Author Archives: Alastair Lawrie

Germaine Greer, ABC’s #QandA & Transphobia

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Updated 22 April 2017:

ABC’s #QandA producers have done it again, inviting notorious transphobe Germaine Greer to appear – yet again – on next Monday night’s episode.

In fact, Ms Greer’s appearance will be, at least, the third since the below post was written about the International Women’s Day episode in March 2015 (with other appearances in April 2016 and September 2016).

The frequent promotion by our national broadcaster of someone whose repugnant views about transgender people should be ignored rather than indulged is galling.

Importantly, Greer has already been given – and used – the opportunity of appearing on #QandA to ‘clarify’ her views on gender identity, but chose instead to continue her attacks on transgender people.

On the 11 April 2016 episode, Ms Greer deliberately mis-gendered Caitlyn Jenner, commenting that:

“I don’t believe that a man who has lived for 40 years as a man and had children with a woman and enjoyed the services, the unpaid services of a wife, which most women will never know, that he then decides that the whole time he’s been a woman, and at that point I’d like to say, “Hang on a minute, “you believed you were a woman, but you married another woman. “That wasn’t fair, was it?””

Here’s a hint Germaine – because you seem to be a bit slow on the uptake – Caitlyn Jenner is a woman, whether you like it or not (and it certainly appears to be the latter).

She even returned to the subject, later in the conversation, to take on a hypothetical middle-aged trans person, saying:

“If you’re a 50-year-old- truck driver who’s had four children with a wife and you decide that the whole time you’ve been a woman, I think you’re probably wrong.”

Imagine, for a second, that statement being made about another social group, say Aboriginal and Torres Strait Islander people, or Jewish people, or Muslim people – that, despite what you say you are, despite your fundamental identity, I will assert that your identity is incorrect. In effect, I will tell you that the person you say you are doesn’t exist.

This erasure wouldn’t be accepted – and it shouldn’t be accepted in relation to transgender and non-binary gender diverse people, either.

It’s time for Ms Greer to be taken off the speed dial list for ABC’s #QandA producers, and for her to be replaced by a feminist who is capable of accepting life in the 21st century. There is absolutely no shortage from which to choose.

**********

Original Post 8 March 2015 (previous title: My Question to Tony Jones, Annabelle Crabb, #QandA Producers, Mark Scott & The ABC):

On Monday March 9th 2015, the ABC’s Q&A program will hold its first ever all-female show, to align with International Women’s Day (which is today, Sunday March 8).

There have actually been Q&A’s with all-female guests before – although they still featured Tony Jones as host, whereas tomorrow night Annabel Crabb will be moderating the conversation.

This is of course a welcome development, especially given the ongoing under-representation of women in political life in Australia, nowhere more than around the federal Cabinet table (with one of the two women currently in Cabinet, the Hon Julie Bishop MP, also a guest tomorrow night).

It’s just such a shame that it is undermined by the inclusion of Germaine Greer as a panellist.

Don’t get me wrong, Ms Greer was one of the most influential Australians of the 20th century, and her academic and public work on feminism, and improving the situation of women around the world, should be, indeed must be, respected.

Unfortunately, her views on gender identity, and in particular surrounding issues of transgender identity, have steadfastly refused to enter the 21st century. She has been, and remains, a vocal and unapologetic transphobe.

And it is this transphobia which, I believe, makes her an unsuitable guest for Q&A. It is my firm view that the ABC more generally, and Q&A specifically, should not be giving a platform to someone whose opinions are so abhorrent.

Now, that might seem like an extreme statement. Until you recognise that her comments about transgender people, and trans-women in particular, are far more extreme.

For example, in her 1999 book, The Whole Woman, Ms Greer wrote:

“Governments that consist of very few women have hurried to recognise as women men who believe that they are women and have had themselves castrated to prove it, because they see women not as another sex but as a non-sex.”

“No so-called sex-change has ever begged for a uterus-and-ovaries transplant; if uterus-and-ovaries transplants were made mandatory for wannabe women they would disappear overnight. The insistence that man-made women be accepted as women is the institutional expression of the mistaken conviction that women are defective males.”

Proving that it is possible to learn nothing about a subject in 10 years, Ms Greer wrote the following for The Guardian in 2009:

“Nowadays we are all likely to meet people who think they are women, have women’s names, and feminine clothes and lots of eyeshadow, who seem to us to be some kind of ghastly parody, though it isn’t polite to say so. We pretend that all the people passing for female really are. Other delusions may be challenged, but not a man’s delusion that he is female.”

In 2015, another six years having passed, and yet Ms Greer still doesn’t seem to be any the wiser about transgender issues. Delivering a public lecture at Cambridge University in January, she returned to her discriminatory ways.

According to the Huffington Post, transphobia itself became a target of her speech:

“Women are 51% of the world’s population and [I’ve been told] I’ve got to worry about transphobia… I didn’t know there was such a thing [as transphobia]. Arachnophobia, yes. Transphobia, no.”

Perhaps in an effort to single-handedly demonstrate that transphobia does exist, Ms Greer also repeated her 2009 view that it was a ‘delusion’ to describe the wish of ‘men to become women’, and “suggested that trans women do not know what it is to “have a big, hairy, smelly vagina.””.

And “[s]he further argued that the surgical procedures and medical treatments associated with transitioning are “unethical” because they “remove healthy tissue and create lifelong dependence on medicine.””.

So there we have (at least) three examples, spread across 16 years, of someone who actively belittles and demeans one group within the community simply because of who they are.

Imagine for a second that she (or indeed any potential Q&A guest) made similar comments about Aboriginal and Torres Strait Islander people, or Jewish people. That they questioned these groups’ ‘authenticity’, called them ‘delusional’ or ‘ghastly parodies’, at the same time as suggesting that racism, or anti-Semitism, were not in fact all-too-real phenomena.

Would the ABC nevertheless go ahead and book them for this program, effectively providing them with a platform for their bigoted views? I expect (and sincerely hope) that they would not.

Which indicates, or at least strongly implies, that the ABC does not consider transphobia to be as serious an issue as racism, or anti-Semitism, or other forms of discrimination.

What makes the decision to invite Germaine Greer onto the program even worse is that she has already appeared, on multiple occasions (and on one of her previous appearances hardly covered herself in glory, in March 2012 disrespecting then Prime Minister, the Hon Julia Gillard MP, by telling her “Face it Julia, you have a fat arse…”)

Are the producers seriously suggesting that a panel of five guests (plus host Annabel Crabb) could not be filled with intelligent and talented women without having to invite a notorious transphobe back for a repeat performance?

The fact that they have done so is, I believe, a serious failure of judgment.

Of course, writing this as a cisgender gay man I am exposing myself to potential criticism, that somehow I am being anti-feminist (for daring to criticise the ‘right’ of someone like Ms Greer to appear).

But I am comfortable enough to know that a) that’s not true and b) that it is more important to stand up for the rights of all of the members of the lesbian, gay, bisexual, transgender and intersex (LGBTI) community.

And it is not as if I am alone in making such criticisms. Author Roxane Gay, who is herself appearing on Monday night’s Q&A, had the following to say in an interview with the Sydney Morning Herald:

“I think she’s [Germaine Greer’s] bigoted and full of hate. She doesn’t acknowledge transgender women as women. That’s not acceptable. I honestly don’t know why she’s being included. I think it’s going to be uncomfortable.”

I too don’t know why Germaine Greer is being included on tomorrow night’s show. So, in the long tradition of Q&A, I would like to submit the following question:

My question is to Tony Jones, Annabel Crabb, #QandA Producers, Mark Scott and the ABC: Why do you consider it acceptable to provide a public platform for a transphobe like Germaine Greer? Or, in other words, why do you believe transphobia is less offensive than racism or anti-Semitism?

I would love for them (rather than the other guests) to provide a response to this, although I have to say I am not holding my breath.

Transphobe Germaine Greer

Transphobe Germaine Greer

One final thing. As I noted at the beginning, while this is the first all-female show, it is not the first all-female panel. And there have been other panels looking at Aboriginal and Torres Strait Islander issues, and one program looking specifically at HIV (held during AIDS2014 in Melbourne).

Perhaps a future Q&A could be devoted to LGBTI issues. With five guests, that means there could be at least one lesbian, gay, bisexual, transgender and intersex person each appearing (noting of course individuals can be more than one of these).

Such a show would go some way towards demonstrating that the LGBTI community is about more than just marriage equality, and that there is also an incredible amount of diversity, both in experience and opinions, within our ranks.

There are a large number of opportunities for such a panel during the year, not only during the (just completed) Sydney Gay & Lesbian Mardi Gras, but possibly even later in 2015 to celebrate 40 years of the decriminalisation of homosexuality in South Australia (the first Australian state to do so). So, Q&A, how about it?

Update 22 April 2017: Later in 2015, #QandA producers actually did stage a program focusing on LGBTI issues. Hosted by gay comedian Tom Ballard, it followed a screening of the documentary Between a Frock and a Hard Place, looking back at the success of The Adventures of Priscilla, Queen of the Desert.

The panel for the ‘#QandGay’ included:

Gay rights activist and author Dennis Altman

Entertainer Paul Capsis

Broadcaster and journalist Julie McCrossin

Christian Democratic Party MP Fred Nile

Transgender woman Julia Doulman and

Student and queer activist Katherine Hudson.

That’s right, not content on including notorious transphobe Germaine Greer on the International Women’s Day episode, #QandA producers apparently believed that a discussion about the progress of LGBTI rights in Australia required the input of notorious homophobe Fred Nile. I guess, based on that logic, the next panel to focus on issues about race will include a neo-Nazi. You know, for balance…

Letter to Bruce Notley-Smith re Baird Liberal-National Government Commitments on NSW Anti-Discrimination Act 1977

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Mr Bruce Notley-Smith MP

80 Bronte Road

Bondi Junction NSW 2022

coogee@parliament.nsw.gov.au

Sunday 1 March 2015

Dear Mr Notley-Smith

REVIEW OF NSW ANTI-DISCRIMINATION ACT 1977

I am writing as an attendee at the recent #rainbowvotes forum, where five Members of Parliament from across the political spectrum, including yourself, outlined their respective approaches to lesbian, gay, bisexual, transgender and intersex (LGBTI) issues ahead of the upcoming NSW State Election.

Specifically, I am seeking clarification of your answers concerning the NSW Anti-Discrimination Act 1977 and what action you, and the Liberal-National Government, will take if you are re-elected.

At the forum, the representative attending on behalf of the NSW Labor Opposition, Ms Penny Sharpe MLC, gave a clear commitment that, if elected, a Foley Labor Government would undertake a formal review of the Anti-Discrimination Act 1977.

Following that clear commitment, you made several comments that appeared to indicate your personal support for such an approach.

However, later during the same forum, you indicated that you were appearing at the forum in your capacity as an individual MP only, and not as a spokesperson for the current Baird Liberal-National Government.

As a result, I sought clarification from you, via twitter, whether it is indeed NSW Liberal policy to support a formal review of the Anti-Discrimination Act 1977.

