Monthly Archives: November 2020

Submission re 2020 ALP National Platform – Consultation Draft

Posted on by

30 November 2020

ALP National Policy Forum

Lodged online: https://www.alp.org.au/platform-consultation-draft/

To members of the ALP National Policy Forum

Submission re 2020 ALP National Platform – Consultation Draft

I am writing to provide my individual feedback on the 2020 ALP National Platform, as released for public consultation.

I do so as a long-term advocate for the rights of the lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) community, and as someone who was responsible for providing wording on multiple policy issues which were included in the 2015 National Platform (many of which were retained in the 2018 National Platform, although most have subsequently been excluded from the current version).

I acknowledge the intent of the Consultation Draft: ‘A Platform of this kind would be much more significant and carry much more weight. But it also needed to be much shorter’ [emphasis added]. This is reflected in the abbreviated document released this year: at 96 pages, it is just over one-third the length of the 2018 version (which was 268 pages, plus the Party’s constitution).

However, Labor’s LGBTIQ policy commitments have been reduced by much more than this ratio. Indeed, it would not be an exaggeration to say that the LGBTIQ content of the 2018 National Platform has been gutted in the 2020 Consultation Draft.

At a simplistic level, this can be seen in the decline in usage of the term LGBTIQ itself: from 45 times in the 2018 National Platform, to just six times in the 2020 consultation draft. This is a massively disproportionate reduction.

But this decline is much more than just the use of fewer words. This reduction represents large, and substantive, cuts to the ALP’s policy commitments to achieving LGBTIQ equality. The LGBTIQ community should be alert and alarmed about the potential for the Labor Party to walk away from its previous policies to improve the lives of LGBTIQ Australians.

In this submission, I will start by focusing on four particular, and particularly-important, issues (three where previous commitments have been abolished entirely, and one where the proposed commitments are seriously inadequate) before providing comments on the specific chapters of the Consultation Draft, as well as the statements in detail.

  1. Ending Coercive Medical Interventions on Intersex Children

In my view, the most egregious human rights abuses against LGBTIQ people in Australia are the ongoing coercive medical interventions, including surgical and hormonal interventions, to alter the sex characteristics of children born with intersex variations.[i]

For this reason, the inclusion of this commitment, on para 75 on page 144 of the 2018 National Platform, was welcome:

‘Parents of intersex children can be pressured to hormonally or surgically intervene on their children if they don’t receive medically correct advice, information or support about how to parent an intersex child. Labor will ensure deferral of non-necessary medical intervention on infants and children with intersex variations until such time as the person concerned can give their informed consent is supported. Labor commits to promote and support a human rights-based patient consent model for accessing lifetime medical treatments and procedures. Labor will prohibit modifications to sex characteristics undertaken for social rationales without informed consent and ensure intersex persons’ right not to undergo sex assignment treatment is respected.’

Conversely, the removal of this policy, and the total absence of any equivalent commitment to preventing involuntary medical treatments on intersex kids in the 2020 Consultation Draft, are deeply worrying.

I strongly urge the National Policy Forum, and ALP generally, to recommit to ending these abhorrent and harmful practices, by including the following statement (as proposed by leading intersex advocate Morgan Carpenter):

Recommendation 1.

‘Labor will recognise the bodily integrity of intersex persons, prohibiting modifications to the sex characteristics of people with innate variations of sex characteristics performed for social or cultural reasons, and ensuring respect for intersex persons’ right not to undergo sex ‘normalisation’ treatment. Labor commits to supporting the development and implementation with community participation of human rights-affirming oversight and standards of care, including for accessing lifetime medical treatments and procedures.’

2. Removing out-of-pocket costs for trans and gender diverse healthcare

Another significant issue for Australia’s LGBTIQ community where the 2020 Consultation Draft represents a backwards step compared to the 2018 National Platform is removing out-of-pocket costs for trans and gender diverse healthcare. Paragraph 74 on page 144 of the 2018 document previously provided that:

‘Labor acknowledges the right of all Australians, including transgender and gender diverse people, to live their gender identity. For many, this includes accessing specialist health services and for some people can involve gender affirming medical technologies. Costs should not be a barrier to accessing these services. Labor commits to removing, wherever possible, barriers to accessing these services and consulting with experts in government. This should materialise in a focus on creating fair, equal and affordable access to medical care and treatments relevant to trans and gender diverse Australians.’

Once again, there is no equivalent commitment in the 2020 Consultation Draft. Instead of axing this policy, I believe the Labor Party should be strengthening its commitment, by including a modified version of the above paragraph:

Recommendation 2.

