An LGBTI Agenda for NSW

Today marks exactly two years until the next NSW State election (scheduled for Saturday 23 March, 2019).

 

Despite the fact we are half-way through it, there has been a distinct lack of progress on policy and law reform issues that affect NSW’s lesbian, gay, bisexual, transgender and intersex (LGBTI) communities during the current term of Parliament.

 

This is in marked contrast to the previous term – which saw the abolition of the homosexual advance defence (or ‘gay panic’ defence), as well as the establishment of a framework to expunge historical convictions for gay sex offences.

 

The parliamentary term before that was even more productive, with a suite of measures for rainbow families (including the recognition of lesbian co-parents, equal access to assisted reproductive technology and altruistic surrogacy, and the introduction of same-sex adoption) as well as the establishment of the registered relationships scheme.

 

With a (relatively) new Premier in Gladys Berejiklian, now is the time for the Liberal-National Government specifically, and the NSW Parliament generally, to take action to remedy their disappointing recent lack of activity.

 

Here are 12 issues, in no particular order, which I believe need to be addressed as a matter of priority – and if Premier Berejiklian won’t fix them in the next 24 months, then they must be on the agenda of whoever forms government in March 2019.

 

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The first four issues relate to the state’s fundamentally broken anti-discrimination laws, with the Anti-Discrimination Act 1977 now one of, if not, the worst LGBTI anti-discrimination regime in the country[i].

 

  1. Include bisexual people in anti-discrimination laws

 

NSW was actually the first jurisdiction in Australia to introduce anti-discrimination protections on the basis of homosexuality, in 1982.

 

However, 35 years later and these laws still do not cover bisexuality – meaning bisexual people do not have legal protection against discrimination under state law (although, since 2013, they have enjoyed some protections under the Commonwealth Sex Discrimination Act 1984).

 

NSW is the only state or territory where bisexuality is excluded. This is a gross omission, and one that the NSW Parliament must rectify urgently.

 

  1. Include intersex people in anti-discrimination laws

 

The historic 2013 reforms to the Commonwealth Sex Discrimination Act 1983 also meant that Australia was one of the first jurisdictions in the world to provide explicit anti-discrimination protection to people with intersex traits.

 

Since then, Tasmania, the ACT and more recently South Australia have all included intersex people in their respective anti-discrimination laws. It is time for other jurisdictions to catch up, and that includes NSW.

 

  1. Remove excessive and unjustified religious exceptions

 

The NSW Anti-Discrimination Act 1977 also has the broadest ‘religious exceptions’ in the country. These legal loopholes allow religious organisations to discriminate against lesbian, gay and trans people in a wide variety of circumstances, and even where the organisation itself is in receipt of state or Commonwealth money.

 

The most egregious of these loopholes allow all ‘private educational authorities’, including non-religious schools and colleges, to discriminate against lesbian, gay and trans teachers and students.

 

There is absolutely no justification for a school – any school, religious and non-religious alike – to be able to fire a teacher, or expel a student, on the basis of their sexual orientation or gender identity.

 

All religious exceptions, including those exceptions applying to ‘private educational authorities’, should be abolished beyond those which allow a religious body to appoint ministers of religion or conduct religious ceremonies.

 

  1. Reform anti-vilification offences

 

NSW is one of only four Australian jurisdictions that provide anti-vilification protections to any part of the LGBTI community. But the relevant provisions of the Anti-Discrimination Act 1977 are flawed in two key ways:

 

  • As with anti-discrimination (described above), they do not cover bisexual or intersex people, and
  • The maximum fine for a first time offence of homosexual or transgender vilification is lower than the maximum fine for racial or HIV/AIDS vilification.

 

There is no legitimate reason why racial vilification should be considered more serious than anti-LGBTI vilification so, at the same time as adding bisexuality and intersex status to these provisions, the penalties that apply must also be harmonised.

 

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The following are four equally important law reform and policy issues for the state:

 

  1. Reform access to identity documentation for trans people

 

The current process for transgender people to access new identity documentation in NSW – which requires them to first undergo irreversible sex affirmation surgical procedures – is inappropriate for a number of reasons.

 

This includes the fact it is overly-onerous (including imposing financial and other barriers), and makes an issue that should be one of personal identification into a medical one. It also excludes trans people who do not wish to undergo surgical interventions, and does not provide a process to recognise the identities of non-binary gender diverse people.

 

As suggested in the Member for Sydney Alex Greenwich’s Discussion Paper on this subject[ii], the process should be a simple one, whereby individuals can change their birth certificates and other documentation via statutory declaration, without the need for medical interference.

 

At the same time, the requirement for married persons to divorce prior to obtaining new identity documentation (ie ‘forced trans divorce’) should also be abolished.

 

  1. Ban involuntary sterilisation of intersex infants

 

One of the major human rights abuses occurring in Australia today – not just within the LGBTI community, but across all communities – is the ongoing practice of involuntary, and unnecessary, surgical interventions on intersex children.

 

Usually performed for entirely ‘cosmetic’ reasons – to impose a binary sex on a non-binary body – this is nothing short of child abuse. People born with intersex characteristics should be able to make relevant medical decisions for themselves, rather than have procedures, and agendas, imposed upon them.

 

The NSW Government has a role to play in helping to end this practice within state borders, although ultimately the involuntary sterilisation of intersex infants must also be banned nation-wide.

 

  1. Ban gay conversion therapy

 

Another harmful practice that needs to be stamped out is ‘gay conversion therapy’ (sometimes described as ‘ex-gay therapy’).

 

While thankfully less common that it used to be, this practice – which preys on young and other vulnerable LGBT people who are struggling with their sexual orientation or gender identity, and uses pseudo-science and coercion in an attempt to make them ‘straight’/cisgender – continues today.

 

There is absolutely no evidence that it works, and plenty of evidence that it constitutes extreme psychological abuse, often causing or exacerbating mental health issues such as depression.

 

There are multiple policy options to address this problem; my own preference would be to make both the advertising, and provision, of ‘conversion therapy’ criminal offences. Where this targets people aged under 18, the offence would be aggravated, attracting a higher penalty (and possible imprisonment)[iii].

 

  1. Improve the Relationship Register

 

As Prime Minister Malcolm Turnbull and his Liberal-National Government continue to dither on marriage equality (despite it being both the right thing to do, and overwhelmingly popular), in NSW the primary means to formalise a same-sex relationship remains the relationships register.

 

However, there are two main problems with the ‘register’ as it currently stands:

 

  • Nomenclature: The term ‘registered relationship’ is unappealing, and fails to reflect the fundamental nature of the relationship that it purports to describe. I believe it should be replaced with Queensland’s adopted term: civil partnership.
  • Lack of ceremony. The NSW relationship register also does not provide the option to create a registered relationship/civil partnership via a formally-recognised ceremony. This should also be rectified.

 

Fortunately, the five-year review of the NSW Relationships Register Act 2010 was conducted at the start of last year[iv], meaning this issue should already be on the Government’s radar. Unfortunately, more than 12 months later no progress appears to have been made.

 

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The following two issues relate to the need to ensure education is LGBTI-inclusive:

 

  1. Expand the Safe Schools program

 

Despite the controversy, stirred up by the homophobic troika of the Australian Christian Lobby, The Australian newspaper and right-wing extremists within the Commonwealth Government, Safe Schools remains at its core an essential anti-bullying program designed to protect vulnerable LGBTI students from harassment and abuse.

 

Whereas the Victorian Government has decided to fund the program itself, and aims to roll it out to all government secondary schools, in NSW the implementation of Safe Schools has been patchy at best, with limited take-up, and future funding in extreme doubt.

 

Whatever the program is called – Safe Schools, Proud Schools (which was a previous NSW initiative) or something else – there is an ongoing need for an anti-bullying program to specifically promote the inclusion of LGBTI students in all NSW schools, and not just those schools who put their hands up to participate.

 

  1. Ensure the PDHPE curriculum includes LGBTI content

 

Contrary to what Lyle Shelton et al might believe, the LGBTI agenda for schools goes far beyond just Safe Schools. There is also a need to ensure the curriculum includes content that is relevant for lesbian, gay, bisexual, transgender and intersex students.

 

One of the key documents that should include this information is the Personal Development, Health and Physical Education (PDHPE) curriculum.

 

The NSW Education Standards Authority is currently preparing a new K-10 PDHPE curriculum. Unfortunately, it does not appear to be genuinely-inclusive of LGBTI students, with only one reference to LGBTI issues (conveniently, all in the same paragraph, on the same page), and inadequate definitions of sexuality/sexual orientation.

 

Fortunately, there is an opportunity to make a submission to the consultation process: full details here. But, irrespective of what the Education Standards Authority recommends, if the PDHPE curriculum does not appropriately include LGBTI students and content, then the Parliament has a responsibility to step in to ensure it is fixed.

 

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The final two issues do not involve policy or law reform, but do feature ‘borrowing’ ideas from our colleagues south of the Murray River:

 

  1. Appoint an LGBTI Commissioner

 

The appointment of Rowena Allen as Victorian Commissioner for Gender and Sexuality appears to have been a major success, bringing together LGBTI policy oversight in a central point whilst also ensuring that LGBTI inclusion is made a priority across all Government departments and agencies.

 

I believe NSW should adopt a similar model, appointing an LGBTI Commissioner (possibly within the NSW Department of Premier and Cabinet), supported by an equality policy unit, and facilitating LGBTI community representative panels on (at a minimum) health, education and law/justice.

 

  1. Create a Pride Centre

 

Another promising Victorian initiative has been the decision to fund and establish a ‘Pride Centre’, as a focal point for the LGBTI community, and future home for several LGBTI community organisations (with the announcement, just last week, that it will be located in St Kilda).

 

If it acted quickly, the NSW Government could acquire the T2 Building in Taylor Square – just metres from where the 1st Sydney Gay Mardi Gras Parade started in June 1978 – before it is sold off by the City of Sydney. This is an opportunity to use this historic site for purposes that benefit the LGBTI community, and including the possible housing of an LGBTI Museum and/or exhibition space.

 

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This is obviously not an exhaustive list. I’m sure there are issues I have forgotten (sorry), and I’m equally sure that readers of this blog will be able to suggest plenty of additional items (please leave your ideas in the comments below).

 

But the most important point is that, if we are going to achieve LGBTI policy and law reform in the remaining two years of this parliamentary term, we need to be articulating what that agenda looks like.

 

And, just as importantly, if we want to achieve our remaining policy goals in the subsequent term – from 2019 to 2023 – then, with only two years left until the next election, we must be putting forward our demands now.

 

Gladys Berejiklian at Mardi Gras

NSW Premier Gladys Berejiklian at the recent Sydney Gay & Lesbian Mardi Gras Parade. It’s time to back up this symbolic display of support with progress on policies and law reform.

 

Footnotes:

[i] For more, see What’s Wrong With the NSW Anti-Discrimination Act 1977.

[ii] See my submission to that consultation, here: Submission to Alex Greenwich Discussion Paper re Removing Surgical Requirement for Changes to Birth Certificate.

[iii] For more on both of the last two topics – intersex sterilization, and gay conversion therapy – see my Submission to NSW Parliament Inquiry into False or Misleading Health Practices re Ex-Gay Therapy and Intersex Sterilisation.

[iv] See my submission to that review, here: Submission to Review of NSW Relationships Register Act 2010.

The State of Homophobia, Biphobia & Transphobia Survey Results, Part 2: Physical Abuse or Violence

This post is the second in a series of six, reporting the results of The State of Homophobia, Biphobia & Transphobia survey I conducted at the start of 2017[i].

In all, 1,672 lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) Australians provided valid responses to that survey.

In this article, I will be focusing on their answers to three questions about experiences of anti-LGBTIQ physical abuse or violence, including publishing their personal stories of homophobic, biphobic, transphobic and intersexphobic violence.

It makes for particularly tough reading – not only are the reported rates of physical abuse, both over their lifetimes and specifically during the last 12 months, far too high, many of the examples of violence that were provided are, frankly, brutal reminders of the unacceptable state of homophobia, biphobia and transphobia in Australia today.

If the topics covered in this post raise any issues for you, contact details of relevant support services are provided at the end of the article.

the-state-of-homophobia-biphobia-transphobia-6

Question 1: Have you ever experienced physical abuse or violence because of your sexual orientation, gender identity or intersex status?

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Question 2: Has one or more instances of this physical abuse or violence occurred in the past 12 months?

Overall, 26% of survey respondents – 431 people out of the 1,647 who answered question 1 – indicated they had experienced physical abuse or violence because of their LGBTIQ status at some point in their life.

128 people – or 30% of respondents who answered yes to question 1[ii] – then answered question 2 by stating that at least one instance of this anti-LGBTIQ physical abuse or violence had occurred during the last 12 months.

Including those who answered no to question 1, that means approximately 7.8% of all respondents reported experiencing physical abuse or violence in the past year alone.

It should be noted that these rates are significantly lower than the numbers who had previously reported receiving anti-LGBTIQ verbal harassment or abuse. Nevertheless, these findings confirm that homophobic, biphobic, transphobic and intersexphobic physical abuse or violence in Australia is unacceptably high:

  • 1 in 4 LGBTIQ people have been physically assaulted simply because of who they are, and
  • 1 in every 13 LGBTIQ respondents has experienced such abuse or violence in the last 12 months alone.

The following sections show the results to these two questions according to different demographic groupings, including LGBTIQ status, Aboriginal and Torres Strait Islander people, age, and residence by state and territory.

LGBTIQ Status

There were some potentially surprising results in reported rates of lifetime anti-LGBTIQ physical abuse or violence. However, the respective answers of different groups to question 2 were more predictable – and more depressing for that reason. The results for both questions were as follows:

Lesbian: 24.1% of respondents have ever experienced anti-LGBTIQ physical abuse, and of those 27.3% indicated at least one instance during the past 12 months[iii]

Gay: 34.4% ever, and of those 23.6% during the past 12 months[iv]

Bisexual: 14.6% ever, of those 44.2% in last 12 months[v]

Transgender: 33.6% ever, of those 47.2% in last 12 months[vi]

Intersex: 46.7% ever, of those 71.4% in last 12 months[vii], and

Queer: 27.1% ever, of those 44% in last 12 months[viii].

