Monthly Archives: May 2016

A Referendum, a Plebiscite & an Inheritance

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There are only a few possessions that hold sentimental value for me.

 

Like most people, there are some photos that have a special place in my heart because they remind me of people or moments that have been significant to me. Then there’s the engagement ring Steve gave me (of course). And the unit we bought together too – well, the small part that isn’t currently owned by the bank – not because it is our dream home by any stretch of the imagination, but because it is the home we are making together.

 

One other object I am sentimental about is actually a copy of the Australian Constitution. No, I’m not that much of a nerd – it’s because it once belonged to my grandfather, Alexander Greig Ellis Lawrie, a Senator who represented Queensland from 1 July 1965 to 11 November 1975, and who passed away in the same year I was born.

 

For people who know me, and where I sit on the ideological spectrum, the fact he was a member of the Country Party might come as a bit of a surprise. But, as well as inheriting his physical appearance (or so I’m told), he also passed down – through my father who was once a National Party candidate, too – a keen interest in contributing to politics and public life.

 

Which meant that, when his wife – my grandmother – died early last decade, the Constitution he was provided with when he was originally sworn in, in Senate red and with his name etched on the front cover, was given to the most ‘political’ of his grandchildren.

 

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My grandfather’s Senate copy of the Australian Constitution.

 

One of the things I love about his copy of the Constitution is that, given he started his first term before the successful 1967 referendum on Aboriginal issues (amending the races power, and including Aboriginal people in the population of the States and Territories for the first time for the purpose of allocating seats in Parliament and determining Commonwealth grants), he has actually crossed out, in pencil, the words “other than the aboriginal race in any State” in section 51(xxvi) and struck a line through section 127 entirely.

 

As a consequence, it feels like I own a piece of history – an object that is connected to a special moment when Australia took a small step forward from its past, and in too many cases present, mistreatment of Aboriginal and Torres Strait Islander people.

 

I’ve been thinking about that 1967 referendum quite a bit of late. Not just because today, May 27, is the 49th anniversary of that historic vote. But also because it is the last time the Australian people came together to formally vote on the rights of a minority group.

 

At the moment there is a serious chance there will be a similar public vote at some point between November of this year, and the 50th anniversary of that referendum in May 2017. This time, however, the minority group whose rights will be decided in this way are lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians.

 

That’s because, as you’re probably well aware by now, Prime Minister Malcolm Turnbull has promised that, if his Liberal-National Government is re-elected at the July 2 federal election, they will hold a plebiscite to decide whether to finally introduce marriage equality.

 

In light of this possible plebiscite, I’m sure I’m not the only person reflecting on the 1967 referendum, both as a source of inspiration – because it shows that Australia can change for the better – but also to learn some of its lessons, including how to present a vision of what a more equal country could look like.

 

Nevertheless, while there are some obvious similarities between these two public votes, we shouldn’t overlook the fact the marriage equality plebiscite will be a fundamentally different challenge, in at least three key ways:

 

First, unlike the referendum on Aboriginal issues – which was required to amend two sections of the Constitution – a plebiscite on marriage equality is entirely unnecessary. The High Court has already found that Commonwealth Parliament has the power to amend the Marriage Act 1961 to remove discrimination against LGBTI couples – it’s just that Coalition MPs and Senators are refusing to pass such legislation. In this way, the marriage equality plebiscite can be seen as a political choice rather than a legal necessity.

 

Second, the changes approved by the 1967 referendum enjoyed such clear political and community support that there wasn’t even an official ‘No’ case put before the people. That provides at least part of the explanation for why more than nine in ten Australians voted Yes – which remains the highest affirmative vote in any Commonwealth referendum or plebiscite.

 

Unfortunately, we already know there will be a well-funded and well-organised campaign against marriage equality in any upcoming plebiscite. The recent attacks on the Safe Schools program – by ‘the three Australians’ (Christian Lobby, Marriage Forum and The Australian newspaper) – is just a small foretaste of what an anti-marriage equality campaign would resemble. As a result, the Yes vote for marriage equality will be significantly lower.

 

Third, the decision to hold a referendum in May 1967 had the support of the community whose rights it would affect – from the accounts I have read, it seems most Aboriginal and Torres Strait Islander people were in favour of holding such a vote.

 

In marked contrast, it is not the LGBTI community putting forward the option of a plebiscite – indeed, the overwhelming majority of LGBTI organisations strongly oppose this proposal. Instead, a plebiscite is being advocated by the opponents of equality – not just the Australian Christian Lobby, but also by some conservative members of the Government who would prefer equal marriage never happened. This obviously creates a different dynamic for this particular public vote.

 

In short, a marriage equality plebiscite is a fight we have not chosen. But, if it does proceed, it will be a fight we must engage in, with all our collective efforts.

 

And it’s a fight that we must win, because there is simply too much at stake. Not just for the tens of thousands of couples, like my fiancé Steve and I, who are growing tired of waiting for the simple right to get married, in our own country and in front of our families and friends.

 

But also for the children of rainbow families, who deserve to grow up in a country where their parents are treated equally, and have the ability to get married if they so choose – surely those are the kinds of ‘family values’ that most people would support.

 

We must win because of the impact this change will have on literally hundreds of thousands of lesbian, gay, bisexual, transgender and intersex children and young people, both now and into the future, who will learn that most Australians believe who they are, or who they love, is now accepted.

 

And I sincerely believe we must all fight, and hopefully win, a plebiscite on marriage equality because of what it will ultimately say about our country – about who we are and the values we hold dear.

 

Is Australia an accepting, generous and inclusive nation, the home of the ‘fair go’, willing to treat people equally no matter who they are? Or are we exclusive and unequal, denying the right to get married solely on the basis of a person’s sexual orientation, gender identity or intersex status?

 

The experience of the May 1967 referendum on Aboriginal issues shows us that we can get the decision right. The Senate copy of the Constitution I inherited from my grandfather demonstrates that we can ‘cross out’ the discriminatory provisions that exist in our laws.

 

So, if we wake up on the morning of July 3 and a plebiscite on marriage equality remains squarely on the public agenda, then we must all make sure we do everything within our power to leave our own inheritance, for LGBTI people and indeed all Australians – a better, fairer, and more equal country.

 

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Things you can do right now:

 

Malcolm Turnbull’s Proposed Marriage Equality Plebiscite is Truly Extraordinary

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Prime Minister Malcolm Turnbull’s policy – that, if re-elected, he will hold a plebiscite to determine whether marriage equality will finally be introduced in Australia – is truly extraordinary.

 

Unfortunately for him, and even more so for us, it’s not extraordinary like Adele’s voice (or, if you’re not a fan, at least her extraordinary ability to sell music).

 

Instead, it’s extraordinary in a ‘Donald Trump is in with a real chance of becoming President of the United States’ kind of way: unprecedented, bizarre, inconsistent and radical.

 

Unprecedented

 

The Commonwealth of Australia is now in its 116th year. A significant number of national votes, other than elections, have been held over that time, including 44 referendums (although only eight of those were successful).

 

But there have only been three plebiscites since Federation in 1901 – and, given the High Court has already found that Commonwealth Parliament has the power to amend the Marriage Act 1961 to introduce marriage equality[i], any national vote on marriage equality would be a non-binding plebiscite rather than a constitution-altering referendum.

 

Of those three plebiscites, only one has been held since World War I: the 1977 ‘multiple-choice’ vote to select a new national anthem (for the record, the options were to retain God Save the Queen, or to change to Advance Australia Fair, Song of Australia or Waltzing Matilda, with Advance Australia Fair ‘winning’ with 43.29% of the ballots cast).

