This post is part of a series looking at Australia’s anti-discrimination laws, analysing them to determine how well, or in many cases how poorly, they protect lesbian, gay, bisexual, transgender and intersex (LGBTI) people from discrimination and vilification. The other articles in the series can be found here.
In each post, the laws of each jurisdiction are assessed in relation to the following three areas:
- Protected Attributes
- Religious Exceptions, and
- Anti-Vilification Coverage.
Based on these criteria, the Australian Capital Territory Discrimination Act 1991 (‘the Act’) was already better than average in terms of its LGBTI anti-discrimination laws. The good news is that, as a result of the passage of the Discrimination Amendment Act 2016, the ACT’s LGBTI protections have improved further.
However, as we shall see below, just because it is better than flawed schemes operating elsewhere, doesn’t mean the ACT’s law is without faults – chief among them the ongoing broad exceptions provided to religious organisations allowing them to discriminate against LGBTI people.
Nevertheless, let’s focus on the positives first:
The ACT Discrimination Act 1991 that was in force (as of Monday 3 October 2016), includes the following as protected attributes in section 7:
7(1)(b) sexuality – which is defined in the Act’s dictionary as “heterosexuality, homosexuality (including lesbianism) or bisexuality”, and
7(1)(c) gender identity – defined as:
“(a) the identification on a genuine basis by a person of one sex as a member of the other sex (whether or not the person is recognised as such)-
(i) by assuming characteristics of the other sex, whether by way of medical intervention, style of dressing or otherwise; or
(ii) by living, or seeking to live, as a member of the other sex; or
(b) the identification on a genuine basis by a person of indeterminate sex as a member of a particular sex (whether or not the person is recognised as such)-
(i) by assuming characteristics of that sex, whether by way of medical intervention, style of dressing or otherwise; or
(ii) by living, or seeking to live, as a member of that sex.”
The terminology used in both definitions is exclusionary – although that is less important in terms of sexuality because it includes all lesbian, gay and bisexual people.
The real problem is in the definition of gender identity, which excluded non-binary trans or gender diverse people, effectively leaving them without anti-discrimination protections in the ACT.
It also appeared to make an attempt to include intersex people in part (b) of the definition (‘a person of indeterminate sex’), but does not genuinely cover intersex people being discriminated against on the basis of their intersex status.
Fortunately, both of these issues have been addressed through the Discrimination Amendment Act 2016, with provisions that commenced on 3 April 2017.
First, the definition of gender identity has been amended to the following:
“[G]ender identity means the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person, with or without regard to the person’s designated sex at birth.
Note Gender identity includes the gender identity that the person has or has had in the past, or is thought to have or have had in the past.”
Second, the list of protected attributes in section 7 has been amended to explicitly include ‘intersex status’, which is defined in the dictionary as “status as an intersex person” (although it should be noted that, in the March 2017 Darlington Statement, intersex activists called for this terminology to be replaced by ‘sex characteristics’).
Consequently, while the previous Discrimination Act 1991 only protected some transgender people from discrimination, and had very limited intersex protections, the Act now provides comprehensive coverage for trans and gender diverse people, and has joined the Commonwealth, Tasmania and South Australia as the only jurisdictions that specifically protect intersex people.
The ACT’s vilification protections have also been improved by the commencement of provisions contained in the Discrimination Amendment Act 2016[ii].
Previously, vilification was prohibited on the basis of sexuality and gender identity (using the same exclusionary definition discussed above)[iii].
However, as with its discrimination protections, this has been expanded to include non-binary trans or gender diverse people (through an updated definition of ‘gender identity’).
It has also prohibited vilification of intersex people on the basis of their intersex status for the first time – making the ACT one of only two jurisdictions to do so, alongside Tasmania[iv].
In fact, the ACT’s LGBTI vilification protections are now the best in the country, given the offence of serious vilification, contained in section 750 of the Criminal Code 2002, applies to serious vilification on the basis of intersex status (whereas in Tasmania, while vilification against all LGBTI people is generally prohibited[v], the more serious offence of ‘inciting hatred’ only applies to ‘sexual orientation’ or ‘lawful sexual activity’[vi], and excludes both gender identity and intersex status).
On the basis of the above, it is clear the ACT now has close-to-best practice anti-discrimination laws in terms of their protected attributes (covering all parts of the LGBTI community) and anti-vilification coverage (again, protecting lesbian, gay, bisexual, transgender and intersex people).
Alas, the Discrimination Act 1991 falls down (from its pedestal) when it comes to religious exceptions, aka special provisions that allow religious organisations to discriminate against people on the basis of their sexual orientation, gender identity or intersex status.
The primary religious exceptions are outlined in section 32 Religious bodies, which states that:
“Part 3 [which contains the prohibitions of discrimination] does not apply in relation to-
(a) the ordination or appointment of priests, ministers of religion or members of any 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 exercise functions for the purposes of, or in connection with, any religious observance or practice; or
(d) any other act or practice of a body established for religious purposes, if the act or practice conforms to the doctrines, tenets or beliefs of that religion and is necessary to avoid injury to the religious susceptibilities of adherents of that religion.”
