Our 7-Year Engagement (and Counting)

7 years isn’t just the name of a nauseatingly awful song by Lukas Graham. It also happens to be the length of time that, as of today, Steve and I have been engaged.

 

On 23 January 2010, after about 18 months together and on a trip to Melbourne, I asked him to marry me. He made me an incredibly happy man when he said, “Of course I will.”

 

What should have followed were several months of wedding planning – including the inevitable fights over guest-lists, and the small ‘p’ politics of who sits at which table (or, more likely in our case, arguments over the music play-list).

 

What has followed has been seven years of advocacy – of fighting for the right just to be treated the same as other Australians, and the capital ‘P’ politics of trying to change the ALP national platform, then attempting to make that platform binding, of resisting an unnecessary, wasteful and divisive plebiscite, and finally of arguing for Commonwealth Parliament to actually hold a vote on marriage equality, instead of countless inquiries and endless delays.

 

It’s fair to say that, after seven years of campaigning for change, Steve and I are becoming increasingly frustrated by the inability of our so-called leaders to pass this reform. After all, it should take seven seconds, rather than seven years, for most people to recognise that all couples deserve to be treated equally under the law, irrespective of their sexual orientation, gender identity or intersex status.

 

It’s also true to say that many lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians are feeling worn out, and worn down, by the ongoing battle, of having exactly the same conversations, with the same nonsensical responses by those against marriage equality, ending in the same result: yet more inaction.

 

There is a real risk that many in the LGBTI community, not to mention our family members, friends and allies, will find this debate increasingly tiresome (I know that, even as someone who is clearly passionate about this topic, I am starting to find writing about it somewhat tedious).

 

To a large extent, that is what our opponents want. They would love nothing more than for people who support marriage equality to become depressed about the lack of tangible results to date, and to consequently give up the fight.

 

Groups like the Australian Christian Lobby lost the policy argument a long time ago – they are now engaged in a war of attrition, hoping that, if this issue sits in the too hard basket for long enough, it will disappear from the political agenda altogether.

 

We can’t afford to let that happen. As annoying as it is – as boring as it is – we must start the year in exactly the same way we started last year, and the year before that, and the year before that (plus several more besides).

 

By writing letters to, and calling, our MPs and Senators, by using traditional media, and social media, to keep marriage equality in the spotlight, by marching, and protesting, by making a noise, and generally making a nuisance of ourselves.

 

Our 226 elected federal representatives must be constantly reminded that we will not go away until this, the simplest of reforms, is finally passed.

 

It could even happen this year. All it would take is for Malcolm Turnbull to demonstrate the leadership that many once hoped he possessed. Or for the Liberal party-room to decide the issue has dragged on long enough, and by holding a conscience vote. Or even for a small handful of Liberal MPs and Senators to decide this is something worth crossing the floor over.

 

Of course, marriage equality may not happen this year either. It could be delayed until 2018, 2019 or even longer. But no matter how much time it takes, we will continue pushing until our parliamentarians catch up to where the Australian population has been for some time.

 

In the meantime, there are literally tens of thousands of couples just like Steve and I who are essentially stuck in limbo, unable to do the basic things other engaged couples do: pick a wedding date, book a venue, and send out invitations (to those who make the agreed-upon final cut anyway).

 

We are reminded of this discrimination every time a day like today rolls around – the anniversary of an engagement that was happily entered into, but that has been unhappily, and involuntarily, extended by our government.

 

On a personal level I must admit I am finding this particular anniversary – our 7-year ‘engagement-versary’ – to be a particularly frustrating one, and just a little bit odd too.

 

It is weird to consider that we have now been engaged so long there is even a popular myth – at least partially backed up by research[i], as it turns out – that this is the time at which many married couples actually start to divorce.

 

And it’s a strange event to ‘celebrate’ – or at least commemorate – when you would prefer to be able to reflect on your wedding instead (as an aside, if we were married, the traditional 7-year gifts are wool, or copper – does that mean I should be buying Steve a nice new jumper?)

 

It is probably fitting that I will spend our anniversary at work, listening in the background to yet another Senate Committee hearing discussing whether couples like us should have the ability to marry – and, if we do, what new special ‘rights’ civil celebrants, religious bodies and others should have to discriminate against us[ii].

 

If I had the opportunity to address that Committee, I’d let them know how large a difference they could make if they just made a small change to the Marriage Act, thereby allowing Steve and I – and thousands of couples just like us – to exchange wedding vows.

 

I’d finish my testimony by making my own vow, on behalf of Steve and I – that I will not stop fighting until our relationship is finally treated equally under the law. Because one day, hopefully not too far in the future, we deserve the right to celebrate our first wedding anniversary, and not our 8th, 9th or even 10th engagement anniversary.

 

melbourne-trip

Steve (left) and I on the January 2010 trip to Melbourne during which we got engaged. 7 years later and I only love him more.

 

Footnotes:

[i] New York Times, Study Finds a 7-Year Itch, and a 4-Year One, 5 October 1999.

[ii] The Senate is holding an inquiry into the Marriage Amendment (Same-Sex Marriage) Bill, with the first hearing, in Melbourne, held on Monday 23 January. Full details of the inquiry can be found here.

Submission re Queensland Criminal Law Amendment Bill 2016

The Palaszczuk Labor Government has proposed legislation that would, among other things, finally abolish the ‘homosexual advance defence’, or ‘gay panic’ defence, under Queensland law.

Its Criminal Law Amendment Bill 2016 is currently the subject of an inquiry by the Legal Affairs and Community Safety Committee. Full details of the Inquiry can be found here – my submission to the inquiry is included below.

The Committee is due to report by 21 February 2017. Hopefully, the homosexual advance defence is consigned to the history books shortly thereafter.

**********

The Research Director

Legal Affairs and Community Safety Committee

Parliament House

Brisbane QLD 4000

lacsc@parliament.qld.gov.au

Monday 16 January 2017

Dear Committee,

Submission re Criminal Law Amendment Bill 2016

Thank you for the opportunity to provide a submission regarding the Criminal Law Amendment Bill 2016.

In this submission I will be focusing exclusively on the proposed amendments to section 304 of the Queensland Criminal Code, as contained in clause 10 of the Bill.

Overall, I welcome these proposed amendments, given the stated intention of the Queensland Government that they will give effect to their election commitment to repeal the homosexual advance defence, or ‘gay panic’ defence.

As noted by Attorney-General the Hon Yvette D’Ath in her second reading speech:

“The amendment to section 304 provides that the partial defence is excluded if the sudden provocation is based on an unwanted sexual advance, other than in circumstances of an exceptional character. I know that there has developed a reference to this amendment as removing the ‘gay panic’ defence – that is, a situation where the defendant claims to have been provoked to murder by a homosexual advance by the deceased. I absolutely acknowledge this amendment’s importance to the lesbian, gay, bisexual, trans and intersex community – as it is to all Queenslanders who have voiced their criticism that such an advance could establish the partial defence.”

Indeed, the abolition of this defence, in the two Australian jurisdictions where it remains in place (Queensland and South Australia) is a priority for the LGBTI community nation-wide.

That is because the idea that a lesser level of criminal punishment – manslaughter rather than murder – should apply where a man kills another man because of an unwanted sexual advance is, to put it simply, abhorrent.

This point was made eloquently by Justice Kirby in his dissent in the High Court’s decision in Green v The Queen [1997] HCA 50:

“If every woman who was the subject of a “gentle”, “non-aggressive” although persistent sexual advance… could respond with brutal violence rising to an intention to kill or inflict grievous bodily harm on the male importuning her, and then claim provocation after a homicide, the law of provocation would be sorely tested and undesirably extended… Any unwanted sexual advance, heterosexual or homosexual, can be offensive. It may intrude on sexual integrity in an objectionable way. But this Court should not send the message that, in Australia today, such conduct is objectively capable of being found by a jury to be sufficient to provoke the intent to kill or inflict grievous bodily harm. Such a message unacceptably condones sexual violence by people who take the law into their own hands.”

The truly offensive nature of the homosexual advance defence is revealed by asking why it invariably applies to non-violent sexual advances by a man to another man. As Kirby asks, rhetorically, if a non-violent sexual advance from one man to another was sufficient to justify forming the intention to kill or seriously wound, why should this not also apply to a non-violent sexual advance by a man to a woman? Further, why shouldn’t a woman who receives an unwanted non-violent sexual advance from another woman have access to the partial defence of provocation? Why doesn’t it also apply to a man who receives an unwanted non-violent sexual advance from a woman?

The answer is that in all of these cases society justifiably expects the recipient of the unwanted sexual advance to exercise self-control. A violent response to an unwanted non-violent sexual advance, to the extent that the recipient forms the intention to kill or seriously wound, is so beyond the pale, or so far out of the ordinary, that we do not extend any reduction in culpability to the offender in these circumstances.

In my opinion, there is nothing so different, so special or so extraordinary, in the situation where the non-violent sexual advance is made by a man to another man, as to justify offering the offender in such cases any extra legal protection. In contemporary Australia, a man who receives an unwanted sexual advance should exercise the same level of self-control as we expect of any other person.

To have a separate legal standard apply to these cases is homophobic because it implies there is something so objectionable about a non-violent sexual advance by a man to another man that a violent reaction is almost to be expected, and at least somewhat excused. This does not reflect the reality of contemporary Australia, where, with the exception of marriage, gay men enjoy (most of) the same rights as other men, and are accepted as equals by the majority of society.

Even if a small minority of people remain firmly intolerant of homosexuality, that does not mean there should be a ‘special’ law to reduce the culpability of such a person where they are confronted by an unwanted homosexual sexual advance. To retain such a provision is unjust and discriminatory, and is a mark against any legal system which aspires to fairness.

The above discussion outlines why the homosexual advance defence is wrong in principle. What should not be forgotten is that the homosexual advance defence is also wrong in practice, or in the outcomes which it generates. After all, the defence does not simply exist in the statute books, ignored and unused. Instead, it has been argued in a number of different criminal cases, sometimes successfully.