‘Labor supports the rights of trans and gender diverse people to live their gender identity. For many, this includes accessing specialist health services and for some people can involve gender affirming treatment, including surgery. Costs should not be a barrier to accessing these services. Labor commits to overcoming these barriers by removing out-of-pocket costs for trans and gender diverse healthcare.’[ii]

3. Restate commitment to ending the HIV epidemic

Perhaps the most surprising omission in the 2020 Consultation Draft is the complete exclusion of any and all references to HIV, likely for the first time in decades. In the midst of the coronavirus pandemic, it seems strange to remove commitments to addressing the HIV epidemic, especially when lessons from our best practice approach to HIV are valuable in responding to COVID-19 – and, above all, when the HIV epidemic is ongoing.

I note that paragraphs 103 and 104 on page 150 of the 2018 National Platform included the following:

‘Labor has a proud record in HIV policy. Bipartisan national leadership in partnership with affected communities and other organisations, clinicians and researchers has prevented a generalised epidemic.

‘HIV notifications, however, remain too high. Labor is especially concerned that HIV notifications have steadily increased among Aboriginal and Torres Strait Islanders and are now double the rate of other Australians. Notwithstanding these challenges, Australia has an unprecedented opportunity to end HIV transmission. Labor commits to the United Nations Political Declaration on HIV and AIDS, which provides the global framework for action on HIV, including through the UNAIDS Fast-Track 95-95-95 targets to end the HIV epidemic. Labor’s commitment to making HIV history will include restoring the capacity that the Liberals have cut from HIV peak organisations; funding new efforts to promote HIV prevention, testing, and treatment in ‘hidden populations’; and ensuring affordable access to pre-exposure prophylaxis (PrEP) via the PBS.’

Recommendation 3.

The National Policy Forum should restate the ALP’s commitment to ending the HIV epidemic, and consult with the Australian Federation of AIDS Organisations (AFAO), National Association of People with HIV Australia (NAPWHA), and leading HIV advocates and experts, on what specific policy proposals are required to achieve this in the 2020s.

4. Improving LGBTI anti-discrimination protections

One area where the ALP’s commitments have not been completely removed (although some have nevertheless been excised) – but where the 2020 Consultation Draft remains highly deficient – is the issue of LGBTI anti-discrimination law reform.

Paragraph 30(b) on page 53 includes the following, general and very high-level statement: ‘Labor will work closely with LGBTIQ Australians to develop policy to… strengthen laws and expand programs against discrimination and harassment on the basis of sexual orientation, gender identity, sex characteristics and queer status.’

While obviously welcome, the lack of specificity in this paragraph means it is unclear what position a future Labor Government would take on a range of important measures that fall within this over-arching statement, including:

  • Protecting LGBT students, teachers and other staff against discrimination by religious schools, colleges and universities
  • Protecting LGBT employees and people accessing services in relation to other religious organisations delivering public services like healthcare, housing and accommodation, and other welfare services (including removing the ability of religious aged care services to discriminate against LGBT employees)
  • Updating terminology in anti-discrimination legislation, including replacing the protected attribute of intersex status with ‘sex characteristics’, as advocated by Intersex Human Rights Australia and in the March 2017 Darlington Statement
  • Introducing prohibitions on vilification on the basis of sexual orientation, gender identity and sex characteristics, on an equivalent basis to existing racial vilification prohibitions in the Racial Discrimination Act 1975 (Cth) (with the necessity of this reform highlighted by the homophobia, biphobia, transphobia and intersexphobia whipped up by the Liberal/National Government’s unnecessary, wasteful and harmful 2017 same-sex marriage postal survey),[iii] and
  • Appointing an LGBTIQ Commissioner within the Australian Human Rights Commission (noting that paragraph 90 on pages 213-214 of the 2018 National Platform included a commitment that: ‘Labor will… [e]stablish under the Australian Human Rights [Commission] Act 1986 a new Commissioner for Sexual Orientation, Gender Identity and Intersex Status issues, to work across government and the private sector to reduce discrimination’).[iv]

Another LGBTI discrimination-related issues which is not addressed in the 2020 Consultation Draft is the fact neither gender identity nor sex characteristics are explicitly included as protected attributes in the Fair Work Act 2009 (Cth), leaving trans, gender diverse and intersex employees with uncertain workplace rights, including unclear protections against adverse action and unlawful termination.[v]

Perhaps most concerningly, at least in the short term, the 2020 Consultation Draft does not express a position on the Commonwealth Government’s proposed Religious Discrimination Bill, legislation that would significantly undermine the rights of lesbian, gay, bisexual, transgender, intersex and queer Australians to engage in public life without fear of discrimination.

I strongly urge the National Policy Forum to take a stand on this issue, and in particular to commit to only supporting anti-discrimination laws covering religious belief and activity where they do not undermine the rights of others, including women, LGBTIQ people, people with disability, single parents, divorced people and even people of minority faiths.[vi]

Recommendation 4.

