Author Archives: Alastair Lawrie

Submission to Australian Human Rights Commission’s Inquiry into Self-Harm and Suicidal Behaviour in Children

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The National Children’s Commissioner at the Australian Human Rights Commission has initiated an inquiry into intentional self-harm and suicidal behaviour in children and young people.

Submissions are due on Monday 2 June: you can find more details here: <https://www.humanrights.gov.au/intentional-self-harm-and-suicidal-behaviour-children and send your submissions to nccsubmissions@humanrights.gov.au

As you would expect, my submission has focused on the particular issue of youth suicide amongst young lesbian, gay, bisexual, transgender and intersex people. As with other submissions, I would be interested in feedback about what I have written.

Thanks, Alastair

Ms Megan Mitchell

National Children’s Commissioner

Australian Human Rights Commission

Email: nccsubmissions@humanrights.gov.au

Sunday 1 June 2014

Dear Commissioner

SUBMISSION TO INQUIRY INTO INTENTIONAL SELF-HARM AND SUICIDAL BEHAVIOUR IN CHILDREN

Thank you for the opportunity to provide a submission to your inquiry into intentional self-harm and suicidal behaviour in children.

This is an incredibly important topic, and I congratulate you, as National Children’s Commissioner, for utilising your position to shine a spotlight on this national tragedy.

I write this submission as an individual, and not on behalf of any organisation. I also write this as a gay man, and someone who, as a teenager, experienced significant mental health issues, including depression and suicide ideation, because of the severe homophobia that I experienced, particularly in high school.

Given this perspective, in this submission I will focus on the over-representation of young lesbian, gay, bisexual, transgender and intersex (LGBTI) people in intentional self-harm and suicide.

I will also make five recommendations for how to help reduce this over-representation, although obviously this is not an exhaustive list of all the possible ways in which LGBTI youth suicide may be tackled.

Please find my submission attached. I am of course willing to be contacted to discuss anything contained in this submission, at the details below.

Sincerely

Alastair Lawrie

SUBMISSION TO INQUIRY INTO INTENTIONAL SELF-HARM AND SUICIDAL BEHAVIOUR IN CHILDREN

I welcome the acknowledgement, in the Call for Submissions released on 22 April, that self-harm and suicide is a particular issue for LGBTI children and young people.

In particular, the Call for Submissions cites the 2013 Growing Up Queer report, by the Young and Well Co-operative Research Centre, in finding that, of 1,032 children and young people aged 16 to 23, 41% of participants had thought about self-harm and/or suicide, 33% had harmed themselves and 16% had attempted suicide.

These are truly shocking figures – especially that 1 in 6 young lesbian, gay, bisexual, transgender and intersex Australians had attempted suicide. However, despite being shocking, they are not particularly surprising, especially as they replicate similar findings in a range of studies over the past 15-20 years.

The over-representation of self-harm and suicidal thoughts amongst same-sex attracted and gender diverse/questioning young people has been confirmed in all three Writing Themselves In reports, produced by the Australian Research Centre in Sex, Health & Society at La Trobe University in 1998, 2004 and 2010, respectively.

The over-representation of mental health issues within the broader LGBTI community, including among its young people, has also been confirmed by both the original Private Lives: A report on the health and wellbeing of GLBTI Australians study in 2005, and Private Lives 2, released in 2012 (also produced by the Australian Research Centre in Sex, Health & Society).

As well as knowing that intentional self-harm and suicidal behaviour disproportionately affects LGBTI children and young people, we also know the cause – the pervasive homophobia, biphobia, transphobia and anti-intersex prejudice which LGBTI youth experience, within their families, amongst their peers, in the media/culture, and especially in their schools.

As reported in Growing Up Queer, “[f]or many, rejection, alienation, bullying, and harassment often led to depression, suicidal ideation, and attempted suicide. Some participants spoke openly about multiple suicide attempts as a result of negotiating their sexual/gender orientation at school, at home, and in their broader communities” (page ix).

The Writing Themselves In 3 study also found a direct link between verbal abuse and physical abuse with thoughts of self-harm. As noted on page 51: “ [a]lmost double the number of young people who had been verbally abused (40%), in comparison to those who had experienced no abuse, had thought of self-harm (22%). Three times those who had been physically abused (62%), in comparison to those who reported no abuse, had thought of self-harm.”

Writing Themselves In 3 also confirmed that “[t]he most common place of abuse remained school with 80% of those who were abused naming school. This continues the trend of increased levels of reported homophobic violence in schools (69% in 1998; 74% in 2004)” (pix, emphasis added).

By knowing the problem – the over-representation of LGBTI children and young people in intentional self-harm and suicidal behaviour – and the cause – the pervasive homophobia, biphobia, transphobia and anti-intersex prejudice which confronts young people, including (but not limited to) at school – we must start to consider the solution.

What are the best ways to protect LGBTI children and young people from discrimination, bullying and abuse on the basis of their sexual orientation, gender identity or intersex status? And what are the best ways to actively promote positive views of, and self-esteem and mental health within, LGBTI children and young people (noting that these are not necessarily the same question)?

The following are five reforms which I believe, if adopted, would help to reduce the continued over-representation of lesbian, gay, bisexual, transgender and intersex young people in self-harm and suicide:

Recommendation 1: Remove anti-discrimination exemptions/exceptions which allow religious schools to discriminate against LGBT students

As indicated above, one of the key areas where LGBTI children and young people are discriminated against is in their schools. Unfortunately, in most states and territories in Australia, religious schools enjoy legal protections which allow them to actively discriminate against LGBT students (and, it should be remembered, to discriminate against LGBT teachers and even parents too).

NB I have excluded intersex students for the remainder of this particular discussion given I understand the two jurisdictions which have explicit intersex anti-discrimination protections – Tasmania and the Commonwealth – do not allow religious exceptions to these protections.

These exemptions allow religious schools to expel LGBT students, to tell same-sex attracted and gender-diverse/questioning students that they are somehow ‘wrong’, ‘unnatural’ or even ‘sinful’, to prohibit certain behaviours or actions on the basis of sexual orientation or gender identity, and to ignore the educational and emotional needs to young LGBT people in general.

An example of this discrimination was found in the ‘Statement of Faith’ by the Penrith Christian School, which stated that: “[w]e believe that homosexuality and specific acts of homosexuality are an abomination unto God, a perversion of the natural order and not to be entered into by His people” and “[w]e believe the practice of attempting to or changing ones gender through surgical and/or hormonal or artificial means is contrary to the natural order ordained by God.”

These statements came to light, and attracted significant public scrutiny, only after the then Opposition Leader, the Hon Tony Abbott MP, launched the Coalition’s education policy there during last year’s election campaign. But, it must be pointed out that there is absolutely nothing unlawful for this school, or others like it, to adopt these principles, or to enforce policies based upon them to the detriment of the LGBT students in its classrooms.

This is because in NSW, section 56(d) the Anti-Discrimination Act 1977 states that anti-discrimination coverage for lesbian, gay and trans* people does not protect them against “any… 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.”

In an absolutely extraordinary extension of these exceptions, the NSW Act also explicitly excludes all “private educational authorities” (including non-religious bodies) from having to comply with any obligation not to discriminate on the basis of homosexuality (section 49ZO(3)) and transgender status (section 39K(3)).

Sadly, despite only being introduced last year, Commonwealth anti-discrimination protections on the basis of sexual orientation and gender identity are also fundamentally undermined by the granting of wide-ranging exemptions to religious organisations.

As well as an equivalent clause to NSW’s section 56(d) – section 38(1)(d) of the Sex Discrimination Act 1984 exempts “any… 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 susceptibilities of adherents of that religion” (although not in relation to aged care) – the Commonwealth Act also includes the following in section 38(3):

“Nothing… renders it unlawful for a person to discriminate against another person on the ground of the other person’s sexual orientation, gender identity, marital or relationship status or pregnancy in connection with the provision of education or training by an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the first-mentioned person so discriminates in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.”

In practice, both Commonwealth and NSW law gives effective carte blanche to religious schools to discriminate against, and ignore the genuine needs of, LGBT children and young people. If we are genuinely interested in the mental health and welfare of young lesbian, gay, bisexual and transgender Australians, then these exceptions must be removed.

Those who would argue against such a proposition cite ‘freedom of religion’ as somehow trumping the right of LGBT people to live their lives free from discrimination. Indeed, the then shadow, and now Commonwealth, Attorney-General, Senator the Hon George Brandis, made exactly that argument on the ABC’s QandA program in June 2013.

As I have written on numerous occasions, I strongly disagree with that argument – I do not believe that religious exemptions should extend beyond the appointment of religious office-holders or the conduct of religious ceremonies. I certainly do not believe there should exist a broad right for religious organisations to discriminate against LGBT people in public life.

However, even if some form of religious exemption or exception were to continue in the public sphere, it is incredibly difficult for anyone to make the case that the ‘freedom’ of a religious school to discriminate should override the ability of a young lesbian, gay, bisexual or transgender student to receive their education free from such discrimination – something which is and should be recognised as a fundamental right.

These are vulnerable young people, who, in the vast majority of cases, are in the process of discovering or accepting their sexual orientation and/or gender identity. In nearly all cases, they do not decide which school they attend, including whether it is religious or not (a decision which is normally made for them by their parents, often without specific knowledge of their child’s sexual orientation or gender identity). In many cases, they are also not open about their sexual orientation or gender identity at school, meaning that they are not even in a position to advocate on their own behalf when they encounter such prejudice.

In short, I think it is simply untenable to argue that the freedom of a religious school to discriminate trumps the right of LGBT students not to be discriminated against, especially when the consequence of this discrimination includes an increased risk of mental health issues, including depression, self-harm and most tragically suicide. This not a contest of equal rights, no balancing act is required – the rights of the students should always win.

In the past week, there has been discussion in the United States about trying to ‘balance’ two other supposedly competing rights – the Second Amendment ‘right to bear arms’, with the right to personal safety of others. As part of that discussion, Samuel Wurzelbacher (aka Joe the Plumber) wrote to the parent of one of the young people murdered in the Santa Barbara mass shooting and said:

“I am sorry you lost your child. I myself have a son and daughter and the one thing I never want to go through, is what you are going through now. But: As harsh as this sounds – your dead kids don’t trump my Constitutional rights.”

 

Mr Wurzelbacher’s comments have, quite understandably, attracted heavy criticism in the US, as well as around the world. From an Australian perspective, where more restrictive gun control laws have existed since the Port Arthur massacre in 1996, it is tempting to adopt a certain smugness, and look down upon the level of public debate in the US that such a comment is even possible.

But, in some respects at least, we are prepared to strike a similar bargain here when it comes to the deaths of LGBTI children and young people. We know that they are significantly over-represented in suicide numbers, and we know that the discrimination that LGBTI students experience in school is a major contributing factor to these suicides.

Yet, as a society, we are willing to turn a blind eye to this, and say that religious freedom, and specifically the ‘freedom’ of religious schools to discriminate on the basis of sexual orientation and gender identity, is more important than the lost lives of these young people. In effect, our current anti-discrimination law says that ‘dead LGBT kids don’t trump the rights of religious schools.’

It is time we recognised, and remedied, this situation. It is time we removed anti-discrimination exemptions and exceptions which allow religious schools to discriminate against LGBT people.

Recommendation 2: Amend the National Health & Physical Education Curriculum to be genuinely LGBTI-inclusive

One of the key issues to emerge from both the Growing Up Queer, and Writing Themselves In 3 reports, is the absence, or comparative lack of, a genuinely LGBTI inclusive curriculum, especially with respect to Health & Physical Education.

For example, Growing Up Queer reported that “[p]articipants indicated that sex education at school was heteronormative and focused on reproductive sex only. It was perceived as irrelevant to their needs.” Further, “[p]articipants noted that whilst they received no education about queer sexualities their identities were often ‘sexualised’, with teachers and peers making assumptions about their sexuality and treating them differently on the basis of these assumptions” (pix).

Writing Themselves In 3 confirms this comparative lack of attention: “[s]exuality education was not provided at all to 10% of participants, and when it was, only 15% found it useful. It was clear that quite conservative messages emphasizing heterosexual sex and danger are the norm in most Australian schools with a far smaller number providing messages inclusive of SSAGQ youth” (pxi).

Of course, LGBTI people and content should be visible across multiple parts of the school curriculum (including, for example, history and politics), rather than arbitrarily confined to Health & Physical Education (HPE). Nevertheless, if LGBTI students and issues are excluded from, and made invisible in, the HPE curriculum, it is difficult to imagine them being included elsewhere.

I also agree with the statement in Growing Up Queer that “[y]oung people’s access to comprehensive sexuality education in primary and secondary schooling is a right, and is central to sexual citizenship and the fostering of health and wellbeing in all young people” (pix).

Over the past two years, a new National HPE curriculum has been developed by the Australian Curriculum, Assessment & Reporting Authority (ACARA). Unfortunately, all three versions of the HPE curriculum – the original consultation draft released in December 2012, the revised consultation draft in mid-2013, and the version that was noted but not yet endorsed by COAG Ministers in December 2013 – have comprehensively failed to deliver a genuinely LGBTI-inclusive document.

For example, in none of the three versions of the HPE curriculum have the words lesbian, gay or bisexual even appeared (although, on a slightly more positive note, the most recent version of the HPE curriculum does at least include the words transgender and intersex, and, unlike an earlier version, actually distinguishes between the two).

Despite lesbian, gay and bisexual being the most common forms of identification for people whose sexual orientation is ‘not heterosexual’, these terms have never appeared in any version of this document. This is an appalling exclusion, making young people with diverse sexual orientations even more invisible in the school environment than they already are.

The aspirational ‘student diversity’ statement at the beginning of the document, which attempts to highlight the needs of ‘same-sex attracted, gender diverse or intersex’ students, is also undermined by the inclusion of a sentence noting that it “is designed to allow schools flexibility to meet the learning needs of all young people, particularly in the health focus area of relationships and sexuality” (emphasis added) and another that “[a]ll schools communities have a responsibility when implementing the HPE curriculum to ensure that teaching is inclusive and relevant to the lived experiences of all students” (emphasis added).

Both of these statements appear to leave the decision whether, and in what way, schools will include LGBTI students and content up to the schools themselves. In the first instance, whether LGBTI students and content are included at all is too important to be left to the ‘flexibility’ of the school itself.

Second, and far more importantly, the reference to ‘lived experiences’ could be argued to leave a loophole for schools to assert that, unless students first identify themselves or disclose their status as LGBTI, they do not exist in the eyes of the school and therefore the school does not have a responsibility to include them or content relevant to their needs.

This approach – apparently leaving it up to students to ‘come out’ before they are entitled to receive vital health information, despite the fact that doing so can, in many Australian jurisdictions, lead to the potential expulsion of that student, let alone other personal consequences for the student with their family or friends – fundamentally undermines the concept of health, and health education, as a universal human right.

There are multiple other problems in the draft National Health Physical Education Curriculum – including a lack of comprehensive sexual health education, and the complete absence of any references to Sexually Transmissible Infections (STIs) and Blood Borne Viruses (BBVs) such as HIV or viral hepatitis.

For more detail on the problems of the national HPE curriculum, and its exclusion of LGBTI students and relevant content, please see my submission to the ‘Students First’ review of the National Curriculum, provided at Attachment A (link here: <https://alastairlawrie.net/2014/03/13/submission-to-national-curriculum-review-re-national-health-physical-education-curriculum/ ).

