Submitted online 

26 June 2023

To whom it may concern

Thank you for the opportunity to provide this submission in response to the Draft National Care and Support Strategy 2023.

I do so as a long-standing advocate for lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) Australians, with a particular focus on ensuring our communities are legally protected and can live our lives free from discrimination on the basis of who we are.

At the outset, I would like to commend the Government for taking on the issue of ensuring the ‘care and support economy’ is working effectively and efficiently for the benefit of all people, including the people accessing these services as well as the workers providing them.

As noted in the draft strategy as circulated, this is especially important given ‘Australian Government spending in these sectors is projected to rise from around $60bn in 2021-22 to more than $110bn by 2026-27.’

In this context, however, it is disappointing that so little consideration is given to how the care and support economy impacts LGBTIQ people.

Indeed, as far as I can tell, there is only one reference to LGBTIQ people in the entire 56 pages of the proposed strategy (which I will address in more detail below).

Almost inevitably, this means that the impact of the care and support economy on LGBTIQ people accessing services, and LGBTIQ workers – as well as the inter-relationship between these two cohorts – is not adequately addressed.

I therefore call for the following issues to be addressed in more detail in the final version of the strategy to be released later this year.

1. Better protections for LGBTQ people accessing care and support services

While increased Government funding for care and support services overall is obviously welcome, one particular aspect of this funding which causes potential problems for the LGBTIQ community is that a significant share is provided to religious organisations to operate what are essential public services.

Although many religious organisations are now accepting of LGBTQ people and our families, many others remain discriminatory in their approaches towards diversity in sexual orientation and gender identity.

And in at least some of these cases, although thankfully not all, this discrimination is legally permitted under the Commonwealth Sex Discrimination Act 1984.

First, on the positive side, the 2013 amendments to this legislation, which protected LGBTI people against discrimination under federal law for the first time, included a ‘carve-out’ which provides that Commonwealth-funded age care services operated by religious organisations are not permitted to discriminate against LGBTQ people accessing those services (sub-section 37(2)(a): ‘Paragraph (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.’)

While welcome, this carve-out is also extremely narrow. It does not protect LGBTQ people accessing non-Commonwealth Government funded aged care services against discrimination because of their sexual orientation and/or gender identity.

Even worse, the fact this carve-out only applies to aged care, means that other parts of the care and support economy – from disability services, through veterans’ care and early childhood education and care – are not covered.

In other words, religious organisations which operate services in these sectors are free to discriminate against LGBTQ people accessing them, even where the service is being provided with Australian Government money. With taxpayers’ money. With our money.

This is completely unacceptable in 2023. People should be able to access these services – disability services, veterans’ care and early childhood education and care – without having to fear such discrimination.

It is also completely contradictory to the otherwise-worthy stated objectives of the Draft Strategy.

This includes 1.4 ‘Services are culturally and psychologically safe for all people.’ Supported by the discussion on page 19 – which is the only place LGBTIQ people are explicitly mentioned in the document: ‘In addition to formal qualifications, the increasingly diverse Australian population also requires a workforce that is culturally competent for First Nations people, people from culturally and linguistically diverse backgrounds and lesbian, gay, bisexual, transgender and intersex people.’

Services cannot be culturally and psychologically safe for all people if some services are granted special privileges to discriminate against LGBTQ people accessing them.

And aiming for a workforce that is culturally competent to engage with LGBTI people is undermined if those services are permitted to refuse to engage with LGBTQ people anyway.

Therefore, if the Draft Strategy is to meet its stated objectives it must also include a recommendation, and commitment, to remove the exceptions in the Sex Discrimination Act that currently allow religious organisations to discriminate against LGBTQ people accessing disability services, veterans’ care and early childhood education and care.

2. Better protections for LGBTQ workers providing services

The need to improve legal protections for LGBTQ people under the Sex Discrimination Act doesn’t just apply to the people accessing those services – but also extends to the workers providing them.

This is especially important when, as noted in the draft Strategy, ‘The health care and social assistance industry now accounts for 15 per cent of Australia’s workforce, making it the largest employing industry in Australia’ and that ‘The care and support workforce is growing 3 times faster than other sectors in the Australian economy.’

