This is the fourth in a series of posts looking at Australian anti-discrimination laws and analysing how well, or in many cases how poorly, they protect lesbian, gay, bisexual, transgender and intersex (LGBTI) people from discrimination and vilification.
The first three examined the anti-discrimination frameworks operating in Victoria, NSW and the Commonwealth, assessing their coverage in terms of protected attributes, religious exceptions and anti-vilification provisions.
With the Northern Territory election scheduled for later this month (Saturday 27 August), now is an opportune time to do the same with respect to their Anti-Discrimination Act (‘the Act’).
Sub-section 19(1) of the Northern Territory Anti-Discrimination Act sets out the grounds on which discrimination is prohibited, including “19(1)(c) sexuality.”
Sexuality itself is defined in section 4 of the Act as: “sexuality means the sexual characteristics or imputed sexual characteristics of heterosexuality, homosexuality, bisexuality or transsexuality.”[i]
On a positive note, employing this definition means the Act does offer protection to lesbians, gay men and bisexual people (something not all state and territory laws do – for example, New South Wales does not cover discrimination or vilification against bisexual people). Although arguably it could still benefit from the more inclusive definition of ‘sexual orientation’, as featured in the Commonwealth Sex Discrimination Act 1984[ii].
However, there are significant problems in terms of the Act’s application to discrimination against transgender people. First, because it includes ‘transsexuality’ within the term ‘sexuality’, when it is in fact about gender identity.
Second, and more importantly, by using the word ‘transsexuality’ rather than transgender (or including the term ‘gender identity’[iii] as its Commonwealth equivalent does, which would be preferred), it is likely that the Act fails to protect transgender people who are not ‘transsexual’ from discrimination, which is clearly a significant failing.
Another significant failing is the complete absence of protection against discrimination for intersex people. Once again, the Northern Territory Act would be improved by adopting the protected attribute of ‘intersex status’ direct from the Commonwealth Sex Discrimination Act 1984[iv].
The Act does include an explicit function for the NT Anti-Discrimination Commissioner “to research and develop additional grounds of discrimination and to make recommendations for the inclusion of such grounds in this Act” (sub-section 13(1)(e)). Remedying these inadequacies, especially around transgender and intersex discrimination, should therefore be a priority for the Commissioner, and, hopefully, for the next Territory Government.
Summary: The Act does cover discrimination against lesbian, gay and bisexual Northern Territorians (although it could be further improved by adopting a more inclusive definition of sexual orientation). However, by using the term ‘transsexuality’, and including it within the term ‘sexuality’, it is likely the Act does not cover all transgender people. It also fails to offer any protection to intersex people. These shortcomings are serious, and should be addressed urgently by incorporating the protected attributes of gender identity and intersex status from the Commonwealth Sex Discrimination Act.
There are some positive, but also several negative, features of the Northern Territory Anti-Discrimination Act in terms of the special rights it grants religious organisations to discriminate against LGBTI people.
The primary provision establishing ‘religious exceptions’ is section 51:
“This Act does not apply to or in relation to:
(a) the ordination or appointment of priests, ministers of religion or members of a religious order; or
(b) the training or education of people seeking ordination or appointment as priests, ministers of religion or members of a religious order; or
(c) the selection or appointment of people to perform functions in relation to, or otherwise participate in, any religious observance or practice; or
(d) an act by a body established for religious purposes if the act is done as part of any religious observance or practice.”
The drafting of these exceptions is actually relatively narrow when compared with those that exist in other states and territories.
For example, while the first two paras above (section 51(a) and (b) are identical to the NSW Anti-Discrimination Act 1977 section 56(a) and (b)), the NSW legislation subsequently goes much further, allowing discrimination in relation to:
“(c) the appointment of any other person in any capacity by a body established to propagate religion; or
(d) any other act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.”
In contrast, the primary Northern Territory provision appears to more closely target the appointment of ministers of religion, and the celebration of religious ceremonies.
Indeed, depending on the scope of ‘any religious observance or practice’, and how this phrase has been interpreted by the judiciary, the NT provision is arguably more justifiable on the basis it seems to be concerned with religious freedom, rather than providing religious organisations with carte blanche to discriminate against LGBTI people.
Unfortunately, the same cannot be said of other sections of the Act. Section 37A provides an incredibly broad exception to religious schools:
“An educational authority that operates or proposes to operate an educational institution in accordance with the doctrine of a particular religion may discriminate against a person in the area of work in the institution if the discrimination:
(a) is on the grounds of:
(i) religious belief or activity; or
(ii) sexuality; and
(b) is in good faith to avoid offending the religious sensitivities of people of the particular religion.”
In effect, any religious school in the Northern Territory can discriminate against any employee or potential employee solely because they are LGBTI, irrespective of the role and no matter how qualified they may be. This is simply unacceptable and must be removed.
The section covering discrimination against students is not as broad. Sub-section 30(2) provides that:
“An educational authority that operates, or proposes to operate, an educational institution in accordance with the doctrine of a particular religion may exclude applicants who are not of that religion.”
However, it should be noted that this approach is similar to that which was recently introduced in Tasmania, where concerns were expressed about the use of such a power to discriminate against LGBTI students, or the children of rainbow families, on the basis that they did not fit within the doctrine of particular religions.
Therefore, the operation of this provision should be monitored to determine whether it has had a detrimental impact on LGBTI students and/or families, and if it has, it should be repealed.
The other provision that grants special rights to religious organisations to discriminate is sub-section 40(3), in relation to accommodation:
“A person may discriminate against a person with respect to a matter that is otherwise prohibited under this Division if:
(a) the accommodation concerned is under the direction or control of a body established for religious purposes; and
(b) the discrimination:
(i) is in accordance with the doctrine of the religion concerned; and
(ii) is necessary to avoid offending the religious sensitivities of people of the religion.”
If discrimination in relation to the appointment or training of ministers of religion is already allowed under section 51(a) and (b), which would presumably include the facilities used for housing these ministers/trainees, it is difficult to see how this particular section would be justified. As a result, it should be repealed alongside section 37A.
Summary: The main religious exceptions offered under the NT Act are modest when compared to some other states and territories. Provided that ‘any religious observance of practice’ has been interpreted to mean religious ceremonies and little else, section 51 may not require substantial amendment.
However, there is no justification for discrimination against LGBTI employees or potential employees in religious schools, meaning section 37A should be repealed as a matter of priority. Sub-section 40(3), allowing discrimination in relation to accommodation, also appears excessively broad, while sub-section 30(2) should be monitored to ensure it is not used to discriminate against LGBTI students or the children of rainbow families.
The Northern Territory is the only jurisdiction in Australia that does not prohibit racial vilification. In which case, it is perhaps unsurprising that there are no prohibitions on vilification against LGBTI people either (the definition of ‘discrimination’ in section 20(1) does include “harassment on the basis of an attribute”, however this falls far short of the usual standard of ‘offend, insult, humiliate or intimidate’[v]).
Obviously, if the next Northern Territory Government is to introduce vilification protections of any kind, these should include coverage for LGBTI people in addition to other groups.
[i] It should be noted here that these concepts (heterosexuality, homosexuality, bisexuality and transsexuality) are not further defined in the legislation.
[ii] Section 4: “sexual orientation means a person’s sexual 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.”
[iii] “[G]ender 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.”
[iv] “[I]ntersex 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.”
[v] For example, sub-section 18C of the Commonwealth Racial Discrimination Act 1975 provides that:
“(1) It is unlawful for a person to do an act, otherwise than in private, if:
(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people…”