The Jobs and Skills Summit and LGBTIQ Australians Part 2

Last Sunday, I posted about the upcoming Jobs and Skills Summit, and the inclusion (or, at that stage, exclusion) of issues affecting LGBTIQ workers.

This included a letter to Prime Minister Albanese, Treasurer Chalmers, and seven of their ministerial colleagues, calling on them to include consideration of two matters in particular that affect LGBTIQ people in the workplace:

  • The absence of explicit protections for trans, gender diverse and intersex employees in the Fair Work Act 2009(Cth), and
  • The breadth of exceptions, in the Sex Discrimination Act 1984 (Cth) and elsewhere, allowing religious organisations to discriminate against employees on the basis of their sexual orientation and/or gender identity, including in the delivery of public services using taxpayers’ money.

Since then, the issue of potential LGBTIQ exclusion from the Jobs and Skills Summit has been picked up by my friends at Just.Equal Australia, as well as being reported on by:

I also received the below, generic response from the Treasurer’s office, which, to be honest, did not inspire much confidence that my concerns, and the concerns of my community, were being taken seriously:

Dear Alastair,

Thank you for your email and attached correspondence about the Albanese Government’s Jobs and Skills Summit, which is scheduled to held over the 1st and 2nd of September.

The Jobs and Skills Summit will bring together around 100 representatives including from unions, employers, civil society and governments, to address our shared economic challenges.

The outcomes of the Summit will inform the Employment White Paper, which will be a shared vision and comprehensive blueprint for the future of Australia’s labour market.

Although Summit attendance will be limited and invite only, Treasury will be opening a submission process to collect insights and perspectives from the wider community later in 2022.

You can find out more information about the Summit and the White Paper, including up to date advice on when public submissions will be opened, by visitinghttps://treasury.gov.au/employment-whitepaper/jobs-summit.

Again, thanks for taking the time to share your thoughts and views on the above which will be brought to the attention of the Treasurer’s ministerial team.

Best wishes

[Name withheld], on behalf of the Hon. Jim Chalmers MP

Office of the Hon. Jim Chalmers MP | Treasurer of Australia and Federal Member for Rankin

Which made it a pleasant surprise to read, via Out in Perth, the Treasurer Jim Chalmers confirm that LGBTIQA+ issues would indeed be on the agenda at the conference:

‘We recognise that many LGBTIQA+ Australians often face a range of unique challenges when it comes to secure employment.

‘These are exactly the issues that we hope to address through our Jobs and Skills Summit.

‘That’s why removing barriers to employment and workforce participation are central themes of our Jobs and Skills Summit. Our aim is to bring people together around our big economic challenges to ensure more Australians can get a secure, well-paid job.’

Of course, just because LGBTIQ issues might actually be discussed, does not mean the Summit itself, or the Government afterwards, will recommend or commit to taking action to fix the problems which lead to workplace discrimination against, and exclusion of, LGBTIQ people.

I should also note I have not had a response from Albanese, Chalmers or any of the other seven Ministers addressing the substantive concerns raised by my letter.

In which case, the push continues to ensure the Fair Work ActSex Discrimination Act and other relevant laws are amended so that LGBTIQ workers are judged on the basis of their ability, not their sexual orientation, gender identity or sex characteristics.

In that context, today I have sent the below emails to two of the primary non-Government voices that will be represented at the Jobs and Skills Summit: ACTU Secretary Sally McManus and Business Council of Australia CEO Jennifer Westacott.

Hopefully their assistance will help give voice to the need to legislate better protections for LGBTIQ workers in Australia.

*****

Sunday 28 August 2022

Sally McManus

Secretary

Australian Council of Trade Unions

Dear Ms McManus

Please support reforms to protect LGBTIQ workers at the Jobs and Skills Summit

I am writing to you about the upcoming Jobs and Skills Summit, at which you will be a key voice advocating for the interests of Australian workers.

In particular, I am writing, both as a union member for two decades, and as a leading advocate for my community, to ask you to support important reforms to protect the rights of lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) workers.

These include:

  • Reforms to the Fair Work Act 2009 (Cth) to explicitly protect trans, gender diverse and intersex workers against adverse action and unlawful termination. This could be achieved, easily, by adding gender identity and sex characteristics as protected attributes in relevant sections where categories such as race, sex, disability, age and even sexual orientation are already covered.
  • Reforms to the Sex Discrimination Act 1984 (Cth) and other Commonwealth and State and Territory anti-discrimination laws to remove the special privileges granted to religious organisations allowing them to discriminate against workers on the basis of their sexual orientation and/or gender identity, including in the delivery of public services using taxpayers’ money. This problem is especially acute in what is described in the Issues Paper as the ‘care economy’ and their removal would, I believe, lead to more LGBTQ people entering professions like education, disability services and aged care.

I attach with this correspondence a letter which was sent to Prime Minister Albanese, Treasurer Chalmers and seven of their ministerial colleagues, that provides more detail about these issues, and the compelling reasons why changes must be made to both.

I note both your own strong personal support, and the strong support of many unions and members of the ACTU, to LGBTIQ rights over the past decade, including through the campaign for marriage equality.

I look forward to your support once again, on Thursday and Friday of this week, and over the following months, for the interests of LGBTIQ workers.

Because I am confident that you agree trans, gender diverse and intersex workers should have the same Fair Work Act protections as any employee. And that LGBTQ workers should be judged on their ability, rather than their sexual orientation and/or gender identity.

Sincerely

Alastair Lawrie

*****

Sunday 28 August 2022

Jennifer Westacott

Chief Executive Officer

Business Council of Australia

Dear Ms Westacott

Please support reforms to protect LGBTIQ workers at the Jobs and Skills Summit

I am writing to you about the upcoming Jobs and Skills Summit, at which you will be a key voice in central debates around economic and industrial relations reforms.

In particular, I am writing as a leading advocate for my community to ask you to support important reforms to protect the rights of lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) workers.

These include:

  • Reforms to the Fair Work Act 2009 (Cth) to explicitly protect trans, gender diverse and intersex workers against adverse action and unlawful termination. This could be achieved, easily, by adding gender identity and sex characteristics as protected attributes in relevant sections where categories such as race, sex, disability, age and even sexual orientation are already covered.
  • Reforms to the Sex Discrimination Act 1984 (Cth) and other Commonwealth and State and Territory anti-discrimination laws to remove the special privileges granted to religious organisations allowing them to discriminate against workers on the basis of their sexual orientation and/or gender identity, including in the delivery of public services using taxpayers’ money. This problem is especially acute in what is described in the Issues Paper as the ‘care economy’ and their removal would, I believe, lead to more LGBTQ people entering professions like education, disability services and aged care.

I attach with this correspondence a letter which was sent to Prime Minister Albanese, Treasurer Chalmers and seven of their ministerial colleagues, that provides more details about these issues, and the compelling reasons why changes must be made to both.

Indeed, I note that you made some of the same arguments for better workplace inclusion in your speech on 27 May this year at the 2022 Australian LGBTIQ Inclusion Awards:

‘[T]oday we are here to celebrate and applaud the excellence of employers and their teams for their commitment to advancing inclusion and diversity.

It’s the right thing to do.

And not just that – it’s also smart business.

When every person can be their best selves at work:

  • They’re happier
  • They’re more productive
  • They’re more creative
  • They’re more loyal, and
  • They’re more likely to stay with their current employer.

Doing the right thing is a win-win…

I do not believe that any person should be made to feel excluded.

I do not believe that any person should be made to feel less than they are.

I do not believe that anyone’s personal struggle should be used as a political football.

So today I want to spend the bulk of my time apologising.

I want to apologise to our transgender colleagues.

I want to apologise:

  • For the hurt you have endured
  • For the cruelty you have been subjected to, and
  • For the fundamental misinformation and unfairness that has shrouded the discussion over the last year, but particularly during the election.’

You went on to acknowledge:

‘I understand the fear and worry when you turn up to work and every single new encounter is potentially:

  • A rejection
  • The loss of your employment status, or
  • The loss of your job.

I understand that there is only one choice you have to make.

It is not a flippant or superficial lifestyle choice.

Instead, it’s a difficult and often agonising acceptance to either be yourself or to pretend to be someone else.’

The upcoming Jobs and Skills Summit is another opportunity to demonstrate your commitment to improving the lives of trans and gender diverse Australians, who are affected by both the lack of explicit protections under the Fair Work Act, and the broad special privileges granted to religious organisations under the Sex Discrimination Act.

I look forward to you building on your public apology in May by supporting essential reforms to both these laws later this week.

Because I am confident, based on your speech, that you agree trans, gender diverse and intersex workers should have the same Fair Work Act protections as any employee. And that LGBTQ workers should be judged on their ability, rather than their sexual orientation and/or gender identity.

Sincerely

Alastair Lawrie

*****

ACTU Secretary Sally McManus and Business Council of Australia CEO Jennifer Westacott will play a key role in whether the upcoming Jobs and Skills Summit supports much-needed law reform to protect the rights of LGBTIQ workers.

NB This post is written in a personal capacity, and does not reflect the views of employers past or present.

If you have enjoyed reading this article, please consider subscribing to receive future posts, via the right-hand scroll bar on the desktop version of this blog or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus

The Jobs and Skills Summit and LGBTIQ Australians

The Albanese Labor Government’s Jobs and Skills Summit will be held on September 1 and 2, 2022, now just eleven days away.

While there has been significant coverage of a wide range of issues relevant to this conference, there has been little to no reporting of how it will affect lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) workers.

The letter below, to Prime Minister Albanese, Treasurer Chalmers and a number of other Ministers, seeks to place at least two important and urgent LGBTIQ policy matters onto the Jobs and Skills Summit agenda.

As always, I will publish any responses received.

*****

Prime Minister Anthony Albanese

Treasurer Jim Chalmers

Attorney-General Mark Dreyfus

Minister for Employment and Workplace Relations Tony Burke

Minister for Health and Aged Care Mark Butler

Minister for Aged Care Anika Wells

Minister for Education Jason Clare

Minister for Social Services Amanda Rishworth

Minister for the NDIS Bill Shorten

Sunday 21 August 2022

Dear Prime Minister Albanese and other Ministers

Please include LGBTIQ workers in the Jobs and Skills Summit

I am writing to you about the upcoming Jobs and Skills Summit, and the need to include lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) workers and the issues which affect them.

I was initially encouraged to observe the Summit would include a focus on ‘expanding employment opportunities for all Australians including the most disadvantaged.’[i]

However, I am both concerned and deeply disappointed by the Jobs and Skills Summit Issues Paper, released on 17 August,[ii] which completely omits LGBTIQ Australians as one of the groups which should be considered as part of this focus.

