TGB's Mal Byrne writes about potential legal options for people subjected to gay conversion therapy in South Australia.
TGB’s Mal Byrne writes about potential legal options for people subjected to gay conversion therapy in South Australia.
Gay conversion therapy, sometimes referred to as reparative therapy, should be a complete anathema to modern society. The practice was recently banned in California and Exodus International, the highest profile organisation in the United States that engaged in the practice, has disbanded and apologised to its victims. The American Psychological Association has decried the practice as harmful, but there are organisations in Australia loosely affiliated to some churches that still offer the service albeit under the radar. Scientists agree that sexual orientation cannot be changed.
Gay conversion therapy is offensive as it panders to homophobia and all the prejudices that same sex attracted people have had to battle for decades. It is a razor blade to a gay person’s self-esteem and causes severe psychological harm. The practice is unlicensed and uncontrolled and dangerous. So if you are a gay man or woman and you have had the misfortune of being subjected to gay conversion therapy, can you sue the provider?
I should point out that I have not located any cases in Australia where a provider of gay conversion therapy has been sued, so I have no precedent to rely upon. There is no law specifically dealing with the practice. Hence, my discussion in this blog is theoretical and hasn’t been tested in the courts. When a person consents to gay conversion therapy and is charged for the treatment, there is a contract. However, the contract is voidable for fraud as the provider is promising a result that can never happen.
To some extent, it depends on what the provider is offering. If the provider accepts and advises the victim that this service will not change sexual orientation, but will merely teach him/her how to stop acting upon his/her sexual feelings, the existence of fraud becomes problematic. Anyone promising a “cure” is committing fraud. If you have been subjected to gay conversion therapy and were promised a cure, you are entitled to your money back.
South Australian statutory consumer protection laws also prohibit “misleading and deceptive conduct” by traders. Most of the litigation in the United States has focused on the consumer fraud issue and it is this litigation that has contributed to the decline and disappearance of the providers.
In my view, the law of contract is not the only potential avenue for victims of gay conversion therapy. Where a person is physically assaulted and the perpetrator was not acting in self defence, the victim can sue that person for assault/battery which is a recognised tort. Gay conversion therapy is also an assault but it is a psychological assault rather than physical assault.
It is an assault upon a person’s psychological well being and self esteem and many victims have been so harmed by the practice that they have attempted suicide. Providers will argue that they are not offering a health service but a pastoral service and that they are entitled to do so as a freedom of expression or religion.
However, freedom of religion such as it exists in Australia does not extend to granting freedom for church members of any description to harm people whatever the spiritual intention might be behind the practice.
Hence, if you are a victim of gay conversion therapy and consider that you have suffered long term psychological or psychiatric injury as a result of the experience, you should seek legal advice on whether you have recourse against the provider. The provider will of course need to be a legal entity that can be sued which is sometimes difficult where the provider is a church splinter group.
Further, the provider will need to have insurance that will indemnify that provider against the harm done. There is also a three year statutory limitation date that applies to personal injury claims, although the statutory limitation period for claims for contract/fraud is six years. Nevertheless, if you are a victim, do not be put off seeking legal advice on your rights to compensation. The more people in Australia that seek advice on this issue and explore their rights, the sooner the practice will disappear.