This review, initiated at the request of the Commonwealth Education Minister, the Hon Christopher Pyne MP, is not due to report to him until 31 July, 2013. It will then be considered by Commonwealth and State and Territory Education Ministers at their next COAG meeting, scheduled for 12 December 2014.

That means there is still time to argue for a genuinely LGBTI-inclusive Health & Physical Education curriculum. There remains an opportunity for individuals and organisations, including the Australian Human Rights Commission, to call for a document that does not simply entrench the existing exclusion and invisibility of LGBTI students in classrooms around the country, but actively tries to provide for the needs of all students, including those with diverse sexual orientations, gender identities and those who are intersex.

I urge you, as National Children’s Commissioner, to intervene in this process, and call on the people undertaking the Students First Review, as well as Commonwealth, State and Territory Education Ministers, to amend the national Health & Physical Education curriculum to serve the needs of all students.

Such amendments are vital to help include lesbian, gay, bisexual, transgender and intersex students, and content relevant to their needs. Doing this would help reduce the isolation experienced by LGBTI children and young people, and therefore contribute to lower mental health issues overall, including reduced intentional self-harm and suicidal behaviour.

Recommendation 3: Ensure all schools & school systems adopt pro-active programs against homophobia, biphobia, transphobia and anti-intersex prejudice

Combatting the homophobia, biphobia, transphobia and anti-intersex prejudice which LGBTI children and young people experience in schools, and which causes mental health issues such as self-harm and suicide, is not just about anti-discrimination laws (which in some cases can be reactive, rather than pro-active), or implementing an inclusive curriculum, but it also includes ensuring the entire school environment is ‘safe’ for these students, because often what happens outside the classroom is more important than what happens inside.

This can be achieved through the implementation of comprehensive programs tackling homophobia, biphobia, transphobia and anti-intersex prejudice in as many schools as possible, in as many states and territories as possible, and in as many different types of schools (government, private and religious) as possible.

An example of such a program is the Safe Schools Coalition of Victoria, an initiative that has already achieved 131 member schools, trained 4,555 staff, and reached 20,557 students (data from www.safeschoolscoalitionvictoria.org.au)

From the Safe Schools Coalition Victoria (SSCV) website:

“Safe Schools Coalition Victoria (SSCV) is a coalition of schools and individuals dedicated to creating safer educational environments where every family can belong, every teacher can teach, and every student can learn.

 

“Working in partnership with the Victorian Department of Education and the Department of Health, Safe Schools Coalition Victoria (SSCV), is a ground breaking program that aims to make all schools safe and supportive places for same sex attracted, intersex and gender diverse (SSAIGD) students, teachers and families.

 

“The first initiative of its kind in Australia, SSCV was founded as part of Gay and Lesbian Health Victoria within the Australian Research Centre in Sex, Health & Society at La Trobe University in 2010. We work together with an active network of member schools across all age groups in the government, independent and faith-based sectors.

 

“This coalition model allows us to reach thousands of teachers and school staff to raise awareness and build the skills and confidence needed to actively support gender and sexual diversity in the classrooms, corridors and schoolyards of Victoria…”

 

The SSCV model supports member schools in a variety of ways including staff and student audits, professional learning, resources and consultations.

Unfortunately, a small-scale pilot project, targeting homophobia in NSW government schools from 2011 to 2013 – called ‘Proud Schools’ – was abandoned, seemingly without explanation, at the beginning of 2014 by the State Education Minister, the Hon Adrian Piccoli MP. At this stage, I am not aware of any specific initiative which has replaced it, leaving a significant gap this year where an anti-homophobia program should be.

However, I am aware that the Foundation for Young Australians will be launching a national version of the Victorian model – the Safe Schools Coalition Australia – at a national symposium in Melbourne on Friday 13 June 2014 (details here: https://www.etouches.com/ehome/87262).

It is unclear which State and Territory Governments are supportive of this new national initiative, which is being funded by the Commonwealth Department of Education (announced by the previous Government ahead of last year’s election). It is my sincere hope that all State and Territory Governments support the rollout of the Safe Schools Coalition Australia, and that as many schools as possible join.

This includes government, private and religious schools, as well as geographically diverse (metro, regional and rural/remote) schools, because it should not matter what school an LGBTI child or young person attends, or where they live, they have a fundamental right to an inclusive and supportive education.

I would also expect the Australian Human Rights Commission, and you as National Children’s Commissioner, to be supportive of different schools and school systems adopting pro-active programs against homophobia, biphobia, transphobia and anti-intersex prejudice, as another way to improve the mental health of young LGBTI people around Australia, and thereby help to reduce the over-representation of LGBTI youth in self-harm and suicide statistics.

Recommendation 4: Ban ex-gay or reparative therapy

The practice of ‘ex-gay’ or ‘reparative’ therapy involves organisations, usually religious, offering so-called ‘counselling’ to help transform people who are lesbian, gay or bisexual into being heterosexual, and in some cases to attempt to transform people who are trans* into being cisgender. NB I am unaware of the use of reparative therapy with respect to intersex people, and so have omitted intersex from this discussion.

Ex-gay or reparative therapy attempts to change a person’s sexual orientation or gender identity because of the belief that being lesbian, gay, bisexual or trans* is somehow ‘wrong’, ‘unnatural’ or ‘sinful’. There are three main problems with ex-gay or reparative therapy.

First, there is absolutely nothing wrong, unnatural or sinful with being lesbian, gay, bisexual or trans*. Differences in sexual orientations and gender identities are entirely natural, and this diversity should be accepted and celebrated. Any attempts to prevent people from being LGBT simply demonstrate the homophobia, biphobia and transphobia of the people running ex-gay organisations.

Second, there is absolutely no scientific evidence to support these practices. Sexual orientation and gender identity cannot be ‘changed’ through these interventions. Indeed, the Australian Psychological Society, Royal Australian and New Zealand College of Psychiatrists and Pan American Health Organisation all note that reparative therapy does not work, and recommend against its practice.

Third, and most importantly, not only is ex-gay therapy based on homophobia, biphobia and transphobia, as well as discredited ‘pseudo-science’, but it is also fundamentally dangerous. Reparative therapy takes people who are already vulnerable, tells them that they are inherently wrong, and asks them to change something about themselves that cannot be changed. Inevitably, it leads to significant mental health problems, including self-hatred, depression and tragically, in some cases, suicide.

The people that run ex-gay organisations are guilty of inflicting psychological and sometimes physical damage on others. When it involves children and young people, it is nothing short of child abuse.

Fortunately, the practice of ex-gay or reparative therapy is far less common in Australia than it is in the United States. In recent years, the number of organisations which provide this ‘counselling’ here has also declined. Nevertheless, ex-gay or reparative therapy still exists in Australia, it still damages and breaks people, and it still requires an appropriate policy response.

Given the level of harm that is perpetrated by these people, I believe Australian jurisdictions should introduce legislative bans on ex-gay or reparative therapy. This should include the creation of a criminal offence for running ex-gay therapy, with an aggravated offence for running ex-gay therapy for people under the age of 18. This is necessary to send a signal that these homophobic, biphobic and transphobic practices are no longer tolerated in contemporary society, and especially in the case of minors.

Finally, while at this stage I am not aware of evidence linking registered medical practitioners with these discredited practices, there is evidence overseas that some counsellors, psychologists, psychiatrists or other registered medical practitioners either practice ex-gay therapy themselves, or will refer patients to ex-gay organisations. Any medical practitioners found to be engaging in these practices in Australia should also receive additional sanctions, including potential deregistration and civil penalties.

 

 

Recommendation 5: Fund a national media and social media campaign against homophobia, biphobia, transphobia and anti-intersex prejudice

 

The first three of the recommendations above specifically target schools, not only because research has shown that schools are a major source of the discrimination and prejudice which LGBTI children and young people experience, but also because schools provide an opportunity to exert significant influence in terms of improving social attitudes and directly reducing homophobia, biphobia, transphobia and anti-intersex prejudice.

However, it should be remembered that a) not all discrimination and prejudice originates in schools and b) it is also unfair to expect that schools themselves, acting alone and somehow magically separated from the rest of society, can overcome these serious ills on their own.

It is also important to note that, while 80% of young people in Writing Themselves In 3 identified school as a site for physical or verbal abuse, significant numbers of young LGBTI people also nominated other places in their lives where they are subjected to discrimination and prejudice.

For example, more than 40% cited a social occasion as a place of abuse in 2010 (and like schools, this was an increase from the 1998 and 2004 surveys), and almost 40% indicated they had been abused on the street (although this was down on previous surveys). Meanwhile, approximately a quarter indicated they had been verbally or physically abused at home on the basis of their sexual orientation or gender identity.

It is also not hard to find numerous examples, in the media and culture more generally, of the everyday homophobia, biphobia, transphobia and anti-intersex prejudice, which all LGBTI people are subjected to, but which have a particular impact on LGBTI children and young people.

For example, just in the last month, we have witnessed an NRL player describe another player as a “f—ing gay c—t”, which was subsequently defended by a prominent national columnist, in an article titled “NRL bosses are totally gay”, as somehow not being homophobic. We have had a TV host rant about NFL footballer Michael Sam simply kissing his male partner live on air (describing it as “annoyingly gratuitous”), a Senator-elect tweet that being gay as a ‘lifestyle’ and link it with promiscuity, as well as a State MP indicate his belief that same-sex parenting would hurt that couple’s children.

That is just a small sample of the ‘slings and arrows’ of homophobia, biphobia, transphobia and anti-intersex prejudice which LGBTI Australians are exposed to all too frequently. For many of us, while such comments are offensive, and sometimes hurt, they do not necessarily lead us to self-harm, or cause significant emotional and mental anguish.

Nevertheless, for those who are already vulnerable, including some adults, but especially for young people who may still be coming to terms with being LGBTI, hearing such messages can directly cause harm, and contribute to or worsen existing mental health concerns. This harm is exacerbated if these negative statements are all that the young person hears with respect to being lesbian, gay, bisexual, transgender or intersex, and are not balanced or countered with equivalent positive messages.

Which is why I believe there would be utility in the Commonwealth Government directly funding a large national media, including social media, campaign against homophobia, biphobia, transphobia and anti-intersex prejudice. But rather than simply tackling the ‘negative’, I think such a campaign should also express a positive message about diversity of sexual orientations, gender identities and intersex status – sending the message that being LGBTI is natural, and that heterosexual, cisgender and LGBTI young people all deserve equality, and equal dignity in all aspects of life.

While there have been some great initiatives at state government level in this regard, as well as some excellent work by relevant not-for-profits/NGOs and even individuals (with campaigns like Victoria’s No to Homophobia, and the Beyond ‘That’s So Gay’ work of Daniel Witthaus), the involvement of the Commonwealth could bring benefit, both in terms of scale of resources, and by reaching LGBTI children and young people across Australia.

Of course, any such campaign would need to be co-ordinated with LGBTI organisations, as well as organisations that work in the mental health sector. But most important would be the involvement of young LGBTI people themselves.

The media and social media campaign would need to be designed so as to be relevant to young people, not just those that are LGBTI, but also to their non-LGBTI peers, in order to increase their own understanding and lessen any bullying or harassment of their friends and classmates. Young LGBTI people (and certainly people much younger than myself) would be best placed to advise on how to make such a campaign work.

I would also point out that I have made this particular recommendation in response to term of reference number eight in the Call for Submissions (namely “[t]he feasibility and effectiveness of conducting public education campaigns aimed at reducing the number of children who engage in intentional self-harm and suicidal behaviour”).

I acknowledge there are particular sensitivities in designing campaigns which specifically target those already at risk of self-harm and suicide, with the possibility that the campaign itself triggers particular negative responses. I am not an expert in this area and so am not in position to suggest whether, and if so how, an appropriate campaign could be designed that focused directly on LGBTI children and young people and that explicitly discussed self-harm or suicide – I am sure other individuals and organisations who are experts in this area will be doing so much more effectively in their own submissions.

But I do believe that an overarching campaign, which addresses the root cause of much of those problems – the homophobia, biphobia, transphobia and anti-intersex prejudice which young LGBTI people experience everyday – would provide its own additional benefits in terms of long-term mental health improvement.

Those are the five key recommendations that I would like the Australian Human Rights Commission, and you as the National Children’s Commissioner, to focus on in terms of examining how to reduce the disproportionate effects of self-harm and suicide on LGBTI children and young people.

Obviously, that is not an exhaustive list. There are other areas which are worthy of examination, including considering whether LGBTI people should be protected against vilification in the same way that Commonwealth law currently protects against racial vilification (through section 18C of the Racial Discrimination Act 1975).

I believe there would also be benefit in considering how best to fund, on a secure and ongoing basis, LGBTI community organisations to deliver services to young LGBTI people at risk, as well as how to ensure that mainstream mental health and general health services are inclusive of, and respond to the needs of, LGBTI children and young people. But once again, I would expect that other individuals and organisations will be much better placed to make submissions with respect to those topics.

In conclusion, I would like to express my thanks to the Australian Human Rights Commission, and to you as National Children’s Commissioner, for choosing to initiate an inquiry into intentional self-harm and suicidal behaviour in children and young people.

The rate of youth self-harm and suicide amongst all of Australia’s youth, including but not limited to young lesbian, gay, bisexual, transgender and intersex youth, is truly a national tragedy.

I appreciate the opportunity to make a submission to this inquiry, and look forward to seeing the Final Report in the Commissioner’s 2014 Statutory Report to Commonwealth Parliament.

Alastair Lawrie

Sunday 1 June 2014

NB Given the issues raised in this submission, I include below the same contact details for help included on the Commission’s call for submissions:

National Help and Counselling Services
Lifeline – 24 hour crisis support and suicide prevention

Kids Helpline – counselling service for children and young people aged 5 to 25 years

Headspace – counselling and referral service for young people aged 12 to 25 years

ReachOut.com – online youth mental health service

Letter to Prime Minister Abbott re Intercountry Adoption by Same-Sex Couples Part 2

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In early March I wrote to Prime Minister Abbott about the review, then being undertaken by his department, of Australia’s inter-country adoption arrangements. Specifically, I asked that same-sex couples be included in any potential reforms to be considered at the Council of Australian Governments (COAG) meeting scheduled for Friday 2 May (see original letter here: <https://alastairlawrie.net/2014/03/08/letter-to-prime-minister-abbott-re-inter-country-adoption-by-same-sex-couples/ )

I did not receive a response to my letter until after the COAG meeting (on Monday 5 May), although it was dated 1 May. The reply stated:

 

Dear Mr Lawrie

 

Thank you for your letter of 8 March 2014 to the Prime Minister regarding overseas adoption. I have been asked to reply on the Prime Minister’s behalf. I apologise for the delay in replying.

 

This is an issue that could benefit from attention at the highest levels of government. That’s what it will be getting between now and the next meeting of the Council of Australian Governments.

 

As you note, at present there is no consistency across Australia on whether same-sex couples can adopt a child. The requirements of foreign countries are also relevant, with most of Australia’s current partner countries not allowing adoption by same-sex couples.

 

The Commonwealth Government is committed to working with our state and territory colleagues and stakeholders in this area, including the non-government sector, to deliver reform.

 

Thank you for letting the Government know your views on this issue.

 

Yours sincerely

 

Name Withheld

Assistant Secretary

Which, it has said to be said, was a pretty underwhelming response, especially given the paucity of firm details or commitments. I also cracked a wry smile at the statement that the issue would be getting attention between now (ie the time of writing) and the next COAG meeting – which was held the following day.

