Inquiry into Right Wing Extremist Movements in Australia
Thank you for the opportunity to provide this short submission in response to the Committee’s inquiry into right wing extremist movements in Australia.
I do so as a long-standing advocate for the rights of the lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) community, including in relation to anti-discrimination and vilification laws but also more broadly.
In this context, I express my genuine hope that the Committee, in its inquiry, looks at the role anti-LGBTIQ prejudice, and especially transphobia, has played in the rise of right wing extremism in Australia, in particular over the past 12 months.
The rise of homophobia, biphobia and transphobia since March 2023
There has been a disturbing rise in anti-LGBTIQ prejudice, including hate speech as well as threats of intimidation and violence, since early last year.
This has come from individuals and groups that can largely be described as being far-right in political ideology.
Some of the most notable events include:
The rally against trans rights held in Melbourne on 18 March 2023, to which neo-Nazi groups turned up, performing Nazi salutes on the steps of Victorian Parliament, and shouting at trans counter-protestors while holding a banner proclaiming ‘destroy paedo freaks’ (emphasising the explicit anti-trans views of these fascists),
The violent attack by so-called ‘Christian Lives Matter’-associated individuals on 21 March 2023 against a small group of LGBTIQ protestors, and NSW Police officers, in Belfield in Sydney, and
Disgusting and offensive homophobic comments on social media by then-One Nation MLC Mark Latham to Independent Member for Sydney Alex Greenwich MP (which I will decline to republish here), the following week.
All of the above occurred within a two-week period. Sadly, however, the rise of anti-LGBTIQ hate speech and extremism did not end there, but has continued and in some ways worsened.
The 12 months since March 2023 have seen a large number of LGBTIQ and related community events shut down amid credible threats of intimidation and violence by right wing extremists.
This includes Drag Story Times (which are nothing more than voluntary gatherings where people in costumes read books to parents and their children, promoting imagination and inclusivity) being cancelled at libraries and other community venues around the country, on the advice of police because the safety of attendees could not be guaranteed.
Most recently, this included deaths threats against ABC employees forcing the cancellation of a Drag Story Time that was to be held in the lead up to the 2024 Sydney Gay & Lesbian Mardi Gras, and a rally outside a Cumberland Council meeting in late February which was debating Drag Story Times (and which ultimately passed a motion banning them), with some protestors shouting offensively the word ‘trannies’.
It should obviously be noted that drag is not necessarily the same as LGBTIQ, although there is significant cross-over in the entertainers who perform in drag (with many being same-gender attracted and/or gender diverse) and importantly with the people who are against both conflating the two in any event (as seen clearly at the Cumberland Council protest).
The impact of these cumulative developments on the LGBTIQ community has been profound, with legitimate fears for our safety against this rising tide of extremism.
I write that as a privileged cisgender gay man, who has been out for more than 25 years and who has been advocating on LGBTIQ rights for almost as long – but who has felt less safe in public over the past year than at any point this century.
This feeling of vulnerability has been compounded by the sense the Commonwealth Government has effectively left us on our own in the face of these attacks.
The Commonwealth Government has been missing in action on anti-LGBTIQ extremism
Disappointingly, the Commonwealth Government’s response to the specific element of anti-LGBTIQ prejudice, and especially transphobia, in the overall rise of right wing extremism over the past 12 months has ranged from inadequate and incomplete, to completely absent.
Admittedly, there was widespread condemnation of Mr Latham’s tweets about Mr Greenwich, including the homophobic nature of his communications. Which was welcome, but that’s about as far as it goes.
The Commonwealth Government’s response, including its public comments, to the anti-trans neo-Nazi display on the steps of Victorian Parliament concentrated on the Nazi aspect of this activity (which obviously deserves condemnation) while largely ignoring the transphobia at its core (which is no less worthy of political denunciation).
This can be seen through its legislative response in Parliament, including in the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023, which focused on the public display of Nazi symbols, including people engaging in Nazi salutes, while not addressing hate speech against LGBTIQ people more generally.
My understanding of this legislation is that it would not capture a situation of a group of thugs dressed in black assembling on the steps of Victorian Parliament, shouting at trans people and waving a banner which says ‘destroy paedo freaks’, provided they did not also wear Nazi symbols or perform a Nazi salute.
For the trans people targeted, surely both situations are intimidating – but only one is now regulated.
The Commonwealth Government has also been missing in action in terms of addressing the right wing threats of intimidation and violence against LGBTIQ and related community events, including Drag Story Times, shutting down gatherings right around the country.
This is a national problem requiring a national response, and yet I cannot recall a single strong public condemnation from a senior Government Minister, from the Prime Minister down, to this phenomenon.
Nor has there been any kind of legislative response, or funding for LGBTIQ community organisations and/or Local Governments, to increase safety to allow these events to proceed.
Indeed, in the absence of clear Commonwealth Government action (and, it must be said, lack of State and Territory Government action too), it has been left up to the LGBTIQ community itself, through initiatives such as Rainbow Community Angels, to enable events like Drag Story Time go ahead in spite of right wing extremist threats.
The fact the Commonwealth Government has been missing in action on anti-LGBTIQ prejudice is reinforced by comparing its actions over the past 12 months to religious hate speech and threats of intimidation and violence against religious minorities.
There have been repeated strong public condemnation of anti-semitism from the Prime Minister, and multiple other senior Government Ministers including the Attorney-General.
There have been repeated promises to introduce Commonwealth laws to prohibit vilification on the basis of religious belief (with these laws expected to be introduced shortly despite the Government’s simultaneous refusal to implement its broader commitment to a Religious Discrimination Bill and Sex Discrimination Act amendments to protect LGBTQ students and teachers in religious schools in the absence of agreement from the Opposition).
The Commonwealth Government has also announced, and delivered, tens of millions of dollars to faith-based organisations to enhance their and their respective communities’ safety (with the Attorney-General announcing a $40 million grant round on 17 May 2023, coincidentally the International Day Against Homophobia, Biphobia and Transphobia, or IDAHOBIT).
The LGBTIQ community has not received the same commitments, or funding, from the Government despite facing similar challenges in terms of hate speech, threats, intimidation and violence.
What the Commonwealth Government should be doing to address anti-LGBTIQ extremism
There are a range of actions which, in my view, the Commonwealth Government should be undertaking to address increasing right wing anti-LGBTIQ extremism.
This includes measures which not only respond to the visible growth of this hatred over the past 12 months, but would also ideally help to prevent and reduce anti-LGBTIQ prejudice in the community generally, thereby removing what appears to be fertile ground for right wing extremists to recruit on and organise around.
These measures include:
Clear public condemnation of right wing anti-LGBTIQ extremism
The basic starting point should be clear and consistent public condemnation of the anti-LGBTIQ, and especially anti-trans, extremism which has gathered pace over the past 12 months.
This should include statements from the Prime Minister, and other senior Government Ministers including the Attorney-General, and must leave no doubt that such extremism will not be tolerated.
2. Fund a national strategy countering anti-LGBTIQ prejudice
In the context of other recent domestic and international developments, the Commonwealth Government has sought to expedite a new national anti-racism strategy, in partnership with the Australian Human Rights Commission.
Anti-LGBTIQ prejudice is no less serious a threat as racism, with substantial impacts on the lives of lesbian, gay, bisexual, transgender, intersex and queer Australians. It too warrants development of a funded national strategy to help combat it, including initiatives to prevent homophobia, biphobia, transphobia and anti-intersex bigotry.
There is currently no Commonwealth protection against anti-LGBTIQ vilification under the Sex Discrimination Act 1984. Protections at state and territory level are a patchwork replete with many holes, with anti-LGBTIQ vilification prohibited in Tasmania, the ACT, Queensland and Northern Territory, while civil vilification provisions in NSW cover only gay men, lesbians and some transgender people (although Crimes Act prohibitions on inciting violence apply across the LGBTIQ community). There are no protections in Victoria, South Australia or Western Australia.
The Albanese Government has an opportunity to address these gaps by introducing nation-wide prohibitions on vilification on the basis of sexual orientation, gender identity and sex characteristics, based on existing vilification provisions in section 18C of the Racial Discrimination Act 1975.
This should be done at the same time as the Government implements its commitment to prohibit religious vilification, given there is little difference in the potential harm vilification causes these respective groups.
4. Fund safety initiatives for LGBTIQ community organisations and Local Governments
Similarly, the Commonwealth Government should be providing funding for initiatives to protect the safety of LGBTIQ Australians on an equivalent basis to the programs it has already delivered to faith groups.
This should include a grants program for LGBTIQ community organisations to upgrade their safety infrastructure, as well as to provide safety training to members of the LGBTIQ community to help protect us against the growing threat of right wing extremism.
The Government should also fund Local Governments to upgrade their own security settings, so that community events such as Drag Story Times can be held safely despite any threats of intimidation and violence emanating from far-right extremists.
5. Create and appoint an LGBTIQ Commissioner at the Australian Human Rights Commission
The above measures should be supported by institutional infrastructure to ensure they are delivered, and delivered in line with community expectations.
One part of this infrastructure, currently absent, is a stand-alone, dedicated Commissioner for Sexual Orientation, Gender Identity and Sex Characteristics at the AHRC (with responsibility for these issues presently an ad hoc, part-time responsibility of the Sex Discrimination Commissioner).
The creation and appointment of an LGBTIQ Commissioner would help to ensure that addressing homophobia, biphobia, transphobia and anti-intersex bigotry is given an appropriate emphasis both within the Commission and beyond.
6. Create and appoint a Commonwealth Government LGBTIQ Advisory Committee
Another current gap in federal institutional infrastructure is the absence of any Minister with dedicated responsibility for LGBTIQ issues, and/or specific office within a central agency with the onus for co-ordinating policy and service-delivery on LGBTIQ issues.
Nor is there a national LGBTIQ Advisory Committee to help present views from the full diversity of LGBTIQ communities across the country.
While all should, in my view, be created, perhaps the most important is the advisory committee – because perhaps, had the Commonwealth Government an existing consultative mechanism, they may have already taken action to address the rise of right wing anti-LGBTIQ extremism, rather than left us feeling like we’re on our own.
Thank you in advance you your consideration of this submission. Please do not hesitate to contact me, at the details provided, if you require clarification or additional information.
Sincerely
Alastair Lawrie
Neo-Nazis turn up to an anti-trans rally on the steps of Victorian Parliament, March 2023.
Submission re the Anti-Discrimination Bill 2024 (Exposure Draft)
Thank you for the opportunity to provide this short submission in response to the Queensland Anti-Discrimination Bill 2024 (Exposure Draft) as released in February 2024.
I do so as a long-term advocate for the human rights of lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) Australians, with a particular focus on anti-discrimination and vilification law reform.
I note that this consultation has coincided with a number of other developments in LGBTIQ human rights, both federally (renewed debate about a Religious Discrimination Bill, and Sex Discrimination Act 1984 (Cth) amendments to protect LGBTQ students and teachers in religious schools) and in my home state of NSW (including the Conversion Practices Ban Act 2024 (NSW), which was passed this morning), that have restricted my ability to engage more fully with this important consultation process.
However, I did wish to make the following four brief points in relation to key aspects of the Exposure Draft as released.
First, I welcome the fact that the Bill would protect all parts of the LGBTIQ community against discrimination, through the inclusion of the protected attributes of sexual orientation, gender identity and sex characteristics (as proposed in clause 10).
This would retain the status quo, as created by the Births, Deaths and Marriages Registration Act 2023 (Qld), which ensured that non-binary people were finally included within the scope of gender identity, and that intersex people were finally protected by the addition of sex characteristics as a separate attribute (while noting that these amendments have yet to commence).
I also welcome the expansive and inclusive definitions of these attributes, as proposed in Schedule 1 of the Exposure Draft, as well as the explicit inclusion of sex work activity as a protected attribute (replacing lawful sexual activity).
Second, I welcome the fact that the Bill would protect all parts of the LGBTIQ community against vilification, through the inclusion of sexual orientation, gender identity and sex characteristics in clause 84 which regulates ‘hateful, reviling, seriously contemptuous, or seriously ridiculing conduct.’
Once again, this is consistent with the existing Anti-Discrimination Act 1991 (Qld) as amended by the Births, Deaths and Marriages Registration Act (although once again not yet commenced).
I also particularly welcome the inclusion of disability as a relevant attribute for the purposes of this clause, which would be a positive development arising out of the Exposure Draft.
Third, I welcome the narrower approach the Exposure Draft Bill takes in relation to exceptions for employment by religious bodies, and especially for employment by religious educational institutions.
Proposed clause 29, which only allows discrimination on the basis of religious belief or religious activity if: religious participation is a genuine occupational requirement of the work; the worker cannot meet this requirement because of their religious belief or religious activity; and ‘the discrimination is reasonable and proportionate in the circumstances’ – is a significant improvement on the equivalent provision in the existing Anti-Discrimination Act.
Section 25, which essentially creates a ‘Don’t Ask, Don’t Tell’ environment for LGBTQ teachers and other staff in Queensland’s religious schools, is one of the worst features of the current law, not only from an LGBTIQ human rights perspective but more broadly.
Teachers should be employed on the basis of their ability to teach, not their sexual orientation or gender identity.
Removing ‘Don’t Ask, Don’t Tell’, thereby lifting the requirement for many LGBTQ teachers and other workers in religious schools to remain in the closet and maintain hyper-vigilance to prevent unintended disclosure of their orientation or identity, would also have the consequence of allowing them to focus on doing the best job they can – to teach students.
Which means that this reform will ultimately benefit everyone.
