This post is part of a series examining the anti-discrimination laws that exist in each Australian jurisdiction and analysing how well, or how poorly, they protect lesbian, gay, bisexual, transgender and intersex (LGBTI) people from discrimination. Other posts in the series can be found here.
Specifically, each post considers three main aspects of LGBTI anti-discrimination legislation:
- Protected attributes
- Religious exceptions, and
- Anti-vilification coverage.
Contrary to what some might expect, Queensland’s laws are at least ‘average’, and in some cases, particularly in relation to anti-vilification laws, ‘better than average’, across these three areas. Unfortunately, that says more about the major flaws that exist across most anti-discrimination laws in Australia than it necessarily does about the Anti-Discrimination Act 1991 (‘the Act’) itself.
There are still significant problems that must be addressed with this legislation, beginning with the issue of who is – and isn’t – covered.
Like most of its counterparts in other states, Queensland’s Anti-Discrimination Act does not protect all parts of the LGBTI community from discrimination.
On the positive side, it does cover all lesbian, gay and bisexual people – with discrimination on the basis of ‘sexuality’ prohibited in section 7 of the Act (defined as “sexuality means heterosexuality, homosexuality or bisexuality” in the Dictionary found in the Schedule).
On the less positive side, it only covers some transgender people, and not others. That is because, while section 7 also includes ‘gender identity’, the Act’s definition of this term is out-dated:
“gender identity, in relation to a person, means that the person-
(a) identifies, or has identified, as a member of the opposite sex by living or seeking to live as a member of that sex; or
(b) is of indeterminate sex and seeks to live as a member of a particular sex.”
While this does protect transgender people who were previously identified as male but now identify as female (and vice-versa), it does not include non-binary trans people. In order to rectify this situation, the Act’s definition of gender identity should be updated to reflect the definition used in the Commonwealth Sex Discrimination Act 1984[i].
Even worse off than transgender Queenslanders, however, are people with intersex traits – while part (b) of the definition of ‘gender identity’ may apply to some intersex people in limited circumstances, there is no stand-alone protected attribute for intersex people and therefore no clear-cut protection against discrimination for them.
Again, this could be rectified with the introduction of ‘sex characteristics’ as a protected attribute in the legislation[ii].
Overall: While the Queensland Anti-Discrimination Act 1991 does protect lesbian, gay and bisexual people, and some transgender people, from discrimination, it leaves other trans people (especially those whose identity is non-binary) and most intersex people out in the cold. This should be fixed as a matter of priority, by updating the definition of gender identity, and adding sex characteristics as a protected attribute.
Queensland has adopted a unique approach to religious exceptions through the Anti-Discrimination Act 1991, in which case I will spend more time than normal discussing this element.
The primary religious exception is found in section 109:
(1) The Act does not apply 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) unless section 90 (Accommodation with religious purposes) applies – an act by a body established for religious purposes if the act is –
(i) in accordance with the doctrine of the religion concerned; and
(ii) necessary to avoid offending the religious sensitivities of people of the religion.
(2) An exemption under subsection (1)(d) does not apply in the work or work-related area or in the education area.”
The first three sub-sections ((a), (b) and (c)) are at least concerned with the appointment of ministers of religion, or the conduct of religious celebrations, and are therefore more likely to be excusable on the basis of protecting ‘religious freedom’.
Unfortunately, the wording used in sub-section (d) – “in accordance with the doctrine of the religion concerned and necessary to avoid offending the religious sensitivities of people of the religion” – is incredibly broad, and permits discrimination against a wide range of people in terms of service delivery.
However, sub-section (2) is unusual and, as far as I can tell, not replicated in any other state or territory legislation. In essence, it provides that religious bodies cannot discriminate against employees unless their role is directly connected with ‘religious observance or practice’. It also means religious schools cannot discriminate against students on the basis of their sexuality or gender identity[iii].
If section 109 was the only source of religious exceptions in the legislation, Queensland’s Act would almost be assessed as positive. However, there are other sections that complicate this assessment.
Chief among them is section 25:
“Genuine occupational requirements
(1) A person may impose genuine occupational requirements for a position.
Examples of genuine requirements for a position-
Employing persons of a particular religion to teach in a school established for students of the particular religion
(2) Subsection (3) applies in relation to-
(a) work for an educational institution (an employer) under the direction or control of a body established for religious purposes; or
(b) any other work for a body established for religious purposes (also an employer) if the work genuinely and necessarily involves adhering to and communicating the body’s religious beliefs.