Specifically, page 2 of that document states:

‘While the participation rate is around historically high levels, many Australians still face barriers to secure and well-paid employment. In particular, women, First Nations people, people with disability, older Australians, migrants and refugees, and those living in certain regional and remote areas face specific barriers to entering the workforce. This means there are further opportunities and obligations to ensure the benefits of strong labour market conditions are accessible to all people in Australia.’

There is no mention of LGBTIQ workers here, nor on any other of the Issues Paper’s 14 pages.

This is despite the fact employment-related discrimination against LGBTIQ workers, including and perhaps especially transgender and gender diverse workers, is well-documented.

For example, a 2021 paper[iii] found that for transgender, including gender diverse and nonbinary (trans), people:

‘The unemployment rate of 19% was three times that of the Australian general population rate of 5.5% in May 2018 and well above the youth unemployment rate (12.2%). Notably, 33% of respondents perceived discrimination in employment. Unemployment may also occur due to difficulty with name and identity documents, discrimination in basic housing and health care, and the impact of mental health conditions such as depression and anxiety on an individual’s ability to seek or maintain employment. Conversely, levels of depression and anxiety may be higher due to unemployment.’

The omission of LGBTIQ workers from the Jobs and Skills Summit Issues Paper also comes despite many LGBTIQ workers enjoying lesser workplace rights and protections than other employees, and a large number of employers being legally entitled to fire, to refuse to hire, or to otherwise discriminate against, LGBTQ workers simply because of their sexual orientation and/or gender identity. This often includes the use of taxpayers’ money in said discrimination.

These issues must be addressed if the Jobs and Skills Summit is to indeed focus on ‘expanding employment opportunities for all Australians including the most disadvantaged.’

I include below two fundamental, urgent issues which therefore must be included in the Summit’s agenda.

  1. Protect transgender, gender diverse and intersex workers under the Fair Work Act

Currently, transgender, gender diverse and intersex workers do not enjoy the same legal status under the Fair Work Act 2009 (Cth) as other employees, including women, people with disability, and even lesbian, gay and bisexual people.

This is because the adverse action protections in section 351, and unlawful termination protections in section 772, contain a long list of protected attributes – such as ‘race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin’ – but omit the protected attributes of gender identity and sex characteristics (intersex status).

In practice, this means transgender, gender diverse and intersex workers may not have the same guaranteed access to the low-cost, low-barrier Fair Work Commission as other employees who are subjected to mistreatment or unfair dismissal simply because of who they are.

Despite raising the lack of explicit Fair Work Act protections for these workers with the previous Government for several years,[iv] they refused to take any action to address this discrepancy, even voting against straight-forward Greens amendments to the 2021 Respect@Work Bill which would have remedied the situation, providing much-needed remedies to workers.[v]

I note the then-Labor Opposition voted for some, although not all, of those Greens amendments.[vi] I also note that, as a result of advocacy from myself and others, the 2021 ALP National Conference passed the following special resolution:[vii]

‘Aligning the Fair Work Act and Sex Discrimination Act

Labor will amend the relevant sections of the Fair Work Act to align with the Sex Discrimination Act to cover workers who are currently not protected.’

Unfortunately, while implementing this commitment – which would involve adding gender identity and intersex status as protected attributes in the Fair Work Act – would achieve some improvement, it would not bring that legislation up to best practice.

This is because sex characteristics[viii] is considered a more accurate, and more inclusive, protected attribute, and is the terminology preferred by intersex advocates, including Intersex Human Rights Australia.

Therefore, at least part of the response to this question on page 5 of the Jobs and Skills Summit Issues Paper:

‘How can we ensure workplaces are safe and fair, particularly for those people at higher risk of harassment, discrimination and other breaches of workplace minimum standards?’

is to add gender identity and sex characteristics as protected attributes in the Fair Work Act 2009 (Cth), including in relation to adverse action (s351) and unlawful termination (s772), so that transgender, gender diverse and intersex workers have the same rights and protections as everyone else.

Recommendation 1: The Jobs and Skills Summit must ensure transgender, gender diverse and intersex workers have the same rights and protections under the Fair Work Act as other employees, including in relation to adverse action and unlawful termination.

2. Remove special exceptions allowing religious organisations to discriminate against LGBTQ workers

That same question – ‘How can we ensure workplaces are safe and fair, particularly for those people at higher risk of harassment, discrimination and other breaches of workplace minimum standards?’ – is also relevant to the second issue which I submit must be on the Jobs and Skills Summit agenda: removing special exceptions which allow religious bodies to discriminate against lesbian, gay, bisexual, transgender and queer (LGBTQ) workers.

In fact, this issue is pertinent to a range of discussion, and questions, covered in the Issues Paper, including this statement on pages 6 and 7:

‘Addressing the barriers to participation and promoting equality of opportunity will contribute to a stronger and more inclusive economy, enable more Australians to realise their full potential, and help address current labour market challenges. This, in turn, will help ensure that the benefits of full employment are shared fairly across our community.’

And the associated questions on page 7:

  • ‘How can we reduce the barriers to employment for some Australians? How should governments, unions, business and the broader community best coordinate efforts to achieve this?’ and
  • ‘What strategies can be used to reduce discrimination and increase awareness of the value that diversity can bring to business and the broader economy?’

And on page 11: ‘How do we navigate workforce shortages in the care economy while supporting our frontline workers?’

Many people are aware of this issue because of public debate over the past five years surrounding ‘religious freedom’, the previous Government’s proposed (but thankfully-defeated) Religious Discrimination Bill, and the discriminatory (mis)treatment of LGBTQ students, teachers and other staff under the Sex Discrimination Act 1984 (Cth).

Many people may not be aware of how broad these exceptions are in practice, not just under the Sex Discrimination Act, but also under the Age Discrimination Act 2004 (Cth), Fair Work Act itself (undermining both its adverse action and unlawful termination protections), and the majority of state and territory anti-discrimination laws (including in my home state of NSW where the Anti-Discrimination Act 1977 has the broadest religious exceptions in the country).

The effects of these exceptions are all-too-real for LGBTQ workers.

Not only can LGBTQ teachers be denied, or fired from, jobs for which they are otherwise eminently qualified, simply because of their sexual orientation and/or gender identity.

But so too can LGBTQ aged care workers, nurses, doctors, social workers, disability workers and other employees across what is described in the Issues Paper as the care economy.

There are a range of serious consequences which flow from this discrimination, including:

  • For LGBTQ workers, obviously this includes being denied employment, and losing significant financial benefits, or alternatively being forced to stay closeted while in the workplace, with associated mental health harms.
  • For the LGBTQ community more broadly, this discrimination reinforces poorer health and well-being outcomes, as well as entrenching economic disadvantage.
  • For the services themselves, they are rejecting the best person for the job on the basis of criteria which has nothing whatsoever to do with their ability to do the job. Alternatively, they are forcing some employees to not bring their whole selves to work, thereby diminishing the quality of the work those employees do.
  • This also means that, for people accessing these services, they are effectively denied being served by the most qualified person for the role. A person in an aged care home deserves the best aged care worker possible, not the best cisgender-heterosexual worker. A student deserves to learn from the most qualified teacher, not the most qualified cisgender-heterosexual one. And so on. And so on. Across society.
  • It should be remembered that the vast majority of these roles are delivering what are basically public services, like education, health, aged care, or social and disability services, and in nearly all cases using public – or taxpayers’ – money to do so. That means every Australian is helping to fund this discrimination, and even more egregiously, that LGBTQ workers are being asked to subsidise their own oppression.
  • Finally, in an era of large and growing worker shortages across education, health, aged care, and social and disability services, permitting lawful discrimination on the basis of sexual orientation and gender identity discourages at least some members of the LGBTQ community from considering careers in these areas – which is perhaps a rational response to the knowledge that large employers in your chosen profession may be lawfully able to refuse to hire you, or fire you, just because of who you are.

For all of these reasons, a Jobs and Skills Summit that is focused on ‘expanding employment opportunities for all Australians including the most disadvantaged’ must seriously consider the harmful impacts of special exceptions which allow religious organisations to discriminate against LGBTQ workers simply because of their sexual orientation and/or gender identity.

And I submit it should recommend that such exceptions be abolished, not just for the benefit of those LGBTQ workers, but for the benefit of people accessing publicly-funded services in education, health, aged care, and social and disability services, and the benefit of the Australian community generally.

Recommendation 2: The Jobs and Skills Summit should call for the repeal of special exceptions allowing religious organisations to discriminate against LGBTQ workers simply because of their sexual orientation and/or gender identity.

Thank you in advance for considering the above issues ahead of the Jobs and Skills Summit. Please do not hesitate to contact me at the details provided should you require additional information.

Sincerely

Alastair Lawrie

Will Prime Minister Anthony Albanese ensure that significant issues affecting LGBTIQ workers are considered at the Jobs and Skills Summit?

NB This post is written in a personal capacity, and does not reflect the views of employers past or present.

If you have enjoyed reading this article, please consider subscribing to receive future posts, via the right-hand scroll bar on the desktop version of this blog or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus

Footnotes:


[i] Prime Minister and Treasurer Joint Media Release, ‘Jobs and Skills Summit to be Held in September’, 11 July 2022, available at: https://www.pm.gov.au/media/jobs-and-skills-summit-be-held-september

[ii] Department of the Treasury, ‘Jobs and Skills Summit Issues Paper’, 17 August 2022, available at: https://treasury.gov.au/publication/2022-302672

[iii] Ingird Bretherton et al, ‘The Health and Well-Being of Transgender Australians: A National Community Survey’, LGBT Health Vol 8, No 1, 12 January 2021, available at: https://www.liebertpub.com/doi/10.1089/lgbt.2020.0178

[iv] See for example: Unfairness in the Fair Work Act.

[v] See: Pathetic and Antipathetic, in Equal Measure.

[vi] The Labor Party supported the inclusion of gender identity and intersex status as protected attributes in the Fair Work Act – which are the same attributes already covered under the Sex Discrimination Act 1984 (Cth) – but did not support amendments which would have added gender identity and sex characteristics as protected attributes, with the latter terminology now considered best practice, and supported by intersex community organisations including Intersex Human Rights Australia.

