Commonwealth Parliament passed the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 ten years ago today.
This was historic legislation, finally offering federal anti-discrimination protections to lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians.[i]
And it was long overdue, more than 30 years after NSW became the first jurisdiction in Australia to prohibit discrimination on the basis of homosexuality, way back in 1982.
But, even at the time of passage it was clear these Sex Discrimination Act amendments were incomplete, and their limitations have only become more apparent in the decade since.
Here then are some[ii] of the key short-comings which need to be addressed in order for the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 to live up to its potential.
- Replace the protected attribute of intersex status with sex characteristics
The 2013 amendments meant Australia became one of the first jurisdictions in the world to offer anti-discrimination protections to intersex people. It did so by the inclusion of ‘intersex status’ as a protected attribute, defined as:
‘the status of having physical, hormonal or genetic features that are:
(a) neither wholly female nor wholly male; or
(b) a combination of female and male; or
(c) neither female nor male.’
This terminology (intersex status) and associated definition are no longer considered best practice, with peak body Intersex Human Rights Australia advocating for its replacement with ‘sex characteristics’, which was recently defined in amendments to the Queensland Anti-Discrimination Act 1991 in the following way:
‘sex characteristics, of a person, means the person’s physical features and development related to the person’s sex, and includes-
(a) genitalia, gonads and other sexual and reproductive parts of the person’s anatomy; and
(b) the person’s chromosomes, genes and hormones that are related to the person’s sex; and
(c) the person’s secondary physical features emerging as a result of puberty.’
Fortunately, the Commonwealth Government has actually committed to making this change – Industrial Relations Minister Tony Burke promised to replace intersex status with sex characteristics in Parliament in November 2022.[iii]It’s time for the Albanese Government to follow through on this commitment.
2. Protect LGBTQ students in religious schools against discrimination
It is appalling that, in 2023, Commonwealth anti-discrimination laws – which are supposed to protect LGBTI Australians – instead continue to allow religious schools and colleges to discriminate against some of the most vulnerable among us.
The special privileges permitting religious schools to mistreat LGBTQ young people in myriad ways (from refusing to enrol, through to suspension, expulsion and other forms of punishment, as well as an almost unlimited variety of differential treatment to their cis-het counterparts) were never justified. But they look especially archaic, and abhorrent, today.
All students have the right to education, and must be allowed to exercise this right in safety. And because any student, in any school, can be LGBTQ, all schools must be LGBTI-inclusive.
Once again, the Albanese Government has promised to protect LGBTQ students against discrimination. However, rather than simply following the precedents of multiple states and territories which have already legislated to protect LGBTQ kids – some for more than two decades – they chose to refer the issue of the exceptions enjoyed by religious schools to the Australian Law Reform Commission in November 2022 for a six-month inquiry.
Disappointingly, in April 2023, Attorney-General Mark Dreyfus announced that this inquiry was being extended until 31 December 2023. As a result, LGBTQ Year 12 students in 2023 will not be protected against discrimination before they leave school (despite both major parties promising to do so since October 2018, when they were only in Year 7). And another class will likely start, in 2024, still not protected against discrimination on the basis of who they are.
This simply isn’t good enough.
3. Protect LGBTQ teachers in religious schools against discrimination
Of course, LGBTQ students are not the only people in religious schools and colleges who deserve protection against mistreatment. So too do LGBTQ teachers and other workers.
Teachers should be judged simply according to their ability to teach – not their sexual orientation and/or gender identity.
This would not only benefit LGBTQ teachers, who would finally enjoy the same ability to apply for jobs, and promotions, across their industry as cis-het teachers, and would also be free to focus on teaching rather than having to hide in the closet and spend time and emotional energy worrying about whether they will be outed, and sacked as a result.
But it would benefit students too, who would be taught by the best person for the job (not the best cis-het person), and learn from LGBTQ teachers not distracted by the ever-present threat of discrimination. For LGBTQ students, out teachers also offer the prospect of role modelling what a happy life might look like, reducing their potential isolation.
The imperative to remove the ability of religious schools to discriminate against teachers on the basis of their sexual orientation and/or gender identity is only strengthened when we consider the massive sums of taxpayer money – ourmoney – given to these institutions.
Yet again, the Albanese Government has promised to remove the special privileges which allow religious schools to discriminate against LGBTQ workers. But, as with LGBTQ students, the possible protection of LGBTQ teachers has been held up by the lengthy extension to the ALRC inquiry.
LGBTQ teachers shouldn’t have to wait until 2024, or beyond, to enjoy protection against discrimination in the workplace. They should be allowed to focus on lesson plans and marking, not planning how to mask their sexual orientation or gender identity.
4. Protect LGBTQ workers in Government-funded aged care services operated by religious organisations
One of the best provisions of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (Cth) was new sub-section 37(2)(a) which states that the Act’s general religious exception (contained in sub-section 37(1)(d):
‘does not apply to an act or practice of a body established for religious purposes if… the act or practice is connected with the provision, by the body, of Commonwealth-funded aged care.’
In effect, nearly all aged care services across Australia are now prohibited from discriminating against people accessing those services on the basis of their sexual orientation and/or gender identity. In other words, LGBTQ people in all Government-funded aged care services are legally protected against discrimination.
The fact this provision has operated successfully, for a decade, demonstrates that special privileges allowing discrimination by religious organisations delivering what are essentially public services are unnecessary, and should be removed.
