Today (26 March 2021) marks exactly ten years since the election of the NSW Liberal/National Government.
In that decade, and especially in their early years, they have passed a few important LGBT law reforms, including the long-overdue abolition of the homosexual advance defence (or ‘gay panic’ defence) in 2014 and establishing a scheme to expunge historical criminal records for same-sex intercourse in the same year.
However, the pace of reform has slowed markedly in recent times. The last new LGBTI laws were both passed in 2018, with the removal of ‘forced trans divorce’ (although this was necessitated by the passage of marriage equality in Commonwealth law, while NSW failed to seize the opportunity to amend identity laws more generally) and the introduction of an offence for publicly threatening or inciting violence against others, including on the basis of sexual orientation, gender identity and intersex status (although it replaced existing criminal vilification offences on the basis of homosexuality and transgender status, and as far as I am aware has not been enforced since it commenced).
Indeed, with this week also marking the halfway point of the Liberal/National Government’s third term, there have been no new laws passed addressing LGBTI issues since then, and none appear to be on the horizon.
This is not because the job of LGBTI law reform in NSW is complete. Far from it. As I have written previously, NSW now has the worst LGBT laws in Australia, and is only saved from that title with respect to intersex issues because some other jurisdictions are similarly appalling.
At least part of the problem is that many people, both inside and especially outside our communities, erroneously believe the struggle is over. Which is where my idea for a pride flag for NSW comes in.
From my perspective, the pride flag is inherently political. A symbol of our strength and resilience in overcoming anti-LGBTI prejudice and abuse, as well as a reminder to continue fighting until all lesbian, gay, bisexual, transgender and intersex people are truly ‘free and equal’.
With that in mind, here is what I think the six colours of the ‘traditional’ pride flag[i] could stand for in NSW today, as a way of bringing attention to at least some of the essential reforms which are still yet to be won here.
Red: Ban conversion practices
Anti-gay and anti-trans conversion practices (sometimes described as ‘ex-gay’ or ‘ex-trans’ therapy) continue in Australia today. Several jurisdictions have already taken steps to ban these practices, with general prohibitions, including in religious environments, now law in Victoria and the ACT, and a more limited ban, only covering health settings, in Queensland. Other states, including Tasmania, are actively considering their own legislation.
To date, the Berejiklian Liberal/National Government has given no firm indication they are considering laws to outlaw these destructive practices. They need to be pressured into taking urgent action to stop them.
Amber/Orange: Protect LGBT students & teachers
By now, we are all familiar with ‘amber alerts’ in the media to draw attention to vulnerable children in danger. Well, every day in NSW there should be an amber alert for LGBT kids – because, in 2021, religious schools are still legally permitted to discriminate against them on the basis of their sexual orientation and/or gender identity.
That is in part because of Scott Morrison’s broken promise from 2018 to amend the Sex Discrimination Act 1984(Cth) to remove the special privileges allowing religious schools to abuse, mistreat, suspend or even expel students just because of who they are.
But it is also because the Berejiklian Liberal/National Government refuses to repeal the special privileges contained in its own law, the Anti-Discrimination Act 1977 (NSW). Indeed, the exceptions in NSW are actually worse, because they permit all private schools, colleges and universities to discriminate, not just those that are religious (making NSW the only jurisdiction in Australia to do so).
Of course, LGBT students are not the only victims of such discrimination. The same provisions also allow private educational authorities to discriminate against LGBT teachers.
If we genuinely want our schools to be safe learning environments where all people are encouraged to reach their full potential, then the NSW Government must protect both LGBT students and teachers from discrimination.
Yellow: End coercive intersex surgeries
As I have written elsewhere, the worst human rights abuses currently affecting any part of the Australian LGBTI community are coercive medical treatments, including surgeries and other interventions, on children born with intersex variations of sex characteristics.
These egregious human rights violations carry lifelong consequences which is why they must be deferred until intersex people can consent, or not consent, to them. Some jurisdictions, including Tasmania and the ACT, appear to be moving in that direction. As yet, there is no sign of similar progress in NSW.
[NB The yellow comes from the intersex pride flag, which is yellow and purple.]
Green: Improve birth certificate access
NSW now has the equal worst birth certificate laws in Australia, alongside Queensland.
Under the Births, Deaths and Marriages Registration Act 1995 (NSW), trans and gender diverse people must undergo ‘a surgical procedure involving the alteration of a person’s reproductive organs… for the purpose of assisting a person to be considered a member of the opposite sex’ before being allowed to update their birth certificate to reflect their gender identity.