This means there are real offenders who are in prison (or who have already been released), who have had their conviction reduced from murder to manslaughter, and most likely their sentence reduced along with it, simply because they killed in response to an non-violent homosexual advance. The legal system has operated to reduce the liability of these offenders even when broader society does not accept that such a reduction is justified. As a result, these offenders have not been adequately punished, meaning that above all these victims have not received justice.

Similarly, the family members and friends of the victims killed in such circumstances have witnessed the trials of these offenders, expecting justice to be served, only to find that the killer is not considered a murderer under the law. Instead, these family members and friends find some level of blame is placed on the actions of the victim, that somehow by engaging in a non-violent sexual advance they have helped to cause and even partly deserved their own death.

For all of these reasons, I strongly support the abolition of the homosexual advance defence, or ‘gay panic’ defence, in any jurisdiction where it remains.

Therefore, I commend the Queensland Palaszczuk Labor Government for its commitment to remove this abhorrent law from the statute books via the Criminal Law Amendment Bill 2016.

It does so through the inclusion of clause 10, which would amend section 304 of the Queensland Criminal Code, the provision that establishes the partial defence to murder of provocation.

Specifically, I welcome the proposed insertion of new sub-section 304(3A):

“Further, sub-section (1) does not apply, other than in circumstances of an exceptional character, if the sudden provocation is based on an unwanted sexual advance to the person.”

Prima facie, the inclusion of this new sub-section substantively removes the partial defence of provocation for circumstances where the ‘provoking conduct’ was an unwanted, non-violent sexual advance.

In principle, then, the homosexual advance defence, or ‘gay panic’ defence, would be abolished in Queensland by the passage of this Bill.

However, I do have two concerns about the drafting of the amendments to section 304, and their potential operation.

First, by including the phrase ‘other than in circumstances of an exceptional character’, I am concerned that this leaves the door slightly ajar to at least some cases where the homosexual advance defence may be sought to be used.

I note that, for the purposes of new sub-section 3A, there is no restriction on what might constitute ‘circumstances of an exceptional character’ (with proposed new sub-section 6A merely providing that regard may be had to any history of violence, or of sexual conduct, between the offender and the victim).

This leaves room for judicial interpretation, and the possibility, albeit remote, that the homosexual advance defence may still be successfully raised.

For this reason, I suggest that the operation of the reforms to 304 be reviewed after a period of five years, to assess whether these amendments have operated as intended.

Recommendation 1: The operation of the proposed reforms to section 304 should be reviewed after five years, to assess how they have operated in practice, including how the term ‘circumstances of an exceptional character’ has been applied in cases where a defendant has sought to invoke what would be described as the homosexual advance defence.

The second concern I have about the proposed amendments is the inclusion of the definition of ‘unwanted sexual advance’ in new sub-section 9:

“In this section-

unwanted sexual advance, to a person, means a sexual advance that-

(a) is unwanted by the person; and

(b) if the sexual advance involves touching the person – involves only minor touching.

Examples of what may be minor touching depending on all the relevant circumstances-

patting, pinching, grabbing or brushing against the person, even if the touching is an offence against section 352(1)(a) or another provision of this Code or another Act.”

The attempt to provide clarity of what forms an unwanted sexual advance, as a means to prevent the successful use of the homosexual advance defence, is clearly welcome.

The reference to section 352(1)(a) is also useful because, as the Attorney-General noted in her second reading speech “the spectrum of conduct that falls within the offence of sexual assault is very broad”, and this should not automatically result in an increased ability of a murderer to seek to have their charge downgraded.

However, the creation of a definition of unwanted sexual advance creates the risk, and arguably the incentive, for the perpetrator of these types of offences to exaggerate the ‘touching’ that was involved in the unwanted sexual advance that preceded the murder.

Given the nature of these cases, there will necessarily be no ability for the victim to provide any evidence disputing this exaggeration.

It would obviously be disappointing if, in attempting to remove the homosexual advance defence, the Government introduces a provision that instead allows its continued use, in certain circumstances, with the defendant induced to increase their claims about the unwanted sexual advance by the deceased.

It is difficult to see how this particular risk can be completely excluded – other than by adopting the approach of some other states and territories (including Victoria, Western Australia and Tasmania) to abolish the partial defence of provocation entirely.

As with the definition of ‘circumstances of an exceptional character’ above, I suggest that the operation of these provisions generally, and the definition of ‘unwanted sexual advance’ specifically, be reviewed after five years, to determine whether there have been any unintended or unforeseen consequences of these amendments.

If there have been, then at that point it may be appropriate to consider abolishing the partial defence of provocation altogether, and replacing it with specific defences or partial defences for a limited range of scenarios (for example, in the context of family violence).

Recommendation 2: The operation of the proposed reforms to section 304 should be reviewed after five years, to assess how they have operated in practice, including how the definition of ‘unwanted sexual advance’ has been applied, and whether it has simply induced defendants to exaggerate their claims about the unwanted sexual advance by the deceased.

Thank you again for the opportunity to provide this submission regarding the Criminal Law Amendment Bill 2016, and specifically about clause 10, a provision that is intended to finally abolish the homosexual advance defence, or ‘gay panic’ defence, in Queensland.

As indicated above, I welcome these reforms in principle. The above two recommendations are offered in order to help ensure that the intention of the Bill is reflected in practice.

I can be contacted at the details provided with this submission, should the Committee have any questions about this submission, or require any additional information about the matters raised.

Sincerely

Alastair Lawrie

Yvette D'Ath

Queensland Attorney-General Yvette D’Ath, who introduced the Criminal Law Amendment Bill on 30 November last year.

If we want genuine marriage equality, we’re going to have to fight – & write – for it

2017 might be the year that Australia finally introduces marriage equality[i].

If it is, it will only be because lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians, and our families, friends and allies, have fought long and hard to make it happen.

However, there is also a very real risk that we end up with something less than genuine equality.

This is because there are some members within the Liberal National Coalition who are willing to support the right of LGBTI couples to marry, but only on the condition that new special rights to discriminate against us are included in any amendments to the Marriage Act.

That is simply not good enough.

As the US Supreme Court found more than 60 years ago[ii], separate but equal is not equal. And so we must reject any attempt to impose a 2nd-class system of marriage for LGBTI Australians, where we can be treated differently to cisgender heterosexual couples, merely because of who we are.

In the same way that we have fought, and continue to fight, for the right to marry, we must also fight for the right to marry equally.

The battleground for this campaign is the Government’s Exposure Draft Marriage Amendment (Same-Sex Marriage) Bill, released in October 2016. This is the legislation that the Government would have introduced had its (unnecessary, wasteful and divisive) plebiscite been held, and had it been successful.

While the Bill allows any two people to marry – and therefore would provide LGBTI Australians with the ability to finally tie the knot – it also proposes four new special rights to discriminate against any relationship that is “not the union of a man and a woman[iii].” This includes:

  1. A specific provision allowing ministers of religion to reject LGBTI couples, and only LGBTI couples[iv] – even though ministers of religion can already reject any couple for any reason. That means this clause is both unnecessary, and unfairly targets our relationships.
  1. An entirely new right for civil celebrants to reject LGBTI couples, and only LGBTI couples[v]. No other section of the Marriage Act 1961 currently allows these celebrants to discriminate. This homophobic provision is especially concerning given three out of every four weddings in Australia are conducted by civil celebrants.
  1. A specific provision allowing ‘religious bodies and organisations[vi] to deny facilities to, and withhold goods and services from, LGBTI couples, and only LGBTI couples[vii]. This has been included despite existing religious exceptions to anti-discrimination laws, at both Commonwealth and state and territory level, and applies even where these groups are engaged in commercial enterprise.
  1. A new right for Defence Force chaplains to reject LGBTI couples, and only LGBTI couples[viii]. This is despite the fact these chaplains are public servants, paid for by all taxpayers – including LGBTI Australians – and that they are expected to “administer spiritual support to all members, regardless of their religion” (emphasis added)[ix].

None of these new special rights to discriminate against LGBTI couples are necessary. All are completely unjustified. All must be challenged.

Fortunately, this Bill generally, and these proposed new ‘religious exceptions’ specifically, are currently the subject of a Senate inquiry.

The Select Committee examining this Bill has called for public submissions, which close next Friday (13 January). Full details of the Inquiry, including how to lodge, can be found here.

I encourage you to make your own submission, calling for the Committee, and ultimately the Parliament, to reject these four new special rights to discriminate against LGBTI couples.

In doing so, you could make the following two main points:

  • This Bill is NOT marriage equality

While the Marriage Amendment (Same-Sex Marriage) Bill would allow LGBTI couples to finally marry, by including new special rights to discriminate against LGBTI couples – and only LGBTI couples – the Bill actually establishes a 2nd-class system of marriage for some Australians based on their sexual orientation, gender identity or intersex status. ‘Separate but equal’ is not equal – which means this Bill would not deliver genuine marriage equality.

  • The exceptions included in this Bill do not protect religious freedom, they promote homophobia and transphobia

There are a variety of different religious beliefs about marriage. Some people believe only cisgender heterosexual couples should be able to marry[x]. Others do not believe in divorce, and therefore oppose the right of people to participate in second (or subsequent) weddings. Some even continue to hold the (once widespread) belief that people of different faiths should not marry.

If the Marriage Amendment (Same-Sex Marriage) Bill reflected genuine concerns about protecting ‘religious freedom’, it would allow civil celebrants, religious bodies and organisations and Defence Force chaplains to discriminate against divorced people, or against inter-faith couples[xi].

The fact that it does not, and that it establishes new special rights to discriminate solely against LGBTI couples, reveals the fundamental truth of this legislation: it has very little to do with protecting religious freedom, and much more to do with promoting homophobia, biphobia, transphobia and intersexphobia[xii].

**********

3 Ways to Take Action

If you agree with me, then now is the time to get involved, to get fighting – and writing – to let the Senate Committee, and the Government, know that marriage equality should mean exactly that: equality. And we won’t accept anything less.

