Bill Shorten, It’s time to honour your commitment on marriage equality

Posted on November 12, 2017 by Alastair Lawrie

The following is my open letter to Opposition Leader Bill Shorten, ahead of the announcement of the postal survey result this Wednesday (15 November) and likely subsequent parliamentary consideration of marriage equality legislation:

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On 31 March 2016, you attended a panel event called ‘Why Knot?’ in Redfern, co-hosted by the Guardian Australia and Australian Marriage Equality.

At the end of that forum, during the Q&A session, I asked you the following question:

“There is a real risk that, when Malcolm Turnbull finally gets around to drafting it, his Marriage Amendment Bill will seek to include new special rights for civil celebrants and other wedding business-providers to discriminate against LGBTI couples. Just to get it on the record: Mr Shorten, will you commit the Labor Party to voting against any attempts to expand religious exceptions beyond existing provisions and, if they do somehow end up being passed and polluting the Marriage Act, will you seek to repeal them at the earliest available opportunity?”[i]

Your answer: “Yes, and yes.”

As reported by the Guardian, you went on to state: “It’s not allowed under the current law – why would we water down existing laws? We don’t need to water down anti-discrimination law to keep some people [who oppose same-sex marriage] happy.”

You were right then.

You were right because this reform, marriage equality, is about removing discrimination against people on the basis of their sexual orientation, gender identity or sex characteristics. One form of discrimination should not simply be replaced by another.

You were right because protections for ‘religious freedom’ that are only introduced when LGBTI couples might finally have the opportunity to wed should be seen for what they are: attempts to legitimise homophobia, biphobia and transphobia.

You were right because the vast majority of LGBTIQ Australians do not want our long desired, long fought for and long overdue equal right to marry undermined by new special privileges to discriminate against us – with research at the start of 2017 confirming that:

“81% of the 6,352 LGBTIQ adult Australians taking part in this survey were strongly opposed to potential new laws making it legal for individuals and organisations to refuse their services to same-sex couples, based on personal conscience or religious belief.”

And you were right because four-in-five Australians agree, with a poll earlier this month reporting that:

“In response to the question, ‘If the majority vote ‘yes’ in the postal survey, should same-sex couples be treated the same under the law compared with other couples?’, 78% of respondents said yes. This figure consisted of 98% of respondents who said they had voted ‘yes’, and also 43% of those who said they had voted ‘no’.”

You were right then. Are you still right now? Specifically, will you, and the Labor Party, do the right thing when marriage equality legislation is likely considered by Commonwealth Parliament in the coming weeks and months?

I ask this question because I am extremely disappointed by reports that the Labor Caucus has already decided to support Liberal Senator Dean Smith’s Marriage Amendment (Definition and Religious Freedoms) Bill 2017, describing it as an ‘acceptable compromise’.

This is despite the fact his draft legislation:

Permits existing civil celebrants to discriminate against LGBTI couples by nominating to become ‘religious marriage celebrants’ based on nothing more than their personal beliefs [section 39DD(2)], and
Unnecessarily duplicates exceptions from the Sex Discrimination Act within the Marriage Act itself, allowing religious bodies that offer wedding-related facilities, goods and services to the public to turn away LGBTI couples [section 47B].

Both of these provisions appear to be matters you either explicitly or implicitly rejected in your answer at that forum in Redfern just over 19 months ago.

I urge you to reconsider your, and your Party’s, position on the Smith Bill, not just because of your previous commitment to me and to that audience, but also because of the principle that marriage equality should be exactly that: equal. The weddings of LGBTI Australians, when they are finally made legal, must not be subject to any extra terms and conditions than those that already exist.

At the very least, I believe you should develop amendments to remove both of the above provisions from the Smith Bill prior to its potential passage.

I am sure you are also aware of reports that conservatives within the Liberal and National Parties are busy preparing their own amendments to the Smith Bill that would extend discrimination against lesbian, gay, bisexual, transgender and intersex people across a wide range of areas of public life.

It is incumbent upon you, and every member of the parliamentary Labor Party, to vote against every amendment that seeks to perpetuate the second-class treatment of LGBTI Australians, our relationships and our families.

In this context, the debate around marriage equality legislation will be an opportunity for you to show, once again, the leadership on this issue that Prime Minister Malcolm Turnbull will not.

You stood with the LGBTI community against the unnecessary, wasteful and divisive plebiscite in October 2016.

You stood with the LGBTI community again, earlier this year, against the equally unnecessary, wasteful and divisive (and arguably illegitimate) postal survey.

When the survey went ahead, you stood with the LGBTI community a third time by campaigning to help win the public vote.

Please stand with us now by voting to ensure any Bill that is passed represents genuine marriage equality, not just same-sex marriage subject to additional discrimination.

It’s time to honour your commitment, to me, to LGBTI Australians, and to every person who has voted Yes to the equal treatment of equal love.

Sincerely,

Alastair Lawrie

Will Opposition Leader Bill Shorten support genuine marriage equality?

Footnotes:

[i] I recorded the question shortly thereafter – and published it in April 2016 in the following article: In the battle for marriage equality, we must not forget to fight against religious exceptions.

The push for new exceptions in the Marriage Act is homophobic. Here’s why.

Posted on November 11, 2017 by Alastair Lawrie

Voting in the same-sex marriage postal survey has now closed. Based on the widely-held assumption that the majority of Australians have voted Yes, discussion has now turned to what amendments will be made to the Marriage Act to implement this outcome.

Conservatives who have opposed marriage equality throughout this process, including the Australian Christian Lobby and many Liberal and National Party MPs and Senators, are now arguing that any change to the law must include new exceptions providing a broad range of special privileges to discriminate against LGBTI couples.

As WA Liberal MP Ian Goodenough has publicly acknowledged: “[t]he focus will be in the area of preserving parental rights, freedom of speech, and institutional considerations such as curriculum in schools, access to reproductive technology, correctional facilities, etc…”

This is on top of those new exceptions already included in Liberal Senator Dean Smith’s Marriage Amendment (Definition and Religious Freedom) Bill 2017, which, as I have written elsewhere, would:

Permit existing civil celebrants to nominate to become ‘religious marriage celebrants’ so they can avoid marrying LGBTI couples,
Duplicate exceptions from the Sex Discrimination Act within the Marriage Act itself, allowing religious bodies that offer wedding-related facilities, goods and services to the public to turn away LGBTI couples, and
Reinforce the ability of military chaplains, who are public servants, paid for with taxpayers’ money, to refuse to perform the marriage ceremonies of LGBTI personnel serving within the ADF.[i]

The supposed justification for these new exceptions? That they are essential to protect the ‘religious freedom’ of people who object to marriage equality on the basis of their personal faith.

Which is, to put it bluntly, bollocks.

The coordinated campaign for new exceptions in the Marriage Act has very little to do with ‘religious freedom’. This push is primarily, almost exclusively, about legitimising homophobia, biphobia and transphobia.

This motivation can be seen through one simple comparison – how the Marriage Act has treated divorced couples remarrying over the past four decades versus how conservatives are proposing LGBTI couples should be treated now.

After all, there are a variety of religious beliefs about divorce and remarriage, just as there is a range of religious perspectives about marriage equality. The single largest religious organisation in Australia – the Catholic Church – remains staunchly opposed to both. Other faith groups support both.

So, if there are individuals and groups with strong views about, specifically against, divorce and remarriage, surely the Marriage Act will already contain special privileges allowing discrimination against people having second, or subsequent, weddings?

Well, no actually.

Even following the introduction of ‘no fault’ divorce as part of the Family Law Act reforms in 1975, the Marriage Act was not amended to provide civil celebrants with the ability to discriminate against people remarrying. Nor were military chaplains given ‘strengthened’ powers to refuse to perform the marriage ceremonies of ADF personnel tying the knot for the second time.

The inconsistent treatment of divorced people remarrying and LGBTI couples is demonstrated even more powerfully by considering the introduction of the Sex Discrimination Act 1984.

As well as prohibiting discrimination on the basis of sex, from its very beginning this legislation has protected people against discrimination on the basis of their ‘marital status’, an attribute that was originally defined as:

“the status or condition of being-

(a) single;

(b) married;

(d) divorced;

(e) widowed; or

(f) the de facto spouse of another person…” [emphasis added].

Discrimination on the basis of ‘marital or relationship status’ remains prohibited under the Sex Discrimination Act today.

Which means that, for 33 years, the Marriage Act has happily coexisted with legislation that prohibits discrimination against divorced people remarrying – including discrimination by civil celebrants.

For 33 years, there has apparently not been a need to duplicate exceptions from the Sex Discrimination Act within the Marriage Act allowing religious bodies that offer wedding-related facilities, goods and services to the public to turn away couples wishing to remarry.

For 33 years, there has been no massive campaign to ‘preserve parental rights, freedom of speech, and institutional considerations such as curriculum in schools’ about divorce and remarriage.

At no point during this time, not when marriage equality was originally banned by the Howard Government in August 2004, or even when the same Government had a majority in both houses of parliament between 2005 and 2007, has there been a concerted push to amend the Marriage Act to protect the ‘religious freedom’ of people who object to divorce and remarriage on the basis of their personal faith.

So, why now? If it was not necessary to protect ‘religious freedom’ following the introduction of no fault divorce more than four decades ago, nor at any point since the prohibition of discrimination on the basis of marital status more than three decades ago, why is it suddenly necessary to defend ‘religious freedom’ today?

The logical conclusion – in my view, the only possible conclusion – is that the changes being put forward, in Dean Smith’s Marriage Amendment (Definition and Religious Freedoms) Bill, and by others like his Coalition colleague Ian Goodenough, are not actually about religious freedom at all.

If these amendments are only being put forward now that lesbian, gay, bisexual, transgender and intersex Australians might finally have the opportunity to legally marry, then their intended purpose appears to be: to legitimise discrimination against LGBTI couples.

These provisions are inherently homophobic. And biphobic. And transphobic, too.

People arguing for ever-widening exceptions in the Marriage Act can dress their proposals up in all the fine language they want. But they cannot hide the naked truth: such amendments are just homophobia in a fancy frock.

It is simply not good enough for the long desired, long fought for, and long overdue introduction of marriage equality to be undermined by the inclusion of religious exceptions that will, in practice, perpetuate discrimination against LGBTI couples.

Equal should mean equal – and that means LGBTI couples marrying in the future should be treated exactly the same as divorced people remarrying are now.

Liberal MP Ian Goodenough, whose proposed amendments to the Marriage Act are definitely not good enough for LGBTI Australians.

Footnotes:

[i] It should be noted that Smith’s Bill also permits increased, or strengthened, discrimination against other groups, including divorced people remarrying. This is to avoid criticisms of Senator Brandis’ 2016 Exposure Draft Marriage Amendment (Same-Sex Marriage) Bill, which explicitly discriminated against same-sex couples. It is unlikely that many divorced Australians understand they could theoretically be discriminated against as a result of the Smith Bill. Then again, they probably shouldn’t worry too much – the timing of the introduction of these amendments, and the public debate surrounding them, confirm that LGBTI Australians are the real target.

Wedding Dates and Mandates

Posted on November 5, 2017 by Alastair Lawrie

Centennial Park, Sydney.

A couple of weeks ago, my fiancé Steven and I were walking around Centennial Park in Sydney when we started discussing possible wedding dates.

That shouldn’t be remarkable: an engaged couple talking about the timing of their nuptials. Except it was probably the first time in about five years that we seriously considered when and where we might hold our ceremony.

The previous conversation coincided with the last proper vote on marriage equality in Commonwealth Parliament – way back in September 2012. But now, with the same-sex marriage postal survey drawing to a close, there is a real prospect that marriage equality might finally become law in the months ahead.

Of course, there are some major hurdles still to overcome before Steven and I start booking venues and sending out save-the-date cards.

The first, and most obvious, hurdle is that the Australian Bureau of Statistics must announce a majority Yes result at 10am on Wednesday 15 November, just ten days from now.

Assuming that outcome is favourable, the second hurdle is for our 226 parliamentarians to pass legislation to respect the wishes of the Australian population.

That part should be relatively straight-forward – amending the Marriage Act to make the definition of marriage inclusive of LGBTI couples, and to recognise the marriages of thousands of couples that already exist.

But it is highly likely the debate around what should be included in, and excluded from, a marriage equality bill will be just as divisive as the postal survey that preceded it, if not more so.

That is because the same groups who have steadfastly opposed the equal recognition of LGBTI relationships, including the Australian Christian Lobby and conservatives within the Coalition, are now arguing that any bill to introduce marriage equality must be weighed down by new special privileges allowing discrimination against us across multiple spheres of public life.

As reported by news.com.au these changes: “could include lessening hate speech laws, axing legislation that gives same-sex parents the same rights as straight parents, barring gay couples from accessing IVF and allowing parents to remove kids from any school lesson that even fleetingly mentions gay people. There is also the prospect of businesses being given the green light to refuse to serve anyone who is gay, not just those organising same-sex weddings.”

The introduction of such amendments would fundamentally alter the purpose of the legislation being debated. It would no longer be a marriage equality bill, it would instead be a bill to promote discrimination against LGBTI Australians, where expanding the right to marry would be purely incidental.

Obviously, these changes must be resisted, and resisted strongly, which means it will once again fall to LGBTI Australians, and our allies, to argue for the equal treatment of our relationships.

Once again, we have the arguments on our side. From the principle that secular law should not discriminate against people on the basis of their sexual orientation, gender identity or sex characteristics, to the ideal of a fair go which means one form of discrimination should not simply be replaced by another.

We must also highlight the inconsistency of those claiming these rights to discriminate are necessary to protect ‘religious freedom’ – if they have not historically been required to allow discrimination against divorced couples remarrying, they are not necessary to permit discrimination against same-sex couples now.

But there is another argument against the introduction of these new special privileges to discriminate that I would like to talk about, and that is the theory of political mandates (I know, I know, this is far less romantic than discussing possible wedding dates, but please hear me out).

For those who don’t know, a mandate is defined as ‘the authority to carry out a policy, regarded as given by the electorate.’

In this case, the Australian electorate has just participated in a $122 million, three month long, nation-wide postal survey to determine whether it supports same-sex marriage. If the result is Yes, as is widely-expected, what does that mean for the ‘mandate’ of the Government, and the Parliament more broadly?

There is a mandate for same-sex marriage

The first, and least controversial, outcome is that, if the population has voted yes, there is a clear mandate for Parliament to introduce amendments that allow all lesbian, gay, bisexual, transgender and intersex Australians to marry. Not even Lyle Shelton could argue against that (well, he might try, but should be ignored).

There is no mandate for new special privileges to discriminate against same-sex couples

On the other hand, a Yes vote does not provide the Government or Parliament with a mandate to introduce new special privileges allowing individuals and organisations to discriminate against LGBTI couples.

Why? Because of the question that Australians were asked to answer: ‘Should the law be changed to allow same-sex couples to marry?’

What is not there is just as important as what is. There were no asterisks at the end of the question, no footnotes on the survey form saying ‘different terms and conditions apply’.

Nor were there any extra clauses – it did not ask whether the law should be changed to allow same-sex couples to marry subject to additional rights to discriminate against them.

The absence of asterisks, terms and conditions or extra clauses on the postal survey question means Parliament does not have a mandate to introduce asterisks, terms and conditions or extra clauses to our equality in the Marriage Act.

Indeed, this point was (inadvertently) conceded by former Prime Minister John Howard in September, when he called for current Prime Minister Malcolm Turnbull to release details of the Bill it would put forward in the event of a Yes vote:

“On the evidence to date, it would seem that the only protections in that bill will not go much beyond stipulations that no minister, priest, rabbi or imam will be compelled to perform a same-sex marriage ceremony… It is precisely because parliament should reflect the will of the people that the people are entitled to know what, if anything, the government will do on protections before they vote.”

The fact the Turnbull Government did not put forward any official legislation means, by Howard’s own rationale, it does not have a mandate to introduce new special privileges to discriminate against LGBTI couples.

No asterisks, terms and conditions or extra clauses – the postal survey only asked whether same-sex couples should be allowed to marry.

There is a mandate for marriage equality

The wording of the postal survey question means a Yes vote does provide the Parliament with a mandate to introduce genuine marriage equality. In fact, I would argue they have an obligation to do exactly that.

Unless the question specifically stated that same-sex couples would be treated as lesser than cisgender heterosexual couples are now – which, as we have seen, it did not – then the logical inference is that they would and should be treated the same.

And that is exactly how the question was interpreted by the Australian population.

As reported by Buzzfeed this week, a Galaxy poll: “canvassed 1,000 Australians on their views on same-sex marriage from October 26 to 30.

“This figure consisted of 98% of respondents who said they had voted ‘yes’, and [even] 43% of those who said they had voted ‘no’.”

As noted by PFLAG’s Shelley Argent in the same article: “This poll couldn’t be clearer. Australians want marriage equality and we want it without any of the caveats and exemptions that will further entrench discrimination against same-sex couples.”

