certain conversion techniques. Some practices, like aversion or electro-shock therapy, are both clearly delimited and inherently objectionable. But caught in the bill’s drag-net is prayer, a common religio-spiritual discipline, and one that Christians exercise in a variety of contexts. Referring to ‘prayer-based practices’ (cl 5[3], p.8), the legislation baldly promises serious punishment for demonstrable and ‘serious harm’ flowing from a person’s attempt to change or suppress another’s sexual orientation or gender identity.

Leave aside the notion of harm for a moment. How should prayer be construed in this context? What is its scope? Is the bill referring to a formal, twelve-step program grounded in systematic, scripted petitions, or something more informal and ad hoc? Suppose a minister of religion agrees to pray with a parishioner struggling with same-sex attraction. In the process, he entreats God to transform — indeed, ‘heal’ — that person in a manner consistent with orthodox Christian views of sex. Perhaps he asks God to give that person the wherewithal to remain celibate. Is this considered unlawful conduct? Does it fall under a prohibited attempt to ‘convert’ someone out of same-sex attraction? Several commentators have asked similar questions, but have been unable to satisfactorily answer them.

In all honesty, it’s hard to see how the bill wouldn’t capture such an example. In a statement that will worry religious conservatives, Jill Hennessey, the state’s (former) attorney-general, said in a speech in November that prohibitions will be based on a ‘broad definition of change or suppression practices’ (emphasis mine). The Explanatory Memorandum attached to the legislation also states that ‘informal practices’, including prayer, are covered by the definition (p.5). This is far removed from former government-funded psychiatric programs, or even the organized, pseudo-scientific ministries of now-defunct bodies like Exodus International. Such a capacious approach to the notion of conversion therapy would, it seems, encompass even a series of private, fleeting encounters between a pastor and a congregant seeking help for their same-sex attraction or dysphoric feelings.

It’s not simply that certain types of prayer may come in for censure; religious statements to the same effect appear to be prohibited, at least according to the relevant commentary. Once more, the Explanatory Memorandum is instructive, for it tells readers that ‘conversations with a community leader’ may well be in the legislation’s cross-hairs (p.5). In the same speech she delivered to parliament when tabling the bill, Hennessey declared that the legislation is specifically designed to capture a pastor telling a same-sex attracted person that they are ‘broken’, and that they should ‘live a celibate life for the purpose of changing or suppressing their sexual orientation’. It’s not clear whether this means a pastor would have to explicitly try and change a person’s sexual orientation through the medium of celibacy, or whether the advice to live chastely would itself constitute such an attempt.

The former attorney-general tried to re-assure people that such legislation would not infringe on one’s freedom of religion; ‘not captured’, she intoned, are statements from religious leaders that merely convey an interpretation of the relevant biblical texts — suggesting, for example, that same-sex attraction is ‘contrary with the teachings of their faith’. Yes, but pastors aren’t there to mechanically dispense information, like members of some religious advice bureau; they are charged with the sacred responsibility to teach, preach, urge, cajole, and persuade people to live holy and righteous lives before God. In the case of sexuality, orthodox Christians hold that outside of heterosexual marriage, celibacy is the only legitimate path. But that draws discussion back to the initial question, namely, whether the exhortation to practice chastity should be seen as a form of conversion therapy. Would such vested counsel be deemed illegitimate? In any event, that Hennessey would mention celibacy in precisely this context — long the recommended recourse for faithful Christians outside marriage, and a mainstay of Christian sexual ethics — is deeply troubling for those wanting to remain faithful to biblical teachings. 

Setting these statements (as well as the questions they generate) within a wider frame of reference does little to temper one’s disquiet. In the report that informed the government’s anti-conversion therapy bill, Preventing Harm, Promoting Justice, the authors explicitly classify certain therapeutic and theological models as forms of conversion therapy, even where a fundamental change of identity is neither sought nor recommended (p.17). For example, the report criticises the ‘welcoming not affirming’ approach adopted by many modern evangelical Protestant churches seeking to navigate the tension between fidelity to biblical teaching and compassion for those who are same-sex attracted or gender diverse. Apparently dissatisfied with this approach, the authors go so far as to single out the so-called ‘celibacy requirement’ for ongoing membership in such communities. It’s important to underscore their position, for two reasons: first, it clashes directly with the practical implications of a biblically orthodox position on sexuality (in a way that condemnation of stereotypical conversion therapies does not); and second, it supplies the framework for the government’s disturbingly ambiguous legislation. As with Jill Hennessey’s remarks, so with this report: if it is to function as the intellectual lodestar for determining what constitutes ‘conversion’ or ‘suppression’ practices, then religious conservatives have every reason to be alarmed.

It must also be emphasised that the concept of suppression is a contested one, in so far as debate continues on how widely it should be defined. For many LGBTIQ activists, there is an intrinsic connection between one’s sexual orientation and its expression; the one simply bleeds into the other. On this view, praying that someone be given the strength to live celibately — not change of orientation, but abstention from certain types of sexual behaviour — is ipso facto to induce the suppression of that person’s enduring romantic and sexual affections. If ministry of this kind is informed by the spirit of a verse like Matthew 5:28 (‘whoever looks upon another lustfully…’), that might simply make the effort to ‘suppress’ a person’s sexual orientation seem all the more egregious.