(3) It is not unlawful for an employer to discriminate with respect to a matter that is otherwise prohibited under section 14 or 15, in a way that is not unreasonable, against a person if-
(a) the person openly acts in a way that the person knows or ought reasonably to know is contrary to the employer’s religious beliefs-
(i) during a selection process; or
(ii) in the course of the person’s work; or
(iii) in doing something connected with the person’s work; and
Example for paragraph (a)
A staff member openly acts in a way contrary to a requirement imposed by the staff member’s employer in his or her contract of employment, that the staff member abstain from acting in a way openly contrary to the employer’s religious beliefs in the course of, or in connection with the staff member’s employment.
(b) it is a genuine occupational requirement of the employer that the person, in the course of, or in connection with, the person’s work, act in a way consistent with the employer’s religious beliefs.
(4) Subsection (3) does not authorise the seeking of information contrary to section 124[iv].
(5) For subsection (3), whether the discrimination is not unreasonable depends on all the circumstances of the case, including, for example, the following-
(a) whether the action taken or proposed to be taken by the employer is harsh or unjust or disproportionate to the person’s actions;
(b) the consequences for both the person and the employer should the discrimination happen or not happen.
(6) Subsection (3) does not apply to discrimination on the basis of age, race or impairment.
(7) To remove any doubt, it is declared that subsection (3) does not affect a provision of an agreement with respect to work to which subsection (3) applies, under which the employer agrees not to discriminate in a particular way.
(8) In this section-
religion includes religious affiliation, beliefs and activities.”
That is obviously a lot to take in. So here are my three key observations:
- This section expands the religious exceptions offered under section 109, so that religious bodies can discriminate on the basis of sexuality and gender identity against teachers and other staff in schools generally, but against employees in other religious organisations only “if the work genuinely and necessarily involves adhering to and communicating the body’s religious beliefs”.
- In both cases this is limited by a potentially vague ‘reasonableness test’ (determining “whether the action taken or proposed to be taken by the employer is harsh or unjust or disproportionate to the person’s actions”), and
- In both cases it is also limited by a ‘Don’t Ask, Don’t Tell’ clause – discrimination is only permitted where “the person openly acts in a way that the person knows or ought reasonably to know is contrary to the employer’s religious beliefs” and the religious school or body cannot ask about sexuality or gender identity. This would therefore protect teachers or other staff who did not discuss their sexual orientation at their school or workplace[v].
Of course, as even the US Government and Military has eventually been forced to concede, ‘Don’t Ask, Don’t Tell’ is a terrible policy, ‘invisibilising’ LGBT people in the workplace, forcing them to deny who they are and silencing them in everyday conversations (for example, gay teachers would not be able to openly acknowledge their partners at all in the classroom or even in the staffroom). It also exposes LGBT employees to potential harassment and bullying.
‘Don’t Ask, Don’t Tell’ is also a terrible policy with respect to LGBT students, because it denies them visible role models to look up to, or from whom to seek relevant information.
But, and here is the extraordinary part, these exceptions – allowing religious schools and other bodies to discriminate against ‘out’ lesbian, gay, bisexual and transgender employees – are actually the third-best religious exceptions in Australia (behind only Tasmania and recently-passed ACT laws), because they don’t allow these organisations to explicitly deny employment solely on the basis of sexuality or gender identity.
The other, much more unambiguously positive part of the Act’s religious exceptions is that section 25 does not apply to students – which means that, while a religious school can reject students who are not from a particular religion, they cannot reject students on the basis of their sexuality or gender identity.
Overall: Queensland’s approach to religious exceptions is unique, and its protection of LGBT students against discrimination is to be welcomed. However, other parts of the Anti-Discrimination Act 1991 provide overly-generous rights to religious schools and other bodies to discriminate against LGBT employees, and people accessing services, and these should be significantly curtailed.
Specifically, subsection 109(1)(d), which allows discrimination on the basis of sexuality and gender identity in relation to service-provision, should be repealed.
And, while the limitations on discrimination in relation to employment (including a ‘reasonableness test’ and a ‘Don’t Ask, Don’t Tell’ clause) might mean Queensland’s legislation is better than most, permitting discrimination in such circumstances is still unacceptable in the 21st century, meaning section 25 should ultimately also be abolished.