The rates for intersex respondents were clearly the highest – on both measures – although the small sample size (n=15) should be remembered at this point. Of the remaining LGBTQ groups, the category reporting the highest lifetime rates of physical abuse or violence were people identifying as gay, followed closely by transgender people.

There are a range of possible explanations for this, including physical bullying of gay students during school, and ‘historical’ incidents of anti-gay violence that may have happened many years ago (and there is some evidence for both factors in the personal stories of violence detailed below)

Sadly, the relatively high rates reported by transgender respondents were largely predictable. Disturbingly, they were higher again where a person indicated they were both transgender and gay – with 45.6% reporting lifetime physical abuse or violence. These numbers are obviously horrific [ix].

It is equally worrying to look at the proportion of each group overall who reported an instance of anti-LGBTIQ physical abuse or violence in the past 12 months:

  • Lesbian: 6.5%
  • Gay: 8.1%
  • Bisexual: 6.5%
  • Transgender: 15.6%
  • Intersex: 33.3%
  • Queer: 12%

On this measure, the proportion of gay respondents reporting physical abuse or violence is much lower, and is in fact similar to both lesbian and bisexual survey respondents.

However, this finding demonstrates the disproportionate impact of recent anti-LGBTIQ physical abuse and violence on transgender (including people who identified as both transgender and gay, where the figure was 24.6%, on 1 in 4 people reporting abuse in the last year alone), intersex and queer members of the community.

Therefore, while there have historically been high rates of homophobic (and specifically anti-gay), transphobic and intersexphobic violence in Australia, there appears to be comparatively far higher rates of transphobic, intersexphobic and anti-queer physical abuse during the last 12 months.

Aboriginal and Torres Strait Islander people

As with verbal harassment and abuse, Aboriginal and/or Torres Strait Islander LGBTIQ people reported higher rates of physical abuse or violence than their non-Indigenous LGBTIQ counterparts.

36.7% of Aboriginal and Torres Strait Islander respondents reported anti-LGBTIQ physical abuse at some point during their lifetime[x], which is higher than both gay and transgender people, discussed above. Of those, 40.9% indicated at least one instance of such violence had occurred in the past 12 months[xi].

Taken together, this means that 15% of Aboriginal and Torres Strait Islander LGBTIQ people reported homophobic, biphobic or transphobic physical abuse or violence during the past year – double the rate of non-Indigenous LGBTIQ Australians (7.5%).

Age

There were some significant differences in terms of experiences of homophobic, biphobic, transphobic or intersexphobic physical abuse or violence depending on the age cohort of the respondent:

24 and under: 18.7% of respondents have ever experienced anti-LGBTIQ physical abuse, and of those 47.6% indicated at least one instance during the past 12 months[xii]

25 to 44: 33.1% ever, and of those 27.2% in the last 12 months[xiii]

45 to 64: 39.9% ever, and of those 16.4% in the last 12 months[xiv], and

65 and over: 30.1% ever, and of those 9.1% in the last 12 months[xv].

Thankfully, the proportion of LGBTIQ people aged 24 or under reporting lifetime physical abuse or violence was lower than their counterparts in other age cohorts. Of course, this result should be expected given their lesser ‘life experience’ (ie fewer years in which abuse may have occurred), but that was not the case for verbal harassment or abuse which was reported at similar rates to older groups.

Rates of lifetime homophobic, biphobic and transphobic physical abuse or violence then increased for people aged 25 to 44, and again for people aged 45 to 64, before declining for people aged 65 and over.

One possible explanation for this is the age at which these groups ‘came of age’: people aged 65+ turned 18 before 1970, and lower visibility of LGBTIQ people (and especially some communities within this umbrella term) may have lessened their experiences of direct physical violence (while exacerbating other problems, including social exclusion and mental health issues).

On the other hand, people aged 45 to 64 generally turned 18 in the 1970s and 1980s, and likely bore the brunt of societal backlash to increased visibility of non-cisgender and/or non-heterosexual Australians, including via physical assaults.

It is however worrying that for those people who turned 18 in the supposedly more accepting 1990s and 2000s (who are now aged 25 to 44), the rates of physical abuse or violence remained relatively high – with 1 in 3 survey respondents in this demographic affected.

Turning to anti-LGBTIQ physical abuse in the past 12 months, the results were very different:

  • 8.8% of all respondents aged 24 or under reported abuse in the last year, compared to
  • 7.1% of people aged 25 to 44
  • 6.5% of people aged 45 to 64, and
  • 2.8% of people aged 65 and over.

Once again, we see that current homophobic, biphobic and transphobic physical abuse and violence is disproportionately affecting younger LGBTIQ Australians – who are 35.4% more likely to report such abuse than people aged 45 to 64.

Despite all of the progress that we have made, on so many fronts, the fact that 1 in 12 LGBTIQ people aged under 25 reported physical abuse or violence in the last year alone is a confronting, and in many ways, devastating, statistic.

State or Territory of Residence

The rates of homophobic, biphobic, transphobic or intersexphobic violence did not differ greatly between most states and territories:

NSW: 26% of respondents have ever experienced anti-LGBTIQ physical abuse, and of those 27.3% indicated at least one instance during the past 12 months[xvi]

Victoria: 29.5% ever, and of those 29% in the last 12 months[xvii]

Queensland: 26.4% ever, and of those 21.2% in the last 12 months[xviii]

Western Australia: 28.1% ever, and 45.2% in the last 12 months[xix]

South Australia: 25.2% ever, and of those 29.4% in the last 12 months[xx]

Tasmania: 19.8% ever, and of those 45.4% in the last 12 months[xxi]

ACT: 14.3% ever, and of those 37.5% in the last 12 months[xxii], and

Northern Territory: 23.8% ever, and of those 20% in the last 12 months[xxiii].

Despite the similarity between jurisdictions, there are three things here worth noting:

  • Western Australia had by far the highest overall proportion of LGBTIQ people reporting physical abuse or violence in the last year, at 12.4%[xxiv]
  • The ACT has reported significantly lower levels of physical abuse than the national average (5.4% in the past 12 months), and was also significantly lower in terms of verbal harassment or abuse, and
  • Despite having the second lowest lifetime rates of anti-LGBTIQ physical abuse, Tasmania actually reported the second highest rates in the past 12 months (9%), repeating a similar pattern for verbal abuse.

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Question 3: If you feel comfortable, please provide an example of this homophobic, biphobic, transphobic or intersexphobic physical abuse or violence [Optional]:

This question allowed respondents to provide an example of the physical abuse or violence they had experienced, irrespective of when it had occurred.

As anticipated, many of the stories that have been shared are both incredibly powerful, and profoundly upsetting.

At this point, I would recommend that you only read further if you are emotionally and mentally prepared to do so. To help you decide whether to continue, please be aware that some stories involve details of physical violence and injury, as well as sexual and child sexual assault.

A lightly-edited[xxv] version of the stories of homophobic, biphobic, transphobic and intersexphobic physical abuse or violence that were shared can be found at the following link:

question 3 physical abuse or violence comments

From my perspective, several consistent themes emerge from these stories, including:

The most common type of story shared involved anti-LGBTIQ abuse in the school environment (at least 38 respondents mentioned school). For example:

“Other kids would throw food at me at school and threaten to kill me. One time a group of bigger boys held me down and drew penises on my face at school. Teachers did nothing. People just laughed. I wanted to die.”

“During the HSC, the day of my last exam. A group of guys waited for me around the corner of the hall. They grabbed me by the neck and dragged me around the corner whilst beating me.”

“I was violently assaulted during high school. A boy at my school also stalked me and threatened to rape me to ‘make me straight.’”

A number of respondents explicitly indicated that the homophobic, biphobic or transphobic abuse occurred some time ago:

“Many years ago at high school. Managed to steer clear of physically violent homophobic behaviour since then.”[xxvi]

“I was bullied relentlessly when I was at school. It was a long time ago (in the 70s) and it included physical abuse. I’m one of the lucky ones, I survived. Many other young LGBTI Australian youth didn’t… and this is still continuing today, validated by politicians and religious ‘leaders’ who have no concern about the harm they are doing by imposing their hetero-normative agendas.”

“I have been punched in the street a few times in the 1990s and once had a bottle broken over my head and was stabbed in the face with the broken bottle (year 2000).”

Several stories involved anti-lesbian violence, including attempts of ‘corrective rape’ and sexual assault:

“I have been bashed in the street for holding my partner’s hand, I have been threatened with rape for dancing with another woman, I have had the police stand in my lounge room making threatening gestures when my partner and I reported a crime, refusing to do anything because ‘some people just don’t like dykes’ and we’d ‘just have to get used to that.’”

“Men grope me, stick their hands down my pants in public places and try to force me to kiss them. When I say I’m a lesbian it’s always either ‘that’s okay I don’t mind’, ‘I can change that’, ‘you’ve just never had a good fuck’.”

“When I lived in Queensland (not where I currently reside) I had strangers at parties come up to my girlfriend and I and forcibly try to dance with us and grope us and insist that we should have sex with them/have a threesome because we need ‘some real fucking’.”

Another common theme was anti-trans violence, such as the ‘policing’ of gender appearance or behaviour, and again including sexual assault:

“Was physically abused by a middle-aged woman who was confused by my gender presentation and took it upon herself to check + feel my chest for the presence of breast tissue (which was underneath my binder).”

“I’ve been sexually assaulted by partners because of my gender non-conforming behaviour, to try and ‘correct’ me into being femme.”

“When I wasn’t out about being a trans man, this bi girl that also knew I was bi thought it was ok and appropriate to sexually assault me and grab my vagina.”

“I was sexually assaulted when a group of young men found out I was transgender.”

A disturbing proportion of stories involved physical abuse and violence from parents, family members and partners in intimate relationships:

“My dad tried to beat the gay out of me a lot growing up.”

“As a child I was beaten at different times by both parents, one publicly, and being told to man up.”

“My mum hit/tried to strangle me when I came out to her as trans.”

“A boyfriend at the time – I told him I’m queer (pan, if you like) and he started grabbing me without my consent sexually in public.”

At least a dozen stories referred to homophobic, biphobic and transphobic violence in spaces and places that the LGBTIQ community call ‘home’:

“I got king-hit/coward-punched whilst walking down Oxford Street in Sydney during Mardi Gras.”

“I have been poofter bashed – just off Oxford St – and was once assaulted by police officers (which I took action about).”

“When I lived in Sydney in the mid-1990s I was bashed by a group of ‘skin-heads’ on Darlinghurst Rd as I walked home after work.”

“Physically assaulted and knocked unconscious by men loitering at a McDonalds on a popular gay night strip in Melbourne.”

“Several years ago I was assaulted in Malvern Rd Prahran by 5 guys yelling death to fags – luckily for me as the group kicked me as I lay helpless a driver stopped and they got scared off.”

And then there were some stories that defied easy ‘categorisation’, but which were so powerful that I felt compelled to reproduce here:

“I’ve been verbally abused, threatened by men, chased by youths with knives and survived an attempted rape and murder by a straight man who saw me come out of a gay pub.”

“Attacked during lgbt rally, egged until I got welts, physically attacked, had people bang on the windows of my room + house and yell they’d kill me etc.”

“Glass bottles thrown at my head and at my lesbian friends because we needed to “get back to the Valley with the freaks” and “needed them to show us dick” so we would stop being into women; guy holding up my girlfriend by her throat because we kissed in a pub; sexual assaults to me (several) partly because they knew I was bisexual so I was “automatically up for sex”. I wasn’t. There was no consent. I even said no and they said I was lying because I am bi.”

“I, my partner and her elderly father were all bashed by a bunch of teenage boys who chased us from the train station to our home kicking us, hitting us, spitting at us, throwing things at us and verbally abusing us. They then attacked my father-in-law when he attempted to come to our aid. He was in his mid-60s at the time of the attack.”

Some shorter comments were nevertheless shocking:

“Being beaten by 3 older men who had followed me home after I left my boyfriend on public transport. I was 16.”

“My partner and I were assaulted whilst kissing to say good bye.”

“My partner and I had glass beer bottles thrown at us walking down the street while holding hands.”

“I was last assaulted for my sexuality in early 2013, and dozens of times before that.”

Finally, and disturbingly, there were at least three stories in which the person who experienced anti-LGBTIQ physical abuse tried to downplay the extent of the violence:

“Bashed (not badly) numerous times by strangers, usually with onlookers. Extreme harassment and threats from police on several occasions.”

“Mild beatings by groups of boys in late high school.”

“Just being punched in the face.”

Describing homophobic, biphobic and transphobic violence in this way is likely part of a psychological coping strategy for these respondents – but, from this author’s perspective, there is no circumstance in which the word ‘just’ ought to appear in front of the phrase being punched in the face.

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Conclusion

The results of this survey suggest that 1 out of every 4 LGBTIQ Australians have experienced homophobic, biphobic, transphobic or intersexphobic physical abuse or violence at some point in their lives.

30% of that group – or 1 in 13 out of all survey respondents – reported anti-LGBTIQ physical violence in the past 12 months alone, confirming once again that 2016 was an awful year for lesbian, gay, bisexual, transgender, intersex and queer Australians.

These proportions were even higher for some sections within the community. While the overall rate was 7.8% reporting abuse in the last year, the equivalent figure was:

  • 15.6% of transgender people
  • 33% of intersex people
  • 12% of queer people
  • 15% of Aboriginal and/or Torres Strait Islander LGBTIQ people.

LGBTIQ respondents age 24 and under were also 35.4% more likely to report recent homophobic, biphobic, transphobic or intersexphobic physical abuse than people aged 45 to 64.

Some of our political leaders like to espouse the idea that Australia is an inclusive and tolerant country, welcoming of differences in sexual orientation, gender identity and intersex status. That may be the case for some people – but these figures reveal a different, harsher, reality for many LGBTIQ Australians.

And, if anyone doubts the impact of homophobic, biphobic, transphobic and intersexphobic physical abuse and violence in this nation, I encourage them to read the personal stories from survey respondents, detailed above. If they do, they will come away with a better understanding of what life is like for far too many people.