Here are three ways you can take action in the next week:

  1. Write your own submission to the Senate Inquiry. As noted above, details on how to do so can be found here. Alternatively, two LGBTI organisations have designed web platforms to make writing a submission easier:
  1. Complete these surveys about the Bill. Both the NSW Gay & Lesbian Rights Lobby and just.equal (& PFLAG Australia) are consulting the LGBTI community about what they think of the proposed religious exceptions. Let them know your views here:
  1. Sign and share this petition to Prime Minister Malcolm Turnbull, demanding that Equal love should not be treated unequally.

Above all, if you think that equal means equal, no ifs, buts, or maybes, then it’s time to get writing…

equalmeansequal-3

Footnotes:

[i] Of course, if Malcolm Turnbull continues to fail to show any leadership on this issue, we might instead be forced to wait until 2019 or 2020.

[ii] Brown v Board of Education, 347 US 483 (1954)

[iii] Interestingly, this phrase would not cover all LGBTI couples – for example, civil celebrants, religious bodies and organisations and Defence Force chaplains would not be able to reject heterosexual couples where one or both members are transgender and where the couple identifies as a man and a woman.

[iv] Proposed sub-section 47(3)

[v] Proposed new section 47A

[vi] It is worrying that these terms are not defined in the Bill, meaning the number of bodies or organisations allowed to discriminate against LGBTI couples could be high.

[vii] Proposed new section 47B

[viii] Proposed new note to section 81

[ix] For more on why these new special rights to discriminate must be rejected, see The Marriage Amendment (Same-Sex Marriage) Bill in Unacceptable.

[x] Of course, they should not be able to impose that belief on others through secular law.

[xi] I am not arguing for either to be made lawful, merely highlighting the double-standard that lies at the heart of the Marriage Amendment (Same-Sex Marriage) Bill.

[xii] The Government, having revealed its (homophobic) intentions, also cannot now turn around and extend these new special rights to discriminate against divorced people and inter-faith couples because they will only be doing so to ‘cover up’ the anti-LGBTI nature of its original legislation.

2016: Annus Homophobicus

 

In November 1992, the Queen of England (and, unfortunately, still the Queen of Australia too) gave a speech in which she described the previous 12 months as her ‘annus horribilis’.

 

To be fair, it had been a rough year for Ms Windsor, with the separation of her eldest son from his wife, the divorce of her only daughter from her husband, frequent tabloid scandals (hello toe-sucking!) and even a fire in one of her (many) houses[i].

 

But, as bad as Elizabeth II’s year was back then, it’s frankly got nothing on how depressing, and frustrating, 2016 has been for lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians.

 

So, as the year draws to a close, and we look back on the (too few) highs and (far too many) lows, it feels apt to declare the past 12 months to be our very own ‘annus homophobicus’.

 

It started in January with the launch of a ferocious, and well co-ordinated, attack on the Safe Schools program by the Australian Christian Lobby, The Australian newspaper and extremists in the right-wing of the Liberal-National Government.

 

And, even after Prime Minister Malcolm Turnbull ‘gutted’ the program in early March, the campaign against what is a vital anti-bullying program designed to help LGBTI students has continued, as unyielding as it is lacking in compassion.

 

The year ended with the tragic death of 13-year-old Brisbane high school student, Tyrone Unsworth, in late November. Indigenous and gay, Tyrone had suffered relentless bullying because of his sexual orientation, until he ultimately took his own life.

 

A death that, understandably, shook many members of our community to the core, it was particularly hard for LGBTI Aboriginal and Torres Strait Islander people.[ii] It was a tragedy that demonstrated the very need for a program that homophobic bigots had spent the best part of a year trying to dismantle.

 

In between, 2016 was dominated by Turnbull’s proposed plebiscite on marriage equality – a policy that was completely unnecessary, fundamentally wasteful and, if held, would inevitably be harmful for countless young and vulnerable members of the LGBTI community, including the children of rainbow families.

 

It took the collective efforts of a variety of LGBTI groups, alongside the work of many individual activists, over several months, to finally defeat the planned plebiscite in early November. But that sustained campaign, against a proposal that had been put forward simply to delay or defeat rather than achieve equality, left a large number of people almost completely drained (myself included).

 

The past 12 months has also witnessed a rise in homophobic and transphobic hate-speech. It seems that anti-LGBTI rhetoric is both more common, and more ‘acceptable’, in Australia now than at any point over the past 10 to 15 years.

 

And it certainly does not help that the frequent abuse of LGBTI people coming from inside the Government, by the likes of Cory Bernardi and George Christensen, has gone without any obvious punishment from an allegedly-moderate Prime Minister too scared to stand up to his more-conservative colleagues.

 

Even worse than hate-speech, 2016 has seen plenty of horrific hate-based actions, both here and around the world.

 

This includes the almost unspeakable tragedy in Orlando on June 12th, with the mass murder of 49 people, and wounding of 53 others, at Pulse. With the popular gay nightclub holding a Latin night, most of the victims were young and Latinx. Six months later, it remains impossible not to cry when reading or watching tributes[iii] to the casualties of this terror attack.

 

pulse-tribute

Tributes to victims outside the Pulse nightclub in Orlando, Florida.

 

Acts of homophobic and transphobic violence were not limited to the United States, however. In Australia, too, there were countless assaults on LGBTI people.

 

The one that hit closest to home – both literally[iv] and figuratively – was the young Sydney man who was ‘gay-bashed’ twice in one night[v], the second time by a supposed ‘good Samaritan’ who had initially helped him after the first attack, only to assault the victim himself after learning he was gay.

 

This was a crime based on homophobia that could happen to anyone, anywhere, anytime, including my fiancé Steven and me.

 

**********

 

The net effect of these events, alongside other shocking outcomes of the past year (including Brexit and the election of Donald Trump), has been sufficient to undermine the belief that progress is somehow inevitable, that the future will always be better than the past.

 

But, as LGBTI Australians, we don’t need the fear-fuelled success of a xenophobic campaign against immigrants in the UK, or of a sexist and racist tyrant-in-training in the US, to remind us that political change is not inherently positive.

 

As many of you would know, the past few years have seen a number of areas where progress on LGBTI policy and law reform hasn’t just stalled, but been actively wound back.

 

One of the first acts of the Campbell Newman-led Liberal-National Queensland Government in 2012 was to abolish ceremonies as part of the recently-passed civil partnership scheme in that state[vi].

 

In Victoria, the Baillieu Coalition Government repealed the ‘inherent requirement’ test from that state’s Equal Opportunity Act – which had required religious employers to demonstrate that discrimination against LGBT employees was an essential part of the role – before it had even commenced operation in 2011[vii].

 

The Tasmanian Liberal Government not only made discrimination by religious schools easier in 2015 (thereby undermining what has been the nation’s best anti-discrimination scheme), it is currently committed to reducing protections against vilification, including those enjoyed by LGBTI Tasmanians.

 

And we shouldn’t forget the decision by Prime Minister Turnbull to discontinue funding for the Safe Schools program (with Commonwealth money to cease from 2017), an initiative that his predecessor, Tony Abbott, had actually implemented less than three years earlier.

 

It is clear then, that progress on LGBTI issue is not inevitable. And it is almost enough to challenge the wisdom of one of Martin Luther King, Jr’s many note-worthy quotes, namely that “The arc of the moral universe is long, but it bends toward justice.”

 

Almost, but not quite.

 

As painful as the past 12 months have been for many, especially for members of Australia’s LGBTI communities, we nevertheless must see these events in their historical context, and recognise that – at least on a (much) longer time-scale – overall, things are still headed in a positive direction. And that remains the case even if there are twists and turns, even significant bumps, along the way.

 

But the most important lesson to remember is that, while the arc may ‘bend toward justice’, it only does so because good people come together to take action to make change happen.

 

Just as US cultural anthropologist Margaret Mead famously observed: “Never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it’s the only thing that ever has.”

 

One of the best examples of this maxim actually comes from one of the major LGBTI victories of 2016 – the long overdue equalisation of the age of consent for male homosexuality in Queensland.

 

While this was discriminatory legislation that affected many, its repeal was only a priority for a dedicated few[viii], including long-time LGBTI activist John Frame[ix] among others.

 

Through painstaking, and often thankless, campaigning over years and eventually decades, they chipped away at an unjust law until it was finally amended in September this year, almost 25 years since it was first introduced.

 

There were other wins this year too. The Palaszczuk Labor Government in Queensland also passed legislation to allow adoption by same-sex couples, while the Weatherill Labor Government in South Australia ended 2016 with a flurry of pro-LGBTI law reform, including relationship recognition, same-sex adoption and trans birth certificate changes[x].

 

And of course, there was the LGBTI community’s success in defeating the marriage equality plebiscite, a victory that was by no means guaranteed at this point last year[xi].

 

All of which is to show that, despite the increasingly toxic political environment that we appear to be operating in, and the significant losses cited above, positive change is still possible – if we keep our sights on the country, and world, that we want to create, and work towards it patiently, gradually, relentlessly.

 

**********

 

For my part, as I look ahead to 2017, I will be redoubling my efforts to improve Australia’s incomplete, inconsistent and in many cases inadequate system of LGBTI anti-discrimination and anti-vilification laws.

 

I know others will concentrate their energies on (finally) achieving marriage equality, as well as a myriad of other reforms, from ending the involuntary sterilisation of intersex infants, to further trans birth certificate changes, ending the inhumane detention of LGBTI refugees and reinvigorating the Safe Schools program.

 

So, let’s end 2016 by reflecting, relaxing and hopefully recuperating, so that when the new year rolls around we are ready to dust ourselves off, fight once more and bend that arc towards a more just country for LGBTI Australians.

 

**********

 

I have one final favour to ask. Could you please take 5-15 minutes to complete this short survey about your experiences of homophobic, biphobic, transphobic and intersexphobic discrimination, over the past 12 months, and previously?

 

The results of this research will be used to advocate for better protections against discrimination for LGBTI people across Australia, as well as to campaign for the introduction of LGBTI anti-vilification laws where they do not currently exist.

 

Please TAKE THE SURVEY NOW.