 

With a voting age of 18 (having been lowered from 21 in 1973), only people born before April 1959 were able to participate in that symbolic decision[ii]. To put it another way, nobody born in the 1960s, 1970s, 1980s and 1990s has ever voted in any Australia-wide plebiscite.

 

To find a plebiscite that was used to consider a substantive issue of public policy, we have to travel even further back in time – to almost a full century before the present day. In the depths of the so-called ‘war to end all wars’, the Billy Hughes-led Commonwealth Government conducted the only other two plebiscites in our history, to determine whether to introduce military conscription.

 

These votes – held in October 1916 and December 1917 respectively[iii] – are in effect the only precedent of any kind for the holding of a national vote on a policy issue that did not require constitutional change.

 

But, with the voting age then set at 21, and the most ‘recent’ of these votes a mere 98 and a half years ago, in order to participate in a plebiscite of this kind you needed to be born in 1896 or before – or older than the current oldest person in the world[iv]. In other words, nobody alive today has ever voted in an Australia-wide plebiscite to decide a substantive policy issue.

 

The fact that there is literally no-one around who has participated in a policy-based plebiscite confirms that Malcolm Turnbull’s proposed public vote on marriage equality is essentially unprecedented in modern Australia.

 

As for ‘the Donald’, well, you don’t need to be Nate Silver to understand that his Presidential candidacy is unprecedented in contemporary American history too – there hasn’t been anything like him over the past 50, or even 100, years either.

 

Bizarre

 

One of the strangest things about Turnbull’s policy is that he wants to hold the first substantive plebiscite in almost a century on an issue like marriage equality. Think for a minute about all of the significant changes that have occurred since December 1917 without the need for such a vote.

 

We’ve been through multiple wars – World War II, the Korean War and the Vietnam War, and more recently we’ve followed the United States into seemingly endless wars in the Middle East (a somewhat terrifying aside: who knows how many more we would enter at the behest of President Trump?) Australia even had conscription during WWII, and again for the conflict in Vietnam – yet none of these wars, nor the introduction of conscription, required a single plebiscite to be held.

 

We’ve experienced the Great Depression, the post-War boom, the major challenges of the 1970s, 1980s and early 1990s, economic rationalism, and the Global Financial Crisis – still no plebiscite.

 

We’ve seen massive social changes too – including the rise of the women’s movement (imagine for a second the reaction of someone from 1917 to former Prime Minister Julia Gillard), and the recognition of Aboriginal land rights (to some extent anyway), as well as substantial LGBTI law reform, such as decriminalisation, anti-discrimination legislation, parenting rights (in most states and territories) and de facto relationship recognition. Not one of these social reforms needed a plebiscite either.

 

There has even been revolutionary change to the institution of marriage itself – with the 1975 introduction of ‘no fault divorce’ having a much greater impact on a much larger number of families than something like marriage equality could ever hope to achieve. And, once again, it was done without Commonwealth Parliament derogating from its primary responsibility to pass legislation by instead calling a national vote.

 

In this context, it is downright bizarre that, of all the possible issues that could have been the subject of a plebiscite over the past 98 and a half years, Malcolm Turnbull and his Liberal-National Government believe the simple question of whether two men, or two women, can marry is the one worth making the subject of an expensive and time-consuming public vote.

 

Although, admittedly, it’s possibly still not quite as bizarre as the fact someone who is perhaps best known as the star of a reality-TV show, and who has never held public office of any kind, is the presumptive Republican nominee for what remains the most powerful job in the world.

 

Inconsistent

 

One of the things many people find most frustrating about Malcolm Turnbull’s proposed marriage equality plebiscite is that it is entirely inconsistent with recent political history. Or, if you’re being less charitable, that it is hypocritical given the actions of the Liberal and National Parties over the past 12 years.

 

Then-Prime Minister John Howard did not hold a public vote before introducing his Marriage Amendment Act 2004 that legislated to deny the right to marry to lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians. There was no push for a plebiscite on the issue by anyone in the Liberal and National Parties during the many failed attempts to repeal that ban in the years between 2004 and 2011, either.

 

During the September 2012 debate, and (sadly unsuccessful) vote, on the most recent marriage equality Bill to be considered at length, then-Opposition Leader Tony Abbott and his Coalition colleagues did not use the opportunity to describe the process of Parliament voting on marriage equality as inappropriate – they simply used the votes that they held as MPs and Senators to help block it.

 

All of a sudden, however, in August 2015, just as it appeared that the numbers in Parliament might finally have caught up to existing majority community support for this reform, the Liberal-National joint party-room decided to ‘backtrack’ on more than a decade of practice, and refused to use their own votes on this issue, either for or against marriage equality, altogether.

 

Instead, they chose to embark upon a process that we have already seen is essentially unprecedented in modern Australia – before they hold any further parliamentary votes on marriage equality, they will first conduct a $160 million Australia-wide public vote.

 

It is difficult to see this dramatic change in process – from MPs and Senators voting on an issue, just like all other legislation, to holding a nation-wide plebiscite – as anything other than unfair, given that it moves the goalposts on people, and campaigners, who have been working to effect this change for the past decade.

 

But, irrespective of whether you think a plebiscite is ‘fair’ or not, it is impossible to deny that the policy Malcolm Turnbull is taking to the July 2 election – to hold a plebiscite on marriage equality – is fundamentally inconsistent with what he, and his colleagues, have done since John Howard’s ban on marriage equality in 2004.

 

Donald Trump could be described as the King of Inconsistency (although he might upgrade himself to Emperor). As his recent embrace of the National Rifle Association – after previously supporting gun control measures[v] – demonstrates, there is no position he won’t change, and no principle he won’t sacrifice, in order to become POTUS.

 

Radical

 

The one defence that Liberal and National MPs – including both former Prime Minister Tony Abbott and current Prime Minister Malcolm Turnbull – regularly make with regards to holding a plebiscite is that it is ‘the most democratic way to make this decision.’ After all, how much more ‘democratic’ can you get than letting the people decide via a public vote?

 

And I’ll readily acknowledge, holding a plebiscite on marriage equality does fit with certain conceptions of ‘participatory’ democracy. But it is also a very different approach to determining matters of public policy from our usual modus operandi, one that does not sit particularly well with our more traditional ‘representative’ democracy.

 

For example, Tony Abbott has said that holding a plebiscite “is the best way to decide something that’s so important but so personal… It’s to let the people decide so that the decision, whichever way it goes, will have their authority”[vi] [emphasis added].

 

Implicit in describing a plebiscite as the best way to resolve controversial issues is a criticism of our Parliamentary system as an inferior, or clearly ‘second-best’, option.

 

This is actually an extremely radical view of how our democracy should operate – and it’s coming from precisely the same people who usually like to describe themselves as ‘capital C’ conservatives (as an aside: we’ve grown accustomed to a Liberal Party that is not liberal, a National Party that isn’t national, and even an Australian Christian Lobby that isn’t very ‘Christian’, but we should also be highlighting that contemporary ‘conservatives’ are actually nothing of the sort).

 

The logical conclusion of statements such as these is that Australia should be holding more plebiscites, and on a wider range of subjects, rather than simply ‘letting the politicians decide’.