And so, if the outcome of the postal survey on 15 November is a Yes, then the message to our Parliamentarians will be unambiguous – they should provide LGBTI Australians with the right to marry, and they must do so on exactly the same terms as it is enjoyed by cisgender heterosexual couples today.

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Nobody should underestimate the scale of the challenge that lies ahead of us. Even if we win the postal survey in ten days time, the debate that follows, about what same-sex marriage looks like in practice, is going to be a messy one.

Our opponents will fight just as hard, and just as dirty, as they have over the past few months. We will need to rely once more on our patience, our passion and our principles to win.

It is also unclear how long this debate will last. While some express the hope that marriage equality could be passed by Christmas, it is possible that this process will take several months to resolve, lasting well into 2018. There is even the chance that same-sex marriage is not passed this term, because the legislation that is put forward has to be rejected as it falls short of true equality.

All of which means that, while Steven and I have (re)started our discussion about possible wedding dates, we still have no clear idea when that might ultimately be.

But I do know this: when I asked him to marry me on that January day in Melbourne almost eight years ago, there were no conditions attached. When Steven and I finally get married, there shouldn’t be any conditions attached either.

Not so fast. Dean Smith’s Marriage Bill is deeply flawed.

Posted on October 29, 2017 by Alastair Lawrie

Over the past fortnight, there has been increasing discussion about what marriage equality might look like in practice. Based on the widely-held assumption that a majority Yes vote will be announced by the Australian Bureau of Statistics (ABS) on Wednesday 15 November, there appears to be a co-ordinated push to ‘unite’ behind Liberal Senator Dean Smith’s Marriage Bill.

This includes the decision by the Labor caucus, on Tuesday 17 October, that it will support Smith’s Bill being passed as quickly as possible after the conclusion of the postal survey.

This was almost immediately followed by an opinion piece from Alex Greenwich and Anna Brown of Australian Marriage Equality describing Smith’s Bill as ‘a game changer’ and claiming that ‘[i]t would deliver equality for same-sex couples and it also ensures that faith communities can continue to celebrate religious marriage.’

One state-based gay and lesbian rights lobby even went so far as to declare Senator Smith’s draft legislation – which, let’s not forget, hasn’t even been introduced into Commonwealth Parliament yet – as ‘the only legitimate bill.’

In response to these developments, I had two equally-strong reactions.

The first was to say ‘not so fast’. Voting in the postal survey was still well underway, so to presume victory, and to start discussing how it might be implemented, could be seen as hubris, as well as confusing what should have been the one and only message of the Yes campaign – to #postyouryes.

It is for this reason that I chose not to write about this topic (what marriage equality legislation should look like) until after Friday 27 October, the date by which the ABS recommended people post their ballots in order to ensure they are counted.[i]

My second reaction was also to say ‘not so fast’, only this time in relation to the substance of Smith’s Bill. And that is because his draft legislation might give us marriage, but it will not deliver marriage equality.

In fact, on closer analysis it is a deeply flawed Bill. From the title: the Marriage Amendment (Definition and Religious Freedoms) Bill 2017 (notice what word is missing?). To its apparent purpose: to appease conservative Liberal and National MPs and Senators who oppose the equal treatment of LGBTI Australians under secular law. To its all-important details (discussed below).

It is clear that Senator Smith’s Marriage Bill is far less concerned with allowing all couples to marry irrespective of sexual orientation, gender identity and sex characteristics, and far more concerned with allowing individuals and organisations to discriminate against couples on the basis of these very same attributes.

Three major shortcomings can be seen by examining key aspects of his draft legislation:

Dean Smith’s Marriage Bill gives new special privileges to existing civil celebrants allowing them to discriminate against LGBTI couples

Under the Marriage Act 1961, ministers of religion already have the ability to refuse to officiate the wedding of any couple, for any reason. There has never been a serious proposal to remove this ‘right’ to discriminate, and Smith’s Bill won’t alter this situation either.

However, what the Marriage Amendment (Definition and Religious Freedoms) Bill 2017 proposes in this area is actually far more radical – and that is to give a new special privilege to existing civil celebrants allowing them to discriminate against LGBTI couples, and to do so entirely lawfully.

It would provide people who are already registered as civil celebrants the ability to simply fill out some paperwork and declare themselves to be ‘religious marriage celebrants’ [clause 39DD(2) of the draft legislation].

There is only one substantive criterion that an existing civil celebrant must satisfy – that “the choice is based on the person’s religious beliefs” [clause 39DD(2)(c)].

That’s it – self-identification is enough. It is the legislative equivalent of never-was-a-Senator Malcolm Roberts’ approach to life: ‘I think I am a religious marriage celebrant, therefore I must be.’ Or the Andrew Bolt version of Descartes’ proposition: ‘I discriminate, therefore I am.’

In practice, the Registrar of Marriage Celebrants would be obliged to accept this application and voila – an existing civil celebrant can suddenly refuse to perform weddings of couples solely on the basis of their sexual orientation, gender identity or sex characteristics.

Remember, these people are not ministers of religion.

They are not formally associated with any church or religious body.

And the weddings they officiate do not have to be ‘religious’ in any way, shape or form.

But none of that would matter because, on the basis of their personal views and nothing more, they would be provided with what George Brandis would describe as ‘the right to be a bigot’.

This situation is bad enough in and of itself. But it is even worse when you consider that it would be setting a terrible new precedent in Commonwealth law.

As many people would know, the anti-discrimination protections contained in the Sex Discrimination Act 1984 are already limited by ‘religious exceptions’, which provide religious organisations with special privileges to fire, refuse to hire or deny service to LGBT people.

The main exception is contained in sub-section 37(1)(d), which protects “any other act or practice of a body established for religious purposes, being an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion.”

This is supplemented by special privileges for religious schools to likewise discriminate against LGBT students and teachers [section 38].

One limitation on both of these exceptions is that they apply to religious organisations only, like churches or schools. They do not provide individuals, who are not connected to any other religious body, the right to discriminate solely on the basis their own personal beliefs (or prejudices).[ii]

The introduction of a new special privilege for individual celebrants to discriminate against LGBTI couples, based on their own religious views and nothing else, would therefore be creating a dangerous precedent, one which could be used to argue for expanded rights to discriminate in the future.

Indeed, this appears to be the goal of anti-LGBTI hate groups like the Australian Christian Lobby, as well as Liberal backbencher Andrew Hastie who has argued that the exceptions in Smith’s Bill should go much, much further:

“The protections offered [extend] only to the wedding and the wedding participants themselves. They need to be expanded to whole-of-life protections” (emphasis added).

In the long-term, that is what is really at stake in the debate around marriage equality and religious exceptions – whether individuals will be able to discriminate against us as LGBTI Australians, in every aspect of our lives, based on nothing more than their personal views.

And so, while achieving marriage equality in the short-term is obviously important (and I write that as someone who has been engaged for almost eight years), we should make sure we don’t win the battle but lose the war.

Dean Smith’s Marriage Bill includes unnecessary and/or new special privileges for religious bodies to refuse to provide facilities, goods or services to LGBTI couples

The second major shortcoming of the Smith Bill is how it approaches the issue of ‘religious exceptions’ more broadly.

As indicated above, the Commonwealth Sex Discrimination Act 1984 already provides religious bodies with extremely generous special privileges to discriminate against LGBT Australians.

Despite this, the Marriage Amendment (Definition and Religious Freedoms) Bill includes the following:

“47B(1) A body established for religious purposes may refuse to make a facility available, or to provide goods or services, for the purposes of the solemnisation of a marriage, or for purposes reasonably incidental to the solemnisation of a marriage, if the refusal:

(a) conforms to the doctrines, tenets or beliefs of the religion of the body; or

(b) is necessary to avoid injury to the religious susceptibilities of adherents of that religion.”

There are two possible readings of this clause. The first is that it merely reflects existing Sex Discrimination Act provisions, and grants the same privileges to discriminate within the Marriage Act. To which the obvious reply is: if religious bodies already have the ability to discriminate in this way, why does it need to be replicated (some might say duplicated) here?

The alternative reading is that this is an expansion of the ability of religious bodies to discriminate, in that it grants new special privileges in relation to same-sex weddings in particular.

How broad these new special privileges are depends on what ‘reasonably incidental to the solemnisation of a marriage’ means. Proposed new sub-section 47B(5) notes that “[f]or the purposes of subsection (1), a purpose is reasonably incidental to the solemnisation of marriage if it is intrinsic to, or directly associated with, the solemnisation of the marriage.” Which isn’t exactly helpful (and nor is the Explanatory Memorandum).

Irrespective of which reading you adopt, however, I would argue that these new provisions should be rejected. Because they either unnecessarily duplicate protections that already exist. Or they introduce new special privileges to discriminate in wedding-related services simply because same-sex couples will finally be able to get married.

This last point is particularly important. Debate around the right to marry is at least as much symbolic as it is practical, and the marriage equality movement has meant so much to so many because it has taken on larger significance – whether lesbian, gay, bisexual, transgender and intersex Australians are considered full citizens. Or not.

To give marriage with one hand, but take equality away with the other – by including new special privileges to discriminate against us – fundamentally undermines what should be a powerful symbolic moment.

And make no mistake, it does so because of anti-LGBTI prejudice. As much as proponents of this legislation will try to argue it is necessary to protect ‘religious freedom’, as I have written previously this can be seen as a transparent lie.

After all, many religious bodies have strong beliefs about divorce and remarriage. And yet following the introduction of ‘no fault’ divorce via the Family Law Act 1975, and during the four decades since, there have not been any amendments to the Marriage Act to grant special privileges to religious bodies allowing them to discriminate against people who remarry.

The fact that they are being introduced now, when LGBTI Australians might finally get a seat at the ‘head table’, reveals that these new exceptions are not aimed at protecting ‘religious freedom’ – they are instead designed to protect homophobia (and transphobia, and biphobia, and intersexphobia).[iii] Nothing more and nothing less.

Dean Smith’s Marriage Bill strengthens special privileges for some public servants to discriminate against LGBTI couples

The final major shortcoming of the Smith Bill relates to the ability of Australian Defence Force Chaplains to discriminate against personnel who wish to get married.

Importantly, ADF Chaplains already have the ‘right’ to refuse to officiate the ceremonies of anyone they wish, for any reason they wish, as a result of section 81 of the Marriage Act.[iv]

Nevertheless, the Marriage Amendment (Definition and Religious Freedoms) Bill 2017 reinforces this ability by adding the following:

“81(2) A chaplain may refuse to solemnise a marriage despite anything in this Part, if any of the following applies:

(a) the refusal conforms to the doctrines, tenets or beliefs of the religion of the chaplain’s religious body or religious organisation;

(b) the refusal is necessary to avoid injury to the religious susceptibilities of adherents of that religion;

The duplication of the existing right of ADF Chaplains to discriminate in this way is entirely unnecessary.

But I have a much more substantive problem with the Marriage Act granting such privileges: ADF Chaplains are public servants, and therefore should be able to, indeed should be required to, serve all members of the ADF equally, including lesbian, gay, bisexual, transgender and intersex personnel.

The Defence Jobs website seems to recognise this obligation in its advertisements: “the military Chaplain must provide spiritual ministry to all members of the Army, regardless of faith or denomination … in recognition of the imperative to foster firm faith as described, every Chaplain must be the spiritual minister to every member” (emphasis added).

Every member should mean every member – not just cisgender and/or heterosexual members. To determine otherwise is to permit public servants to discriminate against people simply because of their personal beliefs, thereby creating Australia’s equivalent of Kentucky’s infamous Kim Davis.

The most offensive aspect of these special privileges is that ADF Chaplains are paid for by taxpayers’ money, including LGBTI taxpayers, and yet they will continue to be free to discriminate on the basis of their own anti-LGBTI beliefs.

Smith’s Marriage Bill is therefore a missed opportunity to remedy this injustice, either by requiring all Chaplains to serve all ADF personnel without prejudice (which, based on the public debate so far, seems unlikely to be acceptable to religious stakeholders) or by removing the ability of these Chaplains to officiate any weddings, and coming up with a suitable alternative.

Which brings me to one of maybe three positive aspects of the Marriage Amendment (Definition and Religious Freedoms) Bill 2017, proposed section 71A, which provides that:

“The Chief of the Defence Force may, by instrument in writing, authorise an officer (within the meaning of the Defence Act 1903), other than a chaplain, to solemnise marriages under this Division.”[v]

I can see no reason why the appointment of these officers should not be the primary way in which ADF personnel are able to marry while on deployment, something that would effectively guarantee every serving member is treated equally, irrespective of sexual orientation, gender identity or intersex status. Surely that is a goal we can all agree on.

Conclusion:

If the result of the same-sex marriage postal survey on 15 November is the one that we want, that is not the end of the story – not by a long way.

We must also ensure that the legislation that is passed afterwards reflects what we want, or as close to it as possible – and that means not rushing to accept a Bill that might give us marriage, but not deliver marriage equality.

We should consider, in detail, all possible legislative options and decide whether what they offer is ‘acceptable’.

From my perspective, I don’t think we should accept a Bill that gives new special privileges to existing civil celebrants allowing them to discriminate against LGBTI couples.

Nor we should accept a Bill that includes unnecessary and/or new special privileges for religious bodies to refuse to provide facilities, goods or services to LGBTI couples.

Finally, I don’t think we should accept a Bill that strengthens special privileges for some public servants to discriminate against LGBTI couples.

Consequently, I don’t think we should accept Liberal Senator Dean Smith’s Marriage Amendment (Definition and Religious Freedoms) Bill 2017.

I think we can, and we must, do better. Because LGBTI Australians deserve more than just marriage. We deserve genuine marriage equality.

Liberal Senator Dean Smith, whose Marriage Bill uses just nine words to amend the definition of marriage, but more than 400 introducing or expanding special privileges to discriminate against LGBTI couples.

Footnotes:

[i] If you are reading this article after 27 October, but before 7 November, and still have your postal survey, then please #postyouryes as soon as possible. The earlier you do, the more chance there is it will be counted, and help Australia finally achieve marriage equality.

[ii] Even the religious exceptions contained in the NSW Anti-Discrimination Act 1977 – which are the broadest (and arguably the worst) in the country – only apply to religious bodies, or educational authorities, and not to individuals.

[iii] The same argument can be made against proposals for civil celebrants to become ‘religious marriage celebrants’ allowing them to discriminate, discussed above. This ‘right’ has not previously been offered (nor sought apparently) in relation to people who remarry – it is only being added now to allow discrimination against LGBTI couples. That is homophobia, pure and simple.

[iv] “A chaplain may refuse to solemnise a marriage under this Part on any grounds which appear to the chaplain to be sufficient and, in particular, on the ground that, in the opinion of the chaplain, the solemnisation of the marriage would be inconsistent with international law or the comity of nations.”

[v] The other two positive features of the draft legislation are the proposed change to the definition of marriage (sub-section 5(1) “Omit ‘a man and a woman’, substitute ‘2 people’”) and the recognition of existing same-sex marriages.

Marriage equality or marriage discrimination – a simple test

Posted on August 1, 2017 by Alastair Lawrie

Based on media coverage over the past few days, it now seems possible that Commonwealth Parliament will – finally – hold a free vote in coming weeks on the right of lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians to marry.

Of course, it is just as likely (perhaps even more likely) that the Turnbull Government will instead decide to hold a non-binding, voluntary postal vote on the subject, but that unnecessary, wasteful, divisive and downright offensive proposal is a subject for another day.

What I wanted to write about today is the kind of legislation that might ultimately be voted upon.

Because, amidst the understandable excitement of activists and advocates, the LGBTI community, our family members and friends, indeed all Australians who believe in fairness and the right of all people to marry the person they love, that progress might be imminent, we must not overlook a fundamental question:

Is it marriage equality, or is it marriage discrimination?

That is, does the Bill treat LGBTI-inclusive couples exactly the same as cisgender heterosexual couples, or will it introduce new special rights for civil celebrants and/or other wedding-related businesses to discriminate against us?

If it is the former, it is genuine marriage equality. If it is the latter, then it is something else, something lesser: marriage discrimination.

Unfortunately, based on multiple news reports it appears that the private member’s bill being drafted by Western Australian Liberal Senator Dean Smith will include new ‘protections’ that provide celebrants with the right to refuse to officiate the ceremonies of LGBTI couples.

Given religious celebrants already have this ability, presumably Senator Smith’s Bill will extend this ‘right to discriminate’ to (at least some) civil celebrants.

The argument that will inevitably be put forward to justify the differential treatment of couples under the Marriage Act 1961 is that it is necessary to protect the ‘religious freedom’ of the celebrants involved.

From my perspective, whether we should accept this argument, and indeed whether we should accept legislation that includes these types of ‘religious exceptions’, comes down to this simple test:

Will it treat LGBTI couples in the future differently from, and worse than, divorced people seeking to get (re-)married today?