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If this post has raised any issues for you, you can contact:

 

  • QLife, Australia’s national telephone and web counselling and referral service for LGBTI people. Freecall: 1800 184 527, Webchat: qlife.org.au (3pm-midnight every day)
  • Lifeline: 13 11 14, lifeline.org.au

 

Footnotes:

[i] See The Guardian “How the Royal Family Bounced Back from its Annus Horribilis” 24 May 2012.

[ii] If you have a chance, please read Dameyon Bonson’s excellent op-ed “I am Indigenous. I am Gay. Unlike Tyrone Unsworth, I Survived” in The Guardian Australia, 28 November 2016.

[iii] For example, see Anderson Cooper’s emotional tribute on CNN in the days after the tragedy here.

[iv] The victim lived in our apartment complex, with the second attack happening just 50 meters from our building.

[v] The Daily Telegraph “Gay man bashed twice in Waterloo: I’ve never been so scared in my life, and thought I would die” 23 February 2016.

[vi] Thankfully, these ceremonies were reintroduced by the subsequently (and surprisingly) elected Palaszczuk Government.

[vii] The current Victorian Liberal-National Opposition, led by Matthew Guy, defeated Andrews Labor Government legislation to reinsert this test in November 2016.

[viii] With many focusing on more ‘popular’ issues like marriage equality.

[ix] See samesame.com.au “It’s time to update Queensland’s sex laws” 23 August 2015.

[x] For more on LGBTI successes of the past 12 months, see Lane Sainty’s summary in Buzzfeed “13 Times Australia’s LGBTI Community Had a Win in 2016” 16 December 2016.

[xi] For more, see Pride, Pressure & Perseverance.

The Good, the Bad & the Ugly from ALP National Conference 2015

Last month, a News Corp newspaper published an opinion piece that included the following:

 

“The personal lives and struggles of lesbian, gay, bisexual, transgender and intersex people, for example, have been transformed. All discriminatory laws have been repealed (marriage as a heterosexual construct is not discriminatory), historical convictions expunged, parenting rights assured, and discrimination protections are in place. The population as a whole is relaxed and indifferent to gays.

 

“Gay and other sexual orientation people struggle with identity because it is so vexed. It is not society’s hetero-normative orientation that makes it so. Gays have fought for equality for a long time. And, bravo, they have won. No more to be sent to prison for buggery. But living, that is another matter.”

 

In short, a (presumably) cisgender heterosexual opinion writer has declared that, in 2016, homophobic, biphobic, transphobic and intersexphobic discrimination and prejudice no longer exists – oh, and if LGBTI people experience any issues from now on, it’s basically our own fault.

 

To some extent, it doesn’t really matter which particular News Corp publication it was[i], nor the individual author[ii]. At the end of a year filled with relentless attacks on Safe Schools specifically and the LGBTI community generally (which contradict the author’s argument), and ongoing straight-splaining and cis-splaining that we should accept a plebiscite ‘if we knew what was good for us’, the frequent yet baseless criticisms of LGBTI people for having the temerity to stand up for our rights have started to all blur into each other.

 

But I do want to thank this particular author (no, not for the rubbish quoted above) because they went on to note:

 

“Politics is slow to adjust to this reality. Take Labor’s national platform. There are no fewer than 45 substantial references to LGBTI rights such as de-gendering government documents, transgender public toilets, free surgery for sex reassignment, outlawing “cures” for gay people and trashing “non-compliant” religious beliefs…

 

“For example, the party has vowed to “investigate amending the Human Rights Act to establish a commissioner for sexual orientation, gender identity and intersex status issues… within the Australian Human Rights Commission…

 

“The commissioner will have some juicy new laws on which to pontificate because the platform states that “homophobic, biphobic, transphobic and intersexphobic harassment by the written or spoken word causes actual harm, not simple mere offence… Labor will consider whether current anti-discrimination law provides effective sanctions.

 

“And it will come as no surprise that Labor “will continue to support national programs to address homophobia, biphobia, transphobia and intersexphobia in schools. This includes ensuring gender-diverse students are able to express the gender they identify with including through preferred name and dress.”

 

It might have taken them more than 16 months, but it seems that particular commentator has finally noticed that the national platform adopted by the Australian Labor Party at its national conference in July 2015 is the most progressive LGBTI policy manifesto from a major party (Labor, Liberal or Nationals) in our country’s history.

 

In doing so, they have prompted me to finally write about my own involvement in contributing to many of these changes, as well as the only partially-successful campaign to adopt a binding vote on marriage equality (#ItsTimeToBind), and the reasons why I am no longer a member of the Party (but more on that later).

 

**********

 

The Good

 

First, for those with little or no experience in internal Labor Party politics, a description of what the National Platform is, and a quick explanation of the process involved in determining what is included.

 

The Platform is the Party’s primary policy document, setting out formal positions on a wide range of issues, from health and education, to employment and industrial relations, and other topics like climate change and social inclusion.

 

It is determined every three years or so (with a new one developed during each term of Commonwealth Parliament), with a working group preparing an initial version, which is then open to party member consultation, and finally the draft Platform, as well as proposed amendments, is voted on and adopted by the National Conference (which consists of elected delegates, union representatives and some MPs and party officials).

 

The final platform adopted by the July 2015 National Conference can be found here.

 

As you will see if you take a look through its 239 pages, there is one thing the incredibly generic News Corp opinion writer cited above got right – there are indeed a large number of commitments to address discrimination against lesbian, gay, bisexual, transgender and intersex Australians. These positions cover a broad range of policy areas, from health and education, to housing and homelessness, and assisted reproductive technology and rainbow families.

 

And I am proud to say I had a hand in drafting a number of these, as well as contributing to the overall push that ensured a number of others were passed.

 

The first, and perhaps most important, step was setting out a clear LGBTI policy agenda almost 10 months before the Conference itself – in September 2014, by publishing my 15 LGBTI Priorities for ALP National Conference 2015. Circulating that list so far in advance not only allowed others to ‘buy-in’ to various elements, it also served as a regular reminder in the lead-up to Conference of what was important (and not to be distracted by other issues).

 

I also wrote a comprehensive (14 page) submission as part of the pre-consultation process in May 2015 (see: An LGBTI Agenda – Submission on Draft ALP National Platform 2015). Happily, a couple of recommendations from that submission were included in the draft Platform presented to Conference – and are contained in the final National Platform, including:

 

  • Amending a commitment to reduce the rate of youth suicide in rural communities to specifically include ‘young lesbian, gay, bisexual, transgender and intersex people’[iii], and

 

  • Something I am particularly proud of, an entirely new commitment that “Labor acknowledges the young lesbian, gay, bisexual and transgender people are at significantly higher risk of homelessness, and commits to support dedicated services aimed at addressing this issue.”[iv]

 

Then, in the lead-up to National Conference, the draft Platform was released, and I had to redraft the remaining recommendations from my submission as specific amendments so that they could be moved at Conference. I also consulted with key trans[v] and intersex[vi] advocates to ensure their issues were being addressed.

 

On the weekend of 4 and 5 July 2015[vii], I attended the National Left Conference in Sydney, bringing with me multiple hardcopies of these amendments which were then able to be adopted by the working groups looking at different Chapters of the Platform. I should note that at this point, there were no formal amendments or motions from Rainbow Labor (either nationally or in NSW), so it was in effect my own personal LGBTI agenda that was being put forward.

 

In the three weeks between the National Left Conference and the National Conference (which was held in Melbourne from Friday 24 to Sunday 26 July), and given I was not a conference delegate myself, I then organised for Nick Thompson – an excellent Rainbow Labor activist from Queensland – to move, and Michael Butterworth – a friend and former colleague from when we both worked for Senator John Faulkner – to second these amendments.

 

At that point my involvement largely ceased. Many of the amendments were formally adopted by Rainbow Labor as their policy positions for conference. Many were also formal ‘Left’ positions (as a result of the National Left Conference, described earlier). Some were both, increasing their chances of success.

 

The fate of a number of these amendments was ultimately dependent on the hard work of a large number of people, too many in fact to mention them all here, although, in addition to Nick and Michael above, I would like to pay particular tribute to advocates like long-time Victorian LGBTI activist Jamie Gardiner, NSW MLC Penny Sharpe, and then-former-Senator – and now Senator-again – for Western Australia Louise Pratt. This was truly a collective effort by LGBTI people inside the Labor Party.

 

In the end, a large number of LGBTI amendments were passed, helping to make the 2015 ALP National Platform the most LGBTI-inclusive policy manifesto of any ‘party of government’. Several of these were amendments I had drafted, including:

 

  • A commitment that “Labor will continue to support national programs to address homophobia, biphobia, transphobia and intersexphobia in schools”[viii] (yes, the same commitment criticised in the News Corp article above).

 

  • Support for national, inclusive parenting laws: “Labor will seek national agreement on the recognition of lesbian, gay, bisexual, transgender and intersex parents, based on the principle that LGBTI-inclusive couples should be able to access assisted reproductive technology, to adopt, and to enter into domestic surrogacy arrangements, on an equal basis to cisgender heterosexual couples in every Australian State and Territory.”[ix]

 

  • Expansion of inter-country adoption to include LGBTI parents: “Where adoption arrangements already exist between Australia and other countries, Labor will seek to ensure these arrangements are expanded to allow for inter-country adoption by LGBTI parents on an equal basis to cisgender heterosexual couples. Where Australia seeks to enter into new inter-country adoption arrangements, Labor will seek to ensure all new agreements treat LGBTI parents equally.”[x]

 

  • A commitment to “Investigate amending the Australian Human Rights Commission Act to establish a Commissioner for Sexual Orientation, Gender Identity and Intersex Status issues, with equivalent powers, responsibilities and funding to Commissioners within the Australian Human Rights Commission”[xi] (also subject to attack in the op-ed discussed at the start of this post).

 

  • A further commitment to consider how to better protect LGBTI Australians against vilification: “Homophobic, biphobic, transphobic and intersexphobic harassment by the written or spoken word causes actual harm, not simple mere offence, to people who have suffered discrimination and prejudice, and causes particular harm to young same-sex attracted, or gender-questioning and intersex people, and considers such harmful harassment is an unacceptable abuse of the responsibilities that come with freedom of speech and must be subject to effective sanctions. Labor will consider whether current anti-discrimination law provides such effective sanctions”[xii] – yet another paragraph to earn the ire of the News Corp columnist cited earlier.

