When carceral politics undermines rainbow politics

In a new opinion piece on The Spinoff, Max Tweedie questions the Labour government's funding cuts and gaps for rainbow concerns in the latest budget. Tweedie comments that activists have spent limited resources focusing on issues like “a conversion therapy ban” and “self-identification on birth certificates”, but the government should nevertheless increase funding in other areas for rainbow community benefit. These two phenomena — one enhancing state violence with a ban, and another neglecting community improvement in the budget — are presented as if they were disconnected. But they are actually related. Boosting the state's carceral strength through a conversion therapy ban, provides cover for the deterioration of budgetary support for constructive community-building options. Ironically, it is the very efforts of activists, including those who pushed for a conversion therapy ban, that allows the political trade-off we are witnessing to take place.

To understand why, we might examine parallels (and overlaps) with a closely connected issue: carceral feminism. In Against Carceral Feminism, Victoria Law introduces the term like this:

The year was 1999. It was a half-decade after the passage of the Violence Against Women Act (VAWA), which deployed more police and introduced more punitive sentencing in an attempt to reduce domestic violence. Many of the feminists who had lobbied for the passage of VAWA remained silent about Williams and countless other women whose 911 calls resulted in more violence. Often white, well-heeled feminists, their legislative accomplishment did little to stem violence against less affluent, more marginalized women like Williams.

This carceral variant of feminism continues to be the predominant form. While its adherents would likely reject the descriptor, carceral feminism describes an approach that sees increased policing, prosecution, and imprisonment as the primary solution to violence against women.

This stance does not acknowledge that police are often purveyors of violence and that prisons are always sites of violence. Carceral feminism ignores the ways in which race, class, gender identity, and immigration status leave certain women more vulnerable to violence and that greater criminalization often places these same women at risk of state violence.

To a large extent, the issue of conversion therapy seems to run in parallel to that of domestic violence that disproportionately targets women. But it is more than an analogy, because there is an overlap: the practice of conversion therapies is inherently violent, and it may be perpetrated by a domestic relation of a victim, which makes some conversion therapy a species of domestic violence. So the critique of carceral feminism that Law uncovers can also extend to our understanding of conversion therapy, state responses to it, and how activists lobby for legislation and enforcement.

Law hones in on the core trade-off in advocating for carceral approaches to domestic violence:

Casting policing and prisons as the solution to domestic violence both justifies increases to police and prison budgets and diverts attention from the cuts to programs that enable survivors to escape, such as shelters, public housing, and welfare. And finally, positioning police and prisons as the principal antidote discourages seeking other responses, including community interventions and long-term organizing.

Fundamentally, “[c]asting policing and prisons as the solution to domestic violence”, is the heart of a conversion therapy ban as envisioned by the only legislation drafted and offered in the New Zealand Parliament — the Prohibition of Conversion Therapy member's bill by Labour's Marja Lubeck MP. This bill remains the basis for the Ministry of Justice while they draft a government bill to be passed by early 2022. The Lubeck bill seeks to make new criminal offences for a range of acts (including procuring conversion therapy as a misguided victim), and indicates criminal fines and imprisonment as the cure, whilst reserving special punishments for migrants (and implying deportation for all offences). It remains to be seen whether the government bill will pursue a non-criminal (yet symbolic and ineffective) gesture, or proceed with a punitive solution like Lubeck's, which they promised in their election manifesto — as if spending time in prison will somehow rehabilitate an offender out of homophobia or transphobia.

While there are many possible criticisms of the Lubeck bill and its general approach, the more interesting news in the budget announcement singled out by the Spinoff opinion piece, relates to the rest of Law's warning: “[it] diverts attention from the cuts to programs that enable survivors [and] discourages seeking other responses”. This is a textbook trade-off for political expediency.

A conversion therapy ban — particularly criminalisation — is a financially cheap policy. At first, it does not require any funding, but nevertheless offers a symbolic victory for a governing party to posture with. Should activists and the community eventually become dissatisfied with the ineffectiveness of such a policy to actually end conversion therapy, then the state may easily “[justify] increases to police and prison budgets” as a promising solution — that is, growing the general policing and prison budgets, not necessarily specific to conversion therapy eradication. It is easy to imagine scandalous news revelations in three or five years, exposing the still ongoing practice of conversion therapies, despite the legislated ban. The ensuing moral outrage could be channelled into harsher punishments, more police and prison funding, and a general escalation in racist deployment of state violence.

The racism inherent to the carceral response to conversion therapy should be understood in two parts. Firstly, the police, courts, prisons, and immigration systems are racist. Secondly, conversion therapy is racialised:

The risk is higher in general for queer people of colour too; the survey found that while 7% of LGBTQIA+ people in the UK have been offered or undergone conversion therapy, respondents from ethnic minority backgrounds were twice as likely to have had these experiences.

A criminal conversion therapy ban, then, invites further police surveillance and enforcement in already over-policed communities. Law notes the unintended consequences for those at the intersection of various identities, with the application of state violence in the name of protecting them from domestic violence:

Women marginalized by their identities, such as queers, immigrants, women of color, trans women, or even women who are perceived as loud or aggressive, often do not fit preconceived notions of abuse victims and are thus arrested.

We can reasonably expect just these unintended consequences with another cookie-cutter piece of criminal legislation, in the name of banning conversion therapy for the benefit of queer and trans people of colour. Increasing the interactions between police (who, say, routinely took photos of brown youth in public without consent) and, say, LGBT+ brown youth facing conversion therapy, seems unlikely to benefit the victims.

The threat of police, court, prison and immigration involvement has long been a deterrent for victims of abuse to report to the system — especially in cases of domestic violence and sexual abuse in circumstances of precarity, poverty or financial hardship or dependency. There is no reason to expect that behaviour will be different in cases of conversion therapy.

Meanwhile, solutions that might actually help, such as, “community interventions and long-term organizing”, can be easily neglected. The Labour government has said it intends to pass the criminalisation of conversion therapy into law effectively by Big Gay Out 2022 — a policy obviously crafted for media impact more than substantive community reform. So long as this ineffective, inequitable, carceral policy-making will be celebrated by influential activists, and will remain welcomed and celebrated by Pride and related events, the governing party will have a free pass to undercut our communities' funding in meaningful ways.

The Spinoff opinion piece deftly dodges accountability for this trade-off, and somehow manages to represent rainbow communities in 2021 as if racism within and towards intersecting, over-policed ethnic groups of the rainbow were not even worth mentioning. (To reinforce the point: it also names “self-identification on birth certificates” as an issue that “activists” have prioritised, but the legislation for that matter seeks to deny overseas-born people, even if they are New Zealand citizens, from access to updated birth certificate information — another issue where “activists” have remained silent on the intersection of race and the rainbow.)

So long as we continue to ignore the fault lines of racism within the rainbow, and its firm roots in settler-colonialism in New Zealand, we will continue to find that Pākehā-dominated activism holds us back, entrenching state violence, carceral politics, and all of its unintended consequences.