Not Going Backwards is Not the Same Thing as Going Forwards

Almost two weeks after the Sydney Gay & Lesbian Mardi Gras, the NSW LGBTIQ community has been given a belated reason to celebrate.

Yesterday (Wednesday 16 March), the NSW Government finally released its response to Mark Latham’s anti-trans kids Bill (formally called the Education Legislation Amendment (Parental Rights) Bill 2020), in which they categorically rejected his proposed legislation.

This was a law that, if passed, would have erased trans and gender diverse students from classrooms and schoolyards across the State.

It also would have introduced a Thatcher-esque section 28-style prohibition on positive references to LGBTQ people generally (modelled after a UK law from the 1980s and 90s which harmed a generation of queer kids there).

As well as enacting a new offensive and stigmatising definition of intersex people in NSW legislation.

Importantly, the Perrottet Liberal/National Government also rejected key recommendations of the Parliamentary Inquiry into Latham’s Bill (which, in a disturbing conflict of interest, featured Latham himself as Chair). This included ruling out:

  • Banning trans students from using the bathroom reflecting their gender identity
  • Outing trans students to non-supportive parents, even where this puts the student in danger
  • Stopping trans students from seeking confidential help from school counsellors, and
  • Outing trans students to all of the parents of other students in their year group.

The Government’s decision to reject Latham’s anti-trans kids Bill, and key recommendations of his biased inquiry, is obviously incredibly welcome.

Above all, it is a huge relief to LGBTIQ students, and especially trans and gender diverse kids and their families, who no longer need fear his legislative attack on their right to a safe and inclusive education.

However, this does not mean we should be overly-congratulatory towards the NSW Government either.

For example, in their response the Government notes, as one of their reasons for rejecting the Bill, that it ‘may lead to targeted discrimination against a marginalised community which already experiences poorer mental health and wellbeing outcomes’ (ie trans and nonbinary children and young people).

Which is true. But it was also true on the day Latham first introduced his legislation way back in August 2020.

There was no need for a drawn-out Parliamentary Inquiry to tell them that.

There was definitely no need to refer it to Latham’s Committee for that Inquiry.

There was no justification for all three Government members of that Inquiry to support the main elements of Latham’s Bill, including backing harmful recommendations about outing trans kids, and preventing them from accessing bathrooms, or seeking help from counsellors.

And there was clearly no justification for the Parliamentary Secretary for Education, Kevin Conolly, to express his personal support for the Bill (noting that he remains in that portfolio today).

The NSW Government could, and should, have spared the trans community from being forced to endure yet another debate about their very existence, by rejecting the Bill from the outset rather than taking 19 months and giving One Nation a platform to spread their transphobia in the meantime.

So, while the response yesterday was the right outcome, the tortuous route it took them to arrive there means they deserve, at best, a polite clap rather than a standing ovation.

The second reason why we should not be giving thunderous applause to the NSW Government is that all they have done is stop the situation in NSW from getting worse.

LGBTIQ people in NSW still woke up this morning in the worst jurisdiction for their legal rights in the country. Just as they did yesterday, and as they will tomorrow.

This includes having the worst anti-discrimination laws, which fail to protect bisexual people (the only place in Australia not to do so), nonbinary people, and intersex people. And which have extraordinary exceptions, allowing all private schools and colleges, religious and non-religious alike, to discriminate against LGBTQ students and teachers.

NSW will likely also soon be the only state or territory which requires trans and gender diverse people to have genital surgery in order to update their birth certificate (assuming Queensland follows through on its promises to reform their own laws this year).

NSW has made no progress on, or given any firm commitments to, prohibiting sexual orientation and gender identity conversion practices (which have already been banned in Victoria and the ACT, partially banned in Queensland, with bans under active consideration elsewhere).

And NSW has also shown no signs it will end what I consider to be the worst human rights abuses against any part of the LGBTIQ community: coercive surgeries and other non-consensual medical interventions on children born with innate variations in sex characteristics (with the ACT and Victorian Governments already committed to reform in this area, and realistic hope for change in at least one other jurisdiction).

All the NSW Government did yesterday was rule out taking another step backwards.

But even standing still means that, with each and every passing year, NSW falls further and further behind on LGBTIQ law reform.

Next week (Friday 25 March) will mark exactly one year to go until the next State election.

That’s a full 12 months for the Perrottet Liberal/National Government to do more than just publicly reject a terrible law attacking some of the most vulnerable members of our community, and instead to make long-overdue progress on at least some, if not all, of the above-mentioned law reforms to make the lives of LGBTIQ people in NSW better.

If they do, they will have actually earned some real praise.

Finally, lest I be accused of being partisan, we cannot let the Minns Labor Opposition off the hook on this subject either.

Because they too have failed to publicly condemn Mark Latham’s anti-trans kids Bill over the past 19 months.

They too voted for it to be referred to a Parliamentary Inquiry chaired by Latham himself.

And, disappointingly, they also had one of their two members on that Inquiry support the main elements of Latham’s Bill, including backing harmful recommendations about outing trans kids, and preventing them from accessing bathrooms, or seeking help from counsellors.

That’s simply not good enough. Nor is the fact that, one year out from what looks to be a highly competitive election, we currently know next-to-nothing about Labor’s plans on the issues described earlier.

It’s time for them to demonstrate to the LGBTIQ community exactly what they would do to end NSW’s reign as the jurisdiction with the worst laws in Australia.

In summary, then, while I am happy and relieved for LGBTIQ students, and trans and gender diverse kids in particular, that Latham’s anti-trans kids Bill has finally been rejected, I am far from satisfied with the current state of law reform in NSW. We can and must demand better, from both the Perrottet Liberal/National Government, and Minns Labor Opposition.

NSW Premier Dominic Perrottet

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