Senate Standing Committee on Education and Employment
Submitted online via aph.gov.au
19 March 2021
To the Committee
Thank you for the opportunity to provide this submission regarding the Australian Education Legislation Amendment (Prohibiting the Indoctrination of Children) Bill 2020.
I do so as a long-standing advocate for the lesbian, gay, bisexual, transgender and intersex (LGBTI) community, and as a gay man who (barely) survived five years at a homophobic religious boarding school in Queensland in the early 1990s[i]and who hopes to help protect trans and gender diverse students from experiencing similar discrimination today.
Contrary to its name, this legislation is not about prohibiting the indoctrination of children, but instead appears to be motivated by prejudice against the gender identity and/or gender expression of trans and non-binary young people.
It is not about providing balance, but is instead aimed at banning the information these children need to grow up feeling safe and supported, and reach their full potential.
And it is not about ensuring all students enjoy an inclusive education, but instead seeks to erase trans and gender diverse kids. From the curriculum, and from the classroom.
These disturbing truths are revealed by Senator Hanson’s Second Reading Speech, where she spends almost half of its word count arguing against ‘gender theory indoctrination in schools’, which she claims ‘involves some teachers and schools pushing the idea that a child’s biological sex does not determine where you are male or female.’
Not only does Senator Hanson fail to understand the difference between sex assigned at birth and gender identity – and the existence of hundreds of thousands of trans and gender diverse Australians demonstrate that these two can and frequently do diverge.
But she also seems to believe that banning curriculum materials which mention said reality of gender diversity will somehow prevent children from becoming trans or non-binary in the first place (from the Second Reading Speech: ‘The preoccupation with gender identity by some teachers and schools is correlated with an increase in children identifying as transgender, which is why I say these educators are transgendering our children’).
I know from bitter personal experience that the consequence of a homophobic education, where the curriculum did not even acknowledge the existence of same-sex attraction let alone affirm that it was a valid sexual orientation, did not make me any less gay, but it did nearly cost me my life.
The same will inevitably be true for trans and gender diverse students should this legislation pass. The choice is not between whether a child is trans or non-binary on one hand, or cisgender on the other. The choice is between whether a trans or non-binary child is happy and healthy, or depressed and at significant risk of self-harm.
On this most basic of outcomes, our schools are currently failing. Badly. The recent findings of the Writing Themselves In 4[ii]survey indicate that, far from schools being overwhelmingly supportive environments where being trans and gender diverse is encouraged, in many, indeed most, there is either silence or active hostility.
From that report:
One-half (51.2%; n=1,953) of secondary school participants reported that trans and gender diverse people were never mentioned in a supportive or inclusive way;[iii]
Almost three-quarters of trans men (74.3%; n=278) and two-thirds of trans women (67.7%; n=46) and non-binary participants (65.8%; n=746) said that in the past 12 months they had felt unsafe or uncomfortable at their educational institution due to their sexuality or gender identity;[iv]
Only 41.0% (n=378) of trans and gender diverse participants in secondary schools reported being able to safely use their chosen name or pronouns in the past 12 months, while only 50.9% (n=469) were able to wear clothes that matched their gender identity;[v] and
Over seven-tenths (70.2%; n=2,579) of secondary school participants… reported hearing negative language about gender identity or gender expression sometimes or frequently in the past 12 months.[vi]
Many trans and gender diverse students are not thriving in these toxic environments. Nor are they being ‘created’ by overly-supportive schools and teachers. They are merely doing their best to survive despite the transphobia which far too often surrounds them.
There is one point on which I agree with Senator Hanson. In her Second Reading Speech, she declares that ‘Our children deserve an education that will allow them to reach their potential.’ Unlike Senator Hanson, however, I believe that this statement should apply to all students, and not just those who are cisgender.
Trans and non-binary children have the same right to learn, and grow, as any other child. As every other child. Our schools should be doing more to support them, not less. That includes increasing their visibility in the curriculum, rather than having all references to gender diversity erased because of discriminatory legislation proposed by an extremist Senator.
I call on the Senate Standing Committee on Education and Employment, and the Parliament more broadly, to reject this attack on some of Australia’s most vulnerable.
Recommendation: That the Australian Education Legislation Amendment (Prohibiting the Indoctrination of Children) Bill 2020 be rejected in its entirety.
Before I conclude this submission, I would like to raise two additional arguments, both of which militate for rejection of this legislation.
First, the Australian Education Legislation Amendment (Prohibiting the Indoctrination of Children) Bill 2020 needs to be seen in its wider context. In my view, it is merely one small part of a larger, dangerous and divisive culture war being waged right now against trans and gender diverse Australians.
The proponents of this culture war include organisations that were opposed to the right of all couples to marry irrespective of their sexual orientations, gender identities and/or sex characteristics. Having lost that fight, including through the 2017 same-sex marriage postal survey, they appear to have turned their attention to denying the fundamental rights of trans and gender diverse Australians, and especially trans and non-binary young people.
These organisations have found supporters in columnists, and media publications, that seem happy to publish attacks on the ability of trans kids just to be themselves.
Unfortunately, these organisations also appear to have found supporters in the Senate itself, with the passage of Senator Roberts’ motion number 1055, on Wednesday 17 March 2021. As well as seeking to reinforce the use of binary-only gender descriptors, it included the following concerning clauses (among others):
‘That the Senate notes that:
ii. broad scale genuine inclusion cannot be achieved through distortions of biological and relational descriptors,
iii. an individual’s right to choose their descriptors and pronouns for personal use must not dehumanise the human race and undermine gender.’
In response, I would submit that denying the existence of trans and non-binary people is a far greater threat to ‘broad scale genuine inclusion’. More importantly, a trans or non-binary person affirming their gender descriptors and pronouns does not pose any threat to any person who is prepared to accept and respect other people for who they are.
Nor does the use of diverse gender descriptors and/or pronouns ‘dehumanise the human race’ in any way. Indeed, I would encourage Senators who voted in support of that motion to reflect on exactly who was being dehumanised by its contents.
The anti-trans agenda has found even greater support among state and territory parliaments, including in my jurisdiction of NSW. The state leader of Senator Hanson’s Party has introduced his own legislation seeking to make life much more difficult for LGBTI students, and for trans and non-binary students in particular.
As I have written elsewhere,[vii] the Education Legislation Amendment (Parental Rights) Bill 2020 is:
‘A Bill that seeks to prohibit any and all teaching that someone’s gender identity can be different to the gender assigned to them at birth.
That weaponises the so-called morality of transphobes to deny the reality of trans people.
A Bill that actually goes much, much further, by banning any ‘teaching, instruction, counselling and advice’ that acknowledges said lived reality, by anybody remotely connected to a school, from principals to parents volunteering in the school canteen.
That compels a school counsellor to remain silent when a suicidal trans student just needs to hear the most basic words of comfort: that they are not alone, and who they are is okay.
A Bill that recycles failed and flawed policies from Thatcher-era Britain, reviving ‘section 28’-style laws which saw a generation of lesbian, gay and bisexual students marginalised and made invisible, without access to safe sex education even at the height of the HIV epidemic.
Policies that were abandoned in the UK almost two decades ago, now being contemplated for LGBT students right here in 2021.
A Bill that seeks to insert an ignorant, inappropriate and incorrect definition of intersex in NSW law for the first time, further stigmatising individuals that still endure the most significant human rights abuses of any group within the LGBTI community.’
While discussing the Education Legislation Amendment (Parental Rights) Bill 2020, I should note that were both it and Senator Hanson’s own Bill to pass their respective Parliaments, it is highly likely the Australian Education Legislation Amendment (Prohibiting the Indoctrination of Children) Bill 2020 would result in the defunding of NSW public schools.
That is because of the operation of proposed section 22AA of the Australian Education Act 2013 (Cth), and especially sub-section (1)(b):
‘A payment of financial assistance under this Act to a State or Territory is subject to the condition that the State or Territory has in force laws that…
require a staff member (however described) of a school to provide students with a balanced presentation of opposing views on political, historical and scientific issues as such issues arise in the teaching of a subject.’
Given the NSW Bill expressly prohibits the teaching of particular views, including in relation to the scientific diversity of gender identity, it cannot possibly be described as balanced according to that word’s ordinary meaning.
Putting that particular issue to one side, I raise the broader context of the Bill currently before the Committee because it will have consequences outside of its own flawed provisions.
If the Committee, and Parliament, choose to support the Australian Education Legislation Amendment (Prohibiting the Indoctrination of Children) Bill 2020, it will only embolden the proponents of the culture war against trans and non-binary kids.
On the other hand, the Committee, and Parliament, have the opportunity through this inquiry and subsequent legislative debate to send a strong signal that trans and gender diverse Australians have the right to be themselves, and above all that trans and non-binary children will be protected against further attacks.
The second and final additional argument I would like to raise relates to the impracticability of the Bill itself. Specifically, proposed section (7) of the Australian Curriculum, Assessment and Reporting Authority Act 2008 (Act), provides that:
‘The Australian Curriculum, Assessment and Reporting Authority must ensure that:
(a) the national school curriculum is developed and administered to provide a balanced presentation of opposing views on political, historical and scientific issues; and
(b) information, resources, support and guidance that promote a balanced presentation of opposing views on political, historical and scientific issues are provided to the teaching profession.’
However, the Bill does not define what is meant by the term ‘balance’. The Explanatory Memorandum fails to provide further clarification, simply noting this provision requires ACARA ‘to promote a balanced presentation of opposing views where they exist’ (emphasis added).
Which leaves us with Senator Hanson’s Second Reading Speech to assist with legislative interpretation. In the context of her views on, or rather against, climate change science –which dominates the other half of her statement – the notion of ‘balance’ becomes problematic.
It appears Senator Hanson would like to provide an equal platform in the science curriculum to climate change denialism alongside evidence-based climate science which irrefutably shows the earth is heating, and that this heating is caused by human activity.
To do what Senator Hanson proposes – to provide space in the science curriculum just because some people believe it, rather than because it is based on evidence – would undermine the very nature of science itself.
Nevertheless, it is the application of the Bill’s vague notions of ‘balance’ to the subject of history that reveals just how unworkable this legislation is.
To raise just one example, how would this legislation affect the history curriculum around World War II, and specifically the Holocaust? Abhorrent though their views are, some people continue to espouse Holocaust denialist arguments. To apply the language used in the Explanatory Memorandum, they are ‘opposing views (about history) where they exist’.
It is therefore at least possible that, if passed, the Australian Education Legislation Amendment (Prohibiting the Indoctrination of Children) Bill 2020 would mandate ACARA to include Holocaust denialism as part of the Australian history curriculum.
Such an outcome is obviously unacceptable. It reflects a Bill that is an unworkable mess, and one that would create a mess of Australia’s curriculum, not just in history, but in politics, science and elsewhere too.
In my view, this impracticability is the inevitable outcome of a Senator trying to impose their ideological obsessions – in this case, climate change denialism, and the erasure of trans and non-binary kids – through the national education system.
I would much prefer our school curriculum to be drafted by experts who understand their subject matter, as well as the learning and developmental needs of children – all children – rather than a Senator who does not seem to even understand her own legislation.
I sincerely hope the majority of the Committee, and the Parliament, share that preference.
Thank you for considering this submission as part of the inquiry into the Australian Education Legislation Amendment (Prohibiting the Indoctrination of Children) Bill 2020. Please do not hesitate to contact me, at the details provided, should the Committee require additional information.
Anthony Albanese became Leader of the Australian Labor Party in May 2019. It’s now March 2021, and we still don’t know where he stands on key issues affecting the lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) community.
In his 22 months as Opposition Leader, Mr Albanese (commonly referred to as ‘Albo’), has only explicitly referred to LGBTIQ rights once in Parliament. On 2 July 2019, he made the following statement:
‘In an article in the NewDaily and in a number of other articles reporting on that article, it’s been suggested that I supported watering down Labor’s commitment to LGBTIQ rights. As someone who in their first speech in parliament mentioned removing discrimination on the basis of sexuality and is a strong advocate for the rights of gay and lesbian people, that is not true; it did not happen.’
Despite this, and unfortunately for LGBTIQ Australians, that article foretold what appears to have occurred in the period since.
As happens every term, the Labor Party is engaged in updating its National Platform, the document setting out its core principles.
As part of this process, Albo has expressed a clear desire for the Platform to be streamlined. The current draft, which will be considered at an online Special Platform Conference on 30 and 31 March 2021, stands at 111 pages – compared to 268 pages of policy detail in former Leader Bill Shorten’s 2018 version.
Based on that level of reduction, you might expect that LGBTIQ policy commitments would have decreased by a similar ratio (to be two-fifths of the previous document).
However, the axe seems to have fallen disproportionately on issues affecting our communities. From 46 separate mentions of LGBTIQ issues in 2018, there are just nine in the 2021 draft Platform.
Admittedly, that is a somewhat superficial criterion. Nevertheless, looking at the substantive policy commitments in closer detail, and the cuts are just as bad. Worse, in fact, with Labor’s Platform now missing in action on some of the most important challenges we face.
That includes what I consider to be the worst human rights abuses affecting any part of the LGBTIQ community today: coercive medical interventions, including surgeries, on children born with intersex variations of sex characteristics.
The 2015 and 2018 ALP Platforms included clear commitments to address these abuses. From the 2018 version:
‘Parents of intersex children can be pressured to hormonally or surgically intervene on their children if they don’t receive medically correct advice, information or support about how to parent an intersex child. Labor will ensure deferral of non-necessary medical intervention on infants and children with intersex variations until such time as the person concerned can give their informed consent is supported. Labor commits to promote and support a human rights-based patient consent model for accessing lifetime medical treatments and procedures. Labor will prohibit modifications to sex characteristics undertaken for social rationales without informed consent and ensure intersex persons’ right not to undergo sex assignment treatment is respected.’
In contrast, the draft 2021 ALP National Platform is completely silent on this issue. That is simply not good enough.
Another important policy commitment from 2015 and 2018 that has disappeared relates to the out-of-pocket costs which far-too-frequently prevent trans and gender diverse people from being able to access gender-affirming health care. Again, from the 2018 Platform:
‘Labor acknowledges the right of all Australians, including transgender and gender diverse people, to live their gender identity. For many, this includes accessing specialist health services and for some people can involve gender affirming medical technologies. Cost should not be a barrier to accessing these services. Labor commits to removing, wherever possible, barriers to accessing these services and consulting with experts in government. This should materialise in a focus on creating fair, equal and affordable access to medical care and treatments relevant to trans and gender diverse Australians.’
In 2021, Labor has so far found no room in its core principles document to address one of the biggest challenges affecting the everyday lives of trans and non-binary Australians.
A third major omission from the draft Platform is HIV – and that omission is total. If passed in its current state, the 2021 Australian Labor Party Platform would be the first in at least a generation not to even mention the term HIV.
I would argue the middle of a global pandemic is possibly the worst time to abandon commitments relating to another epidemic that, despite popular misconceptions, remains far from over. Instead, I believe the Platform should (at a minimum):
Highlight that lessons learned from HIV have assisted Australia in dealing with COVID-19
Emphasise the fundamental importance of working in partnership with affected communities, including people living with HIV and those at risk, and
Recommitting to ending the HIV epidemic in Australia, and globally.
The fourth and final major problem I would like to focus on is the lack of clarity around much-needed improvements to LGBTIQ anti-discrimination and anti-vilification protections. On this issue at least the draft 2021 Platform includes some detail:
‘Labor will work closely with LGBTIQ Australians to develop policy to:
(a) ensure they enjoy equality before the law and have access to public services without discrimination; [and]
(b) strengthen laws and expand initiatives against discrimination and harassment on the basis of sexual orientation, gender identity, sex characteristics and queer status’.
However, these commitments do not go nearly far enough. It is possible (although by no means certain) that para (a), above, means Labor will remove anti-discrimination exceptions which allow religious schools to discriminate against students on the basis of sexual orientation and gender identity. But there is no equivalent commitment to protect the employees of religious organisations, including teachers and other staff in religious schools.
As with the other three areas identified earlier, these anti-discrimination principles are also a significant step backwards from their 2015 and 2018 equivalents. There is no longer a commitment to introduce a stand-alone Commissioner for LGBTIQ issues within the Australian Human Rights Commission.
Nor is there a policy to introduce long-overdue LGBTIQ anti-vilification protections in Commonwealth law (despite the draft 2021 Platform twice committing to address religious vilification). Or a commitment to finally include gender identity and sex characteristics as protected attributes in the Fair Work Act 2009 (Cth) on the same basis as sexual orientation.