‘Labor will work closely with LGBTIQ Australians to develop policy to strengthen laws and expand programs against discrimination, harassment and vilification on the basis of sexual orientation, gender identity, sex characteristics and queer status, including by:

Amending the Sex Discrimination Act 1984 (Cth), Australian Human Rights Commission Act 1986 (Cth) and related laws to:

  • Protect LGBT students, teachers and other staff against discrimination by religious schools, colleges and universities
  • Protect LGBT employees and people accessing services against discrimination by religious organisations delivering public services including healthcare, housing and accommodation and other welfare services (including removing the ability of religious aged care services to discriminate against LGBT employees)
  • Update the protected attribute of intersex status to sex characteristics
  • Introduce vilification protections on the basis of sexual orientation, gender identity and sex characteristics, and
  • Appoint a Commissioner for Sexual Orientation, Gender Identity and Sex Characteristics within the Australian Human Rights Commission.

Amending the Fair Work Act 2009 (Cth), to explicitly include gender identity and sex characteristics as protected attributes, including for the purposes of adverse action and unlawful termination provisions.

Only supporting the introduction of Commonwealth anti-discrimination legislation covering religious belief and activity where it does not undermine the rights of women, LGBTIQ people, people with disability, single parents, divorced people, people of minority faiths and others to live their lives free from discrimination.

**********

I will now provide specific comments in relation to the individual Chapters of the Consultation Draft (where relevant), as well as the Statements in Detail.

Chapter 1: Building Australia’s Prosperity

No comments.

Chapter 2: Developing Our People

On page 22, at paragraph 8, the sentence ‘Labor will continue to support policies that aim to remove remaining barriers, including those based on gender, age, race, ethnicity, sexuality or disability status’, should be amended to also include gender identity and sex characteristics.

On page 23, at paragraph 19, I note this would be an appropriate place to include the commitment to explicitly protect gender identity and sex characteristics in the Fair Work Act 2009 (Cth) (as outlined as part of recommendation 4, above).

I also suggest the National Policy Forum include a commitment here that the ALP will work with trans and gender diverse communities to introduce workplace entitlements to paid transition leave, to help support increased participation by trans and gender diverse Australians in the workforce.

On page 29, at paragraph 63, I note the detailed commitments around the national curriculum no longer include the following policy from page 150, paragraph 109 of the 2018 National Platform:

‘Labor will ensure sex education includes all sexualities and gender identities. Labor will ensure the sex education curriculum is kept up-to-date and reviewed regularly by both non-government organisations and experts working in LGBTI health.’

I urge the National Policy Forum to reinstate a commitment to ensuring the national curriculum, including the health and physical education curriculum, is inclusive of LGBTI students and has content relevant to their needs.

Chapter 3: Climate Change, Energy and the Environment

No comments.

Chapter 4: A Strong and Healthy Society

On page 42, after paragraph 21, I note this would be an appropriate place to include a restated commitment to ending the HIV epidemic, and associated policy proposals as agreed with AFAO, NAPWHA and others (as detailed at Recommendation 3, above).

Chapter 4 would also be an appropriate location for a strengthened policy to remove out-of-pocket costs for trans and gender diverse healthcare (as outlined at Recommendation 2).

Finally, I note the 2018 National Platform included a commitment to ‘develop a national LGBTIQ health plan, to [among other things] address the particular health needs of LGBTIQ people, working in partnership with these communities and LGBTI health bodies.’

I believe the National Policy Forum should reinstate this commitment, given ongoing health issues across the LGBTIQ community, including in relation to mental health. 

Chapter 5: An Equal and Inclusive Nation

I note the section ‘Equal rights for LGBTIQ Australians’ would be an appropriate place for the contents of Recommendation 4 described above to be included (and in particular replacing paragraph 30(b) on page 53).

I further note the LGBTIQ health-related commitments in paragraph 30(c) are not a substitute for a national LGBTIQ health plan (mentioned in relation to the previous chapter), while policies to support national intersex-led organisations in paragraph 30(d) do not obviate the need for specific policies to end involuntary medical interventions on intersex children (as called for in Recommendation 1 of this submission).

In terms of paragraph 30(e), and its commitments in relation to trans and gender diverse identity documentation, I note major problems still exist at state and territory level, and especially in NSW, Queensland and Western Australia.[vii]

The National Policy Forum should be urging Labor Governments in Queensland and Western Australia to urgently amend their respective births, deaths and marriages laws to allow trans and gender diverse people to update their identity documents on the basis of self-identification, without the need for surgery or other medical approval or ‘gate-keeping’.