In any event, the issue of inter-country adoption was discussed at COAG on Friday 2 May. The Prime Minister, and State Premiers and Territory Chief Ministers, agreed to the following in the official Communique:

Intercountry adoption of children

 

Adopting a child from overseas is an emotional and complex undertaking. Different requirements across Australia can create even more difficulty for families wanting to adopt a child from overseas.

 

COAG supports adoption conducted in the best interests of the child and consistent with the safeguards of the Hague Conventions.

 

COAG agreed in principle to the Commonwealth’s proposal to provide a new national intercountry adoption service for all Australians wanting to adopt a child from overseas.

 

Under the new service, the Commonwealth will fund either a new accredited non-government organisation or organisations, or a Commonwealth agency, to provide services for intercountry adoption by early 2015.

 

The Commonwealth and the States and Territories will work closely together to make sure there is a smooth transition to the new system.

So, some more detail (albeit only a little bit), but also some unanswered questions (including whether same-sex couples are to be included), as well as some new questions (if a non-government organisation contracted to provide inter-country adoption services was religious, could they refuse to provide those services to same-sex couples – but more on that particular issue later).

On the following Monday, 5 May, Prime Minister Abbott issued a Media Release, which revealed a little bit more:

REFORM AND ACTION ON INTERCOUNTRY ADOPTION

 

The Commonwealth Government is committed to adoption reform to enable more people to find families.

 

A new report has identified significant barriers facing Australian families wanting to adopt from overseas.  Inconsistent rules, costs and the lengthy wait to adopt currently deter many people from even starting the adoption process.

 

Last Friday, COAG agreed to a national system for intercountry adoption. The Commonwealth will work vigorously with the States and Territories to have a new system operating by early 2015.

 

The report into intercountry adoption also recommended establishing new country programmes to help more Australian families to adopt.  A new intercountry adoption programme between Australia and South Africa is now in place.

 

South Africa has a strong commitment to finding families within its borders to care for children in need. Where, for whatever reason, a South African family cannot be found, Australian families will be able to help provide permanent loving homes to South African children.  Many of these children will have health needs, and would benefit from the caring environment that Australian families can provide.

 

The Government will introduce amendments to the Australian Citizenship Act so that obtaining Australian citizenship can happen in a child’s country of origin. As well, we will fix the problems associated with the visa system. It is too complicated at the moment and processing times are too long.

 

For too long children who legitimately need a safe and loving home and Australians who dream of providing this home have been hindered by red tape and confusion. The Government is pleased to be able to undertake real action to bring families together.

The accompanying Report of the Interdepartmental Committee on Intercountry Adoption provided some additional information (see link to report here: <http://www.dpmc.gov.au/publications/docs/idc_report_intercountry_adoption.pdf ), although undoubtedly would have provided more had pages 41 onwards, which contained Options for Reform and Recommendations to Government, not been deliberately withheld from the public.

The table on page 30 of the section of the Report that was released at least acknowledged that in four Australian jurisdictions – NSW, Western Australia, Tasmania and the ACT – adoption by same-sex couples is already legal.

On page 32, Table 11: Country of Origin Requirements then spelled out all the different countries where agreements exist, but which deem same-sex couples to be ineligible. Sadly, none of the countries listed currently permit inter-country adoption that does not discriminate on the basis of sexual orientation.

The discussion on page 31 helpfully (or should I say rather unhelpfully), noted that “[r]estrictions on same-sex couples adopting was raised by several submissions as a problem… [But] It seems that changes to these criteria would probably have limited impact on intercountry adoption given the country of origins’ criteria.”

Which is absolutely correct. But still does not answer the question of what would happen if Australia were to sign an inter-country agreement which did allow same-sex adoption (or even, as I suggested in my original letter, if Australia were to actively seek to include non-discrimination as a key clause in all of our inter-country agreements)?

And the media release, and accompanying IDC report, didn’t even address the most obvious question of all – given South Africa already allows same-sex couple adoption, and Prime Minister Abbott announced a new inter-country adoption program with South Africa, would Australian same-sex couples be able to adopt under that program?

The mainstream media didn’t appear to follow up on this question – although fortunately, Benjamin Riley of the Star Observer newspaper stepped into the breach to report the following:

SAME-SEX COUPLES INCLUDED IN OVERSEAS ADOPTION AGREEMENT FOR THE FIRST TIME

 

BEJAMIN RILEY – May 5, 2014

 

SAME-sex couples are included in Australia’s new agreement with South Africa on overseas adoption announced today by Prime Minister Tony Abbott, after being excluded from every previous intercountry adoption agreement between Australia and another country.

A spokesperson for the Department of Prime Minister and Cabinet told the Star Observer the agreement with South Africa is the first such arrangement with a country that allows same-sex couples to adopt children.

 

Although there is currently inconsistency across Australian states and territories around same-sex adoption, same-sex couples can legally adopt in NSW, ACT, Tasmania and Western Australia. However, until now this has been irrelevant due to the explicit exclusion of same-sex couples from Australia’s intercountry adoption agreements.

 

The Prime Minister announced the agreement with South Africa today along with a range of reforms to streamline the overseas adoption process, allowing children to obtain Australian citizenship in their country of origin, and simplify visa processes. These reforms have come out of a new report by the Interdepartmental Committee on Intercountry Adoption.

 

The Prime Minister’s office confirmed the eligibility of same-sex couples to adopt under the new agreement with South Africa, and told the Star Observer these reforms will consider inconsistencies between the states and territories on same-sex couples adopting.

 

“Current eligibility requirements vary across Australia via states and territory requirements. We will most be certainly considering this issue — together with other eligibility criteria — as we finalise the new national approach to intercountry adoption,” press secretary Sally Branson said.

 

“This just isn’t an issue for the home country of the adoptive parents — the requirements of overseas countries are also relevant. The South Africa agreement will allow for same sex couples to adopt.”

 

A Council of Australian Governments (COAG) meeting on Friday also flagged the development of a new national service for intercountry adoption by early-2105. The service would be either a funded non-government organisation or a Commonwealth agency.

 

The announcement prompted calls by the NSW Gay and Lesbian Rights lobby to ensure a new national framework would operate with equality for LGBTI people looking to adopt, and said the same should be true for any organisations assisting in the adoption process.

 

The Prime Minister’s office told the Star Observer there is no detail yet around how the national service would operate, but said the Federal Government would “ensure non-discriminatory service is provided to all stakeholders, and work with all stakeholders in a the same manner”.

 

Rodney Chiang-Cruise from Gay Dads Australia said the streamlined citizenship and visa processes wouldn’t change a great deal for Australian same-sex couples looking to adopt from overseas, but was glad the issue was being discussed.

 

“The Federal Government has not done anything on overseas adoption for decades… It sounds like a positive move, and hopefully it’s an indication of further moves in regards to what is a complex and difficult area,” Chiang-Cruise told the Star Observer [emphasis added, abridged]. Link to original article here: <http://www.starobserver.com.au/news/local-news/same-sex-couples-included-in-overseas-adoption-agreement-for-the-first-time/122370

As the article reports, this is a potentially significant breakthrough in terms of LGBTI equality – provided this agreement is implemented in line with state and territory requirements, for the first time ever, same-sex couples in NSW, WA, Tasmania and ACT will be treated equally in terms of overseas adoption.

However, the notes of caution expressed by Mr Chiang-Cruise also seem to be appropriate. After all, that still leaves LGBTI-inclusive couples in four Australian jurisdictions (Victoria, Queensland, South Australia and the Northern Territory) out in the cold.

And, as described earlier, there is genuine concern that, should a religious organisation be awarded the contract to deliver inter-country adoption services, they might discriminate against same-sex couples and then use the (incredibly broad) religious exemptions offered under the Sex Discrimination Act 1984 to essentially ‘get away with’ such discrimination.

Which means, while some questions have been resolved – and the South African agreement is indeed a big step forward for same-sex couple adoption in Australia – there are still plenty of issues to be worked through in coming months. It also means there was certainly plenty of material to write a follow-up letter to Prime Minister Abbott on this subject. As always, I will post any reply that I receive.

The Hon Tony Abbott MP

Prime Minister

PO Box 6022

House of Representatives

Parliament House

CANBERRA ACT 2600

Thursday 29 May 2014

Dear Prime Minister

INTER-COUNTRY ADOPTION BY SAME-SEX COUPLES

Thank you for the reply, from your Department, to my letter of 8 March, concerning the issue of inter-country adoption by same-sex couples.

Unfortunately, some of the issues raised in my letter were not answered. Additional issues have also arisen from the Communique of the COAG meeting on Friday 2 May, and from your media release on Monday 5 May, which was accompanied by the release of some sections of the Report of the Interdepartmental Committee on Intercountry Adoption.

First of all, however, I wish to congratulate you on your commitment, as expressed by your office to the Star Observer newspaper on Monday 5 May, that same-sex couples will be eligible to adopt under the newly-finalised agreement with South Africa. This is a major step forward for the equal treatment of lesbian, gay, bisexual, transgender and intersex-inclusive families.

Nevertheless, as highlighted in my original letter, and confirmed in the Report of the Interdepartmental Committee, it is highly unlikely that, due to differing legislation, same-sex couples in Victoria, Queensland, South Australia and the Northern Territory will be able to take advantage of this new agreement.

This is obviously an unsatisfactory outcome – that arrangements entered into by the Commonwealth will only provide benefit to couples in Sydney, not Melbourne, Perth not Brisbane, and Hobart but not Adelaide.

I therefore reiterate my call that you should use the process of establishing new inter-country arrangements over the coming year to urge those states and territories that have not yet made adoption non-discriminatory on the basis of sexual orientation, gender identity or intersex status to finally do so.

Second, I wish to ask you about the proposal being considered that a non-government organisation may be funded to provide inter-country adoption services on behalf of the Commonwealth and states and territories. Specifically, if this organisation is itself, or is run by, a religious body, will you guarantee that they will not be able to deny these services to same-sex couples?

Again, it would be a deeply unsatisfactory outcome if, despite the successful inclusion of same-sex couples in formal arrangements between Australia and South Africa, these were undermined in practice because of the exemptions offered to religious organisations under the Sex Discrimination Act 1984.

Please ensure that whichever non-government organisation is funded to provide inter-country adoptions services on behalf of the Australian Government, and therefore the Australian people, they are legally bound not to discriminate on the basis of sexual orientation, gender identity or intersex status.

Third, and finally, I return to a point made in my initial correspondence and that is that I believe the Australian Government should be actively seeking to include non-discrimination clauses in all future inter-country adoption agreements. This stance should apply irrespective of whether the country is like South Africa, and itself already recognises same-sex adoption, or another country that does not.

I acknowledge that it may not be possible to secure the inclusion of such a clause in every single signed agreement – because it is dependent on the response of the other country – but I can see no reason why Australia should not be directly and firmly putting forward the principle that all couples are able to be loving and nurturing parents, irrespective of their sexual orientation, gender identity or intersex status.

Congratulations again on the inclusion of same-sex couples in the inter-country adoption agreement with South Africa.

I look forward to your response to the other matters raised in this correspondence.

Sincerely

Alastair Lawrie

Letter to NSW Premier Mike Baird re LGBTI Equality and Conscience Votes

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In Question Time on Wednesday 7 May 2014, the Independent Member for Sydney, Alex Greenwich MP, asked the new Liberal-National Premier, the Hon Mike Baird MP, about his, and his Government’s, support for the lesbian, gay, bisexual, transgender and intersex (LGBTI) community of NSW.

I have reproduced the text of both the question and answer below, along with highlighting a couple of points of particular interest:

LESBIAN, GAY, BISEXUAL, TRANSGENDER AND INTERSEX COMMUNITY SUPPORT

Mr ALEX GREENWICH: My question is addressed to the Premier. Will he build on the support of previous Premiers for the lesbian, gay, bisexual, transgender and intersex communities, including supporting ACON, the Sydney Gay and Lesbian Mardi Gras, Twenty10 and the Gender Centre, and allowing at least a free vote on lesbian, gay, bisexual, transgender and intersex-related legislation?

Mr MIKE BAIRD: I thank the member for his sensible question and for the work he does in his community. One of the hallmarks of my Government will be respect for all people and all communities. My Government will not judge people on the basis of race, religion or sexuality. My Government will judge each individual by how he or she behaves and what he or she contributes to the community and those around them. Discrimination against any individual or group on the basis of race, religion or sexuality has no place in New South Wales. Members of the lesbian, gay, bisexual, transgender and intersex community can continue to have the Government as a great supporter. I give the same personal commitment as Premier. One of the biggestevents staged in Sydney every year is the Gay and Lesbian Mardi Gras parade, which enjoys strong bipartisan support. It has enjoyed funding since 2009, which continues under a Liberal-Nationals Government, and some 20,000 overseas and interstate visitors generate approximately $30 million for the visitor economy.

This financial year the Government has provided more than $300,000 in funding for ACON to deliver a range of HIV prevention, care and support programs for people with HIV, sex workers, outreach projects, and needle and syringe programs. Earlier this year the Government and ACON jointly funded the Ending HIV campaign. In 2013-14 the Government has provided more than $600,000 to the Gender Centre and Twenty10, which is a non-profit welfare organisation located in Chippendale that has been operating for more than 30 years. Government support is provided through the Sydney West Local Health District Youth Service and the Department of Family and Community Services. I thank and admire the hardworking staff at these organisations for the work they do in the community.

In August this year the Gay Rugby World Cup, known as the Bingham Cup, is coming to Sydney. The Government will provide financial and in-kind support for up to 40 teams from 15 countries. Some 1,500 players and 10,000 spectators will flock to the event. I refer to conscience votes and pay tribute to the former Premier. His leadership on matters of conscience was exemplary and showed this Parliament how members should respond on matters of conscience. I say to the member for Sydney that my position will be exactly the same as the position of the former Premier, who showed great leadership on matters of conscience; so too will the Government I lead. I look forward to working together on these issues.

The two issues highlighted – the unequivocal commitment to equality based on sexuality, and the question of when a conscience vote should be granted – have prompted me to write the following letter to Mr Baird.

The Hon Mike Baird MP

Premier of NSW

GPO Box 5341

Sydney NSW 2001

Sunday 25 May 2014

Dear Premier Baird

SUPPORT FOR THE LGBTI COMMUNITY OF NSW

I am writing regarding the answer which you gave in the Legislative Assembly on Wednesday 7 May 2014 to a question from the Member for Sydney about your, and your Government’s, support for the lesbian, gay, bisexual, transgender and intersex (LGBTI) community of NSW.

In particular, I would like to ask you questions about two of the comments which you gave. First, I note that in your answer you said the following:

“Discrimination against any individual or group on the basis of race, religion or sexuality has no place in New South Wales. Members of the lesbian, gay, bisexual, transgender and intersex community can continue to have the Government as a great supporter. I give the same personal commitment as Premier.”

I am interested to know how far your personal commitment to and support for the LGBTI community extends. Specifically, in this quote you state that “[d]iscrimination against any individual or group on the basis of… sexuality has no place in New South Wales” and yet you have previously voted against equal adoption rights for same-sex couples.

Does this statement, which contains no equivocation, mean that you now concede your previous position on same-sex adoption was wrong? Will you give an explicit commitment to support equal adoption and other parenting rights for LGBTI couples and families in the future?