As noted at the beginning of this post, this has been the second in a series of six articles reporting the results of my ‘The State of Homophobia, Biphobia & Transphobia’ Survey.

The next four will be published over the remainder of March and April, with part 3 – which focuses on the places where prejudice occurs – to be published in a couple of weeks.

If you would like to receive updates of these results, please sign up to this blog: on mobile, at the bottom of this page, or on desktop at the top right-hand corner of the screen.

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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 to midnight every day)
  • Lifeline: 13 11 14, lifeline.org.au

Footnotes:

[i] The first was published two weeks ago: The State of Homophobia, Biphobia & Transphobia Survey Results, Part 1: Verbal Harassment and Abuse

[ii] Only people who answered yes to question 1 were provided with an opportunity to answer question 2, with 430 people completing the second question and 302 (70%) indicating they had not experienced physical abuse or violence because of their sexual orientation, gender identity or intersex status in the past 12 months.

[iii] Question 1: 78 yes/246 no. Question 2: 21 yes/56 no.

[iv] Question 1: 220 yes/419 no. Question 2: 52 yes/168 no.

[v] Question 1: 76 yes/445 no. Question 2: 34 yes/43 no.

[vi] Question 1: 125 yes/247 no. Question 2: 58 yes/65 no.

[vii] Question 1: 7 yes/8 no. Question 2: 5 yes/2 no. Note that, given the low number of respondents, the proportions re intersex status must be treated with caution. For this reason, intersex status is also omitted from some of the discussion/analysis throughout the article.

[viii] Question 1: 133 yes/358 no. Question 2: 59 yes/75 no.

[ix] Other figures for people who identified as both transgender and another category:

-Transgender and lesbian: 30.2% lifetime abuse, including 14% of all trans and lesbian respondents experiencing such abuse in the last 12 months alone

-Transgender and bisexual: 26.6% lifetime abuse, 15.3% in the last 12 months, and

-Transgender and queer: 33.5% lifetime abuse, 18.1% in the last 12 months.

[x] Question 1: 22 yes/38 no.

[xi] Question 2: 9 yes/13 no.

[xii] Question 1: 165 yes/719 no. Question 2: 78 yes/86 no.

[xiii] Question 1: 144 yes/291 no. Question 2: 31 yes/114 no.

[xiv] Question 1: 110 yes/166 no. Question 2: 18 yes/91 no.

[xv] Question 1: 11 yes/25 no. Question 2: 1 yes/10 no. Note that, given the low number of respondents, the proportions re people aged 65 and over must be treated with caution. For this reason, this group is also omitted from some of the discussion/analysis throughout the article.

[xvi] Question 1: 140 yes/399 no. Question 2: 38 yes/101 no.

[xvii] Question 1: 113 yes/270 no. Question 2: 33 yes/81 no.

[xviii] Question 1: 66 yes/184 no. Question 2: 14 yes/52 no.

[xix] Question 1: 43 yes/90 no. Question 2: 19 yes/23 no.

[xx] Question 1: 34 yes/101 no. Question 2: 10 yes/24 no.

[xxi] Question 1: 22 yes/89 no. Question 2: 10 yes/12 no.

[xxii] Question 1: 8 yes/48 no. Question 2: 3 yes/5 no.

[xxiii] Question 1: 5 yes/16 no. Question 2: 1 yes/4 no. Note that, given the low number of respondents, the proportions re the Northern Territory must be treated with caution. For this reason, the NT is also omitted from some of the discussion/analysis throughout the article.

[xxiv] Full results: NSW 7.1%, Victoria 8.6%, Queensland 5.6%, WA 12.4%, SA 7.4%, Tasmania 9%, ACT 5.4%, NT 4.8%.

[xxv] In this context, lightly-edited includes:

-Removing identifying information, and

-Removing offensive (for example, racist) remarks.

I have also chosen to exclude a couple of stories where the connection between the physical abuse or violence experienced and anti-LGBTIQ motivation was not clear, and one longer story which could not be edited to retain key points without also potentially disclosing the identity of the person concerned.

[xxvi] It seems one of the lessons many learned at school was to hide or minimise visible displays of same-sex behaviour, to avoid future abuse or violence.

The State of Homophobia, Biphobia & Transphobia Survey Results, Part 1: Verbal Harassment and Abuse

With unrelenting attacks on the safe schools program, divisive debate about the proposed marriage equality plebiscite, the horrific mass murder at Pulse nightclub in Orlando and the tragic suicide of Indigenous gay youth Tyrone Unsworth, the past 12 months have undeniably been tough on members of Australia’s lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) communities.

Now we have empirical evidence to prove that last year was indeed an annus homophobicus.[i]

At the start of this year I conducted a survey of LGBTIQ Australians asking about their experiences of homophobia, biphobia, transphobia and intersexphobia in 2016, covering a range of topics including verbal harassment, physical violence, the places where prejudice occurs, and discrimination in education, employment and other areas.

Excluding responses from non-LGBTIQ people, and from LGBTIQ people outside Australia, a total of 1,672 people completed the survey in the four weeks between 26 December 2016 and 21 January 2017.

This post is the first in a series of six reporting the results of this survey, with a particular focus on three questions about the verbal harassment and abuse experienced by LGBTIQ Australians.

For many people, a number of the results will be unsurprising and yet still shocking – although, even for hardened campaigners such as myself, there are a few findings that are both depressing and disturbing, especially the varying impact of verbal harassment on different sections of the LGBTIQ community.

The State of Homophobia, Biphobia & Transphobia (4)

Question 1: Have you ever experienced verbal harassment or abuse because of your sexual orientation, gender identity or intersex status?

&

Question 2: Has one or more instances of this verbal harassment or abuse occurred in the past 12 months?

Overall, 74% of survey respondents – 1,226 people out of the 1,655 people who answered question 1 – indicated they had experienced verbal harassment or abuse because of their LGBTIQ status at some point in their life.

799 people – or 65% of respondents who answered yes to question 1[ii] – then answered question 2 by stating that at least one instance of this anti-LGBTIQ verbal harassment or abuse had occurred during the last 12 months.

Even including those who answered no to question 1, that still means 48% of all respondents reported experiencing verbal harassment or abuse in the past year alone.

These numbers might not be surprising to members of our community, but it is nevertheless shocking to confirm that 3 out of every 4 LGBTIQ Australians have been verbally harassed because of who they are, with almost half of all respondents reporting homophobic, biphobic, transphobic or intersexphobic verbal abuse in the last 12 months.

The following sections show the results to these two questions according to different demographic groupings, including LGBTIQ status, Aboriginal and Torres Strait Islander people, age, and residence by state and territory.

LGBTIQ Status

There were similarities, as well as some stark differences, in how lesbian, gay, bisexual, transgender, intersex and queer people experienced verbal harassment and abuse. Their respective answers to questions 1 and 2 are as follows:

Lesbian: 77.6% have ever experienced anti-LGBTIQ verbal harassment, and of those 68.7% indicated at least one instance during the past 12 months[iii]

Gay: 78% ever, and of those 56.5% during the past 12 months[iv]

Bisexual: 63.9% ever, of those 68.8% in last 12 months[v]

Transgender: 81% ever, of those 84.4% in last 12 months[vi]

Intersex: 88.2% ever, of those 93.3% in last 12 months[vii], and

Queer: 79.8% ever, of those 79.9% in last 12 months[viii].

Among lesbian, gay, transgender and queer respondents, the proportion that had experienced verbal harassment or abuse at some point in their lives was remarkably consistent – all falling somewhere between 77.6% and 81%. The proportion of bisexual people reporting lifetime abuse was somewhat lower, at 63.9%[ix].

However, there were much larger differences between groups in terms of experiences of anti-LGBTIQ verbal harassment and abuse over the past year.

While 43.4% of all gay respondents, and 44% of all bisexual respondents, reported verbal harassment or abuse during the last 12 months[x], this figure rose to 53.1% of all lesbian respondents (slightly above the overall average).

In terms of queer respondents the figure was higher still, at 63.9%, while for transgender people it rose again to 68.2%.

Think about that for a second: more than two-thirds of transgender people reported being verbally harassed or abused simply because of who they are in the past 12 months alone.

Further, while there is little difference between gay and transgender people in reporting lifetime verbal harassment (78% and 81% respectively), transgender people were 57% more likely to report verbal abuse over the past year.

Of course, all of these figures are far too high; no level of homophobia, biphobia or transphobia is acceptable. Nevertheless, we must not ignore the fact that, when it comes to verbal harassment and abuse over the last year, the burden has fallen much more heavily on transgender and queer Australians.

Aboriginal and Torres Strait Islander people

A total of 62 survey respondents indicated that they were Aboriginal and/or Torres Strait Islander (or 3.7% of the sample).

83.3% reported that they had ever reported verbal harassment or abuse because of their sexual orientation, gender identity or intersex status[xi]. Of those, 78% reported verbal harassment or abuse during the past 12 months[xii].

That means 65% of all Aboriginal and Torres Strait Islander LGBTIQ respondents reported homophobic, biphobic, transphobic or intersexphobic abuse during the last 12 months, significantly above the national average and placing them at similar risk to transgender and queer Australians.

Age

The survey asked respondents to nominate their respective cohort: 24 and under; 25 to 44; 45 to 64; or 65 and over. The answers provided by these different groups were relatively similar for question 1, although varied greatly for question 2.

Have you ever experienced verbal harassment or abuse because of your sexual orientation, gender identity or intersex status?

  • 24 and under: 70.6% yes[xiii]
  • 25 to 44: 78.2% yes[xiv]
  • 45 to 64: 79.5% yes[xv], and
  • 65 and over: 69.4% yes.[xvi]

Prima facie, the fact the figures for people aged under 25 are slightly lower than the two generations that preceded them might seem encouraging.

However, looked at in a different way, they are a cause for serious alarm: in 2017, a young LGBTIQ person is almost as likely to have experienced homophobic, biphobic, transphobic or intersexphobic verbal abuse at some point in their comparatively shorter life as someone with 20 or even 40 more years life experience.

This concern is borne out by the answers to the second question:

Has one of more instances of this verbal harassment or abuse occurred in the past 12 months?

  • 24 and under: 74.5% yes[xvii]
  • 25 to 44: 58.9% yes[xviii]
  • 45 to 64: 46.1% yes[xix], and
  • 65 and over: 33.3% yes[xx].

The net effect of these two questions reveals that 54.6% of all respondents aged 24 or under have been verbally harassed or abused because of who they are in the last year, compared to 46.1% of respondents aged 25 to 44 and 36.3% of respondents aged 45 to 64.

To put it another way: young LGBTIQ Australians were 50% more likely to be subject to homophobic, biphobic, transphobic or intersexphobic verbal harassment and abuse in 2016 than LGBTIQ people aged 45 to 64.

This result simultaneously proves and undermines the ‘It Gets Better’ message – yes, it gets better for individuals as they grow older, but, on the basis of these findings, it does not seem it has gotten significantly better for young LGBTIQ people today.

Personally, I believe this result at least partially reflects the fallout of attacks on the safe schools program by religious fundamentalists and right-wing extremists, with a potentially devastating impact on young LGBTIQ people, many of whom are only beginning their journey toward self-understanding and self-acceptance, and consequently may be lacking the same resilience as their older counterparts.

State or Territory of Residence

In contrast to the significant differences in results based on age, the levels of anti-LGBTIQ verbal harassment and abuse reported in different jurisdictions around Australia were remarkably consistent. The respective answers to question 1 and 2 are as follows:

New South Wales: 74% have ever experienced anti-LGBTIQ verbal harassment, and of those 64.8% indicated at least one instance during the past 12 months[xxi]

Victoria: 74.1% ever, and of those 67.3% during the past 12 months[xxii]

Queensland: 76.2% ever, of those 63% in last 12 months[xxiii]

Western Australia: 76.3% ever, of those 65.5% in last 12 months[xxiv]

South Australia: 71.1% ever, of those 66% in last 12 months[xxv]

Tasmania: 70.3% ever, of those 77.9% in last 12 months[xxvi]

Australian Capital Territory: 73.2% ever, of those 51.2% in last 12 months[xxvii], and

Northern Territory: 76.2% ever, of those 56.3% in last 12 months[xxviii].

Including those who answered no to question 1, this means for most states and territories the proportion of LGBTIQ people reporting verbal harassment or abuse in the last 12 months was between 42.9% (NT) and 50% (WA)[xxix].

The jurisdiction with the lowest incidence of homophobic, biphobic, transphobic or intersexphobic verbal abuse in the last year was the ACT at 37.5%; the highest was Tasmania at 54.1% of all respondents.

Of course, while the rates of anti-LGBTIQ verbal harassment may be similar across Australia, the options available to victims of such abuse vary considerably.

Only four jurisdictions offer any legal protections against vilification to the LGBTI community (NSW, Queensland, Tasmania and the ACT[xxx]). With no equivalent to section 18C of the Racial Discrimination Act 1975 contained in the Sex Discrimination Act 1984, LGBTI people in Victoria, Western Australia, South Australia and the Northern Territory are not protected against vilification at any level[xxxi].

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Question 3: If you feel comfortable, please provide an example of this homophobic, biphobic, transphobic or intersexphobic verbal harassment or abuse [Optional]

This question allowed respondents to provide an example of the verbal harassment or abuse they had received, irrespective of when it had occurred.

A large number of LGBTIQ respondents took up this opportunity, and the results are sobering, and frequently heart-breaking, to read. A lightly-edited[xxxii] version of these comments can be found at the following link:

question-3-verbal-harassment-and-abuse-comments [PDF]

I encourage you to take the time to read the survey respondent’s very personal stories of homophobic, biphobic, transphobic and intersexphobic abuse, of them experiencing verbal harassment simply because of who they are.

Ideally, conservative and/or right-wing politicians, many of whom claim that anti-LGBTIQ prejudice either doesn’t exist, or is no longer a serious problem, would read them too. If they did, they would have their ‘relaxed and comfortable’ ideas shattered by the irrefutable evidence provided via these real-life stories.

From my perspective, some of the derogatory comments related to sexual orientation that stood out include:

“I was just coming out of a convenience store and walked past this man who was staring at me. Then suddenly he started screaming “Faggot, faggot!!” at me. No one around me said or did anything. I just tried to not react and get away as soon as I could.”

