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

This is the third in a series of posts 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 first two looked at the legal situation in Victoria[i] and New South Wales[ii] respectively.

 

Consistent with those posts, I will be analysing the Commonwealth Sex Discrimination Act 1984 (‘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 does at least include 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 two 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 being the Tasmanian Anti-Discrimination Act 1998).

 

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.

 

The definitions of the other protected attributes introduced – sexual orientation and gender identity – are also 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 undeniably 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 represents best practice 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 that 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 that are 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 1984.

 

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.

 

Today, almost three years later, 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 withstood a recent push by then-Prime Minister Tony Abbott and Attorney-General George Brandis for its severe curtailment.

 

Given homophobic, biphobic, transphobic and intersexphobic vilification are just as serious, and just as detrimental, as racial vilification (something that will no doubt be proven by the divisive campaign in the lead-up to the expected plebiscite on marriage equality) 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’, Tim Wilson, whose primary role was to ‘defend’ traditional rights. Whenever those two areas of human rights were deemed to come into conflict over the past three years, 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.

 

Reinforcement of discrimination in marriage, including forced trans divorce

 

As with most state and territory anti-discrimination laws, the Act includes a broad exception for actions performed under statutory authority. This includes “anything done by a person in direct compliance with the Marriage Act 1961[xxi] as well as authorising the refusal “to make, issue or alter an official record of a person’s sex if a law of a State or Territory requires the refusal because the person is married” (laws which in practice mean that trans people who are already married are forced to divorce their partner before they are allowed to have their gender identity officially recognised). These provisions should be removed at the same time as marriage equality is (finally) passed in Australia.

 

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-discriminations 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 (although whether that is legislated or occurs because of best practice remains subject to debate).

 

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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).

 

The fact 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 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.

 

 

Dreyfus Brandis

Then Attorney-General Mark Dreyfus (L), who passed the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, and current Attorney-General Senator George Brandis (R), who spoke against the aged care service ‘carve-out’ then, and who has not improved the Act since.

 

Footnotes

[i] What’s Wrong With the Victorian Equal Opportunity Act 2010? 

[ii] What’s Wrong With the NSW Anti-Discrimination Act 1977?

[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.

[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] #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 the past three years (calling for the abolition of the Safe Schools program, and protesting against any progress on 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 well before 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] Sub-section 40(2A) “Nothing in Division 1 or 2, as applying by reference to section 5A, 5B, 5C or 6, affects anything done by a person in direct compliance with the Marriage Act 1961.”

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