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About Aniketh Rao

Aniketh Rao (LLB, LLM) is a PhD Law candidate in the School of Law and Social Sciences at the University of the South Pacific. His multidisciplinary research areas of interest include human rights, feminist legal theory, family law, gender & sexuality, law and literature and legal philosophy. His research mainly employs the rights-based approach. He has also taught constitutional law, administrative law and torts law.

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Conversion therapy

Conversion therapy involves psychological, spiritual, and physical practices to ‘convert’ a person’s gender identity or expression and/or sexual orientation preferably to that of a heterosexual individual.

Individuals are not expressly protected from ‘conversion practices’ under international human rights treaties. The United Nations through its experts and special  procedures has called upon States to prohibit such practices that are discriminatory against genders, and result in violations of several human rights.

New Zealand’s  ‘ban’ legislation

New Zealand legislated a ban on conversion therapy on 15 February 2022. The Conversion Practices Prohibition Legislation Act 2022 [the Act] prohibits conversion practices, punishable with a sentence of up to 3 years imprisonment for performing such practices on a minor under 18 years or on an individual without a decision-making capacity, or up to 5 years imprisonment if the practice(s) cause serious harm to the individual regardless of age.

The Act also provides a human rights avenue. The Human Rights Act 1993 is planned to incorporate sections 14 and 15 of the Act as a substantive provision on ‘conversion practices’. With this, a human rights complaint mechanism against conversion practices will be in effect from August 2022.

 Rights-based approach

Humans are not substantively equal in reality, but all human beings are equal in dignity and rights [see Article 1 of the Declaration.] as it must be recognised by any democratic society. Article 2 of the Declaration protects every right-holder’s fundamental rights and freedoms without distinction based on sex.

These are standards that have been internationally agreed upon, including by New Zealand. New Zealand is a party to a number of international human rights treaties including the Universal Declaration of Human Rights 1948 [the Declaration] and the International Covenant on Civil and Political Rights 1976  [ICCPR]. New Zealand’s ‘human rights’ approach to prohibiting conversion therapy is an implementation of protection from discrimination. Conversion practices are discriminatory practices against gender identities (equal-right holders at law), which are deep-rooted in merely the ‘oppressor’s’ cognition with absolutely no scientific or medical evidence. In fact, the description of conversion therapy under section 5 of the Act adequately identifies the singular and ultimate basis for such practices as the “…intention of changing or suppressing the individual’s sexual orientation, gender identity, or gender expression.”

While the punitive measures are directed towards the oppressors, a human rights mechanism is a relevant pathway to remedy the oppressed and substantively elevate them to absolutely enjoy the same fundamental rights and protection as any right-holder, without discrimination. This human rights mandate in the Act coheres with the principle of Article 7 of the Declaration that all right-holders must be equally protected against any discrimination that violates their fundamental rights under the Declaration.

Conversion practices are discriminatory acts carried out on certain right-holders who are gender non-conforming or across gender identities and expressions. Article 26 of the ICCPR obliges member countries to prohibit discriminatory acts based on gender and to guarantee right-holders equal and effective protection against such acts. Further, the implementation of counter-measures like the ‘human rights provision’ in the Act aims to address this non-evidence-based discriminatory practice intended toward rights-holders of various gender identities and expressions. The provision, therefore, enhances the visibility of equal protection against violations as an attainment of a State’s obligation under Article 2 of the ICCPR.

Conclusion

The suppression of an individual’s gender identity and expression and/or sexual orientation is an outright violation of the right-holder’s inherent dignity and equal protection. New Zealand’s adoption of a right-based approach embedded in the ‘ban’ legislation captures the ultimate objective to recognise every right-holder across gender identities and expressions with inherent dignity and inalienable rights in a democratic society. The momentum that statutory measures against conversions practices are gaining across countries must be catalysed by a State’s human rights obligations for all right-holders, irrespective of gender identities and expressions.

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