This post is the penultimate in a series looking at Australia’s anti-discrimination laws, and examining how well, or how poorly, they protect lesbian, gay, bisexual, transgender and intersex (LGBTI) people against discrimination.
In particular, they assess Commonwealth, state and territory legislation in terms of the following three issues:
- Protected Attributes
- Religious Exceptions, and
- Anti-Vilification Coverage.
Unfortunately, while South Australia has recently expanded the range of people legally protected against discrimination, the Equal Opportunity Act 1984 remains grossly inadequate because of the breadth of religious exceptions it offers, and its complete failure to establish LGBTI vilification offences.
Section 29 of the Equal Opportunity Act 1984 currently protects lesbian, gay, bisexual and transgender South Australians from discrimination.
Sub-section (2a) defines discrimination “on the ground of gender identity” to include (among other things):
- “if he or she treats another unfavourably because the other is or has been a person of a particular gender identity or because of other’s past sex”
- “if he or she treats another unfavourably on the basis of a characteristic that appertains generally to persons of a particular gender identity, or on the basis of a presumed characteristic that is generally imputed to persons of a particular gender identity”, and
- “if he or she requires a person of a particular gender identity to assume characteristics of a sex with which the person does not identify”.
Even though the person discriminating in these clauses is described as either ‘he’ or ‘she’, the protections offered are not limited to people with binary gender identities – therefore, unlike some jurisdictions, South Australia protects all trans people against discrimination.
The protections against discrimination “on the ground of sexual orientation” contained in sub-section (3) are similarly broad, and would cover all lesbian, gay and bisexual South Australians.
Fortunately, the recently passed Relationships Register Act 2016 will improve this coverage even further when it commences operation in early 2017. Firstly, it removes the usage of ‘he or she’ in the definition of discrimination described above (replacing it with ‘the person’, which is clearly far more appropriate).
More substantively, the Relationships Register Act 2016 amends the Equal Opportunity Act 1984 to introduce a new protected attribute of ‘intersex status’, with the addition of sub-section 29(4)[i].
When this provision takes effect, South Australia will become only the fourth jurisdiction in Australia – after the Commonwealth, Tasmania and the Australian Capital Territory – to explicitly protect intersex people against discrimination.
Summary: The South Australian Equal Opportunity Act 1984 already protects lesbian, gay, bisexual and transgender people against discrimination. When recent amendments that establish a new protected attribute of ‘intersex status’ commence, likely sometime later this year, South Australia will become only the fourth Australian jurisdiction, out of nine, to cover the entire LGBTI community.
Unfortunately, while the Equal Opportunity Act 1984 will soon be best practice on protected attributes, in terms of religious exceptions it is anything but.
Section 50 sets out an incredibly broad range of circumstances in which religious organisations are legally entitled to discriminate against LGBT South Australians:
(1) This Part does not render unlawful discrimination 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 persons seeking ordination or appointment as priests, ministers of religion or members of a religious order; or
(ba) the administration of a body established for religious purposes in accordance with the precepts of that religion; or
(c) any other practice of a body established for religious purposes that conforms with the precepts of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.”
While paragraphs (a) and (b) are at least directly related to religious appointments – and therefore somewhat defensible because of their connection to freedom of religion – paragraph (ba) and especially paragraph (c) effectively encourage discrimination by religious organisations in healthcare and other community services.
It also allows discrimination in relation to education in religious schools, and therefore overrides the general protections offered to students under section 37, which ostensibly prohibits discrimination with respect to admission as a student, the education or training that is offered to that student, and expelling or otherwise punishing the student.
However, the situation is slightly more complicated with respect to teachers in religious schools, with sub-section 34(3) setting out a separate, specific exception in that area:
“(3) This Division does not apply to discrimination on the ground of sexual orientation or gender identity in relation to employment or engagement for the purposes of an educational institution if-
(a) the educational institution is administered in accordance with the precepts of a particular religion and the discrimination is founded on the precepts of that religion; and
(b) the educational authority administering the institution has a written policy stating its position in relation to the matter; and
(c) a copy of the policy is given to a person who is to be interviewed for or offered employment with the authority or a teacher who is to be offered engagement as a contractor by the authority; and
(d) a copy of the policy is provided on request, free of charge-
(i) to employees and contractors and prospective employees and contractors of the authority to whom it relates or may relate; and
(ii) to students, prospective students and parents and guardians of students and prospective students of the institution; and
(iii) to other members of the public.”
Some may see this as a relatively positive approach, because at the very least it allows everyone to be informed about the policies any particular school adopts. And, admittedly, it is preferable to the carte blanche approach adopted in other states (and especially in New South Wales).