[vii] ALP 2021 National Platform, page 137, available at: https://alp.org.au/media/2594/2021-alp-national-platform-final-endorsed-platform.pdf

[viii] This is defined in section 4(1) of the Equal Opportunity Act 2010 (Vic) as:

‘sex characteristics means a person’s physical features relating to sex, including-

(a) genitalia and other sexual and reproductive parts of the person’s anatomy; and

(b) the person’s chromosomes, genes, hormones, and secondary physical features that emerge as a result of puberty.’

NSW Equality Bill Submission

4 July 2022

Alex Greenwich

Member for Sydney

Via email: sydney@parliament.nsw.gov.au

Dear Mr Greenwich

Submission re Equality Bill Consultation

Thank you for the opportunity to provide this personal submission as part of your consultation process on a proposed Equality Bill.

Thank you also for your leadership on the issue of lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) rights in NSW, something which has been neglected by too many for far too long.

As I have written previously, LGBTIQ rights in NSW are now the worst of any state or territory in the country – through decades of inaction on law reform by the NSW Government and Parliament, Sydney has become Australia’s capital of homophobia, biphobia and transphobia.

This includes the worst LGBTIQ anti-discrimination protections, and the equal worst birth certificate laws for trans and gender diverse people. As well as an ongoing failure to prohibit non-consenting surgeries and other medical interventions on children born with variations in sex characteristics (intersex children), and to ban sexual orientation and gender identity conversion practices.

If these issues are not addressed before next February, then Sydney’s hosting of World Pride 2023 will not be a cause for celebration, but instead the focus of global embarrassment about the incredibly poor state of legal rights for the LGBTIQ people who live here.

In this submission I will make recommendations for reform in the above-mentioned four areas, with a particular focus on LGBTI anti-discrimination law reform, as well as in relation to commercial surgery.

LGBTI reforms to the Anti-Discrimination Act 1977 (NSW)

The NSW Anti-Discrimination Act was once a leader – including becoming the first anti-discrimination law in Australia to prohibit discrimination on the basis of homosexuality in 1982 (before homosexuality was even decriminalised here, which did not happen until 1984).

However, it now compares incredibly poorly across a wide range of criteria, from protected attributes, special privileges for private schools and special privileges for religious organisations generally (for comparative analysis of how it fares overall, see A Quick Guide to Australian LGBTI Anti-Discrimination Laws).

While the Act itself is now so out-dated that it is impossible for it to become best practice without a comprehensive review followed by complete overhaul, there are some immediate, interim steps which could be taken to ensure LGBTI people are better protected against discrimination on the basis of who they are. This includes:

1. Replace homosexuality with sexual orientation

NSW is the only jurisdiction in Australia which does not prohibit discrimination against bisexual, bi+ and/or pansexual people. That is because the protected attribute in the Anti-Discrimination Act is ‘homosexuality’ rather than sexuality or sexual orientation.

This should be replaced with a protected attribute of ’sexual orientation’, with a definition drawing from s4(1) of the Equal Opportunity Act 2010 (Vic):

‘sexual orientation means a person’s emotional, affectional and sexual attraction to, or intimate or sexual relations with, persons of a different gender or the same gender or more than one gender.’

2. Replace transgender with gender identity

NSW also offers extremely narrow protection against discrimination for trans and gender diverse people, effectively excluding people with non-binary gender identities completely.

The protection attribute of ‘transgender’ should be replaced with ‘gender identity’, with a definition again drawing from the Equal Opportunity Act 2010 (Vic):

‘gender identity means a person’s gender-related identity, which may or may not correspond with their designated sex at birth, and includes the personal sense of the body (whether this involves medical intervention or not) and other expressions of gender, including dress, speech, mannerisms, names and personal references’.

The definition of ‘recognised transgender person’ in section 4 of the Anti-Discrimination Act 1977 (NSW) should be removed at the same time.

3. Add a new protected attribute of sex characteristics

Intersex people are also poorly-served by anti-discrimination laws in NSW, with the Act failing to include a stand-alone protected attribute to prohibit discrimination against them.

A new protected attribute of ‘sex characteristics’ should be added, once again drawing from the Equal Opportunity Act 2010 (Vic):

‘sex characteristics means a person’s physical features relating to sex, including-

(a) genitalia and other sexual and reproductive parts of the person’s anatomy; and

(b) the person’s chromosomes, genes, hormones, and secondary physical features that emerge as a result of puberty.’

4. Add new protected attributes of sex work, and genetic characteristics

I support-in-principle the inclusion of protected attributes of sex work, with a definition developed in consultation with sex worker organisations such as Scarlet Alliance, and genetic characteristics, developed in consultation with Intersex Human Rights Australia.

5. Remove special privileges for private educational authorities

The Anti-Discrimination Act is the only such law in the country which provides blanket exceptions to all private schools, colleges and universities, irrespective of whether they are religious or not, allowing them to engage in conduct that would otherwise be prohibited.

This includes special privileges to discriminate on the basis of homosexuality against students (s49ZO) and teachers and other staff (s49ZH), and on the basis of transgender status against students (s38K) and workers (s38C), too.

There can be no possible justification for these special rights to discriminate in 2022 – they must be repealed entirely.

In order to ensure LGBT students, teachers and other staff at religious schools are properly protected against discrimination, it is also necessary to introduce a limitation on the general religious exception in section 56 (discussed further below), so that it does not apply to religious educational institutions.[i]

6. Significantly narrow special privileges for religious organisations

In addition to specific exceptions for private schools, colleges and universities, s56 of the Anti-Discrimination Actprovides incredibly broad exceptions for religious organisations more generally.

While paras (a) and (b) of that provision (which permit discrimination in relation to the appointment, and training, of priests and ministers of religion) may be justifiable on the basis of religious freedom (because of their closeness to religious observance), the same justification does not apply to para (c), which allows discrimination by religious organisations in employment (including in the delivery of publicly-funded health, housing and welfare services) and (d), which effectively grants faith bodies a blank cheque to discriminate in service provision.

Both para s56(c) and 56(d) should be repealed entirely.[ii]

7. Remove special privileges for faith-based adoption services

Under s59A of the Anti-Discrimination Act, adoption agencies operated by religious organisations are permitted to discriminate against rainbow families.

This is frankly outrageous, not only discriminating against prospective parents on the basis of irrelevant factors such as their sexual orientation and/or gender identity, but also not being in the best interests of the child, given the exclusion of loving parents on these grounds.

S59A should be repealed entirely.

8. Remove the specific transgender exception in superannuation

Under s38Q of the Act, superannuation providers are given an exception to discriminate against transgender people, by ‘treat[ing] the transgender person as being of the opposite sex to the sex with which the transgender person identifies.’

This type of provision is not found in the equivalent Sex Discrimination Act 1984 (Cth).

Once again, there can be no possible justification for this special right to discriminate in 2022 – this provision must be repealed entirely.

9. Significantly narrow the specific transgender exception in sport

Under s38P of the Act, it is lawful to discriminate against transgender people in relation to a wide range of sporting activities, from elite level through to community sport.

This exception is much, much broader than equivalent exceptions elsewhere, including s42 of the Sex Discrimination Act 1984 (Cth), which includes qualifications that such discrimination is only permitted ‘in any competitive sporting activity in which the strength, stamina or physique of competitors is relevant’, and does not apply to children under 12.

At a minimum, these qualifications should also be introduced in NSW, with consideration of adopting the narrower approach found in s29 in the Anti-Discrimination Act 1998 (Tas), or the proposed changes in this area in the ACT Government’s recent Exposure Draft Discrimination Amendment Bill 2022.

Any reforms in this area should be made in close consultation with trans and gender diverse people, and organisations representing them, and intersex people and their representative bodies as well (given the impact of sporting exceptions on that community).

10. Prohibit civil vilification on the basis of sexual orientation, gender identity and sex characteristics

Assuming changes are made to replace the protected attributes of homosexuality with sexual orientation, and transgender with gender identity (1 and 2, above), equivalent changes to civil vilification provisions under the Anti-Discrimination Act should be made at the same time.

I also support introducing civil prohibitions against vilification on the basis of sex characteristics.

11. Ensure consistency between the Anti-Discrimination Act 1977 and the Crimes Act 1900 (NSW)

If the civil vilification provisions of the Anti-Discrimination Act are updated to cover sexual orientation, gender identity and sex characteristics, equivalent amendments should be made to s93Z of the Crimes Act 1900 (NSW),[iii] which makes it a criminal offence to ‘by a public act, intentionally or reckless threaten or incite violence towards another person or a group of persons’ on the basis of a range of attributes.

Reforms to the Births, Deaths and Marriages Registration Act 1995 (NSW)

As noted above, NSW also has the equal worst birth certificate laws in the country. It is one of just two jurisdictions, alongside Queensland, which still requires transgender people to have genital surgery in order to access identity documentation reflecting their gender identity. 

This situation is completely unacceptable. Gender identity is exactly that, a fundamental characteristic of personal identity, and exists irrespective of surgery, or other forms of medical or psychological treatment.

In my opinion, trans and gender diverse people should be able to update their identity documentation, including birth certificates, solely on the basis of self-identification.

That means imposing no restrictions based on whether the person has had surgery, whether they have had other forms of physical treatment (including hormones), or whether they have accessed counselling or psychological services. It also means not requiring an application to include supporting statements from medical or psychological ‘gate-keepers’.

There is only one Australian jurisdiction which currently meets this standard, the Tasmanian Births, Deaths and Marriages Registration Act 1999, with s28A(2)(b) simply requiring the applicant to make a ‘gender declaration’ in support of their application.

I therefore support-in-principle the introduction of birth certificate reforms in NSW drawing on the existing framework in Tasmania.

One other important element is ensuring children and young people have the right to update their identity documentation, irrespective of whether it makes some adults uncomfortable.

This, at a minimum, would involve allowing young people aged 16 and 17 to make applications for new birth certificates in their own right.

It also means ensuring there is a process to allow children under 16 to update their birth certificates where they have two or more parents or guardians and those parents/guardians disagree among themselves whether to support that application.

Finally, it means introducing a framework to allow children under 16 to apply in the absence of support from a parent or guardian, where a court or tribunal considers it to be in the best interests of the child and also assesses the child to be capable of consenting to the application (such as in s29J of the Births, Deaths and Marriages Registration Act 1996 (SA)).

However, as a cisgender member of the LGBTIQ community, I defer to the views of trans and gender diverse people, and the organisations representing them, on what the exact details of birth certificate reforms should include.

Ending non-consenting surgeries and other medical interventions on intersex children

The unnecessary, non-consenting and/or deferrable surgeries and other medical interventions which continue to be inflicted on children born with variations of sex characteristics (intersex children) aren’t just some of the biggest human rights abuses against the LGBTIQ community, but against any segment of the Australian community.