Now, I admit this might seem to be a somewhat strange comparator, so please allow me to explain.

There is a wide range of religious beliefs about the rite of marriage, from groups who believe in marriage between more than two people, to others who do not believe in marriage between people of different faiths.

One of the more common religious beliefs about marriage, and indeed still the official position of what is the second-largest religious group in Australia (the Catholic Church, after ‘No religion’), is that divorce is a sin, and consequently people who have divorced should not be allowed to re-marry.

The Marriage Act currently allows churches, and religious celebrants, the ability to refuse to officiate the ceremonies of couples where one or both parties have already been divorced.

However, despite the fact some civil celebrants are Catholic themselves (and therefore may have some qualms about second, third or even fourth marriages), there is no equivalent right for civil celebrants to decline to perform these weddings.

And that seems like a reasonable distinction to make – because civil ceremonies under the Marriage Act are secular, rather than religious, in nature, there is no need to provide civil celebrants with the right to reject divorced people on the basis of their personal religious beliefs.

But, if it is not deemed essential to protect ‘religious freedom’ by allowing civil celebrants to discriminate on the basis of marital or relationship status now, then it should not be necessary to permit discrimination on the basis of sexual orientation, gender identity or intersex status in the future.

Indeed, by comparing the rights of divorced people seeking to re-marry today with the rights of LGBTI couples under any future legislation that seeks to permit all couples to marry, it becomes clear that:

Amendments that provide civil celebrants with the ‘right to discriminate’ against LGBTI couples are not based on protecting ‘religious freedom’, but instead are legislating a right to homophobia, biphobia, transphobia and intersexphobia.

As a result, any legislation that allows LGBTI Australians to get married, but does so on the condition that civil celebrants are able to turn them away because of their personal prejudices, is not marriage equality, it is marriage discrimination.

The Marriage Amendment (Same-Sex Marriage) Bill that was released by the Attorney-General, Senator George Brandis, during the debate on the (traditional) plebiscite way back in October 2016 clearly failed on this front.

Not only did it significantly expand the right of civil celebrants to discriminate against LGBTI couples, it also clarified that defence force chaplains (who are public servants) could reject people on the basis of their sexual orientation, gender identity or intersex status. It even allowed for-profit businesses, run by religious organisations on a commercial basis, to turn LGBTI couples away.

For all of these reasons, the Marriage Amendment (Same-Sex Marriage) Bill was Unacceptable.

It is possible that Senator Smith and others have ‘learned’ from that experience, and that his private member’s bill will look significantly different to the Brandis Bill on the surface. The new ‘protections’ may not even explicitly target LGBTI couples, and instead be couched in more neutral terms.

But the real question will be how it treats LGBTI people in its substance. Irrespective of the wording used, if the legislation allows civil celebrants and/or other wedding-related businesses to treat LGBTI couples differently from, and worse than, divorced people seeking to re-marry today, it is simply homophobia, biphobia, transphobia and intersexphobia in a pretty wedding dress (or tuxedo).

And so, by all means get excited by the possibility that the interminable debate about the right of LGBTI couples to marry in Australia might soon be over. But we should also be on guard against any proposals that provide civil celebrants and others with the ‘right to discriminate’ against us.

We’ve waited long enough for genuine marriage equality. We shouldn’t settle, or be forced to settle, for marriage discrimination.

We should hold off on cutting the celebratory wedding cakes until we know exactly what is in the substance of any Bill, including any religious exceptions it may contain.

A Quick Guide to Australian LGBTI Anti-Discrimination Laws

Posted on July 29, 2017 by Alastair Lawrie

Quick Guide Final

I’ve written a lot about Australian LGBTI anti-discrimination and anti-vilification issues over the years, including specific articles on each relevant Commonwealth, State and Territory law (those posts can be found here).

This article seeks to take a broader approach, comparing who these laws cover, what religious exceptions they contain, and whether they provide protection against vilification, among other key questions. [Up to date at 21 February 2024]

What is the relevant law?

Jurisdiction	Legislation
Commonwealth	Sex Discrimination Act 1984
New South Wales	Anti-Discrimination Act 1977
Victoria	Equal Opportunity Act 2010
Queensland	Anti-Discrimination Act 1991
Western Australia	Equal Opportunity Act 1984
South Australia	Equal Opportunity Act 1984
Tasmania	Anti-Discrimination Act 1998
Australian Capital Territory	Discrimination Act 1991
Northern Territory	Anti-Discrimination Act

Are lesbians, gay men and bisexuals protected against discrimination?

	Lesbians and gay men	Bisexuals
Commonwealth	✓	✓
New South Wales	✓	✗
Victoria	✓	✓
Queensland	✓	✓
Western Australia	✓	✓
South Australia	✓	✓
Tasmania	✓	✓
Australian Capital Territory	✓	✓
Northern Territory	✓	✓

As you can see, the NSW Anti-Discrimination Act 1977 is the only anti-discrimination law in Australia that does not cover bisexual people[i] (relatedly, it is also the only jurisdiction where heterosexuals have no protection under anti-discrimination law).

Are transgender people protected against discrimination?

Different jurisdictions have adopted different approaches to transgender anti-discrimination protection, in large part due to when their respective laws were introduced. This means that while some cover gender identity broadly,[ii] others have traditionally only protected trans people with binary gender identities (where a person identifies with the ‘opposite’ gender to that which they were assigned at birth – eg MTF and FTM trans people) and exclude people with non-binary or other gender diverse identities.[iii]Thankfully, most jurisdictions have moved from the latter, to the more-inclusive former, category in the past few years.

	Trans people with binary gender identities	People with non-binary gender identities
Commonwealth	✓	✓
New South Wales	✓	✗
Victoria	✓	✓
Queensland	✓	✓
Western Australia	Some*	✗
South Australia	✓	✓
Tasmania	✓	✓
Australian Capital Territory	✓	✓
Northern Territory	✓	✓

At this stage, seven jurisdictions cover people with both binary and non-binary gender identities (with the most recent jurisdiction to adopt a more inclusive definition of gender identity being Queensland, with legislation passed in mid-2023, commencing in April 2024).

Of the other two:

The Western Australian Equal Opportunity Act 1984 only covers people who have been issued with a recognition certificate under the Gender Reassignment Act 2000 (meaning those people who have transitioned and where that transition has been recognised by the Government).[iv] Thankfully, the Western Australian Law Reform Commission review of the WA Equal Opportunity Act recommended changes to ensure all trans, non-binary and gender diverse people are covered. The WA Government accepted this recommendation, and had committed to introduce legislation to give it effect by the end of 2023, but there are growing fears they will not act before the next state election in early 2025; and
The NSW Anti-Discrimination Act 1977 also currently only covers transgender people with binary gender identities. Unfortunately, and unlike WA, the NSW Government have not yet promised to amend this protected attribute. However, they have referred the entire Act to the NSW Law Reform Commission for review. Independent Member for Sydney Alex Greenwich has also introduced his Equality Legislation which would ensure non-binary people are finally covered, although it is unclear whether these amendments will be successful.

Are intersex people protected against discrimination?

	Intersex
Commonwealth	✓
New South Wales	✗
Victoria	✓
Queensland	✓
Western Australia	✗
South Australia	✓
Tasmania	✓
Australian Capital Territory	✓
Northern Territory	✓

When the Commonwealth Government passed the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, it became the first national parliament in the world to include ‘intersex status’ as a protected attribute.[v] Since then, Tasmania, the ACT, South Australia, Victoria, the Northern Territory and most recently Queensland, have all introduced amendments to protect intersex people against discrimination.

It should be noted however that intersex advocates have called for this terminology to be updated, with ‘intersex status’ replaced with the protected attribute of ‘sex characteristics’ (as part of the historic March 2017 Darlington Statement).

To date, the Tasmanian Parliament has amended its Anti-Discrimination Act 1998 to cover ‘intersex variations of sex characteristics’, while in August 2020 the ACT Legislative Assembly replaced intersex status with ‘sex characteristics’, with a definition supported by intersex organisations. In February 2021, the Victorian Parliament added ‘sex characteristics’ to the Equal Opportunity Act 2010. The Northern Territory Parliament added ‘sex characteristics’ to their Anti-Discrimination Act 1992 in late 2022, while Queensland’s 2023 amendments also employ the terminology of sex characteristics.

Similar to non-binary protections (or lack of protections) outlined above, the two jurisdictions which do not protect intersex people at all are WA and NSW. And, just like non-binary, there is a WA Law Reform Commission recommendation and Government commitment to introduce these reforms – but time is running out, and a current NSW Law Reform Commission inquiry, and the Greenwich Equality Bill – but no NSW Government commitment.

Finally, it should be noted that, as part of debate surrounding its amendments to the Fair Work Act (see point 11, below) in late 2022, the Commonwealth Government has promised to update the terminology of ‘intersex status’ to ‘sex characteristics’ in both the Sex Discrimination Act and Fair Work Act, although the timing of these amendments remain unclear.

Are LGBT people protected against discrimination by religious organisations (general)?

As I have written extensively elsewhere, one of the key weaknesses of many LGBTI anti-discrimination laws in Australia is that they provide special rights for religious organisations to discriminate against lesbian, gay, bisexual and transgender people.[vi] We will first examine how these religious exceptions operate generally, before looking specifically at the issues of students in religious schools (question 6) and teachers and other staff in religious schools (question 7).

	Do LGBT people have any protections against discrimination by religious organisations?	LGBT people have limited protections against religious discrimination	LGBT people have general protections against religious discrimination
Commonwealth	✓	Aged care*	✗
New South Wales	✗	✗	✗
Victoria	✓	✓	✓
Queensland	✓	✓	✗
Western Australia	✗	✗	✗
South Australia	✓	Teachers*	✗
Tasmania	✓	✓	✓
Australian Capital Territory	✓	✓	✓
Northern Territory	✓	✓	Mostly*

There is only one LGBTI anti-discrimination law in Australia that offer full legal protection against discrimination by religious organisations, in all circumstances: Tasmania’s Anti-Discrimination Act 1998. That is because the religious exceptions contained in that legislation only allow religious organisations to discriminate on the basis of people’s religious beliefs, and not on the basis of sexual orientation, gender identity or intersex variations of sex characteristics (or relationship status).

The amendments passed in Victoria (via the Equal Opportunity (Religious Exceptions) Amendment Act 2021) come close, only allowing discrimination on the basis of religious belief in religious schools (in relation to both students and teachers), in employment and in service provision by religious organisations that is Government funded. However, it continues to allow discrimination on the basis of sexual orientation and gender identity in service provision by religious organisations where it is not Government funded.

The ACT Discrimination Act 1991 has provided protections in relation to religious schools since 2019 (covered in more detail in the following questions) and, thankfully, amendments passed in late March 2023 have extended protections in both the delivery of goods and services, and employment, in relation to religious organisations which operate in other sectors.

On the other hand, the religious exceptions contained in the anti-discrimination laws of New South Wales and Western Australia provide religious organisations with carte blanche to discriminate against LGBT people. Section 56 of the NSW Anti-Discrimination Act 1977 is a typical example of the special rights given to these bodies:

“Nothing in this Act affects:

(a) the ordination or appointment of priests, ministers of religious or members of any religious order,

(b) the training or education of persons seeking ordination or appointment as priests, ministers of religious or members of a religious order,

(c) the appointment of any other person in any capacity by a body established to propagate religion, or

(d) any other act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avid injury to the religious susceptibilities of the adherents of that religion.”

Fortunately, the Western Australian Law Reform Commission has recommended that their religious exceptions be narrowed, in line with the Victorian approach, although as explained in relation to earlier questions, it is no unclear whether legislation will be passed before the 2025 State election.

The other jurisdictions offer only limited protections against religious-based discrimination against LGBT people. Under the Commonwealth Sex Discrimination Act 1984, religious organisations can discriminate against LGBT people in all circumstances other than with respect to LGBT people accessing Commonwealth-funded aged care services[vii] (although they can still discriminate against LGBT employees in these facilities, using public monies).

The Queensland Anti-Discrimination Act 1991 actually contains the fifth-best protections for LGBT people against discrimination by religious organisations. It does not allow discrimination against LGBT students in religious schools, and has limited protections for teachers, too (see questions 6 and 7 respectively). More broadly, it does not provide a general right for religious organisations to discriminate against LGBT employees, but instead limits this right to employees where acting, or not acting, in a particular way breaches the ‘genuine occupational requirements’ of that position.[viii] The 2022 Queensland Human Rights Commission review of the Anti-Discrimination Act 1991 has also recommended a similar approach to Victoria – but once again, despite Government commitments to introduce a new Act before the end of 2023, there is now no guarantee they will act prior to the October 2024 State election.

The South Australian Equal Opportunity Act 1984 provides broad religious exceptions outside religious schools, where they are (probably, although not conclusively) able to discriminate against LGBT students, and have to satisfy procedural obligations in order to discriminate against LGBT teachers (see questions 6 and 7, below).

Finally, the religious exceptions contained in the Northern Territory Anti-Discrimination Act are narrower than in other jurisdictions because of the specific wording that is used:

“Section 51 This Act does not apply to or in relation to: …

(d) an act by a body established for religious purposes if the act is done as part of any religious observance or practice.”

Although it does still apply across all attributes, including sexual orientation, gender identity and sex characteristics, this wording at least restricts the discrimination that is permissible to acts in relation to ‘religious observance or practice’ only (and recent changes have seen LGBT teachers finally protected against discrimination there too).

Are LGBT students protected against discrimination by religious schools?

	LGBT students at religious schools
Commonwealth	✗
New South Wales	✗
Victoria	✓
Queensland	✓
Western Australia	✗
South Australia	Probably not*
Tasmania	✓
Australian Capital Territory	✓
Northern Territory	✓

There are five jurisdictions in which LGBT students are clearly protected against discrimination by religious schools: Tasmania, Queensland, the Australian Capital Territory, the Northern Territory and, most recently, Victoria.

In another jurisdiction, the level of protection is debatable. In South Australia section 37 of the Equal Opportunity Act 1984 provides quite broad protections against discrimination by educational authorities against students on the basis of sexual orientation or gender identity.[ix] However, it is likely these protections are still overridden by the broad religious exceptions contained in sub-section 50(1)(c).[x]

In the other jurisdictions, namely the Commonwealth, NSW, and Western Australia, LGBT students do not have protection against discrimination by religious schools. Indeed, the exceptions contained in the NSW Anti-Discrimination Act 1977 go even further, allowing discrimination against lesbian, gay and transgender students by all private schools and colleges, even where those institutions are not religious.[xi]

Thankfully, the WA Law Reform Commission has recommended, and the WA Government has agreed, to protect LGBT students in religious schools against discrimination (but – and admittedly this is getting repetitive – it is unclear when this will be introduced). The Commonwealth Government has also referred the issue of religious exceptions and religious schools to the Australian Law Reform Commission for inquiry. It was initially scheduled to report in April 2023, before being extended to 31 December 2023. It has not been handed to Attorney-General Mark Dreyfus, but he is yet to table the document.

It is hoped that LGBT students might be protected as a result of the current NSW Law Reform Commission inquiry into the Anti-Discrimination Act – although the Government has made no clear commitments to do so.

For more on this subject, see Back to School, Back to Discrimination for LGBT Students and Teachers.

7. Are LGBT teachers protected against discrimination by religious schools?

	LGBT teachers at religious schools
Commonwealth	✗
New South Wales	✗
Victoria	✓
Queensland	Don’t Ask, Don’t Tell*
Western Australia	✗
South Australia	Procedural requirements*
Tasmania	✓
Australian Capital Territory	✓
Northern Territory	✓

Four Australian LGBTI anti-discrimination laws fully protects lesbian, gay, bisexual and transgender teachers and other staff at religious schools against discrimination: Tasmania’s Anti-Discrimination Act 1998, the ACT Discrimination Act 1991, the Victorian Equal Opportunity Act 2010 and, following recent amendments, the NT Anti-Discrimination Act 1992.

In Queensland, religious schools are allowed to discriminate against people who work for religious schools where “the person openly acts in a way that the person knows or ought reasonably to know is contrary to the employer’s religious beliefs, during a selection process; or in the course of the person’s work; or in doing something connected with the person’s work; and it is a genuine occupational requirement of the employer that the person… act in a way consistent with the employer’s religious beliefs.”[xii]

However, religious schools are not allowed to ‘seek information’ in relation to an employee’s sexual orientation or gender identity. In effect, LGBT teachers and other staff at religious schools in Queensland are subject to a ‘Don’t Ask’ Don’t Tell’ policy (which, as was seen in relation to the United States military, is nevertheless an unjust and unjustifiable imposition on a minority group). Fortunately, the Queensland Human Rights Commission review of the Anti-Discrimination Act has recommended that Don’t Ask, Don’t Tell be repealed, and replaced with genuine protections for LGBT teachers.

