South Australian Law Reform Institute

c/- salri@adelaide.edu.au

Monday 6 July 2015

 

To whom it may concern,

Submission to South Australian Law Reform Institute Consultation on Removing LGBTIQ Discrimination from South Australian Laws

Thank you for the opportunity to provide this submission to the South Australian Law Reform Institute (SALRI) public consultation on removing discrimination against lesbian, gay, bisexual, transgender, intersex and queer people from South Australian laws.

While I am not a resident of South Australia, I am a passionate advocate for LGBTI rights, and I provide the following comments on possible ways to improve the legal situation of LGBTI people in South Australia, especially in terms of their protections under anti-discrimination law.

Specifically, I would like to suggest three major reforms to the South Australian Equal Opportunity Act 1984 (the ‘Act’), namely:

1. Amend protected attributes to:
   1. Modernise wording around gender identity, and
   2. Genuinely include intersex status.

The Equal Opportunity Act 1984 currently provides protection to lesbian, gay and bisexual people through section 29 (and subsequent provisions of the Act), because of the definition of ‘sexuality’ in section 5: “sexuality means heterosexuality, homosexuality and bisexuality.”

While the SALRI may wish to consider whether to recommend amendments to the wording of these attributes (potentially to ‘sexual orientation’, to ensure consistency with the provisions of the Commonwealth Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013), the primary concerns around protected attributes, and how they are drafted, are in respect of transgender and intersex individuals.

For example, protections for transgender people are based on the term ‘chosen gender’, which is defined under sub-section 5(5) of the Act as: “a person is a person of a chosen gender if –

• the person identifies on a genuine basis as a member of the opposite sex by assuming characteristics of the opposite sex (whether by means of medical intervention, style of dressing or otherwise) or by living, or seeking to live, as a member of the opposite sex…”

Based on my understanding of transgender activism, and through recent developments of anti-discrimination law within Australia, it is highly likely that using the term ‘chosen gender’, and then defining it in this way, is not best practice.

For example, the Commonwealth Sex Discrimination Act 1984 protections are instead based on ‘gender identity’, which is defined in section 4 of that Act as: “gender identity means the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth.”

The Commonwealth definition appears to be significantly more inclusive, especially because it does not use descriptors such as ‘opposite sex’ and therefore avoids strict gender binaries, allowing people who do not identify as either male or female to also be protected.

I suggest the SALRI consider recommending the South Australian Equal Opportunity Act 1984 be amended to incorporate the term, and definition of, ‘gender identity’ from the Commonwealth Sex Discrimination Act 1984.

In a similar way, it is possible that the drafters of subsection 5(5) of the South Australian Equal Opportunity Act 1984 believed that they were including people with intersex variations, when they wrote: “a person is a person of a chosen gender if – …

• the person, being of indeterminate sex, identifies on a genuine basis as a member of a particular sex by assuming characteristics of the particular sex (whether by means of medical intervention, style of dressing or otherwise) or by living, or seeking to live, as a member of the particular sex.”

However, once again based on my understanding of intersex activism, and on recent developments in anti-discrimination law (particularly at the Commonwealth level, and more recently in Tasmania), it is clear that this definition is not best practice – and is, in fact, inadequate to ensure protection for people on the basis of intersex status.

For this reason, the SALRI should consider recommending that South Australia adopt the provisions of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, which was the first anti-discrimination legislation in the world to include ‘intersex status’ as a stand-alone protected attribute.

As a result of those reforms, ‘intersex status’ is now defined in section 4 of the Commonwealth Sex Discrimination Act 1984 as: “intersex status means the status of having physical, hormonal or genetic features that are:

• neither wholly female nor wholly male; or
• a combination of female and male; or
• neither female nor male.”

Adopting this definition would ensure a far larger proportion of people with intersex variations would have protection under South Australia’s anti-discrimination laws.

Obviously, as a cisgender gay man, I am not an expert on either of the grounds of gender identity or intersex status. That is why these issues have been framed as suggestions – and if this is something that the SALRI wishes to take up in more detail, it should do so in close collaboration with South Australian and/or national transgender and intersex advocacy organisations to ensure that whatever language is ultimately adopted is the best, and most inclusive, possible.

2. Remove broad exceptions granted to religious organisations

The current exceptions which are offered to religious organisations in the Equal Opportunity Act 1984 are overly generous, and their scope should be significantly narrowed.

Section 50 of the Act provides:

“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 both subsections 50(1)(a) and (b) appear to be necessary to protect the genuine exercise of freedom of religion, subsection 50(1)(ba) would only be justified on this basis if it was limited to the operation of explicitly or overtly religious bodies (like churches) and should not apply to other institutions which may be operated by religions but which have a different primary purpose (for example, schools, hospitals, aged care services or other community services).