There are plenty of other problems with the draft Platform – perhaps most notably a policy to ensure schools are ‘welcoming and supportive environments for all’ which has removed previous explicit references to gender identity and sexuality, and added a qualifier (‘initiatives… as selected by schools’), thus rendering it close to meaningless.
Nevertheless, if the ALP wishes to demonstrate it is still committed to improving the rights of LGBTIQ Australians then I suggest the four main issues described above (ending coercive surgeries on intersex children; reducing out-of-pocket costs for gender-affirming health care; including policies addressing HIV; and improving commitments to LGBTIQ anti-discrimination and anti-vilification laws) would be a good place to start.
The defence of the Australian Labor Party to these criticisms has been to reiterate that the draft 2021 National Platform is intentionally a high-level, principles-based document, and to explain that more-specific LGBTIQ policies will be released closer to the election.
The problem with that defence, from my perspective, is that the clear message the ALP sent to all stakeholders back in 2019 was that all policies were under review, that in effect ‘everything is up for grabs’. Since then, as far as I can ascertain, there have been exactly zero policy announcements explicitly relating to LGBTIQ issues.
At the same time, the rights of LGBTIQ Australians have come under sustained attack at both Commonwealth level (including through the proposed Religious Discrimination Bill which Labor has not, to date, unequivocally opposed) and in the states and territories (including Mark Latham’s own ‘Religious Freedom’, and anti-trans kids, Bills in NSW).
In this context, it is only natural for the LGBTIQ community to closely examine the words and actions coming from the Leader of the Opposition and the Party he represents. So far, the only substantive document which we can scrutinise is the draft Platform and, particularly when compared to its 2015 and 2018 iterations, it is a disappointment.
The good news is that its deficiencies can still be fixed. The Special Platform Conference is not for another nine days, and the Leader of the Opposition, Shadow Ministers and conference delegates all have the opportunity to reinsert genuine commitments around intersex surgeries, trans health costs, HIV, and anti-discrimination and anti-vilification laws.
The bad news is that, more broadly, time is running out. We are nearly two years into a three-year term. Indeed, Prime Minister Morrison has the option of holding the next election as early as August, just five months away. There is little time left for Albo and the ALP to show us where they stand on key issues affecting the LGBTIQ community.
And I use that phrase deliberately – show us your current policies, don’t tell us about your past public positions.
Which brings me back to Albanese’s statement to Parliament in July 2019. It is interesting that, in defending his approach to LGBTIQ rights as Leader, he directly referred to his first speech which he gave on 6 May 1996.
To be fair, Albo’s comments then (‘The bigots who criticise programs aimed at the special needs of sections of our community ignore the fact that there is not equality of opportunity across class, gender, sexual preference and ethnicity’) were undoubtedly progressive for the time.
But times change. As does terminology (thankfully), as well as the needs of the LGBTIQ community which are much more complex and diverse than a general commitment to ‘equality of opportunity’.
Frankly, I am far less interested in what Anthony Albanese said as a new backbencher 25 years ago than I am in what he has to offer the country as its alternative Prime Minister for the next three years.
From my position as an advocate for LGBTIQ rights, I believe it’s time for Albanese to outline what a Government he leads would do for our community. Clearly, and in detail.
It’s time for him to answer the question ‘What for art thou Albo?’ Because, as of today, I and other LGBTIQ Australians genuinely don’t know.
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Last weekend was the first Sydney Gay & Lesbian Mardi Gras Parade and/or Party I have missed since 2003. Although I think I had a pretty good reason not to be there – I was attending my grandma’s 100th birthday party in Rockhampton, Queensland (near where I grew up).
Nevertheless, the day before Mardi Gras I received a letter reminding me of just how far there is left to go before we achieve genuine, substantive equality for LGBTI Australians, and especially for trans and gender diverse children and young people.
But, first, some context. In August last year, NSW One Nation Leader Mark Latham introduced the Education Legislation Amendment (Parental Rights) Bill 2020. As I wrote at the time, this proposed law is the worst attack on LGBTI rights in this country this century.
If passed, the Education Legislation Amendment (Parental Rights) Bill 2020 would:
Prohibit any ‘teaching, instruction, counselling and advice’ that gender identity can be different to sex assigned at birth, effectively erasing and invisibilising trans and gender diverse students in schools across NSW
Introducing a UK section 28-style clause making it difficult for teachers, principals and counsellors to support lesbian, gay and bisexual students, and
Enacting an inaccurate and offensive definition of intersex in NSW law for the first time.
The NSW Legislative Council Education Committee is currently conducting an inquiry into this Bill. Unfortunately, the Chair of that inquiry is… Mark Latham. In which case, I decided to bypass the Committee and instead write directly to the majority of MPs calling on them to be champions for trans and gender diverse kids, rather than their bullies.
I have received a small number of responses to date, but the most significant so far arrived in my inbox last Friday, March 5 2021. It came from the Member for Riverstone, Mr Kevin Conolly – who, incidentally, is also the NSW Government Parliamentary Secretary for Education (and therefore a direct adviser to and influencer of the Minister for Education, the Hon Sarah Mitchell). Here is what he wrote:
Dear Mr Lawrie,
Thank you for contacting me to express your view about the Education Legislation Amendment (Parental Rights) Bill 2020.
You appear to have misunderstood the intent and effect of the Bill on a number of levels.
The first thing to state about the Bill is that it gives effect to internationally recognised human rights explicitly stated in international agreements to which Australia (like nearly all nations) is a signatory:
Article 18, part 4 of the International Covenant on Civil and Political Rights states:
‘The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.’
Article 5 of the Convention on the Rights of the Child:
‘Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognised in the present Convention.’
Article 26(3) of Universal Declaration of Human Rights:
‘Parents have a prior right to choose the kind of education that shall be given to their children.’
I do not agree that the Bill is based on a sick ideology, as you assert. It is based, in my view, on the common sense proposition that it is parents who are best placed and most likely to focus on the best interests of their child, rather than teacher unions, academics or activists with their own political agenda.
In prohibiting the teaching of ‘gender fluidity’ the Bill would preclude the teaching of the false and unscientific proposition that gender is something other than biologically determined.
To state this does not in any way suggest that it is better for young people experiencing gender dysphoria to ‘not exist at all’. I’m sure that Hon. Mark Latham would wholeheartedly agree with you that young people in this situation should be ‘happy and healthy, … safe and supported.’ This is far more likely to be the case if they are in the care of their parents and avoid premature chemical or surgical interventions while they grow and mature.
It is a fact that the great majority of cases of young people with gender dysphoria are resolved in time without any such interventions if children and adolescents are supported by loving families and allowed to make their own decisions when older. Most are resolved with the person coming to terms with their biological gender.
I note that you have mentioned ‘LGBTI’ a number of times in your email. However the Bill has no impact whatsoever on questions of homosexuality, only on the specific issue of so-called ‘gender fluidity’.
In my view, quite contrary to your assertion, the Bill would facilitate a school counsellor or teacher to help a child or young person by allowing counselling to consider all the future options available to the person rather than requiring only one predetermined option (i.e. ‘transition’) to be discussed.
The Bill is a positive step forward because it provides the opportunity for parents to provide genuine selfless care to young people rather than leave them at the mercy of activists whose ‘care’ is far more for their ideological cause than it is for the young person facing difficult challenges. In doing so it upholds universally recognised basic human rights, and responsibilities of parents towards their children.
Kevin Conolly MP
Member for Riverstone
There is obviously a lot to unpack here. First of all, it is clear that Mr Conolly is selectively quoting from some international human rights instruments, while ignoring other key principles. This includes Article 26 of the ICCPR, which states:
‘All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property or other status.’
There is no doubt that a Bill which seeks to erase trans and gender diverse students, make life much more difficult for LG&B kids, and stigmatise intersex children, is discriminatory against LGBTI people.
Indeed, as others have written, it is likely that the Education Legislation Amendment (Parental Rights) Bill 2020 will ultimately be found to be unlawful because it contravenes the provisions of the Sex Discrimination Act 1984 (Cth).
But misinterpreting international human rights law is the least of the problems in Mr Conolly’s correspondence.
He also doesn’t seem to understand the Bill itself. The Education Legislation Amendment (Parental Rights) Bill 2020 establishes strict limits on any teaching or counselling of anything to do with what it describes as ‘matters of parental primacy’ – which is defined very broadly to explicitly include ‘matters of personal wellbeing and identity including gender and sexuality’.
Therefore, his protestation that ‘the Bill has no impact whatsoever on questions of homosexuality’ is not only patently false, but makes me question whether he has even read the legislation he is so ardently defending.
On that note, I find it incredibly curious that a member of the NSW Government – and a Parliamentary Secretary at that – is not only publicly supporting One Nation legislation (‘The Bill is a positive step forward…’), but also defending and apparently speaking on behalf of the NSW One Nation Leader (‘I’m sure that Hon. Mark Latham would…’).
But, of course, the worst aspects of Mr Conolly’s letter relate to his views about gender identity.
On this topic, he appears to assert that there is actually no such thing as trans and gender diverse people (‘In prohibiting the teaching of ‘gender fluidity’ the Bill would preclude the teaching of the false and unscientific proposition that gender is something other than biologically determined’). I’m sure that revelation would be surprising to trans and gender diverse people across NSW.
Nevertheless, the most offensive aspect of Mr Conolly’s correspondence arrives near its conclusion, where he argues ‘the Bill would facilitate a school counsellor or teacher to help a child or young person by allowing counselling to consider all the future options available to the person rather than requiring only one predetermined option (i.e. ‘transition’) to be discussed’.
Except that, given those same counsellors and teachers will be explicitly prohibited from even mentioning that gender identity can be different to sex assigned at birth, the only option they will be permitted to present to struggling children is that they simply not be trans or gender diverse.
It is at least arguable that what Mr Conolly is calling for is for counsellors and teachers to provide anti-trans conversion practices in every school across NSW.
It is extraordinary this letter was written by a member of the NSW Liberal/National Government. It is deeply troubling that it was done so by the Parliamentary Secretary for Education, commenting on and explicitly supporting legislation within his portfolio.
This stands in marked contrast to the failure of the NSW Premier, Gladys Berejiklian, Deputy Premier, John Barilaro, and Education Minister, Sarah Mitchell, to take any position on the Bill whatsoever. Indeed, they collectively delegated their reply to my letter to a bureaucrat in the Department of Education, who wrote:
‘The NSW Government will respond to the proposed bill after careful consideration to ensure all relevant legislation and protections are considered.’
Now that the Parliamentary Secretary for Education has declared his personal support for the Education Legislation Amendment (Parental Rights) Bill 2020, I believe this studious refusal to adopt a position is no longer tenable. At a certain point, being non-committal ends up being complicit.
The failure of the NSW Premier to oppose Mark Latham’s awful legislative assault on trans and gender diverse kids is particularly untenable given another development last weekend: Ms Berejiklian’s attendance at the SCG for the Mardi Gras Parade (as tweeted by Commonwealth Liberal MP, Dave Sharma – pictured below).
In my view, if you are prepared to come and celebrate diversity with us – diversity of sexual orientation, gender identity and sex characteristics – then you must be prepared to defend that diversity.
Against attacks by fringe extremist parties in the NSW Legislative Council.
And against support for those attacks by prominent members of your very own Government.
As I wrote previously, ‘It is time for [NSW Parliamentarians] to make your decision about the Education Legislation Amendment (Parental Rights) Bill 2020. Champion. Or bully. The choice is yours.’
Right now, that choice belongs to the NSW Premier, Gladys Berejiklian.
Berejiklian must understand the extremely serious consequences if she makes the wrong decision. Because instead of being able to celebrate their own 100th birthdays early in the 22nd century, some trans and gender diverse students in NSW schools will struggle to reach their 18th.
For LGBTI people, if this post has raised issues for you, please contact QLife on 1800 184 527, or via webchat: https://qlife.org.au/
Or contact Lifeline Australia on 13 11 14.
If you have enjoyed reading this post, you can sign up to receive updates about this and other issues from this blog, via the right-hand scroll bar on desktop, or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus [NB Given the events of the past month – with this website being blocked by Facebook for being ‘news’ – it is more important than ever to sign up if you want to receive updates, especially with the possibility of further disruptions].
This Valentine’s Day, I have written the below letter to NSW Parliamentarians, asking them to show love for trans and gender diverse kids by unequivocally opposing Mark Latham’s proposed legislation which seeks to deny their existence. Please read through to the end of the article to find out what you can do to help fight back against his bullying.
14 February 2021
Dear NSW MPs
I am writing to urge you to immediately and publicly express your opposition to the Education Legislation Amendment (Parental Rights) Bill 2020.
This legislation makes me sick.
This legislation is sick.
This legislation is based on a sick ideology that it is better for trans and gender diverse kids not to exist at all, than for them to be happy and healthy, and to feel safe and supported in NSW schools.
I, and lesbian, gay, bisexual, transgender and intersex (LGBTI) people in this state, are sick and tired of wasting precious time and energy fighting against such ill-intentioned attacks on our community.
Especially when there is still so much progress left to achieve, including on legal rights for trans and gender diverse people, like providing access to birth certificates without the need for surgery or other invasive medical procedures, or ensuring the Anti-Discrimination Act 1977 covers non-binary people (something it currently does not).
Instead, the NSW Legislative Council’s Education Committee is holding an inquiry into a Bill which is nothing short of the worst legislative attack on LGBTI rights in Australia this century.
A Bill that seeks to prohibit any and all teaching that someone’s gender identity can be different to the gender assigned to them at birth.
That weaponises the so-called morality of transphobes to deny the reality of trans people.
A Bill that actually goes much, much further, by banning any ‘teaching, instruction, counselling and advice’ that acknowledges said lived reality, by anybody remotely connected to a school, from principals to parents volunteering in the school canteen.
That compels a school counsellor to remain silent when a suicidal trans student just needs to hear the most basic words of comfort: that they are not alone, and who they are is okay.
A Bill that recycles failed and flawed policies from Thatcher-era Britain, reviving ‘section 28’-style laws which saw a generation of lesbian, gay and bisexual students marginalised and made invisible, without access to safe sex education even at the height of the HIV epidemic.
Policies that were abandoned in the UK almost two decades ago, now being contemplated for LGBT students right here in 2021.
A Bill that seeks to insert an ignorant, inappropriate and incorrect definition of intersex in NSW law for the first time, further stigmatising individuals that still endure the most significant human rights abuses of any group within the LGBTI community.
It does all of this based on misguided claims that the rights of parents are somehow more important than those of their children. Perhaps the best that could be said regarding this stated motivation is that at least they are being transparent.
For decades, opponents of LGBTI rights have argued that we are a serious threat to the rights of children to be themselves. Demands for our equality have frequently been met with the pleas of excitable Helen Lovejoy-types exclaiming ‘won’t somebody please think of the children’.
Well, this legislation pulls back the curtain to reveal where the real danger lies, and it’s not us. The threat to LGBTI kids comes from parents who would prefer their own children not to exist than to be who they are, and from the politicians who wish to empower them.
This legislation is an admission that, if the criteria for assessing policy proposals is whether it is in the best interests of children, then the homophobes, biphobes and transphobes have lost. Because decades of evidence clearly shows the best response to LGBT kids is to offer them love not judgement, support not suppression.
Instead, anti-LGBTI activists have moved the goalposts, so that the rights of children are no longer supreme, but must be made secondary to the perspectives of parents. But even then only the views of some parents are considered paramount.
This legislation, if passed, would mean not only that transphobic parents succeed in ensuring their own children are not taught about gender identity issues, but that no child is, in any class, anywhere. That includes the trans and gender diverse kids of parents who accept them (as any parent should).
Education is, or at least should be, for all, not just for students who are cisgender, heterosexual and endosex. Schools must not be compelled to be participants in and proponents for the prejudices of some parents.
Teachers must be allowed to teach the truth. The undeniable truth is that trans people exist. Gay, lesbian, and bisexual people as well. Intersex people, too.
These truths might be inconvenient for those who would prefer otherwise. But that is not a good enough reason to pass a law to impose silence where our stories should be.
The Education Legislation Amendment (Parental Rights) Bill 2020 was released more than six months ago. Its discriminatory pillars have been public knowledge for just as long.
Which makes it deeply disappointing, distressing even, that neither the NSW Government nor Opposition have clearly committed to voting against it in the time since then.
Recent events in the United States have served as a stark warning of the profound consequences of playing footsie with fascism.
NSW Parliamentarians should not encourage extremism, by entertaining the exclusion of an entire category of person from education. Make no mistake, that is exactly what this Bill does: it enables the erasure of trans and gender diverse students in every classroom and schoolyard across the state.