 

In fact, this argument neatly complements the first point of this post – while a plebiscite like this is unprecedented today, by conducting a public vote on marriage equality Malcolm Turnbull and his Liberal-National colleagues would be creating a precedent to hold plebiscites on all sorts of other topics.

 

It is a radical shift that even WA Liberal Senator Dean Smith has identified, while warning of its potential consequences[vii]:

 

“We must also bear in mind the precedent being set as we embark on this latest democratic experiment. After all, if Parliament is to send the nation to a plebiscite to determine the question of same-sex marriage, what is to be done the next time an overseas military commitment is needed?

 

“Into the future, shall we defer to popular vote the question of euthanasia? What of changes to family law and child custody arrangements? These issues are informed by people’s moral views and impact upon people’s personal lives just as much as same-sex marriage.”

 

We could add to Senator Smith’s short list an almost limitless range of possible plebiscites: from abortion to assisted reproductive technology; action on climate change and even access to health and education services – all are influenced by people’s moral views, and all would have an impact on people’s lives.

 

More worryingly, you could easily imagine the same types of people currently agitating for a plebiscite on marriage equality subsequently calling for public votes on – or rather against – immigration, refugees and ‘flag-burning’. You could even see public votes to reintroduce the death penalty or to officially declare Australia a ‘Christian’ nation.

 

The fact that ‘conservatives’ within the Liberal and National Parties are willing to risk these consequences by holding a plebiscite, in what is a fairly transparent attempt to delay or defeat marriage equality, shows just how little they are committed to Australia’s traditional system of representative democracy. Theirs is a genuinely radical agenda, and it should be resisted.

 

It almost goes without saying that Donald Trump’s agenda as a Presidential candidate is genuinely radical too – from building a wall between the US and Mexico (and then making the Mexican Government pay for it – WTF?) to banning all Muslims from entering the United States, he’s more parts radical than conservative.

 

Trump

Just like US Presidential candidate Donald Trump, Malcolm Turnbull’s proposed marriage equality plebiscite is extraordinary, unprecedented, bizarre, inconsistent and radical.

 

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There are of course several other aspects of Malcolm Turnbull’s proposed marriage equality plebiscite that are truly extraordinary. As I’ve written elsewhere[viii], holding a national public vote on this issue would be:

 

  • Extraordinarily unnecessary, given the High Court has already found Commonwealth Parliament can introduce marriage equality,
  • Extraordinarily inappropriate, because the human rights of a minority group shouldn’t be determined by a popularity contest,
  • Extraordinarily wasteful, with a cost of at least $160 million that would be better spent on other priorities[ix], and
  • Extraordinarily divisive, with a real risk that the next six to 12 months will witness extreme attacks on lesbian, gay, bisexual, transgender and intersex Australians.

 

But what I have attempted to show in this post is that the process is extraordinary in and of itself. Just like Donald Trump’s candidacy to become US President, the proposal to hold a plebiscite on marriage equality is unprecedented, bizarre, inconsistent and radical.

 

Thankfully, there is another similarity between these two otherwise disparate phenomena: neither is inevitable. In the same way we hope (and for the religious among us, pray) the American people choose Hillary Clinton over Donald Trump come November 8, we can also choose not to have a marriage equality plebiscite via our election on July 2.

 

If we elect Bill Shorten and Labor at the upcoming poll, then not only will we avoid a plebiscite, we will also most likely have marriage equality within 100 days[x]. Even if the Liberal and National Parties are returned to Government, the proposed plebiscite could nevertheless still be rejected by the Opposition, Greens and minor parties in the Senate. There’s even a much slimmer chance that 2016 Malcolm Turnbull might remember pre-2015 Malcolm Turnbull’s principled stance against a plebiscite.

 

But none of this will happen if we don’t make our voices heard, telling anyone and everyone who will listen: We don’t want a plebiscite. We don’t need a plebiscite. All we want is to be treated equally under the law – and we shouldn’t have to negotiate an extraordinary, unprecedented, bizarre, inconsistent and radical process to do so.

 

 

Footnotes

[i] The Commonwealth v Australian Capital Territory [2013] HCA 55.

[ii] The result of the 1977 national anthem plebiscite (‘Anthem-vision’) was treated with so much importance it wasn’t even implemented for another seven years.

[iii] The October 1916 plebiscite voted narrowly against conscription 51.61% to 48.39%, while the December 1917 margin was slightly larger: 53.79% No versus 46.21% Yes.

[iv] The older person alive at the time of writing, Italian Emma Morano, was born on 29 November 1899.

[v] The Guardian, May 21 2016, “Donald Trump endorsed by NRA despite history of gun control support”.

[vi] The Guardian, 30 January 2016, “Tony Abbott will back result of plebiscite on same-sex marriage”.

[vii] Dean Smith, Sydney Morning Herald, December 21 2015, “Marriage equality plebiscite would set a precedent for when we defer to a popular vote.”

[viii] No Referendum. No Plebiscite. Just Pass the Bill.

[ix] 7 Better Ways to Spent $158.4 million.

[x] If Shorten wins, start planning those weddings for Monday 10 October.

“Queer Wars” by Dennis Altman and Jonathan Symons

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Today, May 17, is IDAHOBIT (the International Day Against Homophobia, Transphobia and Biphobia[i] – previously known as IDAHO, and IDAHOT). Described as a “worldwide celebration of sexual and gender diversities”, it was started in 2004, with the date chosen to commemorate the World Health Organisation’s 1990 decision to declassify homosexuality as a mental disorder.

 

To mark this occasion I thought it would be useful to focus on the issue of LGBTI rights around the globe. In my view, given the relatively advanced state of LGB rights in places like Australia[ii], it is time we devoted more attention to considering how we can effectively contribute to the international struggle for LGBTI rights.

 

Fortunately, a recent book, Queer Wars, written by Dennis Altman and Jonathan Symons, concentrates on exactly this issue, so I will use this post to look at the many interesting ideas and debates that they have raised.

 

Specifically, Queer Wars sets out to answer two questions:

  • “[F]irst, why, as homosexuality has become more visible globally, have reactions to sexual and gender diversity become so polarised?”[iii] and
  • Second, “what is to be done? As writers who believe passionately in the right of people to choose how they love and how they present themselves, we are equally concerned to think through how we can best achieve these rights globally.”

 

In answering the first question, the book takes a fascinating look at how, and how far, LGBTI rights have progressed in six extremely varied countries: Australia, Spain, Cuba, India, South Africa and South Korea[iv], including the factors that have aided, or hindered, change in these places respectively (the need to address HIV, and prevent its spread among men who have sex with men, being a frequent, although not universal, motivator for reform among this group).

 

It then spends some time considering the specific factors that may have held back change, especially in other parts of Africa and in much of the Middle East, as well as possible explanations for recent attacks on LGBTI rights from Russia to Uganda and elsewhere.

 

Without wishing to over-simplify what is a complex discussion of often inter-related influences, these include:

 

  • An almost inevitable reactionary backlash to the progress that has been made. This can be triggered when the rights of LGBTI people are recognised more quickly than their acceptance by the community. But it also derives from the well-resourced and highly organised efforts, of people like Scott Lively and groups like the World Congress of Families, to oppose LGBTI rights across the world. As noted on page 105:

 

“International organising to oppose gay rights – and, more broadly, anything that suggests the blurring of gender lines or acceptance of gender diversity – has paralleled the growth of international gay organising. American-based organisations defending ‘family values’ have been particularly active in promoting an anti-homosexual line both in international fora and within a number of overseas countries.”