Given I have not received a response via social media, I am now writing to you more formally, with essentially the same question: is the Baird Liberal-National Government committed to reviewing the Anti-Discrimination Act 1977 if it is re-elected on Saturday 28 March 2015?

As I have written previously (see: https://alastairlawrie.net/2015/02/20/questions-for-mps-and-candidates-during-sydney-gay-lesbian-mardi-gras/ ), I believe the NSW Anti-Discrimination Act 1977 is now the worst LGBTI anti-discrimination legislation in Australia.

This is because:

  • It fails for protect bisexual people from discrimination (the only jurisdiction in the country to do so)
  • It fails to protect intersex people from discrimination
  • The religious exceptions in sub-section 56(d) are the broadest in Australia
  • The exceptions allowing all private schools to discriminate against lesbian, gay and transgender students are abhorrent
  • It fails to protect both bisexuals and intersex people from vilification and
  • The maximum individual fine for lesbian, gay and transgender vilification is only one-fifth of the maximum fine for racial vilification.

For all of these reasons, I believe that the Anti-Discrimination Act 1977 should be amended as a matter of priority.

However, if you are unable to give a clear commitment that a re-elected Baird Liberal-National Government would make changes to these provisions, I submit that, at the bare minimum you, and the Government, should be able to commit to holding a formal review of this narrow and out-dated legislation.

Given there are now less than four weeks left until polling day, I would appreciate a response to this letter, outlining what commitments (if any) the Liberal-National Government is prepared to make in this area, at your earliest convenience.

I have also copied the Premier, the Hon Mike Baird MP, and the Attorney-General, the Hon Brad Hazzard MP, into this correspondence.

Thank you in advance for you consideration of the issues raised in this letter.

Sincerely,

Alastair Lawrie

cc: The Hon Mike Baird MP, NSW Premier

GPO Box 5341

Sydney NSW 2001

The Hon Brad Hazzard MP, NSW Attorney-General

GPO Box 5341

Sydney NSW 2001

office@hazzard.minister.nsw.gov.au

Will Liberal Member for Coogee, Bruce Notley-Smith, be able to provide a clear commitment to review the Anti-Discrimination Act 1977?

Will Liberal Member for Coogee, Bruce Notley-Smith, be able to provide a clear commitment to review the Anti-Discrimination Act 1977?

Questions for MPs and Candidates During Sydney Gay & Lesbian Mardi Gras

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Today is the official launch of Sydney Gay & Lesbian Mardi Gras, with a large and diverse festival leading up to the 37th official Mardi Gras Parade on Saturday March 7th 2015.

In recent years, as mainstream acceptance of the lesbian, gay, bisexual, transgender and intersex (LGBTI) community has grown, so too has the tendency of politicians, and would-be politicians, to appear at Mardi Gras events as a way of engaging with, and directly appealing to, LGBTI voters.

This year, Sydney Gay & Lesbian Mardi Gras overlaps with the campaign for the NSW State Election, to be held on Saturday March 28th, meaning there will likely be more Members of Parliament and candidates around than ever, trying ever-so-hard to convince us to vote for them.

Which is our opportunity to make them work (or should that be ‘werk’) for it. If MPs and candidates are going to come to our festival, then they should be made to respond to our questions (and it is our responsibility to tell them if and when their answers just aren’t good enough).

Of course, there are lots of different topics we could raise, but one issue which I would like to hear about is what each candidate – and political party – is going to do to fix the NSW Anti-Discrimination Act 1977, which now holds the dubious ‘honour’ of being the worst LGBTI anti-discrimination law in the country.

To start with, it only offers anti-discrimination protections to three of the five letters of the rainbow alphabet: lesbian, gay and transgender people.

That’s right, despite featuring the first gay anti-discrimination protections enacted in Australia (passed in 1982, so early in fact that it preceded the decriminalisation of male homosexuality in NSW by two years), the Anti-Discrimination Act has never formally protected bisexual people from discrimination[1].

All other Australian states and territories, and the Commonwealth, protect bisexuals, either specifically, or as part of ‘sexual orientation’. This ongoing exclusion from the NSW anti-discrimination scheme is nothing short of appalling.

The exclusion of intersex people, while perhaps more understandable – given the first explicit intersex anti-discrimination protections in the world were introduced in the Commonwealth’s Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 less than two years ago (and only Tasmania has since followed suit) – is no less unacceptable.

The NSW Anti-Discrimination Act 1977 also has the broadest religious exceptions in the nation. Sub-section 56(d) effectively gives religious organisations carte blanche to actively discriminate against lesbian, gay and transgender people across most areas of public life.

Sub-section 56(d) states that “[n]othing in this Act affects… any other act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion”.

That protects pretty much any action that a religious healthcare provider, community service, or school, might wish to take against LG&T employees, or people accessing those services, in this state.

Not that religious schools even need to rely on sub-section 56(d). In two of the most offensive provisions in Australian law today (not just anti-discrimination law, but any law), under the Anti-Discrimination Act all private schools in NSW (yes, even the non-religious ones) can explicitly refuse to enrol, can enrol under different conditions, and can expel, students solely because they are lesbian, gay or transgender.

These provisions are so utterly awful that they bear quoting in full:

“Section 49ZO Education

  • It is unlawful for an educational authority to discriminate against a person on the ground of homosexuality:
    1. By refusing or failing to accept the person’s application for admission as a student, or
    2. In the terms on which it is prepared to admit the person as a student.
  • It is unlawful for an educational authority to discriminate against a student on the ground of homosexuality:
    1. By denying the student access, or limiting the student’s access, to any benefit provided by the educational authority, or
    2. By expelling the student or subjecting the student to any other detriment
  • Nothing in this section applies to or in respect of a private educational authority.” [emphasis added]

AND

“Section 38K Education

  • It is unlawful for an educational authority to discriminate against a person on transgender grounds:
    1. By refusing or failing to accept the person’s application for admission as a student, or
    2. In the terms on which it is prepared to admit the person as a student.
  • It is unlawful for an educational authority to discriminate against a student on transgender grounds:
    1. By denying the student access, or limiting the student’s access, to any benefit provided by the educational authority, or
    2. By expelling the student or subjecting the student to any other detriment.
  • Nothing in this section applies to or in respect of a private educational authority.” [emphasis added]

There is absolutely no justification for this type of sexual orientation and gender identity segregation in our schools, in any schools. And we should challenge any MP or candidate who comes along to Mardi Gras and attempts to defend it.

The anti-vilification protections of the NSW Anti-Discrimination Act 1977 are only slightly less bad. On the positive side, NSW is one of only four jurisdictions in the country to have some form of anti-vilification laws covering our community – and that is certainly better than the Commonwealth, which has section 18C of the Racial Discrimination Act 1975 for racial vilification, but no LGBTI equivalent.

On the negative side, as with anti-discrimination, NSW legislation only protects against lesbian, gay and transgender vilification, and does not extend to vilification against bisexuals or intersex people.

Meanwhile, on the you’ve-got-to-be-kidding side (or, less politely, the WTF?-side), did you know that the maximum fine which an individual can receive for the offences of homosexual[2] or transgender[3] vilification is actually only one-fifth of the maximum individual fine for racial[4] vilification?

How on earth did anyone ever think that such a distinction – for offences which otherwise have exactly the same wording – was appropriate? More importantly, isn’t anyone who defends such a distinction in effect saying that vilifying lesbian, gay and transgender people is less offensive (perhaps even only one-fifth as bad) than vilifying people on the basis of race?

As you can see, there are many things distinctly wrong with the Anti-Discrimination Act 1997. As a consequence, there are many questions to ask Members of Parliament and candidates who attend Mardi Gras events over the next fortnight-and-a-bit.

And we should be asking those questions, not just at the LGBTI State Election Forum on Wednesday February 25th (details here: http://www.acon.org.au/about-acon/Newsroom/Media-Releases/2014/130 and free tickets here: http://www.eventbrite.com.au/e/nsw-state-election-forum-2015-tickets-15400759085) but also at Mardi Gras Fair Day on Sunday February 22nd, at the Parade on Saturday March 7th (asking them in the Parade marshalling area is probably your best bet), and at any other event at which they hold out a leaflet or put up a corflute.

To assist, I have attempted to summarise the above criticisms of the NSW Anti-Discrimination Act 1977 in the following six questions. Please feel free to use them whenever an MP or candidate might raise their heads during Mardi Gras (or in the run-up to polling day itself):

  1. Will you amend the Anti-Discrimination Act 1977 to protect bisexual and intersex people from discrimination?

 

  1. Will you repeal sub-section 56(d) of the Anti-Discrimination 1977 which currently grants the broadest religious exceptions to anti-discrimination laws in the country?

 

  1. Will you repeal sections 49ZO and 38K of the Anti-Discrimination Act 1977 which allow all private schools and colleges the right to refuse enrolment of, impose special conditions on or expel lesbian, gay and transgender students?

 

  1. Will you amend the Anti-Discrimination Act 1977 to protect bisexual and intersex people from vilification?

 

  1. Will you amend the Anti-Discrimination Act 1977 to harmonise the penalties for vilification, rather than having a higher penalty for racial vilification than homosexual or transgender vilification? And

 

  1. If you are unable to make the above commitments, will you at least agree to conduct a review of the Anti-Discrimination Act 1977, which is now the most out-dated and worst LGBTI anti-discrimination law in Australia?

These are the questions which I would like answered during Sydney Gay & Lesbian Mardi Gras. I wonder which MPs and candidates are going to ‘come to the party’ (so to speak) by supporting better anti-discrimination laws for the entire LGBTI community.

"Religious exceptions are this wide." Actually, Premier Baird, they're a lot wider than that. Time to repeal sub-section 56(d) of the NSW Anti-Discrimination Act 1977.

“Religious exceptions are this wide.” Actually, Premier Baird, they’re a lot wider than that. Time to repeal sub-section 56(d) of the  Anti-Discrimination Act 1977.

After much contemplation, Opposition Leader Luke Foley this week finally joined the 21st century by supporting marriage equality. Will he also support a 21st century Anti-Discrimination Act?

After much contemplation, Opposition Leader Luke Foley this week finally joined the 21st century by supporting marriage equality. Will he also support a 21st century Anti-Discrimination Act?

Finally, if you manage to secure a response from MPs or candidates on these questions during Sydney Gay & Lesbian Mardi Gras, whether that response is negative or positive, please leave their answers in the comments section below.

And, if you want to raise them directly with some of the relevant decision-makers, here are some people you might wish to contact:

Liberals

Premier Mike Baird

Email https://www.nsw.gov.au/your-government/contact-premier-new-south-wales

Phone 02 8574 5000

Twitter https://twitter.com/mikebairdMP

Attorney-General Brad Hazzard

Email office@hazzard.minister.gov.au

Phone 02 8574 6000

Twitter https://twitter.com/BradHazzard

Labor

Opposition Leader Luke Foley

Email leader.opposition@parliament.nsw.gov.au

Phone 02 9230 2310

Twitter https://twitter.com/Luke_FoleyNSW

Shadow Attorney-General Paul Lynch

Email ElectorateOffice.Liverpool@parliament.nsw.gov.au

Phone 02 9602 0040

Greens

Attorney-General Portfolio Spokesperson David Shoebridge

Email david.shoebridge@parliament.nsw.gov.au

Phone 02 9230 3030

Twitter https://twitter.com/ShoebridgeMLC

[1] Section 49ZG refers to discrimination on the basis of ‘homosexuality’, with ‘homosexual’ defined in section 4 as ‘homosexual means male or female homosexual’.