Being able to enjoy safe and secure jobs, and ultimately careers, is therefore important for all cohorts within the Australian community – but this is something currently denied to too many LGBTQ workers.

That is because religious organisations receiving Commonwealth, State and Territory funding to deliver these services are legally permitted under federal anti-discrimination law to discriminate against workers simply based on their sexual orientation and/or gender identity.

Unlike LGBTQ people accessing aged care services, this includes LGBTQ workers in those services – sub-section 37(2)(d) makes it clear that the ‘carve-out’ does not apply where ‘the act or practice is… connected with the employment of persons to provide that aged care.’

There is also no Commonwealth protection for LGBTQ workers delivering disability services, veterans’ care or early childhood education and care, where their employers are faith bodies.

This is unacceptable. Workers should be hired, fired, promoted or otherwise engaged or not engaged on the basis of their ability to deliver this vital ‘care and support’ – not on their sexual orientation and/or gender identity.

This obviously has direct negative impacts on the LGBTQ workers involved – and potential workers too, who may be dissuaded from entering the care and support workforce to begin with if they are aware large sections of these industries are legally empowered to mistreat them just because of who they are.

But it also undermines the stated objectives of the draft strategy, including:

2.4 ‘Workplaces are safe and healthy, and psychological and physical risks are eliminated or, if this is not possible, minimised’ and

2.6 ‘Workplaces are inclusive of diverse cultures, genders, ages and abilities and are culturally safe for all workers, including First Nations workers.’

Psychological risks for LGBTQ workers are not being eliminated or minimised however long religious organisations in the care and support economy are legally permitted to discriminate against them.

And workplaces can never be ‘culturally safe for all workers’ while this situation prevails too.

If the Government is serious about achieving both of those objectives, then it must include a recommendation, and commitment, to remove the exceptions in the Sex Discrimination Act that currently allow religious organisations to discriminate against LGBTQ workers providing aged care, disability services, veterans’ care and early childhood education and care.

3. Better protections for LGBTQ workers will lead to better services for all people, including LGBTQ people, accessing these services

It should be noted that, as well as benefitting individual LGBTQ workers, removing the ability of religious organisations in this sector to discriminate against LGBTQ workers will also deliver a higher quality of care – which is something all Australians have an interest in.

I have been writing about this phenomenon for several years, including the following section from my 2019 submission to the Royal Commission into Aged Care: 

The first and most obvious way in which the ability of religious organisations to discriminate against LGBT employees impacts on the quality of aged care services is the reduction of potential talent in their aged care workforce.

This is an entirely logical, and foreseeable, outcome; by excluding some highly-qualified applicants, for reasons that have nothing whatsoever to do with their ability to perform the relevant role(s), the number of qualified applicants from which to choose is inevitably diminished.

This impact may be exacerbated in remote, rural and regional Australia, where the number of applicants for a position may be much smaller to begin with – any loss of highly-qualified applicants, simply because of their sexual orientation or gender identity, could have a severe impact on service standards.

And this impact will likely exist for as long as the general exception in the Sex Discrimination Act 1984 allows religious aged care services to discriminate in this way.

Because, even if a particular aged care facility doesn’t discriminate at a particular point in time, highly-qualified LGBT employees may nevertheless be discouraged from applying because of the possibility of being legally discriminated against in the future. In remote, rural and regional Australia, where there may be limited employment options, this could even result in qualified employees being lost to the aged care services industry entirely.

There is also a compelling argument that the stress of LGBT employees working in religious aged care services that may lawfully discriminate against them, where they may need to be constantly vigilant in self-censoring their words and actions lest they be ‘found out’, undermines the quality of service provided because it serves as a potential distraction from their day-to-day responsibilities.

People accessing aged care services have the right to expect the highest possible standard of care. That is not provided when an aged care service refuses to employ highly-qualified people simply because they are lesbian, gay, bisexual or transgender.

The second practical reason why allowing religious aged care services to discriminate against LGBT employees impacts on the quality of aged care services is that it can contribute to an organisational culture of homophobia, biphobia and transphobia.