Similarly, the NSW Labor Opposition should be encouraged to support equivalent reforms there – and, if the NSW Liberal/National Government does not progress these changes, for Labor to introduce them in the first 100 days of any incoming administration.

I have two particular concerns about paragraph 31 on page 53, which currently reads:

 ‘Labor will ensure schools are welcoming and supportive environments for all students and teachers, regardless of their gender identity and sexuality. We will support programs that promote understanding, tolerance and respect for every student.’

First, this commitment could be strengthened to provide absolute certainty that it applies to all schools: government, private and/or religious.

Second, the commitment in the second sentence is a significantly watered-down version of the position in the 2018 National Platform (paragraph 60 on page 119):

‘Schools must be safe environments for students to learn and for teachers to teach – including same sex attracted, intersex and gender diverse students and teachers. Labor will continue working with teachers, students and schools to stop bullying and discrimination, ensuring a safe place for LGBTI students to learn by properly resourcing inclusion and anti-bullying programs and resources for teachers. Labor will continue to support national programs to address homophobia, biphobia, transphobia and anti-intersex prejudice in schools. This includes ensuring gender diverse students are able to express the gender they identify with.’

I believe the 2020 version, and its absence of specific support for targeted programs addressing homophobia, biphobia, transphobia and intersexphobia, underestimates the prevalence of such discrimination, and the harms that continue to be caused to LGBTI students.

Recommendation 5.

Paragraph 31 on page 53 be replaced with the following:

‘Labor will ensure all schools are welcoming and supportive environments for all students, teachers and other staff, regardless of their sexual orientation, gender identity and sex characteristics. We will support programs that promote understanding, acceptance and respect for every student, including programs to specifically address homophobia, biphobia, transphobia and intersexphobia.’

In my view, paragraph 32 on page 54, is also deeply flawed, this time for three reasons. First, as survivors have consistently advocated, bans on ‘reparative’ or conversion practices must be exactly that – aimed at practices, rather than the much more limited, and potentially only health-related, ‘therapies’.

Second, it must capture both sexual orientation and gender identity conversion practices (rather than just ‘gay conversion’).

Third, I am concerned that the wording ‘will work with advocates to ensure people are not coerced into undergoing such therapies’ potentially misses the point – it is not just ‘coercion’ that is the problem, it is the practice itself. Policies in this area should be aimed at banning sexual orientation and gender identity-change practices broadly, not just ‘coercion’ into undergoing these practices.

Recommendation 6.

The National Policy Forum consult with survivors of conversion practices in relation to the commitments in paragraph 32 on page 54, and in particular to ensure that:

-It applies to conversion practices (and not just therapies)

-It includes both sexual orientation and gender identity conversion practices, and

-It bans the practices themselves, rather than preventing ‘coercion’ into undergoing such practices.

I am also concerned at the wording on paragraph 33 on page 54, which is an abbreviated form of the commitment at paragraph 105 on page 233 of the 2018 National Platform. In particular, in my view the abbreviation has omitted the more important part of that policy, namely:

‘Labor will work first with our Pacific neighbours, our Indo-Pacific region and the nations of the Commonwealth to encourage the repeal of discriminatory laws, especially criminal laws against homosexual sexual conduct and most urgently against such laws where they impose the death penalty, and will encourage steps to implement the actions required by the Yogyakarta Principles. Labor will work strategically to support and assist both local and international civil society organisations in promoting LGBTIQ human rights.’

I encourage the National Policy Forum to amend the abbreviated commitment in the Consultation Draft to capture these elements, and especially supporting the push for decriminalisation in the Pacific, Indo-Pacific and Commonwealth.

My final comment in relation to the section ‘Equal rights for LGBTIQ Australians’ on pages 53 and 54 is to highlight that it does not include support for any formal mechanisms to consult with, and represent the interests of, LGBTIQ communities. For example, the National Policy Forum should consider expressing support for both:

  • A Commonwealth Minister for Equality, and
  • An LGBTIQ Ministerial Advisory Committee, including sub-committees in relation to health, education, justice and other portfolios as required.

I have a further, important comment to make about the section ‘Freedom of thought, conscience and religion’ on page 55 of the 2020 Consultation Draft.

Specifically, paragraph 41 states:

‘Labor believes in and supports the right of all Australians to manifest their religion or beliefs, and the right of religious organisations to act in accordance with the doctrines, tenets, beliefs or teachings of their faith. Such rights should be protected by law. Labor recognises that the freedom to have or adopt a religion or belief, or not to have or adopt a religion or belief, is absolute.’

While elements of this commitment are appropriate, the way in which it is worded is dangerous. In particular, the right to manifest religion or beliefs must always be limited by the need to protect the fundamental human rights of others, including the right to be protected against discrimination.