 

  • The scapegoating of LGBTI communities by authoritarian regimes when they need a distraction from other problems, a tactic perfected by Zimbabwe President Robert Mugabe[v], and later emulated, to some extent, by Russian Leader Vladimir Putin.

 

  • The role of organised religion – including the Catholic Church, the virulently-homophobic Anglican Church in parts of Africa, as well as fundamentalist Islam and Hinduism – also cannot be ignored in this context. As Altman and Symons note on page 24:

 

“One of the few issues on which religious fundamentalists of all faiths can agree is opposition to homosexuality, and much contemporary anti-homosexual rhetoric is justified through particular interpretations of religious texts, even where it is driven by other factors.”

 

  • Finally, one of the more interesting recurring topics of Queer Wars is the role of ‘masculinity’, or at least particular conceptions of it, in contributing to attacks on LGBTI rights. From pages 108-109:

 

“RW Connell’s concept of ‘hegemonic masculinity’, aimed at preserving the dominance of men over women, is important; as Connell writes: ‘the contempt for homosexuality and homosexual men… is part of the ideological package of hegemonic masculinity’. Opposition to sexual diversity combines both consciously political and unconscious fears and desires, which makes countering it particularly difficult.”

 

The relative local strength of these four factors goes a long way to explaining why, “[d]epending on where in the world one stands there is huge progress towards greater acceptance, or increased intolerance.”[vi]

 

The more pertinent, and challenging, question is what to do about it, and in this respect Queer Wars presents a thoughtful analysis of the opportunities, and pitfalls, of ‘global gay activism’.

 

Starting first with the limits of what those in the developed or ‘Western’ world can do to assist their global queer comrades, Altman and Symons present a stark warning of the risks of campaigns for LGBTI rights being externally imposed on countries (rather than developed in partnership with or, ideally led by local groups, with support where necessary – and only where invited – from outside organisations). As noted on page 34:

 

“Is speaking out strongly for gay rights, as is now the practice of the US and other governments, helpful – or does it, in practice, help fuel, even create, more political homophobia? What to western eyes might seem a basic assertion of human rights can easily be portrayed in much of the world as echoing a colonial language of a paternalistic civilising mission.”

 

Even more damning is the description on page 144, which is perhaps one of the strongest passages in the entire book:

 

“Rahul Rao describes the plight of third world queers, trapped between homophobic nationalist governments and the frequently misguided interventions of the ‘gay international’, with a phrase that he borrows from Hannah Arendt’s account of Jews in World War II choosing between ‘malevolent enemies and condescending friends’. Since the relationship between western and third world activists will often be one of inequality, it is easy for activists to participate accidentally in a ‘discursive colonisation’, which presumes that western concerns will be universal and so ignores the wishes of intended allies.”

 

Given this, what then can ‘we’ effectively contribute? On this, Queer Wars seems to make two main arguments:

 

  • First, that – as frustrating, slow-moving (some might say glacial) and occasionally opaque as its processes are – we should primarily concentrate on using international and regional human rights[vii] instruments, bodies and, where they exist, courts, to push the LGBTI agenda. This includes:

 

“The ‘Universal Periodic Review’ of each [UN] state’s human rights records, conducted every four years by the United Nations Human Rights Council, [which] creates an opportunity for other governments and civil society actors (both domestic and international) to discuss issues of concern, [and] which frequently include sexuality.”[viii]

 

  • Second, that this agenda should be relatively narrowly conceived, focusing on the right to be free from criminalisation, and the right to be free from violence. This argument is best encapsulated on page 135:

 

“If the international system were able to protect people from violence and persecution, this would create space for local activists to push for a deeper acceptance of diverse sexualities, kinships and families. The forms of liberation they pursue may be unfamiliar to us; indeed, some western activists may regard them as ‘liberation-lite’. Since international campaigners are likely to misunderstand the kinds of changes that will gain local acceptance, the international effort should focus on universal protection against criminalisation and violations of personal safety. If international consensus can be built around these minimal protections, this will support more transformative local changes without dictating them.”

 

This is not to completely rule out other types of activity. At multiple points, the book describes the inter-connectedness between this decriminalisation agenda and global efforts to combat the HIV epidemic (with men who have sex with men recognised as a priority population by most international organisations)[ix].

 

After a long discussion of ‘aid conditionality’[x], and the major risks involved in this approach, the authors also do not exclude the possibility of ‘Western’ Governments providing specific aid “to expand support for local community-based and –led LGBTI programmes”[xi], although even here care must be taken to avoid perceptions of the external imposition of a pro-LGBTI agenda.

 

And, of particular relevance for a country like Australia, which detains LGBTI people seeking asylum in countries where they are at risk of criminal prosecution, Queer Wars highlights the importance of the acceptance of refugees fleeing persecution on the basis of their sexual orientation, gender identity or intersex status[xii].

 

Nevertheless, Altman and Symons’ main focus remains on working towards an international consensus in favour of decriminalisation, and personal safety, thereby helping to allow the conditions for local activists to push the issues, and agenda, that are most relevant to them. In this way, we, as privileged activists in ‘Western’ countries can best avoid what they describe, perhaps accurately, as the “traps of well-meaning egoism”[xiii].

 

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Outside of these two main arguments, Queer Wars touches on a range of other pertinent topics concerning international LGBTI issues across its 158 pages, including:

 

  • A necessary reminder that one of the key historical forces that has contributed to the fact that, in 2016, 77[xiv] countries continue to have criminal laws against homosexuality, was the British Empire (later known as the Commonwealth of Nations, or just ‘the Commonwealth’). As noted on page 113 “[t]he majority of countries that retain criminal sanctions against homosexual behaviour are members of either the Commonwealth or the Organisation of Islamic Cooperation (OIC), or both”.

 

Altman and Symons also note that “Margaret Thatcher’s ‘Section 28’ laws in the UK in 1988, which was aimed at preventing ‘the promotion of homosexuality’, were in some ways forerunners of what is now occurring globally”[xv], including recent laws against ‘gay propaganda’ passed by Russia.

 

  • We should also remember that, just because LGBTI rights might be reflected in a country’s laws, does not automatically mean the ‘real-life’ situation for LGBTI people in that country is especially ‘rosy’. Examples of this include the contrast between Singapore, where homosexuality remains illegal, and Russia, where sexual acts are lawful[xvi], as well as variations within South Africa, with it Constitutional protections around sexual orientation – and recognition of marriage equality – but which also gave the world the term ‘corrective rape’[xvii] for the sexual assault of women perceived as lesbian.

 

  • Highlighting that the rate of ‘advancement’ on LGBTI issues can vary within countries between sexual orientation and gender identity. Some places are more likely to recognise diversity in gender identity – such as India, through the hijra identity[xviii], and fa’fanine in some Polynesian cultures[xix] – while in others transgender rights lag far behind those of lesbian, gay and bisexual people (with few countries explicitly acknowledging, and therefore protecting, intersex status).

 

  • Above all, that even the use of ‘Western’ terms like LGBTI can be problematic, because it assumes that all countries, and all cultures, will adopt the same approach to, and definitions of, differences in sexual orientations (or even that a person’s sexual practice should form the basis of an ‘identity’ in the first place), gender identities and intersex characteristics.

 

Overall, then, Queer Wars was a pretty appropriate book to read in the lead-up to, and then explore via this post on, IDAHOBIT. In my view, it asks the right questions that ‘we’, as LGBTI activists in the ‘Western’ world should be considering about the contemporary global situation, and how we can best assist our ‘queer comrades’ in other countries.