Given the absence of any qualifications on your support for non-discrimination on the basis of sexuality, I am also interested to know your position on the exceptions which are offered to religious organisations under the Anti-Discrimination Act 1977. These exceptions significantly and substantively undermine the anti-discrimination protections which currently exist for lesbian, gay and trans* people in NSW.

Do you support the removal of religious exceptions, such as section 56(d), from the NSW Anti-Discrimination Act 1977 in order to better protect LGBTI people from discrimination? Or do you wish to amend the answer that you gave in Question Time to instead read: “[d[iscrimination against any individual or group on the basis of… sexuality has no place in New South Wales unless it is performed by a religious organisation, in which case such actions will be protected by law”?

Secondly, I would like to find out more details about your position on conscience votes regarding LGBTI rights. In your answer in Parliament, you made the following comment:

“I say to the member for Sydney that my position will be exactly the same as the position of the former Premier, who showed great leadership on matters of conscience; so too will the Government I lead.”

It is unclear from this answer exactly where you would draw the line on conscience votes. It is assumed that this means you would allow a conscience vote on same-sex marriage were it to return to the NSW Parliament for a fresh vote (although, given the High Court’s decision last December, that would appear to be both unlikely and unproductive).

Alternatively, does this mean that you would allow conscience votes for Liberal and National Party members if Bills were introduced seeking to wind back rights which are already enjoyed by LGBTI people in NSW? For example, would you support a conscience vote on a Bill which sought to remove the equal rights of same-sex couples to adopt? It would be disappointing if your Government did anything other than vote against such a Bill en bloc.

It is also expected that legislation will be introduced in the next few months which seeks to allow gay and bisexual men who were convicted because of the illegality of homosexuality before 1984, and because of the unequal age of consent between 1984 and 2003, to have their convictions expunged. This Bill will go some way to redressing the very real injustices, and long-term consequences, caused by the homophobic criminalization of homosexuality, and the equally homophobic unequal age of consent.

Again, it would be incredibly disappointing if members of the Government were free to vote against such a Bill, especially because the only way that this Bill would be a ‘matter of conscience’ for an MP is if they still believed that sexual intercourse between men was morally wrong.

For these reasons, I would greatly appreciate it if you could clarify your position on conscience votes, in particular whether they would extend beyond state-based same-sex marriage, and whether you would allow Liberal-National Government MPs to vote to repeal same-sex adoption rights, or to vote against the expungement of historical convictions.

Thank you in advance for considering the issues and questions raised in this correspondence.

Sincerely,

Alastair Lawrie

How far does Premier Baird's support for the LGBTI community extend? (image source: The Conversation).

How far does Premier Baird’s support for the LGBTI community really extend? (image source: The Conversation).

Thoughts – and Actions – on IDAHOBIT

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Updated May 2017:

On 17 May 1990, the World Health Organisation agreed to declassify homosexuality as a mental health disorder. Long overdue, this move helped give weight to campaigns around the world to decriminalise homosexuality, and calls for equal rights irrespective of sexual orientation.

In 2005, the first ever International Day Against Homophobia was held on May 17, to mark the significance of the WHO’s decision, as well as bring together groups from all over the globe to campaign for equality.

In the 12 years since, IDAHO has expanded, both in the size of the event, and in its inclusiveness, with many countries now referring to it as the International Day Against Homophobia and Transphobia (IDAHOT). Globally, the ‘tag-line’ for the event has also expanded to become the ‘Global Day to Celebrate Sexual and Gender Diversities’.

I absolutely support moves for this day to be as inclusive as possible – which is why I personally prefer to refer to it as IDAHOBIT: the International Day Against Homophobia, Biphobia, Intersexphobia and Transphobia. In this way all parts of the lesbian, gay, bisexual, transgender and intersex (LGBTI) communities are acknowledged.

But enough of nomenclature. What does this day mean to me?

Well, given I spend most of my time as an LGBTI activist on issues within Australia, today I choose to reflect on the wider struggle for LGBTI equality all over the globe.

In terms of homosexuality and bisexuality, that means remembering that engaging in same-sex intercourse remains a criminal offence in at least 72 different countries. In at least four countries, being convicted for being gay or bisexual can result in the death penalty (Iran, Saudi Arabia, Yemen and Sudan), as well as in parts of Nigeria, Somalia, Iraq and Syria.

It must be pointed out that this is more than three-and-a-half times the number of countries where there is full marriage equality (20 countries in total, with parts of the UK and Mexico also recognising same-sex marriage).

So, no matter how far we think we’ve come in the 16 years since the first same-sex marriage in the Netherlands (and the rate of change has indeed been astonishing) there are many, many more countries where the battle is a much more fundamental one, where it is a fight for the right to even exist.

From an Australian perspective, we should remember that of the 53 members of the ‘Commonwealth of Nations’ (aka our colleagues among the former British Empire), approximately 40 still criminalise homosexuality and bisexuality. In other words, more than half of the countries in the world where being gay or bisexual is a crime are found within a group that accounts for just over a quarter over the total number of countries.

It is fair to say that homophobia and biphobia is one of the most awful, and enduring, legacies of the British Empire (and especially of Victorian-era Britain). It is equally fair to suggest that it is the responsibility of the United Kingdom, and other countries within the Commonwealth where LGBTI rights have progressed, such as Australia, to assist moves towards decriminalisation in these countries.

But Australia also has special responsibilities with respect of at least one country in our own neighbourhood, which still criminalises homosexuality and bisexuality, and which Australia exerted some form of control over for extended periods of the 20th century: Papua New Guinea.

It just so happens that Australia continues to use PNG for the indefinite detention of (or, what the Government calls, ‘offshore processing and resettlement’ of) refugees, including LGBTI refugees. Even if what our Government is doing on our behalf is immoral, we as Australian citizens have a moral responsibility to support, as best we can, movements within PNG to decriminalise same-sex activity (which can attract punishments of up to 14 years imprisonment).

Of course, as the name suggests, IDAHOBIT is a day to reflect on more than just lesbian, gay and bisexual rights – we must also consider the lack of recognition of and support for transgender people right around the globe.

Trans people are all too frequently denied the right to be who they are, with some countries criminalising simply being trans, while many more deny individuals the medical support that they determine is necessary for themselves, and above all the identity documentation and legal status they deserve.

But, even where being trans is recognised by law, there remains a disturbing and enduring global epidemic of transphobic violence and hate crimes. We must continue to fight to ensure that no person is physically unsafe simply because of their gender identity.

The battle for intersex rights is, to some extent, an even more fundamental one – and that is the fight to be recognised in the first place. Ignored for many years, even it must be said by other parts of the LGBTI community, intersex advocates have done amazing work in recent decades in increasing their visibility and, in turn, visibility of the discrimination which affects them.

Part of these efforts has been shining a spotlight on the absolutely horrific things which are done (and continue to be done) to intersex infants, including sterilisation and other unnecessary and harmful medical interventions. The 2013 Senate Report on Involuntary or Coerced Sterilisation of Intersex People in Australia is a good place to start to read up about these injustices.

Intersex people are also affected by some similar issues to trans people in terms of ensuring that diversity, in gender identity and sex/intersex status, is able to be recognised where it is necessary (and, where it is not relevant to be known or collected, that sex/intersex status is able to be ignored).

So, now that we’ve used IDAHOBIT to think about some of the issues affecting LGBTI people around the world, that’s our job done, isn’t it? After all, these global days of acknowledgement or recognition are usually opportunities for sombre reflection about injustices perpetrated against different individuals or groups, before we move on to the next ‘day of remembrance’ in a week or a month’s time.

Well, no. Because much more important than our thoughts about the human rights violations suffered by LGBTI people elsewhere, are the actions that we take to remedy them. It is not good enough to simply get outraged about the latest anti-LGBTI developments in Chechnya without actually doing something about it.

Of course, speaking as someone from a privileged background in a ‘Western’ country where many (but not all, especially re trans and intersex) of these rights have already been won, deciding exactly what that ‘something’ is can be difficult. It is also complicated by the worse than chequered history of ‘Western’ interventions in the affairs of other countries – including the historical legacy of anti-LGBTI laws and attitudes of European imperialism, and the modern crusades of christian evangelism.

Above all, it is our job to support the role of groups and movements within other countries who are seeking change, working with them (and certainly not dictating to them).

Which leaves what, exactly? For me, this means that on days like IDAHOBIT I consider how I can support those groups in Australia and internationally who either represent the global LGBTI cause, or who have demonstrated the ability to work effectively with LGBTI groups in other countries to achieve progress. This list includes (but is definitely not limited to):

Today, as we celebrate the International Day Against Homophobia, Biphobia, Intersexphobia and Transphobia, please consider supporting one or more of these groups so that together we can improve the lives of lesbian, gay, bisexual, transgender and intersex people everywhere.

ILGA 2017

The ILGA May 2017 map showing the criminalisation of same-sex activity.

Dear Joe Hockey, $245 million for School Chaplains? You Cannot be Serious

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Just over a month ago I wrote to you arguing that, if you were serious about cutting Commonwealth expenditure, you must axe the National School Chaplaincy Program. (link: <https://alastairlawrie.net/2014/04/12/dear-joe-hockey-if-youre-serious-about-cutting-expenditure-you-must-axe-school-chaplains/ )

This program is a completely unjustifiable breach of the principle of the separation of church and state, supporting the appointment of people whose primary ‘qualification’ is their religion to positions in secular, government-run schools. It is also ineffective, with little or no evidence that employing chaplains benefits students overall (especially when compared with appointing properly-trained and qualified student welfare workers or counsellors).

Above all, with the National School Chaplaincy Program costing more than $50 million each and every year, this initiative is the epitome of waste. $50 million per year may not have seemed like a huge spend when it was first introduced (as Howard and Costello bathed in the rivers of cash flowing into the treasury coffers) but, in a post-GFC world, when the revenue stream has well and truly dried up, the largesse of this scheme is apparent.

Since I wrote to you, the final report of the National Commission of Audit has been released, and, much to my surprise, they recognised both the extravagance of, and lack of policy rationale for, this scheme, recommending that it be abolished. Even your hand-picked, right-wing Audit warriors thought funding school chaplains could not be justified.

So, when you rose to your feet to deliver the Budget on Tuesday night, the pressure was on you: were you in fact serious about cutting expenditure, including abolishing wasteful and ineffective programs irrespective of which side of politics had introduced them, or did balancing the Budget not matter as much as supporting narrow, ideological interests?

Alas, in the Budget papers, we the Australian public quickly discovered that, despite all the talk of ‘fiscal responsibility’ and ‘repairing the Budget’, you nevertheless had chosen to provide $245 million to the National School Chaplaincy Program, to continue its operation from 1 January 2015 to the end of 2018.

That decision in and of itself was terrible, but it is made worse, by several orders of magnitude, when it is contrasted with some of the other decisions contained in the Budget, including:

  • The introduction of a $7 co-payment for visiting a doctor, as well as a $5 increase in the cost of prescriptions through the Pharmaceutical Benefits Scheme;
  • A $7.9 billion cut in the foreign aid budget over the next 5 years;
  • A $500 million cut to expenditure on indigenous programs over the next 5 years (this under the ‘Prime Minister for Indigenous affairs’);
  • A rise in the pension age from 67 to 70 (phased in to 2035), as well as a reduction in future pension increases;
  • An increase in university fees, with loans to be charged at much higher interest rates and the repayment threshold significantly lowered; and
  • The introduction of a 6-month wait for access to unemployment benefits for people under 30 (and even then, payment at a reduced rate).

That list sounds like a ‘Tea Party’ inspired re-imagining of The New Colossus: “Give me your tired, your (global) poor, your sick, your Aboriginal, your elderly, your young, your students and your unemployed, and we will make them pay.” When you spoke of ‘sharing the burden’, it seems like you almost went out of your way to ensure that the burden was shared, disproportionately, by the most vulnerable.

In that context, it looks more than bizarre that one of the main groups who do not have to experience any Budget pain are school chaplains. The decision to give them almost a quarter of a billion dollars doesn’t even make sense when looked at exclusively in the context of the Education Budget.

The $245 million provided to the National School Chaplaincy Program is the single biggest spending initiative in the budget for schools, which implies that it is the Abbott Government’s biggest school-related priority for its first year in office. This funding also stands in marked contrast to the decision not to provide any additional funding for students with disabilities, despite that being a major pre-election commitment.

Do you really think that subsidising chaplains is more important than funding students with disabilities, or indeed funding anything else to do with schools?

The worst part is that the decision to refund the School Chaplaincy program is not even the worst part about this announcement.

In Tuesday night’s media release (“Keeping our Commitments: Funding a National School Chaplaincy Program”, issued by Senator the Hon Scott Ryan, the Parliamentary for Education) the Government stated that “[t]he renewed programme will be returned to its original intent; to provide funding for school chaplains.”

As made clear, in supporting documentation and subsequent media coverage, this means that, from 1 January next year, only religious appointees, from ‘recognised denominations’, need apply.

This is a return to the Howard Government designed scheme from 2007, and abolishes the only redeeming feature of the entire program – which was the 2012 amendment, made by then Education Ministers the Hon Peter Garrett MP, to allow schools the choice to employ secular student welfare workers rather than chaplains.

In doing away with qualified student welfare workers, you have also removed the only fig-leaf of credibility which (partially) covered up the nakedly-ideological, and evidence-free, nature of the overall scheme.

It is impossible for you, and the Commonwealth Government in general, to claim that the National School Chaplaincy Program is genuinely about improving the welfare of students, when you are explicitly denying schools the opportunity to employ the best people for the job.

In the absence of any student welfare-based rationale, everyone can now see that the decision to provide new funding to the National School Chaplaincy Program is, at its core, a joke. The changes to the scheme’s rules, which mean that all 2,900 people employed under the scheme must be religious appointees, and cannot be secular student welfare workers, make it a bad joke at that.

But maybe we only see it as a bad joke because the joke is on us. After all, we the taxpayers are the ones footing the $245 million bill to allow chaplains and other religious office-holders inappropriate access to the schoolyard, and the classroom.

There are, of course, others who are laughing at our expense: the religious organisations who have their ‘outreach’ work to young impressionable minds publicly-subsidised; the religious fundamentalists in the Liberal-National Government (and, it must be said, some in the ALP Opposition) who believe it is the role of Government to ensure Australia is a ‘Christian nation’; and the major churches who want to break down, once and for all, the already fragile separation of church and state in this country.

The group laughing hardest, though, must be the Australian Christian Lobby, because this is your, and Prime Minister Tony Abbott’s, extravagant, quarter of a billion dollar gift to them. It must gladden your heart that, in his post-Budget media release (where it should be acknowledged he at least made the effort to criticise the overall impact of Budget cuts on the poor and disadvantaged) ACL Managing Director Lyle Shelton still found time to be thankful for the Chaplaincy Program. As an aside: Lyle, if you are genuinely concerned about cuts to foreign aid, maybe you should by lobbying for that $245 million to go overseas instead.

So, when you stood up on Tuesday night and said that ‘we are a nation of lifters, not leaners’, it was, like so much of what you said, just empty rhetoric. Because, as you have so amply demonstrated through this single, fundamentally wasteful decision, groups like the Australian Christian Lobby can always lean on you.

Of course, funding the National School Chaplaincy Program for another four years, and even changing its rules, probably wasn’t the worst decision contained in the Federal Budget. It definitely isn’t the decision that will cause the most harm to struggling individuals, both here and overseas (the list of other changes outlined above will likely all have far more deleterious consequences than simply putting 2,900 religious appointees in schools).