As the International Covenant on Civil and Political Rights itself notes, at Article 18.3:

‘Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.’

This vital nuance is currently missing from paragraph 41. In its absence, people of faith and especially religious organisations would be given a blank cheque to discriminate against others, including LGBTIQ Australians.

Recommendation 7.

Paragraph 41 on page 55 be redrafted such that the right to manifest religion or beliefs is limited by the need to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, including the right to participate in public life free from discrimination.

Chapter 6: Strengthening Australian Democracy

No comments.

Chapter 7: Australia’s Place in the World

On page 68, at paragraph 41, I suggest the inclusion of an additional dot point, to the effect that ‘Labor will ensure Australian international development addresses… the empowerment of people with diverse sexual orientations, gender identities and sex characteristics.’

Statements in Detail

On page 82, under the hearing ‘Public sector industrial relations’, where it says ‘Labor will… [l]ead by example on addressing the ill effects of family and domestic violence by introducing public-sector wide standards of paid leave and other supporting entitlements for workers who are affected by family and domestic violence’, I suggest the inclusion of the following:

‘Labor will lead by example on addressing the disadvantage and exclusion experienced by trans and gender diverse people in the workforce by supporting public-sector wide entitlements to paid transition leave.’

Finally, I express my strong personal support for the retention of explicit commitments in the Statements in Detail in relation to LGBTIQ refugees and people seeking asylum. This includes paragraph 24 on page 93:

‘Labor will ensure asylum seekers who self-identify as lesbian, gay, bisexual, transgender, intersex and queer will be assessed by officers who have expertise and empathy with anti-discrimination principles and human rights law. Officers, translators and interpreters at all levels of the assessment process will have specific lesbian, gay, bisexual, transgender, intersex and queer cultural awareness training to ensure the discrimination asylum seekers face in their country of origin or transit are not replicated.’

And paragraph 13 on page 95:

‘Labor will not detain, process or resettle lesbian, gay, bisexual, transgender or intersex refugees or asylum seekers in countries which have criminal laws against any of these communities as it makes these places unsafe environments for all of them.’

**********

In conclusion, I acknowledge even this detailed submission is unable to substantively address all of the many LGBTIQ policy commitments that were included in the 2018 National Platform, but which have subsequently been excluded from the 2020 Consultation Draft.

Some of these now-omitted policies covered:

  • Providing LGBTIQ-inclusive aged care (paragraph 34 on page 110)[viii]
  • Addressing LGBTIQ housing and homelessness issues (paragraphs 166-167 on page 171,[ix] and paragraph 90, on page 214)
  • Ensuring LGBTIQ statistics are collected by the Australian Bureau of Statistics (paragraph 85 on page 213)[x]
  • Establishing a National Gender Centre ‘to provide support and advocacy for transgender Australians, which could have an education and training role to promote awareness about transgender issues to the wider public’ (paragraph 88 at page 213), and
  • Supporting programs to make sport inclusive for LGBTIQ participants (page 195).

To some extent, it is perhaps inevitable that, by choosing to reduce the length of the Platform from 268 pages to 96, the Australian Labor Party’s 2020 Consultation Draft would include fewer detailed commitments in support of LGBTIQ equality and human rights.

What is not inevitable, however, is that these commitments should be cut in such a disproportionate way, as I have demonstrated through this submission. Or that it now excludes important policies around ending coercive medical interventions on intersex children, removing out-of-pocket costs for trans and gender diverse healthcare, restating a commitment to ending the HIV epidemic, or making much-needed improvements to Commonwealth LGBTI anti-discrimination laws.

I strongly urge the National Policy Forum to consider amending the draft Platform to strengthen the Party’s policy commitments in these four areas, and in other ways suggested in my comments on specific chapters and the statements in detail.

Nevertheless, irrespective of what happens in the redrafting process, or at the National Conference in early 2021, it seems highly likely that the Platform adopted next year will be the first in at least a decade, and perhaps the first in a generation, to include fewer commitments in support of LGBTIQ equality and human rights than its predecessor.

In which case, the onus will be on the Leader of the Opposition Anthony Albanese, Shadow Ministry and Federal Parliamentary Labor Party generally to work with the LGBTIQ community in the lead-up to the next election to make detailed policy commitments outside of the Platform so that urgent community needs are still addressed.

Thank you in advance for taking these comments into consideration. Please do not hesitate to contact me at the details provided should you require additional information.

Sincerely

Alastair Lawrie

Opposition Leader Anthony Albanese is highly likely to release the first ALP National Platform in a generation which contains fewer commitments in support of LGBTIQ equality and human rights than its predecessor.

Footnotes:

[i] For background on this issue, please see my Submission to AHRC Consultation re Medical Interventions on People Born with Variations of Sex Characteristics.