In South Australia, religious schools are allowed to discriminate against LGBT teachers and other staff, however this ‘right’ is subject to procedural requirements, including that the school must have a written policy outlining its discriminatory policy which is provided to people interviewed for or offered employment. The policy must also be provided on request, free of charge, to employees, students and parents (and prospective employees, students and parents) as well as to general members of the public.[xiii]

In the other three Australian jurisdictions (the Commonwealth, NSW and Western Australia[xiv]), religious schools are free to discriminate against LGBT teachers. Once again, in NSW this extends to all private schools and colleges, even where they are not religious.[xv] And, once again, the WA Government has agreed to implement Law Reform Commission recommendations to protect LGBT teachers (but date uncertain), while the Australian Law Reform Commission is also looking at this issue federally. As with students, the main hope for teachers in NSW is with the current NSW Law Reform Commission process.

For more on this subject, see Back to School, Back to Discrimination for LGBT Students and Teachers.

8. Are lesbians, gay men and bisexuals protected against vilification?

	Lesbians and gay men	Bisexuals
Commonwealth	✗	✗
New South Wales	✓	Partial
Victoria	✗	✗
Queensland	✓	✓
Western Australia	✗	✗
South Australia	✗	✗
Tasmania	✓	✓
Australian Capital Territory	✓	✓
Northern Territory	✓	✓

Only five Australian jurisdictions offer any anti-vilification protections for the LGBTI community: NSW, Queensland, Tasmania, the ACT and, most recently, the NT (which added s 20A – prohibiting conduct that ‘offends, insults, humiliates or intimidates’ people, including on the basis of sexual orientation, gender identity and sex characteristics, in late 2022).

In NSW, the situation has been complicated by 2018 amendments to both the Anti-Discrimination Act and the Crimes Act. In short, while lesbians, gay men and bisexuals are all covered by the new ‘inciting violence provisions’ in the Crimes Act, only lesbians and gay men can make civil vilification complaints to Anti-Discrimination NSW.

In contrast, the Commonwealth, Victoria, Western Australia and South Australia all have protections against racial vilification, but fail to offer equivalent protections against anti-LGBTI vilification. Although it should be noted that the Victorian Parliament previously investigated this issue, and the State Government there has long-promised (and long-failed) to introduce these reforms, while the WA Law Reform Commission has recommended LGBTI vilification provisions be introduced.

For more on this subject, see Did You Know? Most Australian Jurisdictions Don’t Prohibit Anti-LGBTI Vilification.

9. Are trans and intersex people protected against vilification?

	Trans people with binary gender identities	People with non-binary gender identities	Intersex
Commonwealth	✗	✗	✗
New South Wales	✓	Partial	Partial
Victoria	✗	✗	✗
Queensland	✓	✓	✓
Western Australia	✗	✗	✗
South Australia	✗	✗	✗
Tasmania	✓	✓	✓
Australian Capital Territory	✓	✓	✓
Northern Territory	✓	✓	✓

Five jurisdictions protect transgender people with binary gender identities against vilification (NSW, Queensland, Tasmania, the ACT and NT). Following mid-2023 amendments in Queensland, four (them alongside Tasmania, the ACT and NT) also fully protect people with non-binary identities.

The situation in NSW is more complicated, and similar to that described earlier: trans, non-binary and intersex people are included in the Crimes Act incitement to violence provisions, but only trans people with binary identities can make civil vilification complaints under the Anti-Discrimination Act.

Both the WA and Victorian Governments have promised but so far failed to introduce their own reforms. Only the Commonwealth and South Australia have failed to take any steps to prohibit anti-LGBTI vilification.

For more on this subject, see Did You Know? Most Australian Jurisdictions Don’t Prohibit Anti-LGBTI Vilification.

10. What other issues exist with Australian LGBTI anti-discrimination laws?

The above questions have examined three main areas of the LGBTI anti-discrimination laws across the Commonwealth, and the States and Territories:

Protected Attributes
Religious Exceptions, and
Anti-Vilification Coverage.

However, these are not the only areas where there are significant problems with the anti-discrimination laws that apply to lesbian, gay, bisexual, transgender and bisexual people in Australia. The following is a non-exhaustive list of some of the other issues I have come across:

Commonwealth: The Sex Discrimination Act 1984 does not establish a position of LGBTI Discrimination Commissioner (despite providing for a Sex Discrimination Commissioner). This leaves Australia’s LGBTI community at a significant disadvantage compared to other vulnerable groups, and should be rectified (for more on this issue, see: Why we need a full-time LGBTI Commissioner at the Australian Human Rights Commission).

NSW: The Anti-Discrimination Act 1977 allows employers with five employees or less to discriminate against LGBT employees[xxi]. There are no such provisions allowing employers to discriminate on the basis of race.

Queensland: The Anti-Discrimination Act 1991 includes a particularly abhorrent section which allows discrimination against transgender people in relation to employment that involves children. Section 28 states:

“Work with children

(1) It is not unlawful to discriminate on the basis of lawful sexual activity or gender identity against a person with respect to a matter that is otherwise prohibited under subdivision 1 if-

(a) the work involves the care or instruction of minors; and

(b) the discrimination is reasonably necessary to protect the physical, psychological or emotional wellbeing of minors having regard to all the relevant circumstances of the case, including the person’s actions.”

Thankfully, the Births, Deaths and Marriages Registration Bill 2022, currently before Queensland Parliament, would repeal this provision. [The Queensland Bill has now passed, and this provision will be history come April 2024 – but I am choosing to leave it here as a reminder of how awful the anti-discrimination laws of Australia have been – laws designed to outlaw discrimination have often instead entrenched it].

Western Australia: While the Equal Opportunity Act 1984 allows for positive discrimination “to ensure that persons of a particular sexual orientation have equal opportunities with other persons”[xxiii] there are no equivalent provisions allowing for positive discrimination for transgender people.

South Australia: Disappointingly, the Equal Opportunity Act 1984 makes it lawful to discriminate “on the ground of gender identity in relation to employment or engagement if the discrimination is for the purposes of enforcing standards of appearance and dress reasonably required for the employment or engagement.”[xxiv]

11. Are LGBTI people protected against discrimination under the Commonwealth Fair Work Act 2009?

While most anti-discrimination protections are included in the nine Commonwealth, state and territory laws discussed above, there is also a key protection against discrimination located in the Fair Work Act 2009.

	Are lesbians, gay men and bisexuals protected under the Fair Work Act?	Are transgender people protected?	Are intersex people protected?
Commonwealth	✓	✓	✓

Between the passage of the Sex Discrimination Act (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, and updates to the Fair Work Act 2009 passed late last year, it was unclear whether trans, gender diverse and intersex workers were covered under the latter – because it included sexual orientation but not gender identity or intersex status/sex characteristics as protected attributes for the purposes of adverse action (section 351) and unlawful termination (section 772) protections.

Thankfully, the Albanese Government has amended the Fair Work Act to explicitly include gender identity and intersex status as protected attributes. Even better, in doing so they publicly committed to updating both the Fair Work Act, and Sex Discrimination Act, to cover sex characteristics (which is the best practice terminology supported by Intersex Human Rights Australia) rather than intersex status in the future.

[As someone who was involved in campaigning for these changes to the Fair Work Act since at least mid-2018, this has been a very satisfying update to write.]

Of course, the extensive religious exceptions which appear in the Fair Work Act 2009, allowing religious organisations to discriminate against LGBTQ employees, should also be repealed.

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For more detailed analysis of the LGBTI anti-discrimination laws that operate in the Commonwealth, and each State and Territory, see:

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Footnotes:

[i] NSW protects only ‘homosexuality’, with the definition in section 4 of the Anti-Discrimination Act 1977 stating that ‘homosexual means male or female homosexual’. In contrast, other jurisdictions either include a protected attribute of ‘sexual orientation’, or specifically include both homosexuality and bisexuality.

[ii] For example, section 4 of the Commonwealth Sex Discrimination Act 1984 defines gender identity as ‘the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth.’

[iii] For example, section 38A of the NSW Anti-Discrimination Act 1977 states that ‘[a] reference in the Part to a person being transgender or a transgender person is a reference to a person… (i) who identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex, or (ii) who has identified as a member of the opposite sex by living as a member of the opposite sex…’

[iv] The Western Australian Equal Opportunity Act 1984 prohibits discrimination ‘against a gender reassigned person on gender history grounds’ (section 35AB), where section 4 defines a gender reassigned person as ‘a person who has been issued with a recognition certificate under the Gender Reassignment Act 2000’ while section 35AA states that ‘a person has a gender history if the person identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex.’

[v] With ‘intersex status’ defined in section 4 of the Commonwealth Sex Discrimination Act 1984 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

[vi] In this section, I refer primarily to LGBT people, rather than LGBTI people, because it is generally understood that religious exceptions would not (or at the very least should not) be used against people with intersex variations.

[vii] Sub-section 37(2) of the Commonwealth Sex Discrimination Act 1984 limits the general religious exceptions contained in the Act by stating that they do “not apply to an act or practice of a body established for religious purposes if:

(a) the act or practice is connected with the provision, by the body, of Commonwealth-funded aged care; and

(b) the act or practice is not connected with the employment or persons to provide that aged care.”

[viii] Sub-section 25(3) of the Queensland Anti-Discrimination Act 1991 provides that:

“It is not unlawful for an employer to discriminate with respect to a matter that is otherwise prohibited under section 14 or 15, in a way that is not unreasonable, against a person if-

(a) the person openly acts in a way that the person knows or ought reasonably know is contrary to the employer’s religious beliefs-

(i) during a selection process; or

(ii) in the course of the person’s work; or

(iii) in doing something connected with the person’s work; and

(b) it is a genuine occupational requirement of the employer that the person, in the course of, or in connection with, the person’s work, act in a way consistent with the employer’s religious beliefs.”

[ix] SA Equal Opportunity Act 1984: “Section 37- Discrimination by educational authorities …

(2) It is unlawful for an educational authority to discriminate against a student on the ground of sex, sexual orientation or gender identity-

(a) in the terms or conditions on which it provides the student with training or education; or

(b) by denying or limiting access to a benefit provided by the authority; or

(c) by expelling the student; or

(d) by subjecting the student to other detriment.”

[x] SA Equal Opportunity Act 1984: “This Part does not render unlawful discrimination in relation to-

(c) any other practice of a body established for religious purposes that conforms with the precepts of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.”

[xi] Sections 38K(3) and 49ZO(3), NSW Anti-Discrimination Act 1977.

[xii] Sub-sections 25(2) and (3) of the Queensland Anti-Discrimination Act 1991.

[xiii] SA Equal Opportunity Act 1984: Sub-section 34(3):

“This Division does not apply to discrimination on the ground of sexual orientation or gender identity in relation to employment or engagement for the purposes of an educational institution if-

(a) the educational institution is administered in accordance with the precepts of a particular religion and the discrimination is founded on the precepts of that religion; and

(b) the educational authority administering the institution has a written policy stating its position in relation to the matter; and

(c) a copy of the policy is given to a person who is to be interviewed for or offered employment with the authority or a teacher who is to be offered engagement as a contractor by the authority; and

(d) a copy of the policy is provided on request, free of charge-

(i) to employees and contractors and prospective employees and contractors of the authority to whom it relates or may relate; and

(ii) to students, prospective students and parents and guardians of students and prospective students of the institution; and

(iii) to other members of the public.”

[xiv] Repealed/footnote removed.

[xv] Sub-sections 38C(3)(c) and 49ZH(3)(c), NSW Anti-Discrimination Act 1977.

[xvi] Footnote removed.

[xvii] Footnote removed.

[xviii] Footnote removed.

[xix] Footnote removed.

[xx] Footnote removed.

[xxi] Sub-sections 38C(3)(b) and 49ZO(3)(b), NSW Anti-Discrimination Act 1977.

[xxii] Repealed/footnote removed.

[xxiii] Section 35ZD, Western Australian Equal Opportunity Act 1984.

[xxiv] Sub-section 34(4), South Australian Equal Opportunity Act 1984.

[xxv] The inclusion of ‘marital status’ rather than ‘marital or relationship status’ is also out-dated.

The State of Homophobia, Biphobia & Transphobia Survey Results, Part 6: Discrimination in Health, Community Services or Aged Care

Posted on June 4, 2017 by Alastair Lawrie

This post is the final in a series of six, reporting the results of The State of Homophobia, Biphobia & Transphobia survey I conducted at the start of 2017[i].

In all, 1,672 lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) Australians provided valid responses to that survey.

In this article, I will be focusing on their answers to four questions, asking whether they have experienced discrimination in health, community services or aged care, whether any of this discrimination occurred in the past 12 months, whether this discrimination related to religious organisations and to provide an example of the discrimination that they experienced.

The responses reveal a disturbing pattern of discrimination across these areas, with many LGBTIQ Australians denied equal access to services simply because of their sexual orientation, gender identity or intersex status.

The question about whether any of this discrimination occurred in relation to religious organisations is important because of the existence of ‘special rights’ to discriminate for these bodies in most states and territories[ii], leaving LGBTI people in these circumstances without any legal redress.

I also encourage you to read the examples provided in response to question four, which reveal some of the different types of discrimination that LGBTIQ people have encountered in health, community services or aged care.

The State of Homophobia, Biphobia & Transphobia-11

Question 1: Have you ever experienced discrimination because of your sexual orientation, gender identity or intersex status in relation to health, community services or aged care

Question 2: Has one or more instances of this discrimination (in health, community services or aged care) occurred in the past 12 months?

Question 3: Did any of this discrimination (in health, community services or aged care) occur in relation to a religious organisation?

Of the 1,611 people who answered the first question, 345 – or 21% – said they had experienced discrimination in one of these areas at some point in their lives.

Disturbingly, 189 survey respondents[iii] reported experiencing anti-LGBTIQ discrimination in health, community services or aged care in the past 12 months alone. In other words, more than half of those who had experienced discrimination in these areas reported at least one instance of this mistreatment just in 2016 – that is simply shocking.

The proportion reporting discrimination by religious organisations was 3.7%[iv]. This is thankfully lower than the rates reported for discrimination by religious organisations in education (Survey Results, Part 4) and employment (Survey Results, Part 5), although this nevertheless represents roughly 1 in 25 LGBTI people exposed without adequate protections from anti-discrimination schemes.

LGBTIQ Status

There were some significant differences in reported discrimination in health, community services and aged care between lesbian, gay, bisexual, transgender, intersex and queer survey respondents:

Lesbian

26.5%[v] reported discrimination in these areas at some point
14.5%[vi] experienced at least one instance in the last 12 months
3.5%[vii] experienced discrimination by a religious organisation

Gay

19.8%[viii] reported discrimination in these areas at some point
9.9%[ix] experienced at least one instance in the last 12 months
2.7%[x] experienced discrimination by a religious organisation

Bisexual

16.1%[xi] reported discrimination in these areas at some point
8.7%[xii] experienced at least one instance in the last 12 months
4.7%[xiii] experienced discrimination by a religious organisation

Transgender

35.3%[xiv] reported discrimination in these areas at some point
24.9%[xv] experienced at least one instance in the last 12 months
3.8%[xvi] experienced discrimination by a religious organisation

Intersex

40%[xvii] reported discrimination in these areas at some point
13.3%[xviii] experienced at least one instance in the last 12 months
6.7%[xix] experienced discrimination by a religious organisation

Queer

29.6%[xx] reported discrimination in these areas at some point
19.2%[xxi] experienced at least one instance in the last 12 months
4.6%[xxii] experienced discrimination by a religious organisation

LGBTIQ Category	Experienced anti-LGBTIQ discrimination in health, community services or aged care (%)?
LGBTIQ Category	Ever	Last 12 months	By religious organisation
Lesbian	26.5	14.5	3.5
Gay	19.8	9.9	2.7
Bisexual	16.1	8.7	4.7
Transgender	35.3	24.9	3.8
Intersex	40	13.3	6.7
Queer	29.6	19.2	4.6

The highest rate for lifetime discrimination was from intersex respondents, although the small sample size for that group (n=15) means this figure should be treated with some caution. It is also interesting that intersex people reported average rates of recent discrimination in these areas.

Of the other groups, gay and particularly bisexual respondents reported lower rates of both lifetime, and recent, discrimination in health, community services and aged care than other groups.

In contrast to earlier survey results, lesbians reported higher rates of discrimination on both measures. One possible explanation is greater involvement, and therefore potential exposure to discrimination in, family-related health and community services.

Once again, higher rates of discrimination, and especially recent mistreatment, were reported by transgender and, to a slightly lesser extent, queer survey respondents.

It is particularly disturbing that one in five queer respondents, and fully one quarter of trans people, experienced discrimination in these areas in the past 12 months alone.