[2] Section 49ZTA sets the maximum individual punishment for serious homosexual vilification at 10 penalty units, or imprisonment for 6 months, or both.

[3] Section 38T provides that the maximum individual punishment for serious transgender vilification is 10 penalty units, or imprisonment for 6 months, or both.

[4] Section 20D establishes the maximum individual punishment for serious racial vilification: 50 penalty units, or imprisonment for 6 months, or both.

Submission to Australian Law Reform Commission Traditional Rights and Freedoms Inquiry

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The Australian Law Reform Commission is currently conducting an inquiry into Traditional Rights and Freedoms – Encroachment by Commonwealth Laws (at the behest of Commonwealth Attorney-General, Senator the Hon George Brandis). They have released an Issues Paper for public consultation, with submissions due by Friday 27 February 2015. For more information about the inquiry, see <http://www.alrc.gov.au/inquiries/freedoms The following is my submission, focusing on LGBTI vilification, religious exceptions to anti-discrimination law, and asylum-seekers and refugees, including LGBTI refugees.

The Executive Director

Australian Law Reform Commission

GPO Box 3708

Sydney NSW 2001

c/- freedoms@alrc.gov.au

Sunday 15 February 2015

To whom it may concern

SUBMISSION TO TRADITIONAL RIGHTS AND FREEDOMS INQUIRY

Thank you for the opportunity to provide a submission to the Traditional Rights and Freedoms – Encroachment by Commonwealth Laws Inquiry.

The subject of human rights and freedoms, and how they should best be protected, both by and from Government, is an important one, and is worthy of substantive consideration.

In this submission, I will focus on three particular areas in which the rights of people are currently being breached as a result of Commonwealth Government action, or in some cases, inaction:

  1. The Commonwealth Government’s failure to protect lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians from vilification
  2. The Commonwealth Government’s tacit endorsement of discrimination, by religious organisations, against lesbian, gay, bisexual and transgender (LGBT) Australians, and
  3. The gross violation of human rights of asylum-seekers and refugees, including LGBTI refugees, by the Commonwealth Government.

Before I move to these issues in more detail, however, I wish to express my concern about the Terms of Reference (provided by Attorney-General, Senator the Hon George Brandis) and therefore the overall direction of this inquiry.

The way in which the Terms of Reference have been formulated, and consequently the manner in which the Issues Paper has been drafted, appears to prioritise some rights above others, merely because they are older, or are found in common law, rather than being more modern rights or founded through legislation or international human rights documents.

This is an unjustified distinction, and makes it appear, at the very least, that property rights or ‘the common law protection of personal reputation’ (aka protection against defamation) are more important than other rights, such as freedom from vilification or discrimination.

My criticism of this inquiry is therefore similar to that of the Rights & Responsibilities 2014 Discussion Paper released by the Human Rights Commissioner Mr Tim Wilson. From my submission to that inquiry[1]:

“Specifically, I would argue that the prioritising of certain rights above others potentially neglects and devalues the importance of those other rights which are no less essential to ensuring that all Australians are able to fully participate in modern society.

From my point of view, chief among these rights is the right to non-discrimination, or to put it another way (which may be more favourably received), to be free from discrimination, including unfair or adverse treatment on the basis of sexual orientation, gender identity and intersex status.

The right to non-discrimination is fundamental in international human rights law adopted immediately post-World War II. Article 2(1) of the International Covenant on Civil and Political Rights (ICCPR) provides that:

“Each State Party to the present Covenant undertakes to respect and to ensure all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant, without distinction of any kind such as race, colour, sex, language, religion, political or other opinion, property, birth or other status.”

Similarly, article 21 of the ICCPR establishes that:

“All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

The United Nations Human Rights Committee has, in cases which both involved complaints by Australian citizens against actions by the Tasmanian and Commonwealth Government respectively, found that the wording of these articles includes the right to be free from discrimination on the basis of sexual orientation.[2]

The Commonwealth Parliament has also recognised that the right to non-discrimination for lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians is worthy of protection, with the passage of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013.

This historic legislation, providing similar rights to non-discrimination to those already enjoyed on the basis of race, sex, disability and age, was a significant, albeit long overdue, step forward for the LGBTI community. For this reason, I would not wish to see the right to be free from discrimination on these attributes to be diminished in comparison to other, more ‘traditional’ rights.

Unfortunately, that is the almost inevitable conclusion of a consultation process which aims to consider “how effectively we protect people’s human rights and freedoms in Australia”… but which then only focuses on a small number of freedoms, including the right to property, but which neglects others.”

[End extract]

Encouragingly, the ALRC at least acknowledges, on page 31, that “[f]reedom from discrimination is also a fundamental human right.” But the Issues Paper does not include a chapter on this right, nor does it include it within the list of “[o]ther rights, freedoms and privileges” in Chapter 19.

I believe that this imbalance, in examining and prioritising some fundamental rights, while essentially ignoring others, undermines the utility of this process – and is something which must be redressed in the Final Report, expected by December 2015.

I turn now to three particular areas in which the Commonwealth Government either itself breaches human rights, or authorises others to do so.

  1. The Commonwealth Government’s failure to protect lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians from vilification

[NB This topic relates to Chapter Two: Freedom of Speech, and its questions:

  • What general principles or criteria should be applied to help determine whether a law that interferes with freedom of speech is justified?
  • Which Commonwealth laws unjustifiably interfere with freedom of speech, and why are these laws unjustified?]

I acknowledge the importance of the right to freedom of expression, or freedom of speech. However, I also welcome the Issues Paper’s acknowledgement that there are possible justifications for encroachment on this right. In particular, the Issues Papers notes, at paragraph 2.2.4 on page 26:

“Similarly, laws prohibit, or render unlawful, speech that causes harm, distress or offence to others through incitement to violence, harassment, intimidation or discrimination.”

This obviously includes the prohibition on racial vilification contained in section 18C of the Commonwealth Racial Discrimination Act 1975[3].

My primary question is why laws should be established to prohibit ‘advocacy of national, racial or religious hatred’ but not to prohibit advocacy of hatred on other grounds, including sexual orientation, gender identity or intersex status.

The impact of vilification on these grounds, and the negative influence of public homophobia, biphobia, transphobia and intersexphobia more generally, is just as harmful as racial or religious vilification, and therefore I can see no good reason why there should not also exist equivalent anti-vilification protections covering LGBTI Australians a Commonwealth level.

It is for this reason that I provided a submission last year in response to the Senator Brandis’ Exposure Draft Bill seeking to repeal section 18C, in which I argued that, instead of abolishing racial vilification laws, similar protections against vilification on the basis of sexual orientation, gender identity and intersex status should be added to the Sex Discrimination Act 1984[4].

In short, if there should be a law to protect against the incitement to discrimination, hostility or violence on the basis of race, then there should also be a law to protect people on the basis of sexual orientation, gender identity and intersex status.

The fact that there is no such Commonwealth law means that the Government is currently failing in its duty to protect LGBTI Australians from vilification.

Finally, I note that this answer is, in some respects, contrary to the intention of “Question 2-2: [w]hich Commonwealth laws unjustifiably interfere with freedom of speech, and why are these laws unjustified?” because it instead proposes an additional area where freedom of speech should be limited.

I submit that such an answer is necessary to redress the imbalance contained in the Terms of Reference, and Issues Paper, because the right to freedom from vilification is equally worthy of recognition, and protection, in Commonwealth law. It is a right that should be extended to LGBTI Australians as a matter of priority.

  1. The Commonwealth Government’s tacit endorsement of discrimination, by religious organisations, against lesbian, gay, bisexual and transgender (LGBT) Australians

[NB This topic relates to Chapter 3: Freedom of Religion, and its questions:

  • What general principles or criteria should be applied to help determine whether a law that interferes with freedom of religion is justified?
  • Which Commonwealth laws unjustifiably interfere with freedom of religion, and why are these laws unjustified?]

I acknowledge the fundamental importance of the right to freedom of religion. However, just as importantly, I support the statement on page 31 of the Issues Paper that:

“[f]reedom of religion is fundamental, but so too is freedom from discrimination on the grounds of gender, race, sexual orientation or some other protected attribute. Freedom from discrimination is also a fundamental human right.”

Indeed, the case at paragraph 3.20 on the same page, namely R v Secretary of state for education and employment; ex parte Williamson (2005) from the UK, provides a useful formulation:

“… there is a difference between freedom to hold a belief and freedom to express or ‘manifest’ a belief. The former right, freedom of belief, is absolute. The latter right, freedom to manifest, is qualified. This is to be expected, because the way a belief is expressed in practice may impact on others.”

Unfortunately, I do not believe that Australian law currently strikes the right balance between respecting the right to freedom of religion, and protecting others from the harms caused by the manifestation of those beliefs, including through breaches of the right to non-discrimination on the basis of sexual orientation, gender identity and intersex status.

Specifically, I am concerned that the broad exceptions and/or exemptions which are provided to religious organisations under Commonwealth, state and territory anti-discrimination laws, including those protections added by the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, are far too generous.

In practice, these exceptions provide Government approval and endorsement of the discriminatory treatment of lesbian, gay, bisexual and transgender (LGBT) Australians by religious bodies in a large number of areas of public life[5].

For example, the combined impact of sub-section 37(1)(d) of the amended Sex Discrimination Act 1984[6] and section 38 of the same law (which applies to educational institutions established for religious purposes), means that, according to Commonwealth law:

  • Religious schools can freely discriminate against lesbian, gay, bisexual and transgender students, including expelling those students simply for being who they are;
  • Religious schools can also freely discriminate against LGBT staff members, including by refusing to provide or terminating their employment, where sexual orientation and gender identity is completely irrelevant to the ability of that person to perform the duties of the role;
  • Religious health and community services can similarly discriminate against both LGBT employees/potential employees, as well as LGBT individuals and families accessing these services, with impunity; and
  • Religious aged care services can discriminate against LGBT employees or potential employees.[7]

It is difficult to see how these exemptions, which allow LGBT people to be discriminated against simply as they seek to obtain an education, or access healthcare (which are themselves fundamental international human rights), and to be treated unfairly in employment in a large number of jobs across a wide range of areas, is not a gross breach of their human rights.

Religious exceptions and exemptions under Commonwealth, state and territory anti-discrimination laws allow serious harm to be caused to LGBT Australians, on a day-to-day basis and across multiple spheres of public life, and, I submit, should be significantly curbed.

To this end, I believe the religious exemptions which are included in sub-sections 37(1)(a),(b) and (c) of the Sex Discrimination Act 1984[8], if supplemented by exemptions covering how religious ceremonies are conducted, are both more justifiable in being better targeted to protecting freedom of religious worship itself, and less likely to result in harm to LGBT people through the breach of their right to non-discrimination across broad areas of public life. These are the only religious exemptions that, I believe, should be retained.