 

  • Finally, ensuring that the human rights of LGBTI people are considered as part of Australia’s foreign aid program.[xiii]

 

There are two motions that I drafted, and which were adopted, that I am especially proud of:

 

  • A commitment to remove out-of-pocket medical expenses for trans people: “Labor acknowledges the right of all Australians, including transgender and gender diverse people, to live their gender identity. For many, this includes accessing specialist health services and for some people can involve gender affirmation surgery. Cost should not be a barrier to accessing these services and/or surgery, and Labor commits to removing, wherever possible, out-of-pocket health expenses for transgender people incurred in relation to their gender identity”[xiv] (another policy that the opinion writer above complained about), and

 

  • Importantly, a declaration that “Labor will not detain, process or resettle lesbian, gay, bisexual, transgender or intersex refugees or asylum-seekers in countries which have criminal laws against any of these communities as it makes these places unsafe environments for all of them”[xv] – in effect, meaning a Labor Government cannot send LGBTI people seeking asylum to Manus Island, or attempt to resettle them in Papua New Guinea (or Malaysia for that matter).

 

Additional amendments, which I developed in consultation with intersex activists, were also successful, including:

 

  • Commitments to end involuntary and unnecessary medical procedures on intersex children[xvi],

 

  • “Support[ing] national intersex-led organisations to provide support to intersex persons and their families, and advocate on intersex issues”[xvii], and

 

  • Ensuring that the use of sex and gender markers on official documents is proportional, and allowing people with intersex variations to exercise autonomy regarding their own sex/gender markers.[xviii]

 

Overall, that’s 13 different LGBTI commitments[xix] that I drafted (including three developed in consultation with intersex advocates) that were ultimately included in the final ALP National Platform 2015. Not too shabby.

 

And, probably more pleasing than the number is the breadth of topics covered – just as I had hoped in September 2014, this was truly a broad and progressive LGBTI agenda, and hopefully one that will be fully implemented the next time an ALP Government is elected.

 

But perhaps the biggest compliment of all, in terms of my activism in the lead-up to last year’s ALP National Conference, is that about half of the policies that so incensed the opinion writer in last month’s News Corp anti-LGBTI tirade originated from the same computer I am sitting at right now.

 

*********

 

The Bad

 

Unfortunately, the 2015 ALP National Conference wasn’t all good news, either generally (for more on that see ‘The Ugly’, below), or for LGBTI rights specifically.

 

As regular readers of this blog would be aware, one of the LGBTI issues that I am most passionate about is marriage equality.

 

And, as someone who had been a member of the Labor Party since mid-2002, even having served as a Ministerial adviser in Canberra from early 2008 to mid-2012[xx], I was similarly passionate about collective action, and the principles of solidarity that underpinned it.

 

Taken together, these factors meant I absolutely believed that, as a fundamental matter of human rights, all ALP Members of Parliament and Senators should be bound to vote for marriage equality.

 

And last year’s National Conference was the best chance for this principle to become a reality, reflected in the Party’s Constitution and Rules.

 

I actually started campaigning for this change more than 12 months beforehand, with a blog post (and then article on samesame.com.au) called Hey Australian Labor, It’s Time to Bind on Marriage Equality in July 2014.

 

This campaign – which I dubbed #ItsTimeToBind – then became the inspiration for a large number of articles, especially from April 2015 onwards, leading right up to the Conference itself (see, for example, What ALP National Conference Delegates Should Hear About Marriage Equality).

 

In essence, I was arguing that not only would a binding vote in favour of marriage equality align with the ALP’s organising philosophy (namely solidarity), it would also help achieve this long overdue reform in Australia.

 

Unfortunately, the 2015 National Conference did not unequivocally endorse this view.

 

It did not adopt a binding vote on marriage equality for the remainder of that parliamentary term (which ended with Malcolm Turnbull’s re-election on July 2 this year).

 

Nor did it adopt a binding vote for the duration of the current term, which is not due to expire until the first half of 2019 (although, given recent events and the threatened ‘split’ by Cory Bernardi, George Christensen and others, an earlier election cannot be ruled out).

 

Instead, as you are probably aware, last year’s meeting of delegates voted to adopt a binding vote in favour of marriage equality only after an additional one and a half terms – or potentially up to four years – had elapsed.[xxi]

 

Frankly, it is a nonsense policy. And it seemed to be adopted for nonsense reasons, having more to do with internal deal-making than with same-sex marriage-celebrating.

 

Of the many, many critiques that could be made of this ‘half-pregnant’ approach to marriage equality, I would particularly like to note the following:

 

  • It is internally inconsistent. The principles of this issue have not, and will not, change between mid-2015 and early 2019. Either marriage equality is something worth fighting for – collectively – or it’s not. There is absolutely no rational reason why it will suddenly become worth binding on after three and a half or four years.

 

  • It imposes an unacceptable delay. The ALP has been playing catch-up on this issue for far too long – only embracing a platform position in favour of marriage equality in December 2011 (after the majority of the population had already expressed their support), and then having a conscience vote on it for another seven years plus. Ultimately, it will be an almost 15 years delay from the ALP adopting the worst possible policy (binding its MPs and Senators to oppose equality in August 2004, and for the following seven and a half years), to finally arriving at the correct one. Too many Australians have been denied the recognition of their human rights because of this tardiness.

 

  • It represents a failure of ‘the Left’. The factions and sub-factions that make up the Left of the Labor Party actually had the numbers on most policy issues at last year’s Conference, for the first time in a generation (or more). And yet that numerical superiority did not translate into the adoption of what would have actually been a moderate left-wing position – amending the rules to bind parliamentarians to vote for marriage equality, either in the remainder of the 2013-2016 term or, at the least, from the time of the subsequent federal election. This failure means that there must have been some ‘comrades’ there who didn’t consider LGBTI Australians to be their

 

On this final point, a special ‘dishonourable’ mention must go to the Member for Grayndler, Anthony Albanese, who, despite being notionally left-wing, repeatedly argued against binding for LGBTI rights. And he did so at several key points:

 

  • In late May, after the successful referendum on marriage equality in Ireland, and with momentum building for a binding vote within the Labor Party here, he opted to make a speech against solidarity on this issue in the House of Representatives[xxii];

 

  • At the National Left Conference in early July (mentioned above), ‘Albo’ was the only speaker who opposed a binding vote; and

 

  • Most importantly – and most unforgivably – on the morning of the last day of National Conference itself, Mr Albanese went on national television, not just to make the case for a continued conscience vote, but also to suggest that uniting to recognise the human rights of lesbian, gay, bisexual, transgender and intersex people was somehow ‘intolerant’.

 

The full transcript of that now infamous appearance on Insiders reveals his complete absence of understanding of this issue:

 

BARRIE CASSIDY: Now on gay marriage, it seems what the position the left wants is a conscience vote this side of the election and a binding vote after that. Do you support that idea?

ANTHONY ALBANESE: Well I support a conscience vote on these issues. I do so as a matter of principle as well as …

BARRIE CASSIDY: But not a binding vote beyond the election, so you’ll split with your own faction on this one?

ANTHONY ALBANESE: Well I support a conscience vote on these issues. I am a strong supporter of marriage equality. I’m the first member of Parliament in the House of Representatives to bring a private member’s bill about equal rights for same-sex couples. I did that in my first term, back at the last century. And I’m of the view though that you can have that strong position, but be respectful towards people who because of their faith, have a different point of view. We need – part of what enriches our society is its diversity. That’s part of what equal rights for people who are same-sex couples is about. Now, you can’t call for tolerance and respect for diversity, in my view, whilst being intolerant. Now, I believe very strongly that it should be a conscience vote, that there should be a private member’s bill put before the Parliament this year and we should debate it, and then, of course, I think we’ll move on and people will wonder what the fuss was about. People should be allowed – people love who they love and we should respect that and it will, in my view, strengthen the institution of marriage where more people are able to participate in it [emphasis added].

 

No, Mr Albanese, requiring members of a supposedly progressive political party to vote in favour of recognising the right of all couples to marry under secular law, irrespective of their sexual orientation, gender identity or intersex status, is not intolerant or disrespectful.

 

Those who do not believe in equality, for whatever reason (and let’s both admit that, for many, it is a religious one) can choose not to celebrate it in their personal lives – but that does not give them an inalienable right to deny the ability to marry to others.

 

While you may have been a leader on same-sex rights ‘back at the last century’ (your words), in the current century you have held back progress on this important reform (my words). What you did last year won’t be forgotten, and can’t be forgiven either.

 

Anthony Albanese

Anthony Albanese, who opposed solidarity for LGBTI Australians at the 2015 ALP National Conference.

 

Of course, the folly of the approach adopted not just by Mr Albanese, but by anyone inside the ALP who thought that retaining a conscience vote would convince the Liberals to adopt their own, was revealed just three weeks later.

 

On 11 August 2015, then-Prime Minister Tony Abbott, and the Coalition Party-room, did what they do best, finding a novel way to screw over LGBTI Australians, by proposing to hold a plebiscite – a mechanism that hadn’t been used to resolve a substantive matter of public policy in almost a century (and which the LGBTI community had to spend the following 15 months defeating).

 

Where did that leave the Labor Party? Hamstrung by a compromise, and compromised, policy which meant it could not fully exploit the pettiness, and downright stupidity, of Abbott, and later Turnbull’s, plebiscite – after all, how much easier would it have been to campaign in the lead-up to the 2016 election to say ‘We will pass marriage equality’ rather than the more convoluted “We will attempt to introduce marriage equality, but even if we are elected whether or not marriage equality passes will depend on the size of any majority, the final makeup of the ALP caucus that is chosen, and potentially even on whether Liberal and/or National MPs are prepared to cross the floor’.[xxiii][xxiv]

 

But, leaving such capital ‘P’ political considerations aside, there remains the underlying principle, and principal flaw, of this issue – namely, it is utterly indefensible that, given all of the issues that Labor binds its parliamentarians about (see One of these things is not (treated) like the others), the Party still refuses to compel them to vote for the equal treatment of equal love.