I understand that, regrettably, One Nation holds part of the balance of power in the Legislative Council this term. But it is a craven political calculation which concludes two Upper House votes are worth more than the happiness, the childhoods and in some cases even the lives of some of the community’s most vulnerable members.
Surely it is time for you to find your voice and say, finally, you cannot in good conscience stay silent on a proposal that silences trans kids. That you will oppose this harmful and hateful legislation in committee, in debate and whenever it comes up for a vote.
If you are not convinced by the above arguments, then I implore you to do one simple thing: put yourself in the position of a trans child following the potential passage of this Bill.
Imagine realising that, at a fundamental level, you are not like most of the other boys, or girls. You may not have the language yet, yet you know you are different.
But the words you need to express yourself aren’t able to be uttered in the place the Government compels you to attend most days of the first 18 years of your life. A place where you’re supposed to feel safe, but instead are sidelined.
There is nothing in the Personal Development, Health and Physical Education curriculum to say other people like you even exist. They have been excised from the textbooks, just as they’ve been excluded from English, History and other subjects too.
You cannot find any information about who you are in the school library because any books that mention gender diversity have been purged.
You cannot see yourself in any of the trans or gender diverse teachers who might be there either, because they are busy hiding themselves lest they be accused of ‘indoctrination’.
Imagine overcoming these barriers, and, with the support of your family, beginning to affirm who you really are. And then your problems really begin.
Your teacher cannot actively support your transition because to do so could be interpreted as ‘instruction’ to the rest of your class that trans people do, in fact, exist.
They also can’t intervene to stop you from being misgendered and deadnamed by other kids. To some extent, such bullying is inevitable because they’ve never been taught anything about people like you and ‘different’ too-easily, and too-rapidly, becomes ‘wrong’.
You cannot seek advice from the school counsellor, because the moment you start to say anything about gender identity they are forced to shut the conversation down. They’re not even allowed to refer you to the wonderful support service they’re aware of just down the road, but may as well be in a different universe.
And you cannot seek protection from the school principal because of the attitudes of parents and politicians who have never met you, but who hate who you are anyway.
Imagine how you might feel in this situation. How scared. And small. And alone. Even with the backing of a supportive family, it would be difficult. Without it, it would be almost impossible.
I don’t need to imagine very hard. Because there is a lot of similarity in what I described above to the circumstances I confronted as a gay student at a religious boarding school in Brisbane in the early 1990s.
And, if we’re being completely honest, there are still far too many same-sex attracted kids who find themselves in the same scenario in schools all over NSW today.
But it absolutely destroys my heart to think that, even today, NSW Parliament is holding an inquiry into a Bill that would guarantee this mistreatment for trans and gender diverse kids into the future, with the long-term psychological harm that all-too-often goes with it.
It doesn’t need to be this way.
I started this letter by talking about the sickness that lies at the centre of the Education Legislation Amendment (Parental Rights) Bill 2020, and the dangerous views that it espouses. But those views should not be the centre of this debate.
Instead, this discussion is about how we treat people who are not sick, but who are actually beautiful: trans and gender diverse kids.
Kids who deserve the same love, and care, and nurturing, as anybody else. Kids who have the same right to education as anybody else. Kids who should have the same ability to determine for themselves who they are, as anybody else.
As an elected representative in the NSW Parliament, you can be their champion. As part of the debate surrounding this Bill you can stand up and say that trans kids are welcomed and accepted, while transphobia is not.
You can let the people of NSW know, right now, that you will not let this legislation, or any subsequent legislative attacks on trans kids, pass.
Of course, you do have another option. Alternatively, you could choose to progress with consideration of this Bill, through the committee inquiry, and then onto the floor of Parliament for debate. You might even ultimately decide to vote for it.
If you do, then instead of being a champion for trans and gender diverse kids, you would be joining their bullies. And responsibility for the harms caused would be yours to own.
It’s time for you to make your decision about the Education Legislation Amendment (Parental Rights) Bill 2020. Champion. Or bully. The choice is yours.
Things you can do:
The NSW Legislative Council Education Committee (chaired by Mark Latham himself) is conducting an online questionnaire about community views towards the Education Legislation Amendment (Parental Rights) Bill 2020, closing on Sunday 28 February 2021.
Unfortunately, many of the questions asked are (mis)leading. Nevertheless, organisations like the NSW Gay and Lesbian Rights Lobby and Equality Australia recommend completing the survey in the following way:
Fill in your details in response to the first question
At question 2 click ‘oppose’
Skip through the other questions
At question 8 share a story of a teacher who made an impact on your life
Identify yourself only to the extent you feel comfortable.
If you feel comfortable, you should also raise this issue directly with your local member of parliament (you can find a list of MPs here) and let them know you expect them to stand up for the right of everyone to an education, and that includes trans and gender diverse kids.
Finally, you can sign up to receive updates about this and other issues from this blog, via the right-hand scroll bar on desktop, or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus [NB Given the events of the past week – with this website being blocked by Facebook for being ‘news’ – it is more important than ever to sign up if you want to receive updates, especially with the possibility of further disruptions].
Update 28 February 2021
I received the following correspondence on Thursday:
Dear Mr Lawrie
I write in response to your email of 14 and 15 February 2021, to the Hon Gladys Berejiklian MP, Premier and the Hon John Barilaro MP, Deputy Premier and Minister for Regional New South Wales, Industry and Trade, and Hon Sarah Mitchell MLC, Minister for Education and Early Childhood Learning regarding the Education Legislation Amendment (Parental Rights) Bill 2020. The Premier and Deputy Premier referred your correspondence to the Hon Sarah Mitchell MLC, Minister for Education and Early Childhood Learning. The Minister has asked me to respond on her behalf.
The NSW Government will respond to the proposed bill after careful consideration to ensure all relevant legislation and protections are considered.
The Department of Education is committed to providing safe and supportive learning environments that respect and value diversity and are free from violence, discrimination, harassment and vilification. NSW public schools have legal obligations to protect and support their students.
We thank you for taking the time to express your concerns over the proposed bill. The NSW Government is working through the formal parliamentary process to address the matter and will communicate this once the process is finalised.
Should you require any further information you are welcome to contact [name and contact details omitted].
A/Director, Curriculum Secondary Learners
25 February 2021
Upon receiving this correspondence, I had three main thoughts:
First, it is disappointing that none of the Premier, Deputy Premier or even the Minister for Education responded directly to my original letter, instead delegating it to the Department of Education.
Second, it is frankly pathetic for the NSW Government to hide behind the committee inquiry process, as if this is an ordinary bill. It is not. It is an extreme proposal that seeks to erase an entire group of students from schools across the state. How much worse must a law be before NSW’s leaders show some leadership and declare that this type of legislation will not be tolerated, let alone considered?
Third, it reinforces the need for everyone who believes in an inclusive education, where all students have the right to learn irrespective of their sexual orientation, gender identity or sex characteristics, to make their voices heard. If you are reading this on Sunday 28 February 2021, please, please, please complete the parliamentary survey expressing your opposition to this Bill in question 2.
The writs for the Western Australian state election will be issued at 6pm today (3 February 2021). The upcoming poll, on Saturday 13 March, is an opportunity to make long-overdue progress on a range of important policy issues affecting the lesbian, gay, bisexual, transgender and intersex (LGBTI) community.
As with elections last year in the Northern Territory, Australian Capital Territory and Queensland, I am writing to political parties contesting the WA election asking for their commitments on LGBTI law reform.
While there are a variety of different policy issues that must be addressed, my letter focuses on two areas where I have the most expertise:
Reform of the Equal Opportunity Act 1984 (WA),[i] and
Changes to identity documentation for trans and gender diverse people.[ii]
This letter has been sent to the leaders of the WA Labor Party, Liberal Party and National Party, as well as to all MLCs from other parties: The Greens; One Nation; Liberal Democrats; Shooters, Fishers and Farmers; and Western Australia Party. As with previous elections, I will post any responses I receive from these parties below.
Given the upcoming Western Australian state election, I am writing to ask about your Party’s positions on two important issues for the lesbian, gay, bisexual, transgender and intersex (LGBTI) community.
I do so as a long-term advocate for the LGBTI community, including via my website www.alastairlawrie.net where I focus on anti-discrimination and anti-vilification law reform around Australia, among other topics.
The first issue I would like to ask about is reform of the Equal Opportunity Act 1984 (WA), which is necessary to address its serious shortcomings in relation to discrimination against and vilification of LGBTI people in Western Australia. Specifically:
Will you protect intersex people against discrimination by introducing a new protected attribute of ‘sex characteristics’?
Will you protect all trans and gender diverse people against discrimination by replacing the current inappropriate, ineffective and outdated protected attribute of discrimination against ‘a gender reassigned person on gender history grounds’ with a protected attribute of ‘gender identity’?
Will you protect LGBT students, teachers and other staff at religious schools against discrimination by removing the special privileges which currently allow them to discriminate?
Will you protect LGBT employees at, and people accessing services from, religious organisations in health, housing and other community services against discrimination by amending religious exceptions generally, based on the best practice approach in Tasmania’s Anti-Discrimination Act 1998?
Will you protect LGBTI people against hate speech by introducing prohibitions on vilification on the basis of sexual orientation, gender identity and sex characteristics?
The second issue I would like to ask about is access to identity documentation, including birth certificates, for trans and gender diverse people, which is another area where Western Australia’s legislative approach has fallen far behind most other jurisdictions. Specifically:
Will you allow trans and gender diverse people to update their birth certificates and other identity documents without requiring surgery, other medical treatments or counselling?
Will you allow trans and gender diverse people to update their birth certificates and other identity documents based on self-identification alone?
Will you allow trans and gender diverse people to update their birth certificates and other identity documents by identifying as male, female, non-binary or ‘other, please specify’, in line with recent reforms in both Tasmania and Victoria?
Thank you in advance for your prompt consideration of this request. Please note that any answers provided will be published via my website, to assist LGBTI people in Western Australia make an informed choice on Saturday 13 March.
Please do not hesitate to contact me, at the details provided, should you require clarification of the above.
Update: 13 February 2021
During the week, I received the first formal Party response to the above correspondence, from the WA Greens. Their commitments are reproduced below:
Thank you for your email to WA Greens MPs.
I am pleased to advise that the Greens are committed to removing discrimination on the grounds of gender identity or sexuality from all federal and state laws. We want the process for legal recognition of gender in Western Australia to be simplified and for Western Australian birth certificates to have an X gender marker, in line with most of the rest of Australia.
The Greens (WA) will encourage and support legislation and actions that ensure that intersex and transgender people, without undertaking surgeries, are able to alter their sex on all official documents, consistent with how they live and identify, and irrespective of their marital status.
As the Member for the North Metropolitan Region and Greens (WA) spokesperson I have been a long term advocate in this space. In 2018 I introduced a Private Members Bill into the WA Legislative Council, the Equal Opportunity (LGBTIQ Anti-Discrimination) Amendment Bill 2018, seeking to end discrimination against LGBTIQ parents, students and staff by religious schools. Disappointingly, this bill has not received the support necessary from other political parties for it to be passed and to become law.
The Greens will continue to fight to remove all exceptions in the Equal Opportunity Act that permit discrimination against people on the basis of their gender identity and/or sexuality.
The Greens have also proposed a WA Charter of Rights to provide further protections against rights-based infringements including discrimination.
Thank you for your interest and advocacy in this important area.
Hon Alison Xamon MLC (BA, LLB, Cert IV HS, Cert Adv Arb)
Member for the North Metropolitan Region, Legislative Council, Parliament of Western Australia
Update: 25 February 2021
On Tuesday (23 February 2021), I received the following reply from the Leader of the WA Nationals, Mia Davies, which, as you will see, does not give specific commitments on either LGBTI anti-discrimination law reform or improved access to birth certificates for trans and gender diverse people – other than that Nationals MPs would be granted conscience votes on both issues.
Dear Mr Lawrie
2021 STATE ELECTION: LGBTI LEGISLATIVE REFORM
Thank you for your correspondence dated 3 February 2021. I appreciate your advocacy in relation to LGBTI legislation and the need for reform.
One of the founding principles of The Nationals WA is that regional West Australians deserve access to relevant services and protections against discrimination, regardless of their postcode. As you would be aware the day-to-day issues faced by LGBTI people are often exacerbated by remoteness and isolation from services and support networks.
If legislation to resolve the issues raised was introduced to Parliament, voting on it would be a matter of conscience for Members of The Nationals WA team. I encourage you to send your questions to each local candidate in The Nationals WA team for their individual responses. Their details can be found on our website http://www.nationalswa.com/
Although not specific to LGBTI individuals and families, The Nationals WA have made the following election commitments to date which may be of interest:
-$15 million for an office of the State Rural Health Commissioner, to complement the work done at a national level. This office would be independent of Government, providing advice and reporting on rural and regional health concerns.
-$140 million for regional mental health services, including demographically targeted funding for regional community support hours.
Further details on these and other election commitments can be found on our website.
That fact may be disappointing, even alarming, to some people – including a certain (in)famous children’s author.
But to ignore it is to deny reality, and live in a world that is no less fantasy than the stories in that author’s books.
The law should reflect reality rather than fantasy.
Unfortunately, the Exposure Draft Crimes Legislation (Offences Against Pregnant Women) Bill 2020 does not adequately engage with the real world in 2021.
Instead, it consistently refers to the people it intends to protect as pregnant women, including in the primary provision which establishes circumstances of aggravation under the Crimes Act 1900 (NSW), with proposed sub-section 9(1) stating:
‘It is a circumstance of aggravation for an offence against this Act (the relevant offence) if-
(a) the relevant offence is committed against a pregnant woman, and
(b) the act of omission that constitutes the relevant offence causes the destruction of the foetus of the woman.’
This creates at least three potential problems in relation to non-binary people, and trans men, in NSW[i] who are currently or will in the future become pregnant.
First, some people may attempt to argue this wording would therefore mean such aggravation does not apply in relation to the destruction of a foetus of a non-binary person or trans man who was pregnant.
This problem is likely the easiest to overcome, with sub-section 8(1) of the Interpretation Act 1987 (NSW) providing that ‘[i]n any Act or instrument- a word or expression that indicates one or more particular genders shall be taken to indicate every other gender.’
In this situation, woman may consequently be interpreted by courts to also include non-binary people and trans men – although I would appreciate confirmation from the Department of Communities and Justice that this interpretation is correct, and that the foetuses of non-binary people and trans men are not considered less important than the foetuses of women under this proposed law.
The second problem is more difficult to overcome, and that is because the repeated use of the phrase pregnant women – without explicit recognition of the pregnancies of other people – itself reinforces the invisibilisation and marginalisation of those people.
Non-binary people and trans men who are or will in the future become pregnant will see a law that does not include them in its text.
This problem is also very easy to overcome, provided there is sufficient parliamentary support to treat all people equally under the law. That is to simply replace the phrase pregnant woman with pregnant person, both in the title of the legislation and throughout.
The third problem is one that will be created by the Bill for the future.
At some point – whether this year, this term, or later this decade – NSW will hopefully join the majority of Australian jurisdictions in allowing trans and gender diverse people to amend their birth certificates without requiring surgery or other invasive medical procedures beforehand.[ii]
That change would ensure the Births, Deaths and Marriages Registration Act 1995 (NSW) accepts the existence of all trans and gender diverse people, and therefore of non-binary people and trans men who can become pregnant.
When that reform is finally passed, the already strong case to amend the phrase pregnant woman to pregnant person in the current Bill will become overwhelming.
In my view, it makes absolutely no sense to introduce flawed legislation today knowing both that it does not reflect lived experience now and that it will need to be changed in the not-too-distant future.
I should note at this point that, if the provisions of the Crimes Legislation (Offences Against Pregnant Women) Bill 2020 were already part of existing law, this would not be the highest priority for reform.
It is clearly far less important than amendments to the Births, Deaths and Marriages Registration Act itself, to grant trans and gender diverse people in NSW the right of self-determination over their own gender identity.
And it is far less urgent than stopping the One Nation Education Legislation Amendment (Parental Rights) Bill 2020, which would erase a generation of trans and gender diverse students in classrooms across the state.[iii]
Nevertheless, that still does not justify the introduction of a new law that simply entrenches old mistakes, especially when those mistakes can be so easily avoided by substituting one word.
Finally, I have written the above submission as an advocate for the lesbian, gay, bisexual, transgender and intersex (LGBTI) community. I am also someone who supports the right to choose for people who are pregnant.