“I normally get something once a year. Walking down the street in Brisbane, my (now) husband and I were shouted at by a couple of blokes who started by saying: ‘you have got to be fucking kidding’ in reference to the fact we were holding hands.”

“I recently saw two young gay men, a couple, who were walking up Chapel Street holding hands. A group of 3 older men were harassing them, following them. I joined the 2 gay men and told them to cross the road and ignore the others. I was then also subjected to the same vitriol with comments such as ‘there’s another one’ and ‘look at the 3 poofters’. We walked into a crowded shop and they didn’t follow us. I was extremely upset by this as were the 2 other younger fellows.”

“I was in my Drs surgery last year & I was abused, & my children were abused, by another patient. My Dr had to drag him away. Some of the names I was called were pervert, deviant, faggot. My kids were called queer, sexually perverted and confused.”

“A co-worker was informed that I identify as bisexual. She berated me openly, saying that I was merely attention seeking and that my children would be very confused adults with such poor guidance in life. She then contacted my husband through social media and told him to take my children and leave because raising them with a mentally ill person was dangerous.”

Transphobic harassment, and verbal abuse on the basis of gender identity, was also disturbingly widespread:

“Public name calling outside a local pub, shouting to others that I don’t have a penis… Being deadnamed in public despite being asked not to, in dismissal of transition or gender status… All in the last 3 months.”

“I was harassed outside a disabled toilet, which I went to because I was uncomfortable in gendered toilets. I overheard someone talking about a ‘faggot’ and learned they were talking about me. I was called transsexual repeatedly against my will by someone. Constant misgendering, deadnaming and disrespect on a daily basis just for being me…”

“Without going into detail, I have been referred to as a tranny, and had both my sexuality and gender identity mocked and invalidated repeatedly. I have been told to kill myself an innumerable amount of times, including being told to ‘get my teeth and gender straight or kill myself’, and that my gender is ‘cancer’. This is just a short list of the abuse I’ve suffered.”

“Demeaning laughter. Hostile stares. Derogatory language (eg ‘faggot’, ‘it’), usually just spoken audibly to others in front of me occasionally yelled from cars. Deliberate misgendering. I’ve noticed increased hostility from authority figures (eg ticket inspectors) in response to me looking more identifiably trans also. When I was closeted, I used to find people making transphobic jokes in front of me a common and painful experience.”

“Because of my choice of clothing/hairstyle I get called shemale. Heshe. Thing. It. Freak. Pervert. Dyke. Faggot. And that’s just the shortlist, and the most common insults I deal with, especially when I go clothes shopping or use a public restroom.”

This story was worrying, both because of the source of the discriminatory comments, but also because of the lack of action by authorities:

“I’m a pre-service teacher (still in university completing a bachelor). While on one of my teaching placements I received verbal harassment intermittently from the year 6 classes. When I reported this I was underwhelmed by the response from the faculty, both at my teaching school and the university faculty. The underlying cause of transphobic slurs directed towards me was undermined by only addressing ‘disrespect’ and they refused to address anything extending from that. When I expressed my concern in not addressing homophobia and transphobia directly I was met with hostility from the faculty, which made my teaching the remaining 3 weeks very uncomfortable.”

The most common story shared in response to this question concerned homophobic, biphobic or transphobic abuse from people in passing cars: at least 78 different comments cited this type of harassment.

This is both an extraordinary total, and an extraordinary indictment of the kind of person who would engage in the behaviour of shouting anti-LGBTIQ abuse at strangers from the safety, comfort and anonymity of their vehicles.

A typical story related to this type of harassment: “Minding my own business at a train station waiting to be picked up and a car full of guys and girls were yelling out ‘faggot’ to me just because they didn’t like the look of me.”

Although perhaps my favourite comment (for reasons that will soon become obvious) was this: “I was on a date walking with the guy and a guy started yelling at us from his car while he was driving, he lost control of the car and crashed into a sign.” #karma

Another common story was homophobic, biphobic or transphobic harassment on public transport, including trains, buses, trams and even taxis: at least 34 comments reported this kind of abuse. This included:

“Frequent dirty looks in public. Once on a bus (my partner and I were holding hands and talking) a woman stood up from her seat [and] said loudly that ‘we didn’t need to rub our sexuality in everyone’s face’ and moved to a seat further away from us.”

“On a packed train going home and one man took offense to another man’s skin was touching him (we were crammed in together… everyone was touching everyone). He started screaming about how the next person doing ‘any more gay shit’ to him was going to cop it. And screamed at the poor man who tried to defend himself. Anyone who tried to get him to calm down was met with homophobic language and threats. It was very scary.”

“(I’m a trans man, my husband is a cis man – we married and had a daughter before I transitioned). Just last week my husband and I were boarding a bus to the local shopping centre with our 4 year old daughter in tow. The myki machine was taking a bit of time to read each card. A man behind us shouted ‘move it, faggots!’ at us several times. Our daughter became visibly upset. No one stepped in to help or say anything. The man spent the entire bus ride glaring at us and making snide comments to the person in front of him.”

Perhaps most disappointing about the comments in response to question 3 was the fact approximately 20 people described homophobia, biphobia or transphobia from other members of the LGBTIQ community. This was particularly aimed at bisexual people, and to a slightly lesser degree transgender people[xxxiii]. For example:

“Told I’m greedy for being bi, that bisexuality is an excuse to hide that I’m ‘actually gay’, told that I’m a disgrace to the LGBT+ community for ‘not being able to decide’/’pick a side’…”

“Mostly it’s been lesbians telling me that bisexuals are just straight people trying to be trendy and undermining my identity…”

“There have been quite a few instances over the years where people have learned my sexuality and gone on a rant on how disgusting it is, and in some instances behaved threateningly while doing so. This comes from both non-LGBT+ and LGBT+ people.”

“Spat on in a gay bar for being transgender. Called a freak and told to kill myself. Been told I’m not a real man.”

If we are going to campaign for the elimination of homophobia, biphobia, transphobia and intersexphobia from society, then it is incumbent upon us to do better on these issues within our own communities, too.

One small positive from the responses to question 3: the old stereotype of gay man (or trans person) as ‘paedophile’ appears to be fading away, with only eight comments including this description as an element of the verbal harassment or abuse received. That particular form of abuse cannot die soon enough.

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Conclusion

The results of this survey suggest that 3 out of every 4 LGBTIQ Australians have experienced homophobic, biphobic, transphobic or intersexphobic verbal harassment or abuse at some point in their lives.

The survey also confirms that 2016 was a bad year for the LGBTIQ community, with 48% of people reporting that at least one instance of this anti-LGBTIQ verbal abuse occurred in the past 12 months.

These figures are unacceptably high to begin with, but we must also not overlook the fact these proportions are higher still for several groups within the LGBTIQ community who are particularly vulnerable:

  • Transgender individuals were 57% more likely to report verbal harassment and abuse in the past 12 months than gay people
  • Queer individuals were 47% more likely than gay people to experience recent verbal abuse
  • Almost two-thirds of Aboriginal and Torres Strait Islander respondents were subject to homophobic, biphobic or transphobic verbal harassment throughout the course of the past year, and
  • LGBTIQ people aged 24 or under were 50% more likely to have experienced recent verbal abuse than their counterparts aged 45 to 64.

These statistics show that the state of homophobia, biphobia and transphobia in Australia, in 2017, features far more anti-LGBTIQ verbal harassment than any of us would like. The stories shared in response to question 3, detailing personal accounts of this abuse, powerfully reinforces this fact.

As noted at the beginning of this post, this has been the first in a series of six articles reporting the results of my ‘The State of Homophobia, Biphobia and Transphobia’ survey.

The next five, which focus on physical abuse or violence, the places where prejudice occurs, and discrimination in education, employment and other areas, will be published during March and April.

If you would like to receive updates of these results, please sign up to this blog: on mobile, at the bottom of this page, or on desktop at the top right-hand corner of the screen.

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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 to midnight every day)

Footnotes:

[i] See 2016: Annus Homophobicus.

[ii] Only people who answered yes to question 1 were provided with the opportunity to answer question 2, with 1,220 people completing the second question and 421 people (or 35%) indicting they had not experienced verbal harassment or abuse because of their sexual orientation, gender identity or intersex status in the past 12 months.

[iii] Question 1: 253 yes/73 no. Question 2: 173 yes/79 no.

[iv] Question 1: 501 yes/141 no. Question 2: 280 yes/216 no.

[v] Question 1: 333 yes/188 no. Question 2: 229 yes/104 no.

[vi] Question 1: 303 yes/71 no. Question 2: 255 yes/47 no. For those respondents who identified as both trans and bisexual, this figure was even higher – 86.3% reporting lifetime abuse. Queer trans respondents also reported higher rates (86.2% lifetime abuse).

[vii] Question 1: 15 yes/2 no. Question 2: 14 yes/1 no. Note that, given the low number of respondents, the proportions re intersex status must be treated with caution. For this reason, intersex status is also omitted from some of the discussion/analysis throughout the article.

[viii] Question 1: 394 yes/100 no. Question 2: 314 yes/79 no.

[ix] Without additional information, it is difficult to reach any firm conclusions about why this is the case, although one factor may be historically lesser visibility of bisexuality (which may reduce verbal harassment and abuse, but also exacerbates exclusion and isolation).

[x] Noting that this calculation includes the numbers of respondents who answered no to question 1.

[xi] Question 1: 50 yes/10 no.

[xii] Question 2: 39 yes/11 no.

[xiii] 627 yes/261 no.

[xiv] 341 yes/95 no.

[xv] 221 yes/57 no.

[xvi] 25 yes/11 no. Note that, given the low number of respondents, the proportions re people aged 65 and over must be treated with caution. For this reason, this group is also omitted from some of the discussion/analysis throughout the article.

[xvii] 485 yes/141 no.

[xviii] 201 yes/140 no.

[xix] 101 yes/118 no.

[xx] 8 yes/16 no.

[xxi] Question 1: 401 yes/141 no. Question 2: 259 yes/141 no.

[xxii] Question 1: 286 yes/100 no. Question 2: 191 yes/93 no.

[xxiii] Question 1: 192 yes/60 no. Question 2: 121 yes/71 no.

[xxiv] Question 1: 116 yes/36 no. Question 2: 76 yes/40 no.

[xxv] Question 1: 96 yes/39 no. Question 2: 62 yes/32 no.

[xxvi] Question 1: 78 yes, 33 no. Question 2: 60 yes/17 no.

[xxvii] Question 1: 41 yes/15 no. Question 2: 21 yes/20 no.

[xxviii] Question 1: 16 yes/5 no. Question 2: 9 yes/7 no. Note that, given the low number of respondents, the proportions re people in the Northern Territory must be treated with caution.

[xxix] Full results (reporting verbal harassment of abuse in the past 12 months, all respondents):

  • NSW 47.8%
  • Victoria 49.5%
  • Queensland 48%
  • WA 50%
  • SA 45.9%
  • Tasmania 54.1%
  • ACT 37.5%
  • NT 42.9%

[xxx] Although NSW does not include vilification protections for bisexual or intersex people, and Queensland does not protect intersex people.

[xxxi] Obviously, depending on the circumstances of the verbal harassment or abuse, only some of the responses given to the survey would fit the legal definition of vilification, irrespective of the ground on which it was based.

[xxxii] Comments were edited to, amongst other things:

-Remove identifying information

-Remove defamatory comments, and

-Remove offensive remarks (for example, deleting explicitly racist comments and/or unnecessary descriptions of a person’s race).

[xxxiii] Although I was particularly disturbed by a small number of respondents who included transphobic comments in their answers to question 3 itself, which were subsequently edited to remove the most offensive elements.

Submission re Foreign Policy White Paper

Below is my personal submission regarding the development of the Australian Government’s Foreign Policy White Paper. Submissions close Tuesday 28 February 2017. For more details, please see the Department of Foreign Affairs & Trade’s website.

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Foreign Policy White Paper Submission

c/- whitepaper@dfat.gov.au

 

To whom it may concern,

 

Submission re Foreign Policy White Paper

 

Thank you for the opportunity to provide a submission to inform the Australian Government’s development of its Foreign Policy White Paper.

 

This is a personal submission, prompted by the four-page Call for Submissions, published on the Department of Foreign Affairs and Trade website.

 

In this submission, I will address four main issues that I believe must be addressed in any responsible Foreign Policy White Paper: climate change; refugees; foreign aid; and human rights.

 

Which is why it was so disappointing to note that three of these four issues were not mentioned, at all, in that four-page document.

 

There was not even a single mention of the threat posed by global warming, the humanitarian challenge of the growth in displaced persons and people seeking asylum, or the need to promote the human rights of all people, including lesbian, gay, bisexual, transgender and intersex (LGBTI) people, around the world.

 

Admittedly, there was at least one cursory reference to “our overseas development assistance program”, although, as we shall see below, even that was inadequate.

 

In any event, please see below my explanation of why each of these four policy areas must form a central part of the Foreign Policy White Paper that is expected to be released in late 2017.

 

  1. Climate Change & Global Warming

 

I find it extraordinary that the White Paper call for submissions completely failed to mention[i] what must be the most important challenge facing the world in the 21st century: climate change, and specifically accelerating global warming.

 

In 2017, there is no doubt that the actions of humans have contributed to a rapidly warming planet. Indeed, the Government’s own Bureau of Meteorology confirmed, in its most recent Annual Climate Statement[ii], that:

 

  • 2016 was Australia’s fourth warmest year on record, 0.87 degrees above the long-term average
  • It was also the warmest year on record for ocean temperatures in the Australian region, with an annual mean sea surface temperature 0.73 degrees above average, and
  • Our three most populous states, NSW, Victoria and Queensland, also had the highest average minimum temperatures on record during the past 12 months.

 

Globally, the news is even more confronting. The same report confirmed that:

 

  • 2016 was the warmest year on record around the world, 0.83 degrees above the long-term average
  • “This surpasses the previous record set in 2015, and is the third year running that the new record has been set” [emphasis added]
  • January, February, March, April, July, August and December 2016 were all the warmest respective months on record, and
  • “The global ocean surface temperature for the calendar year was also the warmest on record in 2016, surpassing the record set in 2015.”