In this context, it is extremely frustrating that, approaching nine years from the historic 2013 Senate Inquiry into ‘Involuntary or coerced sterilisation of intersex people in Australia’, no Australian jurisdiction has legally prohibited these practices, including there being no signs of action in this area by the NSW Government.

Fortunately, the ACT Government has committed to ending these practices, and recently released their draft Variation in Sex Characteristics (Restricted Medical Treatment) Bill 2022 for public consultation.

On this issue, and whether the ACT legislation is best practice, I defer to the expertise of Intersex Human Rights Australia (IHRA). I note that in their submission to the current inquiry, they wrote:

‘The ACT government draft bill, published in May 2022, arises out of a commitment made in 2019, and deep engagement with community, clinicians, and human rights, bioethics and legal expertise. We commend this bill as a basis for reform in New South Wales.

‘The ACT government bill implements demands in the Darlington Statement of intersex community organisations and advocates in our region, and the Yogyakarta Principles plus 10… Action on this issue implements recommendations 1, 4, 7, 8 and 9 of the 2021 Australian Human Rights Commission report ‘Ensuring health and bodily integrity: towards a human rights approach for people born with variations in sex characteristics’. It also implements calls for reform by UN Treaty Bodies CEDAW, CRPD, CRC, HRC and CESCR, and addresses calls in 2021 position statements citing IHRA staff by the Australian Medical Association and the Public Health Association of Australia. It is consistent with a 2018 submission to the Australian Human Rights Commission by the Royal Australian and New Zealand College of Psychiatrists’ [emphasis added].

I therefore endorse IHRA’s view – that the ACT draft legislation be used as a basis for reform in NSW, with any necessary amendments developed in close consultation with IHRA.

Banning sexual orientation and gender identity conversion practices

The fourth major reform which should be included in the NSW Equality Bill is a prohibition on sexual orientation and/or gender identity (SOGI) conversion practices (sometimes referred to as gay/trans conversion therapy, or ex-gay/ex-trans therapy).

These are incredibly harmful practices which cause immense psychological, and sometimes physical, harm on LGBTQ people.

In my view, SOGI conversion practices should be banned, both through civil prohibitions, allowing for a range of legal responses, and criminal offences in serious cases (such as where it causes actual physical or psychological harm, and/or involves minors or other vulnerable persons).

Importantly, these prohibitions must apply across a broad range of circumstances, including religious settings (where much of the reported harm takes place), and not just in health settings (which means the existing Queensland approach to this issue cannot be supported).

My understanding is there are potential strengths to both the Victorian Change or Suppression (Conversion) Practices Act 2021 and ACT Sexuality and Gender Identity Conversion Practices Act 2020.

However, as with trans and gender diverse birth certificate reform and intersex surgeries, I defer to the views of survivors of sexual orientation and/or gender identity conversion practices, and the organisations representing them, on what the exact details of this legislation should contain.

Legalising commercial surrogacy in NSW

This reform is different from the previous four in that it is not exclusively or even primarily an issue for the LGBTIQ community, given individuals and couples seeking to employ commercial surrogacy services can be cisgender and heterosexual also.

However, rainbow families, and especially male same-gender couples, are disproportionately affected by the current legal approach to surrogacy in NSW, which is not only to prohibit commercial surrogacy domestically (s8 of the Surrogacy Act 2010 (NSW)), but also to capture individuals or couples who engage in commercial surrogacy elsewhere but are ‘ordinarily resident or domiciled in the State’ (s11).

The maximum penalty for this offence is high: up to 1,000 penalty units or imprisonment for 2 years, or both, for individuals.

More than a decade after this legislation was introduced, I don’t believe anyone in NSW genuinely believes that individuals and couples, including rainbow families, are not still engaging in commercial surrogacy arrangements in a wide range of international jurisdictions (and perhaps the only thing to even slow this process down has been since-eased pandemic-related travel restrictions, not domestic laws).

In this context, my personal view is that commercial surrogacy should be legalised in NSW.

There are two reasons for this. The first is based on harm reduction. Yes, I acknowledge that commercial surrogacy arrangements include a significant potential for exploitation, especially for women who are vulnerable or financially disadvantaged.

However, given commercial surrogacy is continuing (and will continue into the future, based on the strong desires of some members of the community to have children), the best way to minimise such exploitation is to permit commercial surrogacy within NSW, with careful and close oversight – in contrast to the current situation which sees people engage in surrogacy in jurisdictions potentially with minimal or no oversight, and with a legal incentive to avoid scrutiny of their activities.

The second reason for legalising commercial surrogacy in NSW is based on the best interests of the child. For the child being born into these families, it simply cannot be in their best interests for their parent(s) to be liable to up to 2 years imprisonment for the crime of the manner of their birth.

*****

Thank you in advance for your consideration of this submission. Please do not hesitate to contact me, at the details provided, if you would like further information or to discuss its contents.

Sincerely

Alastair Lawrie

NB This post is written in a personal capacity, and does not reflect the views of employers past or present.

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Footnotes:


[i] This approach applies in the absence of prohibitions against discrimination on the basis of religious belief in NSW. If religious belief is added as a stand-alone protected attribute to the Anti-Discrimination Act 1977 (NSW) in the future, it may be appropriate to allow discrimination by religious schools on the basis of religious belief only (and not other attributes), but only against students at the point of enrolment, and only against teachers and other staff where it is an inherent requirement of the role.

[ii] As with the previous footnote, this approach applies in the absence of a stand-alone protected attribute of religious belief under the Act. If such an attribute were to be introduced in future, it may be appropriate to permit some discrimination on the basis of religious belief only, in narrowly-restricted circumstances, informed by existing laws in Tasmania, and Victoria.

[iii] This includes potentially updating the existing definitions of sexual orientation and gender identity in s93Z of the Crimes Act, as well as replacing the attribute of intersex status with sex characteristics.

The best of times?

This is the second in a two-part series of articles reflecting on the recent federal election and its impact on LGBTIQ Australians, with this post focusing on what it means for the upcoming Parliamentary term. You can read the first post, looking back on the past three years, ‘The worst of times’, here.

Earlier this year, following the NSW Perrottet Liberal/National Government’s decision to reject Mark Latham’s anti-trans kids Bill, I wrote that ‘Not going backwards is not the same thing as going forwards’

The same thing could just as easily be written now after the federal election on May 21 which saw the Morrison Liberal/National Government defeated.

Yes, this outcome is a massive relief for LGBTIQ Australians, who, as I wrote last weekend, have just endured the worst Commonwealth Parliamentary term for our rights in my lifetime.

And it obviously means the threats of the Coalition’s damaging and divisive Religious Discrimination Bill (or ‘Religious Freedom Bill’ in disguise), and Liberal Senator Claire Chandler’s legislation attacking trans women and girls’ participation in sport, have receded (for now).

But, just like in NSW, not going backwards on LGBTIQ rights is not the same thing as going forwards: the many changes to Commonwealth laws and policies to make our lives better which were needed on May 20 were not somehow magically introduced on May 22.

Progress still needs to be delivered. In many, many areas.

I wrote about some of those LGBTIQ law reform priorities earlier this year, here

But perhaps a better and more comprehensive outline of what needs to happen is found in the Just.Equal Australia pre-election survey of the LGBTIQ community and its priorities, which included (but was definitely not limited to): 

  • Removing current exemptions in the Sex Discrimination Act that allow discrimination against LGBT people, for example, by faith-based schools, hospitals and charities
  • Improving LGBTIQA+ safety and inclusion in schools
  • Improving LGBTIQA+ access to appropriate and inclusive aged care
  • Establishing LGBTIQA+ policy groups in federal government agencies such as health, education, the federal police, justice and the Prime Minister’s department
  • Developing mechanisms to consult with all existing LGBTIQA+ organisations and fund them to properly represent their constituents
  • Developing strategies around suicide and mental health, aged-care, homelessness, Indigenous LGBTIQA+ people and family violence prevention
  • Recognising LGBTIQA+ people in the Census by asking questions about sexual orientation, gender identity and variations of sex characteristics
  • Removing the ban on sexually-active gay/bi men, and trans women, giving blood and replacing it with a policy of individual risk assessment for all potential donors
  • Medicare funding for gender transition and other gender-affirming health care, and
  • Legislative prohibition of unconsented and deferrable medical interventions on children born with innate variations of sex characteristics.

I can almost hear the reactions of the ACL, and extremist columnists in the Murdoch media, to such a list: that it represents some kind of radical and dangerous left-wing agenda. Or, to transphobic bigots like Katherine Deves, that its implementation would be a ‘Rainbow Reich’.

But is it, really? Or are these priorities actually eminently reasonable, reflecting nothing more than the aspiration to enjoy what many (although not all) Australians already take for granted?

There is nothing radical about wanting all children to learn and to grow in safe and inclusive school environments, free from discrimination on the basis of who they are.

There is nothing dangerous in suggesting that teachers and other workers should be employed on the basis of their skills and qualifications, not their sexual orientation or gender identity.

The desire to grow old with access to high-quality, safe and supportive aged care services must be a universal one.

As is the basic want for essential Medicare-funded health services to allow people to live the lives they were meant to enjoy.

And surely very few people could argue against protecting children born with innate variations of sex characteristics from deferrable medical interventions until they are old enough to consent to them themselves?

While many of the other priorities (establishing policy groups and developing strategies, providing funding for LGBTIQA+ organisations and including LGBTIQA+ people in the Census) are merely the formal mechanisms required to ensure these objectives are achieved, and maintained.

Seen in this way, the above priorities are neither radical, nor dangerous. Instead, they are both reasonable, and the bare minimum of what needs to happen.

The fact this list (and the much longer list in the Just.Equal Australia survey report itself) is so lengthy is instead a reflection of the lack of action on these issues over the past nine years, with the Abbott, Turnbull and (especially) Morrison Governments either ignoring the LGBTIQ community and our needs, or in some cases (like the safe schools debate, plebiscite and postal survey, and proposed Religious Discrimination Bill) going out of its way to make our collective lives much more difficult.

So, we know what the needs are. How likely are they to be met under the new Albanese Labor Government?

The answer to that question is both complicated, and also pretty straight-forward (which we’ll return to later).

To begin, we should acknowledge that many LGBTIQ Australians are viewing the new Government with complex emotions, including an understandable sense of caution, anxiety even.