[ii] For more, see Trans Out-of-pocket Medical Costs. 

[iii] Noting that the 2018 National Platform included a commitment to provide effective sanctions against anti-LGBTIQ hate-speech (at paragraph 137, on page 218):

‘When prejudice against LGBTIQ people contributes to harassment by the written or spoken word, such harassment causes actual harm, not simply mere offence, to people who have suffered discrimination and prejudice, and causes particular harm to young same-sex attracted, gender-questioning or intersex people. Labor considers such harmful harassment is an unacceptable abuse of the responsibilities that come with freedom of speech and must be subject to effective sanctions. Labor will ensure that anti-discrimination law provides such effective sanctions.’

[iv] For more on these proposed reforms, see:

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

5 Years of Commonwealth LGBTI Anti-Discrimination Law Reforms. 5 Suggestions for Reform.

[v] For more, see Unfairness in the Fair Work Act.

[vi] For more, see The ‘Bad Faith’ Religious Discrimination Bill Must Be Blocked. 

[vii] For more, see Did You Know? Trans People in NSW and Queensland Still Require Surgery to Update Their Birth Certificates. 

[viii] ‘As they age, LGBTIQ deserve care and support that reflects their diversity. Labor will ensure policies in relation to ageing take into account the needs of people with different sexual orientations, gender identities and sex characteristics by building on Labor’s previous LGBTIQ Ageing and Aged Care Strategy.’

[ix] ‘There is a significant connection between homelessness and people being subjected to discrimination and harassment for being same-sex attracted or transgender and specifically understands the discrimination and exclusion affecting transgender people seeking to access support. Accordingly, Labor will work with affected communities to enhance housing support for LGBTIQ Australians.’

‘Labor acknowledges that young lesbian, gay, bisexual and transgender people are at significantly higher risk of homelessness, and commits to support dedicated services aimed at addressing this issue.’

[x] An especially significant omission given the decision of the current Liberal/National Government to not include LGBTI questions as part of the 2021 Census. For more on this topic see Census 2021 – Count Me In.

Finally, the 2020 ALP National Platform – Consultation Draft:

2020-alp-national-platform-consultation-draftDownload

And, for comparison, the 2018 ALP National Platform:

2018_alp_national_platform_constitutionDownload

Submission re: South Australia’s Equal Opportunity (Religious Bodies) Amendment Bill 2020

Posted on by

22 November 2020

Attorney-General’s Department

Legislative Services

GPO Box 464

Adelaide SA 5001

Via email: LLPSubmissions@sa.gov.au

To whom it may concern

Submission re: Equal Opportunity (Religious Bodies) Amendment Bill 2020

Thank you for the opportunity to provide a submission on the draft Equal Opportunity (Religious Bodies) Amendment Bill 2020.

I do so as a long-term advocate for the rights of the lesbian, gay, bisexual, transgender and intersex (LGBTI) community, and as someone with particular expertise in anti-discrimination legislation, including comparative analysis of LGBTI anti-discrimination protections across Australia.[i]

First, I welcome the intention of the draft legislation, which is to narrow the scope of the excessive and extreme religious exceptions currently found in section 50 of the Equal Opportunity Act 1984 (SA). These exceptions allow religious organisations to discriminate against LGBTI South Australians in a wide range of everyday situations, causing direct and significant harm to a vulnerable population.

Second, I particularly welcome proposed section 50(1)(c)(ix), which would have the effect of protecting LGBTI students in religious schools against discrimination on the basis of who they are. This protection is long overdue, with change in South Australia made necessary because of the failure of the Morrison Government to deliver on his October 2018 promise to prohibit such discrimination under the Sex Discrimination Act 1984 (Cth).[ii]

However, while passage of this legislation would represent an improvement in terms of the rights of LGBTI South Australians to participate in public life without fear of discrimination, I would like to highlight three major problems with the Bill as drafted:

  1. The scope of areas where LGBTI people will be protected – or not

The draft Equal Opportunity (Religious Bodies) Amendment Bill 2020 effectively creates a ‘carve-out’ from the general religious exception found in section 50(c)[iii] of the Equal Opportunity Act 1984 (SA) so that it does not apply in relation to certain areas of public life.

This approach appears to be based on section 37(2) of the Sex Discrimination Act 1984 (Cth), which provides that the general religious exception in section 37(1) of that Act does not allow aged care services operated by religious organisations to discriminate against LGBT people accessing those services (although, disappointingly, it continues to allow religious aged care services to discriminate against LGBT employees).

It is encouraging that the draft South Australian Bill extends this carve-out to a wider range of areas of public life, including:

  • Children’s education
  • Health care and disability support
  • Aged care
  • Emergency accommodation
  • Public housing, and
  • Foster care placement.