 

Better still, it provides thoughtful answers, even if Altman and Symons’ conclusions can be somewhat frustrating because of their limited scope (although the reasons for that narrow focus are well-argued). And it wraps it all together in an accessible and engaging package.

 

Finally, if I did have one criticism, it would be that the book doesn’t answer some of the more detailed or specific questions that I have, as an Australian cis gay man, about how I can contribute to campaigns for the recognition of LGBTI rights of people in the countries in our region, and especially Papua New Guinea and South Pacific nations.

 

However, given Queer Wars is explicitly global in focus, that’s an entirely unfair criticism to make – instead, it’s a conversation that I’ll need to have elsewhere, albeit one that will be better-informed for having read Altman and Symons’ book.

 

Queer Wars

 

Footnotes

[i] Taken from the official website: http://dayagainsthomophobia.org Personally, I prefer to describe it as the International Day Against Homophobia, Biphobia, Intersexphobia and Transphobia, although that terminology is not yet in widespread use.

[ii] Noting that some discrimination against lesbian, gay and bisexual Australians remains, not just marriage equality but also barriers to inclusive education and limits on anti-discrimination protections, and of course acknowledging that the rights of transgender and intersex Australians remain poorly protected in many more areas.

[iii] Page 3.

[iv] Pages 47-70.

[v] From pages 28-29: “As president Mugabe tightened his hold over Zimbabwe he scapegoated the small homosexual organisations as un-African and responsible for many of the economic troubles of the country, paving the way for increasing homophobic rhetoric from a number of African leaders.”

[vi] Page 32.

[vii] Altman and Symons take a nuanced view of ‘human rights’, including defining it by how they fit within the political systems within which they are recognized – from page 141: “The ‘political conception’ of human rights offers a persuasive explanation of how human rights are formulated in the international system, but it is also inherently conservative: a claim will only become a human right when a preponderance of international opinion (as expressed by states) accepts it” (emphasis in original). As they readily acknowledge, this conception “makes more modest claims for human rights” (p140), which may help to explain their focus on campaigns against criminalization, and for personal safety, to the exclusion of other issues.

[viii] Page 154.

[ix] “The Global Fund to Fight AIDS, Tuberculosis and Malaria was founded in 2002 as a partnership between governments, civil society, the private sector and people affected by the diseases, and has sought to link funding to governments’ demonstrating that they are willing to work effectively with marginalized populations most vulnerable to HIV, usually identified as MSM [men who have sex with men]” pages 127-128.

[x] Defined on page 124 as “[c]onditionality refers to linking conditions to the provision of benefits such as loans or aid.” This is a practice that has been emerging in recent years as the Governments of the US and UK have sought to require greater acceptance of different sexual orientations as a pre-cursor to receiving, or continuing to receive, aid.

[xi] Page 130.

[xii] Discussion on pages 88-89.

[xiii] Page 144.

[xiv] The exact number is different according to different sources – this is based on the website of Australian Professor Paula Gerber: https://antigaylaws.org

[xv] Page 98.

[xvi] Page 112.

[xvii] Discussion of South Africa from page 62 onwards.

[xviii] Page 59.

[xix] Page 16.

The GLORIAs 2016 – ‘Winners’

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The annual GLORIA awards – for the worst homophobic, biphobic, transphobic and intersexphobic comments of the past year – were held last night at NSW Parliament House.

Organised by NSW Labor MLC Penny Sharpe, they are an opportunity to reflect on all the stupid things that are said about us as a community – and making fun of the stupid people who say them.

So, here they are, the nominees, and winners, of the GLORIA awards 2016, including the winner of the 2016 Golden GLORIA (taking the mantle from last year’s worthy title-holder Germaine Greer):

 

  1. International

 

  • The Indonesian Government who told WHATSAPP to remove gay emojis.

 

  • Uzbekistani President, Islam Karimov who said: “When men live with men and women live with women, I think there must be something wrong up here [points at head]. Something is broken here. There is a saying: When God wants to reveal someone’s vulgarity, he first takes his reason away.” (Pink News, 9 February 2016)

 

  • ISIS for their continued persecution of gay men (see for example Pink News 18 January 2016)

 

  • Qatar for banning film screenings of The Danish Girl on the grounds of moral depravity (Pink News, 13/01/2016)

 

  • Irish Councillor Paddy Kilduff who said at a council meeting: “Personally I won’t be voting for it and the reason I am not voting for it – no problem with gays and lesbians – but the problem I have is with the children… when you have two women having babies and artificially inseminated… It’s gross, it’s gross. So I won’t be supporting it anyway, so you can take that back to Dublin.”

 

  • Prime minister of Fiji Frank Bainimarama who slammed same-sex marriage as “rubbish” and advised same-sex couples to move to Iceland and stay there if they want marriage equality. (SBS Online, 7 January 2016)

 

  • Marco Rubio who says that gay adoption is a “social experiment,” and children better off orphaned. (SLATE, 16 December 2015)

 

Who I wanted to win: It’s hard to go past ISIS

Who actually won: Marco Rubio

 

  1. Media

 

  • Miranda Devine for her column “Same sex marriage: Totalitarian tolerance”.

 

  • Angela Shanahan writing in the Australian, 27 February 2016: “Both sides of this argument are shying away from the truth. Bullying is not the issue here. It is the LGBTI education agenda that seeks to normalise behaviour that most parents do not consider normal.”

 

  • 2CH’s evening host Kel Richards who said on radio: “You really are doing something really dangerous and really terrible to those children.” According to him, the Safe Schools program is “an attempt to sexualise and recruit children for the gay and lesbian movement.” He sums it up as “disgusting gay and lesbian propaganda.” (Same Same).

 

  • Piers Ackerman for this column in the Daily Tele: “McGregor may identify as a woman and may even, with the blessing of the politically correct military establishment, use women’s lavatories, but until the chromosomes undergo some miraculous alchemic transformation, McGregor ¬remains by all biological and scientific rules, a bloke…”

 

  • Rowan Dean, for his column in the Courier Mail “Bullying in the name of dogma”

 

Who I wanted to win: Angela Shanahan (for implying that any child who is not cisgender and heterosexual is not normal)

Who actually won: Kel Richards

 

  1. Politics

 

  • George Christensen, who told Parliament on 25 February 2016: “If someone proposed exposing a child to this material, the parents would probably call the police, because it would sound a lot like grooming work a sexual predator might undertake.”

 

  • NATIONALS MP Andrew Broad, who represents the Victorian electorate of Mallee, who said to regional newspaper Sunraysia Daily: “Do I support calling a relationship between a man and a man, and a woman and a woman marriage? … I can put the rams in the paddock and they might mount one another but no lambs will come out.”

 

  • Former Australian Prime Minister Tony Abbott who addressed anti-gay lobby group Alliance Defending Freedom in New York saying that same-sex marriage is still “a huge ask” that would see “the erosion of family”. (Attitude, 29 January 2016)

 

  • Cory Bernardi who emailed a constituent to say: “You clearly haven’t got any idea what is in the program. If you did then you would be worried about your children being exposed to unhealthy ideas from such an early age.” The email then went on to say Safe Schools links to websites about “bondage clubs and adult sex toys”.