Fourth, I welcome the retention of a narrow approach to exceptions for religious educational institutions, as proposed in clause 36.
The Exposure Draft Bill is similar to section 41(a) the existing Act, in allowing discrimination by religious schools against students, but only on the basis of their religion, and only at the point of enrolment.
I also specifically welcome proposed sub-clause 36(2):
‘To remove any doubt, it is declared that a person can not rely on subsection (1) to discriminate against another person on the basis of a protected attribute other than religious belief or religious activity.’
As well as the example provided: ‘A person can not rely on subsection (1) to discriminate against another person on the basis of the other person’s gender identity.’
These provisions are essential to ensure all LGBTQ students are protected, both at enrolment and beyond.
They also have the added benefit of supporting the religious freedom of children and young people, to learn and to grow as they engage in their education, including to question, challenge and develop their own faith, which may be different to the faith of their school.
Finally, I am aware of the submission made by the Australian Discrimination Law Experts Group (ADLEG) and endorse their position on the Exposure Draft Bill, including their specific comments and suggestions regarding a range of further improvements to this legislation.
Thank you in advance for your consideration of this short submission. Please do not hesitate to contact me, at the details provided, should you require any additional information.
Submission re Current and emerging threats to trans and gender diverse human rights
Thank you for the opportunity to provide this submission to this important inquiry.
I do so as long-term advocate for the rights of the lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) community in Australia, including as a volunteer for a number of LGBTIQ community organisations, and through my personal website www.alastairlawrie.net
While I am a cisgender gay man, I have consistently attempted to serve as an active ally for trans and gender diverse (TGD) people. This has included writing about:
Anti-discrimination and vilification laws, at Commonwealth and state and territory level, including how they protect (or in many cases fail to protect) TGD people
Birth certificate laws across Australian states and territories, and
The need for public funding, through Medicare, for gender-affirming health care.
These are the three main topics I will focus on in this submission.
Anti-discrimination and vilification laws
Australia’s anti-discrimination and vilification laws fail to adequately protect TGD people in a number of key areas, including:
Protected attributes for discrimination
While the Sex Discrimination Act 1984 (Cth) and most state and territory anti-discrimination frameworks clearly cover all sections of the TGD community against discrimination, in two jurisdictions they fall short of even this minimum standard.
NSW’s Anti-Discrimination Act 1977 only covers transgender people with binary gender identities (because of the outdated references to ‘identifying as a member of the opposite [sic] sex’ in the interpretive provision in section 38A, leaving non-binary and gender fluid people without legal protection.
While Western Australia’s Equal Opportunity Act 1984 is even narrower, only prohibiting discrimination against ‘a gender reassigned person on gender history grounds’ (section 35AB). Because of associated definitions in section 4 and section 35AA, this effectively restricts protection to transgender people with binary gender identities who have had a gender recognition certificate issued in WA (or equivalent legal recognition elsewhere).
Both the NSW Anti-Discrimination Act and WA Equal Opportunity Act must be reformed to ensure all TGD people enjoy the human right to non-discrimination.
Vilification protections
There are even larger gaps when it comes to legal prohibitions on anti-trans vilification. While Tasmania, the ACT, Northern Territory and Queensland all prohibit vilification against all TGD people, there are currently no protections against transphobic vilification under the Commonwealth Sex Discrimination Act, nor under the laws of Victoria or Western Australia (despite both State Governments having committed to doing so over several years), or South Australia.
The situation in NSW is more complex, with only transgender people with binary gender identities covered in relation to civil vilification under the Anti-Discrimination Act, while all TGD are protected by the ‘threatening or inciting violence’ offence in s93Z of the Crimes Act 1900 (NSW) (because the latter adopts the more modern terminology of ‘gender identity’).
The lack of clear, nation-wide prohibitions on anti-trans vilification is even more problematic given the rise in hate speech against TGD people, especially over 2023 and early 2024, including (but sadly not limited to) the anti-trans rally on the steps of Victorian State Parliament in March 2023 to which neo-Nazis turned up shouting at trans counter-protestors with a banner saying ‘destroy paedo freaks’.
The State Governments of Victoria, WA, SA and NSW, and especially the Commonwealth Government, must take urgent action to address this worsening national crisis.
Religious exceptions permitting discrimination against TGD people
One of the major weaknesses of anti-discrimination laws relating to LGBTQ+ Australians, including TGD people, are exceptions allowing religious organisations to engage in conduct that would otherwise be unlawful.
Over the past decade, this issue has received particular attention in relation to religious schools.
In 2024, it remains lawful for a publicly-funded religious educational institution to discriminate against TGD students under the Commonwealth Sex Discrimination Act, as well as in NSW, Western Australia and, most likely, South Australia too.
Indeed, the exceptions in NSW are so broad they apply to all ‘private educational authorities’, and there is no test that these institutions are required to satisfy before being able to mistreat TGD students – the exceptions are ‘blanket’ exclusions from the Act’s operations.
These exceptions deny the fundamental human right to education. All students should enjoy the ability to learn and to grow, free from the fear of discrimination because of who they are. That must include TGD students.
The situation for TGD teachers is even worse. Once again, they are legally permitted to be discriminated against under Commonwealth law, as well as in NSW, Western Australia, and South Australia (although schools must publish their discriminatory policies).
In Queensland a ‘Don’t Ask, Don’t Tell’ regime applies, although thankfully the Queensland Government has been consulting on legislation to remove these exceptions entirely.
Religious exceptions deny the fundamental human rights of TGD workers, including the right to non-discrimination. TGD teachers should be hired or not hired, fired or not fired, and otherwise treated in the workplace, according to their skills and experience, not their gender identity.
The Albanese Labor Government was elected in May 2022 with clear commitments to end the legally authorised mistreatment of TGD students and teachers.
However, despite referring this issue to the Australian Law Reform Commission for review in November 2022, and receiving the ALRC’s straight-forward recommendations for how LGBTQ+, including TGD, students and teachers should be protected in December 2023, the Government is now refusing to implement reforms without bipartisan agreement (an unnecessary prerequisite for legislation to pass, and an artificial barrier that will most likely result in ineffective protections – or no protections at all).
The Albanese Labor Government’s failure to act is not only a broken election promise. It is a denial of the rights of TGD Australians and will have long-term implications in poorer life outcomes for TGD people.
While the exceptions which apply in relation to religious schools have received the most scrutiny to date, the special privileges that allow other publicly-funded religious organisations to discriminate, across health, disability, aged care (noting that amendments to the Sex Discrimination Act in 2013 protected LGBTQ+ people accessing aged care services but not the workers of those same faith-based providers), housing and other essential community services must also be removed.
Finally, I note many anti-discrimination laws include other exceptions, including in relation to the participation of TGD people in sport, but defer to the views of TGD organisations on these provisions.
TGD birth certificate laws
Having access to identity documents that accurately reflect who you are is a fundamental human right, but one that is currently denied to far too many TGD people in Australia.
This is especially so in NSW which, as a consequence of provisions of the Births, Deaths and Marriages Registration Act 1995, remains the only jurisdiction in Australia that still requires transgender people to have genital surgery in order to update their birth certificate to reflect their gender identity.
This is surgery many TGD do not wish to undertake – including because it is not necessary for them to live their daily lives according to their gender identity. For many who do wish to access gender-affirming surgery, they simply cannot afford the prohibitive costs (which will be addressed in more detail in the third and final section of this submission, below).
Given that this genital surgery is also sterilising, imposing this barrier in order to legally update birth certificates can justifiably be seen as a denial of the right to reproductive freedom, including the human right to found a family.
Finally, the NSW approach is also deficient in that it currently only allows binary sex or gender markers (male or female), with no legislated option to record non-binary and other gender diverse identities.
Both of these issues – the unnecessary requirement for genital surgery, and the lack of options to record gender beyond male or female – would be resolved through passage of the Equality Legislation Amendment (LGBTIQA+) Bill 2023, introduced by Alex Greenwich MP and currently being considered by a NSW Parliamentary Inquiry (although the NSW Government has still yet to indicate their position on this long overdue reform).
Unfortunately, the approach in Western Australia is only slightly better, and that is primarily because of the intervention of the High Court, rather than the provisions of Gender Reassignment Act 2000 (WA) itself.
Thanks to the decision in AB v Western Australia; AH v Western Australia [2011] HCA 42, genital surgery is no longer required in Western Australia.
However, some form of physical medical intervention, such as top hormone treatment or top surgery, is still deemed necessary, and once again, there are no legislated options to record gender beyond male or female.
Disappointingly, while the WA Government has committed to replace with Gender Reassignment Act 2000 with more contemporary legislation, including allowing options beyond male and female, and abolishing the Gender Reassignment Board, they have not chosen to adopt best practice frameworks, such as those that exist in Tasmania and, following recent amendments, the ACT.
Instead, the WA Government’s announcements have indicated they will be following the flawed approach of South Australia and the Northern Territory, both of which still require a TGD person to obtain approval from a medical professional, such as a psychologist or counsellor, before a new birth certificate can be issued.
This is unnecessary and inappropriate ‘medical gate-keeping’ of the legal rights of TGD people, including their right to have identity documents matching their lived reality.
It also perpetuates the incorrect assumption that being transgender or gender diverse is a form of mental illness, rather than simply part of the beautiful diversity of being human.
Requiring ‘sign-off’ from psychologists or counsellors places additional financial hurdles in the way of TGD people who simply want identity documents that actually reflect their identity.
Above all, identity documents are exactly that, intended to record a person’s identity – and TGD people are TGD irrespective of whether a psychologist or counsellor supports them.
Instead, a full self-identification model should be adopted, along similar lines to the legislation in Tasmania and the ACT. I urge the Western Australian Government to reconsider their decision to introduce laws that fall well short of this standard.
And for the South Australian and Northern Territory Governments to reform their own laws to ensure TGD people in those jurisdictions enjoy straight-forward access to new birth certificates too.
Medicare funding for gender-affirming health care
While much is written about the need to reform the laws which apply to TGD people seeking accurate birth certificates, far less attention is often paid to a much broader, and arguably even more important, problem – that the cost of accessing gender-affirming health care is prohibitive, and out of reach for many TGD people in Australia.
These costs apply not just to various kinds of surgery (including ‘top’ and ‘bottom’ surgeries, as well as, for some TGD people, facial surgeries), but also to other health services, including hormone treatments.
These expenses can mean the difference between being able to affirm one’s gender identity or not – but are so high that they can effectively push some trans people into poverty. While for others, they are completely unaffordable.
For example, in March 2018, the ABC reported that: ‘There’s a massive price tag on being transgender in Australia. For some, the cost of surgery and treatment for gender dysphoria will crack $100,000’ [noting there has been significant inflation in health care in the six years since then, meaning contemporary figures may be even higher].
LGBTIQ policy expert Liam Elphick noted in The Conversation in March 2019 that: ‘Medicare and private health insurance do not cover many treatments that transgender and gender-diverse people may require to transition, such as surgical changes, because these are deemed “cosmetic”.’
However, gender-affirming health care is not cosmetic, but essential.
ACON’s 2019 ‘A blueprint for improving the health and wellbeing of the trans& gender diverse community in NSW’ raised the issue of TGD out-of-pocket medical costs, noting on page 20 that:
‘For medical services to be covered by the public health system in Australia, they must be medically necessary, clinically effective and cost effective. For many trans and gender diverse people, the ability to alter their body is part of affirming their gender and can be an important treatment if they are experiencing distress or unease from being misgendered and/or feeling incongruence between their gender identity and their body.’
‘Research has demonstrated that access to gender-affirming care has led to reduced mental health risks and improved quality of life for trans and gender diverse people.’
These factors – better mental health and quality of life outcomes – are obviously important reasons why trans out-of-pocket medical costs must be reduced. Or better still, eliminated entirely.
There is an even more fundamental argument: TGD people have a human right to live their affirmed gender identity, and that right is just as important as health, education and housing.
Sadly, as with anti-discrimination and vilification laws, and access to birth certificates reflecting their identity, the rights of TGD Australians are being denied in this area too.
As a consequence, for some TGD people, whether they are able to afford gender-affirming health care turns on whether they are able to run a successful ‘gofundme’ campaign (or other fundraising initiative).
Access to essential health care should never be determined in this lottery-like manner.
Instead, it’s time for the Commonwealth Government to ‘go fund them’, by ensuring all forms of gender-affirming health care are fully covered by Medicare, so that all TGD people who want to undertake surgery, and receive other services, are able, irrespective of their individual financial circumstances.
Thank you in advance for your consideration of the issues raised in this submission. Please do not hesitate to contact me, at the details provided, should you require further information.
Sincerely
Alastair Lawrie
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On April 16 2024, I was invited to give the keynote address to launch Issue 47(1) of the UNSW Law Journal.
I was asked to talk about the Issue’s theme – ‘Decoding Life, Freedoms and Governance’ – with reference to at least some of the Issue’s articles (which are open-source, and can be found here), as well as my background as a long-term LGBTIQ advocate and professional experience in public policy.
The following is what I came up with (the two sections in square brackets were omitted on the night to keep to time, but are included here for completeness). Thanks for reading, I hope you find it interesting.
‘Decoding Life, Freedoms and Governance’
Thank you for that generous introduction. And of course for the invitation to speak here tonight.
Thank you also for the broad theme of Issue 47(1) to address in my remarks – ‘Decoding Life, Freedoms and Governance’ – which took me several days to ‘decode’.
I must confess I don’t feel particularly qualified to talk in detail on the topic of ‘decoding life’ – which is something most people do in consultation with their therapist.