True, criminal prosecution may only be triggered if serious injuries are generated by conversion or suppression practices directed towards a specific individual. This would seem to preclude dignitary harm or deep offence. But as law professor Neil Foster has noted, this hardly settles the matter. Suppose a person, struggling with her sexual orientation, decides to engage in acts of self-harm after a conversation she perceived as distressing with a religiously orthodox minister. Suppose, too, that this person attempted to commit suicide. Significant harm has obviously occurred, of both a physical and a psychological character; having undertaken acts of serious self-injury, the person who sought advice may well want to draw a link between her suffering and the meeting(s) held with the pastor.

Is the minister liable? It’s extremely difficult to predict, given the apparent ‘looseness’ of the causal relationship between the conversations and the person’s subsequent acts. Still, the mere possibility — exploited, perhaps, by willing activist groups keen to make an example — leaves the unsuspecting minister in a rather precarious position. Compelled by his faith to at least encourage the individual to live chastely, he runs the risk of falling afoul of the legislation and being accused of causing serious, even long-lasting, injury. Moreover, the pastor cannot rest on the claim that the person sought him out of their own free volition, for the bill explicitly precludes consensual practices as a legitimate defence, even among adults (itself a serious impost on personal liberty). Even if such fears do not materialise, it’s likely that the legislation will have a chilling effect on the activities of clerics: cowed by the possibility of prosecution, or simply of investigation, there’s every chance a minister will censor himself, truncating what he might otherwise see as vital Christian counsel. Indeed, the bill creates a concerningly large grey area, composed of possible topics and conversations of dubious legality; afraid of the potential consequences, the harried pastor may well avoid those pitfalls altogether. 

BY TABLING this legislation, the government has arguably set the stage for future interference in what are ultimately private and personal religious practices (as Melbourne’s Catholic Archbishop, Peter Comensoli, recently remarked, what he prays for, and with whom, is no business of any government). This exceeds previous forms of Victorian Labor’s progressive activism: while many conservatives were upset when religious education was removed from school classrooms, it was still the case that Christians could freely practice their beliefs; the government’s decision, while representing a minor act of marginalisation, did not actively proscribe religious expression. The current bill, however, threatens to do exactly that, reaching into the realm of the sacred, which under a liberal democratic regime has traditionally been seen as verboten. Any intrusion into the religious sphere undercuts a long-recognized freedom, and violates deep-set principles against government meddling in something for which it has little competence.

For Labor, however, this may be the bearable cost of prosecuting its progressive agenda: instead of engaging with religious groups in a good-faith manner, the government has recently dismissed their concerns as thinly veiled bigotry. To return to the act’s preamble, it seems reasonably apparent that Premier Andrews and his ministers are interested, not simply in protecting people from specific mental or physical harms, but in propagating a much broader narrative. The bill aims, for example:

To ensure that all people, regardless of sexual orientation or gender identity, feel welcome and valued in Victoria and are able to live authentically and with pride (cl 3[1], p.3).

Soothing assurances that LGBTIQ people aren’t ‘broken’, or the promised goal of ensuring that all people may live ‘authentically’ and ‘with pride’ — regardless of identity or orientation — betoken the dramatic expansion of a government’s traditional remit. No longer is Victorian Labor a neutral arbiter of basic rights in a pluralistic society (if ever that was the case). Rather, Premier Andrews and his allies have consolidated the state’s position on one side of what are ultimately questions about anthropology: what is the human person? What is the relationship between the self and the body? Are maleness and femaleness tied to our embodied state? And just how are we to channel our sexual capacities? It’s impossible, of course, to explore these issues in any depth here. Suffice it to say, having rejected all pretence to impartiality, the government now advertises itself as the standard-bearer, the vanguard, for a peculiarly modern understanding of human identity — one that is starkly at odds with the convictions of orthodox Christians and other metaphysical conservatives.

People will obviously laud the open expression of a person’s identity as a heartening example of societal evolution. Goodness knows that a mere generation ago, many LGBTIQ people were imprisoned by silence and opprobrium. The problem lies in the fact that under the present administration, the Victorian state hasn’t merely arrogated to itself the power to constrain the free exercise of conscience and religion; it also touts its capacity to offer the balm of affirmation — inscribed into legislation, no less — as a surrogate therapist, advancing a contentious doctrine of what it means for human beings to live rightly in this world. It’s the ‘triumph of the therapeutic’ in modern law, reflecting the extent to which government activity now revolves around validation of the psychological self as the primary locus of identity, value, and moral order. Buoyed by the apparent authority this cause brings, Victorian Labor figures are set upon discharging their duties — even if it entails infringements upon those who are deemed to threaten that goal. Ironically for a government claiming to oppose ideology (in this case, of the religious kind), Daniel Andrews and his team are clearly driven by their own ideological commitments.