Once an organisation acts in a manner that suggests discriminating against employees on the basis of their sexual orientation or gender identity is acceptable, it is hard not to see this abuse spilling over into the treatment of LGBT people accessing these services.

LGBT individuals and couples in aged care facilities may directly witness the homophobic, biphobic and transphobic mistreatment of staff, and feel less safe in their surroundings as a result. Or they could be subject to direct or indirect anti-LGBT discrimination themselves.

There is already a significant power imbalance between people accessing these services and the service-providers themselves. As a result, even if the LGBT person accessing the service technically has a right not to be discriminated against under the Sex Discrimination Act 1984, they may feel uncomfortable in making a formal complaint because of a legitimate fear that the organisation will not be responsive to it.

LGBT people accessing these services are also denied natural allies because any LGBT employees at the facility may feel unable to advocate on their behalf because they are also afraid of retribution from the organisation itself (in this case, entirely legal).

Homophobic, biphobic and transphobic discrimination against LGBT employees inevitably has a detrimental impact on LGBT individuals and couples accessing aged care services.

The third and final practical reason why allowing religious aged care services to discriminate against LGBT employees impacts on the quality of aged care services, especially for LGBT people, is that it denies them an opportunity for human connection.

Residential aged care facilities, in particular, are the ‘homes’ of the people living in them, usually for the final years or decades of their lives. The provision of services is about much more than simply providing shelter, food and health care.

For LGBT individuals and couples, having one or more LGBT employees offers the opportunity to bond with them over potential interests, and to share stories with each other (including, I might add, the ability for younger LGBT employees to learn from the older LGBT residents).

However, this opportunity is lost if an LGBT employee is unable to discuss this aspect of their lives, for fear of being discriminated against. For the resident, the possibility of conversation is replaced by silence.

Discrimination against LGBT employees in aged care services can exacerbate the social isolation experienced by LGBT individuals and couples accessing those services.

In conclusion, there are principled reasons why religious aged care services should not be able to discriminate against LGBT employees. These employees should be judged on their ability to perform the role, not on the basis of their sexual orientation or gender identity. And taxpayers’ money should not be used to subsidise anti-LGBT discrimination.

There are also practical reasons why such discrimination should be prohibited, including that it impacts on the quality of aged care services provided, contributes to a culture of homophobia, biphobia and transphobia, and denies LGBT residents an opportunity for human connection.

Therefore, to improve the quality of aged care services, including although not only for LGBT residents, the special privilege allowing such discrimination should be repealed.

*****

The same or similar arguments can be made with respect to LGBTQ workers providing other services in the care and support economy.

If we care about the care and support economy, if we care about the people working in it, and above all the people accessing the services within it, then the special privileges which allow religious organisations to discriminate against LGBTQ people must be repealed.

Sadly, not a lot has changed since I wrote that Aged Care Royal Commission submission more than four years ago. Perhaps the only two developments to note are a) even more money seems to be going to these sectors (and therefore to faith-based organisations providing these services), and b) the change to the Commonwealth Government in May 2022.

The previous Morrison Liberal/National Government was clearly uninterested in protecting LGBTQ people accessing services, and LGBTQ workers (indeed, with their thankfully abandoned Religious Discrimination Bill, they potentially sought to increase discrimination against both groups).

The questions now are for the Albanese Labor Government:

How serious are you about ensuring care and support economy services are ‘culturally and psychologically safe for all people’, including LGBTQ people?

What priority do you give to eliminating as far as possible psychological risks to workers, and ensuring workplaces are ‘culturally safe for all workers’, including LGBTQ workers?

Because if you’re serious about this, if it’s a priority to you, then the final version of the National Care and Support Economy Strategy 2023 must include recommendations, and commitments, to remove the special privileges under the Sex Discrimination Act 1984 (Cth) which allow religious organisations to discriminate against people on the basis of their sexual orientation and/or gender identity.

Thank you in advance for taking the issues raised in this submission into consideration as the National Care and Support Strategy is finalised. Please do not hesitate to contact me, at the details provided, should you require more information.

Sincerely

Alastair Lawrie