This, much narrower, form of religious exemptions would, in my view, also be a more appropriate outcome of a system of human rights that seeks to both protect fundamental rights, and promote the responsibility not to infringe upon the fundamental rights of others.

Finally, as with my previous answer, I note that this discussion is potentially contrary to the intention of “Question 3-2: Which Commonwealth laws unjustifiably interfere with freedom of religion, and why are these laws unjustified?” because it highlights an area where, arguably, freedom of religion should be further restrained.

I believe that providing this answer is nevertheless important because, in Australia, freedom of religion is not unduly limited. Instead, freedom of religion is unjustifiably privileged, including where it tramples upon the rights of others, and especially the rights of lesbian, gay, bisexual and transgender Australians not to be discriminated against in public life.

A mature discussion of rights and freedoms would recognise this serious imbalance and seek to redress it, by ensuring that religious exceptions to and exemptions from anti-discrimination law only protected genuine freedom of religious worship, not establishing a supposed ‘right’ to discriminate against people on the basis of sexual orientation and gender identity.

  1. The gross violation of human rights of asylum-seekers and refugees, including LGBTI refugees, by the Commonwealth Government

I am not an expert in migration and refugee law, nor in the international human rights instruments that apply in this area.

Nevertheless, I know enough about this subject matter to submit that:

  • Seeking asylum is a human right, and is not a criminal act, irrespective of the manner of arrival (whether by plane or by boat),
  • Responding to people exercising their right to seek asylum by detaining them in offshore processing centres, indefinitely, in inhumane conditions, and without free and fair access to justice, is a fundamental breach of their human rights, and
  • An inquiry into the encroachment by Commonwealth laws upon traditional rights and freedoms would be incomplete without a thorough examination of this issue.

As a long-term LGBTI advocate and activist, I also feel compelled to raise the specific issue of LGBTI asylum seekers and refugees being processed and ultimately resettled in countries that criminalise homosexuality, namely Nauru and Papua New Guinea.

As I have written to several Commonwealth Immigration Ministers, under both Labor[9] and Liberal-National[10] Governments, such a policy clearly abrogates the responsibilities that the Commonwealth Government has towards LGBTI asylum-seekers.

From my letter to then Minister for Immigration the Hon Scott Morrison MP:

“… the mistreatment of LGBTI asylum seekers and refugees raises particular problems, problems that do not appear to be recognised by the Australian Government. Nor does there appear to be any evidence the Government is taking action to remedy them.

Even if the offshore processing and permanent resettlement of refugees continues, this must not include the processing and resettlement of LGBTI asylum seekers and refugees in countries which criminalise homosexuality (which both PNG and Nauru currently do).

If you, as Minister for Immigration and Border Protection and therefore Minister responsible for the welfare of asylum seekers and refugees, cannot guarantee that sections 210 and 212 of the PNG Penal Code do not apply to detainees on Manus Island, then you cannot send LGBTI people there in good conscience.

If you, as Minister for Immigration and Border Protection, cannot guarantee that LGBTI asylum seekers and refugees will not be subject to homophobic bullying and harassment, and will be free to lodge claims for protections on the basis of persecution due to their sexual orientation, gender identity or intersex status, then you must not detain them in such facilities.”

[End extract]

As I indicated at the beginning of this section, I am not an expert in this area of law, and therefore am not in a position to provide a more thorough analysis of the (multiple) breaches of human rights law involved in the offshore processing and resettlement of asylum seekers and refugees. I am confident, however, that there will be a number of submissions from human rights and refugee organisations in coming weeks that will do exactly that.

Nevertheless, I felt obliged to include this issue in my submission, given both the severity of the human rights breaches involved, and because of their particular impact on LGBTI asylum seekers and refugees, whose only ‘crime’ is to have sought the protection of our Government.

In conclusion, I wish to thank the Law Reform Commission again for the opportunity to provide this submission, and consequently to raise issues of concern for LGBTI people, namely the absence of anti-vilification protection in Commonwealth law, the breach of our right to non-discrimination because of religious exemptions in the Sex Discrimination Act, and the mistreatment of asylum seekers and refugees, including LGBTI refugees, by the Commonwealth Government.

I look forward to these issues being addressed in the inquiry’s Final Report, to be released by the end of 2015.

Sincerely

Alastair Lawrie

[1] Full submission at: https://alastairlawrie.net/2014/10/27/submission-to-rights-responsibilities-2014-consultation/

[2] Human Rights Committee, Toonen v Australia, Communication No. 488/1992, UN Doc CCPR/C/50/D/488/92 and Human Rights Committee, Young v Australia, Communication No. 941/2000, UN Doc CCPR/C/78/D/941/2000.

[3] “Offensive behaviour because of race, colour or national or ethnic origin.

  • It is unlawful for a person to an act, otherwise than in private, if:
  • the act is reasonably likely, in all the circumstances, to offend, insult, humiliate, or intimidate another person or a group of people; and
  • the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.”

[4] Full submission at: https://alastairlawrie.net/2014/04/24/dont-limit-racial-vilification-protections-introduce-vilification-protections-for-lgbti-australians-instead/

[5] Noting that the religious exemptions contained in the Sex Discrimination Act 1984 do not apply to intersex status, only to sexual orientation and gender identity.

[6] Which provides that “[n]othing in Division 1 or 2 affects… any other act or practice of a body established for religious purposes, being an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibility of adherents of that religion.”

[7] Noting that the religious exemptions contained in the Sex Discrimination Act 1984 do not apply to LGBT people accessing aged care services.

[8] “Nothing in Division 1 or 2 affects:

  • the ordination or appointment of priests, ministers of religion or members of any religious order;
  • the training or education of persons seeking ordination or appointment as priests, ministers of religion or members of a religious order;
  • the selection or appointment of persons to perform duties or functions for the purposes of or in connection with, or otherwise to participate in, any religious observance or practice…”

[9] My letter to Labor Immigrations Ministers, the Hon Chris Bowen and the Hon Brendan O’Connor from 2012 and 2013: https://alastairlawrie.net/2012/09/07/letter-to-chris-bowen-on-lgbti-asylum-seekers/

[10] My letter to then Immigration Minister the Hon Scott Morrison from February 2014: https://alastairlawrie.net/2014/02/02/letter-to-scott-morrison-about-treatment-of-lgbti-asylum-seekers-and-refugees-sent-to-manus-island-png/

Submission to Australian Human Rights Commission Sexual Orientation, Gender Identity and Intersex (SOGII) Rights Consultation

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One of my favourite campaigns of recent times – It Gets Better – performs a valuable role, letting vulnerable LGBTI youth know that, while the homophobia, biphobia, transphobia and intersexphobia they may be experiencing is awful, for most of them, it will get better. I emphasise the word most here because we should always remember that it does not get better for everyone.

Meanwhile, as the LGBTI movement itself ‘ages’, many of us are increasingly celebrating the past, and reflecting on significant community milestones (such as last year’s 30th anniversary of the decriminalisation of male homosexuality in NSW, or the 40th anniversary of Sydney’s Gay & Lesbian Mardi Gras which is now only three years away). But, while absolutely necessary, looking backwards should never obscure the challenges that remain ahead.

This consultation, including an examination of legislation, policies and practices by government(s) that unduly restrict sexual orientation, gender identity and intersex rights, provides an opportunity to highlight some of the major obstacles which continue to prevent LGBTI Australians achieving full equality. In this submission, I will concentrate on six such areas:

  1. Involuntary or coerced sterilisation of intersex children

These unjustified practices – surgeries performed with the aim of ‘normalising’ intersex children according to the expectations of their parents, their doctors, and/or society at large, so that they conform to an exclusionary man/woman binary model of sex – are human rights abuses, plain and simple.

Obviously done without the child’s consent, such practices can involve sterilisation, as well as other ‘cosmetic’ (ie unnecessary), largely irreversible surgery on genitalia to make their bodies fit within the idea of what a man or woman ‘should’ be, ignoring the individual involved and their fundamental rights to bodily integrity, and personal autonomy.

That these practices continue in 2015 is abhorrent – and the fact the Commonwealth Government has yet to formally respond to the Senate’s 2013 Report into this issue (http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Community_Affairs/Involuntary_Sterilisation/Sec_Report/~/media/Committees/Senate/committee/clac_ctte/involuntary_sterilisation/second_report/report.ashx) is, or at least should be, a scandal.

  1. Restrictions on the rights of transgender people

Another group within the LGBTI community whose rights continue to trail those whose identities are based on sexual orientation (lesbian, gay and bisexual people) are transgender Australians.

This includes the fact there continue to be ‘out-of-pocket’, in many cases quite significant, expenses for medical support for trans* people simply to affirm their gender identity. This is a denial of their human rights – access to trans* surgeries and related medical services should not be restricted by the capacity to pay, but instead should be fully publicly-subsidised through Medicare.

The ongoing requirement that married transgender Australians must divorce their spouses in order for their gender identity to be legally recognised is also a fundamental breach of their rights, and must end.

  1. Processing and resettlement of LGBTI refugees in countries which criminalise homosexuality

Australian Governments, of both persuasions, are guilty of violating the human rights of LGBTI refugees. These are people who are (often) fleeing persecution on the basis of their sexual orientation, gender identity or intersex status, and seeking our protection.

Australia’s response? To detain them, indefinitely, in inhumane prison camps on Nauru and Manus Island. For many, while detained they are at risk of prosecution under the laws of Papua New Guinea and/or Nauru, both of which continue to criminalise male-male intercourse. Even after they are found to be refugees, they are then ‘resettled’ in these countries, in effect exposing people who have fled persecution to potentially more persecution.

While I believe the offshore processing and resettlement of all refugees is unjust, it should be recognised it has a disproportionately negative impact on LGBTI refugees.

  1. Denial of the right of LGBTI students to an inclusive education

It is encouraging that greater numbers of young LGBTI people feel comfortable in disclosing their status at an earlier age – and for some, that they attend genuinely inclusive schools. However, this inclusion is by no means universal.

For example, the recently developed national Health & Physical Education curriculum does not even include the words lesbian, gay or bisexual, and does not guarantee students will be taught comprehensive sexual health education (even omitting the term HIV). This is a massive failure to ensure all students learn vital information that is relevant to their health.

Similarly, while the national Safe Schools Program is a welcome initiative to counter homophobia and bullying, participation in the program is optional, with most schools (and even some entire jurisdictions) opting out. The right to attend school free of discrimination should not depend on a student’s geographic location, or their parent/s’ choice of school.

Finally, religious exceptions to anti-discrimination legislation (in all jurisdictions outside Tasmania), mean many LGBTI students are at risk of discrimination, by their school, simply for being who they are.

  1. Limitations on anti-discrimination protections

Students are not the only LGBTI individuals let down by Australia’s current anti-discrimination framework. These same religious exceptions mean that, in most jurisdictions, LGBTI people can be discriminated against in a wide range of areas of public life, both as employees and people accessing services, in education, health, community services and (as employees) in aged care.