Taking a closer look at the trans cohort, and in particular respondents who identified as both trans and another LGBQ category, the figures were as follows:

Trans and lesbian: 37.2%[xxiii] ever, and 25.6% in the last 12 months

Trans and gay: 40.4%[xxiv] ever, and 28.1% in the last 12 months

Trans and bisexual: 26.7%[xxv] ever, and 16.7% in the last 12 months, and

Trans and queer: 40.1%[xxvi] ever, and 32.2% in the last 12 months.

These groups were largely consistent, although trans and bi respondents reported lower rates on both measures, while trans and queer respondents were more likely to experience recent discrimination (at almost 1 in 3 people overall).

Finally, there is little that stands out in the reported rates of discrimination by religious organisations in these areas, with the range from 2.7% (gay) to 6.7% (intersex).

Aboriginal and Torres Strait Islander People

The rates of discrimination for Aboriginal and/or Torres Strait Islander LGBTIQ people were higher for both lifetime discrimination, and especially for recent discrimination, than for their non-Indigenous counterparts.

On the other hand, Aboriginal and/or Torres Strait Islander LGBTIQ people reported lower rates of discrimination by religious organisations in health, community services or aged care. The full figures are as follows:

24.6%[xxvii] reported discrimination in these areas at some point (compared to 21.3% of non-Indigenous people)
17.5%[xxviii] experienced at least one instance in the past 12 months (compared to 11.5% of non-Indigenous people) and
1.8%[xxix] experienced discrimination by a religious organisation (compared to 3.7% of non-Indigenous people).

	Experienced anti-LGBTIQ discrimination in health, community services or aged care (%)?
	Ever	Last 12 months	By religious organisation
Aboriginal and/or Torres Strait Islander	24.6	17.5	1.8
Non-Indigenous	21.3	11.5	3.7

Age

Aged 24 and under

15.7%[xxx] reported discrimination in these areas at some point
10.8%[xxxi] experienced at least one instance in the past 12 months
3.3%[xxxii] experienced discrimination by a religious organisation

25 to 44

31.1%[xxxiii] reported discrimination in these areas at some point
15.8%[xxxiv] experienced at least one instance in the past 12 months
3.9%[xxxv] experienced discrimination by a religious organisation

45 to 64

23.7%[xxxvi] reported discrimination in these areas at some point
9.1%[xxxvii] experienced at least one instance in the past 12 months
4%[xxxviii] experienced discrimination by a religious organisation

65 and over

25.8%[xxxix] reported discrimination in these areas at some point
9.7%[xl] experienced any instance in the past 12 months
9.7%[xli] reported discrimination by a religious organisation

Age cohort	Experienced anti-LGBTIQ discrimination in health, community services or aged care (%)?
Age cohort	Ever	Last 12 months	By religious organisation
24 and under	15.7	10.8	3.3
25 to 44	31.1	15.8	3.9
45 to 64	23.7	9.1	4
65 and over	25.8	9.7	9.7

Given their lesser years of life experience, it is perhaps unsurprising that young people experienced lower levels of lifetime discrimination in these areas. Although the fact that more than 1 in 10 LGBTIQ people aged 24 or under reported homophobic, biphobic, transphobic or intersexphobic discrimination in health or community services over the past 12 months is alarming.

What is perhaps most surprising is that people aged 25 to 44 were most likely to report both lifetime discrimination in these areas (with almost a third of respondents affected), as well as anti-LGBTIQ discrimination in the past 12 months (at almost 1 in every 6 respondents).

Meanwhile, the highest rate of reported discrimination by religious organisations was from LGBTIQ people aged 65 and over – which is possibly explained by recent interactions with religious-operated aged care services.

State or Territory of Residence

The final demographic category according to which I have analysed the survey results is the state or territory of residence:

New South Wales

21.4%[xlii] reported discrimination in these areas at some point
10.9%[xliii] experienced at least one instance in the last 12 months
2.7%[xliv] experienced discrimination by a religious organisation

Victoria

22.8%[xlv] reported discrimination in these areas at some point
12.4%[xlvi] experienced at least one instance in the last 12 months
4%[xlvii] experienced discrimination by a religious organisation

Queensland

22%[xlviii] reported discrimination in these areas at some point
11.4%[xlix] experienced at least one instance in the last 12 months
6.1%[l] experienced discrimination by a religious organisation

Western Australia

22.1%[li] reported discrimination in these areas at some point
12.8%[lii] experienced at least one instance in the last 12 months
2.7%[liii] experienced discrimination by a religious organisation

South Australia

19.5%[liv] reported discrimination in these areas at some point
14.3%[lv] experienced at least one instance in the last 12 months
3%[lvi] experienced discrimination by a religious organisation

Tasmania

16%[lvii] reported discrimination in these areas at some point
10.4%[lviii] experienced at least one instance in the last 12 months
1.9%[lix] experienced discrimination by a religious organisation

Australian Capital Territory

23.2%[lx] reported discrimination in these areas at some point
10.7%[lxi] experienced at least one instance in the last 12 months
7.1%[lxii] experienced discrimination by a religious organisation

Northern Territory

20%[lxiii] reported discrimination in these areas at some point
10%[lxiv] experienced at least one instance in the last 12 months
5%[lxv] experienced discrimination by a religious organisation

State or territory	Experienced anti-LGBTIQ discrimination in health, community services or aged care (%)?
State or territory	Ever	Last 12 months	By religious organisation
NSW	21.4	10.9	2.7
Victoria	22.8	12.4	4
Queensland	22	11.4	6.1
WA	22.1	12.8	2.7
SA	19.5	14.3	3
Tasmania	16	10.4	1.9
ACT	23.2	10.7	7.1
NT	20	10	5

These results were largely consistent across state and territory boundaries (thus lending weight to the overall figures, discussed earlier).

The lowest lifetime rates of discrimination in health, community services or aged care were in Tasmania, while the highest (but only just) were in the ACT. Meanwhile, South Australians were most likely to experience discrimination in the last 12 months, while LGBTIQ people in Queensland and the ACT reported the highest rates of discrimination in these areas by religious organisations.

**********

Question 4: If you feel comfortable, please provide an example of the discrimination you experienced in relation to health, community services or aged care [Optional]:

This question allowed respondents to provide examples of the anti-LGBTIQ discrimination they had experienced and, just as with previous survey results, these comments are often confronting to read.

A lightly-edited[lxvi] version of the answers to this question – providing examples of homophobic, biphobic, transphobic and intersexphobic discrimination in relation to health, community services or aged care – can be found at the following link:

question-4-examples-of-health-community-services-and-aged-care-discrimination

These answers demonstrate a range of different ways in which LGBTIQ people were mistreated in comparison to cisgender heterosexual people, including:

One of the most common stories was denial of LGBTIQ relationships, including refusal to treat partners as next of kin:

“I was asked if I was in a relationship and what not and gender during a visit to a new and local doctor, I said yes and gender non-binary and I was put down as single and female. Single because my partner was a woman and the system didn’t have an option for same sex couples and it was “easier”.”

“Having my female partner not being able to be with me in emergency because it was family and partners only. (Had no family in the region at the time)”

“My wife was in emergency at [redacted] Hospital and the doctor did not want to discuss with me her condition or provide me with a carers certificate because of our sexuality”

“While an inmate in the mental health unit, the doctor assigned to me was very uncomfortable when my partner was in the room. And even though I gave permission, he would not treat my partner with respect or discuss my care with her.”

“At a hospital where my partner of over ten years was not accepted as my next of kin. I had to put my son down”

“Was at a hospital after becoming very ill and my girlfriend was holding my hand. Once my nurse noticed, her attitude towards me changed and she told me that “friends” couldn’t visit”

“While my girlfriend was in hospital and had come in via ambulance I was denied access to her / the ability to see her while she was in the emergency department because a receptionist didn’t believe we were partners. Clearly thought I was ‘just a friend’”

“I was critically ill and my partner was ignored by hospital staff as my next of kin”

Another common story related to an assumption that being gay (or bi, or trans) automatically equates to being at high risk of HIV, including being subjected to additional testing or ‘safety precautions’ – or, in one case, being denied testing:

“Feeling like the dentist did not want to treat me because I answered the at risk of HIV questions (in the 90s)”

“Disclosing that I had a same sex partner opened me up to extra medical testing before procedures, including unnecessary HIV testing unrelated to my procedure.”

“I was informed that due to being bisexual, I was at a high risk of STDs, regardless of the fact that I am married and in a monogamous relationship.”

“A doctor was dismissive of my health concerns and wrote me off as an HIV magnet for being transgender.”

“Because I am open about being gay, I have been repeatedly advised by health practitioners to have an HIV test when consulting them about a range of health issues that have no relation to HIV. Of course, I have had HIV tests and would do so again if I thought I had been at risk.”

“A GP refused to test me for HIV as he had “better things to do than take care of sexually promiscuous people like” me. I had not told him anything about my sex life apart from the fact that I was gay – this was purely a homophobic assumption on his behalf. He suggested I go to a free sexual health centre in the city instead.”

It is unsurprising that these attitudes translated to adverse treatment of people who are HIV-positive:

“A doctor was bombastic when I presented at ED when he learned I was HIV +. He just carried on about my HIV Status and not the issue I presented for”

Several respondents cited the blanket ban on sexually-active gay men donating blood as being anti-LGBTIQ discrimination:

“Apparently just cause I’m gay I can’t donate blood, even tho [sic] I get tested all the time probably more times than a straight person would in their life time”

“Gay men are not allowed to give blood if they’ve had sex within the past year. It is alienating and presumptuous”

This approach also applies to some transgender people:

“Refused to donate blood. Because blood donation is a purely altruistic act, this makes one feel apart from the community. The policy of the local blood collection organisations is to treat all transgender people like gay men, irrespective of the sex they were assigned at birth, the state of the individual’s legal document, the individual’s genitals, etc.”

There was a range of stories about homophobia from GPs:

“I had a sore throat and my GP suggested that it may be because men weren’t designed to suck cock.”

“Doctor called me a homo, and multiple doctors being uncomfortable discussing sexual health issues once finding out my sexuality.”

“Being told by a doctor that I am more prone to disease because I am homosexual”

“A GP at my local health centre treated me with caution and wrote a ridiculous warning on my medical file for anyone to see. “Warning: Homosexual relations”.”

Lesbian respondents also described a variety of discrimination they had experienced:

“Talking about sex with GPs and health providers, there’s an assumption that sex is only with the opposite sex and that nothing else is sexual. Even when in a monogamous same sex relationship doctors would assume and ask questions about male sex partners and dismiss my actual partner. Ie, could you be pregnant? When they know I’m a cis woman only having sex with a cis woman.”

“Local doctor told me that I couldn’t go on the pill to stop my painful periods due to endometriosis because I was not in a sexually active relationship with a man, that because I was lesbian and not at risk of falling pregnant there was no need to be put on the pill”

“I have had a doctor tell me that I shouldn’t get a pap smear because I had never had sex with someone who had a penis, which is just wrong information and could be detrimental to my health. This denial was also mixed with her confusion and homophobia around the fact that I was queer and I felt very uncomfortable and shamed.”

This included a particularly-horrific situation involving sexual assault:

“I have received many instances of refusal of care or denial of optimal care by health professionals because of my sexuality. But the one that still traumatises me is when I went for a Pap smear with a female gp and she inserted her fingers into my vagina (for what I now know is an optional test) without telling me. I screamed and told her to stop, but she continued saying people like me like this kind of thing…she raped me. While looking at me in the face. Because I am gay.”

As with previous survey results, the most frequent stories of discrimination came from trans respondents. This included blatant transphobia, as well as deadnaming and misgendering:

“I was referred to by a receptionist to one of her co-workers as ‘a dude who wants to cut his d*ck off.’ The other replied with ‘well, you don’t want those types to breed.’”

“In 2005 I was involved in a car crash which necessitated a precautionary visit to the emergency dept at [redacted] in Perth. An orderly could not contain his mirth at me being a transgender person and kept commenting about it and laughing at me several times over a period of hours while I was required to stay motionless on my back awaiting a spinal scan.”

“I was repeatedly misgendered by nurses in a public hospital despite my efforts to correct them”

“being continually misgendered and deadnamed at a hospital”

“No doctor has refused to treat me but I have had doctors refuse to refer to me as a male once they find out, or assume every ailment must be linked to being transgender.”

It also included a refusal to provide essential trans-related medical services:

“Doctor telling me I should not get PBS for testosterone because it’s a lifestyle choice not a medical condition”

“Had a doctor tell me to stop HRT because it was dangerous, he did not seem to think being trans was real.”

“Was prevented from getting access to medical treatment and to start my transitioning for over 6 yrs by doctors.”

“My first psychiatrist was a gatekeeper who denied me access to services essential to transition.”

Several trans respondents complained about systemic discrimination in place simply to access transition:

“I think having to get diagnosed with gender dysphoria and have your life torn open by a psychologist is fucking pretty discriminatory. It’s bullshit. My body, my rules.”

“the entire process for getting access to gender related assistance is transphobic”

This comment seemed to sum up the feelings of many:

“Most doctors are totally clueless about how to treat trans people.”

A concerning theme to several stories was homophobic, biphobic and transphobic treatment of LGBTIQ people accessing mental health services:

“I was in a psychiatric ward for severe mental health issues and I mentioned that I was queer. The registrar fixated on it and tried to make it out that my sexuality was the root of all my problems. He tried to pathologise it.”

“I also had a session with a counsellor who referred to me as having a split personality when they found out I was Transgender.”

“Psychologists were the worst, though. I have serious mental illness and part of the problem was sexual assault trauma and problems with harassment and discrimination because of being bisexual. The psychologists told me that it didn’t exist and that I had to choose and that “if you want women it means you need mothering in your relationships so work on that with men”. Dangerous lies.”

“My counsellor didn’t “believe” in LGBT people or issues and told me I just needed to “get a job, join a gym and eat healthy””

“In a psychiatric ward I got told that my being gay was a part of my mental illness and a contributing factor to my depression”

Domestic and family violence was also cited as an area of anti-LGBTIQ discrimination:

“I’ve contacted domestic violence places for support groups and been told ‘women only’ even though I’m non-binary, assigned female at birth, and don’t pass as male. When I’ve asked where I’m meant to go, they’re suggested men’s behavioural change programs (I was the victim, I ended up with PTSD!) and then said they had no idea.”

“DV situation cops didn’t take a woman abusing a woman seriously”

“Having no services for DV Support to get help after a 8 yr DV relationship. Mainstream services having no understanding of LGBTIQ relationships/ community”

Finally, there were several examples of anti-LGBTIQ discrimination on the basis of religious belief:

“I was hospitalised for a suicide attempt. While there, I was sent a chaplain instead of a nurse to watch me. He spent 6 hours telling me how I was going to hell and how much god hated me and my gender was all in my head.”

“I was offered help by the salvation army after I was forced to leave home. I was told that I could just go home, once I mentioned that the cause of my situation was abuse related to my sexuality, the belief seemed to be that I should somehow change my mind and then my parents would accept me.”

“I was refused for a counselling service because the organization was religion based and insisted they wouldn’t work with someone that was beyond help like me.”

“My job in regards to [employment-related organisation] was with a religious org and it ran aged care services. The org wouldn’t recognise an aging couple’s relationship and they were placed in 2 separate care homes”

**********

Conclusion

The results of these four questions have confirmed that homophobic, biphobic, transphobic and intersexphobic discrimination in health, community services or aged care is relatively widespread, and has a significant impact on many lesbian, gay, bisexual, transgender, intersex and queer Australians.

This includes more than 1 in every 5 respondents people reporting lifetime experience of such discrimination, with 11.7% reporting at least one instance of anti-LGBTIQ discrimination in health, community services or aged care in the last 12 months alone.

Some groups within the community reported even higher rates than these already high averages, with intersex and trans people, Aboriginal and/or Torres Strait Islander LGBTIQ people and people aged 25 to 44 particularly affected.

While the rates of discrimination by religious organisations were comparatively low, it is important to note than in most cases, such discrimination is entirely lawful, due to the wide-ranging and completely unjustified religious exceptions to anti-discrimination laws in the majority of Australian jurisdictions.

The personal examples of discrimination in health, community services and aged care shared in response to question 4 demonstrate the different forms such prejudice can take, with many heart-breaking stories of homophobia, transphobia and even discrimination by mental health services.

As noted at the beginning of this post, this has been the last in my series of six articles reporting the results of my The State of Homophobia, Biphobia and Transphobia survey.

Thank you to all those people who participated in the survey, and of course to everyone who has read the results I have published. Hopefully, through this process we have demonstrated the ongoing problems caused by homophobia, biphobia, transphobia and intersexphobia in Australia – and the urgent need for our lawmakers and decision-makers to take action to address these issues.

Finally, if you would like to continue to receive articles on LGBTI rights, please sign up to this blog: on mobile, at the bottom of this page, or on desktop at the top right-hand corner of the screen.