But the decision to award $245 million to this scheme reveals, probably more than any other choice made by you and the other members of the Expenditure Review Committee, just how twisted the Budget priorities of this Government really are. In amongst the carnage of savage cuts to health, to education, to the pension and to foreign aid, you and your colleagues nevertheless found room in your hearts, and our wallets, to fund the National School Chaplaincy Program.

The role of the nation’s Treasurer is a serious one, bringing with it solemn responsibilities. You are supposed to tax wisely, spend fairly, look after the most vulnerable and invest for our collective future. In your first Budget, you instead chose to hurt some of those who are the most disadvantaged, while still helping your – ideological and political – friends. I am sorry to say, Mr Hockey, but on May 13, you failed to live up to the serious responsibilities of Treasurer.

Treasurer Joe Hockey, not serious about cutting wasteful programs like school chaplains. Is serious about granting the wishes of groups like the ACL. (image source: news.com.au)

Treasurer Joe Hockey, not serious about cutting wasteful programs like school chaplains. Is serious about granting the wishes of groups like the ACL (image source: news.com.au).

2014 GLORIAs Form Guide

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The 2014 annual GLORIAs (standing for Gay & Lesbian Outrageous, Ridiculous and Ignorant comment Awards) are coming up next week – Wednesday 14 May.

I enjoy the GLORIAs for a few reasons, not the least of which is host David Marr’s dry wit. The awards are also an important reminder that, no matter how much progress we have made, and continue to make, towards legal equality, the battle against homophobia, transphobia, biphobia and anti-intersex prejudice in social and cultural life goes on.

The GLORIAs, like the Ernies (for misogyny), are a way to hold bigots to account for the awful things that they say – it is a chance for our community to ‘take revenge’ and tell them that enough is enough. Oh, and did I mention that it is usually quite a fun night? Tickets are available here: <http://www.trybooking.com/Booking/BookingEventSummary.aspx?eid=83377

Voting for the worst comment in each of the six categories (International, Media, Politics/Law, Religion, Silliest comment within the LGBTI community, and Sport) is also open online until 5pm on the evening of the 14th: <http://www.theglorias.com.au/home So, get voting.

I have reproduced the nominees from the 6 categories below, along with the person I voted for, who I think will win, and a space to update with the name of each winner after the event. I would love to hear your thoughts on whether you agree or disagree with my reasoning.

And one final thing, thanks should go to lesbian Labor MLC Penny Sharpe, and her staff, for organising the event (which, it should be pointed out, especially after recent events at ICAC, is NOT a political fundraiser).

1. The worst INTERNATIONAL Comment of the year:

Mary Baker, Tea Party activist and leader of Conservative Moms for America: “Gay Supremacy is becoming a monster that carries greater evils than white supremacy ever did.”

Guido Barilla (of Barilla pasta fame): “For us the concept of the sacred family remains one of the fundamental values of the company… I have no respect for adoption by gay families because this concerns a person who is not able to choose”.

Brunei for adopting a new penal code that calls for death by stoning for consenting same-sex sexual activity, adultery, rape, extramarital sexual relations, and for declaring oneself to be non-Muslim.

India’s Supreme Court has refused to review the ban on gay sex it imposed last month, rejecting arguments from civil rights campaigners and the Indian government that the move was unconstitutional.

Delta County School Board member Katherine Svenson said she opposed the recently passed laws in California and Massachusetts that allow transgender students equal access to school facilities such as locker rooms and bathrooms: “I just want to emphasise: not in this district. Not until the plumbing’s changed. There would have to be castration in order to pass something like that around here.”

Nigerian President Goodluck Jonathan signed a bill on Monday that criminalizes same-sex relationships, contains penalties of up to 14 years in prison and bans gay marriage, same-sex “amorous relationships” and membership in gay rights groups.

Zimbabwe President Robert Mugabe described homosexuals as “worse than pigs, goats and birds” and “If you take men and lock them in a house for five years and tell them to come up with two children and they fail to do that, then we will chop off their heads.

Gambian President Yahya Jammeh: “We will fight these vermins called homosexuals or gays the same way we are fighting malaria-causing mosquitoes, if not more aggressively… As far as I am concerned, LGBT can only stand for Leprosy, Gonorrhoea, Bacteria and Tuberculosis; all of which are detrimental to human existence.”

Ugandan President Yoweri Museveni: “Homosexuals are actually mercenaries. They are heterosexual people but because of money they say they are homosexuals. These are prostitutes because of money”

Ugandan Ethics & Integrity Minister Simon Lokodo: “It is a social style of life that is acquired… They chose to be homosexual and are trying to recruit others. … If they were doing it in their own rooms we wouldn’t mind, but when they go for children, that’s not fair. They are beasts of the forest…. Homosexuality is unnatural, abnormal and strange to our cultures… It has no output whatsoever; it only does damage and destruction. You cannot have a right to be a sick human being. There is no right in homosexuality. It must be cured…. Excretion is through the anus, like the exhaust of an engine. The human body receives what it takes from the mouth. They’re twisting nature the wrong way. Homosexuality will destroy humanity because there is no procreation; it will destroy health because the backsides will not hold.”

Michelle Bachmann: “… the gay community, they have so bullied the American people, and they’ve so intimidated politicians. The politicians fear them, so that they think they get to dictate the agenda everywhere.”

Russian President Vladimir Putin: “We do not have a ban on non-traditional sexual relationships. We have a ban on the propaganda of homosexuality and paedophilia… You can feel relaxed and calm [in Russia], but leave children alone please”

Who I voted for: Simon Lokodo, for demonstrating in one long quote just how ‘anally-focused’ many homophobes tend to be.

Who I think will win: This has to be the toughest category to predict. Each of Ugandan President Yoweri Museveni, Gambian President Yahya Jammeh (and his acronym) and perennial nominee Zimbabwean President Robert Mugabe has a strong claim but, simply given the attention his position attracted in the lead-up to Sochi, I suspect Russian President Vladimir Putin might ice-skate his way across the line.

Who did win: In a pleasant surprise (and possibly because of he extremely unpleasant nature of the comments) Simon Lokodo.

2. The worst MEDIA comment of the year:

A poster advertising the Brisbane Queer Film Festival that featured two men kissing was deemed too explicit and banned by Brisbane City Council.

Des Houghton columnist for the Courier Mail for the column ‘Dangers Lurk on Queer Street’: “Is the push for gay marriage just another fad like chai latte with Mt Kosciuszko yak milk, fixed-wheel bicycles and Vietnamese pork belly buns?” (read it here http://www.couriermail.com.au/news/opinion/opinion-dangers-lurk-on-queer-street/story-fnihsr9v-1226703120375).

This ad for The Yellow Pages: http://www.youtube.com/watch?v=NHVjKta5FTk&feature=youtu.be&noredirect=1

Andrew Bolt: “ABC staff must call Manning a woman even when he’s still a man, just because he says so. Just like I must call a white… No. Best not go there.”

Editorial in the Bairnsdale Advertiser ‘Trans-genderism is the enemy of healthy childhood development’.

Who I voted for: Des Houghton, because if you read the entirety of his column, you get an insight into how unhappy his world must be now that the LGBTI community has the temerity to demand genuine equality.

Who I think will win: The explicitly transphobic nature of Andrew Bolt’s column must make him a strong contender.

Who did win: The Bairnsdale Advertiser.

3. The worst POLITICS / LAW comment of the year:

Tasmanian “True Green” party representative Andrew Roberts’s election leaflets: “Most parents will admit that they do not want their kiddies growing up to be more and more corrupted, as they will witness an ever increasing sodomite and lesbian behaviour in public like it’s ‘the norm,’” says the flyer, which associates gay people with disease, child abuse and drug abuse, and calls for the recriminalisation of homosexuality in Tasmania.

Dennis Jensen MP for Tangney WA, speaking on the Marriage Equality Amendment Bill 2013: “This bill is a piece of enabling legislation: it enables the dismantling of society as we know it. In essence, this bill is the apotheosis of a movement bent on legislating a social experiment. Gay marriage is a social experiment. Social experiments have poor results when viewed historically. One need only think of phrenology and eugenics, both of which, thankfully, have been consigned to the dustbins of history but not before having damaging social consequences…”

Federal election campaign flyer in Moreton, QLD with a picture of a crying child stating “I want my mum and dad … Loving kids and respecting their rights means keeping marriage laws that put kids first” (source unknown), https://www.facebook.com/TheGLORIAs/posts/508063229281606

Joe Bullock (Labor Senator-Elect) on running mate Senator Louise Pratt: “she’s a lesbian I think, although after her partner’s sex change I can’t be sure”.

Fred Nile’s (#3) speech in Parliament in support of Reparative Therapy (gay cure therapy). Hansard 14 November 2013.

NSW Premier Mike Baird for his views on “choosing to live a homosexual lifestyle” and his refusal to answer questions about this statement at a press conference after he became Premier.

George Brandis for this on QandA: TONY JONES: But just on principle, you are saying that religious freedom supersedes the freedom of your sexuality? GEORGE BRANDIS: Yes, I am, as a matter of fact. Yes, I am.

Fred Nile (#2) on the NSW Same-Sex Marriage Bill: The so-called marriage between two males is unnatural. Homosexual relations between a male and a male are strongly forbidden in both the Old Testament and the New Testament—in the New Testament particularly by Apostles Paul and Peter and, by implication, by the moral teachings of Jesus Christ. I believe that God’s creative purpose for planet Earth—which is a sensitive issue to discuss—is that the basis for the foundation of the family and the continuation of the human race is the institution of marriage.

Tony Abbott, discussing marriage equality: “I’m not saying our culture, our traditions are perfect but we have to respect them… … I’m not someone who wants to see radical change based on the fashion of the moment.”

A fundraising event for the Liberal Party hosted by Victorian Premier Denis Napthine has seen independent Frankston MP Geoff Shaw ridiculed as a “poofter bastard” by comedian Nick Giannopoulos in front of more than 300 guests.

Fred Nile (#1) for this section of Christian Democratic Party’s National Charter: (c) GOD’S GIFT OF SEX: We believe that God has established laws of sexual morality for the well-being of society prohibiting pornography, adultery, incest, homosexuality, and other sexual aberrations which debase man, as well as defile and pollute our nation. (Note that ‘homosexuality’ is listed after ‘incest’).

Alby Schultz: “I think it is abominable that gay activists continue to focus on and manipulate civil rights strategies to justify claims for same-sex marriage and keep using accusations of discrimination, inequality and homophobia to intimidate politicians and the general public.”

Cory Bernardi’s book ‘The Conservative Revolution’.

WA Liberal Upper House Member Nick Goiran for linking gay marriage to incest in a speech in Parliament.

Federal election campaign flyer in Jagajaga, VIC: “Jenny Macklin voted for same-sex marriage. Same-sex marriage WILL MEAN same-sex education in kindergartens and schools” (source unknown): https://www.facebook.com/photo.php?fbid=5080622 “92615033&set=a.358377574250173.91788.274008212687110&type=1&theatre

Who I voted for: George Brandis (and not just because it was my question on #QandA which precipitated the exchange between Tony Jones and him). Despite other comments being more overtly ‘offensive’, the fact that the then shadow/now Commonwealth Attorney-General was prepared to say, without any qualification whatsoever, that religious rights automatically trump LGBTI rights is, when you think about it, actually pretty outrageous.

Who I think will win: While I’m not confident of this prediction, the combination of the popularity or marriage equality, and current lack of popularity of our Prime Minister, makes me think Tony Abbott could take home the gong.

Who did win: As predicted Tony Abbott took out the gong (better luck next year Senator Brandis).

4. The worst RELIGION comment of the year:

Pastor Kevin Swanson of the Colorado based Reformation Church, thinks that the Disney movie ‘Frozen’ indoctrinates five-year-olds into lesbianism and bestiality: “You wonder sometimes if maybe there’s something very evil happening here … I wonder if people are thinking: ‘You know I think this cute little movie is going to indoctrinate my 5-year-old to be a lesbian or treat homosexuality or bestiality in a light sort of way.’”

Far-right American Christian author Linda Harvey blames gay teens for running away from ‘heart-broken’ homophobic parents who want to control their lives – saying they only have themselves to blame for their homelessness.

Australian Christian Lobby/Lyle Shelton for the Media Release ‘Rudd’s change on marriage sets up a new stolen generation’: “Australian Christian Lobby Managing Director Lyle Shelton said Kevin Rudd’s overnight change of mind on redefining marriage ignored the consequence of robbing children of their biological identity through same-sex surrogacy and other assisted reproductive technologies”.

Ex-Anglican Archbishop Peter Jensen: ”How do two men have sexual union? …You have joined a couple of people together at a spot where they shouldn’t be joined together, really.”

Penrith Christian School’s statement which includes the following: “We believe that homosexuality and specific acts of homosexuality are an abomination unto God, a perversion of the natural order and not to be entered into by His people.” And “We believe the practice of attempting to or changing ones gender through surgical and/or hormonal or artificial genetic means is contrary to the natural order ordained by God.”

Who I voted for: Peter Jensen. In Australia we often judge religious (and political – see Simon Lokodo’s comments, earlier) leaders in other countries for making anal sex-obsessed homophobic comments. Last year, we had the leader of the Anglican Church right here in Sydney saying basically the same thing. The fact he has now retired and may not be nominated again provided another incentive for this vote.

Who I think will win: It’s hard to look past the ACL media release equating Kevin Rudd’s support for marriage equality with the stolen generations as a ‘winner’. Which reminds me: can we officially make an Australian version of Godwin’s Law that the first person to bring up the stolen generations in an unrelated argument automatically loses?

Who did win: Penrith Christian School (NB I also collected the GLORIA for the person who nominated them, even though I still would have preferred Peter Jensen to have won).

5. The SILLIEST GLBTI comment from someone within the GLBTI community

Openly Gay Federal Election Liberal candidate for Sydney Sean O’Connor for preferencing the Christian Democratic Party (CDP) on his How To Vote card above Tanya Plibersek for Labor and The Greens (See:http://www.starobserver.com.au/news/local-news/new-south-wales-news/gay-liberal-candidate-prefers-reverend-fred-niles-party-for-sydney/108672).

Brian Coleman, the gay former Conservative London Assembly Member and ex-mayor of Barnet who described the Marriage (Same Sex Couples) Act as a “silly” and “dreadful” piece of legislation.

Gay CNN host Don Lemon talking about ex-figure skater Johnny Weir: “No one likes a gay minstrel show … so let’s just put that out there. About some of his flamboyant and over the top and all those, it seems those are the people who get the attention, but they don’t represent all of gay America.”

Who I voted for: Don Lemon. The idea of calling someone else who could be described as camp (possibly something of an understatement) as a ‘gay minstrel’ reveals much more about Don Lemon than it does about Johnny Weir. We need to accept people for whoever they are, and however they choose to express themselves. At the same time, it is not the responsibility of each and every gay man in public life to be the sole representation or role model of gay life, either in America or elsewhere.

Who I think will win: Don Lemon.

Who did win: Sean O’Connor (who, like Duncan Gay last year, had the good grace – and PR advice – to attend and collect the award in person).

6. The worst SPORT comment of the year:

Newcastle Knights NRL footballer Ryan Stig who posted a long message to Facebook and Twitter titled ‘Homosexuality demonic work’ about his opposition to marriage equality: “Homosexuality is a fairly good example of distortion of design for fairly obvious reasons. When laws such as this … are created it makes covenant with unseen realms of the demonic which work to infiltrate and come against the thought lives of our cities states [sic] and nations”.

