What is sex therapy in the NDIS context?

People with profound disabilities have been considered asexual, and protected by criminal laws as being highly vulnerable, for well over a century. When taken with Australia's general prudishness and the stigma associated with the commercial sex industry, it is little wonder that law‑makers and senior public officials classify our sexual needs as private and beyond the scope of the National Disability Insurance Scheme (NDIS).

A July 2019 Administrative Appeal Tribunal (AAT) review has challenged both these assumptions. It found that the National Disability Insurance Agency (NDIA) is to consider whether sex therapy is reasonable and necessary for those NDIS participants who have no other way of achieving physical sexual release.

In WRMF and National Disability Insurance Agency [2019] AATA 1771, the applicant was single, in her forties, and unable to masturbate due to her profound multiple sclerosis. It was accepted that physical sexual simulation reduces her pain and spasms and improves mental health, mood and overall wellbeing.

Coining the term 'sex therapy' to distinguish it from the service provided by sex workers, the Deputy President of the AAT, Mr B W Rayment OAM QC (the QC) gave a few cues on how the two terms differ.

'The applicant does not seek the services of a sex worker. Rather she seeks the services of a specially trained sex therapist, a term which I have used to draw attention to an important difference.'

A conservative interpretation of the term 'sex therapy' might entail the establishment of a speciality from within the fields of psychology, sexology, social work, counselling or even occupational therapy, or some combination of these classical therapies. The objectives of such a speciality would be to assist a client to develop new skills to improve independence and/or to live a happier life as asexual.

Had the QC intended for the applicant to receive counselling and/or occupational therapy, he could have said as much. Instead, he coined the term 'sex therapy' to mean sexual physical touching and felt it was necessary to distinguish this from sex work.

Classical therapists' professional and ethical codes would need to be redrafted to permit the sexual touching of their clients. It is also unlikely that these classical therapists' licencing bodies would agree to the creation of such a speciality, as it would negatively alter the status of their professions. For instance, dictionaries and some criminal laws have inclusive definitions of 'sex work', and these would apply to, regulate and stigmatise all of the licencing bodies' members.

The extended coined term, 'a specially trained sex therapist', involves two key elements: a need for the service to be therapeutic; and the need for the therapists to be appropriately trained.

Therapeutic benefit

The QC coined the term 'sex therapy' rather than referring to a definition in the relevant legislation or a finding in a common law case. In the absence of case law or a statutory definition of 'therapy', it is good practice to adopt a dictionary's definition. Topick an online dictionary at random, the Cambridge Dictionary defines 'therapy' as:

'a treatment that helps someone feel better, grow stronger, etc., especially after an illness.'

In paragraph 34 of his reasons, for instance, the QC discusses the therapeutic benefits of sex therapy as it relates to the applicant.

'… as a result of the services of a specialised sex therapist [,] were described by the applicant in evidence which I accept as good for her mental wellbeing, her emotional wellbeing and her physical wellbeing … she also said that her mood is less dull, it releases tension and anxiety, and improves her outlook on life.'

An additional advantage to categorising this service as a therapy is that it aligns with the NDIA's conservative interpretation of the National Disability Insurance Scheme Act, which is to treat people with disabilities as broken and in need of repair.

The disability sector has been lobbying governments around the world since the 1960s to move from the medical or rehabilitation model of disability to the preferred social model. The social model locates the need for repair within the built and socially constructed environments rather than with the individual.

The social model would say, for instance, that the applicant's inability to achieve sexual release is a social environment problem: with her lack of the ability to engage appropriate help, rather than her lack of the physical ability to masturbate. It is the same in the built environment: it is the building's lack of a ramp that is the problem rather than a person's inability to walk. Nevertheless, categorising 'sex therapy' as a medical problem should enable the NDIA to save face by not being seen to be using taxpayers' funds to pay for sex workers.

Training

The second key element in what is meant by 'sex therapy' is appropriate training for the therapist.

Presumably, the QC meant that a sex therapist's training would be focused on how to work with people with significant disabilities. This training might include communications, advance consent issues, and bodily contact protocols.

Already these training sessions are run by organisations such as Touching Base Inc. (This Sydney‑based charity developed out of the need to assist people with disability and sex workers to connect with each other, focusing on access, discrimination, human rights and legal issues and the attitudinal barriers that these two marginalised communities can face.)

The QC's distinction between 'sex therapist' and 'sex worker' seems sensible because it recognises the safety needs of both the worker and the client with disability. This is achieved through ensuring the sex therapist is appropriately trained and regulated. Most importantly, this service should also ensure that the client is not left without the benefits from sexual release, nor vulnerable because of their need to seek sexual release by using other, 'backyard', measures.