 

This is nothing short of a climate emergency. And it is a situation that will directly affect Australia, and its people, just as it affects every other country and people in the world (after all, if the planet cooks, we will all cook with it).

 

The threat of climate change is an international problem – consequently, the response to it must be international in nature too. That includes a response from Australia, both through domestic policy (with the introduction of an effective price on carbon), but also in its foreign policy settings.

 

Climate change generally, and global warming specifically, may well be the most significant challenge we, as a species, have ever faced. I believe responding to this threat must be the number one priority of any new Foreign Policy White Paper that the Australian Government produces.

 

170227-climate-change-final

Climate change is real, and it cannot be ignored (source: Bureau of Meteorology).

 

  1. Refugees and People Seeking Asylum

 

A second issue that, almost as bizarrely, is not even mentioned in the Foreign Policy White Paper call for submissions is the growing number of displaced people around the world, including refugees and people seeking asylum.

 

This is despite the fact that the most recent Global Trends: Forced Displacement report by the United Nations High Commissioner for Refugees (UNHCR)[iii] noted that “[g]lobal forced displacement has increased in 2015, with record-high numbers.”

 

Indeed, that same report revealed there were:

 

  • 65.3 million forcibly displaced persons worldwide, including
    • 21.3 million refugees
    • 40.8 million internally displaced persons, and
    • 3.2 million asylum seekers
  • 12.4 million people newly displaced due to conflict or persecution in 2015 alone, and
  • 2.0 million asylum applications submitted (a new record-high) with 441,900 asylum claims just in Germany as a result of the war in Syria.

 

It should not have taken widely-shared, tragic photographs of Alan Kurdi in September 2015 to make us realise this is truly a global humanitarian crisis.

 

The numbers alone confirm that this is an international issue of the highest order, and addressing its causes, while responding to the consequences, must be a foreign policy priority for all countries, including Australia.

 

One of the many depressing statistics found in the UNHRC’s report confirms that it currently is not: “[d]uring 2015, the total number of refugees admitted for resettlement stood at 107,100”[iv]. That’s 107,100 out of a total of 21.3 million.

 

Of course, the Australian Government may claim that, given 9,400 of those refugees were resettled here (the third-highest of any country), we do not need to do more.

 

But that ignores the fact we benefit from our location, and isolation, and therefore do not have the same number of in-country applications for asylum as other places. And it also overlooks the wealth and privilege we currently enjoy.

 

As a country we can, and must, do more in response to the growing number of displaced persons around the world, and that should be reflected in our new Foreign Policy White Paper.

 

170227-unhcr-forced-displacement-2015-final

Source: UNHCR

 

  1. Foreign Aid

 

The one issue, out of the four priority areas highlighted above, that is at least touched on in the call for submissions is foreign aid. Topic 5: Australia confronts a range of strategic, security and transnational challenges on page 3 includes the following question:

 

“How can our foreign policy, including our overseas development assistance program, support a more prosperous, peaceful and stable region?”

 

However, while this question at least acknowledges the importance of foreign aid (or in this case ‘overseas development assistance’), it does so largely within the framework of Australia’s national interest, rather than in the context of our common humanity.

 

Irrespective of this broader ‘framing’, one of the main answers to this question is actually to increase our foreign aid spending.

 

Drastic budget cuts to Australia’s foreign aid budget in recent years – with $1 billion, or 20%, cut in 2015-16, and a further $224 million reduction in 2016-17 – have seen foreign aid as a share of Gross Domestic Product (GDP) fall to an estimated 0.23%[v].

 

Indeed, “[b]etween 2012 and 2016, Australia’s foreign aid as a share of national income has fallen steeply from 0.36% to 0.23%.”[vi]

 

This leaves our foreign aid allocation at less than half the previous bipartisan goal of reaching 0.5% of GDP by 2015.

 

And, significantly, it is less than one third of the United Nations target that countries provide at least 0.7% of their national income as foreign aid.

 

The cuts to foreign aid have the potential to cause real and lasting damage across our region, and around the world, to countries and people that can least afford it.

 

As a result, I believe that the Foreign Policy White Paper should feature both a recommitment to the United Nations target, as well as a de-coupling of our foreign aid budget from an almost-exclusive focus on Australia’s national interest.

 

If we fail to do either, then we are at grave risk of changing from the land of ‘the fair go’ to the country of ‘what’s in it for us?’

 

170227-foreign-aid-gdp

Foreign aid as a share of GDP is plummeting, according to the Government’s own figures (source: The Conversation).

 

  1. Human rights, including LGBTI rights

 

There is one final issue that is completely omitted from the four-page Call for Submissions regarding the Foreign Policy White Paper: international human rights.

 

As a long-term LGBTI advocate and activist, I would like to focus on one specific sub-set of international human rights – the rights of lesbian, gay, bisexual, transgender and intersex people around the world.

 

In June 2016, the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) estimated that same-sex sexual acts were illegal in 72 states, or a full 37% of United Nations members[vii]. This includes 13 States (or part thereof) where same-sex sexual acts attract the death penalty.

 

The criminalisation of homosexuality is also a particular problem in our own region of Oceania, with prohibitions in our nearest neighbour Papua New Guinea, as well as Kiribati, Samoa, Solomon Islands, Tonga and Tuvalu (plus Cook Islands who are associates to New Zealand).

 

There are an additional four countries in South-East Asia where same-sex acts remain illegal (Brunei Darussalam, parts of Indonesia, Malaysia and Singapore).

 

Long-standing LGBTI advocate Peter Tatchell last week actually stated that “[t]here remain 75 countries and dependent territories that still criminalise same-sex relations – with nearly half of these jurisdictions outlawing both male and female homosexuality”.[viii]

 

And, in a specific challenge to countries like the United Kingdom and Australia, he observed that “[h]omosexuality remains criminalised in 36 out of the 52 Commonwealth member states” where “[m]ost of these anti-gay laws were imposed by Britain during the colonial era.”[ix]

 

The ongoing criminalisation of people on the basis of their sexual orientation, as well as other anti-LGBTI human rights abuses such as the involuntary sterilisation of intersex infants and the failure to recognise and accept trans and gender diverse people, is a major problem in the early 21st century.

 

I believe Australia should adopt a pro-active role in supporting groups that are working to address these human rights violations, both in our region (where, as we have seen above, there is plenty of work still to do) and around the world.

 

We should also seek, wherever possible, to progress the positive recognition and acceptance of LGBTI human rights in international forums, including the United Nations as well as other groups such as the Commonwealth Heads of Government Meeting (CHOGM).

 

Finally, both of these activities – support for the work of LGBTI rights organisations in our region and globally, as well as the pursuit of LGBTI human rights internationally – should be reflected in the Foreign Policy White Paper.

 

170227-ilga-sexual-orientation-criminalisation-map

Same-sex sexual activity remains criminalised in far too many countries around the world (source: ILGA).

 

**********

 

Obviously, in each of the four issues outlined in this submission – climate change, refugees, foreign aid and LGBTI rights – the Australian Government can be legitimately criticised for not doing enough to achieve progress domestically.

 

We can and must do better in terms of reducing our own carbon emissions, of adopting a more humane approach to refugees and people seeking asylum, of increasing our foreign aid budget and of respecting the rights of lesbian, gay, bisexual, transgender and intersex Australians.

 

But, at the same time as addressing these ourselves, I believe we can – and above all must – help to achieve progress on these issues globally, because the rise of global warming, the growth in the number of displace persons, the unmet need for foreign aid, and discrimination against LGBTI people, are problems that transcend state borders.

 

Which means the solutions cross state borders too – and that therefore Australia has a role to play in fixing them.

 

Thank you in advance for taking this submission into account as the Australian Government develops its Foreign Policy White Paper.

 

Please do not hesitate to contact me, at the details provided, should you require additional information.

 

Sincerely,

Alastair Lawrie

 

Footnotes:

[i] Question 2, on page 3 of the call for submissions, refers to ‘environmental degradation’, a phrase that is so vague it can be interpreted in multiple ways, and does not begin to capture the urgency of the climate emergency we currently face.

[ii] Bureau of Meteorology Annual Climate Statement 2016.

[iii] UNHRC, Global Trends: Forced Displacement in 2015.

[iv] Ibid, page 26.

[v] The Conversation, Savage budget cuts pull Australia down in foreign aid rankings, May 4, 2016.

[vi] Ibid.

[vii] See ILGA, State-Sponsored Homophobia 2016 report here.

[viii] Guardian, There are reasons to be cheerful… LGBTI rights gains in unlikely countries, February 20, 2017.

[ix] Ibid.

What’s Wrong With Tasmania’s Anti-Discrimination Act 1998?

 

This is the last in a series of nine posts looking at Australia’s anti-discrimination laws and discussing how well, or poorly, they protect lesbian, gay, bisexual, transgender and intersex people. In these articles, I have analysed Commonwealth, state and territory legislation with respect to three main issues:

 

  • Protected Attributes
  • Religious Exceptions, and
  • Anti-Vilification Coverage

 

This post will also be the shortest of the nine, because in all three areas Tasmania’s Anti-Discrimination Act 1998 is either best practice, or close to best practice, with only minor amendments needed to improve its anti-vilification provisions (although there is also a risk these laws will be wound back – see below).

 

**********

 

Protected Attributes

 

Unlike some other schemes, Tasmania’s Anti-Discrimination Act 1998 protects all parts of the lesbian, gay, bisexual, transgender and intersex community against discrimination.

 

Section 16 sets out the protected attributes of the Act, and they include sexual orientation (sub-section c), gender identity (ea) and intersex (eb).

 

The definitions of these terms in section 3 are also inclusive:

 

sexual orientation includes-

(a) heterosexuality; and

(b) homosexuality; and

(c) bisexuality”

 

gender identity means the gender-related identity, appearance or mannerisms or other gender-related characteristics of an individual (whether by way of medical intervention or not), with or without regard to the individual’s designated sex at birth, and includes transsexualism and transgenderism” (noting that this does not require gender diverse people to adopt a binary identity in order to receive protection), and

 

intersex 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”

(with Tasmania only the second jurisdiction, after the Commonwealth, to include intersex as a stand-alone protected attribute).

 

Overall, then, the Tasmanian Anti-Discrimination Act 1998 adopts best practice in terms of the protected attributes it includes, covering all LGBTI Tasmanians.

 

**********

 

Religious Exceptions

 

The Anti-Discrimination Act 1998 is also best practice when it comes to religious exceptions – in fact, Tasmania is better, far better, than any other Australian jurisdiction in this area.

 

There are three provisions outlining relevant religious exceptions in the Act:

 

Section 51 “Employment based on religion

(1) A person may discriminate against another person on the ground of religious belief or affiliation or religious activity in relation to employment if the participation of the person in the observance or practice of a particular religion is a genuine occupational qualification or requirement in relation to the employment.

(2) A person may discriminate against another person on the ground of religious belief or affiliation or religious activity in relation to employment in an educational institution that is or is to be conducted in accordance with the tenets, beliefs, teachings, principles or practices of a particular religion if the discrimination is in order to enable, or better enable, the educational institution to be conducted in accordance with those tenets, beliefs, principles or practices.”

 

Section 51A “Admission of person as student based on religion

(1) A person may discriminate against another person on the ground of religious belief or affiliation or religious activity in relation to admission of that other person as a student to an educational institution that is or is to be conducted in accordance with the tenets, beliefs, teachings, principles or practices of a particular religion.

(2) Subsection (1) does not apply to a person who is enrolled as a student at the educational institution referred to in that subsection.

(3) Subsection (1) does not permit discrimination on any grounds referred to in section 16 other than those specified in that subsection.

(4) A person may, on a ground specified in subsection (1), discriminate against another person in relation to the admission of the other person as a student to an educational institution, if the educational institution’s policy for the admission of students demonstrates that the criteria for admission relates to the religious belief or affiliation, or religious activity, of the other person, the other person’s parents or the other person’s grandparents.”

 

Section 52. “Participation in religious observance

A person may discriminate against another person on the ground of religious belief or religious activity in relation to-

(a) the ordination or appointment of a priest; or

(b) the training and education of any person seeking ordination or appointment as a priest; or

(c) the selection or appointment of a person to participate in any religious observance or practice; or

(d) any other act that-

(i) is carried out in accordance with the doctrine of a particular religion; and

(ii) is necessary to avoid offending the religious sensitivities of any person of that religion.”

 

At first glance these exceptions appear extensive in their application. However, the most important point to observe is that discrimination by religious bodies, including religious schools, is only allowed on the basis of the person being discriminated against’s religion – for example, a christian school offering preferential enrolment to students that are christian.

 

It specifically does not allow discrimination on the basis of other attributes, such as the person being discriminated against’s sexual orientation, gender identity or intersex status.

 

In this way, the Tasmanian Anti-Discrimination Act 1998 is clearly superior to other state and territory LGBTI discrimination laws, as well as the Commonwealth Sex Discrimination Act 1984 (which not only provides a general religious exception allowing discrimination against LGBT people in a wide range of circumstances, but also a specific one with respect to religious schools that permits discrimination against LGBT students and teachers).

 

**********

 

Anti-Vilification Coverage

 

The anti-vilification protections afforded LGBTI Tasmanians under the Anti-Discrimination Act 1998 are also strong – although, as we shall see below, there is one area of possible improvement, as well as an impending threat that could significantly undermine these laws.

 

There are actually two provisions that prohibit vilification under the Act:

 

Section 17 “Prohibition of certain conduct and sexual harassment

(1) A person must not engage in any conduct which offends, humiliates, insults or ridicules another person on the basis of an attribute referred to in section 16(e), (a), (b), (c), (d), (ea), (eb) and (k), (fa), (g), (h), (i) or (j) in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated, intimidated, insulted or ridiculed…”

 

Section 19 “Inciting hatred

A person, by a public act, must not incite hatred towards, serious contempt for, or severe ridicule of, a person or a group of persons on the ground of-

(a) the race of the person or any member of the group; or

(b) any disability of the person or any member of the group; or

(c) the sexual orientation or lawful sexual activity of the person or any member of the group; or

(d) the religious belief or activity of the person or any member of the group.”