 

  • Former ALP Minister, Gary Johns, writing in Australian: “Private homosexual acts are not an offence by law in any state jurisdiction. Rest assured, there is no discrimination in law against gay people. Gay people are free to pursue their lives, especially happiness with a life partner.” (22 March 2016)

 

  • Reclaim Australia protesters who confronted Perth’s Save Safe Schools insisting they weren’t anti-gay, but needed to protect children from Safe Schools’ “Marxist ideology.” They later shouted “paedo scum, off our streets!” (Same Same)

 

  • Former ALP Senator Joe Bullock who quit the Senate stating: “How can I in good conscience recommend to the people that they vote for a party which is determined to deny its parliamentarians a conscience vote on the homosexual marriage question?”

 

  • Malcolm Turnbull for effectively saying nothing to help defend the LGBTI community from attacks on Safe Schools, and for refusing to overturn the unnecessary, inappropriate, wasteful & divisive plebiscite on marriage equality.

 

Who I wanted to win: Either George Christensen for comparing Safe Schools to grooming by paedophiles, or Malcolm Turnbull for failing to condemn the attacks on Safe Schools by Christensen, Cory Bernardi and others

Who actually won: Malcolm Turnbull

 

  1. Religion

 

  • Lyle Shelton, managing director of the Australian Christian Lobby, speaking on Q&A on February 29, 2016. “Studies that have been done of transgendered people who have had sex reassignment surgery, people who have been followed for 20 or so years have found that after 10 years from the surgery, that their suicide mortality rate was actually 20 times higher than the non-transgendered population. So I’m very concerned that here we are encouraging young people to do things to their bodies … like chest binding for young girls … [and] penis tucking”

 

  • Lyle Shelton (again) who was asked on Sky News how allowing same-sex marriage would affect his own marriage. His answer: “If the definition of marriage is changed, it’s no longer assumed … that I’m married to a woman. So that affects me straight away.”

 

  • Christian Activist Theodore Shoebat who claimed that the “SWAT team or the National Guard” should be used to take away children raised by “dykes and faggots” because they’re “in danger of being raped”. He continued: “Dykes are criminals! Two dykes that are supposedly married, that’s not marriage, that’s a criminal partnership. That’s an agreement between two criminals.” (Pink News, 16 January 2016)

 

  • The Marriage Alliance for the infamous rainbow noose image tweet

 

  • Colorado evangelical pastor turned random headline generator Kevin Swanson who wants girl scouts put to death for being too pro LGTB (Pink News, 14 March 2016)

 

  • Lyle Shelton managing director of the Australian Christian Lobby, for a third time, for his claims same-sex marriage would lead to a new “stolen generation”. (The Guardian, 1 March 2016).

 

  • Greek Orthodox Bishop Amvrosios of Kalavryta who said of gay couples: “Spit on them! Deprecate them! Vote against them!” (Pink News, 14 December 2015)

 

  • The Australian Christian Lobby for wanting the “two dads” episode of Play School cancelled.

 

Who I wanted to win: While it is clear Lyle Shelton desperately wants the title of Australia’s biggest homophobe, it has to be the Marriage Alliance for suggesting legalising marriage equality will lead to people killing themselves as a result of ‘PC bullying’. Seriously, how unhinged can you get?

Who actually won: Lyle Shelton – for his comment that if marriage equality was introduced, people might no longer assume he’s married to a woman.

 

  1. Sport

 

  • Jeremy Clarkson who attacked the trans community in his column for The Sunday Times – claiming the issues facing transgender people have been over exaggerated. “They were called lady boys, and in my mind they were nothing more than the punchline in a stag night anecdote.”(Pink News, 24 January 2016).

 

  • Footballer Serge Aurier who was been suspended for making alleged homophobic comments during a Periscope broadcast to fans. In the live video chat, Aurier claimed that coach Laurent Blanc and teammate Zlatan Ibrahimovic had engaged in oral sex – referring to Blanc as “une fiotte” (faggot). (PINK NEWS, 15/02/2016)

 

  • World boxing champion Manny Pacquiao has sparked criticism in the Philippines after describing gay couples as “worse than animals”. “It’s common sense. Do you see animals mating with the same sex?” Pacquiao told local broadcaster TV5.

 

Who I wanted to win: Manny Pacquiao (at least in part because this week he has been elected to the Philippines Parliament)

Who actually won: Manny Pacquiao

 

And the overall award, voted on by crowd participation (aka who got the loudest boos in the room on the night), the winner of the 2016 Golden GLORIA was:

 

Prime Minister Malcolm Turnbull (emerging victorious after a three-way boo-off against Marco Rubio and Lyle Shelton).

 

151222 Turnbull

Winner of the 2016 Golden Gloria – Prime Minister the Hon Malcolm Turnbull MP.

 

One final note on the winner: Some people might think it unfair that he won the politics category, let alone the Golden Gloria, especially because he didn’t actually say anything. But then that is kind of the point – when the right-wing campaign against Safe Schools was in full swing, and people like George Christensen and Cory Bernardi were intent on making Australia a less safe space for young LGBTI people, he said nothing, therefore encouraging their attacks to continue.

 

And, even though he knows that the plebiscite is unnecessary, inappropriate, wasteful and divisive, and as Prime Minister he should be able to do something about it, he is still pursuing Tony Abbott’s public vote as his own policy – not because it is the right thing for the country, but because it appears to be the right thing for his career. Both things make him a worthy, albeit somewhat controversial, ‘winner’.

 

See you all next year when, if we do have a marriage equality plebiscite, there will be absolutely no shortage of nominations (and where Lyle Shelton might finally get to take home the coveted crown).

What’s Wrong With the Commonwealth Sex Discrimination Act 1984?

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This post is part of a series examining anti-discrimination laws around the country, focusing on how well, or in many cases how poorly, they protect lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians against discrimination and vilification. The other posts can be found at the page LGBTI Anti-Discrimination[i] while the text of the Commonwealth Sex Discrimination Act 1984 (‘the Act’) can be found at the Federal Register of Legislation.[ii]

In this post I will be analysing the Act in terms of three main areas: protected attributes, religious exceptions and anti-vilification coverage. I will then briefly discuss any other key ways in which the protections offered by the Act could be improved or strengthened.

As we shall see, while the fact the Sex Discrimination Act includes all sections of the LGBTI community is to be welcomed, there are still some serious deficiencies that need to be remedied before it can be considered an effective anti-discrimination, and anti-vilification, framework.

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Protected Attributes

The Commonwealth Sex Discrimination Act 1984 is one of only four anti-discrimination laws in Australia that explicitly includes all of lesbians, gay men and bisexuals[iii], and transgender[iv] and intersex[v] people (with the other jurisdictions being Tasmania, the ACT and South Australia).

This high level of inclusivity is in large part a consequence of the fact the Commonwealth was the last jurisdiction in Australia to introduce any protections against anti-LGBTI discrimination.

The Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 was only passed in June 2013, taking effect on August 1st of that year – more than three decades after the NSW Anti-Discrimination Act 1977 first covered homosexual discrimination (way back in 1982).

It is perhaps logical then that the most recently passed anti-discrimination law in the country would use the most contemporary terminology. Nevertheless, the achievements of the Act, and the breadth of the protected attributes that are covered, should still be celebrated.

In particular, the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 was the first national anti-discrimination law in the world to explicitly include intersex status as a stand-alone protected attribute. Although, it should be noted that, in the March 2017 Darlington Statement, intersex activists called for this terminology to be replaced by the protected attribute ‘sex characteristics’ as being more accurate and more inclusive.

The definitions of the other protected attributes introduced – sexual orientation and gender identity – are progressive in that they do not reinforce a sex or gender ‘binary’.