I do, however, have plenty to say on the twin, and intertwining, topics of ‘decoding freedoms’ and ‘decoding governance’, at least partly based on my lived experience.
That’s because, as a 45-year-old gay man, it has been impossible to avoid thinking about the meaning of freedom – of what I have been free to do, or not do, or protected from, or not, at different stages of my life. And what others, including religious organisations, have been legally free to do to me.
Or to deny the role of governance, and governments – state and federal – in determining the extent of those ‘freedoms’, far-too-often without consultation with or even consideration of those most affected by their decisions.
Indeed, some of the key events in my life overlap with milestones in the history of LGBTIQ rights in Australia.
I was born in July 1978, just weeks after NSW Police arrested 53 people for participating in the first Sydney Gay Mardi Gras parade – an indication of how unwelcoming both the law, and its enforcement, were for LGBTIQ people here.
Although I grew up in rural Joh Bjelke-Petersen-era Queensland, which was undoubtedly worse.
Queensland did not decriminalise male homosexuality between adults until January 1991 – but even then it introduced a differing age of consent for anal intercourse (18, compared to 16 for other sexual acts), a discrepancy that was not abolished until 2016, and with charges and convictions arising because of this inequality still not included in their historical homosexual conviction expungement scheme today.
January 1991 was also personally significant for a couple of reasons. Just one week after decriminalisation, I found myself travelling 800 kilometres from the family farm to a religious boarding school in Brisbane. Then, on my first day there, I found I was same-gender attracted too.
Audience members will be unsurprised to learn religious schools were lawfully permitted to discriminate against LGBTQ students (and teachers) in Queensland at that time. Loopholes my school took full advantage of over the following five years.
While I will spare you the details tonight, it would be an understatement to describe growing up gay at a religious boarding school which enjoyed special privileges to be prejudiced, as horrific. [You can read more about my experiences, here].
Fast forward to 2008, and to another coincidence. I was employed as a ministerial adviser to the Rudd Labor Government. At the same time as I met, and began my first de facto relationship with, the man who is still my partner today, I was provided internal on the details of Commonwealth same-gender de facto relationship recognition.
Some younger members of the crowd may not be aware this recognition did not exist before 1 July 2009.
Then, in January 2010, my partner Steve and I got engaged – meaning I would spend the remainder of my time working for a Government which did not support the legal equality of my own relationship.
Despite departing Canberra in mid-2012, I continued to advocate for the introduction of Commonwealth anti-discrimination protections for LGBTIQ people, something that was finally achieved in June 2013 – just 10 years ago, but almost four decades after race discrimination was prohibited federally, and more than three decades after homosexual discrimination protections were introduced in NSW (something we will return to later).
The subsequent four years were predictably dominated by the subject of marriage equality – not only campaigning for it to be passed, but also debating the manner of its passage, from conscience votes through to the push for the ALP to hold a binding vote.
And from successful LGBTIQ community efforts to stop the Turnbull Coalition Government’s plebiscite, to failed attempts to prevent their postal survey – in another coincidence, I started at the Public Interest Advocacy Centre just a couple of months before we helped one of the unsuccessful High Court challenges to block what may have technically been a statistical survey but was also an anti-democratic anomaly.
I note this challenge fell just prior to the relevant time period for the article ‘How does the High Court interpret the Constitution? A Qualitative Analysis between 2019-21’ – it would have been interesting to see how Tan, Paige, Hrambanis and Green characterised that Wilkie decision.
In any event, thank you for indulging me in sharing a little of my back-story. Which I think reinforces that to be a gay man – or any member of the LGBTIQ community – in the final two decades of the 20thcentury, and the first few of the 21st, is to have been engaged in a constant state of contestation of our legal rights.
Our lives have been made inherently political, with participation in the political process rendered essential – even if ‘the State’ has frequently been our oppressor, or at least acted on the oppressor’s side.
That background also helps to explain why I am an LGBTIQ advocate today.
Why I chose ‘sexuality-related anti-discrimination law in practice’ as the topic of my law honours paper at ANU.
Why I’ve spent much of the past two decades volunteering for a range of LGBTIQ community organisations, including both the Victorian, and NSW, Gay & Lesbian Rights Lobbies.
And why I have ended up at PIAC, where over the past seven years I have been fortunate enough to work not just on marriage equality, but also on advocacy against the Morrison Government’s Religious Discrimination Bills, which presented a grave threat to the rights of LGBTQ people (as well as women, people with disability and even people of minority faiths).
Above all, I’ve focused on efforts to secure anti-discrimination protections for LGBTQ students and teachers in religious schools, under both state and federal law. Which is obviously a full-circle moment given where I started!
I intend to use the remainder of this speech to talk about what LGBTIQ rights look like in NSW today, across four key issues: conversion practices; birth certificates; medical interventions on intersex children; and anti-discrimination protections.
Now, had I given this address a month ago, I would have been able to make the pithy observation that we live in the worst jurisdiction in Australia for LGBTIQ laws.
Instead, following passage of the Conversion Practices Ban Act in late March, we’ve moved all the way up to equal worst, with Western Australia (actually, that’s perhaps uncharitable – if we’re being generous, we might even be able to say we are now second-worst… just).
From an LGBTIQ advocate’s perspective, this legislation is both welcome and long overdue.
It will legally prohibit conversion practices, defined in section 3 as:
‘a practice, treatment or sustained effort that is (a) directed to an individual on the basis of the individual’s sexual orientation or gender identity, and (b) directed to changing or suppressing the individual’s sexual orientation or gender identity.’
This is needed because, as described in the opening article in issue 47(1) – Martin Clark and Brendan Gogarty’s excellent ‘Searching the Reins and Hearts: Conversion Practices Reforms in Australia’:
Quote
‘[S]cientific and clinical evidence has consistently shown that there is no evidence that conversion practices are ‘effective’ in their capacity to effect a change or suppression of sexual orientation or gender identity. There is also consistent evidence that conversion practices carry clear risks of harmful effects on those subjected to them, including physical and psychological harms, such as increased suicidality, self-harm, post-traumatic stress disorders, anxiety and depression, feelings of alienation, loneliness and exclusion, sexual dysfunction, substance abuse, internalised homophobia and feelings of failure, and reluctance to seek medical treatment.’
Endquote
Disappointingly to Clark and Gogarty, who argue against a carceral approach, the new Act implements both a criminal offence, and civil complaints scheme, for conversion practices.
Although I must respectfully disagree with them – given the seriousness of the harms they outline, I would suggest criminal penalties for the worst examples are appropriate.
Either way, the passage of this law is a testament to the advocacy of conversion practices survivors like Anthony Venn-Brown, Chris Csabs and Nathan Despott, over many decades.
But I would not be honouring their work without also highlighting their primary criticism of the law as passed – that, unlike the ‘best practice’ scheme in Victoria, the NSW law does not provide a formal mechanism for third-party complaints to Anti-Discrimination NSW.
As it stands, the only complaints that can be made are from survivors directly, or via representative complaints with the consent of each of those survivors.
This framework not only reinforces one of the limitations of anti-discrimination law more broadly – that the onus for seeking redress falls on the people who have been mistreated.
It ignores the particular characteristics of conversion practices, where the people undergoing them appear to do so ‘voluntarily’ (despite what, as Martin and Gogarty note, is the ‘impossibility of genuine consent’ in these circumstances), and are therefore unlikely to bring, or consent to, complaints until after they have extricated themselves from them. If they first survive them.
The lack of third-party complaints is a major gap in this scheme that must be rectified.
The Act also includes a range of ‘carve-outs’, providing that activities like ‘clinically appropriate’ healthcare, ‘stating what relevant religious teachings are or what a religion says about a specific topic’, and ‘parents discussing matters relating to sexual orientation, gender identity, sexual activity or religion with their children’, do not constitute conversion practices.
Despite this, a number of conservative religious organisations campaigned against the law in its totality, alleging it constituted an attack on ‘religious freedom’.
I must, perhaps a little less respectfully this time, disagree with them too. There is no philosophical justification for the right to inflict serious psychological harm, on children and young people, in the (misused) name of religious freedom.
Even in the case of adults – where there is at least a possible argument for the freedom to engage in practices which may result in self-harm – I would submit there is a clear justification for government regulation.
This is because of what Clark and Gogarty describe as the role played by ‘conversion ideology’ as a precursor to ‘conversion practices’:
Quote
‘Survivor-advocates have consistently contended that ‘conversion ideology’ – the worldview that it is possible and necessary for LGBTQA+ people to change their sexual orientation and gender identity, and that being LGBTQA+ is due to trauma, spiritual brokenness, and can be fixed by prayer – is central to defining and understanding conversion practices’,
because
‘the inculcation of these beliefs in congregants is important for smoothing the path for them taking part in actual conversion practices.’
Endquote
In other words, perpetrators of conversion practices first convince healthy people to believe their sexual orientation or gender identity is somehow ‘sick’ (when it is not), before offering a ‘cure’ that actually causes serious psychological harm.
The law should not protect the ‘freedom’ to engage in this abuse.
Before I conclude on this subject, I feel compelled to express my condemnation of the role played by the Liberal/National Coalition during parliamentary consideration of this law.
And especially of their vote in favour of minor-party amendments to remove ‘gender identity’ from any protection under the Conversion Practices Ban Act.
In other words, the NSW Opposition voted for the continued legality of ‘practices, treatments or sustained efforts’ to stop trans people, and especially trans young people, from being trans.
This was a shameful act, and one I would strongly urge them to reconsider in relation to future LGBTIQ law reform – including on the next topic we will turn to.
That is birth certificate legislation, and in particular, the regulation of access by trans and gender diverse people to identity documents reflecting who they are. Sadly, the NSW Births, Deaths and Marriages Registration Act 1995 is unequivocally the worst such law in the nation.
We are the only jurisdiction which still requires people to undergo genital surgery before being able to update their birth certificates – surgery many trans people do not wish to undertake, and of those that do, many cannot afford, because of a lack of Medicare funding.
While we are one of only two jurisdictions, alongside Western Australia, with no legislative options for sex or gender markers beyond male or female: non-binary people cannot access state-issued ID stating they are, in fact, non-binary.
These laws aren’t just an insult to the human dignity of trans and gender diverse people. The requirement for surgery, which causes sterilisation, is a denial of reproductive freedom and therefore the right to found a family.
While the inability of many trans and gender diverse people to access birth certificates reflecting who they are at all, means they are confronted by the possibility of ‘outing’ in the growing range of contemporary scenarios where ID is mandated.
Fortunately, the Equalities Legislation Amendment (LGBTIQA+) Bill 2023, introduced by the Independent Member for Sydney Alex Greenwich and currently being considered by a Parliamentary Inquiry, would address these problems, and at least bring NSW law up to the standard of Victoria and Queensland.
Although even then, and this is my personal rather than professional view, it would fall short of the ‘best practice’ approach of Tasmania, which is the only Australian state or territory to adopt a true ‘self-identification’ model for trans and gender diverse people.
Instead, the NSW law – like Victoria and Queensland – would still require a trans person, in addition to their own statutory declaration, to submit:
‘a support statement by an adult who has known the applicant for at least 12 months stating that (i) the adult believes the person is making the application in good faith, and (ii) the adult supports the person making the application…’
Given identity, including the characteristic of gender identity, is an inherently personal attribute, I do not agree the recognition of someone’s gender should be dependent on whether another person ‘supports’ it.
Looked at from another perspective, I do not concede that my sexual orientation, as a gay man, should only be acknowledged if I am able to produce a statutory declaration from another person saying they ‘support’ it.
I am who I say I am, a fact generally accepted by others. Trans and gender diverse people deserve to enjoy exactly the same respect.
Nevertheless, we (being PIAC), support the Equality Bill as a significant step forward along the long journey to LGBTIQ, and especially trans, equality. We urge both the NSW Government, and Opposition, to support it.
Turning to the third topic I flagged earlier, and in which NSW law is manifestly deficient: medical interventions on intersex children.
For audience members new to this subject, intersex people have innate sex characteristics that do not fit medical norms for female or male bodies. It is estimated somewhere up to 1.7% of children are born with these variations of sex characteristics.
Tragically, the medical system’s response to many intersex children is to perform so-called ‘normalising’ surgeries on them.
These interventions are frequently not clinically necessary for the child’s health, but instead performed for non-therapeutic or ‘psycho-social’ reasons, including to assuage the disappointment of parents who expected their child’s body to conform to societal norms, or to ‘assist’ the child to fulfil gendered stereotypes in the future.
For those curious about what that means in practice, I suggest reading the 2016 Family Court case of Re: Carla, which ruled that a family can consent to the sterilisation of their 5-year-old child without court approval, without clear medical necessity and at least partly motivated by gendered expectations, including attitudes to that young child’s potential future sexuality. It was then, and remains today, a genuinely heart-breaking decision.
These unnecessary surgeries are obviously done without the consent of the person affected by them, who should be free to agree, or not agree, to them when they have at least reached Gillick competency and understand what is involved.
In my view, medical interventions on intersex children, which are a fundamental denial of bodily autonomy, are one of the gravest human rights violations happening in Australia today – not just in relation to the LGBTIQ community, but across society.
There have been multiple public inquiries recommending these practices be ended, including the 2013 Senate ‘Inquiry into the involuntary or coerced sterilisation of intersex people in Australia’, and the Australian Human Rights Commission’s 2021 report ‘Ensuring health and bodily integrity: towards a human rights approach for people born with variations in sex characteristics.’