Anthony Mundine for this comment about Redfern Now: “Watching redfern now & they promoting homosexuality! (Like it’s ok in our culture) that ain’t in our culture & our ancestors would have there head for it! Like my dad told me GOD made ADAM & EVE not Adam & Steve,” he wrote.

Alex Rodrigo Dias da Costa, former Chelsea player: “We love everyone but do not like those who do not stand for what the Bible says. But this is not homophobia…. I don’t agree that it is OK that a man lives with another man and a woman with a woman.”

PGA Golfer Steve Elkington for this tweet regarding openly gay NFL hopeful, Michael Sam: “ESPN reporting Michael Sam is leading the handbag throw at NFL combine …. No one else expected to throw today”.

Who I voted for: Anthony Mundine, not just because the comment was idiotic, or because of his repetition of the immensely stupid catch-phrase ‘Adam & Steve’, but because he disparaged the wonderful Redfern Now. At least his ignorant twitter outburst had the positive outcome of helping to inspire the creation of the Black Rainbow facebook community.

Who I think will win: Anthony Mundine, although the long-on-content but short-on-intelligence rant from Ryan Stig could be a very close second.

Who did win: Anthony Mundine (in a well-deserved effort).

Stand-in host Barbara Blacksheep, performing the now-accustomary lip-synch of 'Gloria'.

Stand-in host Barbra Blacksheep, performing the now-accustomary lip-synch of ‘Gloria’.

The Golden GLORIA

This is particularly difficult to predict, given the winner must come from the 6 winners of the above categories, and is then decided by a ‘boo-off’ on the night. Still, I will put forward my preference, and hazard a guess who the community might help ‘elect’ as the prestigious title-holder for the next 12 months, replacing the outgoing winner, NSW Roads Minister The Hon Duncan Gay.

Who I want to win: George Brandis. As explained above, I find his elevation of the religious ‘freedom to discriminate’ above the LGBTI community’s right not to be discriminated against offensive in the extreme. For more on why, feel free to read my earlier column: The last major battle for gay & lesbian legal equality in Australia won’t be about marriage, here: <https://alastairlawrie.net/2014/02/26/the-last-major-battle-for-gay-lesbian-legal-equality-in-australia-wont-be-about-marriage/

Who I think will win: Perhaps Vladimir Putin, or maybe Yahya Jammeh.

Who did win: Well, after winning his category, and in a decision which is possibly somewhat related to the unpopularity of last night’s Federal Budget, the winner of the 2014 Golden GLORIA, was Prime Minister Tony Abbott.

One final category, which wasn’t in the program, but which was awarded for the first time on the night, was the inaugural ‘good’ GLORIA, for people or organisations which have shown the most improvement in terms of accepting LGBTI people. The winner was the anti-homophobia initiative in April involving the leaders of major Australian sporting codes, and the #YouCanPlay campaign alongside it. Fittingly, ex-NRL trailblazer Ian Roberts was on hand to accept the award on their behalf.

So, that’s the GLORIAs done for another year. Thanks again to Penny Sharpe for another fabulous event – and I understand that nominations for next year’s event should open by the weekend (there is already an early frontrunner, given Miranda Devine’s recent efforts, but there’s still plenty of time left for more ridiculous, outrageous and ignorant comments to be made).

Don’t Limit Racial Vilification Protections, Add Vilification Protections for LGBTI Australians

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The following is my submission to the Attorney-General’s Department’s Review of the Freedom of speech (repeal of s.18C) Bill 2014 – Exposure Draft (aka the Bill to significantly limit the scope of racial vilification protections under the Racial Discrimination Act 1975).

Submissions close on Wednesday 30 April, and more details can be found here: <http://www.ag.gov.au/Consultations/Pages/ConsultationsonamendmentstotheRacialDiscriminationAct1975.aspx

I strongly encourage you to make a submission, and include in it the call for the Commonwealth to focus on expanding protections for the benefit of all lesbian, gay, bisexual, transgender and intersex Australians, rather than limiting the operation of s18C for one Melbourne-based News Ltd columnist. Thanks.

Human Rights Policy Branch

Attorney-General’s Department

3-5 National Circuit

BARTON ACT 2600

s18cconsultation@ag.gov.au

Thursday 24 April 2014

To whom it may concern,

SUBMISSION ON RACIAL VILIFICATION AMENDMENTS

Thank you for the opportunity to make a submission on the proposed changes to the racial vilification provisions of the Racial Discrimination Act 1975, as contained in the Freedom of speech (repeal of s.18C) Bill 2014 Exposure Draft.

For the reasons explained below, I do not support the replacement of existing sections 18B, 18C, 18D and 18E with the new clauses of the Exposure Draft Bill.

However, I do believe that significant changes should be made to vilification provisions in Commonwealth law: namely, that vilification protections should be expanded to cover sexual orientation, gender identity and intersex status.

The absence of such protections leaves lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians vulnerable to the same types of adverse public conduct experienced by people of different racial backgrounds, but without recourse to the same complaint resolution mechanisms.

I will now turn to these two issues – the proposed reforms, and the case for introducing LGBTI vilification protections – in more detail.

Proposed Reforms to Section 18C

In considering any potential reforms to section 18C of the Racial Discrimination Act 1975, it is useful to start at the particular sub-section which features in most debate. Sub-section 18C(1)(a) makes it “unlawful for a person to do 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.”

I am of the view that the drafting of this sub-section is probably not ideal, and, arguably, is too broad in terms of the types of conduct that at least theoretically could be captured. I do not believe that, were provisions regarding racial vilification to be drafted today, they would include the terms ‘offend’ or ‘insult’ (or at least not without aggravating factors or considerations).

However, it is one thing to suggest that the drafting of a provision is something less than ‘ideal’ – it is another to suggest that poor drafting has directly caused problems that mean it must be amended. And even if that test is satisfied, any proposed reforms to the law should be an improvement, and not worsen any potential harm.

Turning to the question of whether the drafting of section 18C has directly led to, or caused, any significant problems, I am not convinced that it has. Racial vilification protections under the Racial Discrimination Act 1975 appear to be widely supported by the community, and, for the most part, appear to be working well, both with the oversight of the Australian Human Rights Commission and in the Courts.

There is, of course, one case which is frequently cited as necessitating change to section 18C, and its related provisions, and that is the case of Eatock v Bolt [2011] FCA 1103.

Even ignoring the old legal maxim that hard cases make bad law (“Hard cases, it has frequently been observed, are apt to introduce bad law”, from Judge Rolfe in Winterbottom v Wright in 1842), it is not clear that the outcome of the “Bolt case” makes any persuasive case for change.

In the summary of that decision, Justice Mordecai Bromberg explained that “I am satisfied that fair-skinned Aboriginal people (or some of them) were reasonably likely, in all the circumstances, to have been offended, insulted, humiliated or intimidated by the imputations conveyed by the newspaper articles” of Mr Bolt (para 17).

Justice Bromberg also explained that Mr Bolt’s conduct could not fit within what are, to be frank, extremely generous exemptions in section 18D, writing that “I have not been satisfied that the offensive conduct that I have found occurred, is exempted from unlawfulness by section 18D. The reasons for that conclusion have to do with the manner in which the articles were written, including that they contained errors of fact, distortions of the truth and inflammatory and provocative language” (para 23, emphasis added).

In his summary, Justice Bromberg also articulates at least one of the reasons why laws should exist to prohibit writings such as those of Mr Bolt: “People should be free to fully identify with their race without fear of public disdain or loss of esteem for so identifying. Disparagement directed at the legitimacy of the racial identification of a group of people is likely to be destructive of racial tolerance, just as disparagement directed at the real or imagined practices or traits of those people is also destructive of racial tolerance” (para 22).

In short, there appears to at least be an arguable case that not only was the “Bolt case” decided correctly on the existing law, but also that the current provisions are operating as intended to limit the negative effects of racial intolerance. Conversely, I believe it is difficult to argue, solely on the basis of Eatock v Bolt, that section 18C is so deficient that it should be amended, and amended as a matter of high priority.

Even if the argument that change was, indeed, necessary was accepted, I do not support that changes proposed in the Freedom of speech (repeal of s.18C) Bill 2014 Exposure Draft.

I believe that the replacement of ‘offend, insult, humiliate or intimidate’ with to vilify (defined as “to incite hatred against a person or a group of persons”) or to intimidate (meaning “to cause fear of physical harm; to a person; to the property of a person; or to the members of a group of persons”), would arbitrarily and unduly limit the effectiveness of these protections.

I agree with the Australian Human Rights Commission, in their statement of Tuesday 25 March 2014, that: “the bill reduces the level of protection by providing a narrow definition of vilification and by limiting intimidation to causing fear of physical harm. It is not clear why intimidation should not include the psychological and emotional damage that can be caused by racial abuse.”

I also agree with the Australian Human Rights Commission in their concerns about the breadth of the exemptions proposed in new clause (4). As the Commission notes “[t]his provision is so broad it is difficult to see any circumstances in public that these protections would apply.”

This is at least in part because the previous limitations of section 18D – that words or conduct must be done “reasonably and good faith” to be exempted – have been removed, again without a clear explanation or motivation. In my opinion, the proposals contained in the Exposure Draft Bill would not improve the operation of racial vilification protections generally, but instead have the capacity to make things substantially worse.

Overall, while I concede that the current drafting of section 18C is not ‘ideal’, I do not believe that there are sufficient problems in practice for it to be amended. I also strongly oppose the replacement of sections 18B, 18C, 18D and 18E of the current Racial Discrimination Act 1975, with the clauses contained in the Freedom of speech (repeal of s.18C) Bill 2014 Exposure Draft.

Recommendation 1. The Freedom of speech (repeal of s.18C) Bill 2014 – Exposure Draft should not be introduced into or passed by the Commonwealth Parliament.

Need to expand vilification protections to cover sexual orientation, gender identity and intersex status

While I do not believe a case has been made to reform the racial vilification provisions of the Racial Discrimination Act 1975, I do believe there is a strong case for expanding vilification provisions under Commonwealth law to offer additional protection to LGBTI Australians.

In a similar way to their ongoing problems with race, some extreme elements within Australian society continue to demonstrate their difficulty in accepting people, and treating them equally, irrespective of sexual orientation, gender identity or intersex status.

Both groups – Australians of diverse racial backgrounds, and LGBTI people – are regularly subject to vilification in public contexts, whether that be in political or media debates, or in harassment and abuse in public spaces.

Significantly, while LGBTI Australians finally achieved anti-discrimination protections under Commonwealth law in 2013 (a mere 38 years after the passage of the Racial Discrimination Act), the Sex Discrimination Act amendments did not include protections from homophobic, biphobic, transphobic and anti-intersex vilification. Unlike people of diverse races, LGBTI people still cannot launch complaints about vilification under Commonwealth law.

There is no philosophical or conceptual reason why this should be the case – both are vulnerable groups, subject to vilification against which they deserve to be protected.

The vilification of LGBTI people can take many forms. A 2003 NSW Attorney-General’s Report found that, in the previous 12 months, 56% of gay men and lesbians had been subject to one or more forms of homophobic abuse, harassment or violence.

This violence can also be extreme – as demonstrated by the disturbingly high number of gay men violently murdered in Sydney during the 1980s and 1990s, but whose tragic deaths are only now being properly investigated.

In terms of vilification in public debate, there are almost too many examples of homophobia, biphobia, transphobia and anti-intersex discrimination to choose from (and certainly enough to hold an annual event ‘celebrating’ the worst of these comments in a range of different areas of public life, aka The GLORIAs).

One notorious example from recent years was the homophobic comment of a religious figure, addressing a ‘National Marriage Day’ rally outside Parliament House in 2012, who said “I’m convinced that homosexuals (re)produces (sic) themselves by molesting children.”

Unfortunately, heading inside Parliament House, the tenor of public debate is sometimes not much better. Over the past 12 years we have seen Senators argue that allowing two men or two women to marry could lead to humans having sex with animals, arguing that enacting marriage equality would potentially result in another ‘Stolen Generations’, and abusing parliamentary privilege to smear an openly-gay High Court Justice with unfounded allegations of paedophilia (apparently solely because of his homosexuality).

This is not to say that all, or even any, of those comments would necessarily qualify as vilification under an equivalent provision to section 18C, but, the fact those comments are able to be made in our National Parliament provides a small insight into the type of abuse and vitriol which continues in other forums, day-in, day-out, which are not subject to the same levels of scrutiny.

That includes street-level harassment and abuse which my fiancé Steven and I, like many thousands of other LGBTI Australians, experience all-too-frequently. Anyone who is ‘visibly’ identifiable as lesbian, gay, bisexual, transgender or intersex, including non-LGBTI people who are perceived as being LGBTI by others, and anyone who simply wants to engage in the tender act of holding one’s same-sex partner’s hand, knows the risks that being or expressing who you are in public can bring, from being yelled at from passing cars, to the very real threat of much, much worse.

Of course, the introduction of s18C-style protections on the basis of sexual orientation, gender identity and intersex status will not automatically lead to a reduction in such abuse, but it will allow for people to contest the most egregious examples of homophobic, biphobic, transphobic and anti-intersex vilification in public life.

Over time, the introduction of vilification protections for LGBTI Australians, on top of the recently passed anti-discrimination laws, would help to send a strong signal to the wider community that such conduct was no longer tolerated.

The impetus for sending such a signal can be found in figures which show that lesbian, gay, bisexual, transgender and intersex Australians continue to experience disproportionately high rates of mental health issues, including depression, attempted suicide and suicide.

This problem is especially pronounced amongst younger LGBTI people, with young same-sex attracted people estimated to be 6 times more likely to attempt suicide than their heterosexual counterparts (source: National LGBTI Health Alliance). Young people’s experience of discrimination and homophobia has been found to play a key role in this huge, and sadly persisting, health disparity.

Not only is public vilification in the form of homophobia, biphobia, transphobia and anti-intersex discrimination wrong in and of itself, it has serious consequences, including in negative mental health outcomes for LGBTI people.

I believe that anti-LGBTI vilification must be prohibited under the Sex Discrimination Act, in the same way that racial vilification was in 1995 when the Racial Hatred Act amended the Racial Discrimination Act, and that it should be done as soon as possible.

Recommendation 2. The Sex Discrimination Act 1984 should be amended to prohibit vilification on the basis of sexual orientation, gender identity and intersex status.

Obviously, there are other potential attributes which could also be aided by the introduction of vilification protections, including those grounds which already have Commonwealth anti-discrimination laws (sex, disability and age), but, as I am not an expert in any of those issues, I am not in a position to argue for or against their inclusion in this submission.

Nevertheless, I strongly believe that these questions – whether vilification protections should be expanded, and which additional groups they should cover – are the ones which should be occupying the mind of our Commonwealth Attorney-General, and indeed all MPs, rather than working out how to restrict the protections offered by the racial vilification provisions contained in the Racial Discrimination Act 1975.

I sincerely hope that this submission assists in helping to turn that conversation around, and that we, as a community, start to focus on enhancing instead of undermining human rights.

Thank you for taking these comments into consideration. Should you require clarification or further information, I can be contacted at the details below.

Sincerely,

Alastair Lawrie

Submission on Review of NSW Surrogacy Act 2010

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The NSW Attorney-General’s Department is currently reviewing the Surrogacy Act 2010, legislation which allowed equal access to altruistic surrogacy within NSW, but made a criminal offence, with a penalty of to 2 years’ imprisonment, of entering into commercial surrogacy arrangements both within NSW and overseas.