This is due both to what many perceived to be a failure to adequately call out the toxic transphobia of Katherine Deves during the election campaign itself. As well as the decision in February to vote for the Morrison Government’s Religious Discrimination Bill despite the failure of Labor’s amendment to remove the damaging statement of belief provision, and the failure of Labor to support cross-bench amendments to remove the Bill’s override of state and territory anti-discrimination protections for teachers in religious schools.

As with many other areas, the Albanese Labor Government also went to the election with what could be described as ‘small target strategy’ in relation to LGBTIQ policy.

In The Conversation, Paula Gerber noted this included commitments to: 

  • Count LGBTIQ people in the 2026 Census
  • Protect LGBT students in religious schools against discrimination, and
  • Increase funding for LGBTIQ+ health, mental health and family violence prevention services.

Professor Gerber also describes the much vaguer, and far less reassuring, policy to ‘amend anti-discrimination laws so that… all teachers are protected from discrimination at work (while maintaining the right of religious schools to preference people of faith in the selection of staff)’ [emphasis added]. It remains to be seen how much (unjustifiable) discrimination against LGBT teachers such a policy would continue to permit.

On a broader range of LGBTIQ policy issues, such as discrimination against LGBT workers and people accessing services by other religious organisations, Medicare funding for gender transition, and ending coercive surgeries on intersex children, the then-Opposition was largely silent.

Which means the Albanese Government’s LGBTIQ policy agenda is simultaneously far superior to that of the Government it replaced and far less than what is necessary to deliver genuine equality.

Our first challenge therefore is to push the new Government to go much, much further in its policy commitments.

The second challenge is related to the first – and that is, even if we secure additional LGBTIQ policy commitments, we will need to keep up the pressure to ensure they are actually delivered amidst what will be an incredibly packed legislative agenda.

After all, it is not just LGBTIQ issues on which the previous Government held back progress. In this term of Parliament alone, the Albanese Government will need to deliver on real climate change commitments, creating a federal independent commission against corruption, implementing all of the Respect@Work recommendations, and holding a referendum to enshrine a Voice to Parliament in the Constitution as part of the Uluru Statement from the Heart (and plenty more besides, such as dealing with the energy and cost of living crises).

It will take sustained advocacy from the LGBTIQ community to ensure our issues are not forgotten, or put in the ‘second term basket’ (with no guarantee they will ever be dealt with).

The third challenge is a familiar one – the return of a Religious Discrimination Bill, which incoming Attorney-General Mark Dreyfus has confirmed will come before Parliament at some point this term.

Now, I know many people will be triggered simply by hearing that three-word legislative title alone, but we should remember that prohibiting discrimination on the basis of religious belief is not a negative thing in and of itself (with most states and territories already doing so, including jurisdictions with strong LGBTI anti-discrimination protections like Tasmania, the ACT and, following recent reforms, Victoria).

But we will also need to be prepared to push back, firmly, against any provisions which go beyond prohibiting discrimination on the basis of belief to instead entrench the ability of religious individuals and organisations to discriminate against women, LGBT people, people with disability and people of minority faiths (which were the problematic features of the Morrison Bill).

The good news is the make-up of the new Parliament looks to be conducive to meeting these challenges.

That includes the presence of people who I would consider allies to the LGBTIQ community inside the Government itself, including in key portfolios (starting with Mark Dreyfus himself, who was Attorney-General under the last Labor Government when the historic Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 was passed).

And of course it includes the expanded Parliamentary presence of the Australian Greens, now with four seats in the House of Representatives (up from one) and 12 in the Senate (up from nine).

Throughout the last term, not just on the Religious Discrimination Bill but on other issues like amendments to the Fair Work Act 2009 (Cth) to explicitly protect trans, gender diverse and intersex workers against discrimination, the Greens consistently demonstrated their support for LGBTIQ law reform (which is a testament to the great work of their then-spokesperson for LGBTIQA+ issues, Senator Janet Rice – new spokesperson Stephen Bates has big shoes to fill).

The independent cross-bench has also grown significantly too. We already had Helen Haines, Rebekha Sharkie, Zali Steggall, and Andrew Wilkie, all of whom voted to support our community throughout the Religious Discrimination Bill debate.

They have been joined by six new so-called ‘Teal’ MPs. While they are obviously yet to have a voting record against which we can judge them, they all represent electorates which voted strongly in favour of marriage equality:

  • Kate Chaney in Curtin (72.2% Yes)
  • Zoe Daniel in Goldstein (76.3%)
  • Monique Ryan in Kooyong (73.7%)
  • Sophie Scamps in Mackellar (68%)
  • Kylea Tink in North Sydney (71.8%), and
  • Allegra Spender in Wentworth (80.8%).

Given those results, if any of them choose to vote against LGBTIQ equality this term, they could find themselves exiting the Parliament at the next poll.

The Senate also looks promising, with the cross-bench including new Senator for the ACT David Pocock (who was an early and passionate supporter of marriage equality), and now two members of the Jacquie Lambie Network (noting that Lambie herself had been a strong advocate against the Religious Discrimination Bill, including seeking to protect Tasmania’s best practice anti-discrimination laws from Commonwealth override).

Overall, then, while there are challenges ahead in terms of making long-overdue progress on LGBTIQ equality, and navigating how and when to advance particular issues might sometimes be complex, there is also plenty of opportunity, if only we can take advantage of it.

Or, in the more straight-forward words of my National Party-voting parents on the night after the election (yes, we have some interesting discussions about politics): ‘There might never be a better election outcome to achieve the changes you have been campaigning on for so long.’

I agree, and will be doing my best to make sure they happen.

Because LGBT students in religious schools have already waited long enough.

LGBT teachers and other workers, too.

Trans and gender diverse people have waited long enough to have access to Medicare-funded gender-affirming healthcare, including transition.

And children born with innate variations of sex characteristics have waited far, far too long to have their fundamental rights to bodily autonomy protected.

The last term of Commonwealth Parliament truly was the worst of times. There is absolutely no guarantee the current term of Parliament will be the best. But there’s also no reason why it can’t be. So let’s get to work.

NB This post is written in a personal capacity, and does not reflect the views of employers past or present.

Prime Minister Anthony Albanese on election night. There is plenty of work to do to ensure it is ‘A Better Future’ for LGBTIQ Australians.

If you have enjoyed reading this article, please consider subscribing to receive future posts, via the right-hand scroll bar on the desktop version of this blog or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus

5 things we learned from the Senate Hearings into the Religious Discrimination Bill

The Senate Legal and Constitutional Affairs Committee has been conducting an inquiry into the Religious Discrimination Bill 2021 over summer.

As part of that inquiry, it held two days of public hearings, on Thursday 20 and Friday 21 January, with a range of witnesses from religious organisations, civil society, business, legal groups, the Australian Human Rights Commission and Attorney-General’s Department.

Here are five things we learned from those hearings, ahead of the Committee’s final report, which is due to be tabled this afternoon (Friday 4 February), prior to debate on the Bill resuming in the House of Representatives next Tuesday (8 February).

  1. Citipointe’s conduct is not an outlier – in fact, it’s exactly the point

By now, most people will be familiar with the situation at Citipointe Christian College in Brisbane, which this time last week, issued a new enrolment contract seeking to discriminate against LGBT students generally, and trans and gender diverse students in particular.

What is also important to note is the way in which they sought to justify this discrimination. Clause 26 of their contract in particular tries to dress it up as discrimination on the basis of religious belief about gender identity, rather than on the basis of gender identity itself:

‘The Parents acknowledge and accept that, should I/we not share the College’s commitment to fostering these fundamental doctrinal precepts, this will constitute a serious departure from the religious precepts upon which Citipointe Christian College is based and will afford Citipointe Christian College the right to exclude a student from the College who no longer adheres to the College’s doctrinal precepts including those as to biological sex, which constitute an important tenet of the College’s Christian religion (emphasis added).’

Now, it is highly likely that Citipointe’s actions would be unlawful under the Queensland Anti-Discrimination Act 1991, not just because that legislation does not allow religious schools to discriminate against students on the basis of gender identity, at all, but also because neither does it allow them to discriminate against students on the basis of religious belief beyond the point of initial enrolment.

Therefore, even if the school was successful in arguing this was indeed discrimination on the ground of religious belief about gender identity, it still couldn’t lawfully discriminate against existing trans and gender diverse kids.

Unfortunately, the same safeguard does not exist in the Religious Discrimination Bill, which allows religious schools to discriminate against students on the basis of religious belief not just at the point of enrolment, but throughout their education.

And this right will exist, even if Liberal moderates are successful in amending the Sex Discrimination Act 1984 (Cth) to remove specific exceptions allowing religious schools to discriminate under that law.

Which means, if the Religious Discrimination Bill is passed in its current form, religious schools will continue to discriminate against LGBT students, ‘under the guise of religious views’, rather than sexual orientation and gender identity.

But the outcome will still be the same: LGBT kids mistreated because of who they are.

Above all, the attempted actions by Citipointe on this issue are not an outlier – in fact, multiple religious organisations at the Senate hearings told us this is what they would do.

For example, there was this exchange involving Mr Mark Spencer, Director of Public Policy, Christian Schools Australia:

Senator Andrew Bragg (Liberal): Finally – I’m just conscious of time – on the issue of children in schools, I understand that there was some discussion earlier about the different clauses that may or may not be considered by this parliament. My question is really more on the principle here, which is: do you want to have a right in the law to expel gay kids?

Mr Spencer: Again, you’re making a sweeping statement there that needs a bit more nuance. For a start, you talk about gay kids. Are you talking about same-sex attracted kids who might be committed to living a biblical authentic life? Are you talking about young people who may be, by their behaviour, not meeting the conduct standards of the school? There are a whole range of difference scenarios in there that you need to be unpacking and considering. The short answer is: no, no child has been, and no child do we want to sack simply because they might be same-sex attracted.

Senator Bragg: So your answer is no?

Mr Spencer: The answer is: no child do we want to expel simply because they’re same-sex attracted (emphasis added).

Translation: Christian Schools Australia reserve the right to discriminate against, and even expel, any gay student who is not ‘committed to living a biblical authentic life’. Which means affirming statements like ‘homosexuality is intrinsically disordered’, and pledging to be celibate for life.

In other words (or my words in fact): If a gay kid hates themself enough, they can stay. But if they do not believe who they are is inherently wrong, they can be lawfully mistreated.

Or this exchange with Right Reverend Dr Micheal Stead, Bishop of South Sydney, Anglican Church Diocese of Sydney:

Senator Bragg: I guess the question is: should you be allowed to discriminate against someone based on their sexual preference if they are teaching in accordance with the ethos of the school?