Sadly, however, only one Australian jurisdiction has so far passed legislation to prohibit these surgeries: the ACT. While I understand Victoria may be close to finalising its own laws.
In contrast, there is no NSW Government commitment to introducing equivalent laws here, nor was it included in Mr Greenwich’s Equality Bill.
This is a gross failure of governments, in NSW and elsewhere, to protect the rights of the most vulnerable.
It is unsurprising I had this issue front-of-mind while reading the article ‘Out-of-Home Care, Contact Orders and Infant Mental Health: Recognising a Unique Developmental Stage in Law, Policy and Practice’ by Rachel Gregory-Wilson, Elizabeth Handsley, Liesel Spencer and Toby Raeburn, including their observation that:
Quote
‘Infancy is, therefore, a special and critically important stage of human development, and infants as a class of persons require special recognition and safeguards, including under child protection law. Infants are not little children, just as children are not little adults; they need different and unique exposures in their environments to facilitate optimum physical growth and emotional development’.
Endquote
While they made this observation in a different context, I think it reasonable to apply these principles to intersex children, who deserve legislative safeguards for their bodily autonomy, and who should be allowed to grow and develop free from unnecessary medical interventions to try to change their bodies into what society expects them to be.
Let intersex kids be free from surgeries performed according to the wants of others, rather than their own needs – and only performed following their own timeframes, if they so consent.
[One final point before moving on – while the circumstances, and associated rights, of trans young people, and intersex children, are quite distinct, it is depressing to observe the intellectual inconsistency of those who oppose the rights of both.
For example, Liberal Senator Alex Antic’s Childhood Gender Transition Prohibition Bill 2023, currently before Commonwealth Parliament, seeks to ban access by trans and gender diverse young people to gender-affirming health care, even puberty blockers and even where they are Gillick competent.
While simultaneously providing a specific carve-out to allow non-consenting medical interventions to continue to be performed on intersex children.
According to Antic, there should be no gender-affirming health care for trans kids who want it and who are able to consent. But no protection for intersex kids from harmful surgeries that are not clinically necessary and where they are in no position to consent.
Trans and intersex kids lose either way].
Turning to the final topic of my speech – anti-discrimination coverage – once again NSW has the worst laws in the country. Nowhere is this more apparent than in the protections the Anti-Discrimination Act 1977 offers, or more accurately fails to offer, LGBTIQ people.
It wasn’t always this way. In fact, NSW was the first Australian jurisdiction to protect lesbians and gay men against discrimination, in late 1982. Incidentally, this was before the decriminalisation of homosexuality in mid-1984, meaning there was an 18-month period during which gay men were criminals but legally could not be denied housing.
But the lack of subsequent reform, especially over the past 28 years, has allowed this law to atrophy.
We are now the only place nation-wide which does not protect bisexual people against discrimination. And one of two, with Western Australia, that does not protect non-binary and intersex people.
The provisions allowing discrimination by religious schools are the broadest in Australia too.
Indeed, they are so broad they apply to all ‘private educational authorities’, not just religious schools. And they offer complete or ‘blanket’ privileges to discriminate – unlike all other jurisdictions, there is no test which NSW schools must satisfy before being permitted to discriminate. The Act simply does not apply to them.
These serious flaws are just some of the reasons PIAC has made comprehensive anti-discrimination law reform a priority, including through our August 2021 report ‘Leader to Laggard: The case for modernising the NSW Anti-Discrimination Act’.
We were obviously pleased NSW Labor listened to that report and made comprehensive review of the ADA an election commitment. And we have welcomed, participated in and will continue to participate in the current NSW Law Reform Commission inquiry into this broken and outdated law.
But, as people discovered at the start of the century – when the Law Reform Commission completed its last review of this legislation, with its report then gathering dust rather than being implemented – an inquiry is meaningless if nothing subsequently changes.
We will continue to advocate to the Minns Labor Government until we finally have an Anti-Discrimination Act fit for the 21st century, one offering genuine protection against discrimination for all communities, including LGBTIQ people.
Speaking of Law Reform Commission reports at risk of gathering dust, I cannot discuss anti-discrimination law reform tonight without also addressing the current situation federally.
[Before we get into those details, however, and on indulgence, I might take this opportunity to vent the frustrations of an advocate for protecting LGBTQ students in religious schools who regularly comes up against the intellectually disingenuous, and sometimes downright dishonest, arguments of those opposed to reform.
I speak of some conservative religious schools, and their representative bodies, who simultaneously claim that religious schools do not discriminate against lesbian, gay, bisexual and trans students – but that under no circumstances can their legal privileges to do so ever be repealed.
They can never satisfactorily answer why that should be the case.
Until you realise it is because these religious schools do in fact discriminate against queer kids – they just call it something else.
Which is how you end up with the anti-LGBTQ, and especially anti-trans, student enrolment contract, proposed by Citipointe Christian College in Brisbane in 2022.
Or the situation in late 2023, when a Sydney Catholic school rejected a female student’s request to bring their same-gender partner to their formal (with it later becoming apparent this was policy across that entire Catholic school network).
Indeed, Catholic schools seem to be experts in this special kind of hypocrisy – claiming not to discriminate, while doing exactly that – as can be seen in the 2023 Sydney Catholic Schools’ ‘Gender Dysphoria Policy’ – a 6-page guide that only ever refers to students with ‘gender dysphoria’, never once acknowledging some students are trans.
I would submit it is fundamentally discriminatory to refuse to acknowledge who a trans child is.
It is almost refreshing to witness the comparative honesty of an organisation like the Presbyterian Church of Australia, who have publicly stated gay students cannot hold leadership positions within their schools because they are unable to ‘model Christian living’.
Almost – until you remember they are unashamedly, and unrepentantly, saying they will actively mistreat young people solely because of an intrinsic attribute.
That is nothing more than bullying, pure and simple. There should be no place for it in places of learning.
Anyway, thanks again for your forbearance.]
As audience members are aware, this issue has been ongoing for several years – since late 2018, when both the then-Morrison Government, and then-Shorten Opposition, promised to protect LGBTQ students. With Labor going further in promising to protect LGBTQ teachers too.
Albanese took these commitments to the May 2022 election, with Attorney-General Mark Dreyfus referring the question of how they should be implemented to the Australian Law Reform Commission in November that year.
The ALRC handed its report to Dreyfus in December. They proposed straight-forward amendments, to the Sex Discrimination Act 1984, and Fair Work Act 2009, to reflect the following two principles:
That LGBTQ young people should enjoy the freedom to learn and to grow, without fear of discrimination on the basis of who they are, and
That LGBTQ teachers should be employed on the basis of their skills and experience, rather than their sexual orientation and gender identity.
We hoped the privileges for prejudice enjoyed by religious schools might finally end.
But, when the Government released the ALRC report in March, those hopes were immediately dashed – because Prime Minister Albanese indicated no legislation would even be introduced to Parliament without bipartisan support from the now-Dutton Opposition. Effectively abdicating responsibility for his own election promises to the parties he had defeated.
Remember, not only did the Coalition do nothing to implement Morrison’s 2018 promise to protect LGBTQ kids, they withdrew their own Religious Discrimination Bills from Senate consideration because of amendments to prohibit discrimination against trans students.
Just today, Shadow Attorney-General Michaelia Cash has written an opinion piece not just opposing reforms to the Sex Discrimination Act, but also backing calls by religious schools for ‘positive rights’ to discriminate under federal law, with the consequence of overriding protections for LGBTQ teachers, and even students, in states and territories that have progressive laws.
It was abundantly clear to observers when Mr Albanese announced his ‘bipartisanship’ push, and is undeniable now, there are only two possible outcomes:
There is no agreement, and therefore no protection for LGBTQ students and teachers
There is agreement – but any Bill supported by the Coalition will not offer genuine protection for LGBTQ students and teachers.
Either way, LGBTQ Australians lose again.
It is hard not to share the sentiments, if not the choice of language, of religious school discrimination survivor James Elliot-Watson, when he described the impasse thus:
Quote
‘MPs are paid in excess of $200,000 so everybody should do their fucking job.
And I think that’s especially true for the leader of the government and my Prime Minister.
The purpose of parliament is to enact laws that ensure the safety, integrity and protection of… Australian citizens and that’s what this is about.
It needs to protect vulnerable children from legal discrimination practices that religious institutions are allowed to engage by chang[ing] the law.
Let’s get it done.’
Endquote
If Albanese doesn’t ‘get it done’ this term, it will be no less a failure of governance, and governments, to realise the basic freedoms of LGBTIQ Australians as the failure to achieve marriage equality over many years.
Indeed, there are many similarities between these two issues.
Both were reforms supported by a large majority of the Australian community.
Both could be delivered with legislative ease, following well-established precedents (in the case of marriage equality, overseas examples; in anti-discrimination law, the successful operation of state and territory laws).
Both issues had politicians who claimed to support change, but were recalcitrant in delivering it.
Significantly, both marriage equality and anti-discrimination reform have seen Prime Ministers impose artificial barriers hindering change – in the former, an unnecessary plebiscite-cum-postal survey; in the latter, the unnecessary need for bipartisan support.
With the result that on both issues LGBTIQ Australians are made to wait far too long for positive change.
Which is the most important point. It is LGBTIQ Australians who suffer real-world harm because of political intransigence.
In marriage equality, we remember Peter ‘Bon’ Bonsall-Boone and Peter De Waal, who were together for 50 years, and, in the face of Bon’s declining health, desperately pleaded for Malcolm Turnbull to introduce marriage equality so they could finally wed.
Bon died 6 months before it was passed.
In relation to LGBTQ students, I think about the person whose story we will never get to hear – because the mistreatment they experience causes them to prematurely end their life.
I say that with confidence – because it was nearly my story.
The horrific discrimination I suffered at the hands of my religious boarding school, which I mentioned earlier, caused me to experience suicide ideation from the second term of year 8, through the final term of Year 12. And beyond.
I am, in many respects, very lucky to still be here.
But I am also full of resolve. Because that is no way for a child to learn, or to grow up.
And so I can state with equal confidence that I, and PIAC, will continue to advocate until no child has to endure the same.
As I come to the end of tonight’s speech, I’m tempted to apologise for the ‘heaviness’ of some of the subjects I’ve spoken about, including the personal impacts of anti-LGBTIQ prejudice.
It is an ‘occupational hazard’ of being an advocate, and especially one who focuses on policy and law reform, to be constantly critical, to highlight where the law is deficient, and the terrible outcomes of those shortcomings.
I do not intend to convey the impression there has been no positive law reform in my lifetime (or since that very first Mardi Gras) – not just on conversion practices, but also decriminalisation, de facto and rainbow family rights, and in many other areas.
Nor is the plight of LGBTQ people in religious schools intractable. I am reliably informed my own boarding school is now welcoming of same-gender attracted and gender diverse students, a product of anti-discrimination protections for students that have existed in Queensland for twenty years.
But I do mean to impart the understanding that the struggle for the full realisation of LGBTIQ human rights and freedoms in Australia is far from over, and that we will never reach that end-point without the concerted efforts of the community, both LGBTIQ and non-LGBTIQ alike.
I welcome those present tonight as fellow travellers on the long journey ahead.
Congratulations on Issue 47(1) of the UNSW Law Journal to Jessie Liu, your editorial team and to all of the authors published. It is truly impressive in its breadth, and depth, of scholarship.
And thank you for listening to my remarks.
[The video of this event has been published here. My speech begins at the 20-minute mark].
Photo credit: UNSW Law Journal
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[I wrote this piece about 10 days ago, in the lead-up to the anniversary of the horrific events at Victorian Parliament in March last year. Unfortunately, it wasn’t picked up by media outlets – but the past week has made these comments even more urgent, so I am publishing it here.]
One year ago last Monday (on Saturday 18 March 2023), Australians witnessed the horrific sight of neo-Nazis turning up to an anti-trans rally on the steps of Victorian Parliament, holding a banner saying ‘destroy paedo freaks’ and performing Nazi salutes.
It was a chilling reminder of the serious threat posed by right-wing extremism to LGBTIQ communities in general, and trans and gender diverse people in particular.
Rather than being a one-off, that awful anti-LGBTIQ spectacle was just the first in a long line of rallies and related hate speech threatening our communities over the past 12 months.
Within days, so-called ‘Christian Lives Matter’ members engaged in what can only be described as a riot against peaceful LGBTIQ protestors (and NSW Police) in the Sydney suburb of Belfield.
April onwards saw a dramatic rise in threats of violence and intimidation by right-wing extremists across the country, directed to local councils and libraries holding Drag Story Times.
Most recently, the ABC was forced to cancel a Drag Story Time that was to be held in conjunction with the Sydney Gay & Lesbian Mardi Gras following death threats against their employees.
The attacks on our communities have been terrifying. They have been relentless. And they are part of a disturbing international trend of intolerance.
But where has the Commonwealth Government been when we have needed their leadership?
They were quick to introduce legislation to ban the display of Nazi hate symbols, later amended to also prohibit the Nazi salute. This was welcome, but addresses only part of the problem.
A group of thugs intimidating trans people with a banner saying ‘destroy paedo freaks’ is a serious issue irrespective of what clothes they wear, flags they fly or salutes they perform.
Sadly, though, we have not seen the Albanese Government respond to the rise in anti-LGBTIQ right-wing extremism with the seriousness it deserves.
We have not seen or heard clear and consistent condemnation of growing homophobia, biphobia and transphobia, or even of the violent threats against community events.
There has been no commitment to introduce much-needed Commonwealth laws prohibiting anti-LGBTIQ vilification.