 

As we saw earlier, sub-sections 16(c), (ea) and (eb) cover sexual orientation, gender identity and intersex, consequently all LGBTI Tasmanians have recourse to the general anti-vilification protection found in section 17(1).

 

Interestingly, however, only sexual orientation is deemed worthy of inclusion in the more serious ‘inciting hatred’ prohibition of section 19. Which leads me to suggest the only possible improvement to the Act in any of the three areas outlined in this post: an amendment to sub-section 19(c) to include gender identity and intersex (which are both equally deserving of this protection).

 

Nevertheless, the anti-vilification protections contained in the Anti-Discrimination Act 1998 are at least the equal of any other state or territory – noting of course that only NSW, Queensland and the ACT have introduced similar protections (with no LGBTI anti-vilification coverage under Commonwealth law, or in Victoria, Western Australia, South Australia or the Northern Territory).

 

As indicated earlier, these is an impending threat that could undermine existing Tasmanian anti-vilification protections, and that is a proposed amendment to broaden the ‘public purpose’ defence to both section 17(1) and (19). Currently, section 55 provides that:

 

Public purpose

The provisions of section 17(1) and section 19 do not apply if the person’s conduct is-

(a) a fair report of a public act; or

(b) a communication or dissemination of a matter that is subject to a defence of absolute privilege in proceedings for defamation; or

(c) a public act done in good faith for-

(i) academic, artistic, scientific or research purposes; or

(ii) any purpose in the public interest.”

 

In late 2016, as I have written elsewhere the Hodgman Liberal Government introduced legislation to expand this defence, and specifically to cover:

 

“(1)(c) a public act done in good faith for-

(i) academic, artistic, scientific, religious or research purposes; or

(ii) any other purpose in the public interest” [emphasis added] where

“(2) In this section-

Religious purpose includes, but is not limited to, conveying, teaching or proselytising a religious belief.”

 

In short, the Tasmanian Government wants to undermine existing anti-vilification laws to make it easier for religious individuals and organisations to “engage in… conduct which offends, humiliates, insults or ridicules another person” and even where it “incite[s] hatred towards, serious contempt for, or severe ridicule or, a person or a group of persons.”

 

It is clear that the most likely targets of this broader ‘right’ to vilify will be lesbian, gay, bisexual and transgender Tasmanians.

 

The Bill has already passed the Legislative Assembly, and it is expected to be considered by the Legislative Council when Parliament resumes from 7 March 2017.

 

It will be incredibly disappointing, not just to LGBTI Tasmanians but also to people around the country who have an interest in this area, if the Council agrees to change, and significantly limit, what is currently the best anti-discrimination legislation in the country – all to make it easier for religious groups to vilify people on the basis of their sexual orientation, gender identity or intersex status.

 

Hopefully enough Council Members reject this attempt, and in doing so ensure the Tasmanian Anti-Discrimination Act 1998 retains its ‘best practice’ status in relation to all of protected attributes, religious exceptions and anti-vilification coverage.

 

will-hodgman

Will Tasmanian Premier Will Hodgman undermine the best LGBTI anti-discrimination laws in Australia simply to make it easier for religious organisations to vilify people on the basis of their sexual orientation or gender identity?

What’s Wrong With South Australia’s Equal Opportunity Act 1984?

 

This post is the penultimate in a series looking at Australia’s anti-discrimination laws, and examining how well, or how poorly, they protect lesbian, gay, bisexual, transgender and intersex (LGBTI) people against discrimination.

 

In particular, they assess Commonwealth, state and territory legislation in terms of the following three issues:

 

  • Protected Attributes
  • Religious Exceptions, and
  • Anti-Vilification Coverage.

 

Unfortunately, while South Australia has recently expanded the range of people legally protected against discrimination, the Equal Opportunity Act 1984 remains grossly inadequate because of the breadth of religious exceptions it offers, and its complete failure to establish LGBTI vilification offences.

 

**********

 

Protected Attributes

 

Section 29 of the Equal Opportunity Act 1984 currently protects lesbian, gay, bisexual and transgender South Australians from discrimination.

 

Sub-section (2a) defines discrimination “on the ground of gender identity” to include (among other things):

 

  • “if he or she treats another unfavourably because the other is or has been a person of a particular gender identity or because of other’s past sex”
  • “if he or she treats another unfavourably on the basis of a characteristic that appertains generally to persons of a particular gender identity, or on the basis of a presumed characteristic that is generally imputed to persons of a particular gender identity”, and
  • “if he or she requires a person of a particular gender identity to assume characteristics of a sex with which the person does not identify”.

 

Even though the person discriminating in these clauses is described as either ‘he’ or ‘she’, the protections offered are not limited to people with binary gender identities – therefore, unlike some jurisdictions, South Australia protects all trans people against discrimination.

 

The protections against discrimination “on the ground of sexual orientation” contained in sub-section (3) are similarly broad, and would cover all lesbian, gay and bisexual South Australians.

 

Fortunately, the recently passed Relationships Register Act 2016 will improve this coverage even further when it commences operation in early 2017. Firstly, it removes the usage of ‘he or she’ in the definition of discrimination described above (replacing it with ‘the person’, which is clearly far more appropriate).

 

More substantively, the Relationships Register Act 2016 amends the Equal Opportunity Act 1984 to introduce a new protected attribute of ‘intersex status’, with the addition of sub-section 29(4)[i].

 

When this provision takes effect, South Australia will become only the fourth jurisdiction in Australia – after the Commonwealth, Tasmania and the Australian Capital Territory – to explicitly protect intersex people against discrimination.

 

Summary: The South Australian Equal Opportunity Act 1984 already protects lesbian, gay, bisexual and transgender people against discrimination. When recent amendments that establish a new protected attribute of ‘intersex status’ commence, likely sometime later this year, South Australia will become only the fourth Australian jurisdiction, out of nine, to cover the entire LGBTI community.

 

**********

 

Religious Exceptions

 

Unfortunately, while the Equal Opportunity Act 1984 will soon be best practice on protected attributes, in terms of religious exceptions it is anything but.

 

Section 50 sets out an incredibly broad range of circumstances in which religious organisations are legally entitled to discriminate against LGBT South Australians:

 

Religious bodies

(1) This Part does not render unlawful discrimination 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 persons seeking ordination or appointment as priests, ministers of religion or members of a religious order; or

(ba) the administration of a body established for religious purposes in accordance with the precepts of that religion; or

(c) any other practice of a body established for religious purposes that conforms with the precepts of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.”

 

While paragraphs (a) and (b) are at least directly related to religious appointments – and therefore somewhat defensible because of their connection to freedom of religion – paragraph (ba) and especially paragraph (c) effectively encourage discrimination by religious organisations in healthcare and other community services.

 

It also allows discrimination in relation to education in religious schools, and therefore overrides the general protections offered to students under section 37, which ostensibly prohibits discrimination with respect to admission as a student, the education or training that is offered to that student, and expelling or otherwise punishing the student.

 

However, the situation is slightly more complicated with respect to teachers in religious schools, with sub-section 34(3) setting out a separate, specific exception in that area:

 

“(3) This Division does not apply to discrimination on the ground of sexual orientation or gender identity in relation to employment or engagement for the purposes of an educational institution if-

(a) the educational institution is administered in accordance with the precepts of a particular religion and the discrimination is founded on the precepts of that religion; and

(b) the educational authority administering the institution has a written policy stating its position in relation to the matter; and

(c) a copy of the policy is given to a person who is to be interviewed for or offered employment with the authority or a teacher who is to be offered engagement as a contractor by the authority; and

(d) a copy of the policy is provided on request, free of charge-

(i) to employees and contractors and prospective employees and contractors of the authority to whom it relates or may relate; and

(ii) to students, prospective students and parents and guardians of students and prospective students of the institution; and

(iii) to other members of the public.”

 

Some may see this as a relatively positive approach, because at the very least it allows everyone to be informed about the policies any particular school adopts. And, admittedly, it is preferable to the carte blanche approach adopted in other states (and especially in New South Wales).

 

However, there are two important qualifications to this ‘benign’ assessment:

 

  • It still allows discrimination against teachers and other employees in religious schools solely on the basis of their gender identity or sexual orientation. This discrimination – which has no connection whatsoever to the ability of LGBT teachers and staff to do their jobs – remains unacceptable, irrespective of the procedural steps a school must first negotiate, and
  • The general religious exception in sub-section 50(c) nevertheless applies (because it covers all sections in the Part, including those applying to employment). Depending on how the interaction between these two provisions has been interpreted by the judiciary, it is possible that religious schools can ‘pick and choose’ the basis on which they discriminate against teachers and employees (and therefore potentially avoid these procedural hurdles altogether).

 

There is one final religious exception which allows discrimination against LGBT South Australians – sub-section 35(2b) allows ‘associations’ to exclude and otherwise adversely treat people on the basis of their gender identity or sexual orientation “if the association is administered in accordance with the precepts of a particular religion and the discrimination is founded on the precepts of that religion.”

 

Summary: The religious exceptions contained in the South Australian Equal Opportunity Act 1984 allow discrimination against LGBT people in a wide range of circumstances, including healthcare, community services, associations and in education (at least in relation to students).

 

LGBT teachers and other staff in religious schools can also be discriminated against simply because of who they are, although whether or not the school must have transparent policies in place to allow such discrimination would depend on judicial interpretation.

 

**********

 

Anti-Vilification Coverage

 

This section will be the shortest of this post – because there is none. Lesbian, gay, bisexual, transgender and intersex South Australians have no protection against anti-LGBTI vilification under the Equal Opportunity Act 1984[ii].

 

This is despite the fact that an entire stand-alone act exists with respect to racial vilification (the Racial Vilification Act 1996). Given homophobia, biphobia, transphobia and intersexphobia are just as damaging, and just as harmful, as racism, the lack of equivalent protections against anti-LGBTI vilification is, in my opinion, shameful.

 

**********

 

Other Issues

There are a few additional issues in the Equal Opportunity Act 1984 that it would be remiss not to at least mention.

 

On the negative side, there is a very broad ‘inherent requirement’ exception in relation to employment. Sub-section 34(2) provides that:

 

“This Division does not apply to discrimination on the ground of sex, sexual orientation or gender identity in relation to employment or engagement for which it is a genuine occupational requirement that a person be of a particular sex, sexual orientation or gender identity.”

 

It is difficult to think of many – in fact, any – jobs in which it is an inherent requirement that someone be of a particular sexual orientation or gender identity. It would be interesting to see on what possible basis the drafters attempted to justify this sub-section.

 

Similarly, sub-section 34(4) allows discrimination in employment against transgender people generally, and non-binary gender diverse people in particular, on the basis of their appearance, stating that:

 

“This Division does not apply to discrimination on the ground of gender identity in relation to employment or engagement if the discrimination is for the purposes of enforcing standards of appearance and dress reasonably required for the employment or engagement.”

 

Once again, it is hard to see how such discrimination can possibly be justified, and I would argue that both sub-sections (34(2) and (4)) should be repealed.

 

On the other hand, there are two exceptions that allow positive discrimination in favour of LGBTI people.

 

The first, in sub-section 35(2a), permits LGBT-specific associations to be created (for “persons of a particular gender identity” or for “persons of a particular sexual orientation (other than heterosexuality)”, noting that heterosexuality remains privileged within Australian society).

 

The second, in section 47, authorises actions designed to overcome discrimination against minority groups:

 

Measures intended to achieve equality

This Part does not render unlawful an act done for the purpose of carrying out a scheme or undertaking intended to ensure that persons of a particular sex, sexual orientation or gender identity, have equal opportunities with, respectively, all other persons, in circumstances to which this Part applies.”

 

Nevertheless, while these final two provisions are welcome, they do not negate the harmful aspects of the Act, including its overly-generous religious exceptions, and the complete lack of anti-vilification coverage for LGBTI South Australians.

 

With Parliament starting for another year today (Tuesday 14 February 2017), hopefully all sides of politics acknowledge these major flaws and work together to rectify them as a matter of priority.

 

jayweatherill

With the next election due in March 2018, South Australian Premier Jay Weatherill has 12 months left to fix the broken Equal Opportunity Act 1984.

 

Footnotes:

[i] “(4) For the purposes of this Act, a person discriminates on the ground of intersex status-

(a) if the person treats another unfavourably because of the other’s intersex status or past intersex status; or

(b) if the person treats another unfavourably because the other does not comply, or is not able to comply, with a particular requirement and-

(i) the nature of the requirement is such that a substantially higher proportion of persons who are not of intersex status complies, or is able to comply, with the requirement than of those of intersex status; and

(ii) the requirement is not reasonable in the circumstances of the case; or

(c) if the person treats another unfavourably on the basis of a characteristic that appertains generally to persons of intersex status, or presumed intersex status, or on the basis of a presumed characteristic that is generally imputed to persons of intersex status; or

(d) if the person treats another unfavourably because of an attribute of or a circumstance affecting a relative or associate of the other, being an attribute or circumstances described in the preceding paragraphs.”

[ii] Although South Australia is not alone in this regard – there are also no LGBTI vilification protections in Commonwealth law, and in Victoria, Western Australia and the Northern Territory.

Equal Means Equal – Submission to Inquiry into Marriage Amendment (Same-Sex Marriage) Bill

Update 15 February 2017:

The Senate Committee Inquiry into the Exposure Draft Marriage Amendment (Same-Sex Marriage) Bill has been completed, with its report tabled in Parliament this afternoon (Wednesday 15 February 2017). A copy of the Report can be found here.

 

The Report itself includes some positives, and some areas of possible concern.

 

On the positive side, the Committee has acknowledged that adding a stand-alone right for ministers of religion to discriminate against same-sex couples is both unnecessary, and explicitly discriminatory (page 15).

 

The Committee also did not support the introduction of broad new rights for civil celebrants to discriminate against LGBTI couples, noting that they “are authorised to perform a function on behalf of the state and should be required to uphold Commonwealth law” (page 24).

 

On the other hand, the Committee has attempted to define a new category of ‘religious marriage celebrants’ – who are not ministers of religion but conduct marriages for faith communities – and then providing them with similar rights to discriminate as ministers of religion (page 23).