The attributes which are protected under anti-discrimination law also vary widely, with intersex people only truly protected under Commonwealth and Tasmanian law, different definitions of transgender (including extremely narrow protections in Western Australian legislation), and NSW excluding bisexual people altogether.

Finally, only four jurisdictions have vilification protections for (some) members of the LGBTI community – with no Commonwealth LGBTI equivalent of section 18C of the Racial Discrimination Act.

  1. Ongoing lack of marriage equality

I include this not because I consider it as important as the issues listed above, but simply as someone who has been engaged to be married for more than five years – and has no idea how much longer he will have to wait to exercise the same rights as cisgender heterosexual couples, with the only difference being who I love. Marriage discrimination is wrong, it is unjust, and it must go.

This submission is by no means comprehensive – there are a variety of other issues which I have excluded due to arbitrary word length restrictions (including mental health issues, anti-LGBTI violence, and discrimination against rainbow families – with my partner and I able to adopt in Sydney, but not Melbourne or Brisbane).

In conclusion, while it does get better, and over time, it most certainly has got better, there are still many ways in which the rights of LGBTI Australians continue to be denied – and about which we, as LGBTI advocates and activists, should remain angry, and most importantly, take action.

Human Rights Commissioner Tim Wilson, who is leading the consultation on SOGII Rights

Human Rights Commissioner Tim Wilson, who is leading the consultation on SOGII Rights

NB Public submissions to the AHRC SOGII Rights consultation close on Friday 6 February. For more details, head to: <https://www.humanrights.gov.au/sogii-rights

For more information on some of the topics listed above, see my previous posts on:

– Submission to Involuntary and Coerced Sterilisation of Intersex People Senate Inquiry <https://alastairlawrie.net/2013/07/01/submission-to-involuntary-and-coerced-sterilisation-senate-inquiry/

– Letter to Scott Morrison About Treatment of LGBTI Asylum-Seekers and Refugees Sent to Manus Island <https://alastairlawrie.net/2014/02/02/letter-to-scott-morrison-about-treatment-of-lgbti-asylum-seekers-and-refugees-sent-to-manus-island-png/

– Letter to Minister Pyne Calling for COAG to Reject Health & Physical Education Curriculum Due to Ongoing LGBTI Exclusion <https://alastairlawrie.net/2014/12/09/letter-to-minister-pyne-calling-for-coag-to-reject-health-physical-education-curriculum-due-to-ongoing-lgbti-exclusion/

– The Last Major Battle for Gay & Lesbian Legal Equality in Australia Won’t be about Marriage <https://alastairlawrie.net/2014/02/26/the-last-major-battle-for-gay-lesbian-legal-equality-in-australia-wont-be-about-marriage/  and

– Bill Shorten, Will you Lead on Marriage Equality? <https://alastairlawrie.net/2015/01/24/bill-shorten-will-you-lead-on-marriage-equality/

Bill Shorten, Will You Lead on Marriage Equality?

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The Hon Bill Shorten MP

Leader of the Opposition

PO Box 6022

House of Representatives

Parliament House

CANBERRA ACT 2600

Saturday 24 January 2015

Dear Mr Shorten

PLEASE SUPPORT A BINDING VOTE IN FAVOUR OF MARRIAGE EQUALITY AT THE 2015 ALP NATIONAL CONFERENCE

Today marks six months until the Australian Labor Party is scheduled to hold its next National Conference. This Conference will determine the party’s formal position on a large number of important issues ahead of next year’s election.

One of these issues is actually unfinished business from the previous National Conference, held in December 2011, and that is the position that the ALP adopts on marriage equality.

While that gathering took the welcome step of making support for marriage equality an official part of the platform, it also immediately undermined that policy stance by ensuring all MPs were to be given a conscience vote when it came before Parliament.

That decision – to ‘support’ marriage equality, but then make that support unenforceable – guaranteed that any Bill would fail in the last Commonwealth Parliament, and continues to make passage in the current Parliament extremely difficult (even with a potential, albeit increasingly unlikely, Liberal Party conscience vote).

However, you, and the delegates to this year’s National Conference, have the opportunity to right that wrong. And make no mistake, the conscience vote is inherently wrong, not just because of its practical impact in making legislative change unobtainable, but also because it is unprincipled, and un-Labor.

Having a conscience vote on something like marriage equality, which is a matter of fundamental importance for many members of the lesbian, gay, bisexual, transgender and intersex (LGBTI) community, says that our human rights are optional, our equality is optional.

A conscience vote makes it clear that homophobia, biphobia, transphobia and intersexphobia are acceptable, that the second-class treatment of our relationships is officially condoned, that Labor Party MPs are free to treat LGBTI Australians as ‘lesser’ simply because of who we are. In essence, a conscience vote on marriage equality is unconscionable.

A non-binding vote on marriage equality is also ‘un-Labor’ because it is contrary to the principles of collective organising upon which the party is founded. Ideas of solidarity and being ‘stronger together’ are supposed to reflect core philosophy, not simply act as slogans, and definitely not something that is abandoned simply because some caucus members are so homophobic they cannot abide the thought that LGBTI people might be their equal.

A conscience vote on this issue, from a party that adopts binding votes on nearly everything else (from refugee policy to climate change and almost all things in between), also makes it difficult for the Australian community, and the LGBTI community in particular, to take the platform position in favour of marriage equality seriously.

This is something that can, and must, be changed at this year’s National Conference, given only it has the power to introduce a binding vote in favour of marriage equality for all ALP MPs.

Acknowledging that there will be groups both inside and outside the ALP who will strongly oppose any moves to support full LGBTI equality, achieving a binding vote on marriage equality will be difficult, and therefore requires the support of a party leader who is willing to do just that, to ‘lead’.

Which makes the question at the heart of this letter: Bill Shorten, will you lead on marriage equality?

There is cause for optimism in that you are already part-way there. Unlike your equivalent at the 2011 Conference, Julia Gillard, who adopted the worst possible position in opposing both marriage equality and a binding vote, you were one of the first ministers to express personal support for the right of all people to marry, irrespective of sexual orientation, gender identity or intersex status.

It’s time for you to take the vital next step, to back up this personal commitment with meaningful action, to use the influence of your position as the Parliamentary Leader of the Australian Labor Party to support a binding vote in favour of marriage equality, thereby declaring once and for all that LGBTI human rights are not optional, that LGBTI equality is absolutely not optional.

Doing so could only enhance your credibility as a leader, because it would show you were unafraid to take on people like Chris Hayes and Joe Bullock, who attempt to blackmail the party by saying they would rather cross the floor than vote for equality, and that you were willing to stand up to the SDA, a union that should spend more time looking after the interests of its members, and less resources and energy on opposing the right of LGBTI-inclusive couples to wed.

It would also show the public that when you make public commitments, when you support a position on an important policy issue like marriage equality, you are ready to take action and do what is required to make sure it happens.

Finally, if you were to support a binding vote on marriage equality it would only heighten the contrast between yourself and Prime Minister Tony Abbott, a ‘yesterday’s man’ who is so homophobic he remains personally committed to denying the right of his own sister to get married. Such a contrast would surely help you at the ballot box in 2016.

In short, the option to support a binding vote on marriage equality is full of opportunity, with many possible benefits and few, if any, adverse consequences. I sincerely hope it is an opportunity you are willing to grasp, and grasp firmly.

I started this letter by noting one anniversary – that there are now exactly six months left until the 2015 ALP National Conference. I want to conclude by telling you about another, one that probably doesn’t mean much to you, but means everything to me.

Yesterday marked the fifth anniversary of my engagement to my fiancé Steve. On 23 January 2010, he made me an incredibly happy man by saying “Of course I will” to my proposal. But, here we are five years later, and we still have no idea how many more years we will be left waiting before we can both say “I do”.

To put that in perspective, you married Chloe Bryce in November 2009, roughly two months before my engagement to Steve. Which means that, for almost the entire time you have been married, we have not been – for the simple reason that you love a woman, and I love a man.

But there is another important difference. While I have absolutely no control over whether you have the right to marry, or when you might be permitted to do so, you exert a significant amount of influence over the existence, and timing, of Steve and my wedding.

As Labor Party Leader, in this a National Conference year, you have the ability to help steer the party towards a binding vote, thus correcting the gross error of the 2011 Conference decision to support a conscience vote. You can make marriage equality a genuine possibility in 2016 or early 2017, rather than something which will continue to be delayed until 2018, 2019 or even into the 2020s.

For the benefit of Steve and myself, and thousands of other LGBTI-inclusive couples who are still waiting for the same right to marry which you and other couples can take for granted, please support a binding vote in favour of marriage equality at the 2015 National Conference, and help make our long-overdue weddings a reality.

Sincerely

Alastair Lawrie

Will Bill Shorten lead on marriage equality, or will he let this opportunity slip through his grasp?

Will Bill Shorten lead on marriage equality, or will he let this opportunity slip through his grasp?

NB If you would like to read further about why I believe a binding vote is essential to achieve marriage equality, please read “Hey Australian Labor, It’s Time to Bind on Marriage Equality”: <https://alastairlawrie.net/2014/07/13/hey-australian-labor-its-time-to-bind-on-marriage-equality/

And to see a more comprehensive LGBTI agenda for the 2015 ALP National Conference, you can go to “15 LGBTI Priorities for ALP National Conference 2015”: <https://alastairlawrie.net/2014/09/12/15-lgbti-priorities-for-alp-national-conference-2015/

Review – Looking, Season One

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12 months after its initial screening, and on the eve of season two, how does the first season of Looking (HBO) stand up to scrutiny on repeat viewing?

The answer is, surprisingly well. Looking was always going to be judged according to an incredibly high standard – not necessarily by TV critics, but definitely by members of the gay male community, looking for an accurate representation of ‘our’ lives, right now, on the small screen.

By and large, on this front, it was successful. The major characters were plausible (albeit with one exception, see below), and the storylines were similarly realistic (again with one exception).

It dealt with issues which ‘we’ are dealing with (including relationships in the era of marriage equality, and the societal mores and pressures that it brings, job and financial insecurity, and the ever-present, if just off-screen, HIV) and, even if on some of these it used language that was less than desirable (for example, Patrick’s conflation of HIV and AIDS, or some of the descriptions of CJ’s sex-work), it is nevertheless language that is used by (some of) us in the real world.

It didn’t hurt that the cast were attractive, either – let’s be honest, a television show about the gay community in San Francisco was always going to focus on the ‘good looking’. But even in this respect I didn’t find them impossibly or unrelatably so.

In short, the main strength of Looking is that it is a show that is both about us, and explicitly for us. Although by ‘us’ in this context I mean gay men in their 20s, 30s and 40s: it is (thankfully) not another production solely focused on young people ‘coming out’; despite the character of Lynn nor is it largely about older members of the community; and as has been pointed out by several (vocal) lesbian friends, it is very definitely not about, or for, them either.

Unlike some other programs about gay male life that have come before, it also doesn’t appear as though it is attempting to ‘explain’ us to outsiders, or that it is trying to use ‘shock value’ to gain a mainstream audience.

Instead, Looking is comfortable enough to be made, and made well, for the gay male community. Given the number of ‘out’ actors and others associated with the production, it even feels a little bit like a show by ‘us’ (which is another point of difference with some of the other shows gone by).