I have taken at face value the statements on the Department of Communities and Justice website, and in the Premier and Attorney General’s media release of 10 November 2020,[iv] advising that ‘[t]he proposed amendments do not affect existing laws on abortion.’
If those statements are not accurate, then I defer to the expertise of reproductive rights organisations and support any amendments which are necessary to protect the hard-fought, and hard-won, right to reproductive choice in NSW.
In conclusion, I would like to reiterate my original point – that the law should reflect reality, not fantasy.
In the real world, there are already, and will be in the future, non-binary people and trans men who are pregnant. The wording of the Crimes Legislation (Offences Against Pregnant Women) Bill 2020 does not reflect this reality. It should be changed.
Thank you for the opportunity to make a submission on this draft legislation. Please do not hesitate to contact me at the details provided should you require further information.
[i] This includes people who have updated their identity documentation to reflect their gender identity in Australian jurisdictions which do not require surgery or other invasive medical procedures beforehand. Of course, it also includes many people in NSW who are currently unable to do so because of the inappropriate and unjustified restrictions in section 32B of the Births, Deaths and Marriages Registration Act 1995 (NSW). However, despite what that law may say, in reality – in their day-to-day lives – these people are not women.
Thank you for the opportunity to make a submission on this important topic.
I do so as a long-term advocate for Australia’s lesbian, gay, bisexual, transgender and intersex (LGBTI) community, including through my website www.alastairlawrie.net
While my primary law reform focus is on improving LGBTI anti-discrimination and anti-vilification legislation, I have also previously made multiple submissions in relation to sexual orientation and gender identity conversion practices, including in New South Wales[i] and Victoria.[ii]
In this submission, I will attempt to answer most, although not all, of the answers posed in the Issues Paper.
However, I also wish to acknowledge that the most important voices in this debate are those of the survivors of these abhorrent practices, including survivors of sexual orientation and gender identity conversion practices in Tasmania.
Therefore, where my answers may diverge from the submissions made by survivors, both individuals and organisations, I urge you to prioritise their views as the experts on the wide scope of these practices, the serious harms they cause and the most effective way(s) in which to prohibit them.
Question 1: After considering the background and working definition, in your opinion, what are and are not ‘sexual orientation and gender identity conversion practices’?
In my view, the terminology ‘sexual orientation and gender identity conversion practices’ is appropriate, as it avoids the limitations of alternatives such as ‘ex-gay or ex-trans therapy’.
I defer to survivors on the matter of all of the possible acts that should be included in any definition. However, the scope of any definition must not be limited to only cover conversion practices which occur in health settings (a mistake made in the Queensland Health Legislation Amendment Act 2020).
On the other hand, it must cover conversion practices which occur in religious settings, both formal and informal, because that is where survivors tell us most of the harm is inflicted.
In terms of the possible definition, I think the TLRI working definition captures the core components of conversion practices:
(a) acts or statements;
(b) that are aimed at changing, suppressing, or eradicating the sexual orientation or gender identity of another person; and
(c) are based on a claim, assertion or notion that non-conforming sexual orientation or gender identity is a physical or psychological dysfunction that can be suppressed or changed.
My one concern in this definition is the use of the word ‘non-conforming’, implying that there are sexual orientations or gender identities which do conform, or are ‘the norm’.
I would suggest consideration of alternative phrasing, perhaps to words to the effect of ‘that a sexual orientation that is not heterosexuality or a gender identity that is not cisgender’.
This wording may also help to ensure that support services for same-sex attracted and gender diverse people exploring their identities, as well as assistance for people considering or undergoing a gender transition, are not captured in the definition (noting these have been expressly excluded in both the Queensland legislation, and the ACT Sexuality and Gender Identity Conversion Practices Act 2020).
Finally, I support the inclusion of removing a person from Tasmania for the purpose of sexual orientation and gender identity conversion practices conducted outside the state in any definition and/or offences, because the harm is still inflicted on Tasmanians.
Question 2: Should people be allowed to consent to SOGI conversion practices? If so, at what age, and under what conditions?
No, I do not believe it is possible to ‘consent’ to SOGI conversion practices, even for adults.
The ideology which underpins conversion practices – that people who are same-sex attracted or gender diverse are ‘broken’ and require ‘fixing’ – is dangerous and incredibly harmful. The ideology is also erroneous – LGBT people are beautiful, just as we are – meaning any consent derived from it is based on a falsehood.
In addition, people who have been indoctrinated with this abusive ideology, whether in familial, educational, health and/or religious settings, and therefore experience severe shame about who they are, are not in a position to provide genuine consent to what is simply further abuse.
As someone who attended a deeply homophobic religious boarding school in Queensland in the 1990s – where same-sex attraction was demonised from the school rules to the pulpit (with one pastor suggesting suicide was not the worst possible outcome for children struggling with their sexual orientation)[iii] – and consequently developed profound self-loathing, I may have even participated in more-formal conversion practices had they been offered, either at the school or afterwards.
I don’t believe that my ‘consent’ in such circumstances would have been any more real on the day I turned 18 than the day before.
The practices themselves are the problem, and they should be unlawful irrespective of who is being subjected to them.
On the other hand, I do support potential differentiation in penalty on the basis of who is being harmed. For example, while sexual orientation and gender identity conversion practices should be unlawful in all circumstances, I favour increased maximum sentences where the victim is a child or young adult under the age of 18 or a person with decision-making impairments (to use the terminology outlined in the Issues Paper).
Question 3: Have you been involved in or offered, or are you aware of, any forms of SOGI conversion practices in Tasmania? If so, what were the effects on you, or the person exposed to them?
Question 4: Do you think that Tasmanian law should be changed to address SOGI conversion practices? If so, should this be through comprehensive reform, amendment or both (a hybrid)?
I do not believe current Tasmanian laws are sufficient to deal with the harms caused by sexual orientation and gender identity conversion practices. Nor do I believe they can be addressed simply by amendments to existing laws. Therefore, I support either comprehensive reform, or a hybrid approach.
This would, at a minimum, include creating criminal offences covering sexual orientation and gender identity conversion practices, as well as providing civil remedy options to ensure that survivors of these abuses have the ability to seek financial compensation.
As discussed in my answer to question 2, above, I believe these responses (criminal offences and civil remedies) should cover all people who are subjected to sexual orientation and gender identity conversion practices. However, the available penalties should be higher where the person subject to harm is a child or young adult under the age of 18 or a person with decision-making impairments.
Question 5: Should some or all forms of SOGI conversion practices be criminalised in Tasmania? If so, which, if any should be dealt with as serious (indictable) crimes and which, if any, should be dealt with as less serious (summary) offences?
Yes, sexual orientation and gender identity conversion practices should be criminalised.
Given the serious harms caused by these practices, I believe that at least some of these activities should constitute indictable offences.
As indicated in my answers to both questions 2 and 4, above, I also believe there should be higher maximum penalties where the person subject to harm is a child or young adult under the age of 18 or a person with decision-making impairments. This may involve the creation of separate offences, or the inclusion of age and decision-making capacity as aggravating factors in sentencing.
Again, given the seriousness of the harms inflicted by sexual orientation and gender identity conversion practices, I believe that imprisonment should be an option, particularly for the worst instances of abuse (although, being unfamiliar with sentences under Tasmanian criminal law, I am not in a position to recommend a maximum term of imprisonment).
Finally, as indicated in my response to question 1, I believe these offences must extend beyond just health practitioners to include religious settings, both formal and informal, because that is where survivors tell us most of the harm is inflicted, as well as other areas (for example, educational settings).
Question 6: Should some or all forms of SOGI conversion practices be made civil wrongs in Tasmania? If so, what sort of practices should people be liable for and how should those subject to such practices be compensated?
Yes, sexual orientation and gender identity conversion practices should be made civil wrongs in Tasmania, in addition to being subject to criminal sanctions. This is necessary to allow the people harmed by such abuses to seek financial compensation.
Given people who have been exposed to the harmful ideology which underpins conversion practices may not be aware for some time afterwards that what they experienced was, in fact, abuse, I am in favour of extending the limitation period beyond the ordinary three years, and potentially up to 12 years.
Question 7: Should any existing Tasmanian laws (besides criminal laws or the Civil Liability Act 2002 (Tas)) be amended to cover SOGI conversion practices? If so, which ones and in which ways?
Provided that sexual orientation and gender identity conversion practices are covered by both criminal penalties and civil remedies (including financial compensation), I am agnostic about the specific vehicle(s) to deliver the latter.
I note that inclusion within Tasmania’s best practice anti-discrimination framework, via the Anti-Discrimination Act 1998, may confer some benefits (including in terms of access to dispute resolution, potential lesser exposure to costs as well as possible greater variation in outcomes such as public apologies).
Inclusion in the Anti-Discrimination Act may also allow the Anti-Discrimination Commissioner to investigate conversion practices, even in the absence of a specific complaint from survivors.
However, I defer to the views of survivors about their preferred regulatory approach.
Question 8: Are there any other models or approaches that are preferable to, or should complement, changing the law?
I also defer to survivors, both individuals and organisations, about the best ways to detect or report sexual orientation and gender identity conversion practices.
However, I agree with the view expressed in the Issues Paper that it may be difficult to enforce any law against these abuses.
This includes both the criminal law – where it may be difficult to establish proof beyond a reasonable doubt (although I nevertheless support the creation of criminal offences to send a strong public statement that such practices are contrary to community interests, are wrong, and are fundamentally harmful).
And it will also be difficult to enforce under civil law because it will place the onus on people who have experienced psychological abuse (and potentially physical abuse, too) to bring actions and to therefore possibly be retraumatised through the litigation process.
As with most complex problems, legislation alone will never be sufficient on its own to combat the ills of sexual orientation and gender identity conversion practices.
This is especially true because eliminating such practices also means eradicating the harmful ideology which underpins it (that people who are same-sex attracted or gender diverse are ‘broken’ and require ‘fixing’). That will require the concerted and sustained efforts of government and non-government organisations, in partnership with survivors.
I obviously defer to survivor organisations about which support and other services require funding to accomplish this objective.
Question 9: Are there any other matters that you consider relevant to this Inquiry and would like to raise?
I agree with the view expressed in the Issues Paper that criminalisation may drive sexual orientation and gender identity conversion practices further underground.
However, I do not believe this risk is sufficient to justify not prohibiting practices which inflict severe harm on many of the community’s most vulnerable people, including LGBT children and young adults.
This risk can also be mitigated by ensuring that law enforcement is appropriately trained and resourced to address the serious problems caused by conversion practices, as well as empowering an independent authority to investigate systemic issues (for example, the Tasmanian Anti-Discrimination Commissioner, as discussed above in response to Question 7).
Finally, I understand that some groups may oppose any regulation in this area on the basis of ‘religious freedom’.
However, such opposition does not understand that freedom of religion is not absolute. As Article 18(3) of the International Covenant on Civil and Political Rights makes clear:
Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others.
Laws which seek to protect people against sexual orientation and gender identity conversion practices – which, in my view, constitute psychological torture and can and in many cases do lead to adverse mental health outcomes including depression, self-harm and even suicide – would therefore be clearly justified under international human rights law.
Thank you in advance for your consideration of this submission. Please do not hesitate to contact me, at the details provided, should you require additional information.
ANU Gender Identity + Sexuality Law Moot Webinar Presentation
In October 2020, I was invited to be a judge for the round robin stage of the inaugural ANU Gender Identity + Sexuality Law Moot. In the lead-up to the moot itself, I participated in a webinar for participants about the state of LGBTIQ law reform in Australia, including being asked to address the following two questions:
What are, in your view, the most significant issues that need legal reform with respect to LGBTIQ rights and inclusion? and
How can we ensure that workplaces are inclusive and safe for people from all backgrounds but in particular for the LGBTIQ community?
While the panel ultimately adopted a more ‘free-wheeling’ approach to its discussion, I prepared the below, more detailed responses to these questions. Now that, at the end of a busy year, I’ve finally had the chance to tidy them up, I thought they might be worth sharing. I’m also keen to hear other people’s views, including on what you think the most significant issues that need legal reform are today – please leave your comments below.
Question 1. What are, in your view, the most significant issues that need legal reform with respect to LGBTIQ rights and inclusion?
Despite what many people might assume – and what far too many members of our political and media classes seem to believe following the recognition of LGBTI marriage in 2017 – there remain a large number of outstanding legal reforms necessary for LGBTIQ rights and inclusion in 2020 [and I guess we can say 2021 now, too]. The following are my top three:
Ending coercive medical interventions on children born with intersex variations of sex characteristics
Intersex people, and especially children born with intersex variations of sex characteristics, currently experience the worst human rights abuses of any group within the Australian LGBTIQ community.
Intersex people are born with physical sex characteristics that do not neatly fit medical norms for female or male bodies. Infants, children, adolescents and adults born with intersex variations risk or suffer forced and coercive medical interventions, designed to make their bodies more typically female or male. These interventions are not medically necessary, but instead rely on social or cultural rationales.[i]
The consequences of early and unnecessary deferrable interventions can include pain, trauma, shame, loss of sexual function and sensation, urinary incontinence and urgency, a need for ongoing medical treatment or repeat surgeries, experiences of violation and sexual assault, reinforcement of incorrect sex assignment and loss of choice.
These coercive medical interventions breach a large number of human rights principles, including the right to bodily integrity. They also adversely impact on rights to liberty, security, non-discrimination, privacy and freedom from torture, experimentation and harmful practices.
Unfortunately, coercive medical interventions on intersex people, and especially children born with intersex variations, have not been legally prohibited in any Australian jurisdiction.
Instead, they are self-governed by clinical guidelines which support coercive interventions despite a lack of supporting medical evidence. And they are enabled by a legal system, including family law, which have permitted coercive interventions on the basis of (often poorly-informed) parental consent. The most infamous decision was the 2016 Family Court decision of Re: Carla, although it was merely one of a long line to contravene the human rights of intersex children.
In terms of law reform, there has been disappointingly little progress in this area. This month (October 2020) marks seven years since a bipartisan Senate Committee recommended new guidelines be developed that ‘should favour deferral of normalising treatment until the person can give fully informed consent, and seek to minimise surgical intervention on infants undertaken for primarily psychosocial reasons’ (among other recommendations).[ii]
Unfortunately, the Abbott, Turnbull and Morrison Governments have effectively done nothing to implement even these modest proposals.
More encouragingly, in June 2020 the Tasmanian Law Reform Institute released the final report of its inquiry into the legal recognition of sex and gender. It made a number of recommendations about intersex law reform, including:
The Criminal Code should be reformed to criminalise non-consensual medical interventions in the following terms:
178F Unnecessary medical intervention to change the sex characteristics of children.
(1) Any person who performs a surgical, hormonal or other medical intervention to alter or modify the sex characteristics of a child is guilty of a crime, unless:
(a) it is performed to address a clear danger to the life or health of the child and it cannot be deferred until the child is able to give informed consent; or
(b) it takes place with the informed consent of the child.
(2) Nothing in this Section is intended to apply to interventions involving a consenting transgender child seeking treatment to delay puberty or secondary sexual differentiation.
Charge: Performing unnecessary medical intervention to change the sex characteristics of a non-consenting child.
Recommendation 8 of that report also recommended that:
‘intersex people should be able to pursue claims for compensation for personal trespass and breach of professional duty against doctors where medical interventions to alter intersex variations of sex characteristics have resulted in physical or mental harm, irrespective of any parental consent to the intervention at the time it was performed.’
The Tasmanian Government is now considering these recommendations, meaning it is possible it will become the first Australian jurisdiction to criminalise coercive medical interventions on children born with intersex variations.
Before moving on, I should note the Australian Human Rights Commission has also been undertaking a long-running project on these issues.[iii] I understand it is (finally) nearing completion, and my personal hope is it recommends all Australian jurisdictions criminalise these human rights abuses.
2. Trans and gender diverse birth certificate reform
Trans and gender diverse people should have access to birth certificates, and other identity documentation, based solely on self-identification, and without medical approval (because gender identity is exactly that, identity, and not a ‘medical’ issue). Currently only one Australian jurisdiction has completely achieved this model: Tasmania, following its historic 2019 birth certificate reforms.
Victoria is a close second, also following changes in 2019, which removed the involvement of medical gatekeepers, although unfortunately it does not fully realise self-identification, because applications must be accompanied by a statement from someone who has known the applicant for at least 12 months and ‘supports’ the application.
Three other jurisdictions – South Australia, the ACT and the Northern Territory – have removed requirements for surgery or other physically invasive treatments. However, they still adopt a medical model, because they require engagement with psychologists or counsellors prior to approval. Ultimately, these laws will need to be updated.