And no open engagement with LGBTIQ communities about the threats we face, or additional funds committed to help with our safety.
Instead, it has been left to unfunded groups like Rainbow Community Angels, who attempt to make events like Drag Story Time a safe place for attendees, to stand up against the far-right, unassisted.
It’s possible the Government would say that primary responsibility for these issues lies with states and territories, but these are problems that call for national leadership.
By contrast, faith communities have been actively engaged and largely supported when they have raised concerns about intolerance.
Government representatives, from Prime Minister Albanese down, have spoken up in recent months against religious hate speech, particularly in the form of anti-semitism. The Government has made repeated promises to introduce religious vilification laws, expected to be tabled within weeks.
[NB Since this piece was written, the Government has confirmed it is pushing ahead with these amendments, separate to the Religious Discrimination Bill and any Sex Discrimination Act changes, meaning it may be the only part of those overall reforms that actually pass.]
And $40 million in Commonwealth funding for the safety of religious organisations was announced by Attorney-General Mark Dreyfus last May (on the International Day Against Homophobia, Biphobia and Transphobia no less).
The LGBTIQ community can’t even convince the Government to create and appoint a stand-alone LGBTIQ+ Discrimination Commissioner at the Australian Human Rights Commission. LGBTIQ issues remain a part-time, ad hoc responsibility of the Sex Discrimination Commissioner.
Promises to address anti-LGBTIQ vilification, and funding for LGBTIQ community safety, remain nowhere to be seen.
I’m a 45-year old cis gay man. I grew up in Joh Bjelke-Petersen’s Queensland, and survived five years at a deeply homophobic religious boarding school. Coming out of, and coming out after, that environment was tough.
But the rise in overt, targeted, public bigotry over the past 12 months has left me feeling less safe than at any time since the 1990s.
What has made things worse is the silence and inaction of the Albanese Government. This has left me, and many others in our community, feeling forgotten too.
Source: Herald Sun.
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Commonwealth Parliament passed the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 ten years ago today.
This was historic legislation, finally offering federal anti-discrimination protections to lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians.[i]
And it was long overdue, more than 30 years after NSW became the first jurisdiction in Australia to prohibit discrimination on the basis of homosexuality, way back in 1982.
But, even at the time of passage it was clear these Sex Discrimination Act amendments were incomplete, and their limitations have only become more apparent in the decade since.
Here then are some[ii] of the key short-comings which need to be addressed in order for the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 to live up to its potential.
Replace the protected attribute of intersex status with sex characteristics
The 2013 amendments meant Australia became one of the first jurisdictions in the world to offer anti-discrimination protections to intersex people. It did so by the inclusion of ‘intersex status’ as a protected attribute, defined as:
‘the status of having physical, hormonal or genetic features that are:
(a) neither wholly female nor wholly male; or
(b) a combination of female and male; or
(c) neither female nor male.’
This terminology (intersex status) and associated definition are no longer considered best practice, with peak body Intersex Human Rights Australia advocating for its replacement with ‘sex characteristics’, which was recently defined in amendments to the Queensland Anti-Discrimination Act 1991 in the following way:
‘sex characteristics, of a person, means the person’s physical features and development related to the person’s sex, and includes-
(a) genitalia, gonads and other sexual and reproductive parts of the person’s anatomy; and
(b) the person’s chromosomes, genes and hormones that are related to the person’s sex; and
(c) the person’s secondary physical features emerging as a result of puberty.’
Fortunately, the Commonwealth Government has actually committed to making this change – Industrial Relations Minister Tony Burke promised to replace intersex status with sex characteristics in Parliament in November 2022.[iii]It’s time for the Albanese Government to follow through on this commitment.
2. Protect LGBTQ students in religious schools against discrimination
It is appalling that, in 2023, Commonwealth anti-discrimination laws – which are supposed to protect LGBTI Australians – instead continue to allow religious schools and colleges to discriminate against some of the most vulnerable among us.
The special privileges permitting religious schools to mistreat LGBTQ young people in myriad ways (from refusing to enrol, through to suspension, expulsion and other forms of punishment, as well as an almost unlimited variety of differential treatment to their cis-het counterparts) were never justified. But they look especially archaic, and abhorrent, today.
All students have the right to education, and must be allowed to exercise this right in safety. And because any student, in any school, can be LGBTQ, all schools must be LGBTI-inclusive.
Once again, the Albanese Government has promised to protect LGBTQ students against discrimination. However, rather than simply following the precedents of multiple states and territories which have already legislated to protect LGBTQ kids – some for more than two decades – they chose to refer the issue of the exceptions enjoyed by religious schools to the Australian Law Reform Commission in November 2022 for a six-month inquiry.
Disappointingly, in April 2023, Attorney-General Mark Dreyfus announced that this inquiry was being extended until 31 December 2023. As a result, LGBTQ Year 12 students in 2023 will not be protected against discrimination before they leave school (despite both major parties promising to do so since October 2018, when they were only in Year 7). And another class will likely start, in 2024, still not protected against discrimination on the basis of who they are.
This simply isn’t good enough.
3. Protect LGBTQ teachers in religious schools against discrimination
Of course, LGBTQ students are not the only people in religious schools and colleges who deserve protection against mistreatment. So too do LGBTQ teachers and other workers.
Teachers should be judged simply according to their ability to teach – not their sexual orientation and/or gender identity.
This would not only benefit LGBTQ teachers, who would finally enjoy the same ability to apply for jobs, and promotions, across their industry as cis-het teachers, and would also be free to focus on teaching rather than having to hide in the closet and spend time and emotional energy worrying about whether they will be outed, and sacked as a result.
But it would benefit students too, who would be taught by the best person for the job (not the best cis-het person), and learn from LGBTQ teachers not distracted by the ever-present threat of discrimination. For LGBTQ students, out teachers also offer the prospect of role modelling what a happy life might look like, reducing their potential isolation.
The imperative to remove the ability of religious schools to discriminate against teachers on the basis of their sexual orientation and/or gender identity is only strengthened when we consider the massive sums of taxpayer money – ourmoney – given to these institutions.
Yet again, the Albanese Government has promised to remove the special privileges which allow religious schools to discriminate against LGBTQ workers. But, as with LGBTQ students, the possible protection of LGBTQ teachers has been held up by the lengthy extension to the ALRC inquiry.
LGBTQ teachers shouldn’t have to wait until 2024, or beyond, to enjoy protection against discrimination in the workplace. They should be allowed to focus on lesson plans and marking, not planning how to mask their sexual orientation or gender identity.
4. Protect LGBTQ workers in Government-funded aged care services operated by religious organisations
One of the best provisions of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (Cth) was new sub-section 37(2)(a) which states that the Act’s general religious exception (contained in sub-section 37(1)(d):
‘does not apply to an act or practice of a body established for religious purposes if… the act or practice is connected with the provision, by the body, of Commonwealth-funded aged care.’
In effect, nearly all aged care services across Australia are now prohibited from discriminating against people accessing those services on the basis of their sexual orientation and/or gender identity. In other words, LGBTQ people in all Government-funded aged care services are legally protected against discrimination.
The fact this provision has operated successfully, for a decade, demonstrates that special privileges allowing discrimination by religious organisations delivering what are essentially public services are unnecessary, and should be removed.
We should start by repealing sub-section 37(2)(b),[iv] which still allows faith-based aged care services to discriminate against LGBTQ workers.
All of the arguments which applied to LGBTQ teachers in religious schools, outlined above, also apply to LGBTQ aged care workers. This includes ensuring that the best person for the job is hired, not just the best cis-het person, allowing LGBTQ aged care workers to focus on the important task of delivering care to the elderly rather than worrying about being discovered, and allowing LGBTQ people accessing aged care to see openly-LGBTQ people looking after them.
5. Remove the general religious exception in section 37(1)(d) of the Sex Discrimination Act entirely
The same arguments which apply to LGBTQ students, teachers and aged care workers, also apply to LGBTQ people accessing services and employees across a broad range of other public services – such as disability, health, housing and other community services – which have been increasingly outsourced by state, territory and commonwealth governments over recent years.
All people accessing these services should be free to do so without having to fear discrimination on the basis of their sexual orientation and/or gender identity.
All workers in these industries should have the right to be judged on their ability to perform their role, not on who they are or how they identify.
Several Australian states and territories have already reformed their anti-discrimination laws to narrow their general religious exceptions along these lines, including Tasmania, Victoria, the ACT and NT, while Queensland and Western Australia have in-principle commitments to implement law reform recommendations achieving the same.[v] It’s time for Commonwealth Parliament to catch up.
Importantly, even if the general religious exception in sub-section 37(1)(d) of the Sex Discrimination Act 1984 (Cth) were removed, religious organisations would continue to enjoy the right to religious freedom through sub-sections (a), (b) and (c), which cover the training and appointment of ministers of religion, and selection of other people to perform functions in connection with religious observances or practices.
6. Prohibit vilification against LGBTI Australians
One major gap which exists in the Sex Discrimination Act, and which unfortunately was not addressed by the historic 2013 amendments, is a lack of Commonwealth prohibition on vilification on the grounds of sexual orientation, gender identity and sex characteristics.
The first half of 2023 has comprehensively demonstrated why such nation-wide prohibitions are essential, with TERFs and neo-Nazis rallying against trans rights on the steps of Victorian Parliament, the Christian Lives Matter riot against LGBTIQ protestors in Sydney, and growing threats of violence and intimidation against drag story time and other local LGBTIQ community events across several jurisdictions.
Disappointingly, there has so far been no national response to the anti-LGBTI substance of these developments.
The Albanese Government has instead proposed legislation banning the display of Nazi symbols which, while obviously welcome, in the absence of LGBTI vilification laws raises the following question: is anti-LGBTI hate speech acceptable as long as the people engaging in it aren’t wearing Nazi uniforms?
What has been happening so far this year is nothing short of a national crisis. What we need is a national response, including the introduction of Sex Discrimination Amendments prohibiting vilification against LGBTI Australians, equivalent to section 18C of the Racial Discrimination Act 1975 (Cth).
7. Create and appoint a Commissioner for Sexual Orientation, Gender Identity and Sex Characteristics
The dire situation confronting LGBTI Australians in 2023 has highlighted another structural weakness in our anti-discrimination framework – the lack of a stand-alone independent Commissioner for Sexual Orientation, Gender Identity and Sex Characteristics within the Australian Human Rights Commission.
This absence puts LGBTI people at a distinct disadvantage compared to other groups for which dedicated Commissioners have been created, including:
Race
Sex
Disability
Age
Children
Aboriginal and Torres Strait Islander Social Justice, and
Human Rights.
Responsibility for LGBTI issues has instead been seen as an ‘add-on’, with the portfolio at various times being held by the Human Rights Commissioner, Sex Discrimination Commissioner and even the President (where it currently sits, although it will likely revert to the Sex Discrimination Commissioner when a replacement for Kate Jenkins is appointed).
But as an ‘add-on’, it never receives the same level of attention as other portfolios, nor the same amounts of funding and resources.
This lower relative prioritisation of LGBTI rights can be seen in the Commission’s muted response to the disturbing developments in the first half of 2023 – as far as I can tell, there have been no media releases or other public policy contributions in response to the TERF and neo-Nazi rally, Christian Lives Matter riot, or escalating wave of anti-LGBTI threats around the country.
Our community is under attack, and Australia’s national human rights institution does not appear to be coming to our defence.
The most straight-forward way to remedy this would be to address the structural weakness which has contributed to it – and that is by creating, and urgently appointing, a stand-alone independent Commissioner for Sexual Orientation, Gender Identity and Sex Characteristics within the AHRC.
NB This post is written in a personal capacity, and does not reflect the views of employers past or present, nor of any community organisations with which I am involved.
Commonwealth Attorney-General Mark Dreyfus, who has responsibility for the Sex Discrimination Act 1984 (Cth), and who therefore has responsibility for amending it to better protect LGBTI Australians.
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Footnotes:
[i] Although the Commonwealth Fair Work Act had offered limited protections to LGB workers, on the basis of ‘sexual preference’, from 2009.
[ii] This is by no means an exhaustive list of the Act’s faults. Other issues which should be addressed include narrowing the exceptions applying to transgender and intersex people in sport, as well as removing the exceptions relating to data collection.
[iii] During debate on legislation that finally included gender identity and intersex status as protected attributes in the Fair Work Act for the purposes of adverse action and unlawful termination provisions.
[iv] Which clarifies that the protection of LGBTQ people in relation to aged care services operated by faith bodies only applies where ‘the act or practice is not connected with the employment of persons to provide that aged care.’
[v] From the Queensland Human Rights Commission and WA Law Reform Commission respectively.
In 2015 and 2018, under then-Leader Bill Shorten, the Australian Labor Party adopted national party platforms with wide-ranging policy commitments on LGBTIQ issues. These helped to inform the promises taken to the federal elections in the following years, which were similarly-broad in scope.
In 2021, the ALP, under Shorten’s replacement Anthony Albanese, adopted a much more narrowly-drafted party platform, which involved jettisoning some previously-held LGBTIQ policies (although a few of these were restored via conference resolutions from the floor). This was then reflected in an relatively narrow range of LGBTIQ promises at the May 2022 election.
With the next ALP National Conference coming up in Brisbane on August 17-19 2023, this week the Party’s national policy forum released its draft Platform for public consultation.