Sexual orientation in the Act refers to attraction to “the same sex” or “a different sex” (rather than the opposite sex), while the definition of gender identity does not require a transgender person to identify as male or female (and does not impose any medical or surgical requirements to receive protection either).

Overall, then, the Sex Discrimination Act 1984 is strong in terms of the protected attributes that it covers. Unfortunately, it is mostly downhill from here.

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Religious Exceptions

While the Sex Discrimination Act 1984 is close to the best of any jurisdiction when it comes to protected attributes, in terms of religious exceptions it repeats the same mistakes of most state and territory anti-discrimination legislation.

Under sub-section 37(1), the Act provides religious organisations with extremely broad special rights to discriminate against LGBT[vi] Australians:

“37 Religious bodies

(1) Nothing in Division 1 or 2 affects:

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

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

(c) the selection or appointment of persons to perform duties or functions for the purposes of or in connection with, or otherwise to participate in, any religious observance or practice; or

(d) any other act or practice of a body established for religious purposes, being an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion.”

If religious exceptions are supposed to protect ‘religious freedom’, then the first three paragraphs above, (a)-(c), at least have the benefit of being targeted at activities that are essentially religious in nature (the appointment of religious office-holders, and the holding of religious ceremonies).

However, paragraph (d) appears to endorse discrimination against lesbian, gay, bisexual and transgender Australians across large swathes of public life, including in community, health and welfare services, provided the organisation that does the discriminating was established by a religious body.

This is overly generous, and completely unjustified – especially, although not solely, because the vast majority of these services receive public funding. After all, the sexual orientation or gender identity of a social worker or healthcare professional has absolutely zero bearing on their competence in their role.

The same provision also means that these services can turn away lesbian, gay, bisexual and transgender clients – irrespective of their personal circumstances and need – which is perhaps even more offensive than discriminating against LGBT employees.

Just in case there was any doubt whether religious schools were covered by sub-section 37(1)(d)[vii], the Act then includes an entire section which allows these schools to discriminate against LGBT teachers[viii], contract workers[ix] and students[x].

It appears some religious schools believe the capacity of a person to teach mathematics or science or English is somehow affected by their sexual orientation or gender identity. And it seems that the teachers employed by these schools are expected to impart the values of exclusion and intolerance to their students – what better way for young people to learn to discriminate against LGBT people, all endorsed by the Sex Discrimination Act.

There is however one area in which the Act refused to provide carte blanche to religious organisations to discriminate against LGBTI people, and that was through the inclusion of sub-section 37(2):

“Paragraph (1)(d) does not apply to an act or practice of a body established for religious purposes if:

(a) the act or practice is connected with the provision, by the body, of Commonwealth-funded aged care; and

(b) the act or practice is not connected with the employment of persons to provide that aged care.”[xi]

In other words, religious organisations that operate Commonwealth-funded aged care services cannot discriminate against lesbian, gay, bisexual or transgender people accessing those services (although they can continue to fire, or refuse to hire, LGBT employees).

This ‘carve-out’ was passed despite opposition from some sections of the then Tony Abbott-led Liberal-National Opposition, including Shadow Attorney-General George Brandis[xii], as well as some particularly vocal and extreme religious organisations, with the provisions taking effect on August 1st 2013.

In practice, there has been no controversy about the operation of this carve-out[xiii] – basically, it works to protect LGBT people accessing aged care services, irrespective of who operate those services, while having no adverse impact on religious freedom.

It is now time that this approach – limiting the ability of religious organisations to discriminate against LGBT people in one area of public life – was expanded to protect LGBT employees in those same aged care services, as well protecting employees and clients across education, community, health and welfare services[xiv].

After all, the worthy objects of the Sex Discrimination Act 1984, including “to eliminate, so far as is possible, discrimination against persons on the ground of sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy or breastfeeding in the areas of work, accommodation, education, the provision of goods, facilities and services, the disposal of land, the activities of clubs and the administration of Commonwealth laws and programs”[xv] cannot be met if, in the same text it allows LGBT Australians to be discriminated against by a large number of organisations, and across a wide range of services.

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Anti-Vilification Coverage

This section will be the shortest of this post because, well, there isn’t any – the Sex Discrimination Act 1984 contains no coverage against vilification for lesbian, gay, bisexual, transgender and intersex Australians.

This stands in marked contrast to the situation for vilification based on race, which is prohibited by section 18C of the Racial Discrimination Act 1975 – a section that has operated effectively for more than two decades (just ask Andrew Bolt), and which has withstood multiple recent attempts at its severe curtailment.

Given homophobic, biphobic, transphobic and intersexphobic vilification are just as serious, and just as detrimental, as racial vilification, there is no reason why LGBTI Australians should not have equivalent protections under the Sex Discrimination Act 1984[xvi].

This would also bring the Commonwealth into line with the four Australian jurisdictions[xvii] that already prohibit vilification against at least some parts of the LGBTI community.

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Other Issues

There are several other areas in which the Sex Discrimination Act 1984 does not currently provide adequate protections for the LGBTI community, including:

The failure to create an LGBTI Commissioner

Part V of the Act creates the position of Sex Discrimination Commissioner within the Australian Human Rights Commission (AHRC). Other areas of discrimination also benefit from the appointment of stand-alone full-time Commissioners, whose primary purpose is to combat such discrimination (including the Race, Age and Disability Commissioners).

However, no equivalent position, addressing LGBTI discrimination, was created with the passage of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013.

This serious oversight meant that, for most of the last term of Parliament, LGBTI issues were handled on a part-time basis by the then ‘Freedom Commissioner’ (and now Liberal MP), Tim Wilson, whose primary role was to ‘defend’ traditional rights. Whenever those two areas of human rights were deemed to come into conflict, LGBTI issues seemed to come off second-best[xviii].

If LGBTI discrimination is to be treated seriously by the Commonwealth Government, it must provide the same level of resources to address it within the AHRC – and that means introducing an LGBTI Commissioner as a matter of priority.

Superannuation protections exclude transgender and intersex people

Section 14 of the Act prohibits discrimination in employment, with sub-section 14(4) focusing on superannuation. However, while it prohibits discrimination on the basis of sexual orientation, it excludes gender identity and intersex status from the list of relevant attributes[xix], apparently leaving transgender and intersex people without protection in this area.

Partnerships of five or less people can discriminate against LGBTI people

Section 17 of the Sex Discrimination Act 1984 prohibits discrimination in relation to ‘partnerships’, including who is invited to become a partner and the terms and conditions on which they are invited. However, these protections only apply to situations where there are six or more partners, meaning that LGBTI are not protected where there are five or less partners[xx].

Voluntary bodies have no restriction on their ability to discriminate

Section 39 of the Act provides a very broad ‘right’ for voluntary bodies to discriminate on a wide range of protected attributes, including sexual orientation, gender identity and intersex status, including in determining who may be admitted as members, and the benefits that members receive. While acknowledging the importance of the ‘freedom to associate’, it seems strange that there is no requirement that the discrimination be related to the purpose of the voluntary body, but is instead essentially unrestricted.

Discrimination by marriage celebrants

As part of the recent passage of LGBTI marriage by Commonwealth Parliament, the Sex Discrimination Act was amended so that, in addition to the existing ability of ministers of religion and military chaplains to decline to perform wedding ceremonies, the new category of ‘religious marriage celebrants’ will also be free to discriminate against LGBTI couples seeking to marry[xxi]. This is despite the fact this includes existing civil celebrants who have nominated to so discriminate based on nothing more than their personal religious beliefs.