Submissions are due by 30 April (next Wednesday), and full details about the review can be found here: <http://www.lpclrd.lawlink.nsw.gov.au/lpclrd/lpclrd_consultation/lpclrd_stat_reviews.html?s=1810621881

As with the NHMRC review of the Ethical Guidelines re Assisted Reproductive Technology, this subject matter is complicated, and I am sure that some people reading this blog will disagree with some of my conclusions (particularly re commercial surrogacy). if that’s the case, then I encourage you to leave a comment below and/or write your own submission.

The Director,

Justice Policy

Department of Attorney General and Justice

GPO Box 6

SYDNEY NSW 2001

justice.policy@agd.nsw.gov.au

Wednesday 23 April

Dear Director,

SUBMISSION RE REVIEW OF SURROGACY ACT 2010

Thank you for the opportunity to provide my personal submission in response to the review of the NSW Surrogacy Act 2010.

As suggested by the terms of reference, this submission is separated into two parts: the first examines whether the policy objectives of the Act remain valid, while the second considers whether the terms of the Act remain appropriate for securing those objectives.

Part A: Do the policy objectives of the Surrogacy Act 2010 remain valid?

The review outlines that the policy objectives of the Surrogacy Act 2010 are to:

  • Protect the interests of children born as a result of surrogacy arrangements;
  • Provide legal certainty for parties to surrogacy arrangements, and
  • Prevent the commercialisation of human reproduction.

Overall, I believe that the first two of these policy objectives remain valid, while the third should be replaced with the policy objective “To prevent the exploitation of people for the purposes of human reproduction”. I also believe that an additional policy objective should be added: “To recognise and support diversity in family structures and relationships.”

Protect the interests of children born as a result of surrogacy arrangements

As with likely all other people making submissions to this review, I strongly support the retention of this policy objective. I also agree with the inclusion of this objective as the primary Guiding Principle in section 3 of the Act: “[t]his Act is to be administered by reference to the principle that, in relation to any surrogacy arrangement, the best interests of the child of the surrogacy arrangement are paramount.”

I note that the best interests of children born through surrogacy are protected and supported by the equal treatment of all people, irrespective of sexual orientation, gender identity and intersex status, because, as all reputable research has shown, none of these characteristics are relevant in determining whether an individual or couple will be a good, caring and loving parent(s).

The Surrogacy Act 2010 should be commended for not drawing any distinctions on the basis of these attributes, and the non-discriminatory nature of its operative provisions should be retained.

However, the role of the Act in affirming the diversity of family structures and relationships that already exist in NSW could be strengthened by the elevation of a principle reflecting this reality in a new stand-alone policy objective.

Such a possibility was considered during the second reading speech debate in 2010[1], as well as in the Standing Committee on Law and Justice’s 2009 Report entitled ‘Legislation in Altruistic Surrogacy’, which helped to inform development of the Act.

I believe that a new policy objective – namely, “To recognise and support diversity in family structures and relationships” – should be added to the Act to highlight the non-discriminatory approach of the legislation and the fact that all people can be good parents, irrespective of sexual orientation, gender identity or intersex status.

Recommendation 1: A new policy objective should be added to the Surrogacy Act 2010– “To recognise and support diversity in family structures and relationships.”

Provide legal certainty for parties to surrogacy arrangements

Not only do I believe that this policy objective remains valid, but I also believe that the Act, and its framework for transfer of parentage of children born through surrogacy arrangements, is largely successful in achieving this outcome. Therefore, this policy objective should be retained.

Prevent the commercialisation of human reproduction

I do not support this policy objective, and believe it should be replaced with a new policy objective: “To prevent the exploitation of people for the purposes of human reproduction.”

By way of explanation, I believe the inclusion of the current policy objective is, to some degree, an attempt to address the issue of potential reproductive exploitation (especially of women), but that it confuses the means (a ban on commercial reproduction, including surrogacy) with the ends (preventing reproductive exploitation). It is the ends that should be reflected in the policy objectives rather than the means.

Further, I believe that the question whether commercial surrogacy is and always will be wrong, in every possible circumstance, is complex, and one about which different people, well-motivated and passionate about human rights and welfare, can and do reach different conclusions. However, one conclusion about which I hope all people would agree is that people, and especially women, should not be exploited for their reproductive capabilities.

Personally, I do not feel confident in saying that every possible arrangement, between a birth mother and the intended parent(s) of the child, is inherently wrong – and wrong to the point where it should be criminalised – simply because of the exchange of money in addition to those which cover the birth mother’s costs.

Nor do I necessarily believe that the nature of a surrogacy arrangement automatically and fundamentally changes, from one which is recognised and supported in legislation (altruistic surrogacy), to one which is not only prohibited but attracts a maximum penalty of two years’ imprisonment (commercial surrogacy), because of the exchange of that money.

Of course, I am cognisant of the fact that the introduction of financial ‘rewards’ to the already ethically-complex area of surrogacy arrangements carries with it significant risks. Chief among those are the risk that people, and especially the women acting as surrogate mothers, will be exploited for their reproductive capabilities.

However, I also believe there are other ways in which people can be exploited for their reproductive capabilities (such as through emotional and/or familial pressure). Indeed, the Surrogacy Act 2010 already contains a range of safeguards that have nothing to do with commercialisation, but are directed at preventing exploitation (for example, the requirement for an independent counsellor’s report to verify that the birth mother has an “understanding of the social and psychological implications of the making of a parentage order” and “whether any consent given by the birth parent or parents to the parentage order is informed consent, freely and voluntarily given” – subsections 17(3)(a) and (f)).

In my view, it is the prevention of exploitation that should be the policy objective in this area, rather than commercialisation per se. This new objective should then be used to guide whether and, if so, how commercial surrogacy arrangements should be allowed (see discussion in part B).

Recommendation 2: The policy objective “To prevent the commercialisation of human reproduction” should be replaced with a new policy objective “To prevent the exploitation of people for the purposes of human reproduction.”

Part B: Do the terms of the Surrogacy Act 2010 remain appropriate to secure those objectives?

For the most part, the provisions of the Surrogacy Act 2010 work well in protecting the interests of children born as a result of surrogacy arrangements and in providing legal certainty for parties to surrogacy arrangements. As indicated in Part A, I also believe that the non-discriminatory way in which the legislation has been drafted could be enhanced further by the addition of a new policy objective (“To recognise and support diversity in family structures and relationships”).

However, I believe that there is a clear divergence in determining whether the provisions of the Act remain appropriate depending on which of the two alternative policy objectives discussed in Part A (‘prevent commercialisation’ or ‘prevent exploitation’) is adopted.

For example, if the over-arching goal of the legislation remains to prevent commercialisation in any form, then the ban on commercial surrogacy in section 8 (which includes a maximum penalty of 1000 penalty units or 2 years’ imprisonment, or both, for those people who are in contravention) would clearly still be appropriate.

The prohibition on commercial surrogacy arrangements entered into overseas by people ordinarily resident or domicile in NSW, as outlined in the ‘geographical nexus for offences’ provision in section 11, would also remain a valid attempt to secure the objective of preventing commercialisation.

However, if the policy objective of preventing commercialisation is actually seen as a means to the end of preventing exploitation (which I believe it is), or indeed, if it were to be replaced with the explicit policy objective of preventing exploitation of people and especially women for their reproductive capabilities, then we are forced to consider how these provisions are currently operating, and their impact on people both in NSW and overseas.

I suspect that, even before the Surrogacy Act 2010 was introduced, there were few, if any, commercial surrogacy arrangements entered into within NSW, and that this situation would remain the case today.

I also believe that there is evidence that the number of overseas commercial surrogacy arrangements was growing at the time of the legislation’s passage, and that, since its introduction, the number of these arrangements entered into by people resident or domiciled in NSW has likely decreased. This could be seen as evidence that the ban has reduced exploitation.

However, I also believe that there is sufficient anecdotal and other evidence that some overseas commercial surrogacy arrangements entered into by people living in NSW continue. The overwhelming desire for some individuals or couples to become parents, together with the low numbers of ‘stranger’-child adoptions, both within Australia and internationally, means that this option continues to be at or near the top of the list of possible routes to parenthood. The criminal penalty attached to section 8 is unlikely to deter such people.

The result of this is that, while some individuals or couples may choose (or have the money to choose) commercial surrogacy arrangements in countries with strong regulation and low economic disadvantage, which at least reduces the possibility of exploitation, others opt for (or are financially restricted to choosing) countries with little or no regulation, as well as higher economic inequality or disadvantage than Australia, thereby significantly increasing the risks of exploitation of the women acting as surrogate mothers.

Thus, while the ban on commercial surrogacy may be effective in preventing the exploitation of women within Australia, I believe it has to be acknowledged that it is not entirely successful in preventing the potential for exploitation of women in other countries.

In this context, we are forced to consider whether there are alternative approaches to the question of commercial surrogacy that could lower the overall level of exploitation of all women.

At least one option, which should at least be considered, would be legalising commercial surrogacy arrangements within NSW, and placing them within a tightly regulated system with the ability to be overseen by appropriate domestic agencies, while at the same time continuing the prohibition on commercial surrogacy arrangements entered into overseas.

This framework – domestic legalisation and overseas ban – arguably may have the best potential to reduce the overall level of reproductive exploitation of women.

However, it is difficult to consider the respective advantages or disadvantages of such a framework in the absence of a proposal outlining exactly how a domestic commercial surrogacy scheme could operate. I believe it is nearly impossible to compare the known harms of surrogate exploitation in (some) overseas countries, with the hypothetical risks of exploitation under an unknown domestic commercial surrogacy scheme.

For this reason, I believe that the NSW Law Reform Commission or similar body should be given the responsibility to consider this issue, but, rather than recommend whether commercial surrogacy should be legalised or not, they should instead design what a ‘model’ domestic commercial surrogacy scheme would look like, with the guiding principle of minimising the risks of exploitation.

This model could then be used as the basis for a genuine and sustained debate, in the community, the media and amongst politicians, about whether the current system (a blanket ban), or a system which allows for tightly-regulated domestic commercial surrogacy, is the best way to reduce the risk of exploitation of all women, and not just those living in NSW.

Of course, it may be that it is impossible to design a domestic commercial surrogacy scheme that sufficiently reduces the risks of exploitation of people (and especially women) for their reproductive capabilities.

It may also be that, after this process, the majority of people still believe that the ‘commercialisation’ of human reproduction is always wrong, and that commercial surrogacy should always be illegal.

However, given we are aware that at least some overseas commercial surrogacy arrangements continue to occur, and appear likely to continue well into the future, I believe it is incumbent upon us to consider whether there are any alternatives to the current regulatory approach and, after considering those alternatives, decide what is the most appropriate way “To prevent the exploitation of people for the purpose of human reproduction.”

Recommendation 3: The NSW Law Reform Commission, or similar body, should be asked to design a ‘model’ framework for domestic commercial surrogacy arrangements, with a guiding principle to minimise the risks of the exploitation of people for the purpose of human reproduction.

Should you require additional information, or to clarify any of the recommendations included in this submission, I can be contacted at the details below.

Sincerely,

Alastair Lawrie

[1]http://www.parliament.nsw.gov.au/prod/parlment/NSWBills.nsf/0/71c024816771a264ca2577c100195683/$FILE/LC%2010210.pdf

Submission on NHMRC Review of Ethical Guidelines for Assisted Reproductive Technology

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The Australian National Health and Medical Research Council is currently reviewing Part B of the Ethical Guidelines for the Use of Assisted Reproductive Technology in Clinical Practice and Research, 2007.

These Guidelines provide advice on a wide range of matters, including whether and if so in what circumstances someone can refuse to provide an ART procedure, and whether someone can direct that their gametes or embryos may only be used (or not used) by particular ethnic or social groups. They also currently include a prohibition on commercial surrogacy.

I have made a submission to the inquiry – which I reproduce below – which, as you can tell, largely argues for LGBTI equality, but also adopts a position on commercial surrogacy which I know some might find controversial (and if people do disagree with me I encourage you to leave a comment below).

I believe as many people as possible should make a submission to the review, because it should be informed by voices from across the community, including the LGBTI community (and that includes people who disagree with me on commercial surrogacy too). The details for the review, and how to make a submission, can be found at the following link: <http://consultations.nhmrc.gov.au/public_consultations/assisted_reproductive The closing date is Wednesday 30 April (ie ten days away), so time to get cracking.

Thanks for reading, and as always, let me know what you think.

Project Officer – Assisted Reproductive Technology

Health & Research Ethics Section

National Health and Medical Research Council

GPO Box 1421

CANBERRA ACT 2601

ethics@nhmrc.gov.au

Dear Project Officer, 

Review of Part B of the Ethical Guidelines for the Use of Assisted Reproductive Technology in Clinical Practice and Research, 2007

Thank you for the opportunity to make a submission on the review of Part B of the Ethical Guidelines for the Use of Assisted Reproductive Technology in Clinical Practice and Research, 2007.

I do so as an ordinary member of the public, without any special qualification or expertise in assisted reproductive technology (ART), but with a strong interest and passionate commitment to the legal and substantive equality of lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians.

I do not propose to answer all 60 of the questions contained in the public consultation document on the NHMRC website, but will instead focus my comments on those issues which are most relevant to LGBTI equality, as well as to the issue of commercial surrogacy.

In particular, I would like to make comments about the following five areas:

  1. Conscientious Objections
  2. Transmissible Infections
  3. Unknown but Directed Donations
  4. Selection for Particular Characteristics
  5. Commercial Surrogacy
  1. Conscientious Objections

My first concern is about the breadth of the description of conscientious objections in paragraph 5.9 (page 12 of the consultation document). Specifically, this paragraph provides that “[i]f any member of staff or student expresses a conscientious objection to the treatment of any individual patient or to any ART procedures conducted by the clinic, the clinic must allow him or her to withdraw from involvement in the procedure or program to which he or she objects.”

While I note that the provision of ART services may, for some staff members of students, raise ethical concerns, I believe that the drafting of this provision is far too broad, and allows for conscientious objections even when such objections are themselves unethical.

For example, the provision as drafted would allow an individual member of staff to refuse to provide ART services to a person on the basis of that person’s sexual orientation, gender identity or intersex status (if that person believed that ART services should not be provided to such persons) or on the basis of relationship status (if the person believed that only ‘opposite-sex’ married persons should have access to ART).

With the increasing acceptance of LGBTI Australians (as evidenced by the long-overdue introduction of federal anti-discrimination protections in 2013) and of different relationship statuses (including the 2008 reforms to federal de facto relationship recognition), none of these objections – while potentially genuinely held by the individual – should be allowed as the basis for refusing to provide ART services. Nor should conscientious objections on the basis of any of sexual orientation, gender identity, intersex status or relationship status be recognized as acceptable or ‘ethical’ in the context of these Guidelines.

If paragraph 5.9 is to be retained in the Ethical Guidelines, I recommend that it be amended to specifically note that conscientious objections do not apply, and are not accepted, with respect to the sexual orientation, gender identity, intersex status or relationship status of the intended recipient of the ART procedure or service.

  1. Transmissible Infections

My second concern also relates to the breadth of provisions contained in the Guidelines, in this case paragraph 6.4 (titled Minimise risk of infection, on page 19 of the consultation document). Specifically, sub-paragraph of this section provides that “[c]linics should not accept donations from people at an increased risk of transmissible infections”.