However, the largest problems are in the other three states. NSW and Queensland still require surgery in order to access new identity documents, which is completely inappropriate not just because it unnecessarily medicalises gender identity, but also because not all trans and gender diverse people want surgery (or can afford it).[iv]
Western Australia’s legislation also requires surgery, although thanks to a favourable High Court decision, this has been interpreted to ‘only’ require some forms of physical treatment (such as hormone therapy).
One LGBTIQ human rights abuse that is not technically in Australia, but is perpetrated by Australia, is the detention, processing and resettlement of LGBTIQ refugees and people seeking asylum in countries that criminalise them.
In particular, there remain LGBTIQ refugees and people seeking asylum who are trapped in Papua New Guinea – because the Australia Government put them there – a country which retains a maximum penalty of up to 14 years imprisonment for male same-sex activity.
And, even though Nauru decriminalised homosexuality in 2016, that does not necessarily translate into it being a safe environment for the LGBTIQ refugees and people seeking asylum which the Australian Government imprisoned there.
Of course, for anyone interested in international human rights law, all offshore detention, processing and resettlement is abhorrent, and should be ended for all refugees irrespective of their sexual orientation, gender identity or sex characteristics (or other attributes).
However, we must not overlook the fact Australia’s immigration framework has a particularly awful impact on people fleeing persecution on the basis of being lesbian, gay, bisexual, transgender, intersex or queer. They should be brought to Australia immediately.[v]
While there is no individual LGBTI anti-discrimination law reform issue which is as important as the above three topics, I would argue that addressing our inadequate, incomplete and inconsistent LGBTI anti-discrimination and vilification framework overall must also be a high priority. Specifically, the majority of Commonwealth, state and territory anti-discrimination laws should be updated across three main areas:
Ensuring everyone is protected against discrimination. Most state and territory laws currently exclude at least some parts of our community. The NSW Anti-Discrimination Act 1977 is the worst – it doesn’t even protect bisexuals.[vi] While NSW, Victoria, Queensland, Western Australia and the Northern Territory don’t cover people with non-binary gender identities – and the same jurisdictions exclude intersex people as well.
Repealing the special privileges enjoyed by religious organisations. Loopholes allow faith bodies to discriminate against LGBT people, in employment and against people accessing services, even when they are delivering public services using public funding. Nearly all Australian anti-discrimination laws, including the Sex Discrimination Act 1984 (Cth), need to be reformed – although the Tasmanian Anti-Discrimination Act 1998 provides a template for how this can be done, by permitting religious organisations to preference people from their own faith (in limited circumstances), while not allowing discrimination on the basis of other attributes like sexual orientation or gender identity.[vii]
Obviously, the religious exceptions which have received the most public debate, at least in the past few years, are those allowing religious schools to discriminate against LGBT students, teachers and other staff. Positively, four jurisdictions (Tasmania, Queensland, the ACT and Northern Territory) have already legislated to cover LGBT students, although only two (Tasmania and the ACT) fully protect LGBT teachers and other staff. On the negative side, Scott Morrison’s Broken Promise to Protect LGBT Students is Now Two Years Old, and there’s little chance he will act on it for several years to come either.
Introducing prohibitions on anti-LGBTI vilification. There is currently no prohibition on anti-LGBTI vilification under Commonwealth law. Although they are by no means alone – currently Most Australian Jurisdictions Don’t Prohibit Anti-LGBTI Vilification. Of those that do (NSW, Queensland, Tasmania and the ACT), only Tasmania and the ACT protect all sections of the LGBTI community. Given homophobia, biphobia, transphobia and intersexphobia are just as damaging, and harmful, as racism, I firmly believe anti-LGBTI vilification should be prohibited on the same basis as racial vilification (equivalent to section 18C of the Racial Discrimination Act 1975 (Cth)).
There are a range of other LGBTIQ law reform issues which still need to be addressed, including:
Sexual orientation and gender identity conversion practices (sometimes called ex-gay or ex-trans therapy) should be outlawed across Australia. The Queensland Government recently introduced the first ban on these practices – although disappointingly it only applied in health care settings, and not in the religious environments where most anti-gay and anti-trans conversion practices occur. The ACT Government followed shortly thereafter, and their legislation has been welcomed by survivor groups because it covers both health care and religious settings. I understand that there are also moves to outlaw these practices in Victoria, Tasmania and South Australia – although sadly not in my adopted home state of NSW [NB Since the webinar, Victoria has introduced their own Bill to ban conversion practices, which appears to be stronger than both Queensland and the ACT, while the Tasmanian Law Reform Institute has released an Issues Paper on ‘Sexual Orientation and Gender Identity Conversion Practices’, with submissions due 7 January 2021].
South Australia still needs to abolish the gay panic defence (or homosexual advance defence). Thankfully, after much prompting, the South Australian Government has finally released draft legislation that does just that, for public consultation. Hopefully it is finally removed from the statute books later this year or in early 2021. [NB South Australian Parliament passed legislation finally abolishing the gay panic defence on 1 December 2020].
Expungement regimes – which allow for historical convictions for same-sex sexual activity to be expunged from a person’s criminal record – should also be strengthened. In particular, there is a serious limitation in the Queensland scheme, which does not allow gay, bisexual and other men who have sex with men who were convicted as a result of the unequal age of consent for anal intercourse between 1991 and 2016 to have their records expunged,[viii] and
The Marriage Act 1961 (Cth) needs to be amended to remove the unjustified special privileges that were introduced for existing civil celebrants, and religious organisations, as part of the Marriage Amendment (Definition and Religious Freedoms) Act 2017. Note that I usually do not refer to that legislation as providing ‘marriage equality’ as a result of these exceptions, because they mean LGBTI couples marrying now can be discriminated against in ways that divorced people remarrying before 2017 could not. We can get married, but it is still not equal.[ix]
Protecting Existing Rights
Some people take the quote ‘the arc of the moral universe is long, but it bends towards justice’ a little too literally, and consequently fail to appreciate LGBTIQ rights can go backwards. Something which has happened multiple times in the past decade, including the Newman LNP Government in Queensland winding back civil partnership laws passed by the Bligh Labor Government.
In the area of anti-discrimination, we should also remember the Baillieu Coalition Government in Victoria undid the introduction of a modest ‘inherent requirements’ test for religious exceptions passed by the Brumby Labor Government in 2010 – before they had even commenced. While the Hodgman Liberal Government tried multiple times to undermine vilification protections for LGBTI Tasmanians (and other groups) as long as that vilification was religiously-motivated (although thankfully those efforts failed).
There are currently three major efforts to undermine LGBTIQ rights:
The Commonwealth Government’s proposed Religious Discrimination Bill, of which we have seen two Exposure Drafts and was due to be introduced in March 2020 but has been delayed because of the coronavirus pandemic. This legislation would:
Make it easier to make comments that ‘offend, humiliate, intimidate, insult or ridicule’ LGBTI Australians
Make it easier for health practitioners to refuse to provide services to LGBTI patients
Make it easier for religious organisations to discriminate against others
Make it more difficult for big business to promote diversity and inclusion
Create a Religious Freedom Commissioner at the Australian Human Rights Commission (when we still don’t have a Commissioner for Sexual Orientation, Gender Identity and Sex Characteristics)
Entrench unjustified religious exceptions in the Marriage Act 1961 (Cth), and
Explicitly protect charities advocating against LGBTI relationship recognition in the Charities Act 2013 (Cth), despite it being completely unnecessary.
The Mark Latham/One Nation Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020 in NSW, which, similar to the Commonwealth Religious Discrimination Bill, seeks to privilege the rights of religious individuals and organisations over the rights of others, including the right of LGBTI people in NSW to be protected against discrimination [since the webinar, I had this opinion piece published in the Sydney Morning Herald, outlining just one of the many serious problems created by the NSW ‘Religious Freedoms’ Bill], and
The Mark Latham/One Nation Education Legislation Amendment (Parental Rights) Bill 2020, also in NSW. This legislation does (at least) three awful things:
Prohibiting the teaching of ‘gender fluidity’ – where teaching includes anything to do with a school (including counselling) by anyone connected to a school (including volunteers), and ‘gender fluidity’ means acknowledging that gender identity can be different to biological sex at birth. In effect, it will mean erasing trans and gender diverse students, as well as teachers, in schools across NSW
Introducing a UK section 28-style law against ‘promotion’ of ideological views about sexuality and gender identity – which, just like section 28 did there, will impose a silence on LGBT students struggling with invisibility at the most vulnerable point in their lives, and
Enacting an erroneous and stigmatising definition of intersex in NSW law for the first time (‘disorders of sexual differentiation’).
Of course, ordinarily, we wouldn’t be too concerned about legislation being proposed by fringe extremists in the NSW Legislative Council. However, the NSW Government and Opposition have both supported both One Nation Bills being referred to Committee for inquiry – with the anti-trans kids inquiry chaired by Mark Latham himself. Which means we must resist the laws themselves, as well as fighting against toxic debate surrounding them which has the potential to harm vulnerable younger members of our community, and especially trans and gender diverse kids.
Question 2. How can we ensure that workplaces are inclusive and safe for people from all backgrounds but in particular for the LGBTIQ community?
My answer to this will (thankfully) be significantly shorter than for the previous question, in part because we’ve already discussed some of the reforms that are needed, especially in terms of anti-discrimination law reform, such as repealing the special privileges that allow religious organisations to discriminate against LGBT employees.
This includes amending the Sex Discrimination Act 1984 (Cth) to protect LGBT teachers in religious schools, as well as reforms in the other jurisdictions where LGBT school staff are not fully protected (all states and territories bar Tasmania and the ACT).[x]
It also means ensuring LGBT employees in Government-funded aged care services operated by religious organisations are protected (where people accessing these services are currently covered under the SDA, but staff in those same facilities are not). There are several reasons for this, including because it is unfair on employees:
‘People should be hired, not hired or even fired, on the basis of how well they are able to provide care and support to the people accessing aged care services, not who they are attracted to or how they identify.’[xi]
It is also unfair on people accessing these services, who ‘have the right to expect the highest possible standard of care. That is not provided when an aged care service refuses to employ highly-qualified people simply because they are lesbian, gay, bisexual or transgender.’[xii]
The same reasons also apply in terms of fighting against the Commonwealth Government’s proposed Religious Discrimination Bill, especially in the era of coronavirus. That’s because the 2nd Exposure Draft Religious Discrimination Bill allows hospitals to hire the most religious, not the most qualified:
‘Surely, that must have an impact on the standard of care that patients will receive. Imagine the worry if one of your loved ones is taken to the emergency department of a faith-based hospital and you can’t be certain whether the health practitioner is there because of what they believe, not what they can do.’
Likewise, the proposed Religious Discrimination Bill allows aged care facilities to hire the most religious, not the most qualified. As I wrote earlier this year: ‘As someone with a grandmother who turned 99 last Wednesday, and who is in a nursing home, I would hate to think she is being cared for by someone who is there because of their views and not their vocational skills’.
[Both quotes taken from my March 2020 article ‘Coronavirus and the Religious Discrimination Bill’ which I think holds up pretty well, 9 months later, as a strong argument against the RDB when the Morrison Government inevitably brings it back it in the first half of 2021.]
But repealing religious exceptions is not the only law reform needed to make workplaces inclusive and safe for people from all backgrounds, and in particular for the LGBTIQ community.
One specific reform that should be introduced as a matter of priority are amendments to the Fair Work Act 2009 (Cth) to ensure it treats trans, gender diverse and intersex employees exactly the same as lesbian, gay and bisexual ones.
Currently, the adverse action protections in section 351(1), and unlawful termination protections in section 772(1)(f), of that Act cover sexual orientation, but do not explicitly include gender identity or sex characteristics.[xiii]
Unfortunately, despite this issue being raised repeatedly with the Turnbull and Morrison Governments, they do not appear to be in any hurry to remedy this omission.
A broader structural reform to anti-discrimination law is ensuring it is able to deal with real-life people, who are complex and have multi-faceted characteristics (covering race, sex, age, disability, sexual orientation, gender identity, sex characteristics and more attributes besides).
Often, it is impossible for people to know whether they have been discriminated against because of a particular protected attribute, or a combination of attributes. Any definition of discrimination must be able to deal with this complexity, and uncertainty. In my perspective, one of the best approaches is found in section 8 of the ACT Discrimination Act 1991:
‘Meaning of discrimination
(1) For this Act, discrimination occurs when a person discriminates either directly, or indirectly, or both, against someone else.
(2) For this section, a person directly discriminates against someone else if the person treats, or proposes to treat, another person unfavourably because the other person has 1 or more protected attributes.
(3) For this section, a person indirectly discriminates against someone else if the person imposes, or proposes to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because the other person has 1 or more protected attributes.’
One final point that should be mentioned, if we are genuine about making workplaces inclusive and safe for people from all backgrounds, is that there is a gap in terms of anti-discrimination protections around religious belief, and lack of belief.
It is unacceptable that the Commonwealth, NSW and South Australian anti-discrimination regimes do not protect people of faith, and no faith, against discrimination – this is something that should be addressed.
But it must not be addressed in the way proposed by the Commonwealth Religious Discrimination Bill, or the Mark Latham/One Nation Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020 in NSW. Because they are just as unacceptable.
People of faith, and no faith, should be protected against discrimination on exactly the same terms as everyone else, including to the same standard as sexual orientation, gender identity and sex characteristics.
People of faith, and especially faith-run organisations, must not be given new special privileges to discriminate against others, including people of minority faiths or no faith, as well as women, LGBTIQ people, single parents, divorced people and people in de facto relationships, people with disability and plenty more.
Doing this one simple thing – protecting everyone against discrimination, equally – would help create an Australia where all people are accepted for who they are. And it would be a great leap forward for LGBTIQ people of faith too, many of whom experience discrimination on the basis of both sexual orientation/gender identity/sex characteristics and faith.
[i] The information in this, and following, paragraph(s) is summarised from the website of Intersex Human Rights Australia. Please check them out here.
Building on reports in 2005 and 2011, Private Lives3 is Australia’s largest national survey of the health and wellbeing of lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) people.
Covering a diversity of topics, from households and relationships, to housing and homelessness, general health and wellbeing, mental health and wellbeing, alcohol, tobacco and other drug use, and intimate partner and family violence (among others), it makes for both fascinating reading and invaluable research. I strongly encourage you to download and read it.
However, as someone with a particular interest in all things LGBTIQ discrimination, it is their section on ‘Discrimination, harassment and feelings of acceptance’ I will focus on today.
The Private Lives 3 findings in this area are, frankly, disturbing.
Asked, ‘to what extent do you feel accepted in the following situations?’, just 60.7% of LGBTIQ Australians answered ‘a lot’ or ‘always’ in relation to work.
That figure dropped to 55.3% in educational institutions, and 43.4% when accessing a health or support service.
Only 30.5% of LGBTIQ people said they felt accepted a lot or always in public (eg in the street/park), and a perhaps unsurprising but still shockingly low figure of 10.5% at religious or faith-based events or services.
It is also unsurprising that cisgender members of the LGBTIQ community reported higher rates of acceptance than trans and non-binary people.
For example, while 68.5% of cisgender men and 61% of cisgender women felt accepted a lot or always at work, this fell to 50% for trans women, 48.8% for trans men and just 43% for non-binary people.[i]
There was a similar divergence in terms of acceptance by sexual orientation, with gay and, to a lesser extent, lesbian respondents reporting higher rates than bisexual, pansexual, queer and asexual people.
For example, while 69.6% of gay and 63.8% of lesbian people said they felt accepted at work always or a lot, just 53.6% of bisexual, 54.5% of pansexual, 54.5% or queer and 47.4% of asexual people said the same thing.[ii]
The responses to the question ‘In the past 12 months, to what extent do you feel you have been treated unfairly because of your sexual orientation or gender identity?’ are just as disturbing (if not more). As the authors (Hill, Bourne, McNair, Carman and Lyons) observe on page 40:
‘Almost six in ten participants reported that they had been treated unfairly to some degree (either a little, somewhat, a lot or always) because of their sexual orientation in the past 12 months, with 4.5% reporting a lot or always. Over three quarters (77.5%) of trans and gender diverse participants reported that they had been treated unfairly to some degree because of their gender identity in the past 12 months, with 19.8% reporting a lot or always.’