Unfortunately, the LGBTIQ policy commitments it contains have been pared back even further than the already-limited 2021 offerings, including in the following key areas:
The draft platform axes previous support for LGBTIQ vilification protections
The 2021 National ALP Platform includes a commitment that:
‘Labor will work closely with LGBTIQ Australians and advocates to develop policy that will…
b. strengthen laws and expand initiatives against discrimination, vilification and harassment on the basis of sexual orientation, gender identity or sex characteristics.’ (p64).
The 2023 draft Platform instead includes the general statement that: ‘Labor will work closely with LGBTIQ+ Australians and advocates to develop policy that meets the specific needs of the community to ensure equality with broader Australian society.’ (p56).
This clause is so generic, and so bland, as to be almost meaningless.
It is difficult to comprehend why previous ALP support for vilification protections has been axed in the current political climate, with TERFs and neo-Nazis rallying on the steps of Victorian Parliament, Christian Lives Matter rioting in Sydney, Mark Latham being Mark Latham, and escalating violent threats against local councils hosting Drag Story Time events (and LGBTIQ community events more broadly).
What makes this axing even worse is that, just two pages later, under the heading ‘Freedom of thought, conscience and religion’, the 2023 draft Platform actually retains its previous commitment from the 2021 Platform for Commonwealth religious vilification laws:
‘Labor believes that people of faith deserve the same human rights, equality, respect and safety as every other Australian. No Australian should ever be vilified, discriminated against or subjected to violence or threats of violence because of that person’s religion or religious belief. Labor will work to ensure that Australia’s anti-vilification laws and discrimination framework are fit for purpose.’ (p58).
Those are strong sentiments. I, and I’m sure many other LGBTIQ Australians, could perhaps suggest another community, currently under sustained attack from far-right extremists, who could perhaps do with a similar expression of support…
But the piece de resistance of this shameful situation is that the draft Platform actually repeats the promise of religious vilification laws on the following page for a second time:
‘Labor believes that people of faith deserve the same human rights, equality, respect and safety as every other Australian. No Australian should ever be vilified, discriminated against or subjected to violence or threats of violence because of that person’s religion or religious belief. Labor will therefore ensure that Australia’s anti-vilification laws are fit for purpose.’ (p59).
So, the draft 2023 ALP Platform axes support for LGBTIQ vilification protections, at a time when we need them more than ever, while promising it to people of faith. Twice.
That’s the opposite of great.
2. The draft platform axes previous support for affordable trans health care
The 2015 and 2018 ALP National Platforms included commitments to, where possible, reducing out-of-pocket medical costs for gender-affirming health care.
While this was cut from the official platform in 2021, a conference resolution was passed which included the following:
‘Labor acknowledges the needs and rights of transgender and gender diverse people to fair, equal and affordable access to health care services. For many, this many include accessing vital specialist health services and gender-affirming medical technologies. Labor commits to removing, wherever possible, barriers to accessing these services in consultation with medical experts and government.’ (p140).
That statement appears to have been significantly cut back, reappearing in the following form in the 2023 draft:
‘Labor supports queer, transgender and gender diverse Australians and their families, and will work to support their agency in health decisions. Labor will provide access to the vital health and support services LGBTIQ+ Australians need.’ (p44).
Worryingly, this redrafted clause removes any specific reference to the affordability of trans health care, which is really the point: far too many trans and gender diverse people are currently blocked from accessing the care they need because they simply cannot afford it.
3. The draft platform axes most intersex-specific commitments
Intersex Australians fare even worse than their trans and gender diverse counterparts in the draft 2023 Platform.
The 2021 version included a commitment to: ‘support intersex-led organisations to provide support to intersex persons and their families, and advocate on intersex issues.’ (p64).
The 2021 conference also passed multiple resolutions from the floor, including statements that:
‘Labor will recognise the bodily integrity of intersex persons, prohibiting modifications to the sex characteristics of people with innate variations of sex characteristics performed for social or cultural reasons, and ensuring respect for intersex persons right not to undergo sex normalisation treatment. Labor commits to supporting the development and implementation with community participation of human-rights affirming oversight and standards of care, including for accessing lifetime medical treatments and procedures.’ (p140).
and
‘Labor will ensure that the actions of a Federal Labor Government are informed by the Yogyakarta Principles on the Application of International Human Rights Law in Relation to sexual orientation, gender identity, gender expression and sex characteristics and the Plus 10 Supplementary Principles. Further, Labor acknowledges the Darlington Statement as a guide to intersex policy responses within Australia.’ (p142).
As far as I can tell, not one of these commitments made it into the draft 2023 Platform. This is deeply troubling given the human rights abuses experienced by intersex Australians aren’t just the worst of those affecting the LGBTIQ community, they are some of the worst affecting any group in Australia.
4. The draft platform fails to support an LGBTIQA+ Human Rights Commissioner at the Australian Human Rights Commission
One area where the draft Platform hasn’t gone backwards from 2021 is on the question of a stand-alone, dedicated Commissioner for Sexual Orientation, Gender Identity and Sex Characteristics at the Australian Human Rights Commission (AHRC) – because neither version commits to creating this much-needed role.
However, the 2015 and 2018 platforms did, with the Shorten Labor Opposition promising to introduce one at both the 2016 and 2019 federal elections.
Recent events have, I believe, demonstrated the urgent need for such a position. Unfortunately, in the absence of an LGBTIQA+ Commissioner, the AHRC has not issued any media releases in response to the TERF and neo-Nazi rally, Christian Lives Matter riot, or escalating threats of violence against Drag Story Times.
The LGBTIQ community is under attack, and it feels like nobody federally is on our side.
Instead of seeking to rectify this situation, the draft 2023 Platform offers this acceptance of the unsatisfactory status quo: ‘Labor supports the Australian Human Rights Commission and its commissioners, including the important work they do to promote a more inclusive and respectful society.’ (p59).
We need an LGBTIQA+ Commissioner, and we need it yesterday.
Who knows, perhaps if there already was such an office-holder, the people responsible for drafting the consultation version of the 2023 national platform might have done a better job at understanding the need for more, and more-detailed, LGBTIQ policy commitments?
*****
If you haven’t guessed by now, I am genuinely disappointed (#understatement) by the draft national ALP platform released this week, and its omission of key policy commitments affecting the LGBTIQ community.
Beyond that, I am perturbed by the thought process that must have gone into the decision to cut support for things like LGBTIQ vilification protections, at a time of growing threats of violent extremism against our community.
The four issues outlined above are just those I have identified today. I am sure there will be others, affecting different parts of our community, which will become apparent in the coming days.
But there is an urgency to this analysis, because the draft platform is only open for public consultation until 23 June (ie just over three weeks away).
It’s time to get writing – and get lobbying – because what the ALP national policy forum has released this week is simply not good enough on LGBTIQ issues.
Anthony Albanese at the 2021 ALP National Conference.
Today marks the one-year anniversary of the election of the federal Albanese Labor Government. Looking back on those first 12 months, there have been some small but important wins, and some disappointing losses. But above all, there has been plenty of unfinished – and in many cases, un-started – business.
First, to the wins. In November last year, as part of the Fair Work Amendment (Secure Jobs, Better Pay) Act 2022 reforms, the Government added gender identity and intersex status as protected attributes in relation to the Fair Work Act’s adverse action and unlawful termination provisions. These amendments ensured trans, gender diverse and intersex workers were explicitly included in this law for the first time (although the Government still needs to update the out-dated terminology of intersex status, replacing it with sex characteristics, something Employment and Workplace Relations Minister Tony Burke has thankfully committed to do).
The second set of wins were the announcements from the Government which coincided with Sydney World Pride earlier this year, including:
Development of a 10 Year National Action Plan for the Health and Wellbeing of LGBTIQA+ Australians,
$26 million in grants for research projects seeking to improve the treatment and care of LGBTIQA+ people, through the Medical Research Future Fund, and
A new inclusion and equality fund to support LGBTIQ human rights in the Asia-Pacific region, with initial funding of $3.5 million.
On the other hand, the second half of 2022 saw some disappointing losses. This includes the decision by the Government to reject Greens amendments, supported by the cross-bench, to create an LGBTIQA+ Discrimination Commissioner at the Australian Human Rights Commission. Even if the Government believed the Bill being amended at the time (which related to the method of appointment for Commissioners) was the wrong vehicle for these amendments (which is the excuse they used), they have still not committed to introducing their own legislation to establish this stand-alone independent national voice on LGBTIQA+ rights which, based on recent events, is more needed than ever.
Another disappointing loss was the complete exclusion of LGBTIQ groups, and issues, from one of the major set-pieces of the first year of the Albanese Government: the Jobs and Skills Summit. Not only were LGBTIQ organisations not invited to attend the Summit itself, the Government also did not hold any specific consultations with LGBTIQ groups in the lead-up to it (out of more than 100 it conducted). It is therefore no surprise that the outcomes document from the Summit did not address any specific LGBTIQ issues – at a time when many cohorts within the LGBTIQ community experience significant workplace discrimination and exclusion (especially trans and gender diverse workers).
The above wins and losses could, in some respects, be seen as a decidedly mixed scorecard. Instead, I see it as a fundamentally incomplete one – after all, the issues identified are a long way from a comprehensive LGBTIQ agenda. There are many, many more priorities that the Government has not reached an outcome on – including plenty that haven’t even commenced.
Take, for example, one of the few explicit LGBTIQ commitments the Albanese Government took to the May 2022 election: to protect LGBTQ students and teachers in religious schools against discrimination.
In November 2022, Attorney-General Mark Dreyfus asked the Australian Law Reform Commission to undertake an inquiry on this topic, with a deadline of 21 April 2023. Except, the day before the final report of that review was due to be handed to the Government, the ALRC was given an 8-month extension to 31 December. There is really no need for such an extension – especially when this law reform itself is actually quite straight-forward (after all, Tasmania, the ACT, Victoria and NT all already protect both LGBTQ students and teachers).
The outcome of this process is that it is highly unlikely LGBTQ students and teachers will be protected this year, with any amendments not taking effect until well into 2024. As I wrote at the time of this delay in The Canberra Times, it is example of the ways in which the LGBTQ class of 2023 has been comprehensively failed, by Governments of both persuasions.
On a related note, the Government has not made any commitments to remove broader religious exceptions, found in both the Sex Discrimination Act 1984 and Fair Work Act, which allow religious organisations to discriminate against LGBTQ workers, and people accessing services, across health, housing, disability, aged care and other welfare and community services. The majority of these services are funded by us, the taxpayer, including in aged care – meaning the large increases in aged care funding in the recent federal Budget are going to organisations that can use that money to discriminate against LGBTQ workers.
There are a range of other important LGBTIQ policy areas where the Government has not yet taken concrete action, including:
Inclusion in the 2026 Census. While the Australian Bureau of Statistics has started consultation on the questions which should be included in the next Census, the Government has not given an unequivocal promise that questions on sexual orientation, gender identity and sex characteristics will be included. Such questions are necessary to help deliver essential services to our communities – after all, if we are not counted, we do not count.
Medicare funding for gender-affirming health care. Far too many trans and gender diverse Australians still cannot afford what are vital, and in many cases life-saving, health services. Gender-affirming health services should be publicly-funded via Medicare, removing out-of-pocket costs for this community.
Ending non-consenting surgeries on intersex kids. With the ACT Government soon to pass historic legislation banning many non-consenting surgeries and other medical interventions on children born with variations of sex characteristics (the first jurisdiction in Australia to do so), I am unaware of any Commonwealth Government actions to help ensure intersex kids are protected around the country.
Re-introduction of Safe Schools. The Albanese Government continues to fund the National School Chaplaincy Program to the tune of more than $60 million per year (and even though they have formally removed the requirement that these office-holders must be appointed on the basis of religion, the vast majority still are). In contrast, the Government has had two Budgets to date but is yet to find any money to re-introduce what was an effective, and necessary, program against anti-LGBTIQ bullying in schools.
LGBTIQ policy infrastructure. In addition to an LGBTIQA+ Human Rights Commissioner at the AHRC, there is a clear need for a Minister for LGBTIQ Communities, as well as formal consultative bodies in the Department of Prime Minister and Cabinet, as well as portfolios like Health, Education and Attorney-General’s. Currently, none of these exist.
Even on more symbolic matters, the Government’s record is mixed. While in late February Anthony Albanese became the first Prime Minister to march in the Mardi Gras Parade, and also participated in the World Pride March over Sydney Harbour Bridge in early March, these efforts at visible (some might say performative) inclusivity are undone by his apparent aversion to even saying the word transgender, let alone doing the bare minimum to publicly combat the growing culture war against trans and gender diverse Australians.
Speaking of which, it certainly feels like the Government is missing in action as the LGBTIQ community comes under increasing attacks, and even threats of violence, including the TERF and neo-Nazi rally on the steps of Victorian Parliament, the Christian Lives Matter riot in Belfield in Sydney, and the wave of intimidation against Drag Story Time events in Victoria and now elsewhere around Australia.
Local Councils have been left on their own to deal with what is a growing national crisis of far-right extremism, in a way that may not have happened if the targets had been from other communities. This is perhaps illustrated by the Attorney-General’s ill-timed announcement this week of $40 million in ‘Securing Faith-Based Places’ grants, to protect religious schools and places of worship against violence and discrimination.
Without debating the merits of this scheme – and I obviously agree people should be free to worship in safety – it was a mistake to announce this on IDAHOBIT, certainly without providing equivalent funding for LGBTIQ community security against similar (and in some cases, probably the same) extremists. Nor has the Government made any promises to introduce Commonwealth anti-vilification protections for LGBTIQ Australians, despite committing to prohibit religious vilification.