 

While that compromise may seem reasonable, some of these same celebrants also officiate at secular ceremonies, and under no circumstances should they be allowed to discriminate when they are effectively operating as a civil celebrant.

 

In the same way, the proposal that existing civil celebrants should be allowed to register as ‘religious marriage celebrants’, and therefore benefit from the same right to discriminate (page 24), must not apply to any situation in which they continue to oversee civil ceremonies.

 

The Committee also questioned the need for new special rights for religious bodies and organisations to discriminate against same-sex couples – although that is because it believes they may already be allowed to do so because of the overly-generous religious exceptions provided under the Sex Discrimination Act 1984 (page 31).

 

It also discusses, although doesn’t explicitly support, clarifying their ‘right’ to refuse to provide facilities, goods and services in situations that are “intrinsic to, directly associated with and intimately involved in a wedding ceremony” (page 32). Once again, this would unacceptably undermine a reform that is, at its heart, supposed to be about the equal recognition of equal love.

 

Finally, the Committee observed that “[i]n relation to military chaplains, the committee notes that the proposed amendment would not change the current law”, and then suggests the reintroduction of ‘marriage officers’ to provide an alternative method for LGBTI military couples to marry (page 24).

 

While it may not change existing law, a) there must not be a new stand-alone note to section 81 that singles out same-sex couples for adverse treatment and b) as public servants, paid for with our taxes, and with an obligation to serve all personnel equally, the right of military chaplains to discriminate in this way should be abolished.

 

With the Report finalised, pressure now returns to our 150 House of Representatives MPs, and 74 Senators (with two current vacancies), to find a way forward on marriage equality, and ensure it is passed as quickly as possible.

 

But it must also be done as fairly as possible. I would argue there is absolutely nothing in the Committee Report that would justify the inclusion of new special rights to discriminate against LGBTI couples in any marriage equality bill.

 

In which case, in the coming weeks and months it will be up to us to continue to remind Prime Minister Malcolm Turnbull – and Opposition Leader Bill Shorten, as well as the Greens and crossbench MPs and Senators, in fact anyone who will listen to us – that equal means equal, and that means passing marriage equality without new religious exceptions.

 

Original Post:

The Senate is currently conducting an inquiry into the Exposure Draft Marriage Amendment (Same-Sex Marriage) Bill. This is the legislation that the Government would have introduced had the marriage equality plebiscite been held, and had that vote been successful.

Full details of the inquiry can be found here. It is due to report on Monday 13 February 2017, although what happens afterwards remains unclear.

My submission to the inquiry, which focuses on the provisions of the Bill that seek to treat LGBTI couples differently to, and worse than, other couples, has now been published, and is reproduced below:

 

Committee Secretary

Select Committee on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill

Department of the Senate

PO Box 6100

Canberra ACT 2600

samesex.marriage.sen@aph.gov.au

 

Friday 13 January 2017

 

Dear Committee Secretary

 

Submission on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill

 

Thank you for the opportunity to provide a submission in relation to this inquiry, which is examining the Government’s Exposure Draft Marriage Amendment (Same-Sex Marriage) Bill (‘the Bill’).

 

In this submission, I will explain my personal reasons for opposing several provisions contained within the Bill, before addressing terms of reference a), b) and c) in detail. This will include my main recommendations for amendment to, and improvement of, the proposed legislation, before concluding with a short summary of this submission and its recommendations.

 

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Introduction: Equal Means Equal

 

I met my fiancé Steven in August 2008, two weeks after my 30th birthday and just one week after the wedding of my brother to his wife.

 

It was clear from the very beginning that this relationship was different from any that had come before. And I know that applies for both of us.

 

Within 12 months we began planning the rest of our lives together. Steven and I have lived together from January 2010 onwards, and now own a home together.

 

More importantly, we have been engaged to be married since 23 January of that same year.

 

That means, in exactly ten days’ time, we will have been waiting for the legal right to get married for a full seven years. Our engagement has already lasted longer than the marriages, from beginning to end, of many Australian couples.

 

All we want is exactly the same right to wed, and to have that wedding recognised under secular law, as my brother when he married his wife, and as my sister when she married her husband in 2006.

 

Significantly, the Bill that is being considered as part of this inquiry would allow Steven and I to finally ‘tie the knot’. That aspect of the Bill, contained in clause 1 (amending subsection 5(1) (definition of marriage) to “omit “a man and a woman”, substitute “2 people””), is obviously welcome.

 

However, if passed as drafted, a number of other provisions in the Bill would ensure that, rather than being treated the same as my brother and his wife, or my sister and her husband, this legislation would ensure Steven and I were subject to adverse, and discriminatory, treatment simply because of who we are.

 

The civil celebrant who officiated at the ceremony between my sister and her husband would have the ‘right’ to reject us because we are not “a man and a woman”.

 

Any ‘religious organisation or body’, broadly defined, that provided wedding-related facilities, goods and services would be able to turn us away because of our sexual orientation. And that ‘right’ would apply even where they operated for profit, and even though the same groups could not discriminate against my siblings.

 

In short, the Bill would establish two different classes of couples – ‘man and woman’ couples, versus everyone else – with the latter category, including Steven and me, enjoying lesser rights than the former.

 

While this legislation will deliver marriage, it will not deliver marriage equality. That outcome is unacceptable both to me, and to my fiancé Steven.

 

There is no legitimate reason why we should be treated worse than my brother and my sister were when they decided to marry their respective partners. Because we are not ‘worse than’ anyone, them included.

 

Equal means equal. Or at least it should – and I sincerely believe that principle must be reflected in the Marriage Act.

 

**********

  

Term of reference a) the nature and effect of proposed exemptions for ministers of religion, marriage celebrants and religious bodies and organisations, the extent to which those exemptions prevent encroachment upon religious freedoms, and the Commonwealth Government’s justification for the proposed exemptions.

 

The Bill proposes four new and/or expanded special rights to discriminate against couples that include lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians. All four are unnecessary and unjustified. All four should be removed from the legislation to help achieve genuine marriage equality.

 

  1. A specific right for ministers of religion to discriminate against couples that are not “a man and a woman”

 

I should begin by noting that I agree with the ability of authorised celebrants who are ministers of religion to refuse to perform any religious ceremonies, including weddings, that do not fit within the beliefs of their religion. That obviously includes the right to refuse to marry LGBTI couples, even if I personally believe that such discrimination is abhorrent.

 

However, it is important to remember that ministers of religion already have the right to refuse to perform any ceremony under existing section 47 of the Marriage Act 1961:

 

Ministers of religion not bound to solemnise marriage etc.

Nothing in this Part: (a) imposes an obligation on an authorised celebrant, being a minister of religion, to solemnise any marriage…”

 

If the right for LGBTI couples to marry was finally recognised under Commonwealth law, that section would plainly allow ministers of religion to deny them service. Therefore, no new amendments are required to the Act to allow ministers of religion to refuse to officiate LGBTI weddings.

 

In which case, the proposed repeal of section 47, and replacement with a more detailed right to discriminate, is entirely unnecessary. In particular, proposed new sub-section 47(3) states:

 

Refusing to solemnise a marriage that is not the union of a man and woman

(3) A minister of religion may refuse to solemnise a marriage despite any law (including this Part) if:

(a) the refusal is because the marriage is not the union of a man and a woman; and

(b) any of the following applies:

(i) the refusal conforms to the doctrines, tenets or beliefs of the religion of the minister’s religious body or religious organisation;

(ii) the refusal is necessary to avoid injury to the religious susceptibilities of adherents of that religion;

(iii) the minister’s conscientious or religious beliefs do not allow the minister to solemnise the marriage.”

 

The inclusion of this unnecessary new sub-section, which highlights the ability of ministers of religion to discriminate against one class of couple (LGBTI people) and one class of couple only, is discriminatory and should be rejected.

 

Recommendation 1: Proposed new section 47, and especially sub-section 47(3), is both unnecessary and discriminatory and should be removed from the Bill. Existing section 47 of the Marriage Act would continue to allow ministers of religion to refuse to perform any marriage ceremony.

 

**********

 

  1. A new special right for civil celebrants to discriminate against couples that are not “a man and a woman”

 

Currently, only ministers of religion have an explicit ‘opt-out’ clause under the Marriage Act 1961, allowing them to decline to perform any marriages with which they disagree.

 

No equivalent provision or power exists for civil celebrants – which is entirely reasonable, given they are essentially ‘small businesses’, providing a service that the government has authorised them to, and explicitly not acting on behalf of any religion or religious organisation.

 

However, the Bill proposes an entirely new special right for ‘secular’ civil celebrants to reject LGBTI couples just because of who they are. Proposed new section 47A reads:

 

Marriage celebrants may refuse to solemnise marriages

(1) A marriage celebrant (not being a minister of religion) may refuse to solemnise a marriage despite any law (including this Part) if:

(a) the refusal is because the marriage is not the union of a man and a woman; and

(b) the marriage celebrant’s conscientious or religious beliefs do not allow the marriage celebrant to solemnise the marriage.”

 

This is, to put it simply, outrageous.

 

There is absolutely no reason why someone who is engaged in small business should be able to discriminate in such a way, against people who are LGBTI, solely because of their personal beliefs. It is the equivalent of encouraging celebrants to put up a sign saying ‘no gays (or lesbians, or bisexuals, or trans people, or intersex people) allowed’.

 

The fact that, unlike ministers of religion who are able to discriminate against any couples, civil celebrants will only be allowed to discriminate against LGBTI couples, merely highlights the homophobia, biphobia, transphobia and intersexphobia that lies at the heart of this proposed new section.

 

And, with civil ceremonies now accounting for three-in-four of all mixed-sex weddings[i], and likely forming an even higher proportion of LGBTI weddings (at least in part because some religions will continue to turn couples away that are not “a man and a woman”), this prejudiced provision will impact on a large number of LGBTI couples. For all of these reasons, it should be rejected.

 

Recommendation 2: Proposed new section 47A, which establishes an entirely new special right for civil celebrants to discriminate against LGBTI couples, and LGBTI couples only, is discriminatory and should be removed from the Bill.

 

**********

 

  1. A new special right for religious bodies and organisations to discriminate against couples that are not “a man and a woman”

 

Unfortunately, under the Bill it is not just civil celebrants who will be allowed to put up unwelcome (on multiple levels) signs saying ‘no gays, or lesbians, or bisexuals, or trans people, or intersex people, allowed.’

 

Religious bodies or organisations will also be able to do so under proposed new section 47B, which reads:

 

Religious bodies and organisations may refuse to make facilities available or provide goods or services

(1) A religious body or a religious organisation may, despite any law (including this Part), refuse to make a facility available, or to provide goods or services, for the purposes of the solemnisation of a marriage, or for purposes reasonably incidental to the solemnisation of a marriage, if:

(a) the refusal is because the marriage is not the union of a man and a woman; and

(b) the refusal:

(i) conforms to the doctrines, tenets or beliefs of the religion of the religious body or religious organisation; or

(ii) is necessary to avoid injury to the religious susceptibilities of adherents of that religion.”

 

There are a number of significant problems with this provision.

 

First and foremost, by not defining what a ‘religious body’ or ‘religious organisation’ is, it is difficult to know exactly who will be able to exercise this new specific right to discriminate (with the possibility that the number of groups permitted to turn away LGBTI couples will be quite high).

 

Secondly, by not defining the phrases ‘for the purposes of the solemnisation of a marriage, or for purposes reasonably incidental to the solemnisation of a marriage’, (and especially the term ‘reasonably incidental’) it is also difficult to know the scope of this new special right to discriminate.

 

However, even if both the number of groups allowed to discriminate, and the exact circumstances in which they were allowed to do so, were known, this proposed new section would still be fundamentally flawed.

 

That is because it authorises discrimination against LGBTI couples far beyond any right to refuse to conduct weddings in places of worship, like churches, which would likely be justified on the basis of religious freedom.

 

Instead, it permits adverse treatment of couples who are not “a man and a woman” in a wide range of circumstances, including in hiring venues where it is not a place of worship, and in the provision of goods and services even where this is engaged in on a commercial basis, for profit.

 

One consequence of this is that it would establish a negative precedent for the future expansion of this right to discriminate to other individuals and businesses, such as florists, bakers, photographers or wedding reception venues, who are not religious bodies or organisations, to refuse service to LGBTI couples.

 

If other commercial enterprises are allowed to do so (because they are run by religious groups), and even civil celebrants are permitted to discriminate on the basis of their personal beliefs, it is entirely predictable that additional groups will demand their own ability to reject couples who are not “a man and a woman.”

 

Despite all of the above faults, however, the major flaw with the provision is that it is a direct attack on LGBTI couples and LGBTI couples only. It singles out any relationship that doesn’t fit within the definition of “a man and a woman” for special, and detrimental treatment – and literally nobody else.

 

That makes this proposed provision homophobic, biphobic, transphobic and intersexphobic, and it too should be rejected.

 

Recommendation 3: Proposed new section 47B, which establishes an entirely new right for religious bodies or organisations to discriminate in the provision of wedding-related facilities, goods and services against LGBTI couples, and LGBTI couples only, is discriminatory and should be removed from the Bill.

 

**********

 

  1. A specific right for Defence Force chaplains to discriminate against couples that are not “a man and a woman”

 

The Bill’s fourth and final new and/or expanded special right to discriminate against LGBTI couples is provided to Defence Force chaplains.

 

This is established through the addition of a note to existing section 81 of the Marriage Act 1961, which deals with the rights of Defence Force chaplains to refuse to solemnise weddings. That note would read:

 

“Example: a chaplain may refuse to solemnise a marriage that is not the union of a man and a woman where the refusal conforms to the doctrines, tenets or beliefs of the chaplain’s church or faith group.”

 

While these chaplains are ministers of religion, and therefore would potentially have the ability to discriminate against any couple, they are also a special class of celebrant, because:

 

  • They are public servants, paid for out of everyone’s taxes – LGBTI and non-LGBTI, and religious and non-religious, alike[ii], and
  • In their duties, Defence Force chaplains are expected to “administer spiritual support to all members, regardless of their religion”[iii] (emphasis added).