 

**********

 

The Ugly

 

This comparison – between the fact the Labor Party does not bind its MPs and Senators to vote in favour of marriage equality, but does bind them on all manner of other issues, including those that are far more complex and in many cases ethically challenging – is perhaps best made with what was unquestionably the worst policy outcome from the 2015 Conference (at least from a progressive standpoint): the ALP’s position on refugees and people seeking asylum.

 

In short, not only did National Conference fail to overturn the parliamentary Party’s support for the offshore processing and resettlement of refugees[xxv], it also did not support an amendment that would have ruled out future support for ‘boat turn-backs’ (effectively allowing Opposition Leader Shorten to endorse the Abbott/Turnbull Government’s increasingly abhorrent practices in this area).

 

As with the vote on marriage equality, there had been some hope of a different outcome. After all, the position adopted by the previous ALP National Conference, in December 2011, on these issues was not terrible[xxvi].

 

Instead, it was the actions of Prime Minister Julia Gillard – who restarted offshore processing in mid-2012 – and Prime Minister Kevin Rudd – who agreed to the permanent resettlement of refugees in Papua New Guinea in his brief second stint as Leader in mid-2013 – that were repugnant.

 

Consequently, the 2015 National Conference was an opportunity for delegates, including those chosen by ordinary members and the union movement, to democratically overturn the Caucus’ position. And, if ‘Left’ delegates had united to oppose boat turn-backs, and to overturn offshore processing and resettlement, then either or even both of these policies could have been consigned to history.

 

But they did not seize that historic opportunity. What is left is a policy that dehumanises people who are simply seeking our help in the hope of a better life.

 

It was this particular failure, on refugee policy, that was the final straw for me in terms of my ongoing membership of the Party.

 

The awfulness of this approach – moving people seeking asylum to other countries, where they are detained, often indefinitely, in inhumane conditions, without the prospect of resettlement in countries that can effectively look after them, and, worst of all, without hope – was simply overwhelming.

 

And, yes, the fact the Party expects all of its parliamentarians to vote in favour of this position, and yet still cannot bind them to vote in favour of Steve and my wedding (with our engagement now reaching almost seven years), was an added sting in the tail.

 

So, when NSW Labor Party membership renewal notices were circulated in October 2015, I could not find a compelling reason to complete and submit mine. Meaning that, for the first time since university, I am no longer a member of a political party.

 

I should add that I do not judge others who remain inside the Party, having reached a different conclusion. There are many fine people who oppose the unjust policy on refugees and people seeking asylum, and who have chosen to stay and fight, in the hope that they can affect positive change on this issue at the next National Conference in 2017 or 2018. I applaud their dedication to the cause, and their ability to march on.

 

But, on a personal level, after the battles that were fought, and in at least two key cases lost, at the 2015 National Conference, that war will be fought without this particular ‘soldier’. I can’t see that situation changing any time soon.

 

**********

 

Footnotes:

[i] The Australian, “Brave new post-identity world of no more excuses”, Wednesday 30 November 2016.

[ii] Gary Johns

[iii] Final dot point of paragraph 68 on pages 107-108.

[iv] Paragraph 133 on page 130. And that pride survives the unfortunate typo (‘the’ instead of ‘that’), which itself survived from my original submission. Although I guess that’s one way of demonstrating that this commitment was included as a result of my submission.

[v] Including Sally Goldner from Transgender Victoria.

[vi] Especially Morgan Carpenter from OII Australia.

[vii] As an aside, attending this Conference meant missing out on travelling to Queensland to celebrate my dad’s 70th birthday. It was a tough decision but, in the absence of anyone taking ownership of the LGBTI agenda at this conference, I acutely felt the need to be the person to step forward on this particular occasion. I also made this decision because I have learned, over many years (and now decades) of campaigning, that it is the people who show up who actually make things change. Oh, and in case you were feeling sympathy, my father, who himself was a former political candidate, understood my decision.

[viii] Included in paragraph 46 on page 90.

[ix] Paragraph 177 on page 137.

[x] Paragraph 178 on page 137.

[xi] A new dot point in paragraph 71 on page 162 – although this was slightly watered down from the original amendment: “Labor will amend the Sex Discrimination Act to establish a stand-alone Commissioner for Sexual Orientation, Gender identity and Intersex Status issues, with equivalent powers, responsibilities and funding to the Sex Discrimination Commissioner.”

[xii] Paragraph 103 on page 165 – although the last paragraph is actually less decisive than the amendment as originally drafted: “Labor will introduce anti-vilification protections for lesbian, gay, bisexual, transgender and intersex Australians, which are based on and equivalent to existing racial vilification protections in the Racial Discrimination Act.”

[xiii] By amending paragraph 60 on pages 173-174 to read: “Labor’s overseas aid efforts will promote human rights while addressing development challenges. All people should be able to lead healthy and prosperous lives with shelter, education, food and clean water, health and sanitation, and emergency services support – regardless of gender, ethnicity, religion, cultural belief, sexual orientation, gender identity and intersex status.”

[xiv] Paragraph 73 on page 109.

[xv] Paragraph 249 on page 145.

[xvi] With the addition of the following three dot points to paragraph 72 on page 109:

  • “Ensure the deferral of non-necessary medical intervention on infants and children with intersex variations until such times as the person concerned can give informed consent
  • Prohibit modifications to sex characteristics undertaken for social rationales, without informed consent
  • Ensure that intersex persons’ right not to undergo sex assignment treatment is respected.”

[xvii] A new dot point in paragraph 69 on page 163 – although disappointingly the original version of this amendment started with ‘fund’ (which was amended to ‘support’ instead) but it is a positive development nonetheless.

[xviii] New dot points in paragraph 69 on page 163.

[xix] There are two additional amendments that were built on/modified by Rainbow Labor activists in Melbourne:

  • My suggested amendment that “Labor acknowledges that the curriculum development process has produced a National Health & Physical Education (HPE) Curriculum that excludes content that is vital to meet the needs of LGBTI students and young people. Labor commits to reviewing the HPE curriculum and producing a new HPE curriculum, that genuinely includes LGBTI students and content, and incorporates LGBTI-inclusive sexual health education” was incorporated as part of a successful resolution related to Chapter 7: “Labor believes all students – including LGBTI students – deserve to benefit from health and physical education programs that support their physical and emotional wellbeing, and development. Labor commits to commission a review to ensure the curriculum genuinely meets the needs of LGBTI students and equips all students with age-appropriate information to learn about:
    • Respectful relationships
    • Concepts of consent
    • LGBTI-inclusive sexual health education and
    • Respectful and positive portrayal of sexuality across media forms.”
  • My proposed amendment about the non-refoulement of LGBTI people seeking asylum (“Labor will not return lesbian, gay, bisexual, transgender or intersex refugees or asylum-seekers to countries which have criminal laws against any of these communities as it makes these places unsafe environments for all of them”) was superseded by the following amendment included at paragraph 267 on page 147 in the Platform:
    • “In assessing asylum claims where the fear of persecution arises from a person’s LGBTI status, the fact that the country the person is fleeing has criminal penalties for engaging in consensual homosexual sex is sufficient of itself to establish that fear of persecution is well-founded, and any assessment of the asylum seeker’s identity and fear must take account of the very different manifestations of LGBTI identity that other cultures, especially ones profoundly hostile to LGBTI people, necessarily engender.”

[xx] First for Senator the Hon John Faulkner, and later for Senator the Hon Joseph Ludwig.

[xxi] The full wording:

Same sex marriage

  1. Conference resolves that the matter of same sex marriage can be freely debated at any state or federal forum of the Australian Labor Party, but any decision reached is not binding on any member of the Party. This resolution is rescinded upon the commencement of the 46th parliament.”

[xxii] See What Tony Burke Gets Rights, and What Anthony Albanese Gets Wrong, About Marriage Equality.

[xxiii] Needless to say, the Greens’ ‘Every vote, every time’ slogan also leaves the ALP’s current marriage equality position for dust.

[xxiv] At least the messaging at the 2019 election will be much easier – when the Labor Party can finally campaign on the promise that, if elected, it will introduce marriage equality.

[xxv] Given the decriminalization of male homosexuality in Nauru earlier this year, and remembering the motion discussed earlier that Labor will not detain, process or resettle people seeking asylum in countries that criminalise LGBTI communities, this means that a re-elected Labor Government could not send LGBTI people seeking asylum to Manus Island in Papua New Guinea, but they could send them to Nauru instead.

[xxvi] Although it was not terribly consistent either, and could be interpreted in multiple ways.

It’s time for Moderate Liberals to speak now, or forever hold their peace

Commonwealth Parliament returns this week, for the final sitting fortnight of the year.

 

During the previous sitting week, on Monday 7 November, the Senate finally killed off, once and for all, Tony Abbott and Malcolm Turnbull’s proposed plebiscite on marriage equality.

 

The welcome actions of Labor, Greens and Nick Xenophon Team Senators, and even Derryn Hinch, have spared the country from what would have been an entirely unnecessary, fundamentally wasteful and inevitably divisive public vote on the human rights of a minority group.

 

In doing so, they have also ensured that the public, and political, pressure to finally pass marriage equality sits squarely where it should have been all along – on Liberal and National MPs and Senators.

 

After all, they are the ones sitting on the Government benches, meaning they shoulder the responsibility to introduce legislation to treat all couples equally, irrespective of their sexual orientation, gender identity or intersex status.

 

From now until the next federal election, likely to be held in the 1st half of 2019, lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians should put pressure on Coalition parliamentarians to fix this mess.

 

More specifically, we will need to target one of the three main groupings within the Government, the cohort who are more likely to be receptive to our messages – Moderate Liberals.

 

It is difficult to see the other two ‘factions’ changing their respective tunes. National Party MPs, who are supposed to represent all people in rural and regional areas, have instead shown themselves completely uninterested in the relationships of the many LGBTI couples that live in their electorates.

 

In fact, the old ‘Country Party’ rump of the Coalition have been so determined to delay and potentially defeat marriage equality that they included the plebiscite as a core component of its formal agreement with Malcolm Turnbull when he became Prime Minister in September 2015.