In another welcome development, the carve-out also applies to employees in these areas (other than in relation to educational institutions, an issue which is discussed further below).

However, the carve-out approach has inherent limitations. In particular, the boundary between areas of public life where LGBTI people will be protected, and those where they will not, may appear arbitrary and difficult to justify.

For example, while proposed sections 50(1)(c)(ix) and 50(1)(c)(x) mean that religious pre-schools, primary schools and secondary schools will not be able to discriminate against LGBTI students, the absence of a similar carve-out for tertiary education means that religious universities will nevertheless still be able to discriminate against LGBTI students.

In an environment when many university-age students are exploring and ultimately affirming their sexual orientation and/or gender identity, I do not believe it is acceptable to allow religious universities to discriminate against those students simply because of who they are (and especially where religious universities use public funds to do so).

In a similar way, while it is pleasing that emergency accommodation services operated by religious organisations will not be able to turn away LGBTI people in need of their assistance, it seems arbitrary that other essential service providers (such as food services or other forms of welfare support)[iv] will be able to reject people on the basis of their sexual orientation, gender identity or intersex status.[v]

Finally, proposed section 50(1)(c)(i) would ensure that religious foster care agencies will not be able to discriminate against LGBTI people (including employees, potential foster carers and children being placed). However, the absence of a similar provision in relation to adoption agencies presumably means that religious organisations providing that particular service will be able to discriminate in this way.

This double-standard – where rainbow families are ‘good enough’ to be foster carers, but can still be rejected as adoptive parents just because of who they are – cannot be justified.

Therefore, if the carve-out approach is retained, in my view it should at a minimum be extended to include tertiary education, broader welfare services and adoption agencies.

Recommendation 1: If the ‘carve-out’ approach in section 50(1)(c) of the draft Bill is retained, the following areas of public life should be added:

  • Tertiary education
  • Welfare services generally, and
  • Adoption agencies.

2. The ongoing ability of religious organisations to discriminate on the basis of gender identity, sexual orientation and intersex status

I have framed the above recommendation in a qualified manner because I believe the ‘carve-out’ approach is itself problematic. That is because, in any area of public life that is not listed in section 50(1)(c), religious organisations will continue to be permitted to discriminate on the basis of gender identity, sexual orientation and intersex status, including in terms of who they employ and who they provide their services to.

This will obviously have a negative impact on LGBTI South Australians by restricting their ability to participate in public life without fear of discrimination. And it falls well below the best practice approach to religious exceptions, which has been adopted in the Anti-Discrimination Act 1998 (Tas), and in a more limited way the Discrimination Act 1991 (ACT).[vi]

The Tasmanian ‘gold standard’ allows religious organisations to discriminate – but only on the basis of religious belief or activity, and not on other grounds, such as sexual orientation, gender identity or intersex variations of sex characteristics.

For example, section 51 allows religious organisations to discriminate in employment in the following way:

(1) A person may discriminate against another person on the ground of religious belief or affiliation or religious activity in relation to employment if the participation of the person in the teaching, observance or practice of a particular religious is a genuine occupational qualification or requirement in relation to the employment.

(2) A person may discriminate against another person on the ground of religious belief or affiliation or religious activity in relation to employment in an educational institution that is or is to be conducted in accordance with the tenets, beliefs, teachings, principles or practices of a particular religion if the discrimination is in order to enable, or better enable, the educational institution to be conducted in accordance with those tenets, beliefs, teachings, principles or practices.

Section 51A then allows discrimination on the ground of religious belief or affiliation or religious activity in relation to enrolment at religious educational institutions (although not after the point of admission), while section 52 allows discrimination by religious organisations on the ground of religious belief or affiliation or religious activity in relation to ‘participation in religious observance’.[vii]

From my perspective, this is a fairer way in which to allow religious organisations to prioritise people from their own faith, while not infringing upon the rights of others – including LGBTI people – to live their lives free from discrimination.

I strongly urge the South Australian Government to improve the proposed Equal Opportunity (Religious Bodies) Amendment Bill 2020 by moving to a model where religious organisations are only allowed to discriminate on the basis of religious belief or activity, and not in relation to other protected attributes, including gender identity, sexual orientation and intersex status.

Recommendation 2: The South Australian Government should consider adopting the Tasmanian best practice approach to religious exceptions, allowing religious organisations to discriminate on the basis of religious belief and activity, but not in relation to other protected attributes including gender identity, sexual orientation and intersex status.

3. The ongoing ability of religious schools and universities to discriminate against LGBTI teachers, lecturers and other staff

The final, and arguably most important, problem with the Equal Opportunity (Religious Bodies) Amendment Bill 2020 is something it does not do – it does not remove the ability of religious education institutions (including schools and universities) to discriminate against LGBTI teachers, lecturers and other staff (which is currently permitted under section 34(3) of the Equal Opportunity Act 1984 (SA)).