Of course, whether a television program like this, which so neatly fits into this ‘niche’ is sustainable, even as a small cog in the larger machine that is HBO, is questionable – and the ratings for season two will likely be make or break. For as long as it lasts, however, I intend to enjoy the ride.

Turning to some of the particular strengths of season one, it is hard to go past the impressive writing. Through eight very short episodes (of roughly 25 minutes or less), we were given several fully-formed characters, with dialogue that usually rang true. The humour (especially via Doris), and the pop cultural references, were spot on (and yes, that includes the multiple tributes to the Golden Girls).

But it was more than that – there was also subtly, and obvious care. One of my favourite conversations was where Dom met Lynn in the bathhouse, and particularly when they discuss the 1970s and early 1980s heyday of that scene:

Dom: It must have been cool back then.

Lynn: Back then? Suddenly I feel like I’m one hundred and three.

Dom: Oh, I’m sorry, I didn’t…

Lynn: But it was, it really was… and then it wasn’t.

It takes a skilful degree of restraint to keep this description of the impact of HIV/AIDS on San Francisco so simple, and enormous – and well-placed, as it turns out – confidence in the ability of the actors (and particularly Scott Bakula) to convey its poignancy.

One other example of the writing conveys what I was discussing earlier – that Looking is a show about us, for us – and that is one conversation among many in ‘Looking for the Future’ (episode five), with Patrick and Richie walking through Golden Gate Park as part of their day-long ‘date’:

Patrick: But I feel like I don’t want to know about my parents’ sex life, so why do they need to know about mine.

Richie: You know your parents meeting your boyfriend has nothing to do with your sex life.

Patrick: Yeah, I know, I know…

Richie: It’s more about them meeting the person that you love, and care about, and share everything with.

Patrick: Yes, no, I get it. No I get it. (long pause) I don’t know, I feel like for parents though it is almost about the sex. Even if they are meeting a boyfriend, they’re just imagining that dick up your ass.

Richie: Your parents are obsessed with sex I think.

Patrick: Maybe. I think everyone’s is. Your like “I’m gay” and they’re like “Oh, so you’re butt-fucking now.”

Even the best writing though can be let down without the acting talent to match – and the casting directors for Looking did their job superbly. The leads do everything they are supposed to (especially Jonathan Groff and Murray Bartlett), but being honest once more, it is the supporting cast that steals the show.

Scott Bakula is perfect as the business partner/love interest Lynn to Bartlett’s Dom, while OT Fagbenle does a commendable job of bringing Agustin’s ‘wronged’ boyfriend to life. Russell Tovey suits the role of Patrick’s charming, yet slightly sleazy, boss (although perhaps Kevin was used too much as plot device and not enough as a stand-alone character, something which will hopefully be remedied in season two), while Raul Castillo inhabits the sweet, yet somewhat temperamental, Richie.

But it was of course Lauren Weedman, as Doris, who emerges as the true star of the first season, with too many brilliantly sarcastic one-liners to mention here. And, with “Dom’s worth it… He’s just, he’s worth it”, who doesn’t want a best friend like Doris?

Other strengths of Looking season one include the production values – it is clear that this is a (well-funded) HBO production, from the film-quality cinematography, to the attention to detail in costume and set design. The city of San Francisco, and surrounds, is almost an actor in its own right (if the producers didn’t secure funding from the Tourism Board of San Francisco, well, they weren’t doing their job properly). And the music is uniformly amazing (making it almost criminal that, as yet, there doesn’t appear to be an official soundtrack).

One final strength that I feel compelled to mention is the Patrick/Richie ‘date’ (in Looking for the Future, as touched on above), where for 25 minutes they are almost the only two people on screen. It is a beautiful paean to the early days of love – and one that makes much more sense when the involvement of Andrew Haigh (who wrote and directed the British film Weekend) is taken into account.

Of course, not everything about Looking season one worked. The biggest, and most obvious, problem was Agustin. It is understandable (and for dramatic purposes, almost obligatory) that one of the lead characters is a self-professed ‘fuck-up’, but he was so unlikeable, with so few redeeming features, that it made it difficult to believe Patrick and Dom would still be friends with him.

Indeed, Agustin was so ‘unappealing’ in personality that, as well as feeling sorry for Frankie J Alvarez for portraying him (lest anyone in real life mistook him for the character), I am left to hope they spend the necessary time to ‘rehabilitate’ his character in season two (it will be especially interesting to see how the addition of the officially “too gay to function” Damian aids in this recovery effort).

Other ‘flaws’ include the sub-plot in episode two – Looking for Uncut – which, as the title suggests, essentially revolved around Patrick’s supposed lack of knowledge of, and then almost instantaneous fetish-isation of, Richie’s presumed lack of circumcision. While overall Patrick is written as naïve, he’s still a 29 year old, sexually-active gay man – and this complete lack of sophistication is not just implausible, it’s borderline silly.

I found the pace of the final episode (Looking Glass) somewhat off-putting – after a season which developed slowly, taking time to explore characters and situations at a ‘natural’ pace, the eighth episode felt far too rushed by comparison (to the extent that I suspect that the original script may have been written for a season of nine or even 10 episodes).

Finally, I am also aware of a range of criticism – which appears to be warranted – that, despite the inclusion of multiple Hispanic characters, Looking season one was nevertheless an overly ‘white’ show. Here’s hoping that season two delivers greater ethnic diversity (including more than just Owen in terms of Asian-American characters).

Overall though, and despite these weaknesses, Looking season one was generally good, with moments of greatness. About and for the gay male community, it was successful in reflecting our lives back to ‘us’, portraying characters with which ‘we’ could identify (my fiancé and I can see ourselves in Richie and Patrick respectively, to the extent that we even instinctively adopt each character’s side in their arguments).

The first season of Looking deserves to be mentioned among the best gay male television shows of all time – and I for one am looking forward to seeing where the characters, and storylines, head in season two.

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LGBTI Highs & Lows of 2014

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A short final post to bring to a close this blog for another year. As always, the past 12 months have been incredibly busy, having seen significant achievements in LGBTI rights in some areas, and a disappointing lack of progress in others. The following are my personal views on a couple of the major highlights of 2014, two ongoing ‘lowlights’, and one item of unfinished business.

  1. NSW Finally Repeals the Homosexual Advance Defence

In May, NSW Parliament passed the Crimes Amendment (Provocation) Act 2014, finally removing the homophobic and biphobic ‘homosexual advance’ or ‘gay panic’ defence from our statute books. This was a long overdue reform, and is testament to the hard work of many, many LGBTI activists, and organisations (including, but not limited to, the NSW Gay & Lesbian Rights Lobby), over the past 15-20 years.

From my own perspective, I was happy to play a small role as part of the overall movement to abolish this discriminatory law. I was one of 52 individuals and organisations to lodge a submission to the Parliamentary inquiry into the Partial Defence of Provocation in 2012 (submission here: https://alastairlawrie.net/2012/08/10/submission-on-homosexual-advance-defence/ ), and also made a submission to the then Attorney-General on the draft Crimes Amendment (Provocation) Bill in late 2013 (submission here: https://alastairlawrie.net/2013/11/14/submission-on-crimes-amendment-provocation-bill-2013-re-homosexual-advance-or-gay-panic-defence/ ).

Now that NSW has finally removed this stain from the Crimes Act, it is time for Queensland and South Australia to also consign the homosexual advance defence to the dustbin of history.

  1. Victoria and NSW Pass Legislation Allowing Historical Convictions for Homosexual Sex to be Expunged

This was another long overdue law reform, and one that is essential to help remedy some of the injustice caused, both by the criminalisation of male-male sexual intercourse (with decriminalisation taking effect in Victoria in March 1981, and in NSW in June 1984), and also by the differential age of consent post-decriminalisation (with the age of consent equalised in Victoria in 1991, and in NSW, shamefully, not until 2003).

This achievement belongs primarily to those campaigners in Victoria who kept the issue alive for many years, if not decades (including Jamie Gardiner, someone whom I am privileged to be able to call a friend and mentor), and who put in the legal policy development work over the past couple of years (including Anna Brown, of the Victorian Gay & Lesbian Rights Lobby and the Human Rights Law Centre), among numerous others. The NSW reforms were able to successfully ‘piggyback’ on this advocacy south of the border.

For my part, I was able to pursue this issue as the Policy Working Group chair of the NSW Gay & Lesbian Rights Lobby 2012-2014, as well as writing to the new Premier, Mike Baird, in May of this year calling for a party vote in favour of Bruce Notley-Smith’s Bill (letter here: https://alastairlawrie.net/2014/05/25/letter-to-nsw-premier-mike-baird-re-lgbti-equality-and-conscience-votes/ ).

But I am perhaps most proud that it was a motion that I drafted which was passed at ALP State Conference in July which ensured the Labor Opposition would vote, as a bloc, in favour of this reform – although it would be remiss of me not to say that it was Penny Sharpe’s advocacy behind the scenes that ensured this motion was successful.

As with the homosexual advance defence, it is now up to other states to similarly pass legislation to allow men affected by these laws to have their convictions expunged. And for Queensland, this must also include amendments to finally introduce an equal age of consent (with a higher age of consent for anal intercourse still in force there).

  1. Australia Still Persecuting LGBTI Refugees

Onto the ‘lowlights’ of 2014 and the first could be taken from 12 months previously – and in fact it is, with Australia’s ongoing policy of sending LGBTI refugees to countries which criminalise homosexuality for processing and resettlement also featuring atop my end of year Highs & Lows from 2013 (see original post here: https://alastairlawrie.net/2013/12/27/no-1-australia-sends-lgbti-refugees-to-countries-which-criminalise-homosexuality/ ).

Sadly, the situation one year later isn’t all that different. The policy is still in breach of our international human rights obligations, is still fundamentally unjust, and is still an insult to humanity itself – both of the refugees, and ours because it is being done in our name. The Immigration Department essentially confirmed in a response to me that the Government will continue to send LGBTI refugees to Manus Island in Papua New Guinea, and to Nauru, for the foreseeable future (see my letter and their response, on behalf of Minister Scott Morrison, here: https://alastairlawrie.net/2014/02/02/letter-to-scott-morrison-about-treatment-of-lgbti-asylum-seekers-and-refugees-sent-to-manus-island-png/ ).

The only glimmers of hope at the end of another depressing year in this area are that a) Minister Morrison is today being replaced in the Immigration portfolio and b) the treatment of LGBTI asylum seekers and refugees has been receiving increased media coverage, both in LGBTI community publications (including the Star Observer and samesame) and importantly in mainstream media (with a special mention of the Guardian Australia for their ongoing work in this area).

  1. Lack of Progress on Involuntary or Coerced Sterilisation of Intersex People

This ‘lowlight’ is also taken from the 2013 list of Highs & Lows, although at that stage it was presented in a much more favourable manner, given the Senate Standing Committee on Community Affairs had only recently handed down its report on the Involuntary or Coerced Sterilisation of Intersex People in Australia (see post here: https://alastairlawrie.net/2013/12/25/no-3-senate-report-on-involuntary-or-coerced-sterilisation-of-intersex-people-in-australia/ ).