 

Apparently, it is far more important to spend at least $170 million, and probably more than $200 million, on a non-binding opinion poll, than on meeting the health, education and infrastructure needs of non-metropolitan Australians.

 

The other major grouping within the Coalition – Conservative Liberals – are even less interested in recognising the human rights of LGBTI people. They would prefer just to see marriage equality blocked, and only agreed to holding a plebiscite under then-Prime Minister Tony Abbott because they saw it, correctly, as a stalling tactic.

 

With the plebiscite now dead, the terrible Tory trio of Abetz, Bernardi and Christensen, and their factional colleagues, are comfortable in seeing this issue left off the political agenda – from their perspective, hopefully permanently.

 

All of which is to say that the only hope of passing marriage equality in the remainder of this term rests with what is, in 2016, perhaps the smallest and least powerful of the Coalition groups – Moderate Liberals[i].

 

These MPs and Senators are the only ones within Malcolm Turnbull’s Government who could foreseeably take any action on marriage equality, at least in the short-term.

 

That’s because, if they are genuinely moderate in their beliefs, they are likely to understand the following three things:

 

  1. There is no justification for discrimination against people solely on the basis of their sexual orientation, gender identity or intersex status under secular law – and that includes in the Marriage Act 1961.

 

  1. The plebiscite was the wrong process to achieve marriage equality. Not only was it unacceptable to the vast majority of LGBTI people, it also contravened the traditions of Australian democracy[ii], which has only ever witnessed three national plebiscites, and none on substantive policy for almost a century, and

 

  1. Most importantly, LGBTI Australians have already waited long enough (far too long actually) for their relationships to be treated equally under the law, meaning a parliamentary vote should not be delayed until 2019.

 

But, while they may understand these points, the real question is: What will Moderate Liberal MPs and Senators now do about it?

 

Will they stand up for their principles and push for a parliamentary vote, or will they continue their modus operandi from the past ten to 15 years and adopt the path of least resistance against their National Party and Conservative Liberal counterparts, by maintaining their official support for the discredited plebiscite?

 

Unfortunately, the signs to date are not encouraging. North Queensland LNP MP, Warren Entsch, who has pushed for marriage equality inside the Coalition for several years, has indicated that he is choosing right now, when we arguably need him most, to ‘give up the fight’[iii] on this issue for the remainder of this term.

 

He has, in effect, walked away from the LGBTI community rather than walking five metres across the chamber floor to vote for reform.

 

Disappointingly, few if any of Entsch’s colleagues have so far suggested they are interested in picking up where he left off.

 

warren-entsch

Warren Entsch, introducing his private member’s bill for marriage equality in 2015. Sadly, it seems he is unwilling to even vote for equality for the next two and a half years.

 

What would we ask them to do if they were ‘ready and willing’? There are two ways in which Moderate Liberals could progress marriage equality this term.

 

The first, and most challenging, path would be for them to push for a conscience vote inside the Liberal Party room (and in the absence of National MPs and Senators who, as Christopher Pyne accurately pointed out, were included by Tony Abbott in August 2015 as a means of ‘branch-stacking’ against equality).

 

Their arguments would be strong – the Government has tried and failed to implement its election policy (to hold the plebiscite), so it needs to find another way to recognise the legal equality of LGBTI relationships. A free vote also has the benefit of being far more consistent with the past practices of Australia’s main right-of-centre party than a public vote.

 

But they would also face strong resistance, led by PM-(again)-in-waiting Tony Abbott, among others, meaning it is unclear what the outcome would be.

 

If they failed, the second way in which Moderate Liberals could help pass marriage equality would be by ‘simply’ crossing the floor.

 

It would only take one or two principled Senators to secure passage in the Upper House, and probably only a small handful of MPs, perhaps half-a-dozen, to do so in the House of Representatives.

 

In the absence of a Prime Minister, Ministers or Assistant Ministers who were prepared to give up their positions of power for the sake of the human rights of their fellow citizens, they would all need to come from the backbench. And, by taking such a step, these backbenchers would know they were potentially jeopardising any future advancement within the Party.

 

It is unclear whether there are enough Coalition MPs and Senators to make that crucial difference. But, it is incredibly important that Moderate Liberals find these numbers, one way or another.

 

Not just for lesbian, gay, bisexual, transgender and intersex Australians, and our family members and friends, who have already endured 12 years – and counting – of John Howard’s homophobic, biphobic, transphobic and intersexphobic ban on our weddings.

 

It is also important for the future of Moderate Liberals themselves.

 

Make no mistake, this is a fundamental test for the section of the Liberal Party who identify as moderate, even ‘progressive’, on social issues.

 

Their ‘slice’ of the Coalition has been diminishing for decades, and their influence has waned noticeably from even the time when I was growing up.

 

On many issues, from the (mis)treatment of people seeking asylum, to the prioritisation of ‘national security’ over civil liberties, and even their growing obsession with section 18C of the Racial Discrimination Act, they are now almost indistinguishable from their National Party, and Conservative Liberal, colleagues.

 

So, if they cannot stand up to the rabid right-wing on this, a straight-forward question of inclusion versus discrimination – a clear-cut choice between granting human rights or actively denying them – it is difficult to see them standing up on anything.

 

If Moderate Liberals fail to ‘deliver the goods’ on marriage equality by the time the next election rolls around, it will be tempting for most Australians to reach the conclusion that they are ‘good-for-nothing’.

 

And, in my view at least, the public would be right – if Moderate Liberals cannot make progress on this issue before 2019, then they will have demonstrated that they have no place in contemporary Australian politics. It probably won’t be that much longer before they discover they have no place in Commonwealth Parliament either.

 

All of which means that, if they want LGBTI Australians to be able to walk down the aisle – and if they want to retain their seats on the ‘right’ side of the political aisle – it’s time for Moderate Liberals to speak now, or forever hold their peace.

 

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Footnotes:

[i] Irrespective of their actual factual alignment, for the purposes of this article this grouping includes the four out gay men in the Government: Trent Zimmerman, Tim Wilson, Trevor Evans and Senator Dean Smith.

[ii] The argument made by WA Liberal Senator Dean Smith in declaring that he could not, in good conscience, support the plebiscite enabling legislation.

[iii] Sydney Morning Herald, 11 November 2016, The same-sex plebiscite is dead. So what happens now?

What’s Wrong With the Queensland Anti-Discrimination Act 1991?

 

This post is the seventh in a series examining the anti-discrimination laws that exist in each Australian jurisdiction and analysing how well, or how poorly, they protect lesbian, gay, bisexual, transgender and intersex (LGBTI) people from discrimination. Previous articles have looked at the frameworks in Victoria, NSW, the Commonwealth, the Northern Territory, the ACT and Western Australia.

 

Specifically, each post has considered three main aspects of LGBTI anti-discrimination legislation:

  • Protected attributes
  • Religious exceptions, and
  • Anti-vilification coverage.

 

Contrary to what some might expect, Queensland’s laws are at least ‘average’, and in some cases, particularly in relation to anti-vilification laws, ‘better than average’, across these three areas. Unfortunately, that says more about the major flaws that exist across most anti-discrimination laws in Australia than it necessarily does about the Anti-Discrimination Act 1991 (‘the Act’) itself.

 

There are still significant problems that must be addressed with this legislation, beginning with the issue of who is – and isn’t – covered.

 

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Protected Attributes

 

Like most of its counterparts in other states, Queensland’s Anti-Discrimination Act does not protect all parts of the LGBTI community from discrimination.

 

On the positive side, it does cover all lesbian, gay and bisexual people – with discrimination on the basis of ‘sexuality’ prohibited in section 7 of the Act (defined as “sexuality means heterosexuality, homosexuality or bisexuality” in the Dictionary found in the Schedule).

 

On the less positive side, it only covers some transgender people, and not others. That is because, while section 7 also includes ‘gender identity’, the Act’s definition of this term is out-dated:

 

“gender identity, in relation to a person, means that the person-

(a) identifies, or has identified, as a member of the opposite sex by living or seeking to live as a member of that sex; or

(b) is of indeterminate sex and seeks to live as a member of a particular sex.”

 

While this does protect transgender people who were previously identified as male but now identify as female (and vice-versa), it does not include non-binary trans people. In order to rectify this situation, the Act’s definition of gender identity should be updated to reflect the definition used in the Commonwealth Sex Discrimination Act 1984[i].

 

Even worse off than transgender Queenslanders, however, are people with intersex traits – while part (b) of the definition of ‘gender identity’ may apply to some intersex people in limited circumstances, there is no stand-alone protected attribute for intersex people and therefore no clear-cut protection against discrimination for them.

 

Again, this could be rectified with the introduction of intersex status as a protected attribute, using the definition of ‘intersex status’ as featured in the Commonwealth Sex Discrimination Act 1984[ii].

 

Overall: While the Queensland Anti-Discrimination Act 1991 does protect lesbian, gay and bisexual people, and some transgender people, from discrimination, it leaves other trans people (especially those whose identity is non-binary) and most intersex people out in the cold. This should be fixed as a matter of priority, by updating the definition of gender identity, and adding intersex status as a protected attribute.

 

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Religious Exceptions

 

Queensland has adopted a unique approach to religious exceptions through the Anti-Discrimination Act 1991, in which case I will spend more time than normal discussing this element.

 

The primary religious exception is found in section 109:

 

“Religious bodies

(1) The Act does not apply in relation to-

(a) the ordination or appointment of priests, ministers of religion or members of a religious order; or

(b) the training or education of people seeking ordination or appointment as priests, ministers of religion or members of a religious order; or

(c) the selection or appointment of people to perform functions in relation to, or otherwise participate in, any religious observance or practice; or

(d) unless section 90 (Accommodation with religious purposes) applies – an act by a body established for religious purposes if the act is –

(i) in accordance with the doctrine of the religion concerned; and

(ii) necessary to avoid offending the religious sensitivities of people of the religion.

(2) An exemption under subsection (1)(d) does not apply in the work or work-related area or in the education area.”