The Albanese Government still enjoys a large amount of public goodwill, including from many LGBTIQ people – at least partly due to the fact it is not the Morrison Liberal/National Government, a dreadful period during which our community came under relentless and sustained attack.
However, simply not being Scott Morrison is not enough as the Albanese Government enters its second year in office. From an LGBTIQ community perspective, they clearly need to do better, and do more, on the issues which affect us.
Oh, and one final thing. I raise the spectre of Scott Morrison here quite deliberately (despite the risk of PTSD, including my own). Because the coming 12 months is also likely to see the Albanese Government introduce its own Religious Discrimination Bill.
As a community we will need to be on high-alert to ensure this legislation protects people of faith against discrimination on the same basis as existing anti-discrimination laws, without permitting lawful discrimination against others, including LGBTIQ Australians. If it does include anti-LGBTIQ provisions, the Government should be in no doubt we will fight against its law just as hard as we fought against Morrison’s Bill.
Anthony Albanese on election night, 21 May 2022.
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Yes, I acknowledge it’s early April (and a lot has already happened this year, including Better Together in Adelaide, Sydney World Pride, TERF tours, neo-Nazi rallies, Christian Lives Matter riots and Mark Latham being, well, Mark Latham ie a homophobic and transphobic bigot).
But there’s still plenty of 2023 yet to come. I would therefore like to take this opportunity to set out what I think are, or should be, some of the law reform priorities for the lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) community in Australia.
Ending non-consenting surgeries and other harmful medical interventions on children born with variations of sex characteristics
The ongoing mistreatment of intersex kids, which includes egregious violations of the fundamental right to bodily autonomy, remains the worst human rights abuses against any part of the LGBTIQ community.
Once passed, the ACT will become the first jurisdiction in Australia to prohibit many of these non-consenting surgeries and other harmful medical interventions.
This achievement obviously reflects the leadership of ACT Chief Minister Andrew Barr, and his Government. But above all, it is a tribute to the relentless advocacy of Intersex Human Rights Australia, its tireless Executive Director Morgan Carpenter, and the intersex community and movement more broadly.
However, even after this historic legislation is implemented, there will remain seven other states and territories where children born with variations of sex characteristics are not protected.
October 2023 will mark ten years since the Final Report of the Senate Inquiry into ‘Involuntary or coerced sterilisation of intersex people in Australia’, which first recommended such surgeries should end. At the current rate – of one jurisdiction legislating every ten years – it will take until 2093 before all intersex children are protected around the country.
That is clearly not good enough. We need the Governments of New South Wales, Victoria, Queensland, Western Australia, South Australia, Tasmania and the Northern Territory to follow the lead of the ACT and urgently introduce their own Bills to outlaw these abhorrent practices.
2. Reforming trans birth certificate laws in NSW, Queensland and WA
It is appalling that, in 2023, trans and gender diverse people in NSW and Queensland are still required to undergo genital surgery in order to update identity documents, including birth certificates, to reflect their gender identity. WA is almost as bad – trans people there must demonstrate they have engaged in some form of physical treatment (which may include genital surgery, top surgery and/or hormone treatment), to do the same.
As with the issue of intersex surgeries, on trans birth certificates we start 2023 with good news – in two of these three jurisdictions anyway.
The Queensland Government has introduced the Births, Deaths and Marriages Registration Bill 2022 which, once passed, will remove all requirements for genital surgery, as well as other forms of medical treatment or approval from psychologists or counsellors. I urge the Queensland Parliament to pass this vital law as quickly as possible.
The WA Government meanwhile has publicly committed to abolish their Gender Recognition Board, and remove the serious barriers which confront trans and gender diverse people who simply want identity documents to accurately reflect their identity. Hopefully, the WA reform Bill can be developed, introduced and passed before the end of this year.
Which just leaves NSW – and, assuming both the above Bills do pass, will leave NSW as the only jurisdiction in Australia which mistreats its trans and gender diverse community in this way.
While March saw a change of Government in NSW, the new Minns Labor Government has not made specific commitments to change the laws here. Their response to a question on this topic in the LGBTIQ pre-election community survey, led by ACON, only noted ‘Labor will review these provisions in consultation with the community and trans and gender diverse communities’.
There is therefore a need for significant community pressure to be applied on the NSW Government to reform trans birth certificate laws as a matter of priority – and that pressure should come not just from the trans and gender diverse community, but also from cisgender allies who support trans human rights.
As at April 2023, only two Australian jurisdictions have prohibited sexual orientation and gender identity conversion practices generally: Victoria and the ACT.
A third, Queensland, has only done so in health settings, which means the places where conversion practices primarily occur – religious settings – are not covered.
Therefore, we need 6 of 8 Australian states and territories to either introduce, or upgrade, bans on conversion practices.
There are signs of movement in at least some of those jurisdictions:
The Western Australian Government promised in December 2022 that it would introduce legislation banning conversion practices (although some of the language used at the time suggested it may follow the flawed Queensland approach, rather than the more comprehensive Victorian and ACT models), and
The Tasmanian Government has also committed to implement the recommendations of a Tasmanian Law Reform Institute inquiry into conversion practices (although there have been some delays in the introduction of its legislation).
Meanwhile, the newly elected Labor Government in NSW sent mixed signals on conversion practices during the recent state election campaign. After first promising to ban conversion practices outright, the now-Premier Chris Minns later indicated it may not apply to religious settings, telling faith leaders that:
‘Taking offence at the teachings of a religious leader will not be banned, expressing a religious belief through sermon will not be banned, and an individual, with their own consent, seeking guidance through prayer will not be banned either.’
Advocates will need to spend considerable time explaining to Minns and his Cabinet colleagues why such a limited ban would be almost pointless in addressing the serious harms caused by conversion practices.
At this stage, I am unaware of current proposals in either South Australia or the Northern Territory to prohibit conversion practices – if you know more, please add the details in the comments section, below.
Let’s hope all six jurisdictions named (NSW, Queensland, WA, SA, Tasmania and the NT) take concrete steps this year to consign conversion practices to history (I was going to add ‘… where they belong’, but really, conversion practices have always been torture, and were never acceptable).
4. Modernising LGBTIQ anti-discrimination laws
2022 ended with two important developments in Australian LGBTIQ anti-discrimination legislation. The first saw the NT Parliament pass a major update to its Anti-Discrimination Act 1992, including covering non-binary and intersex people for the first time, and finally protecting LGBTQ teachers in religious schools against discrimination.
The second was the Commonwealth Government amending the Fair Work Act 2009 to explicitly include gender identity and intersex status as protected attributes for the purposes of adverse action and unlawful termination protections (after more than four years of campaigning, by myself and others, including Intersex Human Rights Australia and Just.Equal Australia).
Nevertheless, there remains a long way to go before the patchwork of our anti-discrimination laws finally ensure all LGBTIQ people, all around the country, can live our daily lives free from the threat of discrimination just because of who we are.
In (the remainder of) 2023, some of the main areas of activity will include:
Commonwealth
At Commonwealth level, the primary focus is obviously the Australian Law Reform Commission inquiry into religious exceptions allowing discrimination against LGBTQ students and teachers at religious schools, which is currently due to report on 21 April. Demanding that any subsequent Bill passed protects students and teachers, without allowing discrimination via alternative means, is essential.
But it is by no means sufficient. We also need to reform religious exceptions under the Sex Discrimination Act 1984more broadly, to ensure LGBTQ people accessing services, and LGBTQ workers, are not discriminated against by faith-based bodies across a range of public services, including health, housing, disability, welfare and other community services. As well as lobbying to include similar reforms to protect LGBTQ workers in the Fair Work Act(which also has incredibly broad religious exceptions), including via the Commonwealth Government’s Employment White Paper process.
New South Wales
Regular readers of this blog will be aware that the NSW Anti-Discrimination Act 1977 is the worst LGBTIQ anti-discrimination law in Australia. It fails to protect bisexual people. And non-binary people. And intersex people. It has the broadest exceptions allowing discrimination against LGBTQ students. And teachers. And the broadest religious exceptions generally. (For more background, see: What’s Wrong With the NSW Anti-Discrimination Act 1977?)
While the previous Government effectively ignored these problems, the new NSW Government has at least agreed to refer the Act to the NSW Law Reform Commission for comprehensive review. This review needs to take place as quickly as possible, as does any legislation which emerges from it, to finally drag the NSW Anti-Discrimination Act into the 21st century.
Queensland
Queensland’s Anti-Discrimination Act 1991 is already much better than NSW’s – and, by the end of 2023, it’s LGBTIQ anti-discrimination laws should move even further ahead (and approach those of Tasmania, Victoria and the ACT which are now the best in the country). That’s because the Bill updating trans birth certificate requirements, described earlier, also modernises the definition of gender identity, to protect non-binary people, and introduces a new protected attribute of sex characteristics.
Even more significantly, the Government has agreed in-principle to all of the recommendations of last year’s review of the Anti-Discrimination Act by the Queensland Human Rights Commission, and vowed to introduce a new Act by the end of this year. That Bill should finally remove the ‘Don’t Act, Don’t Tell’ regime which still applies to LGBTQ teachers in Queensland’s religious schools, and replace it with a system where teachers are judged on their ability, not their sexual orientation or gender identity.
Western Australia
Western Australia has much, much worse LGBTIQ anti-discrimination laws than Queensland – indeed, they are almost as bad as NSW’s – but they are on track to make a great leap forward this year. The WA Government has similarly accepted the recommendations of its own Law Reform Commission review of the Equal Opportunity Act 1984, including to ensure all trans and gender diverse people, as well as intersex people, are finally covered, and to modernise its approach to religious exceptions, including to protect LGBTQ students and teachers in religious schools. This legislation needs to be introduced and passed as a matter of priority – because LGBTIQ people in WA have waited for far too long already to enjoy effective anti-discrimination laws.
South Australia
The only Australian jurisdiction which does not already unequivocally protect LGBTQ students and teachers in religious schools against discrimination and which also does not have at least a process in place (or promised) that could lead to these exceptions being removed is South Australia. It’s time for the South Australian Government to take urgent steps to remedy this situation.
The same NT laws which modernised their Anti-Discrimination Act 1992 also prohibited vilification there for the first time through the introduction of new section 20A, which provides:
‘A person must not do an act that (a) is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and (b) is done because of an attribute of the other person or of some or all of the people in the group.’
Despite this positive development, there are still four Australian jurisdictions which do not prohibit anti-LGBTIQ vilification in any way: the Commonwealth, Victoria, Western Australia and South Australia.
Of these, the WA Law Reform Commission review of the Equal Opportunity Act 1984 recommended that anti-LGBTIQ vilification should be prohibited, so hopefully this gap will be addressed this year.
While the Victorian Government has a long-standing commitment to introducing anti-LGBTIQ vilification laws, a commitment which seems to have been revived following the recent TERF and neo-Nazi rally on the steps of Victorian Parliament.
Indeed, the events of the past few months, including that TERF tour and neo-Nazi demonstration, as well as the Christian Lives Matter riot in Sydney and Mark Latham’s potentially vilifying, and definitely homophobic, tweets, have reiterated the need for vilification protections nation-wide, meaning the Commonwealth and South Australia Governments must address this menace too.
6. Creating an LGBTIQA+ Commissioner at the Australian Human Rights Commission
The disturbing events of the past few months have confirmed one of the other major holes in Australia’s LGBTIQ rights framework – the absence of a dedicated LGBTIQA+ Human Rights Commissioner at the Australian Human Rights Commission (AHRC).
While there are existing Commissioners for Race, Sex, Disability, Age, Children, and Aboriginal and Torres Strait Islander Social Justice, there is no stand-alone, independent office-holder with primary responsibility for advocating on issues affecting the LGBTIQA+ community.
This gap meant there were many missed opportunities for commenting on, educating about and generally advancing the rights of LGBTIQA+ Australians when those same rights came under sustained attack.
In my view, it is simply not good enough to ask the Sex Discrimination Commissioner to take on additional responsibility for sexual orientation, gender identity and intersex human rights issues within the AHRC with whatever spare capacity they have left after addressing discrimination against women (hint: not much).
Indeed, as far as I can tell, there have been exactly zero media releases and/or news items on the Commission’s website about the awful attacks on our community over the past month (while the LGBTI section of the website has not been updated since October 2021).
Please note, this is not a criticism of the many good people who work at the Commission. It is simply an inevitable consequence of the severe structural weakness of a model where LGBTQA+ rights are only ever an add-on to someone else’s existing role.
It is beyond time for this structural weakness to be remedied, by the creation and appointment of an LGBTIQA+ Commissioner at the AHRC.
7. Supporting LGBTIQ refugees and people seeking asylum
This priority is both a law reform issue, and something where policies need to be improved and increased funding provided. Australia’s abhorrent refugee laws also obviously harm all people seeking asylum, rather than just LGBTIQ people. In that context, it should be stated that mandatory detention, and off-shore processing, must both be ended for all people seeking asylum.
However, there are some issues which do have a particular impact on LGBTIQ people seeking asylum, including that Australia’s off-shore processing scheme could still involve sending LGBTIQ refugees to Papua New Guinea, a country where male homosexuality remains criminalised (and from which all refugees should be repatriated to Australia).
Our processes for the intake of people seeking asylum are still not suitably tailored to deal with the needs of LGBTIQ people, and in my view we should be increasing the intake of LGBTIQ refugees from countries which are newly–criminalising same-gender sexual activity (including Uganda).
Finally, Australia needs to better support the LGBTIQ refugees and people seeking asylum who are in Australia, including by funding dedicated LGBTIQ refugee support services and the LGBTIQ refugee peak body, Forcibly Displaced People Network (FDPN).