Bishop Stead: No – sorry, I may have misunderstood your question. None of the religious bodies are arguing for the right to discriminate on the basis of sexuality or gender. What we’re arguing for is the right to be able to discriminate on the basis of religious belief. If it happens that somebody’s religious belief also reflects their sexuality or their gender in a way which is inconsistent with the belief of the organisation-

Bishop Stead: Yes. The religious institutions are not seeking the right to discriminate on the basis of sexuality, gender or any of the other protected attributes-

Senator Deb O’Neill (ALP): Race, disability, age-

Bishop Stead: Thank you. They’re looking for the right to, in the wrong language, ‘discriminate on the basis of religion’. We would say ‘to preference on the basis of religion’ – to act in accordance with their religious belief. It’s only at the point at which somebody’s religious belief has changed to reflect their sexuality or gender that makes it inconsistent with the school that we’re into this area of intersectionality (emphasis added).

Again, they might say it’s discrimination on the basis of religious belief (or ‘preferencing’, to use their term), but it’s clear that in practice LGBT students and teachers will be the victims.

Or this exchange with Mrs Moira Deeming, Researcher, Church and Nation Committee, Presbyterian Church of Victoria:

Mrs Deeming: There are gay Christians and teachers – I am a teacher – who are Christians first and the way that they deal with whatever their sexuality feels like is expressed in a Christian manner. It’s about religious freedom and it’s about religious association. It’s not about finding out if someone is gay and cutting them out. It’s about working out: are you like minded with us? If you are like minded, join with us. Then there shouldn’t be an issue.

Senator Bragg: That wasn’t my question, but I know I am out of time. On notice, can you come back with exactly what your position is because, frankly, it’s a bit murky.

Mrs Deeming: Would you mind restating your question clearly just one more time?

Senator Bragg: The question is: do you want to be able to discriminate based on sexual orientation or preference in the hiring of your staff?

Mrs Deeming: That’s a corollary to preferencing based on religious belief. We’re not targeting anybody- (emphasis added)

All three witnesses appear to be saying: we reserve the right to discriminate against LGBT people, we’ll just call it discrimination on the basis of religious belief.

Which is exactly what Citipointe Christian College was trying to do with its contract. Fortunately, that was unlawful because of the much stronger anti-discrimination laws in Queensland.

But, discrimination protections for students and teachers under the Religious Discrimination Bill are much, much weaker, because of the excessive and extreme exceptions provided to religious organisations under this legislation, allowing them to lawfully discriminate.

As a result, there will be plenty more Citipointes around the country in future. And that’s not ‘murky’, it’s perfectly clear.

2. Workers from minority faiths are left unprotected by the Bill

The excessive and extreme religious exceptions contained in the Religious Discrimination Bill 2021 don’t just affect LGBT people.

In fact, one of the groups who stand to lose the most are workers from minority faiths. This is because large, usually-Christian, publicly-funded service delivery organisations – including hospitals, aged care facilities, accommodation providers and disability service providers – will be able to lawfully discriminate on the basis of religious belief in employment. 

That means hiring (and firing), and providing (or denying) training, promotion, and other benefits, on the basis of faith rather than ability. Workers who are Muslim, Jewish, Hindu, Buddhist, agnostic and atheist can be treated less favourably than Christians, just because of who they are.

But don’t take my word for it. Here’s Mr Surinder Jain, National Vice President of the Hindu Council of Australia, explaining the Bill’s impact on his community:

‘We have a lot of Hindus who work in aged-care services and disability services, predominantly being run by religious organisations. We have doctors working in private hospitals. We have IT people. Their jobs would be questionable. There is another category of people who are new migrants, who come here and who are desperately looking for a job and they find a job in a religious organisation. There is unsaid pressure on them that they should adapt to the religion of the organisation that they are in. This way the religious freedom [Bill] would actually be taking away their freedom of ideology and religion in declaring their faith and practising their faith and in not being pressured into adopting another faith.’

In short, the Religious Discrimination Bill privileges larger faiths at the expense of smaller ones, and especially employees of the latter.

3. A ‘mask off’ moment revealed what the statement of belief provision is really about

Through much of the hearings, and especially during the appearance by the Attorney-General’s Department on the Friday afternoon, defenders of the Bill attempted to downplay the impact of the unprecedented statement of belief override of all other Commonwealth, state and territory anti-discrimination laws that protects religiously-motivated comments that offend, humiliate, insult and ridicule others.

They tried to make it seem like it was all very reasonable, rather than an extraordinary legal privilege to allow people to make demeaning and derogatory comments about women, LGBT people, people with disability and people of minority faiths in all areas of public life.

Well, not all of them – one witness on the Thursday afternoon let the ‘reasonable’ mask slip, confirming the statement of belief provision will provide a platform for transphobia: Mrs Moira Deeming, Researcher, Church and Nation Committee of the Presbyterian Church of Victoria.

I’ll reproduce the relevant part of the transcript below, but for context, remember that Greens Senator Janet Rice’s late wife was a trans woman:

Senator Janet Rice (Greens): We’re talking about, particularly, clauses 11 and 12 of this bill and, particularly, the statements of belief. The Australian Human Rights Commission say that statements of belief that will be legal under this legislation, which will override state and territory legislation, are currently considered discrimination, and they will no longer be considered discrimination.

Mrs Deeming: Multipartisan support – let’s get a controversial statement. ‘Trans women are men’. Would you consider that, in and of itself, a discriminatory statement that should never be uttered?

Senator Rice: If that were being stated in a workplace to a trans woman, absolutely.

Senator Rice: Do you believe that’s not discrimination?

Mrs Deeming: I just think it’s a statement of belief, and I don’t think it’s necessarily a religious belief.

Senator Rice: And, if it’s offensive to that trans woman, you that it’s acceptable?

Mrs Deeming: I think-

Senator Rice: It’s deeply offensive and potentially causing that trans woman to have severe mental health illness… to not be accepted in their gender identity.

Chair: Senator Rice, I’m just going to ask you to pause here.

Senator Louise Pratt (ALP): But, in the same workplace, someone won’t have the right to call the person who said that a bigot.

Chair: Senator Pratt, I’m just going to ask you to pause as well. Senator Rice has put a question to Mrs Deeming. Mrs Deeming, please answer the question. I don’t want any witness being interrupted, please.

Mrs Deeming: I pose that question because it’s obviously the most controversial one at the moment. It’s not specifically a religious view that biological sex cannot be altered. It’s not. There are many, many people – lesbians, in fact, and homosexual men and people from across the political spectrum, people in every single party here – that would agree with the statement that trans women are, by definition, male. They wouldn’t be making it on the basis of hate. What I’m interested her is finding out whether you’re going to try and take statements like that and class them as inherently harmful, where no offence was intended. It’s just a difference of belief. It’s a belief we don’t subscribe to.

Senator Rice: A difference of belief?… In that sort of instance, in a workplace, if that statement has been given to a young person who is attempting to affirm their gender, it leads to severe mental unwellness and severe impact on them – not being able to affirm their gender. It leads to suicidal ideation. It leads to potential suicide. That is the reality for trans and gender diverse people. So I put it to you that that is, in and of itself, a discriminatory and hateful statement if it is being made to those people.

Mrs Deeming: And I put it to you that it is psychologically abusive to coerce students and other people to say things that they do not believe, especially about the nature of biological-

*****

There’s a lot to take in there obviously, but some things stand out:

  • Deeming pro-actively chose to raise the statement ‘trans women are men’ – during an exchange with a Senator whose late wife was a trans woman
  • She argued that it’s ‘just a statement of belief’, and therefore should be legally protected
  • She did not agree with Rice’s comments about the harm caused by such statements to trans and gender diverse people
  • Instead, Deeming claimed it is ‘psychologically abusive’ to require students and other people to effectively treat trans and gender diverse people with respect.

In this exchange, Deeming confirmed that the statement of belief provision is not about providing protection for people who simply state ‘marriage is between a man and a woman’ – it is instead really about allowing people to make deeply transphobic comments to others, even to fellow employees in the workplace who are simply trying to do their job.

4. ‘The limit does not exist’ to the religious freedom agenda

There was another development over the course of the hearings which reveals a helluva lot about the ever-growing demands of the ‘religious freedom’ movement – and how it will continue to strip away the rights of others, with little care for the consequences it creates.

This relates to proposals to redraft clause 12 of the Bill – which is the ‘statement of belief’ provision – ostensibly to ensure it is constitutional. These changes were put forward by Professor Nicholas Aroney, who had previously served as a member of the Ruddock Religious Freedom Review (which helped to create the mess we are now in).

Anyway, from Mr Aroney’s submission to the Committee:

‘To maintain this policy objective while addressing any doubts about the effectiveness of clause 12 under section 109 of the Constitution it would be sufficient to amend the clause so that it reads:

(1) A statement of belief, in and of itself, does not constitute discrimination for the purposes of this Act.

(2) Notwithstanding any of the following State of Territory laws, it is not unlawful to make a statement of belief, in and of itself:’

The redrafted amendment then lists all four of the Commonwealth anti-discrimination Acts (Racial, Sex, Disability and Age), and each of the primary state and territory anti-discrimination laws (such as the NSW Anti-Discrimination Act 1977).

Now, I am not a constitutional lawyer, so I can’t tell you whether it has made the provision more, or less, constitutional.

However, I am an expert on the Religious Discrimination Bill and I can tell you that with this drafting Mr Aroney has made sure the ‘statement of belief’ clause would explicitly override section 18C of the Racial Discrimination Act 1975 (Cth).

As well as all state and territory anti-vilification provisions found in their primary Acts (like the prohibitions on racial, homosexual, transgender and HIV/AIDS vilification in the NSW Anti-Discrimination Act 1977).

This is because his version of clause 12 overrides all parts of these laws (by using the general phrase ‘it is not unlawful’), whereas even the current version of the Religious Discrimination Bill applies to discrimination only (it uses the phrase ‘does not constitute discrimination’ instead).

I can’t speak for Mr Aroney, so I don’t know whether this drafting is deliberate – and he meant to ensure religiously-motivated comments that breach laws like s18C should be protected – or whether it is simply careless.

But even if it was the latter, I think it is symptomatic of the overall ‘religious freedom’ agenda – and that is it is only ever concerned with securing more, and more, and more, rights for religious fundamentalists, like the right to be a bigot towards women, LGBT people, people with disability and people of minority faiths.

And rarely, if ever, do religious freedom advocates bother to step back to consider what is being stripped away from other groups in society. Such as, in this instance, racial minorities.