Protections in sport exclude transgender and intersex people aged 12 and over

Section 42 of the Sex Discrimination Act 1984 limits the coverage of anti-discrimination protection in relation to sport, in particular by allowing discrimination against transgender and intersex people in “any competitive sporting activity in which the strength, stamina or physique of competitors is relevant” where the participants are aged 12 or over. As with the voluntary bodies provision, this exception appears unnecessarily broad.

Requesting information that does not allow options other than male or female is not prohibited

Finally, section 43A provides that “[t]he making of a request for information is not unlawful… merely because the request does not allow for a person to identify as being neither male nor female” and that “[n]othing… makes it unlawful to make or keep records in a way that does not provide for a person to be identified as being neither male nor female.” If we are to truly recognise diversity in sex and gender, it should be reflected in requests for information.

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Summary

Based on the above discussion, the LGBTI anti-discrimination protections that were introduced via the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 can be described as a good start (albeit one that was long overdue).

That it includes all sections of the LGBTI community is obviously welcome, and the ‘carve-out’ of aged care service provision from religious exceptions is important in and of itself, as well as demonstrating that those same kind of exceptions are both unnecessary and unjustified.

On the other hand, the fact the Act permits discrimination by religious aged care services against LGBT employees, as well as religious organisations providing education, community, health and welfare services – against employees and clients – is its biggest downfall.

Other major problems include the complete absence of anti-vilification coverage for the LGBTI community (unlike section 18C of the Racial Discrimination Act 1975), and the failure to create an LGBTI Commissioner within the Australian Human Rights Commission.

All of which means there is plenty of work left to do until the Sex Discrimination Act 1984 provides a comprehensive and effective anti-discrimination, and anti-vilification, framework for lesbian, gay, bisexual, transgender and intersex Australians.

Christian Porter

Commonwealth Attorney-General Christian Porter should spend a little more time fixing the serious problems of the Sex Discrimination Act 1984, and a little less trying to undermine it through his proposed Religious Discrimination Bill.

If you have enjoyed reading this article, please consider subscribing to receive future posts, via the right-hand scroll bar on the desktop version of this blog or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus

 

Footnotes:

[i] See LGBTI Anti-Discrimination

[ii] See the Federal Register of Legislation

[iii] Discrimination on the ground of sexual orientation is prohibited by section 5A, with sexual orientation defined by the Act in section 4 as “sexual orientation means a person’s orientation towards:

(a) persons of the same sex; or

(b) persons of a different sex; or

(c) persons of the same sex and persons of a different sex.”

[iv] Discrimination on the ground of gender identity is prohibited by section 5B, with gender identity defined by the Act in section 4 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.”

[v] Discrimination on the ground of intersex status is prohibited by section 5C, with intersex status defined by the Act in section 4 as “intersex status means the status of having physical, hormonal or genetic features that are:

(a) neither wholly female nor wholly male; or

(b) a combination of female and male; or

(c) neither female nor male.”

[vi] Prima facie, it also appears to allow discrimination against intersex people, although the lengthy consultation process that preceded the legislation’s passage demonstrated that religious organisations did not propose to use this exception for that purpose. The Explanatory Memorandum for the Act also indicates these exceptions should not be used with respect to this protected attribute.

[vii] There isn’t really any doubt – sub-section 37(1)(d) clearly applies to religious schools, which means that, just like the NSW Anti-Discrimination Act 1977, religious schools can actually choose from between two different exceptions to defend their discrimination against LGBT teachers and students.

[viii] Section 38 Educational institutions established for religious purpose

(1) Nothing in paragraph 14(1)(a) or (b) or 14(2)(c) renders it unlawful for a person to discriminate against another person on the ground of the other person’s sex, sexual orientation, gender identity, marital or relationship status or pregnancy in connection with employment as a member of the staff of an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the first-mentioned person so discriminates in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.

[ix] Section 38(2) Nothing in paragraph 16(b) renders it unlawful for a person to discriminate against another person on the ground of the other person’s sex, sexual orientation, gender identity, martial or relationship status or pregnancy in connection with a position as a contract worker that involves the doing of work in an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the first-mentioned person so discriminates in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.

[x] Section 38(3) Nothing in section 21 renders it unlawful for a person to discriminate against another person on the ground of the other person’s sexual orientation, gender identity, marital or relationship status or pregnancy in connection with the provision of education or training by an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the first-mentioned person so discriminates in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.

[xi] This provision is reinforced by sub-section 23(3A) which states that religious organisations cannot discriminate against LGBT residents of Commonwealth-funded aged care facilities in terms of accommodation: “Paragraph 3(b) does not apply to accommodation provided by a religious body in connection with the provision, by the body of Commonwealth-funded aged care.”

[xii]See #QandA, Senator Brandis and LGBTI anti-discrimination reforms

[xiii] Given the wide range of scare campaigns run by the Australian Christian Lobby, and others, over recent years (calling for the abolition of the Safe Schools program, and their unsuccessful opposition to marriage equality) there is no doubt if there had been any practical problems with the aged care provisions they would have been splashed across the front page of The Australian by now.

[xiv] This would involve repealing sub-section 37(1)(d) entirely, as well as restricting related provisions (such as sub-section 23(3)(b) that allows religious bodies to discriminate in the provision of accommodation) so that they only apply with respect to the appointment and training of ministers of religion, and the holding of religious ceremonies.

[xv] Sub-section 3(b).

[xvi] For more on this issue – the contrast between section 18C of the RDA, and the lack of LGBTI anti-vilification protections federally – see Don’t Limit Racial Vilification Protections, Introduce Vilification Protections for LGBTI Australians Instead

[xvii] Queensland, NSW, the ACT and Tasmania.

[xviii] For more on this issue, see Why we need a full-time LGBTI Commissioner at the Australian Human Rights Commission

[xix] (4) Where a person exercises a discretion in relation to the payment of a superannuation benefit to or in respect of a member of a superannuation fund, it is unlawful for the person to discriminate, in the exercise of the discretion, against the member or another person on the ground, in either case, of the sex, sexual orientation or marital or relationship status of the member or that other person.

[xx] The same situation applies with respect to sex, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities.

[xxi Section 40 includes the following:

“(2A)  A minister of religion (as defined in subsection 5(1) of the Marriage Act 1961) may refuse to solemnise a marriage despite anything in Division 1 or 2, as applying by reference to section 5A, 5B, 5C or 6, if any of the circumstances mentioned in paragraph 47(3)(a), (b) or (c) of the Marriage Act 1961 apply.

(2AA)  A religious marriage celebrant (as defined in subsection 5(1) of the Marriage Act 1961) may refuse to solemnise a marriage despite anything in Division 1 or 2, as applying by reference to section 5A, 5B, 5C or 6, if:

(a)  the identification of the person as a religious marriage celebrant on the register of marriage celebrants has not been removed at the time the marriage is solemnised; and

(b)  the circumstances mentioned in subsection 47A(1) of the Marriage Act 1961apply.

(2AB)  A chaplain in the Defence Force may refuse to solemnise a marriage despite anything in Division 1 or 2, as applying by reference to section 5A, 5B, 5C or 6, if any of the circumstances mentioned in paragraph 81(2)(a), (b) or (c) of the Marriage Act 1961apply.

Note: Paragraph 37(1)(d) also provides that nothing in Division 1 or 2 affects any act or practice of a body established for religious purposes that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion.”