This requirement is both unnecessary and inappropriate, especially when some people may not wish to undergo such surgeries, while others cannot afford to do so given the prohibitive costs involved.
NSW has fallen behind the majority of other Australian jurisdictions which have updated their birth certificate laws to allow access based on self-identification only (which is best practice), or at least without physical medical interventions. It is time the Government gave the green light to trans and gender diverse people here to access birth certificates without any medical gate-keeping.
Blue[ii]: Trans discrimination law reform
Trans and gender diverse people in NSW are also let down by confusing and outdated anti-discrimination protections, as amply demonstrated by the controversy surrounding discriminatory efforts to prevent trans women who have not undergone surgery from accessing McIver’s Ladies Baths in Coogee.
On one hand, there is a definition of ‘recognised transgender person’ in section 4 of the Anti-Discrimination Act 1977 (NSW) which some people might, mistakenly, try to use to justify limiting access on the basis of surgery:
‘recognised transgender person means a person the record of whose sex is altered under Part 5A of the Births, Deaths and Marriages Registration Act 1995[iii] or under the corresponding provisions of a law of another Australian jurisdiction.’
Except the substantive protections against transgender discrimination apply irrespective of whether the person has had surgery. According to section 38A:
‘A reference in this Part to a person being transgender or a transgender person is a reference to a person, whether or not the person is a recognised transgender person–
(a) who identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex, or
(b) who has identified as a member of the opposite sex by living as a member of the opposite sex…
and includes a reference to the person being thought of as a transgender person, whether the person is, or was, in fact a transgender person’ [emphasis added].
Which means discriminating against transgender women who have not had surgery would probably be found to be unlawful.
Given this, the misleading definition of ‘recognised transgender person’ should be removed from section 4.
However, that would still not address a far bigger problem, including with the broader definition in section 38A: it likely only applies to people with ‘binary’ gender identities, because of its use of the outdated concept of ‘opposite sex’.
In other words, non-binary people in NSW are not explicitly covered by the Anti-Discrimination Act 1977. The NSW Government must remedy this by replacing ‘transgender’ with ‘gender identity’, potentially based on the definition in the Sex Discrimination Act 1984 (Cth):
‘gender 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’.
Lavender/Purple: Bisexual discrimination law reform
The definition of transgender is not the only outdated terminology in the Anti-Discrimination Act 1977 (NSW). The other protected attribute covering (some parts) of the LGBTI community is currently ‘homosexual.’ Section 4 of the Act defines that term to mean ‘male or female homosexual.’
That narrow definition means NSW’s anti-discrimination laws are the only such laws in Australia that fail to protect bisexuals against discrimination.
This omission is truly appalling. It is well beyond time for the NSW Government to update the Anti-Discrimination Act to cover sexual orientation generally, in line with other jurisdictions including the Commonwealth Sex Discrimination Act 1984:
‘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.’
[NB The lavender comes from the bisexual pride flag, which is pink, lavender and blue.]
The six issues discussed above are of course not an exhaustive list. There are plenty of other LGBTI laws and policies which also need to be amended by NSW to provide genuine equality to its citizens irrespective of sexual orientation, gender identity and sex characteristics.[iv]
But, in my opinion, these are some of the most essential reforms in order for people to feel pride that we are making real progress in overcoming homophobia, biphobia, transphobia and intersexphobia.
I started this article by highlighting the fact today is the 10th anniversary of the election of the NSW Liberal/National Government.
Coincidentally, today also marks 100 weeks until the planned opening ceremony of World Pride 2023 in Sydney.
That means Premier Gladys Berejiklian has exactly 100 weeks to deliver on each of the six issues identified here.
If her Liberal/National Government fails to make these long-overdue and much-needed changes in that time, then I suggest we fly this ‘pride flag for NSW’ at half-mast during that opening ceremony to acknowledge the damage inflicted and pain caused by their ongoing inaction.
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[i] I also personally support the newer ‘Progress’ version of the pride flag, incorporating both elements of the trans flag, and black and brown stripes to represent people of colour.
[ii] The blue here could either represent part of the trans pride flag – which is blue, pink and white – or the blue of the Pacific Ocean at McIver’s Ladies Baths.
[iii] Which, as we have seen, only allows the granting of new identity documentation following invasive surgeries.
[iv] Indeed, the Anti-Discrimination Act 1977 (NSW) also needs to be updated to include a new protected attribute of ‘sex characteristics’ covering intersex people, and to remove the general exception in section 56(d) which allows a wide range of religious organisations to discriminate against LGBT employees and people accessing their services.