My view is reinforced by the fact, on Thursday 20 January, multiple witnesses, from a variety of different religious organisations, were asked whether they supported Mr Aroney’s changes. Those that offered their support for his drafting include:

  • Mr John Steenhof, Principal Lawyer, Human Rights Law Alliance
  • Mr Mark Sneddon, Executive Director, Institute for Civil Society
  • Professor Patrick Parkinson, Director, Freedom for Faith
  • Right Reverend Dr Michael Stead, Bishop of South Sydney, Anglican Church Diocese of Sydney
  • Reverend Christopher Duke, Convener, Church and Nation Committee, Presbyterian Church of Victoria
  • Pastor Michael Worker, General Secretary and Director, Public Affairs and Religious Liberty, Seventh-day Adventist Church in Australia, and
  • Pastor Mark Llewellyn Edwards, Australian Christian Churches.

Again, I have no idea if they each consciously support overriding s18C of the Racial Discrimination Act 1975 (Cth), and other state and territory anti-vilification laws. But they absolutely supported amendments that have this practical effect. And at the very least it seems nobody even stopped to think about who was going to lose out as a result.

That is the insatiable religious freedom agenda in action. And you had best believe that, even if the Religious Discrimination Bill is passed, it will not stop eating away at the rights of others to live their lives free from discrimination.

5. Government Senators still haven’t grasped the full dangers of the Religious Discrimination Bill

It is fair to describe the Religious Discrimination Bills as complex, particularly because it contains a number of unique provisions that do things no other Australian anti-discrimination law has ever done before (like clauses 11 and 12, which specifically override, and undermine, anti-discrimination protections in other jurisdictions).

Nevertheless, it was disheartening when, on the final afternoon of two Senate hearings – which followed another three days of hearings into the Bill by the Joint Committee on Human Rights – the Chair of the Committee (Senator Sarah Henderson), was involved in the following exchanges, demonstrating she still hadn’t fully understood one of the Bill’s main problems:

Chair: Do you have to believe that it’s part of the doctrines and tenets of that religion? There has got to be a factual basis for that. You can’t just subjectively believe that.

Mr Walter [from the Attorney-General’s Department]: It’s a test of whether the individual believes it or not…

Chair: Does it have to be genuinely held in relation to you’ve got to factually be able to demonstrate that what you hold as your genuine belief reflect the doctrines and tenets of that religion? Your so-called relationship with God can’t be separated from, or not connected with, the doctrines and tenets of that religion. In other words, you can’t just make something up.

Senator Rice: You can. If you genuinely believe that your religion says so, you can.

Chair: That’s what I’m seeking to clarify. There’s been a genuine concern that many have expressed during these two days of hearings.

Mr Walter: Yes. What it doesn’t do is it doesn’t apply an objective text of saying, for example, ‘I believe X’…

Chair: Just to give you an example, could someone who is pro-euthanasia and has made some comments in relation to that issue genuinely consider that such a position is in accordance with the doctrines and tenets of Catholicism, for instance? The concern is that when you start to rely on the individual’s-

Senator Rice: It’s how it’s drafted.

Chair: genuine belief, which might not be connected in any way with the doctrine or tenet of that particular religion, isn’t there an issue with an objective test not applying?

Mr Walter: In that particular example, in theory, yes. However, that person needs to establish that they genuinely believe that. You’re going to be looking for a pattern of evidence that they’ve held that belief for a long time or they’ve expressed it in many ways-

Chair: Surely that doesn’t make sense, because that’s not consistent with the Catholic doctrine. How can they genuinely believe that that’s part of a tenet of that faith when it clearly, on its face, does not accord with the doctrines or tenets of Catholicism? How could that-

Senator O’Neill (ALP): That’s before we get to the religions that are new and don’t have such a body of evidence.

Senator Rice: Exactly.

Chair: That’s what makes this very complicated. Is there not a difficulty because there’s not an objective text; it’s a subjective test?

*****

At the very end, Senator Henderson was finally at least starting to ask the right question – because yes, there is a massive difficulty in that the definition of statement of belief is entirely subjective (with clause 5 of the Bill stating that only the person making the statement needs to ‘genuinely consider’ it to be in accordance with the religion).

That’s why this provision will protect an almost unlimited array of fringe beliefs – including white supremacist speech, as long as the person making it ‘genuinely considers’ it relates to their particularly-warped views of Christianity. It would not matter if every single church in Australia disagreed with them.

And the Attorney-General’s Department’s response – You’re going to be looking for a pattern of evidence that they’ve held that belief for a long time or they’ve expressed it in many ways – only makes things worse.

Apparently, if you can show you’ve made white supremacist comments, dressed up as religious belief, many times before, then it makes it more likely your comments will be protected from discrimination claims under Commonwealth, state and territory law.

The statement of belief provision is a mess. The whole Religious Discrimination Bill is a mess. And it must be rejected.

Conclusion

The above are just five of the issues which arose during the two days of hearings by the Senate Legal and Constitutional Affairs Committee into the Religious Discrimination Bill. There were many more I could have chosen to highlight here.

Despite this, based on media reports this morning, it seems likely that both Liberal and Labor Senators will recommend that the legislation be passed.

Which gives us just a matter of days to help stop this extreme, radical and unprecedented assault on the human rights of everyday Australians.

The best thing you can do at this point is to:

And if you need any further convincing of why this legislation should be defeated, try this: Why the Religious Discrimination Bill must be rejected (in 1,000 words or less).

The Religious Discrimination Bill might have been introduced by PM Scott Morrison, but it is just as big a test for Opposition Leader Anthony Albanese: will he support legislation that takes away rights from women, LGBT people, people with disability and people from minority faiths?

If you have enjoyed reading this article, please consider subscribing to receive future posts, via the right-hand scroll bar on the desktop version of this blog or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus

[NB This article is written in a personal capacity and does not represent the views of employers, past or present.]

LGBTIQ Law Reform Priorities for 2022

The next 12 months will be important in the history of LGBTIQ law reform in Australia.

There is the genuine possibility of long-overdue progress finally being made on key LGBTIQ human rights issues, at least in some jurisdictions.

At the same time, there is a real risk rights will be stripped away from our community, under Commonwealth law, in NSW and potentially elsewhere.

This post discusses five LGBTIQ law reform issues which, in my view, must be high priorities in 2022.

Please note before we start that a) they are *not* listed in order of priority and b) this list is by no means exhaustive – there is still a long way to go on the road to genuine legal and substantive equality for lesbian, gay, bisexual, transgender, intersex and queer Australians.

  1. Stopping the Commonwealth Religious Discrimination Bill

The Morrison Government introduced the Religious Discrimination Bill 2021 into Commonwealth Parliament at the end of last year, and will attempt to pass it before the federal election in May.

It must be stopped before it inflicts significant harm on women, LGBT people, people with disability and people of minority faiths, among many other members of the Australian community.

The Bill takes away existing protections under all Commonwealth, state and territory anti-discrimination laws, including the best practice Tasmanian Anti-Discrimination Act 1998, in order to allow offensive, humiliating, insulting and ridiculing comments, as long as they are motivated by religious belief.

This will obviously include legal protection for a wide range of demeaning and derogatory speech that is homophobic, biphobic and transphobic.

The Bill also introduces ‘religious exceptions’ that are far broader than any other Commonwealth, state and territory anti-discrimination law, both in the excessive scope of the organisations covered, and by adopting a test to determine whether these organisations are allowed to discriminate that is much, much more lenient than any other law.

The people at most risk are Muslim, Jewish, Buddhist, Hindu, agnostic and atheist employees of publicly-funded religious schools, hospitals, aged care facilities, housing and disability service providers.

However, these extraordinary exceptions will also be used to discriminate against LGBT students and teachers in religious schools. This discrimination will be done ‘under the guise of religious views’ – on the basis of a student’s or teacher’s religious beliefs about sexual orientation and gender identity, rather than on those attributes directly – but the outcome is still the same: LGBT kids and workers being legally discriminated against.

To find out more about the serious threat posed by the Religious Discrimination Bill, and some simple actions you can take to help stop it, check out: Why the Religious Discrimination Bill must be rejected (in 1000 words or less).

2. Ending coercive surgeries on intersex children

In my view, the worst human rights violations currently occurring against any part of the Australian LGBTIQ community are coercive surgeries and other non-consensual medical interventions on children born with variations in sex characteristics.

There is no justification for the ongoing contravention of the right to bodily integrity for intersex children.

Nor is there any excuse for the fact that, as at February 2022, no Australian Government has legislated to ban these human rights abuses. Especially when ending these practices was first recommended by a bi-partisan Senate Committee way back in October 2013.

Thankfully, 2022 might be the year progress is finally achieved, with the ACT Government committing to introduce legislation in the first half of the year. The Victorian Government has also promised to end these practices, although it is unclear whether they will take action before the state election in November 2022 (and would be incredibly disappointing if they didn’t).

There have been reports in other jurisdictions, including a 2020 Tasmanian Law Reform Institute Inquiry report, and a 2021 report from the Australian Human Rights Commission. But, really, the time for reports is over. It’s time for all states and territories, as well as the Commonwealth Government, to take concrete steps to end these human rights violations.

To stay up to date, follow Intersex Human Rights Australia on twitter and facebook and check out their website where you can donate if you have the capacity.

3. Removing barriers to identity documents for trans and gender diverse people

In 2022, there are still two Australian jurisdictions that require transgender people to have genital surgery in order to access birth certificates and other identity documents which reflect their gender identity: New South Wales and Queensland.

One other jurisdiction, Western Australia, requires transgender people to have physical medical treatments before updating their identity documents.

This situation is simply not good enough.

Trans and gender diverse people must be allowed to update their birth certificates on the basis of self-identification alone, without the need for surgery or other physical medical treatments, and without the need for doctors or other medical gate-keepers like counsellors or psychologists to ‘approve’ their identity.

And obviously all jurisdictions must provide recognition for gender identities beyond the binaries of male and female.

In good news, the Queensland Government has promised to take action on this issue early this year. While the Western Australian Government is sitting on a 2018 WA Law Reform Commission report which recommended sweeping changes to their laws.

Meanwhile in NSW? Nothing. No signs of progress. At all. Which will be incredibly embarrassing in February and March 2023, as Sydney plays host to World Pride, with what will likely be the worst birth certificate laws in the country.

For more on this subject, see: Did you know? Trans people in NSW and Queensland still require surgery to update their birth certificates.

4. Stopping Mark Latham’s anti-trans kids Bill

NSW is also the site of one of the worst attacks on LGBTI rights in Australia this century: Mark Latham’s Education Legislation Amendment (Parental Rights) Bill 2020.