However, there are two important qualifications to this ‘benign’ assessment:
- It still allows discrimination against teachers and other employees in religious schools solely on the basis of their gender identity or sexual orientation. This discrimination – which has no connection whatsoever to the ability of LGBT teachers and staff to do their jobs – remains unacceptable, irrespective of the procedural steps a school must first negotiate, and
- The general religious exception in sub-section 50(c) nevertheless applies (because it covers all sections in the Part, including those applying to employment). Depending on how the interaction between these two provisions has been interpreted by the judiciary, it is possible that religious schools can ‘pick and choose’ the basis on which they discriminate against teachers and employees (and therefore potentially avoid these procedural hurdles altogether).
There is one final religious exception which allows discrimination against LGBT South Australians – sub-section 35(2b) allows ‘associations’ to exclude and otherwise adversely treat people on the basis of their gender identity or sexual orientation “if the association is administered in accordance with the precepts of a particular religion and the discrimination is founded on the precepts of that religion.”
Summary: The religious exceptions contained in the South Australian Equal Opportunity Act 1984 allow discrimination against LGBT people in a wide range of circumstances, including healthcare, community services, associations and in education (at least in relation to students).
LGBT teachers and other staff in religious schools can also be discriminated against simply because of who they are, although whether or not the school must have transparent policies in place to allow such discrimination would depend on judicial interpretation.
This section will be the shortest of this post – because there is none. Lesbian, gay, bisexual, transgender and intersex South Australians have no protection against anti-LGBTI vilification under the Equal Opportunity Act 1984[ii].
This is despite the fact that an entire stand-alone act exists with respect to racial vilification (the Racial Vilification Act 1996). Given homophobia, biphobia, transphobia and intersexphobia are just as damaging, and just as harmful, as racism, the lack of equivalent protections against anti-LGBTI vilification is, in my opinion, shameful.
There are a few additional issues in the Equal Opportunity Act 1984 that it would be remiss not to at least mention.
On the negative side, there is a very broad ‘inherent requirement’ exception in relation to employment. Sub-section 34(2) provides that:
“This Division does not apply to discrimination on the ground of sex, sexual orientation or gender identity in relation to employment or engagement for which it is a genuine occupational requirement that a person be of a particular sex, sexual orientation or gender identity.”
It is difficult to think of many – in fact, any – jobs in which it is an inherent requirement that someone be of a particular sexual orientation or gender identity. It would be interesting to see on what possible basis the drafters attempted to justify this sub-section.
Similarly, sub-section 34(4) allows discrimination in employment against transgender people generally, and non-binary gender diverse people in particular, on the basis of their appearance, stating that:
“This Division does not apply to discrimination on the ground of gender identity in relation to employment or engagement if the discrimination is for the purposes of enforcing standards of appearance and dress reasonably required for the employment or engagement.”
Once again, it is hard to see how such discrimination can possibly be justified, and I would argue that both sub-sections (34(2) and (4)) should be repealed.
On the other hand, there are two exceptions that allow positive discrimination in favour of LGBTI people.
The first, in sub-section 35(2a), permits LGBT-specific associations to be created (for “persons of a particular gender identity” or for “persons of a particular sexual orientation (other than heterosexuality)”, noting that heterosexuality remains privileged within Australian society).
The second, in section 47, authorises actions designed to overcome discrimination against minority groups:
“Measures intended to achieve equality
This Part does not render unlawful an act done for the purpose of carrying out a scheme or undertaking intended to ensure that persons of a particular sex, sexual orientation or gender identity, have equal opportunities with, respectively, all other persons, in circumstances to which this Part applies.”
Nevertheless, while these final two provisions are welcome, they do not negate the harmful aspects of the Act, including its overly-generous religious exceptions, and the complete lack of anti-vilification coverage for LGBTI South Australians.
With Parliament starting for another year today (Tuesday 14 February 2017), hopefully all sides of politics acknowledge these major flaws and work together to rectify them as a matter of priority.
[i] “(4) For the purposes of this Act, a person discriminates on the ground of intersex status-
(a) if the person treats another unfavourably because of the other’s intersex status or past intersex status; or
(b) if the person treats another unfavourably because the other does not comply, or is not able to comply, with a particular requirement and-
(i) the nature of the requirement is such that a substantially higher proportion of persons who are not of intersex status complies, or is able to comply, with the requirement than of those of intersex status; and
(ii) the requirement is not reasonable in the circumstances of the case; or
(c) if the person treats another unfavourably on the basis of a characteristic that appertains generally to persons of intersex status, or presumed intersex status, or on the basis of a presumed characteristic that is generally imputed to persons of intersex status; or
(d) if the person treats another unfavourably because of an attribute of or a circumstance affecting a relative or associate of the other, being an attribute or circumstances described in the preceding paragraphs.”
[ii] Although South Australia is not alone in this regard – there are also no LGBTI vilification protections in Commonwealth law, and in Victoria, Western Australia and the Northern Territory.