**********

If this post has raised any issues for you, you can contact:

QLife, Australia’s national telephone and web counselling and referral service for LGBTI people.

Freecall: 1800 184 527, Webchat: qlife.org.au (3pm to midnight every day)

Lifeline: 13 11 14, lifeline.org.au

Footnotes:

[i] The previous posts can be found here:

Part 1: Verbal Harassment and Abuse

Part 2: Physical Abuse or Violence

Part 3: Where Discriminatory Comments Occur and Their Impact

Part 4: Discrimination in Education

Part 5: Discrimination in Employment

[ii] Noting that discrimination against LGBTI people accessing aged care services from Commonwealth-funded aged care facilities operated by religious organisations is prohibited by the Sex Discrimination Act 1984 (although those same protections do not cover LGBTI employees in those facilities).

[iii] 343 people responded to question 2: 189 yes/154 no.

[iv] 344 people responded to question 3: 59 yes/285 no.

[v] 317 people responded to question 1: 84 yes/233 no.

[vi] 46 respondents.

[vii] 11 respondents.

[viii] 626 people responded to question 1: 124 yes/502 no.

[ix] 62 respondents.

[x] 17 respondents.

[xi] 508 people responded to question 1: 82 yes/426 no.

[xii] 44 respondents.

[xiii] 24 respondents.

[xiv] 365 people responded to question 1: 129 yes/236 no.

[xv] 91 respondents.

[xvi] 14 respondents.

[xvii] 15 people responded to question 1: 6 yes/9 no. Note that, given the small sample size, these percentages should be treated with some caution.

[xviii] 2 respondents.

[xix] 1 respondent.

[xx] 480 people responded to question 1: 142 yes/338 no.

[xxi] 92 respondents.

[xxii] 22 respondents.

[xxiii] 43 respondents total, with 16 yes to question 1 and 11 yes to question 2.

[xxiv] 57 respondents total, with 23 yes to question 1 and 16 yes to question 2.

[xxv] 120 respondents total, with 32 yes to question1 and 20 yes to question 2.

[xxvi] 183 respondents total, with 75 yes to question 1 and 59 yes to question 2.

[xxvii] 57 people responded to question 1: 14 yes/43 no.

[xxviii] 10 respondents.

[xxix] 1 respondent.

[xxx] 860 people responded to question 1: 135 yes/725 no.

[xxxi] 93 respondents.

[xxxii] 28 respondents.

[xxxiii] 431 people responded to question 1: 134 yes/297 no.

[xxxiv] 68 respondents.

[xxxv] 17 respondents.

[xxxvi] 274 people responded to question 1: 65 yes/209 no.

[xxxvii] 25 respondents.

[xxxviii] 11 respondents.

[xxxix] 31 people responded to question 1: 8 yes/23 no. Note that, given the small sample size, these percentages should be treated with some caution.

[xl] 3 respondents.

[xli] 3 respondents.

[xlii] 524 people responded to question 1: 112 yes/412 no.

[xliii] 57 respondents.

[xliv] 14 respondents.

[xlv] 378 people responded to question 1: 86 yes/292 no.

[xlvi] 47 respondents.

[xlvii] 15 respondents.

[xlviii] 245 people responded to question 1: 54 yes/191 no.

[xlix] 28 respondents.

[l] 15 respondents.

[li] 149 people responded to question 1: 33 yes/116 no.

[lii] 19 respondents.

[liii] 4 respondents.

[liv] 133 people responded to question 1: 26 yes/107 no.

[lv] 19 respondents.

[lvi] 4 respondents.

[lvii] 106 people responded to question 1: 17 yes/89 no.

[lviii] 11 respondents.

[lix] 2 respondents.

[lx] 56 people responded to question 1: 13 yes/43 no.

[lxi] 6 respondents.

[lxii] 4 respondents.

[lxiii] 20 people responded to question 1: 4 yes/16 no. Note that, given the small sample size, these percentages should be treated with some caution.

[lxiv] 2 respondents.

[lxv] 1 respondent.

[lxvi] In this context, lightly-edited includes:

-Removing identifying information

-Removing potentially defamatory comments and

-Removing offensive remarks.

I have also corrected some spelling/grammatical mistakes for ease of reading.

The State of Homophobia, Biphobia & Transphobia Survey Results, Part 5: Discrimination in Employment

Posted on May 28, 2017 by Alastair Lawrie

This post is the fifth in a series of six, reporting the results of The State of Homophobia, Biphobia & Transphobia survey I conducted at the start of 2017[i].

In all, 1,672 lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) Australians provided valid responses to that survey.

In this article, I will be focusing on their answers to four questions, asking whether they have ever experienced discrimination in employment, whether any of this discrimination occurred in the past 12 months, whether this discrimination related to employment by religious organisations and to provide an example of the discrimination that they experienced.

The responses to these questions confirm that too many LGBTIQ Australians have to worry about discrimination on the basis of their sexual orientation, gender identity and intersex status in the workplace on top of the usual career and financial worries.

The question about whether any of this discrimination occurred in relation to employment by a religious organisation is important because of the existence of special rights to discriminate for these employers in most states and territories, leaving LGBTI employees in these circumstances without any legal redress.

I also encourage you to read the examples provided in response to question four, which reveal some of the many different types of employment-related discrimination that LGBTIQ people have encountered.

The State of Homophobia, Biphobia & Transphobia-11

Question 1: Have you ever experienced discrimination because of your sexual orientation, gender identity or intersex status in relation to employment (including as an employee, contract worker or job applicant)?

Question 2: Has one or more instances of this employment-related discrimination occurred in the past 12 months?

Question 3: Did any of this discrimination occur in relation to employment, or an application for employment, with a religious organisation?

Of the 1,622 people who answered the first question, 491 – or 30% – said they had experienced employment-related discrimination at some point in their lives.

Disturbingly, 235 survey respondents[ii] reported experiencing anti-LGBTIQ discrimination in employment in the past 12 months alone. That is 14.5% of the total, or 1 in every 7 people who completed the survey.

The proportion that reported employment-related discrimination by religious organisations was 6.1%[iii]. This is thankfully much lower than the proportion that had reported discrimination by religious schools (in Survey Results, Part 4) – although that is likely a reflection of the expansive reach of religious schools, and comparatively smaller employment footprint of religious bodies.

Nevertheless, most of those 6% probably had no recourse to anti-discrimination protections given the excessive, and unjustified, exceptions provided to religious organisations in most Australian jurisdictions.

LGBTIQ Status

There were some significant differences in reported employment-related discrimination between lesbian, gay, bisexual, transgender, intersex and queer survey respondents:

Lesbian

31.6%[iv] reported employment-related discrimination at some point
15.3%[v] experienced at least one instance in the last 12 months
7.8%[vi] experienced employment-related discrimination by a religious organisation

Gay

34.3%[vii] reported employment-related discrimination at some point
13%[viii] experienced at least one instance in the last 12 months
5.9%[ix] experienced employment-related discrimination by a religious organisation

Bisexual

20.3%[x] reported employment-related discrimination at some point
11.1%[xi] experienced at least one instance in the last 12 months
4.3%[xii] experienced employment-related discrimination by a religious organisation

Transgender

44.4%[xiii] reported employment-related discrimination at some point
29.2%[xiv] experienced at least one instance in the last 12 months
6.8%[xv] experienced employment-related discrimination by a religious organisation

Intersex

73.3%[xvi] reported employment-related discrimination at some point
40%[xvii] experienced at least one instance in the last 12 months
20%[xviii] experienced employment-related discrimination by a religious organisation

Queer

30.3%[xix] reported employment-related discrimination at some point
16.9%[xx] experienced at least one instance in the last 12 months
6%[xxi] experienced employment-related discrimination by a religious organisation

LGBTIQ Category	Experienced anti-LGBTIQ discrimination in employment (%)?
LGBTIQ Category	Ever	Last 12 months	By religious organisation
Lesbian	31.6	15.3	7.8
Gay	34.3	13	5.9
Bisexual	20.3	11.1	4.3
Transgender	44.4	29.2	6.8
Intersex	73.3	40	20
Queer	30.3	16.9	6

The highest rates for all three were from intersex respondents, although the small sample size for that group (n=15) means those figures should be treated with some caution.

Of the other groups, there was a large degree of consistency, with two main exceptions:

Bisexual respondents reported significantly lower rates of employment-related discrimination in all three areas (ever, last 12 months and by religious organisations), and
Transgender respondents reported significantly higher rates of lifetime employment-related discrimination, and particularly in the last 12 months (although, interestingly, not in terms of discrimination by religious organisations).

Taking a closer look at the trans cohort, and in particular respondents who identified as both trans and another LGBQ category, the figures[xxii] were as follows:

Trans and lesbian: 37.2%[xxiii] ever, and 25.6% in the last 12 months

Trans and gay: 47.4%[xxiv] ever, and 28% in the last 12 months

Trans and bisexual: 36.1%[xxv] ever, and 24.6% in the last 12 months, and

Trans and queer: 42.2%[xxvi] ever, and 25.9% in the last 12 months.

While there was little variation in terms of discrimination over the past 12 months (at a disturbingly high 1-in-4 across all groups), trans and queer, and especially trans and gay respondents were more likely to report lifetime discrimination in employment than the other two groups.

Overall, then, while lesbian, gay and queer people reported close-to-(the LGBTIQ)-average levels of employment-related discrimination across the board, bisexual respondents reported lower rates.

On the other hand, intersex and transgender respondents were particularly affected by discrimination in employment, with people who were both trans and gay and (to a lesser extent) trans and queer more likely to report lifetime discrimination.

Aboriginal and Torres Strait Islander People

The rates of discrimination for Aboriginal and/or Torres Strait Islander LGBTIQ people were higher for all three questions than for their non-Indigenous counterparts, although thankfully in relation to discrimination in the past 12 months and by religious organisations these rates were only slightly elevated:

37.9%[xxvii] reported employment-related discrimination at some point (compared to 30% of non-Indigenous people)
15.5%[xxviii] experienced at least one instance in the past 12 months (compared to 14.5% of non-Indigenous people) and
6.9%[xxix] experienced employment-related discrimination by a religious organisation (compared to 6.1% of non-Indigenous people).

	Experienced anti-LGBTIQ discrimination in employment (%)?
	Ever	Last 12 months	By religious organisation
Aboriginal and/or Torres Strait Islander	37.9	15.5	6.9
Non-Indigenous	30	14.5	6.1

Age

These results are potentially the most interesting of this post:

Aged 24 and under

20.9%[xxx] reported employment-related discrimination at some point
13.8%[xxxi] experienced at least one instance in the past 12 months
3.8%[xxxii] experienced employment-related discrimination by a religious organisation

25 to 44

36.9%[xxxiii] reported employment-related discrimination at some point
16.2%[xxxiv] experienced at least one instance in the past 12 months
7%[xxxv] experienced employment-related discrimination by a religious organisation

45 to 64

48.5%[xxxvi] reported employment-related discrimination at some point
16.1%[xxxvii] experienced at least one instance in the past 12 months
11.3%[xxxviii] experienced employment-related discrimination by a religious organisation

65 and over

41.9%[xxxix] reported employment-related discrimination at some point
None experienced any instance in the past 12 months
16.1%[xl] reported discrimination at a religious school or college

Age cohort	Experienced anti-LGBTIQ discrimination in employment (%)?
Age cohort	Ever	Last 12 months	By religious organisation
24 and under	20.9	13.8	3.8
25 to 44	36.9	16.2	7
45 to 64	48.5	16.1	11.3
65 and over	41.9	0	16.1

Young people obviously have less employment history, and therefore the lower rates of reported lifetime discrimination are perhaps unsurprising. However, the fact that almost 1-in-7 suffered employment-related discrimination during the past 12 months alone, when a significant share would not even be in the workforce at all, is shocking.

Lifetime rates of discrimination then increase for the next two age groups, peaking at almost 1-in-2 for LGBTIQ people aged 45 to 64. In effect, just as many people in this cohort have experienced discrimination in employment as those who have escaped its impact – another remarkable statistic.

Perhaps just as depressing is the fact that for both people aged 25 to 44, and 45 to 64, the rates of recent anti-LGBTIQ prejudice in employment were roughly the same – at a time when they should be more ‘secure’ in their careers, almost 1-in-6 experienced employment related discrimination in the last year alone.

State or Territory of Residence

The final demographic category according to which I have analysed the survey results is the state or territory of residence:

New South Wales

28.7%[xli] reported employment-related discrimination at some point
13.4%[xlii] experienced at least one instance in the last 12 months
5.7%[xliii] experienced employment-related discrimination by a religious organisation

Victoria

33%[xliv] reported employment-related discrimination at some point
14.2%[xlv] experienced at least one instance in the last 12 months
6.6%[xlvi] experienced employment-related discrimination by a religious organisation

Queensland

36.6%[xlvii] reported employment-related discrimination at some point
17.5%[xlviii] experienced at least one instance in the last 12 months
6.9%[xlix] experienced employment-related discrimination by a religious organisation

Western Australia

32.7%[l] reported employment-related discrimination at some point
17.3%[li] experienced at least one instance in the last 12 months
5.3%[lii] experienced employment-related discrimination by a religious organisation

South Australia

26.3%[liii] reported employment-related discrimination at some point
15.8%[liv] experienced at least one instance in the last 12 months
7.5%[lv] experienced employment-related discrimination by a religious organisation

Tasmania

20.4%[lvi] reported employment-related discrimination at some point
9.3%[lvii] experienced at least one instance in the last 12 months
3.7%[lviii] experienced employment-related discrimination by a religious organisation

Australian Capital Territory

19.6%[lix] reported employment-related discrimination at some point
14.3%[lx] experienced at least one instance in the last 12 months
3.6%[lxi] experienced employment-related discrimination by a religious organisation

Northern Territory

35%[lxii] reported employment-related discrimination at some point
10%[lxiii] experienced at least one instance in the last 12 months
15%[lxiv] experienced employment-related discrimination by a religious organisation

State or territory	Experienced anti-LGBTIQ discrimination in employment (%)?
State or territory	Ever	Last 12 months	By religious organisation
NSW	28.7	13.4	5.7
Victoria	33	14.2	6.6
Queensland	36.6	17.5	6.9
WA	32.7	17.3	5.3
SA	26.3	15.8	7.5
Tasmania	20.4	9.3	3.7
ACT	19.6	14.3	3.6
NT	35	10	15

These results were largely consistent across state and territory boundaries (thus lending weight to the overall figures, discussed earlier).

Tasmania and the ACT reported low lifetime rates of employment-related discrimination, with Queensland recording the highest rates (alongside the Northern Territory, although note the latter’s small sample size, n=20).

Queensland and Western Australia reported higher levels of anti-LGBTIQ prejudice in the workplace during the last year – more than 1-in-6 employees reporting recent discrimination. Tasmania (and the Northern Territory) reported the lowest rates – but that nevertheless reflected the fact 1-in-10 LGBTIQ people were discriminated against in 2016 alone.

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Question 4: If you feel comfortable, please provide an example of the discrimination you experienced in relation to employment [Optional]:

This question allowed respondents to provide examples of the anti-LGBTIQ discrimination they had experienced and, just as with previous survey results, these comments are often confronting to read.

A lightly-edited[lxv] version of the answers to this question – providing examples of homophobic, biphobic, transphobic and intersexphobic discrimination in relation to employment – can be found at the following link:

question 4 examples of discrimination in employment

These answers demonstrate a range of different ways in which LGBTIQ people were mistreated in comparison to cisgender heterosexual employees, including:

Being refused employment

“I was told “we don’t hire faggy trans here, or anywhere in this town. If you come back in this shop, we’ll shoot you.””

“I was hired as CEO for a charity. After three interviews, a psych test and a video presentation, I was told I was the leading candidate by a mile. We negotiated start date and salary. As part of the process, I disclosed I was married to a man. That disclosure happened at 305pm on a Monday. At 740am Tuesday, I received an email advising me that the offer was withdrawn. They, of course, did not say it was because I was gay. I, apparently, did not demonstrate sufficient interest in the job.”

“Denied a job based on cultural reasons – sexuality not part of our culture therefore cannot teach about said culture. Offer of employment rescinded.”

“Got a job interview but as soon as they saw that I was a dyke I didn’t even get a chance to speak to them they acted awkward and uncomfortable and said I wouldn’t suit the job.”

Being fired from employment

“when they found i was homosexual i was sacked from my position as bar attendant in a league club”

“Refused employment because of my transgender status, the supervisor found a reason for dismissal on day one and asked what dose oestrogen I was on as my voice is deep and upsetting my patients”

Losing shifts, especially in casual or part-time employment

“My old maccas got a new restaurant manager who hated me because of it and stopped giving me shifts.”

“At my last job my employer found out I was a lesbian and coincidentally I stopped receiving any shifts.”

“I was in a casual position, the moment I began to transition however, I was shoved sideways and out the door. No more hours.”