Even more shocking are the high reported rates of experiences of vilification – and worse – based on sexual orientation and/or gender identity. In the previous 12 months:[iii]
34.6% of respondents reported experiencing verbal abuse (including hateful or obscene phone calls) due to their sexual orientation or gender identity
23.6% experienced harassment such as being spat at and offensive gestures
22.1% received written threats of abuse via emails or social media
14.6% experienced threats of physical violence, physical attack or assault without a weapon
11.8% experienced sexual assault
11.4% received written threats of abuse in other ways
10% experienced refusal of service
9.9% experienced refusal of employment or being denied promotion
5.3% received written threats of abuse via graffiti, and
3.9% experienced physical attack or assault with a weapon (knife, bottle, stones).
‘Overall, trans and gender diverse participants reported higher levels of harassment and abuse than cisgender participants. For example, a greater proportion of trans women (51.6%), non-binary participants (49.4%) and trans men (45%) reported verbal abuse in the past 12 months due to their sexual orientation or gender identity compared to 28.7% of cisgender women and 32.7% of cisgender men.’
This is nothing short of an epidemic of discrimination, harassment, vilification and violence against LGBTQ Australians on the basis of their sexual orientation and, especially, gender identity. And it is getting worse, not better.
For example, reported rates of verbal abuse increased from 25.5% in Private Lives 2 (released in 2011) to 34.6% in Private Lives 3; harassment such as being spat at and offensive gestures rose from 15.5% in PL2 to 23.6% in PL3; physical attack or assault with a weapon doubled, from 1.8% to 3.9%; and sexual assault quadrupled, from 2.9% to 11.8%.
Let me think, what happened in the period between Private Lives 2, and the survey period for Private Lives 3 (from 24 July to 1 October 2019), which could have caused greater homophobia, biphobia and transphobia in the Australian community?
It seems undeniable that the Coalition Government’s proposed plebiscite on same-sex marriage, and actual postal survey – and the toxic public debate surrounding both – has directly contributed to increased anti-LGBTQ prejudice.
Nor should we underestimate the negative impact of the ‘religious freedom’ movement which they deliberately unleashed, with the Religious Freedom Review in 2018, and the Morrison Government’s First Exposure Draft Religious Discrimination Bill which was released right in the middle of the Private Lives 3 survey period, in August 2019.
What should happen from here?
The Private Lives 3 survey results show us the scale of the problem: appalling rates of discrimination, harassment, vilification and violence against LGBTQ Australians on the basis of their sexual orientation and, especially, gender identity. And we have a pretty good idea about who is to blame (at least for making the situation much, much worse than it already was). But what is the solution?
I would argue the following three actions would be a good place to start (although I’m sure readers of this blog could offer other useful suggestions, via the comments section below):
Improve LGBTI anti-discrimination laws
The introduction of Commonwealth anti-discrimination protections for the LGBTI community, through the historic Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, was an important step, although by no means the end of the journey.
One of the long-standing, missing pieces of LGBTI law reform, at least at Commonwealth level, is protection against anti-LGBTI vilification. The high rates of hate-speech reported through Private Lives 3 has merely confirmed the urgency of addressing this gap.
As I hav consistently advocated over many years,[iv] given homophobia, biphobia, transphobia and intersexphobia can be just as harmful as racism, the Sex Discrimination Act 1984 (Cth) should be amended to prohibit anti-LGBTI vilification on an equivalent basis to the prohibition of racial vilification in section 18C of the Racial Discrimination Act 1975 (Cth).
3. Publicly-fund programs against homophobia, biphobia, transphobia and intersexphobia
Being an advocate for LGBTI law reform, it is easy to forget that changing the law can only ever be one part of the solution – and often only a small part at that.
To address the ongoing, high levels of anti-LGBTQ discrimination in employment, healthcare, education and other areas of public life identified in Private Lives 3, we need well-funded, publicly-funded campaigns explicitly targeting homophobia, biphobia, transphobia and intersexphobia.
We also need our elected representatives to lead by example, by calling out prejudice on the basis of sexual orientation, gender identity and sex characteristics, and making sure anti-LGBTIQ comments are never acceptable in public debate.
What is actually happening?
Unfortunately, when we examine what is being done in relation to the three actions described above, the answer is not much. In fact, worse than just political inaction, the Coalition Government seems intent on exacerbating these problems rather than solving them.
For example, the proposed Religious Discrimination Bill – which Attorney-General Christian Porter recently confirmed remained part of the Government’s legislative agenda – would make it easier for religious individuals and organisations to discriminate against LGBTIQ Australians, including by refusing to provide healthcare services that benefit members of our communities (for more, see ‘The ‘Bad Faith’ Religious Discrimination Bill Must Be Blocked’).
That same legislation also calculatingly, and explicitly, undermines state and territory anti-vilification laws (where they exist), by making it easier for people to make comments that ‘offend, humiliate, intimidate, insult or ridicule’ LGBTI people as long as those comments are motivated by faith. This includes over-riding the ‘best practice’ Anti-Discrimination Act 1998 (Tas).
As for culture change, then-Prime Minister Malcolm Turnbull first ‘gutted’ then abolished entirely the national, evidence-based program targeting bullying against LGBT kids in schools (Safe Schools).
Meanwhile, current Prime Minister Scott Morrison has publicly attacked school counsellors who support trans and gender diverse children, deriding them as ‘gender whisperers’ in a now-infamous tweet. And he has taken more concrete action to remove trans-inclusive toilet door signs in the Department of Prime Minister & Cabinet, than he has to implement his 2018 promise to protect LGBT students in religious schools against discrimination (for more, see ‘Scott Morrison’s Broken Promise to Protect LGBT Students is Now Two Years Old’).
The findings of Private Lives 3 reveal a bushfire of bigotry is burning in the Australian community – but far-too-often our elected representatives are the ones who are fanning the flames.
Of course, it isn’t just the Commonwealth Government who should be taking action to address discrimination, harassment, vilification and violence against LGBTQ Australians. Our state and territory governments, too, need to step up, including by modernising their own anti-discrimination laws.[v] The Anti-Discrimination Act 1977 (NSW), and Equal Opportunity Act 1984 (WA) in particular have fallen far, far below community standards.
Victoria, Western Australia, South Australia and the Northern Territory also need to introduce their own LGBTI anti-vilification laws (in addition to the Commonwealth), while it is probably fair to say all Governments could be doing more to combat homophobia, biphobia, transphobia and intersexphobia in their respective jurisdictions.
Nevertheless, I would argue that the sheer size of the challenge which confronts us, as so disturbingly revealed in the ‘Discrimination, harassment and feelings of acceptance’ pages of Private Lives 3, demonstrates a national approach is desperately needed.
That obviously means stopping those things which would simply make the problem worse – including by abandoning any Religious Discrimination Bill that would undermine the rights of LGBTIQ Australians. But it also requires positive steps to make things better.
We’ll find out in 2021 whether the Commonwealth Government, and Parliament more broadly, is willing to do that which is necessary – or allow anti-LGBTIQ prejudice to rage on.
[i] The rates of acceptance at health services were even lower, showing a significant drop-off for cisgender women. Specially, while 55.5% of cisgender men felt accepted ‘a lot/always’, this fell to 42.4% for cisgender women, 46.5% for trans women, 30.1% for trans men and just one in five non-binary people (21.5%).
[ii] The rates of acceptance at health services were even lower. Only gay respondents felt accepted ‘a lot/always’ more often than not (54.8%), compared to just 40.1% of lesbian, 43.8% bisexual, 37.3% pansexual, 26.7% queer and 33.3% asexual respondents.
[iii] Check out the full list on page 40 of the Private Lives 3 Report.
Wollongong, a regional city in NSW, is home to around 200,000 people, or less than 1% of the Australian population. However, despite its small size, Wollongong has played a significant role in the history of marriage equality in Australia. That includes political trailblazers in support of, as well as staunch advocates against, change, plus influential grass-roots community campaigners.
This article seeks to give recognition to those involved in the long and arduous struggle for marriage equality who called Wollongong home. And yet, for at least two reasons that will explained in detail later, this history can only ever be an incomplete one – deliberately leaving space for other stories, and voices, to be heard on this subject.
Political trailblazer #1: Michael Organ
The first political trailblazer was an MP who served less than two years in office: the former Greens Member for Cunningham, Michael Organ. Having somewhat unexpectedly won a by-election on 19 October 2002, Mr Organ was responsible for representing constituents in the Wollongong CBD and its Northern suburbs when Prime Minister John Howard first sought to ban same-sex marriage in 2004.
With the Labor Opposition supporting the Liberal/National Government’s amendments to the Marriage Act 1961 (Cth), Organ was the only member of the House of Representatives to speak out against the prohibition on same-sex marriage. In fact, as the only MP to oppose the ban, there was no formal division on the Marriage Amendment Bill 2004 when it was debated on 24 June, given calling for a division requires a minimum of two members. Nevertheless, Organ made his passionate views against the Bill known on the floor of the chamber:
The Marriage Amendment Bill 2004 is a disgrace. It is quite clearly discriminatory. It discriminates against those 20,000 couples in Australia that the ABS has recently told us want to be married, who are living as married couples and who are not heterosexual – they are part of the lesbian, gay and transgender community.
This is 2004 we are talking about. The government seems to be living in the fifties and seems to deny everything that has happened in regard to so-called gay liberation and rights for people of other sexuality. The government has its head in the sand on this matter.
In this day and age in Australia … there are gay and lesbian couples living in loving relationships as married couples. We cannot deny this. It is not going to change. It is part of our society and we have to embrace it. It is disgraceful for the government to come into this place – and for the opposition to support them – and to blatantly discriminate against those people.
It is a sad day for this parliament to be introducing such discriminatory legislation.
We have heard the Prime Minister come into this place and say, ‘I’m not going to discriminate against anyone based on their sexuality,’ yet here we have a blatant example of the government and the opposition supporting discrimination against ordinary individual Australians based on their sexuality. This simply cannot be condoned.
Thirteen years before the same-sex marriage postal survey, Organ was foreshadowing the arguments that would ultimately lead to a majority of Australians supporting marriage equality: that as well as being an issue of fundamental equality before the law, it was essentially about recognising the equal love between two people irrespective of sexual orientation and gender identity.
Organ had also been the only House of Representatives MP to speak against the Howard Government’s first attempt to ban same-sex marriage, earlier that month, legislation which did not progress because the Labor Opposition would not support provisions against overseas same-sex adoption. On 17 June 2004, he stated:
The Greens do not believe that allowing members of the LGBTI community to marry fundamentally undermines marriage. Indeed, such a desire can surely only strengthen it. If two people wish to make a public declaration of their love and longterm commitment, then their gender is irrelevant. We should remember that we are dealing here with the emotions, feelings and relationships of ordinary Australians.
Interestingly, one of the examples of legal discrimination against same-sex couples cited by Organ in that speech was the Howard Government’s refusal to subsidise the expenses of the former Member for Throsby, Colin Hollis’, long-term same-sex partner when Hollis represented the Australian Parliament at the United Nations, despite mixed-sex partners receiving this entitlement without question:
Hollis took his case to the Human Rights and Equal Opportunity Commission in 2001 but lost on the strict definition of ‘spouse’ in the legislation. Again, the government fought Hollis all the way. This blatant discrimination is an affront to fair-minded people everywhere.
During both of the Howard Government’s legislative attempts to prohibit same-sex marriage, the Member for Cunningham was the only voice in the lower house calling for full equality for lesbian, gay, bisexual, transgender and intersex (LGBTI) couples. Consequently, the citizens of the Wollongong CBD and Northern suburbs were the only people in the country whose local member supported their right to determine for themselves who they should marry.
This does not mean the local community fully supported his decision to take such a stand. Nationally, a June 2004 survey conducted by Newspoll found only 38% of respondents were in favour of same-sex marriage, while 44% were against.
As Organ himself conceded to Parliament, local views on the issue were also divided:
I have certainly been made aware of the homophobia that has existed in the community in my electorate of Cunningham. Vile letters to the editor on this issue have appeared in the Illawarra Mercury since the Prime Minister raised the issue last year, and recently in response to my same-sex relationships bill – though I should point out to the House that the letters in support of gay marriage and gay rights have far outweighed the homophobic.
The reference to his ‘same-sex relationships bill’ actually represents another first for the Commonwealth Parliament: Organ’s Same Sex Relationships (Enduring Equality) Bill 2004 was the first Bill introduced that sought to permit same-sex marriage in Australia, out of a total of 23 such Bills introduced between 2004 and 2017. Sub-clause 5(2) of his Bill provided:
5 Discrimination on the basis of sexuality to be unlawful
(2) To avoid doubt this Act makes any distinction, exclusion, restriction or preference based on a person’s sexuality as it relates to;
(d) Employment Entitlements;
(e) Access to reproductive or health services;
(f) The lawful age of consent to sexual activity;
While the Bill was never debated in Parliament, and he went on to lose the seat of Cunningham at the election on 9 October 2004, in his short time in office Michael Organ was undeniably a trailblazer on the issue of marriage equality – a torch that was picked up six years later by a member of a different political party, representing the other electorate covering parts of the Wollongong community.
Political trailblazer #2: Stephen Jones
Stephen Jones was elected in the seat of Throsby at the federal election on 21 August 2010. Throsby – which was re-named Whitlam at the 2016 election – represents the southern suburbs of the Wollongong Local Government Area (LGA), as well as Shellharbour and parts of Wingecarribee Shire in the Southern Highlands. Less than three months later, Jones first used his position to speak out in favour of marriage equality, telling Parliament that:
[M]arriage is an important institution in our society. It is a special relationship where two people say to each other and to the rest of the world that they agree to be bound together in love, exclusive of all others, for life. I believe it would diminish us all as a society if we were to say that we may exclude gay and lesbian couples from this celebration. That marks them as somehow less worthy or even as biological oddities. I respect the right of religious organisations and others in our community to disagree with this view and to continue to practise in accordance with their beliefs. Indeed, no motion or act of this place can of itself change those beliefs. But it is an entirely different thing to ask of the state to enforce it.
Looking back on his history of engagement on the issue, Mr Jones reiterated that the principles of equally and fairness were motivating factors for his stand:
I was always on side, a supporter of marriage equality, even before I entered parliament. Going into my first election campaign, I was clear that, if there was a Bill, I would vote for it. But as is so often the case, issues can become more salient or important over time. As I thought more about the issue, I realised this was not something that could be ignored, or delayed. This was an issue of fairness, and equality, and I thought Labor should take a stand on it.
In 2020, it can be easy to underestimate how courageous this step was. Jones, a first-term MP, was speaking against not only the platform position of his party – the ALP remained officially opposed to marriage equality until its December 2011 national conference – but also of his then-Prime Minister, Julia Gillard.
In this context, it was inevitable that Jones’ stance would attract criticism – and it did, particularly from some right-wing figures within the Labor Party itself. Within days, Bob Harrison, former Labor MP for the state seat of Kiama, had written to the Illawarra Mercury that ‘Marriage must be defended’:
The Government must fearlessly and without diffidence defend the institution of marriage as involving vows between one man and one woman, while rejecting out of hand illogical and ideologically driven demands of social engineers and politicians who conspire with the Greens for unprincipled preference deals.
This opposition continued in the following year, with then-state Labor MP for Wollongong, Noreen Hay, leading what was described as:
a rebellion against Labor federal counterpart Stephen Jones, winning a key motion in his seat of Throsby which undermines his public stance on same-sex marriage. The humiliating defeat reflects widespread anger among ALP members in Mr Jones’ electorate, who feel they were not consulted about his position on the issue.
Mr Harrison again attacked Jones through the media in early 2012, writing that:
Heterosexual marriage involving one man and one woman, in any case, must be preserved and recognised as a unique institution among all human relationships, predicated on the creation of new life and the preservation of family life Australians have always known. Australian children have a right to know, bond with and share the love and protection of both a mother and a father. No other form of human or social relationship can hold out the promise of this benefit to future generations.
Reflecting on this internal backlash almost a decade later, Jones remains convinced his pro-equality approach was the correct one:
I was copping a whole heap of shit from some people for the stand I was taking. People in the Party who were strongly against it were using it to campaign against me. I had an opponent who was knocking on doors telling people I was supporting same-sex marriage and that was a reason people shouldn’t support me. I was initially a little bit worried about the fall-out, but once you take the first step, and the second – especially on an issue of principle – then you just keep walking towards the outcome you think is the right one. Overall, I guess I did lose a little bit of support in some quarters, but I did what I thought was right.
In fact, despite these prominent local opponents, in February 2012 Jones would go on to introduce the first private members bill to legalise same-sex marriage to come from a major party MP (Labor, Liberal or National Party) – which also meant it was the first marriage equality bill that had a realistic chance of succeeding.