Queensland is one of only four Australian jurisdictions to provide anti-vilification protections to LGBT people – the others being NSW, the ACT and Tasmania (noting that Commonwealth anti-vilification law only applies to race).
Unlike NSW, the Queensland Anti-Discrimination Act treats all types of prohibited vilification exactly the same – establishing vilification on the basis of race, religion, sexuality and gender identity in the same section (124A)[vi], and creating the offence of serious racial, religious, sexuality or gender identity vilification in another (section 131A).
This also means that the same procedures are used, and that the same penalties apply (“for an individual – 70 penalty units or 6 months imprisonment; or for a corporation – 350 penalty units”), which are positive features.
Of course, given the out-dated definition of gender identity used, and the Act’s exclusion of sex characteristics, not all parts of Queensland’s LGBTI community are currently protected against vilification – although this could be rectified at the same time as the protected attributes, described earlier.
One other, relatively minor, fault that should also be corrected is that, while the offences themselves cover sexuality and gender identity alongside race and religion, the titles of the relevant Parts or Chapters do not (“Part 4 Racial and religious vilification” and “Chapter 5A Serious racial and religious vilification”).
This obviously does not impact on the substantive rights involved. However, it may be misleading to a casual reader of the legislation, and in some cases may cause people to mistakenly believe that they are not protected against vilification. As a result, it would be preferable if these titles were renamed to be genuinely inclusive.
Overall: Queensland’s anti-vilification protections are comparatively strong, but could be further strengthened by updating the definition of gender identity, adding sex characteristics, and ensuring that the titles of relevant Parts/Chapters are inclusive and not potentially misleading.
There are two additional serious problems with the Anti-Discrimination Act 1991, and it would be negligent to conclude this analysis without addressing them.
The first is the truly awful subsection 28(1), which states:
“Work with children
(1) It is not unlawful to discriminate on the basis of lawful sexual activity[vii] or gender identity against a person with respect to a matter that is otherwise prohibited under subdivision 1 if-
(a) the work involves the care or instruction of minors; and
(b) the discrimination is reasonably necessary to protect the physical, psychological or emotional wellbeing of minors having full regard to all the relevant circumstances of the case, including the person’s actions.”
This is genuinely appalling – the very law that is supposed to protect transgender people against discrimination implies that trans employees may be unsuitable to work with children, and could even be a threat to the ‘physical, psychological or emotional wellbeing of minors’.
There was never a time that such a prejudiced subsection would have been acceptable, and it most definitely is not today – there is no excuse for the Palaszczuk Labor Government to leave this provision in place today.
The second additional flaw is found in section 45A, which states that the protection against discrimination in goods and services, located in section 46, “does not apply to the provision of assisted reproductive technology services if the discrimination is on the basis of relationship status or sexuality.”
Again, there can be no justification for such discrimination against lesbian, gay and bisexual people in terms of their access to in-vitro fertilisation, artificial insemination or gamete, zygote or embryo transfer. This section must also be repealed as part of the overall much-needed updating of the Queensland Anti-Discrimination Act 1991.
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[i] Defined in section 4 of that Act as “gender identity means the gender-related identity, appearance or mannerism 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.”
[ii] In March 2017, intersex activists issued the Darlington Statement, which called for this terminology (sex characteristics) to be used instead of the protected attribute of ‘intersex status’, which is found in the Commonwealth Sex Discrimination Act 1984.
[iii] Although section 42 does allow religious schools to discriminate against “applicants who are not of the particular sex or religion”. A similar provision allows religious boarding schools to discriminate on the basis of sex or religion as well (section 89).
[iv] “124 Unnecessary information
(1) A person must not ask another person, either orally or in writing, to supply information on which unlawful discrimination might be based.”
[v] Without looking at relevant case law, it is unclear how well, or poorly, the ‘Don’t Ask, Don’t Tell’ approach serves transgender people in the workplace.
[vi] “Section 124A Vilification on grounds of race, religion, sexuality or gender identity unlawful
(1) A person must not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race, religion, sexuality or gender identity of the person or members of the group.
(2) Section (1) does not make unlawful-
(a) the publication of a fair report of a public act mentioned in subsection (1); or
(b) the publication of material in circumstances in which the publication would be subject to a defence of absolute privilege in proceedings for defamation; or
(c) a public act, done reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including public discussion or debate about, and expositions of, any act or matter.”
[vii] The Act defines lawful sexual activity as “means a person’s status as a lawfully employed sex worker, whether or not self-employed”.