Contracts not being renewed

“My contract was not renewed because I am gay”

“I believe that when my homophobic boss found out I was gay, she discontinued my contract”

Being denied other employee entitlements

“I wasn’t allowed to nominate my partner to receive my superannuation in the event of my death.”

Some survey respondents indicated they were punished because of fears (real or perceived) that clients would react badly to their sexual orientation or gender identity:

“I have been turned down for some jobs where I would be dealing with the public in hospitality because I was a non passing trans woman.”

“I had a job interview with an organisation specialising in disability support in the Midland area (Western Australia), to work as a disability support officer. I had already done exactly the same work for about a year with two other similar organisations which both wanted me to take on more hours. Because those organisations were both a long drive from where I lived I wanted to change to a closer employer. At the end of the interview one of the two interviewers said they could not employ a transgender person because their clients would not accept me. Funny that, their clients must have been very different from the other clients who accepted me without question.”

“Clients have refused to hire me and have been open about it being related to my sexuality. My clients’ clients have been very vocal and made complaints about hiring me because of my work with young people and their sexuality/gender identity/expression”

For some, workplace homophobia, biphobia, transphobia or intersexphobia was explained by a need to ‘protect’ children:

“I was sacked in 1987 because I was gay and working as a swimming teacher with children. Despite my full accreditation this was perceived to be inappropriate. I had no resources to take legal action as I was just 19, from a poor background and despite being the regional swimming champion the community had turned against me.”

“One employer was so uncomfortable with my sexuality that he would not allow his 3 daughters to have contact with me despite bringing them into the office frequently.”

“In 2012 my boss suggested that we have 2 Christmas dinners. One for people with kids, and a separate one with just me and the 2 bosses because “it’s not appropriate to allow a gay man near the kids of other staff members”. I worked at an adult store (sex shop), where I thought I’d be accepted by open minds. I was wrong.”

“I was doing work with teenagers at my church’s youth group, but when I refused to hide my sexuality I was told that I was being a bad influence on the kids and would let the devil into their lives and condemn them to damnation. I was no longer allowed to work with the teenagers.”

This last example points to a much larger issue – employment-related discrimination by religious organisations, as evidenced by the following responses:

“I was a charge nurse of an operating suite that had successfully turned around the fortunes of a religious based hospital: a new manager was appointed that decided to “root out’ all the homosexuals working in the organisation.”

“I have been asked to sign a document that guarantees my not wilfully “sinning” (listing homosexual acts as one of those sins) in order to be considered for employment at a religious school.”

“After completing my course with results and references from teachers and clinical placements which were far superior to other students, I received no interviews or call backs from employers from religious organisations. I did find work at a private company in my field and am doing well in my job. I feel like my talents and abilities were denied to the clients of these religious employers because of my gender identity and my employment options were severely limited.”

“I work as a nurse at a religious based hospital and I experience bullying/ homophobic remarks frequently at work”

“company bought out by exclusive brethren, all gays got sacked, was obvious, but they got away with it. “company restructure”…”

“I was employed by the Salvation Army. They told me not to have a photo of me and my partner on my desk even though all the Het people had their photos on their desks. I was then told they accept me being a Lesbian provided I’m not a practicing Lesbian. They put a private detective on me and harassed me out of my job.”

“I was required to resign my job in 2006 when I came out as gay because my employer was religious. The job had only tangential connection to his religion. I chose not to fight the discrimination – I had lost the heart to work there any more any way. I was then unemployed for 8 months.”

“Before I moved into my own practice, I was working in a Baptist school on a maternity leave position. The position then became a permanent role. My manager wanted me to apply and she put my name forward. They pretty much told her that they did not want me in the role because of my “sexuality”…”

“Many years ago I won a job in a religious school, was offered the job and then the offer was withdrawn with the explanation that I would not fit the culture.”

The public service was not exempt from examples of anti-LGBTIQ discrimination (although some were more historical than others):

“Being told my sexuality would count against me in an interview for a public sector position.”

“In 2012 I was appointed as [senior position] in the [redacted] government. It was a high level and high profile appointment. The Deputy Secretary of the Department who appointed me, wrongly informed the Secretary (i.e. CEO) of the Department that I was gay, in the period when I was coming on board in the role. His response? He told the Dep Sec “I hope he’s not going to flaunt it”. This from one of the highest paid public servants in the entire public service in [redacted] – and the very person who was supposed to safeguard the rights of me and all his other employees. Unbelievable!”

“In the early 1990s, I was working in the Commonwealth Public Service in Sydney. I applied for a job at a higher level and was accepted for interview. I was told that although I had come first in the selection process, the job was going to be given to the second-rated candidate because as he was a “family man” he deserved the promotion (and increase in income) more than I did.”

“Face significant formal (policy) and informal (cultural attitudes) discrimination in the workplace as an ADF member. Whilst this is improving, it is wrong to say that I am not discriminated against – e.g. placed in the wrong accommodation area, having to adhere to binary uniform codes, etc.”

As suggested by the statistics earlier, transgender respondents provided a range of examples of workplace discrimination:

“Very difficult to apply for job when all experience and jobs were held under previous identity”

“I was told that because I wasn’t using my legal name in my application, I couldn’t be input into their system, and hence did not receive an interview.”

“After losing my job, at every interview I’ve been told I ‘got the job’, and once they receive my legal documents and tax file number they never get back to me. At one interview, they told me that my gender identity was a ‘mental illness’ and they needed a doctor’s note before I could work.”

“HR seemed to take me seriously at first but whenever I would make a small mistake she would blame it on my transition saying that I was a different and less capable person (primarily she blamed hormone therapy). Most of the time she would talk about me to other people and I needed to quit that job for my own mental health.”

“Employers felt uncomfortable with my gender identity and asked me not to wear a binder at work. I’ve started presenting as only female at work now. It’s killing me”

“Despite the fact I had a name tag that said Adam and had introduced myself as trans, I was constantly called she. I complained to a manager and it happened again, in a group chat to all employees and managers I yet again said in the kindest way that I do wish to be respected and not misgendered and later that night and from then on was still misgendered.”

“Refusal to change name in email system. Misgendering during heated discussions (seemingly deliberate). Office doesn’t have gender-neutral toilets, asked to use toilets of assigned gender. Could go on…”

“When I finally told my work I was Transitioning I was made to feel an outcast and I finally left the position”

“My work requires i wear a male uniform regardless of my gender identity. I didn’t get a choice of what gender uniform. Only got to choose the size”

Disturbingly, some survey respondents reported complaining about the anti-LGBTIQ conduct they experienced, but then no (or insufficient) action being taken:

“I have also been the subject of religious based hate speech in a non religious school in the lunch room and that was let slide despite my protestations.”

“Gay and AIDS jokes being made, and then on one occasion when i complained to the manager, the manager made me stay home whilst she investigated the complaint, which made me feel as if I was being punished and not the offender.”

A few respondents noted the difficulty of proving homophobic discrimination:

“It’s really hard to explain, you know when people are making decisions about you without actually saying out loud it’s homophobia. It can be very obscure & hard to prove, but its there alright.”

“I can’t prove it but have a strong suspicion my position was made redundant because my boss found out I was gay”

This final comment explicitly describes discrimination by religious organisations, the fact that it remains completely lawful in most circumstances, and the impact that this has:

“This is an area that I get upset about, especially working for a religious organisation. The invisibility and intolerance by some people is hard to bear, especially knowing that religious organisations are exempt from the Anti-Discrimination Act. Living with the fear that if management realise you are gay and sack you for being gay – this is TOTALLY LEGAL. This is totally unjust and disgraceful that anti-discrimination law actually endorses and permits discrimination. I recently had a new manager who, though looking cool, held some very conservative views. I didn’t dare sound him out on gay issues, because I would have been lectured that I was an abomination for being gay (as other people have told me). This leads me to not reveal my true identity at work and to live in some fear of discrimination (knowing the law does not protect me)”

**********

Conclusion

The results of these four questions have confirmed that homophobic, biphobic, transphobic and intersexphobic discrimination in employment is relatively widespread, and has a significant impact on lesbian, gay, bisexual, transgender, intersex and queer Australians.

This includes 3 in every 10 respondents people reporting lifetime experience of such discrimination, with 1 in 7 reporting at least one instance of anti-LGBTIQ discrimination in employment in the last 12 months alone.

Some groups within the community reported even higher lifetime rates than this already high average, with intersex and trans people, Aboriginal and/or Torres Strait Islander LGBTIQ people and people aged 45 to 64 particularly affected.

While the rates of discrimination by religious organisations were comparatively low, this is likely explained by the lower numbers of people employed in this sector (especially compared to the far higher proportion of students in religious schools).

The personal examples of employment-related discrimination shared in response to question 4 demonstrate the many different forms such prejudice can take, with a particular focus on transphobia, and discrimination by religious organisations (noting that such mistreatment is entirely lawful in most jurisdictions due to religious exceptions to anti-discrimination laws).

As noted at the beginning of this post, this has been the fifth in my series of six articles reporting the results of my The State of Homophobia, Biphobia and Transphobia survey. The remaining article, which will focus on discrimination in health and other areas, will be published within the next week.

If you would like to receive updates of these results, please sign up to this blog: on mobile, at the bottom of this page, or on desktop at the top right-hand corner of the screen.

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If this post has raised any issues for you, you can contact:

QLife, Australia’s national telephone and web counselling and referral service for LGBTI people.

Freecall: 1800 184 527, Webchat: qlife.org.au (3pm to midnight every day)

Lifeline: 13 11 14, lifeline.org.au

Footnotes:

[i] The previous posts can be found here:

Part 1: Verbal Harassment and Abuse

Part 2: Physical Abuse or Violence

Part 3: Where Discriminatory Comments Occur and Their Impact

Part 4: Discrimination in Education

[ii] 490 people responded to question 2: 235 yes/255 no.

[iii] 490 people responded to question 3: 99 yes/391 no.

[iv] 320 people responded to question 1: 101 yes/219 no.

[v] 49 respondents.

[vi] 35 respondents.

[vii] 629 people responded to question 1: 216 yes/413 no.

[viii] 82 respondents.

[ix] 37 respondents.

[x] 513 people responded to question 1: 104 yes/409 no.

[xi] 57 respondents.

[xii] 22 respondents.

[xiii] 367 people responded to question 1: 163 yes/204 no.

[xiv] 107 respondents.

[xv] 62 respondents.

[xvi] 15 people responded to question 1: 11 yes/4 no. Note that, given the small sample size, these percentages should be treated with some caution.

[xvii] 6 respondents.

[xviii] 3 respondents.

[xix] 485 people responded to question 1: 147 yes/338 no.

[xx] 82 respondents.

[xxi] 29 respondents.

[xxii] I have excluded the figures for discrimination by religious employers, which ranged from 1.8% for trans and gay, to 8.1% for trans and queer, with trans and lesbian, and trans and bisexual, sitting in the middle.

[xxiii] 43 respondents total, with 16 yes to question 1 and 11 yes to question 2.

[xxiv] 57 respondents total, with 27 yes to question 1 and 16 yes to question 2.

[xxv] 122 respondents total, with 44 yes to question1 and 30 yes to question 2.

[xxvi] 185 respondents total, with 78 yes to question 1 and 48 yes to question 2.

[xxvii] 58 people responded to question 1: 22 yes/36 no.

[xxviii] 9 respondents.

[xxix] 4 respondents.

[xxx] 871 people responded to question 1: 182 yes/689 no.

[xxxi] 120 respondents.

[xxxii] 33 respondents.

[xxxiii] 431 people responded to question 1: 159 yes/272 no.

[xxxiv] 70 respondents.

[xxxv] 30 respondents.

[xxxvi] 274 people responded to question 1: 133 yes/141 no.

[xxxvii] 44 respondents.

[xxxviii] 31 respondents.

[xxxix] 31 people responded to question 1: 13 yes/18 no. Note that, given the small sample size, these percentages should be treated with some caution.

[xl] 5 respondents.

[xli] 530 people responded to question 1: 152 yes/378 no.

[xlii] 71 respondents.

[xliii] 30 respondents.

[xliv] 379 people responded to question 1: 125 yes/254 no.

[xlv] 54 respondents.

[xlvi] 25 respondents.

[xlvii] 246 people responded to question 1: 90 yes/156 no.

[xlviii] 43 respondents.

[xlix] 17 respondents.

[l] 150 people responded to question 1: 49 yes/101 no.

[li] 26 respondents.

[lii] 8 respondents.

[liii] 133 people responded to question 1: 35 yes/98 no.

[liv] 21 respondents.

[lv] 10 respondents.

[lvi] 108 people responded to question 1: 22 yes/86 no.

[lvii] 10 respondents.

[lviii] 4 respondents.

[lix] 56 people responded to question 1: 11 yes/45 no.

[lx] 8 respondents.

[lxi] 2 respondents.

[lxii] 20 people responded to question 1: 7 yes/13 no. Note that, given the small sample size, these percentages should be treated with some caution.

[lxiii] 2 respondents.

[lxiv] 3 respondents.

[lxv] In this context, lightly-edited includes:

-Removing identifying information

-Removing potentially defamatory comments and

-Removing offensive remarks.

I have also corrected some spelling/grammatical mistakes for ease of reading.

Dear Malcolm Turnbull. Pass. Marriage. Equality. Now.

Posted on May 27, 2017 by Alastair Lawrie

The Hon Malcolm Turnbull MP

Prime Minister of Australia

PO Box 6022

House of Representatives

Parliament House

Canberra ACT 2600

Saturday 27 May 2017

Dear Prime Minister

Pass. Marriage. Equality. Now.

I am writing to you again about a subject that may be just another political problem for you to deal with, but for me is something very close to my heart.

And that is to ask you, and the Government you lead, to allow a parliamentary vote on marriage equality so that tens of thousands of couples around Australia can finally get married.

Couples like my fiancé Steven and me.

We’ve been together for almost nine years. We’ve been engaged for more than seven. And yet it is now looking increasingly unlikely Steven and I will be able to wed before our 10^th relationship anniversary in August 2018.

The way things are going, we may not even be able to get married by our 10^th ‘engagement-versary’ in January 2020.

All because we are two men, in love, but whose Parliament continues to refuse to treat that love equally to that between a man and a woman.

It’s not right. We know it. As opinion poll after opinion poll demonstrates, the vast majority of the Australian community know it. Deep down, you know it too.

You must know that all Australians deserve the same right to marry their partner that you enjoyed with your wife Lucy more than 37 years ago – and that right must not be denied simply because of the sexual orientation, gender identity or intersex status of the people involved.

It’s time for you to act on that knowledge. It’s time for you to summon the courage to stand up to the homophobes who believe that the Marriage Act should define some couples as being more worthy of legal recognition, and acceptance, than others.

It’s time for you to bring on a free vote inside the Parliament to resolve this issue once and for all.

Steven and me – and literally tens of thousands of couples just like us – have waited long enough for the right to say ‘I do’. All it takes to fix this horrible, and frustrating, situation is for you to finally show some leadership.

In doing so, however, you must also ensure that any amendments that are passed do not simply replace one form of discrimination with another.

I make that request because the draft legislation released by your Attorney-General, Senator George Brandis, in October of last year, would have done exactly that.

The Exposure Draft Marriage Amendment (Same-Sex Marriage) Bill would have allowed same-sex couples to legally marry, but it would also have allowed civil celebrants, religious-operated ‘for profit’ businesses and even military chaplains to discriminate against lesbian, gay, bisexual, transgender and intersex (LGBTI) people who simply wanted the right to wed.

Even worse, it singled out LGBTI couples, and LGBTI couples only, for this adverse treatment. Such homophobia, biphobia, transphobia and intersexphobia is unacceptable.

Changes to the Marriage Act 1961 should be aimed at removing these prejudices from Commonwealth law, not inserting them into new areas.

Given my serious concerns about the possibility of new ‘special rights to discriminate’ being introduced as part of any reforms, I started a petition on Change.org demanding that ‘Equal love should not be treated unequally’.

With little promotion, almost 800 people have signed this petition to you, endorsing the message that:

“Marriage equality should be exactly that: equality. It should not be undermined with provisions that treat the marriages of lesbian, gay, bisexual, transgender and intersex Australians differently from anyone else.

“Unfortunately, your proposed Marriage Amendment (Same-Sex Marriage) Bill would create new special rights to discriminate against any couple that is not ‘a man and a woman’.

“Please replace this legislation with a Bill that achieves genuine marriage equality, and most importantly one that would not see LGBTI couples treated worse than their non-LGBTI counterparts.”

I attach a copy of this petition with this letter. I encourage you to read the many passionate comments shared by its signatories, including:

“Equality cannot be conditional: that means we must have the same laws and the same language for everyone.”

“I want my gay daughter to be exactly equal under the law, not almost equal!”

“Marriage equality must be equal, without any added clause that would allow discrimination.”