Subsection 50(1)(c) is also completely unjustifiable given it provides what amounts to essentially a ‘blank cheque’ to organisations that are operated by religious groups to discriminate against lesbian, gay, bisexual or transgender (LGBT) South Australians, both in employment and in service delivery.

There should not be a general right to discriminate against LGBT people, across multiple areas of public life like education, health, aged care or community services, simply because of the religious beliefs of certain individuals or organisations. LGBT South Australians deserve the right to access services, and to apply for or undertake employment, in the public sphere without the threat of being discriminated against solely on the basis of who they are.

The Commonwealth Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, which specifically excluded religious exceptions from applying to LGBT people accessing aged care services operated by religious organisations, has successfully demonstrated that:

1. It is possible to restrict these religious exceptions in law, and
2. After two years of operation, there have been no practical problems in the application of such provisions.

Even more relevantly, the Tasmanian Anti-Discrimination Act 1998 has not granted explicit exceptions to protections on sexual orientation, gender identity or intersex status to religious organisations – and this approach has also worked well over the past decade.

For example, under the Tasmanian legislation, religious organisations have traditionally only been allowed to discriminate in terms of:

1. Employment based on religion (section 51)[1] or
2. Participation in religious observance (section 52)[2].

I suggest that the SALRI consider the long-standing Tasmanian exceptions, which do not allow for general discrimination against LGBTI people on the basis of their sexual orientation, gender identity or intersex status, but only on the grounds of religious belief or activity, as a ‘best practice’ guide to help reform the South Australian Equal Opportunity Act 1984 and therefore improve the anti-discrimination protections which are offered to LGBTI South Australians.[3]

3. Introduce anti-vilification protections for LGBTI South Australians

The final suggestion relates to the issue of anti-lesbian, gay, bisexual, transgender and intersex vilification.

Specifically, it is to recommend the creation of anti-vilification laws, on the basis of sexual orientation, gender identity and intersex status, which are equivalent to the race-based anti-vilification provisions of the South Australian Racial Vilification Act 1996[4].

To put it bluntly, there is no justification whatsoever to have anti-vilification laws which protect people from racist vilification, but to simultaneously not have anti-vilification laws which apply to homophobia, biphobia, transphobia and intersexphobia.

Homophobia, biphobia, transphobia and intersexphobia are just as unacceptable, and, most importantly, just as harmful, as racism – with significant impacts on the mental health of young LGBTI people in particular. If, as a community, we have (or in this case, South Australia, has) resolved to outlaw racist vilification, then similar laws should also be used to outlaw homophobic, biphobic, transphobic and intersexphobic vilification.

Currently, four Australian jurisdictions (NSW, Queensland, the ACT and Tasmania) have anti-vilification laws which cover (at least some of) the lesbian, gay, bisexual, transgender and intersex communities.

However, given neither the Commonwealth Sex Discrimination Act 1984, nor South Australian law, have any vilification protections on these grounds, none of the LGBTI communities in South Australia have any legal protection from similar conduct.

This situation should change – and I suggest the SALRI recommend the creation of new anti-vilification laws which prohibit vilification on the basis of sexual orientation, gender identity and intersex status.

The past 18 months have seen an extensive community conversation about race-based vilification laws at the Commonwealth level, and specifically whether section 18C of the Racial Discrimination Act 1975 should be repealed, amended or retained.

The outcome of this debate appears to be relatively strong community support for the retention of section 18C. As such, I believe the SALRI should take advantage of this moment to recommend that another marginalised group within Australian society should be offered the same shield against conduct which is similarly destructive.

Thank you again for the opportunity to make a submission to the South Australian Law Reform Institute (SALRI) public consultation on removing discrimination against lesbian, gay, bisexual, transgender, intersex and queer people from South Australian laws.

I look forward to the outcome of this consultation, and to the consequent improvements to South Australia’s laws – hopefully including the reforms to the Equal Opportunity Act 1984 recommended in this submission.

Sincerely,

Alastair Lawrie

[1] “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 or 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, teachings, principles or practices.”

[2] “Section 52: Participation in religious observance.

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

• the ordination or appointment of a priest; or
• the training and education of any person seeking ordination or appointment as a priest; or
• the selection or appointment of a person to participate in any religious observance or practice; or
• any other act that –
  • is carried out in accordance with the doctrine of a particular religion; and
  • is necessary to avoid offending the religious sensitivities of any person of that religion.”

[3] However, I do not believe there is any reason to include the recently added, unnecessary – and unnecessarily discriminatory – provisions included in section 51A of the Tasmanian Act which state: “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.”

[4] Section 4 of the SA Racial Vilification Act provides: “Racial vilification. A person must not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of their race by –

• threatening physical harm to the person, or members of the group, or to property of the person or members of the group; or
• inciting others to threaten physical harm to the person, or members of the group, or to property of the person or members of the group.

Maximum penalty:

If the offender is a body corporate – $25 000.

If the offender is a natural person – $5 000, or imprisonment for 3 years, or both.”