Unfortunately, 12 months on and there has apparently been little progress in this area – despite the Report itself being debated in the Senate in March, I am unaware of any formal Government response, let alone significant reforms to implement its recommendations. Let’s hope that, in 2015, the Commonwealth and State and Territory Governments all take action to ensure that the human rights of intersex children are no longer violated in this way.

  1. Campaign for the ALP to Adopt a Binding Vote on Marriage Equality

The final entry in this list of ‘Highs & Lows’ is actually an item of unfinished business, both of the past 12 months, and also stretching back to the 2011 ALP National Conference, which adopted marriage equality in the party’s platform, but then immediately undermined it by enabling members of the parliamentary party to vote against this plank of the platform for any reason whatsoever.

As I have written previously (see my major post on this topic, ‘Hey Australian Labor, It’s Time to Bind on Marriage Equality’ https://alastairlawrie.net/2014/07/13/hey-australian-labor-its-time-to-bind-on-marriage-equality/ ), it is highly unlikely that marriage equality will pass Commonwealth Parliament in this term without a binding vote for ALP MPs. Which means that the votes by the Tasmanian State ALP Conference in July, and Queensland State Conference in August, to support a binding vote were incredibly encouraging, and even the close loss in NSW in July was heartening (because, if those voting patterns were repeated across Australia, it would likely be successful at the national level).

This campaign, which I refer to as #ItsTimeToBind, will be one of the most important of 2015, as we move towards ALP National Conference in Melbourne in July. Let’s see whether Bill Shorten will stand up and be a Leader who supports the fundamental equality of lesbian, gay, bisexual, transgender and intersex Australian, without exception.

So, that brings me to the end of my writing for another year. On a personal note, I would like to say a heartfelt thank you to everyone who has read, commented (even when they have disagreed), shared and liked my posts. As you can probably tell, I enjoy writing, and I enjoy it even more when I know that people are interacting with it (and the almost 16,000 unique visitors, from 141 countries, this year is both humbling and, to be honest, a little bit exciting).

On that point, if you do enjoy reading and visiting this blog, please consider signing up (either on WordPress or via email – the subscription options for both are located at the top of the right-hand side-bar), and to stay up-to-date you can also follow me on twitter https://twitter.com/alawriedejesus . Have a happy and safe end to 2014, and let’s hope that 2015 brings with it even more progress towards full LGBTI equality, both in Australia and overseas. Thanks, Alastair

Senator Leyonhjelm’s Marriage Equality Bill undermines the principle of LGBTI anti-discrimination. Should we still support it?

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Liberal Democrat Senator David Leyonhjelm introduced his Freedom to Marry Bill 2014 on Wednesday 26 November. As the name implies, if passed it would provide lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians the freedom to marry their partner, something denied to them currently.

The fact it is being proposed by the Liberal Democrats, and not the Labor Opposition or the Greens, is seen as giving it a greater chance of securing the support of enough Liberal MPs to force Prime Minister Tony Abbott to grant a conscience vote within the Liberal Party, and therefore of having at least some chance of becoming law in 2015.

Which means we should automatically be putting our collective energies behind this Bill, in an effort to ensure its passage through parliament as quickly as possible, shouldn’t we? Well, no actually. Because, while the Leyonhjelm Bill gives marriage equality with one hand, it takes away from LGBTI non-discrimination with the other.

Alongside provisions which would grant all Australian couples the ability to get married, irrespective of sexual orientation, gender identity and intersex status, the Freedom to Marry Bill 2014 would also grant all non-government employed marriage celebrants, including civil celebrants, the ‘right’ to refuse to perform the marriages of LGBTI-inclusive couples.

Currently, section 47 of the Marriage Act 1961 restricts the right to refuse to officiate a marriage to ministers of religion, which is both increasingly irrelevant (given only 27.4% of marriages in 2014 were performed by religious celebrants) and at the very least philosophically consistent with existing exceptions to anti-discrimination laws which are granted to religious organisations.

Instead, the Freedom to Marry Bill 2014 would provide civil celebrants, who now perform 72.5% of weddings (up from 42.1% just twenty years ago), the ability to refuse to officiate marriages for LGBTI-inclusive couples. It would do so without even requiring them to be religious themselves, or to provide an explanation for their refusal – their ‘claims of conscience’ in this regard apparently trump any expectation they should perform their roles in a non-discriminatory manner.

Technically, the Bill grants religious and civil celebrants the right to reject heterosexual couples, too – and this is something that was stressed by Senator Leyonhjelm in spruiking the law to the Sydney Morning Herald in September (“[i]t’s a minor tweak but we envisage that there will be people who wish to specialise as same sex celebrants and they may not want to do conventional weddings. It will work both ways.”).

But, make no mistake, these provisions are squarely aimed at granting civil celebrants the right to refuse service to LGBTI-inclusive couples. That much is made clear by the Explanatory Memorandum to the Bill, which states that “[s]econd, it imposes no claims or burdens of conscience on those persons who object to marriages other than between a man and a woman for both religious and non-religious reasons”. There is no equivalent statement of principle setting out the ‘right’ of celebrants to refuse to perform man/woman marriages.

This view – that the provisions are aimed at allowing all celebrants to refuse LGBTI-inclusive couples (and not heterosexual couples) – is reinforced by the fact the only other specific example of refusal cited is in clause 10 of the Bill (“[i]f a chaplain refuses to solemnise a marriage because the marriage is not the marriage of a man and a woman, the chaplain must, if possible, substitute another chaplain who is willing to solemnise the marriage.”

In short, the Freedom to Marry Bill 2014 goes to great lengths to ensure that civil celebrants can refuse to officiate the marriages of LGBTI Australians, and they can do so for any reason whatsoever.

The instinctive response of many people to these changes is to say “so what, who would want their marriage officiated by someone who doesn’t approve of that marriage anyway?” And of course, there is much validity in this sentiment – as someone who is engaged to be married myself (and has been for almost five years now), I would obviously not want my wedding to be presided over by someone who opposed the fundamental equality of my relationship.

But, if we are to leave our response at that, then we are guilty both of intellectual laziness, and of misunderstanding the role of anti-discrimination protections. Because anti-discrimination laws are designed to protect people from adverse treatment on the basis of particular attributes (in this case, sexual orientation, gender identity and intersex status) in a wide range of areas across society, not simply to reinforce the understandable tendency for people to ‘choose’ employers, or goods and service providers, that are already favourable to them.

To presuppose that people have the ability to ‘choose’ is also to assume everyone has the same level of power or privilege in society that you may have. In many cases this is clearly not true – just because a highly-qualified gay man in inner-Sydney may be able to reject employment by a homophobe, does not mean a less-qualified trans* person in a regional centre with high unemployment would have the same power to do so.

With respect to the Freedom to Marry Bill 2014 in particular, just because LGBTI-inclusive couples in major cities could easily find alternative celebrants, does not mean people in small country towns, or even larger non-metropolitan centres, would have the same ‘freedom’. It is entirely conceivable that, in a place with few celebrants, all may exercise their ‘claim of conscience’ to refuse service.

Indeed, the Explanatory Memorandum concedes the possibility of lack of access to marriage due to geography in discussing the aforementioned defence chaplains provision (“[t]he requirement of ‘possibility’ recognises that there may be circumstances where a willing chaplain cannot be arranged (e.g. if the people involved are in a remote location”).

Why then should the Marriage Act 1961 allow the few civil celebrants that do exist in remote areas to refuse to perform LGBTI-inclusive weddings, imposing on those couples significant extra expense simply because of their sexual orientation, gender identity or intersex status? (After all, wouldn’t that be the definition of adverse treatment?)

There is an even larger problem with these provisions of the Leyonhjelm Bill, however. That is because there is absolutely no ideological or conceptual reason why, if the law is to recognise the ‘claim of conscience’ of a civil celebrant to refuse to officiate an LGBTI-inclusive wedding ceremony, it should not also allow goods and service providers to refuse to host or supply that wedding, for hotels or bed-and-breakfasts to deny accommodation to the couple on their honeymoon, for restaurants to deny reservations to that couple celebrating their wedding anniversary, and even to employers to be able to deny recognition to that relationship in the workplace.

All of these people can have similar, and similarly passionate, views and beliefs opposing LGBTI-inclusive marriages – and, perhaps in a preview of where Australia might be heading, all are the subject of ‘claims of conscience’ by individuals and groups against marriage equality in the United States.

If a claim of conscience exists for a civil celebrant – allowing them to treat LGBTI people unfavourably on the basis of sexual orientation, gender identity and intersex status – then, logically, it should also exist for anyone else in society who has an ‘objection’ to LGBTI equality, whether based on religion or otherwise.

Thus, the civil celebrant provisions of the Freedom to Marry Bill 2014 can be seen for what they are – a dangerous new precedent establishing a fundamental ‘right to discriminate’ against LGBTI Australians, one that goes much further than existing laws granting anti-discrimination exceptions to religious organisations, because they would allow private citizens, without any connection to organised religion, the ability to exercise this ‘right’.

In some respects, these provisions are simply the natural extension of Senator Brandis’ claims earlier in 2014 (in a different context) that “people do have a right to be bigots.” It certainly appears as if Senator Leyonhjelm was listening – with his first private member’s bill, he is promoting the right of civil celebrants to be homophobes (and biphobes, transphobes and intersexphobes, too).

This fits perfectly within his overall political approach as well – when describing the Bill in the Sydney Morning Herald he said “[i]t’s libertarian philosophy: Individuals should be able to discriminate but governments should not.”

It is therefore easy to see this move as the first step in efforts to unwind our relatively comprehensive system of anti-discrimination laws, not just in relation to sexual orientation, gender identity and intersex status, but also race, sex, disability and age (among other attributes).

The threat is that he is not alone in holding such an extremist view of – or more accurately, against – the principle of anti-discrimination generally, and anti-discrimination laws specifically. He is bound to receive significant support from more radical elements within the Liberal and National Parties (such as Senator Bernardi, and even the aforementioned Attorney-General) in this approach.

It will also be cheered on by conservatives in the media (hello Andrew Bolt) and by right-wing think-tanks, such as the Institute of Public Affairs, who hold an inordinate amount of influence over the current Abbott Coalition Government.

In fact, the current Australian Human Rights Commissioner with responsibility for sexual orientation, gender identity and intersex issues, Tim Wilson, made exactly the same arguments as Senator Leyonhjelm when appearing on behalf of the IPA at the Senate Legal and Constitutional Affairs Legislation Committee inquiry into the Human Rights and Anti-Discrimination Exposure Draft Bill in early 2013 (notable quotes including:

  • “We certainly support very strongly discrimination law related to government and the way it operates towards government, but in a broad philosophical concept we [the IPA] are not a big fan of discrimination law being imposed across civil society in the private sector. The private sector should be able to make choices…” (emphasis added)
  • “What we have made crystal clear is we believe that anti-discrimination laws should operate on government. That is different from what operates within the private sector and within a free society…”
  • “Discrimination occurs within society. Sometimes it exists for the right reasons, because there are organisational goals that people, when they freely come together and associate, believe in. People should be allowed to reasonably exercise those and they do themselves a disservice because of something that is not relative to the objective of the organisation. I think that is a very fair and reasonable principle.”
  • “[Y]ou have a human right of freedom of association, you have right of speech; I am not sure I am convinced there is a human right against discrimination, as abhorrent as it is.”)