 

Therefore, permitting discrimination by Defence Force chaplains fails in principle on two counts:

 

  • As public servants, they should not be able to discriminate against members of the public simply because of their personal beliefs – otherwise we are allowing the Australian equivalent of Kim Davis, and
  • In providing spiritual support for Defence Force personal, they are expected to do so for all people, not just those who are cisgender and heterosexual.

 

Which means that, if Defence Force chaplains are to continue to be authorised to officiate any weddings, it must include the weddings of LGBTI people. To do otherwise is, once again, homophobic, biphobic, transphobic and intersexphobic, and it should be rejected.

 

Recommendation 4: The proposed new note to section 81, which establishes a specific right for Defence Force chaplains to discriminate against LGBTI couples, and LGBTI couples only, is discriminatory and should be removed from the Bill. As public servants who are obligated to support all Defence Force personnel, these chaplains should be required to marry all couples, regardless of sexual orientation, gender identity or intersex status, otherwise their ability to officiate wedding ceremonies should be removed.

 

**********

 

As suggested by term of reference a), the above four new and/or expanded special rights to discriminate against LGBTI couples have ostensibly been included in the Bill by the Government on the basis of the need to protect ‘religious freedom’.

 

However, I would argue that, upon closer inspection, they do no such thing. Rather than protecting religious freedom, these provisions instead protect homophobia, biphobia, transphobia and intersexphobia and merely use religion as an excuse.

 

This can be seen when one remembers that there are a wide variety of different religious beliefs about marriage.

 

Some people believe only cisgender heterosexual couples should be able to marry.

 

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 – and, in extreme cases, that people of different types of christianity should not marry.

 

I should note that I do not share any of the above beliefs. But others do, and I have no doubt that their views are sincerely held.

 

Given this, there is no possible justification for the Marriage Amendment (Same-Sex Marriage) Bill to allow civil celebrants, religious bodies and organisations and Defence Force chaplains to discriminate against LGBTI couples but not discriminate against divorced people, or against interfaith couples (or on the basis of other religious beliefs about marriage).

 

The fact that it does so, establishing new special rights to discriminate against LGBTI couples, and only LGBTI couples, reveals the fundamental truth of this Bill: it has very little to do with protecting religious freedom, and is more concerned with ensuring people who hold anti-LGBTI views are free to discriminate against couples who are not “a man and a woman” in a wide variety of circumstances.

 

In effect, the Bill privileges homophobic, biphobic, transphobic and intersexphobic beliefs, rather than protecting religious beliefs.

 

That is unacceptable, and merely confirms the earlier recommendations in this submission that these new and/or expanded special rights to discriminate are discriminatory and should be removed from the Bill.

 

I should note here that the Government, having revealed its discriminatory intentions, cannot now turn around and extend these new special rights to discriminate to cover divorced people and interfaith couples because they will only be doing so to cover up the anti-LGBTI nature of its original legislation.

 

Instead, the Government, and Parliament, should focus on amending the Bill to ensure that all couples are (finally) treated in exactly the same way – that equal means equal.

 

**********

 

Term of reference b) the nature and effect of the proposed amendment to the Sex Discrimination Act 1984 and the Commonwealth Government’s justification for it.

 

Currently, sub-section 40(2A) of the Sex Discrimination Act 1984, the legislation that establishes Commonwealth anti-discrimination protections on the basis of sexual orientation, gender identity and intersex status, ensures that “anything done by a person in direct compliance with the Marriage Act 1961” cannot be the subject of an anti-discrimination claim under that legislation.

 

This is justified because it would be entirely unreasonable to hold civil celebrants and others accountable for discriminating against LGBTI couples (because they legally cannot marry them) that has been made compulsory since the Howard Government prohibited marriage equality in August 2004.

 

The amendment of the Marriage Act, to permit all couples to marry irrespective of sexual orientation, gender identity or intersex status, and the removal of this requirement, should therefore be an opportunity to remove or at least significantly curtail this exception to the protections contained in the Sex Discrimination Act.

 

Indeed, the only provision of the Marriage Act that should require an exception would be the ongoing ability of ministers of religion to discriminate against any couples, as established by existing section 47.

 

Consequently, sub-section 40(2A) of the Sex Discrimination Act could, and I would argue should, be restricted to the following:

 

“Nothing in Division 1 or 2, as applying by reference to section 5A, 5B, 5C or 6, affects anything done by a person as authorised by section 47 of the Marriage Act 1961” (emphasis added).

 

Instead, the Bill as drafted actually proposes to expand the exception to the Sex Discrimination Act, because it would permit any discrimination that is ‘as authorised by’ the entirety of the Marriage Act, as redrafted.

 

This is obviously intended to capture all four of the new and/or expanded special rights to discriminate against LGBTI couples outlined earlier. Given the inclusive way this amendment is framed, it may even permit additional forms of anti-LGBTI discrimination.

 

In my view, this is a perverse outcome. Legislation that is intended to remove a long-standing inequality, and injustice, affecting lesbian, gay, bisexual, transgender and intersex Australians, by finally allowing them to marry, actually expands relevant exceptions to the Sex Discrimination Act, thereby increasing the circumstances in which they can lawfully be discriminated against.

 

Once again, this confirms the inappropriateness of the four new and/or expanded special rights to discriminate against LGBTI couples. The proposed amendment to section 40(2A) of the Sex Discrimination Act is also inappropriate, and should be replaced with a narrower exception to that legislation.

 

Recommendation 5: The proposed expansion to the exception contained in sub-section 40(2A) of the Sex Discrimination 1984, allowing discrimination ‘as authorised by’ the Marriage Act 1961, expands the circumstances in which LGBTI people can be discriminated against. This is inappropriate, and this provision should be removed from the Bill. It should be replaced by an amendment that limits this exception to discrimination that is authorised by existing section 47 of the Marriage Act, which allows ministers of religion (and only ministers of religion) to discriminate.

 

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Term of reference c) potential amendments to improve the effect of the bill and the likelihood of achieving the support of the Senate.

 

In terms of amendments to improve the effect of the Bill, I have already made five recommendations to significantly improve its impact on the recognition of the human rights of LGBTI Australians. In this section, I will nominate two further areas of necessary reform.

 

  1. The Bill should refer to marriage equality rather than same-sex marriage

 

The Bill, as drafted, would allow all couples, including those that involve lesbian, gay, bisexual, transgender and intersex individuals, to marry under the law. This is an important reform, and it will substantively improve the lives of many LGBTI Australians.

 

However, the title of the Bill – the Marriage Amendment (Same-Sex Marriage) Bill – only refers to ‘same-sex marriage’, rather than marriage equality.

 

This is problematic because the term same-sex marriage does not include all LGBTI couples. It specifically excludes some transgender people (especially those who identify as non-binary or gender-fluid) and some intersex people.

 

The term same-sex marriage should be replaced with marriage equality in the title of the Bill, to ensure that, alongside recognising the substantive human rights of LGBTI Australians, it symbolically recognises the diversity of these communities.

 

Of all major contemporary public policy issues, marriage is a subject in which both the substantive, and the symbolic, are equally important.

 

Recommendation 6: The Bill should be retitled the Marriage Amendment (Marriage Equality) Bill.

 

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  1. The Bill should allow couples to apply to have specified pre-existing unions recognised as marriages

 

The wait for marriage equality to be recognised under Australian law has been long, often painfully so.

 

It is entirely understandable that, in the interim, many LGBTI couples have chosen alternative ways to have their relationships recognised. This includes many who have travelled overseas (or to consulates within Australia), where marriage equality is lawful, to wed.

 

It also includes couples who have decided to have their relationships recognised under state and territory relationship recognition schemes, including civil partnerships and registered relationships, with or without an associated formally-recognised ceremony.

 

While the Bill will, thankfully, recognise the former (overseas marriages) as marriages, it will not provide any avenue for the latter (civil partnerships or registered relationships) to be recognised in a similar manner.

 

Allowing couples in this situation to apply to have their existing relationship recognised as married would be an acknowledgement of the fact that their mutual commitment to a shared life, and wish to be married, has existed since the date of their commitment being made.

 

It would also acknowledge the discrimination that these couples have endured as a result of the exclusionary nature of the Commonwealth Marriage Act 1961.

 

Recommendation 7: The Bill should allow couples to apply to have specified pre-existing unions, including civil partnerships and registered relationships under state and territory law, to be recognised as marriages where they so desire.

 

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  1. Marriage equality should be passed as a matter of priority

 

Term of reference c) asks for ‘potential amendments to improve the… likelihood of achieving the support of the Senate.’ With all due respect, I believe that to be an inappropriate request.

 

The real question is why the Senate – and the House of Representatives – have not yet passed legislation to recognise the equality of our relationships, irrespective of sexual orientation, gender identity or intersex status.

 

It has been more than a dozen years since the Howard Government’s homophobic ban on marriage equality was first passed by the Commonwealth Parliament.

 

That means LGBTI couples have now experienced more than a dozen years of discrimination, treated as distinctly ‘2nd class’ in comparison to the relationships of cisgender heterosexual Australians.

 

Tragically, in those dozen years, there have also been countless LGBTI relationships where one or both members have passed away without being able to have their relationship recognised under Commonwealth law. The longer the ban continues, the more relationships will be denied justice.

 

That same dozen years has witnessed much ‘sound and fury’ within the Commonwealth Parliament on this issue, including countless inquiries in the House of Representatives and the Senate (with this one now added to the list), ultimately achieving nothing – because we still cannot marry.

 

So, rather than asking how the Bill can be amended to improve the chances of Senators voting for it, as if just one more ‘compromise’ will be enough to secure sufficient support to get it over the line, we should be asking why won’t Senators, and their colleagues in the lower house, do their jobs and pass marriage equality as a matter of priority.

 

Recommendation 8: The Australian Parliament should pass marriage equality as a matter of priority, because LGBTI Australians have waited long enough – too long, in fact – to have their relationships recognised as equal under secular law.

 

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Conclusion

 

In this submission, I hope I have successfully conveyed my passion, not just for the subject of marriage equality generally, but also about the issue of marriage equality and religious exceptions specifically – and why any amendments to the Marriage Act should ensure that all couples are treated exactly the same.

 

I am glad that these issues are being examined by the Senate, through this inquiry, and I look forward to the Committee making recommendations to improve both the substance, and the symbolism, of the Marriage Amendment (Same-Sex Marriage) Bill.

 

Thank you for your consideration of this submission. I would welcome the opportunity to speak to the matters raised above at a Committee hearing, should one (or more) be held.

 

I have also included a Summary of this submission on the following two pages.

 

Please do not hesitate to contact me, at the contact details provided with this submission, should you require clarification, or further information.

 

Sincerely

Alastair Lawrie

 

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Summary

 

Marriage equality is an important issue that affects tens of thousands, hundreds of thousands, Australians, including couples like my fiancé Steven and me.

 

We have been together for more than eight and a half years, and engaged for almost seven years. All we want is the right to be married under secular law, in exactly the same way that my brother married his wife, and my sister married her husband.

 

Unfortunately, while the Marriage Amendment (Same-Sex Marriage) Bill would allow us to marry, it would not do so equally, because it would expose us to potential discrimination that my siblings did not experience.

 

It is marriage, but not marriage equality. And that is not good enough, because equal means equal – and that principle should be reflected in the Marriage Act.

 

I make seven recommendations to improve the Marriage Amendment (Same-Sex Marriage) Bill, as well as an eighth, that marriage equality should be passed as a matter of priority.

 

Recommendation 1: Proposed new section 47, and especially sub-section 47(3), is both unnecessary and discriminatory and should be removed from the Bill. Existing section 47 of the Marriage Act would continue to allow ministers of religion to refuse to perform any marriage ceremony.

 

Recommendation 2: Proposed new section 47A, which establishes an entirely new special right for civil celebrants to discriminate against LGBTI couples, and LGBTI couples only, is discriminatory and should be removed from the Bill.

 

Recommendation 3: Proposed new section 47B, which establishes an entirely new right for religious bodies or organisations to discriminate in the provision of wedding-related facilities, goods and services against LGBTI couples, and LGBTI couples only, is discriminatory and should be removed from the Bill.

 

Recommendation 4: The proposed new note to section 81, which establishes a specific right for Defence Force chaplains to discriminate against LGBTI couples, and LGBTI couples only, is discriminatory and should be removed from the Bill. As public servants who are supposed to support all Defence Force personnel, these chaplains should be required to marry all couples, regardless of sexual orientation, gender identity or intersex status, otherwise their ability to officiate wedding ceremonies should be removed.

 

Recommendation 5: The proposed expansion to the exception contained in sub-section 40(2A) of the Sex Discrimination 1984, allowing discrimination ‘as authorised by’ the Marriage Act 1961, expands the circumstances in which LGBTI people can be discriminated against. This is inappropriate, and this provision should be removed from the Bill. It should be replaced by an amendment that limits this exception to discrimination that is authorised by existing section 47 of the Marriage Act, which allows ministers of religion (and only ministers of religion) to discriminate.

 

Recommendation 6: The Bill should be retitled the Marriage Amendment (Marriage Equality) Bill.

 

Recommendation 7: The Bill should allow couples to apply to have specified pre-existing unions, including civil partnerships and registered relationships under state and territory law, to be recognised as marriages where they so desire.

 

Recommendation 8: The Australian Parliament should pass marriage equality as a matter of priority, because LGBTI Australians have waited long enough – too long, in fact – to have their relationships recognised as equal under secular law.

 

Whenever marriage equality is finally passed by the Commonwealth Parliament, and I genuinely hope it does so soon, it must ensure that all couples are treated equally, because we cannot end up with a situation where ‘some couples are more equal than others’.

 

equalmeansequal-4

 

Footnotes:

 

[i] “[T]he proportion of marriage ceremonies overseen by a civil celebrant increased again to 74.9 per cent of all marriages in 2015”: Marriage and Divorces, Australia, 2015, Australian Bureau of Statistics, November 2016.

[ii] The Defence Jobs Australia website indicates that chaplains are paid over $94,200 following completion of basic training.

[iii] Also from the Defence Jobs Australia website.