His first reading speech on the Marriage Amendment Bill 2012 had echoes of the earlier parliamentary contributions of Michael Organ in 2004:
I believe that God made us all equal but different-not differently equal. The object of the bill is to remove discrimination and advance equality. It will ensure that when same-sex couples make a voluntary commitment to be together for life, to the exclusion of all others, and they choose to have that relationship solemnised, it will be recognised at law in the same way that my marriage is…
I believe there is a stronger force which guides us in matters like this. It is the right to equality-the human right not to be discriminated against on the grounds of sexuality. Human rights are inalienable rights, recognised and protected by governments, not created by them. They should never be qualified by fear or prejudice.
Debate about Jones’ Bill, both inside and especially outside Parliament, dominated national discussion for the following six months. Ultimately, it became the first same-sex marriage bill to be debated by both chambers of Parliament since Howard’s original ban on same-sex marriage in August 2004. Jones continued to push for equality before the law as the Bill was debated in September 2012, in his summing-up speech:
The case for the bill is simple. It is about equality, it is about recognition of relationships-the validation of those relationships-and it is about saying to people who are often excluded, alienated or discriminated against: ‘You know what? You are okay. What’s more, you are better than okay: your relationship is just as valid as mine is in my marriage to my wife. And if you seek to have that relationship described as a marriage and recognised by the state as a marriage then who are we to stand in your way?’
Unfortunately, at least for supporters of marriage equality, his efforts were not successful, primarily because the Liberal/National Opposition, led by Tony Abbott, would not grant a conscience vote to its members, unlike the Gillard Labor Government. The result: it was comprehensively defeated by 98 votes to 42 votes in the House of Representatives (although Labor MPs did vote in favour by a margin of 38 to 26).
Following this defeat, it would have been understandable had Jones decided to appease his internal critics and instead focus his energies on other matters. Perhaps even more following the defeat of the Rudd Labor Government on 7 September 2013, and consequent relegation to the opposition benches. However, Jones remained steadfast in his support of marriage equality, including his criticisms of the recalcitrance of the then-Abbott Liberal/National Government.
For example, in December 2013, Jones spoke out following the High Court’s decision to invalidate the ACT’s same-sex marriage legislation, and therefore invalidate 31 marriages of same-sex couples:
I believe that on this issue members of this place are lagging behind public opinion. I believe we are different but equal and we should not be differently equal before the laws of this place. I call on members opposite and I call on the government to allow its members to have a conscience vote on this issue when a bill is next brought before us.
Jones also reflected the views of the community, and especially of LGBTI Australians in opposing the proposed plebiscite on same-sex marriage, first put forward by Prime Minister Abbott in August 2015, and adopted by his successor, Malcolm Turnbull. In the February 2016 debate on another unsuccessful marriage Bill, Jones stated:
I am not opposed to referendums, but we do have to wonder why this matter is proposed to be put to a referendum, given that it is our job, as parliamentarians, to vote on matters that are put before us, and we have a matter put before us. We are told that the cost of that referendum is going to be $160million-only for it to have a non-binding outcome…
After his re-election at the July 2016 federal election, and now representing the renamed seat of Whitlam, Jones continued his fight against this unnecessary public vote, in-part because of its detrimental impact on the LGBTI community:
I spoke to them about their very real concerns. I think it would have been an abrogation of my responsibility for me-as I have said, as a privileged, white, heterosexual male-to say, ‘C’mon, we can toughen up; we need not be concerned about these issues,’ and not listen to their concerns and their lived experiences. To a person, they were concerned about the impact of the plebiscite on their children or on young LGBTI people.
If this plebiscite bill gets up, if the vote goes ahead, we will spend the next nine months talking about nothing more than the sexuality of people who choose a different partner to me, and that is not what the Australian people are after. That is not why we were sent here to Canberra.
More simply, he told the Illawarra Mercury “It’s not like these issues are complex, this is something the Parliament should just get on with and deal [with].”
Predictably, Jones strongly criticised the Government’s decision to hold a same-sex marriage postal survey, via the Australian Bureau of Statistics, after their plebiscite bill had been defeated:
The third envelope is going to be the one that is the most expensive of all. That is the envelope that is costing Australians $122million, the envelope which shows how out of touch this Prime Minister and this government really are: the unnecessary and expensive envelope which will have a postal vote on same sex marriage.
As we now know, that postal survey recorded a solid Yes vote nationally, and the Commonwealth Parliament subsequently debated Liberal Senator Dean Smith’s Marriage Amendment (Definition and Religious Freedoms) Bill 2017 – as well as a number of amendments from conservative MPs seeking to undermine it through extensive new ‘religious exceptions’. Jones continued to fight for the principle of full equality, and against these special privileges, in the House of Representatives:
[W]hen you act as a civil celebrant, you’re performing a civil ceremony, not a religious ceremony, and you are exercising a function under our law. It should be that the people who are exercising the function under our law are equally bound by it. There should be no basis in relation to civil celebrants which permits discrimination.
The detailed account of Stephen Jones’ actions in support of same-sex marriage, outlined above, reflects the often complex, sometimes tortuous, unacceptably lengthy process it took Commonwealth Parliament to make marriage equality a reality. Throughout, his support for this reform was steadfast – indeed, there were few better friends to the cause of LGBTI rights, from any political party, during the past decade than the ALP member for Throsby/Whitlam.
Asked to nominate personal highlights of the long fight for marriage equality, Jones spoke, in magnanimous terms, about the day it was finally passed by parliament:
[I]n particular seeing close to 150 people on one side of the chamber, and just a small handful of people opposed (plus a few who ran from the chamber…) It was a genuine moment of unanimity. It was a good thing, for the country’s representatives to come together in that way. As a Labor person, I would have obviously preferred for us to have achieved it earlier as the Government. But as an Australian I was delighted to see it finally happen.
He also raised the positive legacy of marriage equality for Australia:
I felt proud for the country on this issue. That we had actually done something, achieved something. So many issues currently are dominated by intractable conflict – social, economic, environmental issues – that we seem incapable of achieving systemic change. Here was an issue which showed that positive change can still happen, that we can still resolve issues that are contentious.
If that assessment is correct, then the Member for Throsby/Whitlam played a key role in making it happen – something he can forever be proud of, and which again reflects the oversized contribution of the city of Wollongong in the history of marriage equality in Australia.
2017: Wollongong Says Yes in the Same-Sex Marriage Postal Survey
The announcement of the results of the same-sex marriage postal survey, by Australian Statistician David Kalisch on Wednesday 15 November 2017, confirmed that the local Wollongong community strongly supported marriage equality.
While Australia ‘voted’ yes by a margin of 61.6% yes to 38.4% no, both electorates which include parts of the Wollongong LGA voted yes at higher rates than the national average:
Cunningham: 65.7% yes versus 34.3% no, and
Whitlam: 62.3% yes versus 37.7% no.
These results were also significantly higher than the NSW average as a whole: 57.8% yes against 42.2% no, an impressive achievement for a regional city. Indeed, Stephen Jones highlighted this aspect of the postal survey vote in his speech on the Smith Bill:
If you applied the common prejudice that says that regional folk are less progressive than are their city cousins, you’d conclude that the city overwhelmingly voted in favour and the regions overwhelmingly voted against. Well, you’d be wrong. Of the 62 regional seats, only three voted against marriage equality. This confounds those views that regional Australia is somehow less progressive on these sorts of issues and less welcoming of diversity than people in the inner city. Regional electorates like mine have shown themselves to be open places that are willing to embrace same-sex couples.
The high yes vote is even more impressive considering the demography of Wollongong, as reflected in the 2016 Census. One of the factors associated with higher levels of support for marriage equality traditionally has been university education – however, Wollongong reported lower-than-average rates of holding a ‘Bachelor Degree level and above’ (19.9%, compared to 23.4% for NSW and 22.0% nationally).
Even more significantly, Wollongong LGA reported higher rates of religiosity in the 2016 Census than elsewhere, including:
25.6% Catholic, compared to 24.7% (NSW) and 22.6% (Australia)
16.6% Anglican, compared to 15.5% (NSW) and 13.3% (Australia), and
4.3% Eastern Orthodox, compared to 2.5% (NSW) and 2.1% (Australia).
It is tempting to say that, despite this religiosity – and the views of major church leaders – the people of Wollongong voted yes. However, in the postal survey the congregations showed they were in fact ahead of their respective church positions. When asked about this discrepancy, Jones made the following observation:
[T]he paradox is that the Wollongong community is also quite a religious, and multicultural, community and there were obviously some people who were strongly opposed [to marriage equality] too. But many people of faith supported marriage equality as well, even though the church leaders were opposed. To some extent, the congregation were no longer listening to the church leadership on questions of sexual morality, after the church scandals of the 1980s and 90s.
The obvious question is why the Wollongong community as a whole, religious and non-religious folk alike, was so willing to embrace full legal equality for LGBTI relationships. And it is possible that having political trailblazers like Michael Organ and Stephen Jones helped to move the debate forward here more rapidly than in other places.
However, it is far more likely that progress was achieved because of the tireless work of community campaigners, over many years, to persuade their family members, friends, neighbours and wider community that LGBTI relationships were just like any other relationship, and should therefore be entitled to the same legal recognition as any other relationship.
Community Campaigners: Evelyn Gray
Lead marriage equality campaigner at GetUp! during the 2010s, Sally Rugg, has written that:
Every inch of LGBTIQ progress has been fought for, and won, on a foundation of [our] community’s personal stories. We tell stories to connect, to resist, and in the hope that those listening might see their own history reflected in ours.
Some of the most powerful of those stories have come from parents of LGBTI Australians, speaking up for the equal treatment of their children under the law. While nationally that role was filled (more-than-capably) by Shelley Argent, the Australian President of PFLAG (Parents and Friends of Lesbians and Gays), in NSW one of the leading ‘proud mums’ was Wollongong local Evelyn Gray.
Asked in 2020 ‘why marriage equality was so important to [her] personally?’, Ms Gray answered:
My husband and I have two daughters, one gay and one straight. Our story was a very common one – wanting our gay child to have exactly the same rights as her straight sibling. I was incensed when John Howard amended the Marriage Act in 2004 to specifically exclude same-sex couples, and so began my marriage equality journey.
That journey was both lengthy, and incredibly active, including being the admin for the Facebook page ‘Wollongong for Marriage Equality’ (now LGBTI Equality Wollongong) for 8 years and counting, a site she used for publicizing marriage equality rallies, sharing petitions and other calls to action, and for co-ordinating local media requests. Coincidentally, Gray was asked to create the page on a 2011 lobbying trip to Canberra with Shelley Argent and other PFLAG mums.
That trip was one of many activities in lobbying politicians to support change, both locally (Gray recalls emailing and visiting the offices of local MPs Stephen Jones and Cunningham MP Sharon Bird multiple times in 2011 and 2012) and nationally. Indeed, on one trip to Parliament House Gray was told by one Senator that “It’s about time homosexuals stopped playing the victim card and trying to bring down the institution of marriage”.
Gray wasn’t afraid of speaking truth to power either, garnering publicity for her response to a 2016 ‘Valentine’s Day’ social media post from then-Prime Minister Malcolm Turnbull to his wife Lucy:
Congratulations on your happy marriage. I’m very lucky also to have been married for over 40 years. However, my husband and I are saddened that our gay daughter is still waiting for the same right as her sister; the right to marry the love of her life. No plebiscite please – a free vote in Parliament is all it will take!
Like many other marriage equality campaigners, Gray regularly exercised her writing skills, including letters to the editor of the Illawarra Mercury, as well as composing ‘many letters, emails [and] submissions to Federal MPs and Senators re amending [the] Marriage Act, allowing [a] conscience vote, against a plebiscite, telling [a] personal story’, while persuading ‘family and many friends to do the same.’ Gray even contributed a chapter to the 2011 essay collection Speak Now: Australian Perspectives on Same-Sex Marriage.
In addition to more traditional lobbying tactics, Gray engaged in more direct, grass-roots action, attending and marching in countless rallies. She recalls the final poster she demonstrated with proclaimed ‘How many more bloody posters do I have to make before my gay daughter can marry?’ Gray also marched in five marriage equality floats in the Sydney Gay & Lesbian Mardi Gras Parade between 2013 and 2018, including in 2015 with a poster thanking Sharon Bird for her support.
Her activism continued during the 2017 postal survey, including making and distributing posters which said ‘This small business is big enough to support marriage equality – Vote’, using the Wollongong for Marriage Equality page to drive both enrolment and voting (one post featured her ’90-year old mum proudly holding her survey’), door-knocking, letterboxing, ‘placing stickers around town’, literally flying the rainbow flag from her house and attending the ‘Yes to Marriage Equality’ rally at the University of Wollongong.
Evelyn Gray was indefatigable in advocating for her daughter’s right to marry. It is no surprise that, when writing their history of the marriage equality campaign, Australian Marriage Equality (AME) convenor Alex Greenwich and LGBTI historian Shirleene Robinson observed the following:
Evelyn Gray, the mother of two daughters, one straight and one gay, who was one of the movement’s strongest and most dedicated allies…
For her part, Gray remembers many highs, and lows, along the path towards equality. Among the former were being in Prince Alfred Park in Sydney for the announcement of the postal survey results and ‘seeing the joy and relief on the faces of the crowd’ while ‘dancing for joy with another parent activist’, the passage of marriage in Commonwealth Parliament a few weeks later, and working with long-time activists like Shelley Argent and Rodney Croome. Personal lowlights included Tony Abbott denying a conscience vote to Coalition MPs on Stephen Jones’ Marriage Amendment Bill in 2012, causing that legislation to be defeated.
Of course, Gray was only one of many voices in the Wollongong community who pushed for marriage equality over many years. When asked now ‘Why do you think the Wollongong community responded so positively to marriage equality?’ she was quick to nominate a range of people who helped make change happen:
‘Stephen Jones was always very public about his views, advocating for the principles in which he believed, spoke up against hate speech in the community, spoke on local radio using common sense arguments, organised a marriage equality workshop in his electorate to teach how to effectively advocate for marriage equality.
‘Sharon Bird, although initially sat on the fence on marriage equality, declared her support after gauging her constituents’ views on same-sex marriage’ and
‘Strong campaigning from: Illawarra Rainbow Labor, Paul Scully, Labor councillors, Young Labor, The Greens, and Simon Zulian.’
Gray also praised the role of the Illawarra Mercury in ‘featur[ing] personal stories of local gay couples and families, publish[ing] letters from supportive readers, survey[ing] Wollongong Council election candidates on their stance on the postal survey.’
Stephen Jones was similarly keen to highlight local voices in favour of marriage equality throughout the campaign. After introducing his Marriage Amendment Bill 2012, he spoke about a Wollongong couple denied the right to marry:
Peter [Bearman] is a diesel mechanic and James [Pollack] is a university student. It is their fervent hope and the hope of their mother, whom I met last weekend, that one day they will be able to get married here in Australia. It is with that story in mind that I moved in the House today a private member’s bill that would amend the Marriage Act 1961 to permit couples like Peter and James to get married here in Australia.
And in his speech on the Smith Bill five years later, Jones acknowledged:
In my own region, there was Illawarra Rainbow Labor. I want to recognise Caitlin Roodenrijs and my dear friend Simon Zulian, who dedicated his tireless campaign work to his deceased partner, Kane-the love of his life who he never had the opportunity to marry. I salute you, Simon, for your tremendous work.
The names cited by Evelyn Gray and Stephen Jones are just some of the locals who contributed to the fight for marriage equality from the time it was banned by the Howard Liberal/National Government until it was finally legalised in December 2017.
This history is and will forever be incomplete. Not just because of space constraints – even if this were a book, rather than a 10,000-word article, it would not be possible to do justice to all of the community campaigners on this issue.
It is also because of the nature of the marriage equality movement itself. In the words of then-AME convenor Rodney Croome:
“Real change takes time. It’s rare that a single conversation will make the difference,” he said.
“It’s an accumulation of conversations and then there will come a point where… the penny will drop.”
But the principles of sharing personal stories and engaging emotionally were still vitally important to the marriage equality campaign, Mr Croome said.
Which means that support for marriage equality in Wollongong was driven by thousands of people, having tens of thousands of conversations, over many years, until 60,906 people in Cunningham, and 57,562 people in Whitlam, answered the question ‘Should the law be changed to allow same-sex couples to marry?’ with an unequivocal yes in September and October 2017.