8. Supporting the Voice to Parliament at the upcoming referendum
Even after writing just that heading, I can already hear some people respond: ‘But that isn’t an LGBTIQ issue.’
Except that all LGBTIQA+ people living in Australia are either First Nations LGBTIQA+ people, including brotherboys and sistergirls, or non-Indigenous LGBTIQA+ people living on Aboriginal land.
Meaning all of us have an interest in supporting reconciliation and, in my personal view, the best chance we have of making progress on that in 2023 is by supporting the generous invitation extended by First Nations people through the Uluru Statement from the Heart, which includes commitments to the three inter-related pillars of Voice, Treaty and Truth.
The first step in making that happen is by campaigning, and voting, for a constitutionally-enshrined Voice when it is the subject of a referendum later this year.
LGBTIQA+ Australians, as the community most-recently subjected to a national public vote on our human rights, also have an intimate understanding of what it is like to be at the centre of this type of debate, including consistent attacks from extreme-right politicians and the Murdoch press.
My sincere hope is that many non-Indigenous LGBTIQA+ Australians demonstrate solidarity with LGBTIQA+ First Nations people, and Indigenous people more broadly, by supporting the Voice as it too is attacked by the same people who attacked us. In other words, Vote Yes.
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The next 12 months will be important in the history of LGBTIQ law reform in Australia.
There is the genuine possibility of long-overdue progress finally being made on key LGBTIQ human rights issues, at least in some jurisdictions.
At the same time, there is a real risk rights will be stripped away from our community, under Commonwealth law, in NSW and potentially elsewhere.
This post discusses five LGBTIQ law reform issues which, in my view, must be high priorities in 2022.
Please note before we start that a) they are *not* listed in order of priority and b) this list is by no means exhaustive – there is still a long way to go on the road to genuine legal and substantive equality for lesbian, gay, bisexual, transgender, intersex and queer Australians.
Stopping the Commonwealth Religious Discrimination Bill
The Morrison Government introduced the Religious Discrimination Bill 2021 into Commonwealth Parliament at the end of last year, and will attempt to pass it before the federal election in May.
It must be stopped before it inflicts significant harm on women, LGBT people, people with disability and people of minority faiths, among many other members of the Australian community.
The Bill takes away existing protections under all Commonwealth, state and territory anti-discrimination laws, including the best practice Tasmanian Anti-Discrimination Act 1998, in order to allow offensive, humiliating, insulting and ridiculing comments, as long as they are motivated by religious belief.
This will obviously include legal protection for a wide range of demeaning and derogatory speech that is homophobic, biphobic and transphobic.
The Bill also introduces ‘religious exceptions’ that are far broader than any other Commonwealth, state and territory anti-discrimination law, both in the excessive scope of the organisations covered, and by adopting a test to determine whether these organisations are allowed to discriminate that is much, much more lenient than any other law.
The people at most risk are Muslim, Jewish, Buddhist, Hindu, agnostic and atheist employees of publicly-funded religious schools, hospitals, aged care facilities, housing and disability service providers.
However, these extraordinary exceptions will also be used to discriminate against LGBT students and teachers in religious schools. This discrimination will be done ‘under the guise of religious views’ – on the basis of a student’s or teacher’s religious beliefs about sexual orientation and gender identity, rather than on those attributes directly – but the outcome is still the same: LGBT kids and workers being legally discriminated against.
In my view, the worst human rights violations currently occurring against any part of the Australian LGBTIQ community are coercive surgeries and other non-consensual medical interventions on children born with variations in sex characteristics.
There is no justification for the ongoing contravention of the right to bodily integrity for intersex children.
Nor is there any excuse for the fact that, as at February 2022, no Australian Government has legislated to ban these human rights abuses. Especially when ending these practices was first recommended by a bi-partisan Senate Committee way back in October 2013.
Thankfully, 2022 might be the year progress is finally achieved, with the ACT Government committing to introduce legislation in the first half of the year. The Victorian Government has also promised to end these practices, although it is unclear whether they will take action before the state election in November 2022 (and would be incredibly disappointing if they didn’t).
There have been reports in other jurisdictions, including a 2020 Tasmanian Law Reform Institute Inquiry report, and a 2021 report from the Australian Human Rights Commission. But, really, the time for reports is over. It’s time for all states and territories, as well as the Commonwealth Government, to take concrete steps to end these human rights violations.
To stay up to date, follow Intersex Human Rights Australia on twitter and facebook and check out their website where you can donate if you have the capacity.
3. Removing barriers to identity documents for trans and gender diverse people
In 2022, there are still two Australian jurisdictions that require transgender people to have genital surgery in order to access birth certificates and other identity documents which reflect their gender identity: New South Wales and Queensland.
One other jurisdiction, Western Australia, requires transgender people to have physical medical treatments before updating their identity documents.
This situation is simply not good enough.
Trans and gender diverse people must be allowed to update their birth certificates on the basis of self-identification alone, without the need for surgery or other physical medical treatments, and without the need for doctors or other medical gate-keepers like counsellors or psychologists to ‘approve’ their identity.
And obviously all jurisdictions must provide recognition for gender identities beyond the binaries of male and female.
In good news, the Queensland Government has promised to take action on this issue early this year. While the Western Australian Government is sitting on a 2018 WA Law Reform Commission report which recommended sweeping changes to their laws.
Meanwhile in NSW? Nothing. No signs of progress. At all. Which will be incredibly embarrassing in February and March 2023, as Sydney plays host to World Pride, with what will likely be the worst birth certificate laws in the country.
NSW is also the site of one of the worst attacks on LGBTI rights in Australia this century: Mark Latham’s Education Legislation Amendment (Parental Rights) Bill 2020.
This legislation would effectively erase trans and gender diverse children from classrooms and schoolyards across the state. Teachers and principals would be liable to be dismissed simply for acknowledging the existence of trans and gender diverse people, while the kids themselves would be left completely on their own, exposed to bullying, and without the life-saving support of school counsellors.
Other LGBT students would also suffer, with the Bill including a provision based on the infamous section 28 from Thatcher-era Britain, which harmed a generation of LGBT kids before being abandoned two decades ago. And there’s an offensive and stigmatising definition of intersex in the Bill, too.
A Committee chaired by Mark Latham himself recommended core parts of the Bill be implemented as policy in NSW (with other recommendations going even further, such as banning trans girls from using bathrooms matching their gender identity). Disappointingly, all three Coalition MPs, and one of the two Labor MPs, on that Committee, supported these recommendations.
The NSW Government, and new(ish) Premier Dominic Perrottet, must respond to this Committee report by 7 March (ie the Monday after Mardi Gras). There is a very real risk NSW will introduce changes this year that would not look out of place in Republican-heartland USA. This disgusting transphobic attack on vulnerable kids must be resisted.
Rather than simply defending our existing anti-discrimination laws from attack (see the Religious Discrimination Bill, above), we need to also take urgent action to address many of the serious short-comings of Australia’s current LGBTI anti-discrimination framework.
Indeed, both the Commonwealth Sex Discrimination Act 1984, and the laws of most – although not all* – states and territories should be significantly improved. This includes:
Commonwealth
The Sex Discrimination Act 1984 (Cth), should be amended to:
Replace the protected attribute of ‘intersex status’ with ‘sex characteristics’
Remove religious exceptions which allow religious organisations to discriminate against LGBT workers and people accessing services, including LGBT students, teachers and other staff at religious schools
Prohibit vilification on the basis of sexual orientation, gender identity and sex characteristics, and
Create a Discrimination Commissioner with responsibility for sexual orientation, gender identity and sex characteristics.
The Fair Work Act 2009 (Cth) must also be amended to explicitly cover gender identity and sex characteristics – currently, it only mentions sexual orientation, meaning protections for trans, gender diverse and intersex employees are not guaranteed.
New South Wales
The Anti-Discrimination Act 1977 (NSW) is the worst LGBTI anti-discrimination law in Australia, and needs significant modernisation, including:
Protect bisexual people against discrimination by replacing the protected attribute of ‘homosexuality’ with ‘sexual orientation’ (NSW is the only jurisdiction in Australia that currently does not protect bisexuals)
Protect non-binary people against discrimination by replaced the protected attribute of ‘transgender’ with ‘gender identity’
Protect intersex people against discrimination by introducing a protected attribute of sex characteristics
Remove specific exceptions which allow all private schools, colleges and universities (religious and non-religious alike) to discriminate against LGBT students and staff
Remove specific exceptions which allow discrimination by religious adoption agencies
Remove the general religious exceptions which allow religious organisations to discriminate against LGBT workers and people accessing services, and
Ensure prohibitions on vilification apply to all of sexual orientation, gender identity and sex characteristics.
Victoria
Recent amendments to the Equal Opportunity Act 2010 (Vic), which have yet to take effect, mean many problems there have already been addressed (although the Commonwealth Religious Discrimination Bill could strip away hard-won protections from LGBT teachers and other staff in religious schools, before they even commence).
However, the major outstanding item of business is the introduction of prohibitions on anti-LGBTI vilification (something which has already been considered by a Parliamentary Committee, and the Government has committed to do, but is awaiting implementation).
Queensland
The Anti-Discrimination Act 1991 (Qld) could be improved in several key areas, including:
Introduce a protected attribute of sex characteristics, for both discrimination and anti-vilification
Update the definition of ‘gender identity’ to ensure non-binary people are protected against discrimination
Amend the religious exceptions applying to LGBT teachers and other staff in religious schools, to remove the ‘Don’t Ask, Don’t Tell’ approach and replace it with stronger protection (noting that LGBT students are already protected)
Remove the general religious exceptions which allow other religious organisations to discriminate against LGBT workers), and
Remove the specific exception which allows discrimination against transgender employees where the job involves working with children (s28(1), which is particularly abhorrent).
Fortunately, the Queensland Human Rights Commission is currently undertaking a review of discrimination protections under the Act, while a Parliamentary Committee has recently recommended updating its anti-vilification protections.
Western Australia
The Equal Opportunity Act 1984 (WA) is probably second only to NSW in terms of worst LGBTI anti-discrimination legislation in Australia. It desperately needs amendments, including:
Protect intersex people against discrimination by adding a protected attribute of sex characteristics
Replace the current extremely-limited transgender protections (which only cover people who have had their gender identity recognised by the Government, and which is therefore restricted to people who have had genital surgery) with the much broader protected attribute of ‘gender identity’
Remove religious exceptions which allow religious organisations to discriminate against LGBT workers and people accessing services, including LGBT students, teachers and other staff at religious schools, and
Prohibit vilification on the basis of sexual orientation, gender identity and sex characteristics.
The Western Australian Law Reform Commission is currently undertaking a review of the Equal Opportunity Act.
South Australia
The Equal Opportunity Act 1984 (SA) could be improved in a number of ways, such as:
Replace the protected attribute of ‘intersex status’ with ‘sex characteristics’, while amending its religious exceptions to ensure they do not permit discrimination on this attribute
Clarify that the religious exceptions are not intended to allow discrimination against LGBT students in religious schools
Remove other religious exceptions which allow religious organisations to discriminate against LGBT workers and people accessing services, including LGBT teachers and other staff at religious schools, and
Prohibit vilification on the basis of sexual orientation, gender identity and sex characteristics.
Australian Capital Territory
The Discrimination Act 1991 (ACT) is the second best LGBTI anti-discrimination law in Australia. There is one major reform outstanding – removing the ability of religious organisations, other than schools, to discriminate against LGBT workers and peoples accessing their services (noting that LGBT students, teachers and other staff in religious schools are already protected against discrimination).
Thankfully, the issue of religious exceptions is currently under review by the ACT Government.
Northern Territory
Unlike the ACT, the Anti-Discrimination Act (NT) has fallen well behind best practice, and requires significant updating to:
Replace the current definition of ‘sexuality’ (which erroneously includes ‘transsexuality’) with a protected attribute of ‘sexual orientation’
Protect trans and gender diverse people against discrimination by adding a protected attribute of ‘gender identity’
Protect intersex people against discrimination by adding a protected attribute of ‘sex characteristics’
Remove religious exceptions which allow religious organisations to discriminate against LGBT workers and people accessing services, including LGBT teachers and other staff at religious schools (noting that LGBT students are already protected), and
Prohibit vilification on the basis of sexual orientation, gender identity and sex characteristics.
*Observant readers would note the Tasmanian Anti-Discrimination Act 1998 is not included in this list, because it is already close to best practice on these key points (protected attributes, religious exceptions and anti-vilification prohibition).
In my opinion, these five LGBTIQ law reform issues should be high priorities in 2022. However, as well as being placed in no particular order, I would also reiterate this list is by no means exhaustive either.
Other important LGBTIQ law reform priorities include ensuring that states and territories other than Victoria and the ACT prohibit sexual orientation and gender identity conversion practices (including making sure the partial ban in Queensland is extended beyond health care settings).
Nor is law reform the only necessary pre-condition for substantive equality for LGBTIQ people, which must also be achieved through a variety of other measures, not least of which is funding (such as providing no-cost access via Medicare for gender identity-related health care, including full coverage of transition expenses).
Anyway, as with previous years, our agenda is big but our ambition, and determination, are bigger. Let’s get to work to make a better future for LGBTIQ Australians.
If you have enjoyed reading this article, please consider subscribing to receive future posts, via the right-hand scroll bar on the desktop version of this blog or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus
[NB This article is written in a personal capacity and does not represent the views of employers, past or present.]