Viewed in this context, the decision by Senator Leyonhjelm to introduce the civil celebrant ‘claim of conscience’ provisions, as part of the Freedom to Marry Bill 2014, is a very clever move – in the ‘John Howard’ sense of the word. It undermines the principle of LGBTI anti-discrimination as part of a law which simultaneously recognises a separate LGBTI right – to have our relationships treated in the same way as cisgender, heterosexual couples.

The question then is, how should we, as members of the LGBTI community, respond to this Bill? I would argue that the initial response is relatively straightforward – to call on Senator Leyonhjelm to withdraw these aspects of the legislation, so that the forthcoming debate can be solely about the principle of marriage equality, and not also the potential roll-back of LGBTI anti-discrimination laws.

If, as expected, he refuses to amend the Bill, then I believe we should be lobbying the ALP, Greens, crossbench Senators and LGBTI-friendly sections of the Coalition to vote against these provisions in the Parliament. Hopefully, enough votes can be secured on the floor to ensure marriage equality succeeds without establishing a new ‘right to discriminate’ against LGBTI people in the process.

But the most important question comes if this effort is unsuccessful – what should we do if the Bill reaches the final vote, unamended, especially if this is seen as the best chance of securing marriage equality during this term of parliament?

Should we support passage of the Freedom to Marry Bill 2014 even though it actively undermines the principle of LGBTI anti-discrimination? Or should we call for the Bill to be rejected, so that another marriage equality Bill can take its place, in full knowledge it could be delayed until 2017 as a result?

I acknowledge that this is a very difficult question to answer, and that there will obviously be a range of different responses across our community. For my part, I would choose the latter option – because I sincerely believe that the Senator Leyonhjelm Bill is so flawed, in its current state, that it should not be supported.

I write this as someone who strongly believes in marriage equality (both personally, and for our community), but who does not see this one issue as trumping other LGBTI rights which we have either already achieved, or for which we must still campaign.

It took 38 years from the passage of the Racial Discrimination Act 1975 for lesbian, gay, bisexual, transgender and intersex Australians to receive equivalent anti-discrimination protections under Commonwealth law (with the passage of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013).

To me, it is unconscionable that the very next major Commonwealth law reform concerning LGBTI rights would actively undermine the principles at the heart of the Sex Discrimination Act reforms.

Indeed, one of the most positive features of those amendments was the ‘carve-out’ which meant that Commonwealth-funded aged care services operated by religious organisations cannot discriminate against LGBT people accessing their services (unlike religious organisations in other areas).

This was important not just to protect ageing LGBT individuals and couples who need this care, but also because it set an important precedent, demonstrating that the ‘right’ for religious organisations to discriminate on the basis of sexual orientation and gender identity is not inviolable, thereby paving the way for future reforms in this area.

A victory for Senator Leyonhjelm and the extreme libertarians on the civil celebrant provisions would set an equally-important (and perhaps even more important) precedent in the other direction, establishing the ‘claim of conscience’ for private citizens to discriminate against LGBTI people, for any reason whatsoever, and emboldening them to pursue wider reforms aimed at unwinding anti-discrimination law. I believe this precedent should be denied to them, even if it means marriage equality might be delayed in the process.

Of course, I absolutely respect that other people may reach a different conclusion – that, having waited more than a decade since the Howard Coalition Government’s original homophobic ban on marriage equality in 2004, and the failure of successive Parliaments since then to remedy this injustice, people may be willing to accept the ‘claim of conscience’ provisions in this legislation as simply the price of doing business.

In fact, I suspect the majority of our community may feel that way – if so, I would accept that verdict, and agree we should actively lobby to have the Freedom of Marry Bill 2014 passed in 2015 (while making sure we strengthen our collective resolve to fight against any further moves against LGBTI anti-discrimination protections in the future).

But, as I have attempted to outline above, this is not an easy or straight-forward decision. I believe this debate – whether we are willing to accept a marriage equality Bill that undermines the principle of LGBTI anti-discrimination – is one that we must have first, before the Bill is to be voted upon.

We should not simply ‘sleepwalk’ into supporting the Freedom to Marry Bill 2014 without first considering the consequences. Nor should we automatically allow Senator Leyonhjelm to take the helm of the marriage equality push – because, while he might be an ally in allowing us to say “I do”, he also wants to allow civil celebrants to tell us that they won’t.

Senator Leyonhelm might want you to be able to say "I do", but he also believes civil celebrants should be able to tell you they won't.

Senator Leyonhelm might want you to be able to say “I do”, but he also believes civil celebrants should be able to tell you they won’t.

Letter to Minister Pyne Calling for COAG to Reject Health & Physical Education Curriculum Due to Ongoing LGBTI Exclusion

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The Hon Christopher Pyne MP

Commonwealth Minister for Education

PO Box 6022

House of Representatives

Parliament House

CANBERRA ACT 2600

C.Pyne.MP@aph.gov.au

Tuesday 9 December 2014

Dear Minister Pyne

Call for COAG to Reject Health & Physical Education Curriculum Due to Ongoing LGBTI Exclusion

I am writing to you in advance of the COAG Education Ministers Council meeting on Friday 12 December 2014 in Canberra. Specifically, I am writing to request that you, and your state and territory ministerial counterparts, reject the national Health & Physical Education (HPE) curriculum and start again.

I make this serious request on the basis that this curriculum does not ensure that all students are provided with health and physical education that is relevant to their needs, including those students that are lesbian, gay, bisexual, transgender and intersex (LGBTI).

The development of the national HPE curriculum has, like other national curricula, been a long process, with multiple stages of public consultation.

This has included:

None of these versions of the HPE curriculum have been genuinely LGBTI-inclusive. None of these three documents have even included the words lesbian, gay or bisexual. Not once. How can a national HPE curriculum support all students, including those with diverse sexual orientations, if it cannot even name them?

It must also be pointed out that none of the three drafts of the HPE curriculum have included sufficient sexual health information, with no references to sexually transmissible infections, condoms and/or safer sex and, more than 30 years into the HIV epidemic, none have even mentioned HIV or other blood borne viruses. These omissions mean Australian students, including but not limited to LGBTI students, will not be given the information that they need to stay safe in future.

Of course, the national HPE curriculum, like other curricula, underwent an additional review during 2014, after you requested that Mr Kevin Donnelly and Mr Ken Wiltshire review the entirety of the Australian curriculum (see my submission to this review here:  https://alastairlawrie.net/2014/03/13/submission-to-national-curriculum-review-re-national-health-physical-education-curriculum/).

Unfortunately, the outcome of this review, at least as far as the HPE curriculum is concerned, is far from positive (see my summary of this: https://alastairlawrie.net/2014/11/09/the-national-curriculum-review-fails-to-support-lgbti-students/).

In their report, released in October 2014, Mr Donnelly and Mr Wiltshire noted that at least one jurisdiction, one religion-based school system, and a number of other individual schools, have each rejected the inclusion of even minimal content for same-sex attracted and gender diverse students, and will oppose any attempt to introduce comprehensive sexual health education.

The national curriculum review also found that the HPE curriculum is overcrowded, and recommended that “[t]he core content should be reduced and a significant portion should become part of school-based curriculum…” This jeopardises further the few positive references that have made it into the current draft (such as the option for schools to teach students about homophobia, alongside racism, sexism and other forms of discrimination).

Finally, the national curriculum review report supported the views of some religious organisations that the HPE curriculum should grant schools even greater flexibility in how ‘sexuality education’ should be delivered, when it should be delivered (allowing schools to delay provision of this vital information), and even flexibility in who should teach it (commenting that “[w]e think this is the way forward” in response to suggestions that older teachers should deliver these topics).

The specific recommendation in this area notes “[t]he two controversial areas of sexuality and drugs education should remain, but schools should be given greater flexibility to determine the level of which these areas are introduced and the modalities in which they will be delivered…”

The net outcome of the national curriculum review, at least as it concerns Health & Physical Education, is this: a curriculum that already largely excluded LGBTI students and content, is, in practice, found to be essentially optional, with at least one jurisdiction, one religion-based school system, and other individual schools all opting-out. What LGBTI-related subject matter there is remains under threat as the content is slimmed down, while those religious schools that do teach ‘sexuality education’ will have the ‘flexibility’ to choose when it is taught, how it is taught and even by whom it is taught.

This is the exact opposite of what a national curriculum should be. A national Health & Physical Education curriculum should be a document that recognises that, no matter what state they reside in, and irrespective of the type of school they attend (government, religious or private), all LGBTI students have the fundamental right to an inclusive education, to learn about themselves and their sexual orientations, gender identities and intersex status, to be taught that who they are is okay, and not to be silenced, excluded or marginalised.

The existing version of the HPE curriculum does not even come close to recognising that right, and, as such, I believe it should be rejected and the entire curriculum development process begun again.

I call on you and the state and territory ministers attending the COAG Education Ministers Council meeting to take this serious course of action because the failure to do so will have serious consequences for the next generation of LGBTI young people and students.

I am sure you are aware young LGBTI people are at greater risk of experiencing bullying (including homophobic, biphobic, transphobic and intersexphobic discrimination) and physical abuse, are at greater risk of depression and other mental health issues and, most tragically of all, are at greater risk of attempting or committing suicide than their non-LGBTI peers.

The development of a national Health & Physical Education curriculum was an unprecedented opportunity to address some of these issues by guaranteeing that, in their classrooms at least, young LGBTI people were provided with an inclusive and understanding environment. Unfortunately, despite two public consultations and the national curriculum review, the current draft of the national HPE curriculum fails miserably to seize this opportunity.

We can do better, we should do better, we must do better, for the sake of young LGBTI people around the country, now and in coming years. Please reject the national Health & Physical Education curriculum and start again.

Sincerely

Alastair Lawrie

Will Minister Pyne listen to the needs of LGBTI students?

Will Education Minister Christopher Pyne listen to the needs of LGBTI students?

Cc: The Hon Adrian Piccoli MP, NSW Minister for Education (office@piccoli.minister.nsw.gov.au)

The Hon James Merlino MP, Victorian Minister for Education (james.merlino@parliament.vic.gov.au)

The Hon John-Paul Langbroek MP, Queensland Minister for Education, Training and Development (education@ministerial.qld.gov.au)

The Hon Peter Collier MLA, Western Australian Minister for Education (Minister.Collier@dpc.wa.gov.au)

The Hon Jennifer Rankine MP, South Australian Minister for Education and Child Development (minister.rankine@sa.gov.au)

The  Hon Jeremy Rockliff MP, Tasmanian Minister for Education and Training (jeremy.rockliff@parliament.tas.gov.au)

The Hon Joy Burch MLA, Australian Capital Territory Minister for Education and Training (BURCH@act.gov.au)

The Hon Peter Chandler MLA, Northern Territory Minister for Education (minister.chandler@nt.gov.au)