While I acknowledge the importance of reducing the risk of transmission of communicable diseases, I believe that the wording of this sub-paragraph allows for potential misinterpretation or misapplication to prohibit donations from all people from a particular demographic group who may be over-represented in notifications for a transmissible infection (for example, men who have sex with men, who are currently disproportionately represented in HIV notifications in Australia).

This level of prohibition – at demographic group level – would ignore the particular behaviours or characteristics of the individual, which in practice make that individual more or less susceptible to transmission.

My concern is this area is founded on the ongoing exclusion of all men who engage in same-sex sexual intercourse from donating blood, irrespective of their particular behaviours or characteristics and therefore actual risk.

It is my view that any risk assessment, if deemed necessary at all, should be performed at individual level, rather than demographic group, and that the Guidelines should make this differentiation explicit in this section.

I would also note that the requirement contained in sub-paragraph 6.4.2 (that “[a]ll donors of gametes should undergo appropriate infection control surveillance”) is possibly all that is necessary to be included in this section in any event. If the individual concerned is being tested for relevant infections, and appropriate monitoring is being undertaken, then sub-paragraph 6.4.1 may in fact already be redundant.

  1. Unknown but directed donations

This concern relates to the paragraphs addressing ‘unknown but directed donation’ of both gametes (paragraph 6.9, at page 20 of the consultation document) and embryos (paragraph 7.6, at page 29).

I am strongly opposed to the recognition, even under Ethical Guidelines, of any ability of donors to restrict the use of their gametes or embryos to “certain individuals, such as those from a particular ethnic or social group.”

This creates the possibility of donors restricting the use of their gametes or embryos to people of a particular sexual orientation or gender identity (for example, to cisgender heterosexual people), and therefore to excluding other people on the basis of their sexual orientation, gender identity or intersex status. It also appears that this would allow for similar distinctions to be made on the basis of relationship status.

I note that paragraph 6.9 highlights that “[t]his type of directed donation is illegal in some jurisdictions.” I believe that it should be made illegal in all jurisdictions. The principle of non-discrimination, including non-discrimination against LGBTI people, should trump any ability of potential donors to discriminate against people on the basis of sexual orientation, gender identity, intersex status of relationship status.

Even where ‘unknown but directed donations’ are not made illegal under law, the placing of such restrictions on the donation of gametes or embryos should not be respected through these Guidelines (as they currently are in both paragraphs 6.9 and 7.6, which conclude by saying “[i]n the remaining states and territories, clinics must not use the gametes/embryos in a way that is contrary to the wishes of the donor.”)

At this point I note that there are two options to implement such a recommendation – and that is to either override any expressed discriminatory preference of the donor and provide the gametes/embryos to others irrespective of whatever qualification was sought, or to reject all such donations and ensure that their gametes/embryos are not used. I am comfortable with either outcome, as they both satisfy the principles of equality/non-discrimination, although I highlight the fact that the former would allow more gametes/embryos to be used by individuals or couples who may require them.

  1. Selection for Particular Characteristics

Paragraph 11.1 of the Ethical Guidelines (headed Do not select sex for non-medical purposes, on page 48 of the consultation document) states that “sex selection (by whatever means) must not be undertaken except to reduce the risk of transmission of a serious genetic condition”. I support the inclusion of this principle in the Guidelines.

However, I note that, in future, there exists the potential that research may create the possibility of determining the likely (or at least increased predisposition towards a specific) sexual orientation or gender identity of a child born as a result of assisted reproductive technology. I also note that, for certain groups within the umbrella term intersex (such as congenital adrenal hyperplasia, and androgen insensitivity syndrome) these diagnostic tests are already a possibility, while additional groups within intersex may be able to be determined in the future.

Given that the incredible diversity of sexual orientation (including heterosexuality, homosexuality and bisexuality), gender identity (recognizing those who are cisgender and those who are transgender) and sex (including intersex status) of human life is natural, and that all people, including LGBTI people, are equal, and should be treated as such, I believe the Guidelines should also include a prohibition on the selection of reproductive material on the basis of (likely or prospective) sexual orientation, gender identity or intersex status.

While for sexual orientation and gender identity, this scenario – the screening of embryos for such characteristics – may ultimately prove to be some years or even decades into the future, I believe that it is vital to lay down this signpost, that such discrimination will not be tolerated, now, thereby setting a precedent for if and when it is ever required. In the case of intersex status, such guidelines are necessary now, to support and recognize sex diversity.

  1. Commercial Surrogacy

Finally, I note that paragraph 13.1 of the Ethical Guidelines (on page 52 of the consultation document) states that “[i]t is ethically unacceptable to undertake or facilitate surrogate pregnancy for commercial purposes.”

While I agree that commercial surrogacy raises a variety of complex ethical issues, I do not necessarily agree with such a broad-sweeping and all-encompassing statement against commercial surrogacy. I do not believe there is sufficient evidence to assert that in every single situation commercial surrogacy is ‘unethical’ or ‘wrong’.

Of course, I am, like most people, sensitive to the very real potential for commercial surrogacy to result in the exploitation of women for their reproductive capabilities. This has to be a major, if not the major, consideration in determining whether to allow commercial surrogacy and if so what form of regulation might be appropriate.

However, I am also aware that the current legal situation – where commercial surrogacy in Australia is banned, and as a direct result of these laws an increasing number of Australian individuals and couples are engaging in commercial surrogacy arrangements overseas – may in fact cause a far greater degree of exploitation of women, especially in developing countries and/or countries which do not closely regulate surrogacy arrangements.

It may be that a domestic ban on commercial surrogacy has, contrary to the intended outcome of those who introduced it, in fact resulted in greater exploitation of women when considered as a whole. It may also be that, creating a domestic commercial surrogacy scheme, which would allow for direct oversight by Commonwealth (or State and Territory) authorities, could lead to a significant reduction in the potential for such exploitation.

I do not expect the review process considering these Guidelines to come to a conclusion about these difficult matters. Nor am I willing, or in a position, to even attempt to suggest what a domestic commercial surrogacy scheme would look like.

However, I do believe that this is an issue that requires further investigation, and could be the subject of a comprehensive review by the Australian Law Reform Commission, or their State and Territory equivalents.

The ALRC could be asked not to review whether such a scheme should be adopted but to determine, if commercial surrogacy was to be allowed in Australia, what the best possible scheme (with the least potential for the exploitation of women) would look like. The Parliament, and the wider community, could then discuss and debate the option that was put forward and make an informed choice about whether such a model was preferable to the ongoing domestic ban on commercial surrogacy (and the corresponding trend to overseas surrogacy arrangements).

I believe that such a debate, informed not just by a practical proposal but also by the real-world consequences of the current ban, is vital before we can truly come to grips with and possibly resolve whether a permanent ban on commercial surrogacy is ethical or otherwise.

Thank you for taking my submission into consideration.

Sincerely,

Alastair Lawrie

20 April 2014

Dear Joe Hockey, If you’re serious about cutting expenditure, you must axe school chaplains

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As promised during the 2013 federal election campaign, one of the first actions of the Tony Abbott-led Liberal-National Government was to establish a National Commission of Audit, to review all Commonwealth expenditure in an effort to reduce spending and ultimately deliver a Budget surplus.

Indeed, the Terms of Reference for the Commission of Audit described it as a “full-scale review of the activities of the Commonwealth government to:

-ensure taxpayers are receiving value-for-money from each dollar spent;

-eliminate wasteful spending; …

-identify areas or programs where Commonwealth involvement is inappropriate…” [among other objectives].

The Commission’s first report was delivered to the Treasurer, Joe Hockey, in mid-February, and the second was handed over at the end of March. The contents of both reports were, quite cynically, kept from the public ahead of the Western Australian half-Senate election on 5 April (because you wouldn’t want an electorate to actually be informed about impending spending cuts before they vote), although, with only one month left until the Federal Budget is handed down it’s highly likely they will be released in the next week or two.

It is expected that the Commission will recommended that the axe fall on (or at least make significant cuts to) a wide range of different programs, with apparently ‘authorised’ leaks focusing on things like the aged pension, Medicare (through a $6 co-payment) and other vital health, education and welfare services.

However, there is one program that, I believe, meets all of the above criteria and thoroughly deserves to be cut as part of any serious expenditure review: the National School Chaplaincy and Student Welfare Program. It is almost impossible to argue that putting ministers of religion into government schools could ever be value-for-money, when compared with almost any other government expense. As well as being enormously wasteful spending, it would also seem to be the definition of a program where Commonwealth involvement is inappropriate.

And yet, given the highly political nature of the Commission of Audit, I suspect it is unlikely the National School Chaplaincy Program is under any real threat. Even if the Commission were to recommend its abolition, it is hard to believe that Joe Hockey would actually follow through on any such advice when he rises to the dispatch box on the night of Tuesday 13 May.

More’s the pity. The National School Chaplaincy Program is amongst the worst examples of public policy over the past decade (and there have been some absolute shockers in that time). It was introduced by John Howard in the dying days of his government (2007), as he realised his grip on power was loosening with age – basically, it was a sop to ultra-conservatives and religious fundamentalists (both of which can be found in the form of the Australian Christian Lobby) to entice them to remain aboard his sinking electoral ship.

Alas, in a demonstration that poor policy, and religious pork-barrelling, can be bipartisan, the incoming Prime Minister, Kevin Rudd, maintained the National Schools Chaplaincy Program throughout his first stint in the Lodge. When it came time to review the first three years of its operation, frustratingly he and his then Deputy, Education Minister Julia Gillard, chose to continue, rather than close, the program.

As Prime Minister in the lead-up to the 2010 poll, Gillard then announced a $222 million extension of the program til the end of this year (2014). This money was also provided to allow for expansion of the scheme’s coverage, from 2,700 schools up to 3,550 schools.

The only figure that accomplished anything to at least partially mitigate the genuine awfulness of the National Schools Chaplaincy Program over the past seven years was Education Minister Peter Garrett, who changed the program guidelines from the start of 2012 to allow schools to choose between chaplains or qualified student counsellors (hence the revised name). He also attempted to introduce a requirement that all workers, including chaplains, have some level of relevant qualifications, although recognition of ‘prior learning’ on the job was also encouraged.

Nevertheless, the vast majority of people employed as a result of this scheme remain ministers of religion. Imagine that: in 2014, the Commonwealth Government provides up to $24,000 per year to more than three and a half thousand schools to subsidise the employment of someone whose primary ‘qualification’, indeed whose primary vocation full stop, is to proselytise.

Ironically, the National School Chaplaincy and Student Welfare Program Guidelines then go to great lengths to attempt to limit the ability of chaplains to proselytise or evangelise from their position of authority within the school community, which is about as useful as telling a tree to stop growing leaves (or telling Cory Bernardi to stop being a bigot). It seems like the apotheosis of a set of rules where adherence, rather than breach, will be the exception.

The Guidelines themselves are also full of loopholes, allowing chaplains to “provid[e] services with a spiritual content (excluding religious education) including facilitating discussion groups and lunch time clubs” with approval and consent, as well as “performing religious services/rites (such as worship or prayer during school assembly etc), with… appropriate prior consent”.

This is an obvious and serious contravention of the principle of the separation of church and state. In the United States, such a program – paying for men (and some women) of faith to introduce their religion into government schools – would be struck out as unconstitutional by their Supreme Court.

Sadly, the anaemic interpretation of section 116 of the Constitution adopted by the High Court of Australia in the “DOGS case” [Attorney-General (Vic); Ex Rel Black v Commonwealth [1981] HCA 2; (1981) 146 CLR 559 (2 February 1981)] meant that it was never going to be struck down here, or at least not on those grounds.

Even after the program was successfully challenged by Toowoomba father, and man of principle, Ron Williams in 2012, with the High Court finding that the scheme did not have a legislative basis to appropriate money, the Government squibbed the ideal chance to abandon a flawed program and instead rushed through legislation to support its ongoing operation [as an aside, the High Court will be hearing a further challenge from Mr Williams, on May 6-8 2014, that the rushed omnibus Bill was itself unconstitutional].

And even if the National School Chaplaincy Program is ultimately found to be constitutional, there is still absolutely zero evidence that it is effective at improving the overall welfare of students.

If any of the Howard, Rudd, Gillard, Rudd (again) or now Abbott Governments genuinely considered that student welfare was a matter of priority, they would properly fund, rather than part subsidise, actual student counsellors or social workers to perform that function in every school, not implement a scheme where cashed-up churches could target individual cash-starved schools and offer the ‘services’ of ministers of religion, essentially as a backdoor way of indoctrinating a fresh generation of children.

There are ways in which the introduction of ministers of religion into schools can lead to direct harm too, not least of which being the issue of potential child sex abuse. In fact, at the same time as the hearings of the Royal Commission into Institutional Responses to Child Sex Abuse, the Government continues to encourage the employment of ministers of religion in public schools, with a code of conduct that allows them to have physical contact with students because “there may be some circumstances where physical contact may be appropriate such as where the student is injured or distraught”. [NB Obviously I am not saying that most, or even many, school chaplains are child sex abusers, but it seems unnecessary, and unnecessarily risky, to bring in people from institutions with a long history of covering-up such abuse and placing them in positions of trust in public schools.]

In addition, some (although obviously not all) ministers of religion also present a clear and present danger to young lesbian, gay, bisexual, transgender and intersex (LGBTI) students, given the blatant homophobia adopted by particular churches and their officials. This threat is explicitly acknowledged by the Guidelines, which in response attempts to prohibit discriminatory behaviour on the basis of sexuality (although it doesn’t appear as though either gender identity or intersex status are mentioned at all).

In the same way as the prohibition on ‘proselytising’ described above, however, it is inevitable that there will be some ministers of religion, in some schools, who deliberately flout those rules, and in the process cause untold harm to young LGBTI students.

In short, the National Schools Chaplaincy Program is philosophically unsound, has no evidence that it benefits student welfare, is expensive, potentially causes harm and is clearly an inappropriate activity to be funded through taxpayers’ money. Surely, out of all of the programs funded by the Commonwealth, across almost all areas, it should be at or near the top of any Commission of Audit ‘hit-list’.

Even if the Commission of Audit abrogates its basic responsibility to recommend that the National School Chaplaincy Program be axed, Treasurer Joe Hockey will still have to make a decision on the future of the program as part of the 2014-15 Budget, because, as noted earlier, funding for the scheme runs out at the end of this year.

What action Joe Hockey takes on this will reveal a great deal about what kind of Treasurer he intends to be. Of all the incoming Abbott Ministers, Hockey has been the loudest in condemning middle-class welfare, in arguing that the role of Government must be smaller, and that inappropriate or unjustifiable programs should be cut.

Well, here is an ideal opportunity to live up to at least some of that rhetoric, savings upwards of $222 million in the process (that’s the equivalent of one and a half $6 GP co-payments for every person in Australia). If he does so on 13 May, then he should be applauded for it (noting of course that there might, just might, be some other things in the Budget that warrant a somewhat different response).

If Hockey fails to rise to the occasion, and extends or even expands funding for ministers of religion in our public schools, then it will show that he is not serious at all about reining in inappropriate spending, and does not believe in small Government – instead, it will simply demonstrate that he believes in big government of a different kind, one that takes money from genuine welfare programs and places it in the hands of ministers of religion for the propagation of their beliefs.

So, now it’s over to you Joe: would you rather take money from people who simply want to see their doctor via a bulk-billed appointment, or from a program which funds the placement of ministers of religion into our public schools? I know which one I would choose. I guess we’ll find out on Budget night which one you do.