We should start by repealing sub-section 37(2)(b),[iv] which still allows faith-based aged care services to discriminate against LGBTQ workers.
All of the arguments which applied to LGBTQ teachers in religious schools, outlined above, also apply to LGBTQ aged care workers. This includes ensuring that the best person for the job is hired, not just the best cis-het person, allowing LGBTQ aged care workers to focus on the important task of delivering care to the elderly rather than worrying about being discovered, and allowing LGBTQ people accessing aged care to see openly-LGBTQ people looking after them.
5. Remove the general religious exception in section 37(1)(d) of the Sex Discrimination Act entirely
The same arguments which apply to LGBTQ students, teachers and aged care workers, also apply to LGBTQ people accessing services and employees across a broad range of other public services – such as disability, health, housing and other community services – which have been increasingly outsourced by state, territory and commonwealth governments over recent years.
All people accessing these services should be free to do so without having to fear discrimination on the basis of their sexual orientation and/or gender identity.
All workers in these industries should have the right to be judged on their ability to perform their role, not on who they are or how they identify.
Several Australian states and territories have already reformed their anti-discrimination laws to narrow their general religious exceptions along these lines, including Tasmania, Victoria, the ACT and NT, while Queensland and Western Australia have in-principle commitments to implement law reform recommendations achieving the same.[v] It’s time for Commonwealth Parliament to catch up.
Importantly, even if the general religious exception in sub-section 37(1)(d) of the Sex Discrimination Act 1984 (Cth) were removed, religious organisations would continue to enjoy the right to religious freedom through sub-sections (a), (b) and (c), which cover the training and appointment of ministers of religion, and selection of other people to perform functions in connection with religious observances or practices.
6. Prohibit vilification against LGBTI Australians
One major gap which exists in the Sex Discrimination Act, and which unfortunately was not addressed by the historic 2013 amendments, is a lack of Commonwealth prohibition on vilification on the grounds of sexual orientation, gender identity and sex characteristics.
The first half of 2023 has comprehensively demonstrated why such nation-wide prohibitions are essential, with TERFs and neo-Nazis rallying against trans rights on the steps of Victorian Parliament, the Christian Lives Matter riot against LGBTIQ protestors in Sydney, and growing threats of violence and intimidation against drag story time and other local LGBTIQ community events across several jurisdictions.
Disappointingly, there has so far been no national response to the anti-LGBTI substance of these developments.
The Albanese Government has instead proposed legislation banning the display of Nazi symbols which, while obviously welcome, in the absence of LGBTI vilification laws raises the following question: is anti-LGBTI hate speech acceptable as long as the people engaging in it aren’t wearing Nazi uniforms?
What has been happening so far this year is nothing short of a national crisis. What we need is a national response, including the introduction of Sex Discrimination Amendments prohibiting vilification against LGBTI Australians, equivalent to section 18C of the Racial Discrimination Act 1975 (Cth).
7. Create and appoint a Commissioner for Sexual Orientation, Gender Identity and Sex Characteristics
The dire situation confronting LGBTI Australians in 2023 has highlighted another structural weakness in our anti-discrimination framework – the lack of a stand-alone independent Commissioner for Sexual Orientation, Gender Identity and Sex Characteristics within the Australian Human Rights Commission.
This absence puts LGBTI people at a distinct disadvantage compared to other groups for which dedicated Commissioners have been created, including:
- Race
- Sex
- Disability
- Age
- Children
- Aboriginal and Torres Strait Islander Social Justice, and
- Human Rights.
Responsibility for LGBTI issues has instead been seen as an ‘add-on’, with the portfolio at various times being held by the Human Rights Commissioner, Sex Discrimination Commissioner and even the President (where it currently sits, although it will likely revert to the Sex Discrimination Commissioner when a replacement for Kate Jenkins is appointed).
But as an ‘add-on’, it never receives the same level of attention as other portfolios, nor the same amounts of funding and resources.
This lower relative prioritisation of LGBTI rights can be seen in the Commission’s muted response to the disturbing developments in the first half of 2023 – as far as I can tell, there have been no media releases or other public policy contributions in response to the TERF and neo-Nazi rally, Christian Lives Matter riot, or escalating wave of anti-LGBTI threats around the country.
Our community is under attack, and Australia’s national human rights institution does not appear to be coming to our defence.
The most straight-forward way to remedy this would be to address the structural weakness which has contributed to it – and that is by creating, and urgently appointing, a stand-alone independent Commissioner for Sexual Orientation, Gender Identity and Sex Characteristics within the AHRC.
NB This post is written in a personal capacity, and does not reflect the views of employers past or present, nor of any community organisations with which I am involved.
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Footnotes:
[i] Although the Commonwealth Fair Work Act had offered limited protections to LGB workers, on the basis of ‘sexual preference’, from 2009.
[ii] This is by no means an exhaustive list of the Act’s faults. Other issues which should be addressed include narrowing the exceptions applying to transgender and intersex people in sport, as well as removing the exceptions relating to data collection.
[iii] During debate on legislation that finally included gender identity and intersex status as protected attributes in the Fair Work Act for the purposes of adverse action and unlawful termination provisions.
[iv] Which clarifies that the protection of LGBTQ people in relation to aged care services operated by faith bodies only applies where ‘the act or practice is not connected with the employment of persons to provide that aged care.’
[v] From the Queensland Human Rights Commission and WA Law Reform Commission respectively.
alastairlawrie 