“There should not be any people more equal than others. And there should definitely not be anyone allowed to discriminate against LGBTI couples. Equal means equal. Full stop.”

“Equality should be equal, simple as that. The Bill should make all couples equal, not with some being more equal than others.”

“Equality has no exemption clauses.”

“To allow this bill to pass in its current form is to give approval to more homophobia. The current religious exemptions are enough – there is NO NEED to allow celebrants, or any business, to discriminate against LGBTI people and in fact to do so is just plain wrong. Change it now.”

“Everyone should have the right to marry if they wish. Allowing individuals such as celebrants and organisations that provide goods and services to discriminate is not acceptable. Equality is the aim and should be able to be achieved quite simply and easily.”

The full list of comments is available here: Equal Love should not be Treated Unequally Petition – Comments

These are people expressing not only their desire for marriage, but just as importantly the need for genuine marriage equality – with a Marriage Act that treats all couples exactly the same. Nothing more. Nothing less. And, really, that’s not much to ask for.

Finally, I am sure that you are already aware of the recent death of long-time LGBTI rights campaigner Peter ‘Bon’ Bonsall-Boone.

Earlier this year, in a much-shared video he and his partner of more than 50 years, Peter de Waal, personally urged you to pass marriage equality. Knowing that he was terminally ill, Bon said that:

“Marriage for Peter and me would be a great fulfilment of many years of association and love, and then I will know that we are officially a part of each other. Which we have been of course, for 50 years, but that’s unofficially part of each other. To make it official would be just great.”

Unfortunately, Peter and Bon never got their wish. Not because it couldn’t have been passed in time – it could have. Simply because our country’s politicians lacked the will to do so.

Obviously, that includes you too. As Prime Minister, you bear more responsibility than any other person in Australia for the failure of marriage equality to be passed this year. And last year. Indeed, you shoulder a significant share of the blame for the twenty months since you assumed ‘the top job’ in September 2015.

Peter and Bon are not the first couple in that period where one (or both) has passed away, denied forever their chance to be treated equally under the law. They are simply the most high profile.

Nor will they be the last to suffer that fate.

But the question of how many more LGBTI couples are permanently denied the right to legal equality is something you have control over.

You cannot undo the past, but, if you choose to act now, you can prevent other couples from experiencing the same heart-breaking outcome as Peter and Bon, and countless other couples before them.

The disappointing thing is, I don’t actually believe you entered politics with the desire to be the Prime Minister that unnecessarily extended the mistreatment of lesbian, gay, bisexual, transgender and intersex Australians, and our relationships.

But that is the role that you are currently playing, and will continue to play, until you allow a parliamentary vote and ensure marriage equality is finally passed.

In the meantime, Steven and I, our family members and friends, and tens of thousands of other LGBTI couples and their families and friends – indeed all Australians who support the equal treatment of equal love – are left waiting, in a state of fading hope and growing desperation.

Please, Prime Minister, allow a free vote and Pass. Marriage. Equality. Now.

Sincerely,

Alastair Lawrie

How many more people die without enjoying equality is in your hands, Prime Minister Turnbull.

Submission to Inquiry into the Status of the Human Right to Freedom of Religion or Belief

Posted on May 25, 2017 by Alastair Lawrie

Update #2:

On 3 April 2019 – immediately prior to the Morrison Liberal-National Government calling the federal election – the Committee published a Second Interim Report, which can be found here.

The Second Report discusses both the concerns of religious organisations that their rights are under threat (without providing any compelling evidence that this threat is real) and those of other organisations that religious rights are currently privileged at the expense of other groups, including LGBTI people, with my own submission quoted on page 36:

“Mr Alastair Lawrie argues that religious exceptions “inherently lead to human rights abuses against LGBT people” and give religious schools “free rein to mistreat lesbian, gay, bisexual and transgender students.”

The Report then discusses a range of different approaches to legislating in this area, including a Charter or Bill of Rights, a Religious Freedom Act (which would give religious organisations positive rights to discriminate against LGBT people), a Religious Discrimination Act (which would introduce religion as a protected attribute in Commonwealth law), as well as expanding or limiting religious exceptions in anti-discrimination laws.

The Committee only made two recommendations:

The Sub-Committee recommends that the Australian Government, in consultation with the states and territories, develop and introduce or amend as necessary, legislation to give full effect to Australia’s obligations under Article 18 of the Universal Declaration on Human Rights and Article 18 of the International Covenant on Civil and Political Rights.
The Sub-Committee recommends that this inquiry be continued in the 46th parliament, so as to enable a proper and thorough consideration of the international situation for the status of the human right to freedom of religion or belief before a final report can be tabled.

While at first glance Recommendation 1 appears innocuous, the prioritisation of the freedom of religion, over and above other fundamental human rights (such as the right to non-discrimination) carries significant risks for vulnerable communities, including and especially for LGBTI Australians. Article 18 of the ICCPR in particular must not be legislated on its own without important qualifications that protect others from religious-motivated discrimination.

If the Morrison Liberal-National Government is re-elected in May, LGBTI people must be on guard against any further encroachment of our rights in this area.

Update #1:

On 30 November 2017, the Committee published an Interim Report, looking at the issue of freedom of religion and how it is applied in domestic law. That report can be found here.

In particular, Chapter 7 (from page 75 onwards) discusses the interaction between religious freedom and other human rights, including the right to be free from discrimination. This is obviously the most relevant debate for the LGBTI community.

The Committee did not make any recommendations, but did raise a number of now-familiar arguments by the Australian Christian Lobby and others that rather than narrowing religious exceptions to anti-discrimination laws, they should be broadened, as well as re-framed as positive rights to discriminate (rather than simply exceptions).

It will be interesting to see, if and when the Committee hands down its final report, what recommendations it does make and how they have been shaped by subsequent debates, including the release of the Ruddock Religious Freedom Review and moves to abolish the ability of religious schools to discriminate against LGBT students.

Original Post:

The Joint Standing Committee on Foreign Affairs, Defence and Trade is currently holding an inquiry into ‘religious freedom’, although sadly it is disproportionately focused on promoting the freedom to, rather than freedom from, religious belief. My submission below attempts to redress this imbalance. For more details on the inquiry, click here.

Committee Secretary

Joint Standing Committee on Foreign Affairs, Defence and Trade

PO Box 6021

Parliament House

Canberra ACT 2066

religionorbelief@aph.gov.au

Dear Committee Secretary

Inquiry into the Status of the Human Right to Freedom of Religion or Belief

Thank you for the opportunity to provide a submission to the above-named inquiry.

In this submission, I will be focusing on Term of Reference 4, namely:

“Australian efforts, including those of Federal, State and Territory governments and non-government organisations, to protect and promote the freedom of religion or belief in Australia and around the world, including in the Indo-Pacific region.”

In my view, Australian Governments, of all levels, all-too-often promote the freedom of religion – and in particular, the freedom of christian beliefs – at the expense of the equally-important freedom from religion.

The imposition of christianity on others, including on those who are atheist or have no religious belief, as well as its negative consequences for many lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians (who may or may not be christian themselves), can be observed in multiple ways.

Symbolically, there is a range of ways in which christianity is treated preferentially in Australian law which I believe is inappropriate in a country which is, or at least should be, secular (and by that I mean a nation that does not favour, or disfavour, any particular belief or lack of belief).

This includes having a formal head of state (the King or Queen of England) who is also, as a function of this role, the symbolic head of a christian denomination (the Anglican church), as well as the fact that each Commonwealth parliamentary sitting day begins with the recitation of a christian statement (the lord’s prayer).

More substantively, there are a number of ways in which the principle of separation of church and state – which should operate to protect both secular government, and the free exercise of religion, including freedom from religion – has been fundamentally breached by Federal, and State and Territory, Governments. This is especially apparent in education, and particularly in relation to public schools.

First, the inclusion of Special Religious Instruction (SRI) or Special Religious Education (SRE) in the school timetable is completely inappropriate because religious indoctrination, which is primarily christian indoctrination, should have no place in public classrooms.

On a practical level, SRI/SRE is also flawed for several reasons, including that it regularly operates as an ‘opt-out’ system rather than ‘opt-in’, and also because the ‘choice’ in many state schools is limited to either attending a lesson of christian indoctrination, or doing nothing (there can be few better examples of wasting time than mandating some students do not learn anything at all because other students are learning about their particular god or gods, something that should instead be taking place in the home or their respective place of worship).

SRI/SRE also frequently has a detrimental impact on LGBTI students. This is because it is disproportionately conducted by evangelical christians who, as numerous publicly-reported examples demonstrate, are more likely to express anti-LGBTI views, causing harm to students who are not cisgender and/or heterosexual.

As recently noted by crikey[i]:“While religious groups complain about the teaching of sex education issues, the [NSW Government] review found that religious instruction teachers were “overstepping the mark” in addressing issues of sexuality and explicitly expressing homophobic views.”

A second example of the fundamental breach of the separation of church and state in relation to government schools, which infringes upon the freedom from religion, can be found in the long-running, controversial National School Chaplaincy Program, which involves the (mis)use of public monies to pay public schools to hire people who – at least for the majority of the scheme’s existence – must be religious in order to be employed.

Despite guidelines that stipulate these religious (and in the vast majority of cases, christian) appointees must not ‘proselytise’ in the classroom or schoolyard, it is inevitable that many will – with evidence that they have repeatedly done so collected over many years[ii].

From my perspective there can be no proper policy justification for the allocation of literally hundreds of millions of Commonwealth, and therefore taxpayer, dollars on a program that preferentially employs people of a religious background (and excludes people who are not religious).

This breach is especially egregious because if public money is to be provided to promote student welfare, then that money should be directed towards employing the best qualified people to do so – trained school counsellors, who may or may not be religious (but whose religious beliefs, or lack thereof, are irrelevant to their ability to perform the role) – rather than ‘chaplains’ who must be of a religious background.

These two policies – SRI/SRE, and the National School Chaplaincy Program – are clear examples of the preferential treatment of religion, and primarily christianity, in contemporary Australia.

However, the most fundamental way in which the freedom from religion is infringed upon in Commonwealth, State and Territory policy is through the operation of ‘religious exceptions’ to anti-discrimination laws.

While appropriate recognition of freedom of religion would accord individuals and groups the right to hold beliefs, to celebrate those beliefs through religious ceremonies, as well as to appoint ministers of religion and other religious office-holders, these religious exceptions go far beyond what is necessary to achieve those aims.

Instead, they allow religious organisations to discriminate against employees, and in many cases against people accessing services, in an extraordinarily broad range of situations.

This includes discrimination in key areas of public life (including health and education), discrimination against people on the basis of irrelevant factors (for example, refusing to hire a qualified mathematics teacher on the basis of their sexual orientation), and discrimination in the use of public funds (in a number of circumstances, religious organisations are permitted to discriminate even where the service involved is part, even in large part, publicly-funded).

Of course, many religious organisations will argue that the ability to discriminate in each of these situations is necessary to ‘manifest beliefs in community with others’. However, such rights are not, and should not be, unfettered.

As observed by the Australian Human Rights Commission in their submission to this Inquiry:

“Legitimate limitations on the freedom to manifest a religion or belief in worship, observance or practice must be prescribed by law and necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.”

Anti-discrimination laws, such as the Commonwealth Sex Discrimination Act 1984, exist to protect a variety of groups against harm – effectively protecting their fundamental rights and freedoms – and they should not be undermined by the granting of special rights to discriminate to religious organisations.

It should also be noted that these religious exceptions are disproportionately used to adversely treat lesbian, gay, bisexual and transgender (LGBT) people[iii], who may or may not be religious themselves, but who nevertheless do not deserve to be discriminated against as they go about their daily lives simply because of who they are or who they love.

Essentially, religious exceptions to anti-discrimination laws deny too many LGBT Australians the right to be free from religion, and free from the negative consequences of homophobia, biphobia or transphobia that is based on, or claimed to be based on[iv], religious belief.

Perhaps the worst examples of these laws – and the clearest demonstration of how they inherently lead to human rights abuses against LGBT people (among others) – are the religious exceptions that allow religious schools to discriminate against students on the basis of their sexual orientation and gender identity.

For example, section 38 of the Commonwealth Sex Discrimination Act 1984 not only permits discrimination against LGBT [school] employees and contract workers (which is unacceptable in and of itself), sub-section (3) also states that:

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

Basically, under the Sex Discrimination Act, religious schools are given free rein to mistreat lesbian, gay, bisexual and transgender students, including by expelling or refusing to enrol these students (or refusing to enrol the children of rainbow families), teaching them that who they are is not okay, or in other ways treating them significantly worse than heterosexual and/or cisgender students.

The majority of states and territories have adopted similar provisions with NSW even going so far as allowing all non-government schools, including private schools that are not religious at all[v], to adversely treat LG and T students[vi].

It should be noted that the overwhelming majority of these religious schools are in receipt of Commonwealth, and State or Territory, funds, including from LGBT taxpayers – the notion that my taxes are being used by these organisations to actively discriminate against young lesbian, gay, bisexual and transgender students is both heartbreaking, and infuriating.

But, even if absolutely no taxpayer funds were involved, allowing religious schools to discriminate in this way would still be a fundamental breach of the human rights of these students to be who they are – including their sexual orientation and/or gender identity, which are both inherent or essential attributes – and to not be unfairly discriminated against as a result.

This principle is reinforced if we substitute students of different racial or ethnic backgrounds for LGBT students. We would not legally allow schools, whether government, religious or otherwise independent, to discriminate against students on the basis of their race or ethnicity. So why should we permit any school, irrespective of its ownership, to discriminate against LGBT students for who they are?

In short, any student, in any school, could be lesbian, gay, bisexual, transgender or intersex – and they each have a fundamental right to education, free from discrimination on the basis of their sexual orientation, gender identity or intersex status.

Logically, the only way in which this can be guaranteed is for every school to provide a learning environment that treats all students – heterosexual, cisgender and LGBTI-alike – equally.

In my view, the best interests of children in this situation, who are at their most vulnerable and whose protection is the responsibility of governments of all levels, especially in education which sits squarely in the public sphere, must supersede the religious beliefs of parents, or the schools themselves.

To suggest otherwise is to argue that LGBTI students in religious schools are just collateral damage of the ‘right’ to freedom of religion of others, and that the adverse consequences they inevitably suffer – from mistreatment and exclusion, to bullying, mental health issues and even suicide – should simply be ignored.

Well, I will not ignore these consequences, and I submit that this Committee, and the Commonwealth Parliament, must not ignore them either.

Which means that, if the Joint Standing Committee on Foreign Affairs, Defence and Trade is genuinely interested in the issue of how ‘to protect and promote the freedom of religion or belief in Australia’, then it must also consider the issues of how to protect and promote the freedom from belief, and how to protect LGBTI people from the negative consequences of the religious beliefs of others.

This includes investigating why religious indoctrination continues to feature in the nation’s public school classrooms (in the form of Special Religious Instruction or Special Religious Education), as well as why hundreds of millions of Commonwealth dollars continue to be allocated to employing religious people in our schoolyards (through the National School Chaplaincy Program).

Above all, it means questioning why religious organisations should be granted special rights to discriminate against lesbian, gay, bisexual and transgender employees, and people accessing services (through wide-ranging ‘religious exceptions’ to anti-discrimination laws), and why religious schools are legally permitted to mistreat LGBT students simply because of who they are.

Thank you again for the opportunity to provide a submission to this important inquiry. Please do not hesitate to contact me at the details provided should the Committee wish to clarify any of the above, or for further information.

Sincerely,

Alastair Lawrie

Commonwealth Education Minister Simon Birmingham, who couldn’t find $2 million per year to continue Safe Schools, but provides $60 million+ per year to the National School Chaplaincy Program.

Footnotes:

[i] “Homophobic, anti-science and frightening” religious instruction teachers remain in NSW, crikey, 12 April 2017.

[ii] See Chaplains accused of pushing religion in schools, ABC News, 8 April 2011 and Brisbane school chaplain being investigated for proselytizing after claiming his mission is to disciple school children and their families, Courier Mail, 18 May 2014.

[iii] It is considered unlikely that religious exceptions under the Commonwealth Sex Discrimination Act 1984 would be employed against intersex people.

[iv] The inclusion of religious exceptions to anti-discrimination laws actually encourages individuals and organisations to claim that anti-LGBTI prejudice is based on religious belief because it is less likely to attract consequences (even if the anti-LGBTI prejudice in fact has nothing to do with religion whatsoever).

[v] See NSW Anti-Discrimination Act 1977 sections 49ZO(3), and 38K(3).

[vi] Remembering that, in 2017, the NSW Anti-Discrimination Act 1977 still does not protect bisexual people against discrimination.

alastairlawrie

lgbti advocate & activist, writing about anti-discrimination and vilification law reform, equality and human rights

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Submission to Inquiry into the Status of the Human Right to Freedom of Religion or Belief