In my view, this exception is unacceptable, for several reasons.

First, it is unfair on LGBTI teachers, lecturers and other staff. They may be the best qualified person for a job, but they can be denied employment (or, where they already work for a religious school or university, fired), on the basis of something which has no connection to their ability to perform the role. This is especially egregious given the large amounts of public funding provided to these institutions.

Second, it is unfair to students generally – who are denied being taught by the best possible teacher or lecturer for their class.

Third, it is unfair on LGBTI students in particular. Not only are they denied positive role models, they are also enrolled in an educational institution which has adopted a hostile attitude towards LGBTI teachers, lecturers and other staff, something which will inevitably influence the broader culture of the school or university.

Fourth, I do not believe the supposed ‘safeguard’ contained in sections 34(3)(b), (c) and (d) – which requires educational institutions wishing to rely on this exception to have a written policy stating its (discriminatory) position, that is provided to employees and potential employees, and on request to students, their families and members of the public – is sufficient.[viii]

Transparency doesn’t make prejudice any less real, or any more acceptable. LGBTI teachers, lecturers and other staff members can still be denied employment simply because of their gender identity, sexual orientation or intersex status – attributes which have absolutely nothing to do with their ability to perform the role.

Further, and even more damagingly, LGBTI students at these institutions who are aware of such policies will be acutely aware their presence there is only ‘tolerated’ because the institution is legally prohibited from discriminating against them (in other words, they would discriminate against these students if they could). They will know that they will never be truly accepted for who they are.

This last reason alone justifies removal of the exception for religious educational institutions in section 34(3) of the Equal Opportunity Act 1984 (SA) and instead prohibit all religious schools and universities from discriminating against LGBTI employees.

Recommendation 3: The exception allowing religious education institutions to discriminate against LGBTI teachers, lecturers and other staff in section 34(3) of the Equal Opportunity Act 1984 (SA) must be repealed, with these institutions prohibited from discriminating against employees on the basis of gender identity, sexual orientation and intersex status.

In conclusion, I should reiterate that, despite the problems identified above, the draft Equal Opportunity (Religious Bodies) Amendment Bill 2020 would, if passed in its current form, still significantly improve the rights of LGBTI people in South Australia to go about their lives free from discrimination.

In particular, I welcome the commitment of the South Australian Government to protect LGBTI students at religious schools against discrimination. This is much needed, and would have an immediate and appreciable benefit for vulnerable students across the state.

Nevertheless, I firmly believe the proposed legislation can be substantially strengthened, including by extending the scope of areas in which LGBTI people are protected to include tertiary education, welfare services and adoption agencies – or, even better, to adopt the best practice Tasmanian approach to religious exceptions (as discussed earlier).

Above all, I strongly encourage the South Australian Government to remove the ability of religious educational institutions to discriminate against LGBTI teachers, lecturers and other staff members, so that these places can become welcoming and inclusive places for all people seeking to learn, or impart knowledge, irrespective of their gender identity, sexual orientation or intersex status.

Thank you in advance for your consideration of this submission. Please contact me at the details provided should you wish to clarify any of the above, or for further information.

Sincerely,

Alastair Lawrie

Footnotes:

[i] See: A Quick Guide to Australian LGBTI Anti-Discrimination Laws.

[ii] For more information, see: Scott Morrison’s Broken Promise to Protect LGBT Students is Now Two Years Old. 

[iii] ‘This Part does not render unlawful discrimination in relation to- 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.’

[iv] In many cases, these services will be using local, state and/or Commonwealth funding to do so. In nearly all cases, they will be relying on tax exemptions supporting them to carry out this work.

[v] Intersex status is the protected attribute currently included in the Equal Opportunity Act 1984 (SA). However, I support the replacement of intersex status with ‘sex characteristics’, as called for by Intersex Human Rights Australia, as well as intersex advocates in the March 2017 Darlington Statement.

[vi] The ACT has adopted the Tasmanian approach in relation to religious schools (only allowing discrimination on the basis of religious conviction, and not on the ground of sexuality, gender identity or sex characteristics), but not for other religious organisations.

[vii] Noting that section 52(d) of the Anti-Discrimination Act 1998 (Tas) is quite generous: ‘A person may discriminate against another person on the ground of religious belief or affiliation or religious activity in relation to- (d) any other act that- (i) is carried out in accordance with the doctrine of a particular religion; and (ii) is necessary to avoid offending the religious sensitivities of any person of that religion.’

[viii] Even if, in some circumstances, it may be useful in applying external pressure on religious educational institutions whose employment practices fall short of community standards.