 

As I have observed in previous posts, the first three sub-sections ((a), (b) and (c)) are at least concerned with the appointment of ministers of religion, or the conduct of religious celebrations, and are therefore more likely to be excusable on the basis of protecting ‘religious freedom’.

 

Unfortunately, the wording used in sub-section (d) – “in accordance with the doctrine of the religion concerned and necessary to avoid offending the religious sensitivities of people of the religion” – is incredibly broad, and permits discrimination against a wide range of people in terms of service delivery.

 

However, sub-section (2) is unusual and, as far as I can tell, not replicated in any other state or territory legislation. In essence, it provides that religious bodies cannot discriminate against employees unless their role is directly connected with ‘religious observance or practice’. It also means religious schools cannot discriminate against students on the basis of their sexuality or gender identity[iii].

 

If section 109 was the only source of religious exceptions in the legislation, Queensland’s Act would almost be assessed as positive. However, there are other sections that complicate this assessment.

 

Chief among them is section 25:

 

“Genuine occupational requirements

(1) A person may impose genuine occupational requirements for a position.

Examples of genuine requirements for a position-

…Example 4-

Employing persons of a particular religion to teach in a school established for students of the particular religion

(2) Subsection (3) applies in relation to-

(a) work for an educational institution (an employer) under the direction or control of a body established for religious purposes; or

(b) any other work for a body established for religious purposes (also an employer) if the work genuinely and necessarily involves adhering to and communicating the body’s religious beliefs.

(3) It is not unlawful for an employer to discriminate with respect to a matter that is otherwise prohibited under section 14 or 15, in a way that is not unreasonable, against a person if-

(a) the person openly acts in a way that the person knows or ought reasonably to know is contrary to the employer’s religious beliefs-

(i) during a selection process; or

(ii) in the course of the person’s work; or

(iii) in doing something connected with the person’s work; and

Example for paragraph (a)

A staff member openly acts in a way contrary to a requirement imposed by the staff member’s employer in his or her contract of employment, that the staff member abstain from acting in a way openly contrary to the employer’s religious beliefs in the course of, or in connection with the staff member’s employment.

(b) it is a genuine occupational requirement of the employer that the person, in the course of, or in connection with, the person’s work, act in a way consistent with the employer’s religious beliefs.

(4) Subsection (3) does not authorise the seeking of information contrary to section 124[iv].

(5) For subsection (3), whether the discrimination is not unreasonable depends on all the circumstances of the case, including, for example, the following-

(a) whether the action taken or proposed to be taken by the employer is harsh or unjust or disproportionate to the person’s actions;

(b) the consequences for both the person and the employer should the discrimination happen or not happen.

(6) Subsection (3) does not apply to discrimination on the basis of age, race or impairment.

(7) To remove any doubt, it is declared that subsection (3) does not affect a provision of an agreement with respect to work to which subsection (3) applies, under which the employer agrees not to discriminate in a particular way.

(8) In this section-

religion includes religious affiliation, beliefs and activities.”

 

That is obviously a lot to take in. So here are my three key observations:

 

  • This section expands the religious exceptions offered under section 109, so that religious bodies can discriminate on the basis of sexuality and gender identity against teachers and other staff in schools generally, but against employees in other religious organisations only “if the work genuinely and necessarily involves adhering to and communicating the body’s religious beliefs”.
  • In both cases this is limited by a potentially vague ‘reasonableness test’ (determining “whether the action taken or proposed to be taken by the employer is harsh or unjust or disproportionate to the person’s actions”), and
  • In both cases it is also limited by a ‘Don’t Ask, Don’t Tell’ clause – discrimination is only permitted where “the person openly acts in a way that the person knows or ought reasonably to know is contrary to the employer’s religious beliefs” and the religious school or body cannot ask about sexuality or gender identity. This would therefore protect teachers or other staff who did not discuss their sexual orientation at their school or workplace[v].

 

Of course, as even the US Government and Military has eventually been forced to concede, ‘Don’t Ask, Don’t Tell’ is a terrible policy, ‘invisibilising’ LGBT people in the workplace, forcing them to deny who they are and silencing them in everyday conversations (for example, gay teachers would not be able to openly acknowledge their partners at all in the classroom or even in the staffroom). It also exposes LGBT employees to potential harassment and bullying.

 

‘Don’t Ask, Don’t Tell’ is also a terrible policy with respect to LGBT students, because it denies them visible role models to look up to, or to seek relevant information from.

 

But, and here is the extraordinary part, these exceptions – allowing religious schools and other bodies to discriminate against ‘out’ lesbian, gay, bisexual and transgender employees – are actually the second-best religious exceptions in Australia (behind only Tasmania), because they don’t allow these organisations to explicitly deny employment solely on the basis of sexuality or gender identity.

 

The other, much more unambiguously positive part of the Act’s religious exceptions is that section 25 does not apply to students – which means that, while a religious school can reject students who are not from a particular religion, they cannot reject students on the basis of their sexuality or gender identity.

 

Overall: Queensland’s approach to religious exceptions is unique, and its protection of LGBT students against discrimination is to be welcomed. However, other parts of the Anti-Discrimination Act 1991 provide overly-generous rights to religious schools and other bodies to discriminate against LGBT employees, and people accessing services, and these should be significantly curtailed.

 

Specifically, subsection 109(1)(d), which allows discrimination on the basis of sexuality and gender identity in relation to service-provision, should be repealed.

 

And, while the limitations on discrimination in relation to employment (including a ‘reasonableness test’ and a ‘Don’t Ask, Don’t Tell’ clause) might mean Queensland’s legislation is better than most, permitting discrimination in such circumstances is still unacceptable in the 21st century, meaning section 25 should ultimately also be abolished.

 

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Anti-Vilification Coverage

 

Queensland is one of only four Australian jurisdictions to provide anti-vilification protections to LGBT people – the others being NSW, the ACT and Tasmania (noting that Commonwealth anti-vilification law only applies to race).

 

And unlike NSW, the Queensland Act treats all types of prohibited vilification exactly the same – establishing vilification on the basis of race, religion, sexuality and gender identity in the same section (124A)[vi], and creating the offence of serious racial, religious, sexuality or gender identity in another (section 131A).

 

This also means that the same procedures are used, and that the same penalties apply (“for an individual – 70 penalty units or 6 months imprisonment; or for a corporation – 350 penalty units”), which are both positive features.

 

Of course, given the out-dated definition of gender identity used, and the Act’s exclusion of intersex status, not all parts of Queensland’s LGBTI community are currently protected against vilification – although this could be rectified at the same time as the protected attributes, described earlier.

 

One other, relatively minor, fault that should also be corrected is that, while the offences themselves cover sexuality and gender identity alongside race and religion, the titles of the relevant Parts or Chapters do not (“Part 4 Racial and religious vilification” and “Chapter 5A Serious racial and religious vilification”).

 

This obviously does not impact on the substantive rights involved. However, it may be misleading to a casual reader of the legislation, and in some cases may cause people to mistakenly believe that they are not protected against vilification. As a result, it would be preferable if these titles were renamed to be genuinely inclusive.

 

Overall: Queensland’s anti-vilification protections are comparatively strong, but could be further strengthened by updating the definition of gender identity, adding intersex status, and ensuring that the titles of relevant Parts/Chapters are inclusive and not potentially misleading.

 

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Other Issues

 

There are two additional serious problems with the Anti-Discrimination Act 1991, and it would be negligent to conclude this analysis without addressing them.

 

The first is the truly awful subsection 28(1), which states:

 

“Work with children

(1) It is not unlawful to discriminate on the basis of lawful sexual activity[vii] or gender identity against a person with respect to a matter that is otherwise prohibited under subdivision 1 if-

(a) the work involves the care or instruction of minors; and

(b) the discrimination is reasonably necessary to protect the physical, psychological or emotional wellbeing of minors having full regard to all the relevant circumstances of the case, including the person’s actions.”

 

This is genuinely appalling – the very law that is supposed to protect transgender people against discrimination implies that trans employees may be unsuitable to work with children, and could even be a threat to the ‘physical, psychological or emotional wellbeing of minors’.

 

There was never a time that such a prejudiced subsection would have been acceptable, and it most definitely is not in 2016 – there is no excuse for the Palaszczuk Labor Government to leave this provision in place today.

 

The second additional flaw is found in section 45A, which states that the protection against discrimination in goods and services, located in section 46, “does not apply to the provision of assisted reproductive technology services if the discrimination is on the basis of relationship status or sexuality.”

 

Again, there can be no justification for such discrimination against lesbian, gay and bisexual people in terms of their access to in-vitro fertilisation, artificial insemination or gamete, zygote or embryo transfer. This section must also be repealed as part of the overall much-needed updating of the Queensland Anti-Discrimination Act 1991.

 

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Footnotes:

[i] Defined in section 4 of that Act as “gender identity means the gender-related identity, appearance or mannerism or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth.”

[ii] Defined in section 4 of that Act as “intersex status means the status of having physical, hormonal or genetic features that are:

(a) neither wholly female nor wholly male; or

(b) a combination of female and male; or

(c) neither female nor male.”

[iii] Although section 42 does allow religious schools to discriminate against “applicants who are not of the particular sex or religion”. A similar provision allows religious boarding schools to discriminate on the basis of sex or religion as well (section 89).

[iv] “124 Unnecessary information

(1) A person must not ask another person, either orally or in writing, to supply information on which unlawful discrimination might be based.”

[v] Without looking at any relevant case law, it is unclear how well, or poorly, the ‘Don’t Ask, Don’t Tell’ approach serves transgender people in the workplace.

[vi] “Section 124A Vilification on grounds of race, religion, sexuality or gender identity unlawful

(1) A person must not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race, religion, sexuality or gender identity of the person or members of the group.

(2) Section (1) does not make unlawful-

(a) the publication of a fair report of a public act mentioned in subsection (1); or

(b) the publication of material in circumstances in which the publication would be subject to a defence of absolute privilege in proceedings for defamation; or

(c) a public act, done reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including public discussion or debate about, and expositions of, any act or matter.”

[vii] The Act defines lawful sexual activity as “means a person’s status as a lawfully employed sex worker, whether or not self-employed”.