As has been noted in previous posts, the first three sub-sections ((a), (b) and (c)), can potentially be justified on the basis that there is a direct connection with the appointment and training of religious office-holders, or the conduct of religious ceremonies.
However, sub-section 32(d) is effectively a blanket exception that allows any religious organisation – including religious-operated schools, hospitals and community services – to discriminate against LGBTI employees, and LGBTI people accessing their services. This is clearly unacceptable in 2016.
Unfortunately, it gets worse. Section 33 Educational institutions conducted for religious purposes, provides religious schools with an additional right to discriminate:
“(1) Section 10 or 13 [which prohibit discrimination against applicants, employees and contract workers] does not make it unlawful for a person (the first person) to discriminate against someone else in relation to-
(a) employment as a member of the staff of an educational institution; or
(b) a position as a contract worker that involves doing work in an educational institution;
if the institution is conducted in accordance with the doctrines, tenets, beliefs or teachings or a particular religion or creed, and the first person so discriminates in good faith to avoid injury to the religious susceptibilities of adherents of that religion or creed.
(2) Section 18 [which prohibits discrimination in relation to education] does not make it unlawful for a person (the first person) to discriminate against someone else in relation to 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 person so discriminates in good faith to avoid injury to the religious susceptibilities of adherents of that religion or creed.”
In effect, section 33 makes it lawful for religious schools to discriminate against LGBTI teachers and students, as long as the school claims such discrimination is in line with its religious (so-called) ‘values’, without even having to rely on the general religious exception established in sub-section 32(d), outlined above.
There can be no justification for such an expansive ‘freedom’ to discriminate, in an important area of public life, particularly where it has nothing whatsoever to do with that teacher’s ability to perform their role, and where it potentially denies a young LGBTI person their fundamental right to education free from prejudice.
But wait, there’s more. The Discrimination Act 1991 includes additional specific exceptions which[vii]:
- Allow religious-operated education and health services to discriminate on the basis of religious conviction “if the duties of the employment or work involve, or would involve, the participation by the employee or worker in the teaching, observance or practice of the relevant religion”[viii] and
- Allow religious operated education services to discriminate “on the ground of religious conviction in relation to a failure to accept a person’s application for admission as a student at an educational institution that is conducted solely for students having a religious conviction other than that of the applicant.”[ix]
These are pretty generous exceptions in and of themselves (especially allowing schools, which accept money from all taxpayers, religious and non-religious alike, the ability to reject students on the basis of their religion).
But we are left with the following questions:
- If religious schools can already discriminate on the basis of religion in terms of appointing employees who participate “in the teaching, observance or practice of the relevant religion” under section 44, why would the school need the ability to discriminate on the basis of sexual orientation, gender identity or intersex status under either sub-section 32(d) or sub-section 33(1)?
- Similarly, if religious schools can already discriminate on the basis of religion in terms of accepting students under section 46, why would the school need the ability to discriminate against LGBTI students under either sub-section 32(d) or sub-section 33(2)?
It is clear then that the religious exceptions offered under the ACT Discrimination Act 1991 are excessive, and encourage religious-operated schools, hospitals and community services to discriminate across a wide range of circumstances. This ‘right to discriminate’ goes far beyond what might be considered necessary to protect the freedom of people to practice their religion (which would be covered by sub-sections 32(a),(b) and(c), and potentially a narrower version of section 44).
As a result, the existing religious exceptions in the Act fundamentally undermine the right of lesbian, gay, bisexual, transgender and intersex Canberrans to go about their lives, their work, their education, and looking after their health, without having to worry about the prejudice which they might encounter – and which is currently endorsed by the ACT Government.
It must be a priority for the Barr Labor Government to repeal these overly-generous exceptions as a matter of priority.
As a result of recent amendments, the ACT Discrimination Act 1991 now protects all sections of the LGBTI community from discrimination. It also features the best anti-vilification coverage of any state, territory or federal framework in Australia.
However, these positive features are negated by religious exceptions that allow discrimination by religious organisations against LGBTI people in a wide range of circumstances, even where it has absolutely nothing to do with the appointment of religious office-holders or the observance of religious ceremonies. Unwinding these exceptions is essential to better protecting the rights of lesbian, gay, bisexual, transgender and intersex people in the ACT.
NB Footnote [i] has been deleted as a result of editing.
[ii] Noting that the ACT is already one of only four jurisdictions in the country – together with Queensland, NSW and Tasmania – that has any anti-vilification laws for any parts of the LGBTI community.
[iii] Section 67A of the Act prohibits unlawful vilification:
“(1) It is unlawful for a person to incite hatred toward, revulsion of, serious contempt for, or severe ridicule of a person or group of people on the ground of any of the following, other than in private:
(b) gender identity…
[iv] Noting that the Commonwealth Sex Discrimination Act 1984 does not prohibit vilification against any section of the LGBTI community.
[v] Section 17, Tasmanian Anti-Discrimination Act 1998.
[vi] Section 19, Tasmanian Anti-Discrimination Act 1998.
[vii] Sub-section 26(1)(b) also allows discrimination in “the provision of accommodation by a religious body for members of a relevant class of people”.
[viii] Section 44, ACT Discrimination Act 1991.
[ix] Section 46, ACT Discrimination Act 1991.