Wollongong Opponents: Concetta Fierravanti-Wells
While the preceding sections might paint the picture that the entire Wollongong community supported marriage equality, that is obviously not the case – after all, 31,840 people in Cunningham, and 34,879 people in Whitlam, responded no in that same-sex marriage postal survey.
Chief among the opponents to marriage equality, not just in the Illawarra but also nationally, was Liberal Senator Concetta Fierravanti-Wells. A Wollongong local, Fierravanti-Wells was one of the most vocal figures in Parliament against full equality for LGBTI relationships.
During a 2008 debate on the Same Sex Relationships (Equal Treatment in Commonwealth Laws – Superannuation) Bill, Senator Fierravanti-Wells spoke out against marriage equality, even though it was not being proposed:
Marriage is a unique institution in our society and it is one that we… should do everything in our power to protect, and ensure that it is supported, encouraged and backed up in every way, shape and form… Marriage is a very important institution not only for the traditional Anglo-Saxon culture in this country but also for so many others in our culturally diverse community. It is the important umbrella institution which helps to nurture children in an environment where they can grow and prosper. Indeed, the traditional form of marriage in my view provides the best form of security in our society… Often people talk about the silent majority in this country. I think that the silent majority in this country would agree about the sanctity of marriage and the sanctity of what is the traditional family.
It was a position Senator Fierravanti-Wells would not deviate from over the following decade, including using colourful, and at times controversial, language against the Senate version of Stephen Jones’ Bill in September 2012:
I doubt that most people who are pushing these amendments are overly religious or even intend on staying in a monogamous relationship, which begs the question: why do they want to get ‘married’? The chattering classes do not want to concede that, by amending the Marriage Act, they are in fact denying the rights of the silent majority who want to uphold the sanctity and true meaning of marriage and who want to keep some tradition going in a world that seems to be forever throwing out the old and bringing in the new.
One must ask: where will this all end? You do not have to look very far to find the answer. There are already legal challenges in Canada and Utah that have been brought forward by polygamists who claim they have a right to polygamous marriage, and polyamorous activists are relentlessly campaigning for legal recognition of their relationships.
It is perhaps unsurprising that the more inflammatory parts of this speech were picked up in local media.Equally predictable is the fact Fierravanti-Wells used the speech to criticise Stephen Jones for introducing his legislation:
Same-sex marriage is a 10th order issue. It galls many in the Illawarra, where I was born and where my electorate office is located, to see their local member for Throsby, Stephen Jones, championing this cause above more pressing issues for his constituents.
As a Minister in the Turnbull Liberal/National Government in 2016 and 2017, Fierravanti-Wells supported holding a plebiscite on same-sex marriage, and when that was defeated, the same-sex marriage postal survey. Indeed, she actively campaigned for a no vote in the ABS’ statistical survey:
“I believe marriage is between a man and a woman; two different genders coming together in one unique union,” Senator Fierravanti-Wells told the Coalition for Marriage launch on Saturday. “This is what it has been for every culture, every ethnicity, every faith, in every corner of the world for thousands and thousands of years. I am so proud to stand with you and millions of my fellow Australians who will be voting ‘no’.”
However, when the nation, NSW and both electorates in the Illawarra voted yes in her own government’s postal survey, Fierravanti-Wells still refused to concede defeat, including this attempt at mathematical sophistry when Senator Smith’s Bill was considered by the Senate:
A conveniently overlooked statistic is that 16 million voters were eligible to participate and of those just 7.8 million returned a ‘yes’ vote on this survey form. This represents 48 per cent of the voting population. This is not the enormous majority that the elites are spinning. Indeed, it is not a majority at all. In fact, 52 per cent of the voting population either voted no or did not vote at all…
As that legislation progressed through detailed consideration by the Senate, Fierravanti-Wells spoke in favour of a wide range of amendments to insert ‘religious freedom’ clauses, including the adoption of separate definitions of marriage in the Marriage Act 1961 (Cth) itself, as well as to allow all civil celebrants to refuse service to LGBTI couples. Each proposal was, thankfully, ultimately defeated.
On the final vote, despite being part of a Government which imposed the postal survey on a community, and especially an LGBTI community, which did not want it, Senator Fierravanti-Wells did not honour the yes vote of the Australian electorate:
For many people of different backgrounds and religions, this will be a very difficult day. This will be a difficult day in Australia. As we talk about respect, I think it’s very important to remember this respect across this divide… I cannot support this bill in its current form for these reasons, because there are many people-like my parents, who came to this country-who just cannot. For them, it’s very difficult, and I think that they deserve our respect as well.
Inevitably, Fierravanti-Wells’ lack of respect for the outcome of the postal survey was the subject of a critical editorial in the Illawarra Mercury:
The 12 senators sitting on the ‘No’ side of the house included Wollongong-based Senator Concetta Fierravanti-Wells. This was despite a resounding Yes vote right across the Illawarra and South Coast. Senator Fierravanti-Wells was sitting alongside Senator Eric Abetz, one of the most passionate and prominent supporters of the ‘No’ campaign… Their votes will be recorded for history and only history and their voters will judge them.
To some extent, Fierravanti-Wells’ actions on this issue are the mirror image of Stephen Jones’ – a passionate, and unrelenting, advocate for her view. The two primary differences being that he was advocating for the equality of all residents of Wollongong, while she campaigned against the rights of a minority, and that her position ended up on the wrong side of history, both nationally and in her community.
Of course, she was not alone in advocating against marriage equality in the Wollongong area. Fierravanti-Wells was joined by key religious leaders, including Bishop Peter Ingham who issued the following statement to be read at all Catholic masses on the weekend of 2 and 3 September 2017 – the start of the postal survey period:
[A]cross the breadth of human cultures and religious faiths, we contend for the truth that our society is best-served by retaining the traditional understanding of marriage as the union of a man and a woman, voluntarily entered into for life, and provides the basis for the creation of a family in which, wherever possible, children can be raised in a loving and stable environment by their own mother and father. In human terms, there is nothing more powerful than the union of a man and a woman, which is the only relationship that can bring about new life. It has no equal.
St Michael’s Anglican Reverend Sandy Grant also made the following ill-informed and frankly prejudiced remarks during the same-sex marriage postal survey:
Mr Grant spoke of a ‘slippery slope’ that could occur when same-sex marriage is legalised. For instance, he believed removing the need for people of the opposite sex to marry could lead to polygamy or under-age marriage.
“Some Muslims are already pushing this… the legalisation of marriage in Australian [sic] to allow polygamy,” he said.
“This shows the sheer inadequacy of the love is love slogan. Do you think a 30-year-old man should be able to marry a 12-year-old girl if they both consent and say they love each other?”
However, as we saw earlier, despite their concerted efforts – and the higher rates of people identifying as Catholic and Anglican in the Wollongong LGA – local congregations clearly did not follow this instruction, voting yes at a higher rate than both the national and NSW figures.
Evelyn Gray thinks this was in part because ‘they were able to see the distinction between religious and civil marriage’:
I remember bringing up the subject of same-sex marriage about 10 years ago with a very good (religious) friend of mine, whose immediate reaction was to strongly oppose the idea, but changed her mind in about 30 seconds when I explained that it was about civil marriage, not holy matrimony.
Finally, there is one more intervention for the no campaign which warrants particular mention: Wollongong provided arguably the highest profile intervention by a same-sex couple arguing against marriage equality during the postal survey.
On 4 September 2017, local couple Ben Rogers and Mark Poidevin appeared on the ABC’s 7:30 Report to advocate for a no vote. As later reported by ABC News:
Ben said while he respects that other couples might want to wed, he is committed to preserving traditional marriage…
“When I first came out I think one of the consequences was giving up marriage and children and things like that.”
Mark, a committed Catholic, has changed his stance on same-sex marriage since he proposed to Ben five years ago.
“If we make one exception for one community, that being the same-sex couples, where does it stop?” Mark said.
“Do we then see other cultures being allowed to have multiple marriages? Do we see the age of consent being lowered for another group of minorities? That is my concern, of where it would lead.”
It was an unusual contribution to the debate, and the local community was not persuaded by their arguments, but given its prominence their perspective nonetheless deserves to be part of the history of marriage equality in Wollongong, alongside other local opponents like Concetta Fierravanti-Wells and church leaders.
The (Limited) Role of Wollongong Council Pre-Marriage Equality
While MPs and Senators representing the Wollongong area played a leading role in arguments both for and against marriage equality, Wollongong Council itself did not. Unlike a number of Local Governments around Australia, including both Kiama and Shoalhaven Councils, Wollongong Council did not formally endorse marriage equality in the years leading up to the postal survey.
Following the announcement of the postal survey in August 2017, there was a concerted push to have Wollongong Council fly the rainbow flag during the voting period, with a public protest outside council chambers on 21 August:
Among those who attended was Figtree mum Evelyn Gray, who held a placard saying she was ‘waiting to be mother-of-the-bride for my gay daughter”. Ms Gray said her two adult daughters had found “the loves of their lives”, but only one of them was able to marry.
However, with the Council elections scheduled to be held on 9 September 2017, there was no opportunity to hold a meeting before then – and it was not on the agenda for the extraordinary council meeting on 9 October 2017. This meant any motion to raise a rainbow flag in support of the local LGBTI community would not be passed in time for the voting period.
Nevertheless, at the Ordinary Council Meeting on 30 October 2017, Greens Councillor Mithra Cox moved, and Labor Councillor Tania Brown seconded, a motion that:
Council fly a rainbow flag on the flagpole outside Council’s Burelli Street Administration Building until 17 November 2017 as-
Recognition of the diversity of the people in our City and that this diversity is shown in many forms; and
Flying the flag can stand as a symbol of Council’s support for this diversity.
Following what was described as ‘a tense and at times tearful debate’, the motion was passed by 8 votes to 4, with Lord Mayor Gordon Bradbery falling into the latter category (although he nevertheless supported marriage equality overall).
The Positive Legacy of Marriage Equality in Wollongong #1: A Cosmopolitan City
While Wollongong Council did not play a leading role during the marriage equality debate, it has subsequently sought to build on its outcome – in particular, by emphasising the inclusive nature of the local community. In July 2019, the Council unanimously moved a resolution proposed by Councillor Tania Brown that:
Wollongong City Council install a permanent Rainbow Crossing, in a prominent Wollongong foreshore location, to show our ongoing support for the LGBTQIA+ community and reflect Wollongong’s status as an inclusive and welcoming city. Staff to report back on suitable locations via an information note within one month.
The rainbow crossing was developed within a matter of months, and unveiled before the end of 2019:
Acting lord mayor Tania Brown – who led the charge to have the crossing painted earlier this year to counteract homophobia and hate speech – said the new pride symbol, which appeared overnight outside the Novotel Northbeach [on Cliff Parade], would become a popular photo spot at Wollongong’s busiest beach.
However, while the rainbow crossing is a tangible sign of inclusivity post-marriage equality, it is arguably not as important as the outcome of the postal survey itself, in which the Wollongong community showed itself to be a cosmopolitan city, willing to warmly embrace their neighbours irrespective of their sexual orientation and/or gender identity.
That outcome remains one of the positives of the marriage equality movement cited by Stephen Jones:
Although I opposed the postal survey, I remember when the result came in and returns from the Illawarra community were on par with, or even a bit better than, the NSW average and the national average, that was really satisfying to see. That our community was not out of step with the rest of the country, but was actually part of the vote for change.
It was a really great outcome in a lot of ways, including economically. There is a lot of research (including by economists like Richard Florida), that the acceptance of sexual diversity is closely linked to economic growth. The result showed that the Illawarra accepted difference.
For Evelyn Gray, the benefits of the high yes vote in the postal survey, and passage of marriage equality, are more personal:
I think it’s resulted in a more caring and accepting community as a whole, with couples more likely to be seen holding hands in public, [with] drag storytime at the library becoming increasingly accepted, [and] more local groups accepting young LGBTI people, [as well as] rainbow family playgroups.
The Positive Legacy of Marriage Equality in Wollongong #2: Happy Couples
Obviously, the most tangible – and, in the author’s view, most important – positive legacy of marriage equality in Wollongong is the fact local LGBTI couples are now permitted to marry under Australian law, or for couples who were not prepared to wait for the law to change, to have their overseas marriages legally recognised.
It is not possible to determine the exact number of same-sex couples currently living in the Wollongong LGA. However, with 46,770 same-sex couples recorded nation-wide in the 2016 Census, and Wollongong LGA constituting just under 1% of the Australian population, it is likely that the number is somewhere between 300 and 500. And with 6,538 same-sex marriages registered in the first year after marriage equality took effect, that means dozens of same-sex couples marrying in Wollongong in 2018 alone.
Far more important than these numbers, however, is the fact each of these couples has their own unique story, like the first reported couple in the Illawarra who took advantage to the change in the law at the start of 2018:
On Tuesday morning, two months after the ‘yes’ vote was delivered but just nine hours after their union became legally allowable, Michael [Hobbs] wed his long-time partner Edward [Kwok-Hobbs] at a ceremony at Wollongong’s Lagoon restaurant.
Michael reflected on what being married meant to him: ‘It gives us security, a feeling of acceptability. Our civil rights have been met now. It’s way overdue, but this is a lot to us.’ However, in a sad reflection on the considerable delay which LGBTI couples in Australia endured on the walk down the aisle:
The men say their nine-year relationship has long had the support of their families. Michael’s father attended their commitment ceremony, but didn’t live to see the day his son could marry.
“He would have been over the moon,” Michael said.
“My mum can’t come today because she’s housebound but she’ll be waiting for all the gossip when we get home.”
The passage of time – and the delay in Australia achieving marriage equality – was also a theme of another local Tonina Harvey, when describing the challenging path to her wedding to now-wife Kt Harvey:
We were going to go to NYC to get married in 2016 but unfortunately I got breast cancer and all plans were put on hold. Getting sick we were faced with my mortality and the lack of legal standing of our relationship. When the plebiscite was announced – we had a feeling of disbelief that after 38 years of life together, the country had our destiny in their hands. Therefore the outcome was a relief!
We had a large wedding (150) on the 4th [of] August  and it was the first time in our lives that we had all of our family in the same room as our friends – we thought it would either be a disaster or ok. It turned out to be fabulous!! The amount of happiness and acceptance in the room was overwhelming. We had an absolutely wonderful day and feel that we would love to do it all over again!
[O]n the 4th August we will celebrate our 2nd wedding anniversary and on 11th August our 40th year together! As we have aged having the legal security of a marriage certificate is reassuring.
There are already literally dozens of stories like Michael and Edward, and Tonina and Kt, of same-sex couples who have finally had the opportunity to wed following the passage of marriage equality in late 2017. And there will be hundreds more in the years, and decades, to come – which is the second reason why this article is necessarily ‘An Incomplete History of Marriage Equality in Wollongong’ – because that history is being written with each and every wedding of a local LGBTI couple.
Conclusion: An Oversized Role, but a Story that Continues
In the preceding sections, we have seen how MPs for Cunningham Michael Organ and Throsby/Whitlam Stephen Jones were among leading parliamentary voices for change. And how Senator Concetta Fierravanti-Wells was one of its ardent opponents. In the local community, Evelyn Gray was one of many influential campaigners for marriage equality – although, as discussed, this article could have just as easily highlighted several others.
Based on the passionate advocacy of Organ, Jones, Gray et al, the small, regional city of Wollongong played an oversized role in the history of marriage equality in Australia. A history that is still being written in the stories of LGBTI couples who finally have the opportunity to walk down the aisle and wed the person they love.
Stephen Jones MP, via telephone, 22 June 2020
Evelyn Gray, written interview, 9 July-28 July 2020
Tonina Harvey, written interview, 19 July-28 July 2020
[NB Senator Concetta Fierravanti-Wells, Catholic Bishop Peter Ingham and Anglican Bishop Peter Hayward were all provided with interview questions in June 2020, however none responded.]
Alex Greenwich and Shirleene Robinson, Yes Yes Yes: Australia’s Journey to Marriage Equality, NewSouth Publishing, 2018
Victor Marsh and Michael Kirby, Speak Now: Australian Perspectives on Same-Sex Marriage, Port Campbell Press, 2011 (e-book)
 ‘Thanking Stephen Jones MP for his efforts to bring about equality for same-sex couples, replying to his critics, [and] correcting falsehoods about public support for marriage equality’: Written interview with Evelyn Gray, 9 July-28 July 2020.
 Written interview with Evelyn Gray, 9 July-28 July 2020.
 Victor Marsh and Michael Kirby, Speak Now: Australian Perspectives on Same-Sex Marriage, 2011 (e-book).
 Written interview with Evelyn Gray, 9 July-28 July 2020.