This legislation would effectively erase trans and gender diverse children from classrooms and schoolyards across the state. Teachers and principals would be liable to be dismissed simply for acknowledging the existence of trans and gender diverse people, while the kids themselves would be left completely on their own, exposed to bullying, and without the life-saving support of school counsellors.

Other LGBT students would also suffer, with the Bill including a provision based on the infamous section 28 from Thatcher-era Britain, which harmed a generation of LGBT kids before being abandoned two decades ago. And there’s an offensive and stigmatising definition of intersex in the Bill, too.

A Committee chaired by Mark Latham himself recommended core parts of the Bill be implemented as policy in NSW (with other recommendations going even further, such as banning trans girls from using bathrooms matching their gender identity). Disappointingly, all three Coalition MPs, and one of the two Labor MPs, on that Committee, supported these recommendations.

The NSW Government, and new(ish) Premier Dominic Perrottet, must respond to this Committee report by 7 March (ie the Monday after Mardi Gras). There is a very real risk NSW will introduce changes this year that would not look out of place in Republican-heartland USA. This disgusting transphobic attack on vulnerable kids must be resisted.

For more on this subject, see: I Stand with Trans Kids, and Against Mark Latham.

5. Fixing Australia’s broken LGBTI anti-discrimination laws

Rather than simply defending our existing anti-discrimination laws from attack (see the Religious Discrimination Bill, above), we need to also take urgent action to address many of the serious short-comings of Australia’s current LGBTI anti-discrimination framework.

Indeed, both the Commonwealth Sex Discrimination Act 1984, and the laws of most – although not all* – states and territories should be significantly improved. This includes:

Commonwealth

The Sex Discrimination Act 1984 (Cth), should be amended to:

  • Replace the protected attribute of ‘intersex status’ with ‘sex characteristics’
  • Remove religious exceptions which allow religious organisations to discriminate against LGBT workers and people accessing services, including LGBT students, teachers and other staff at religious schools
  • Prohibit vilification on the basis of sexual orientation, gender identity and sex characteristics, and
  • Create a Discrimination Commissioner with responsibility for sexual orientation, gender identity and sex characteristics.

The Fair Work Act 2009 (Cth) must also be amended to explicitly cover gender identity and sex characteristics – currently, it only mentions sexual orientation, meaning protections for trans, gender diverse and intersex employees are not guaranteed.

New South Wales

The Anti-Discrimination Act 1977 (NSW) is the worst LGBTI anti-discrimination law in Australia, and needs significant modernisation, including:

  • Protect bisexual people against discrimination by replacing the protected attribute of ‘homosexuality’ with ‘sexual orientation’ (NSW is the only jurisdiction in Australia that currently does not protect bisexuals)
  • Protect non-binary people against discrimination by replaced the protected attribute of ‘transgender’ with ‘gender identity’
  • Protect intersex people against discrimination by introducing a protected attribute of sex characteristics
  • Remove specific exceptions which allow all private schools, colleges and universities (religious and non-religious alike) to discriminate against LGBT students and staff
  • Remove specific exceptions which allow discrimination by religious adoption agencies
  • Remove the general religious exceptions which allow religious organisations to discriminate against LGBT workers and people accessing services, and
  • Ensure prohibitions on vilification apply to all of sexual orientation, gender identity and sex characteristics.

Victoria

Recent amendments to the Equal Opportunity Act 2010 (Vic), which have yet to take effect, mean many problems there have already been addressed (although the Commonwealth Religious Discrimination Bill could strip away hard-won protections from LGBT teachers and other staff in religious schools, before they even commence).

However, the major outstanding item of business is the introduction of prohibitions on anti-LGBTI vilification (something which has already been considered by a Parliamentary Committee, and the Government has committed to do, but is awaiting implementation).

Queensland

The Anti-Discrimination Act 1991 (Qld) could be improved in several key areas, including:

  • Introduce a protected attribute of sex characteristics, for both discrimination and anti-vilification
  • Update the definition of ‘gender identity’ to ensure non-binary people are protected against discrimination
  • Amend the religious exceptions applying to LGBT teachers and other staff in religious schools, to remove the ‘Don’t Ask, Don’t Tell’ approach and replace it with stronger protection (noting that LGBT students are already protected)
  • Remove the general religious exceptions which allow other religious organisations to discriminate against LGBT workers), and
  • Remove the specific exception which allows discrimination against transgender employees where the job involves working with children (s28(1), which is particularly abhorrent).

Fortunately, the Queensland Human Rights Commission is currently undertaking a review of discrimination protections under the Act, while a Parliamentary Committee has recently recommended updating its anti-vilification protections.

Western Australia

The Equal Opportunity Act 1984 (WA) is probably second only to NSW in terms of worst LGBTI anti-discrimination legislation in Australia. It desperately needs amendments, including:

  • Protect intersex people against discrimination by adding a protected attribute of sex characteristics
  • Replace the current extremely-limited transgender protections (which only cover people who have had their gender identity recognised by the Government, and which is therefore restricted to people who have had genital surgery) with the much broader protected attribute of ‘gender identity’
  • Remove religious exceptions which allow religious organisations to discriminate against LGBT workers and people accessing services, including LGBT students, teachers and other staff at religious schools, and
  • Prohibit vilification on the basis of sexual orientation, gender identity and sex characteristics.

The Western Australian Law Reform Commission is currently undertaking a review of the Equal Opportunity Act.

South Australia

The Equal Opportunity Act 1984 (SA) could be improved in a number of ways, such as:

  • Replace the protected attribute of ‘intersex status’ with ‘sex characteristics’, while amending its religious exceptions to ensure they do not permit discrimination on this attribute
  • Clarify that the religious exceptions are not intended to allow discrimination against LGBT students in religious schools
  • Remove other religious exceptions which allow religious organisations to discriminate against LGBT workers and people accessing services, including LGBT teachers and other staff at religious schools, and
  • Prohibit vilification on the basis of sexual orientation, gender identity and sex characteristics.

Australian Capital Territory

The Discrimination Act 1991 (ACT) is the second best LGBTI anti-discrimination law in Australia. There is one major reform outstanding – removing the ability of religious organisations, other than schools, to discriminate against LGBT workers and peoples accessing their services (noting that LGBT students, teachers and other staff in religious schools are already protected against discrimination).

Thankfully, the issue of religious exceptions is currently under review by the ACT Government.

Northern Territory

Unlike the ACT, the Anti-Discrimination Act (NT) has fallen well behind best practice, and requires significant updating to:

  • Replace the current definition of ‘sexuality’ (which erroneously includes ‘transsexuality’) with a protected attribute of ‘sexual orientation’
  • Protect trans and gender diverse people against discrimination by adding a protected attribute of ‘gender identity’
  • Protect intersex people against discrimination by adding a protected attribute of ‘sex characteristics’
  • Remove religious exceptions which allow religious organisations to discriminate against LGBT workers and people accessing services, including LGBT teachers and other staff at religious schools (noting that LGBT students are already protected), and
  • Prohibit vilification on the basis of sexual orientation, gender identity and sex characteristics.

*Observant readers would note the Tasmanian Anti-Discrimination Act 1998 is not included in this list, because it is already close to best practice on these key points (protected attributes, religious exceptions and anti-vilification prohibition).

For more on this subject, see: A Quick Guide to Australian LGBTI Anti-Discrimination Laws.

Conclusion

In my opinion, these five LGBTIQ law reform issues should be high priorities in 2022. However, as well as being placed in no particular order, I would also reiterate this list is by no means exhaustive either.

Other important LGBTIQ law reform priorities include ensuring that states and territories other than Victoria and the ACT prohibit sexual orientation and gender identity conversion practices (including making sure the partial ban in Queensland is extended beyond health care settings).

Nor is law reform the only necessary pre-condition for substantive equality for LGBTIQ people, which must also be achieved through a variety of other measures, not least of which is funding (such as providing no-cost access via Medicare for gender identity-related health care, including full coverage of transition expenses).

Anyway, as with previous years, our agenda is big but our ambition, and determination, are bigger. Let’s get to work to make a better future for LGBTIQ Australians.

If you have enjoyed reading this article, please consider subscribing to receive future posts, via the right-hand scroll bar on the desktop version of this blog or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus

[NB This article is written in a personal capacity and does not represent the views of employers, past or present.]

Submission to ACT Government Discrimination Law Reform Discussion Paper

ACT Government Justice and Community Safety Directorate

Via: civilconsultation@act.gov.au

Sunday 30 January 2022

To the consultation team

Submission in response to ‘Inclusive, Progressive, Equal: Discrimination Law Reform’ Discussion Paper

Thank you for the opportunity to provide this submission in response to the Discussion Paper ‘Inclusive, Progressive, Equal: Discrimination Law Reform’ released in October 2021.

I do so in my personal capacity as a long-standing advocate for the lesbian, gay, bisexual, transgender and intersex (LGBTI) community.

This includes ongoing community education about, and campaigning for improvements to, LGBTI anti-discrimination laws across Australia, through my website www.alastairlawrie.net

In this submission I will focus on two areas of particular relevance to the LGBTI community, namely:

  • Consideration of a ‘general limitation’ defence, and
  • Reforms to religious exceptions in the Discrimination Act 1991 (ACT).

‘General limitation’ defence

Question 3: Should the exceptions in the Discrimination Act:

a. be removed and replaced with a general limitation / single justification defence that applies where discriminatory conduct is reasonably justified, or

b. be refined to make them simpler, stronger, and better aligned with our human rights framework?

I do not support the introduction of a general limitations clause as recommended by the ACT Law Reform Advisory Council in its 2015 Report (Recommendation 18).

While this type of provision may hold some attraction in principle, it would lead to a number of serious problems in practice.

Several of these are articulated in the Discussion Paper itself, including that ‘it may make the law more uncertain for users’ (page 15).

I would add that this uncertainty is more likely to benefit those users who have significant financial resources, for example encouraging large respondents to contest discrimination complaints. Whereas the uncertainty may mean that victims of discrimination are not able to easily understand whether they are protected under the Act or not, and may therefore be discouraged from bringing complaints because of a perceived risk of failure.

I also agree with the argument, articulated on page 15, that ‘it may lessen protections against discrimination because the defence would be arguable in all cases’.

This threat has become even more pronounced through the expanding ‘religious freedom’ agenda in recent years, including the Commonwealth Government’s proposed Religious Discrimination Bill 2021, which seeks to override state and territory anti-discrimination laws to provide legal protection to religiously-motivated comments that offend, humiliate, insult or ridicule others on the basis of who they are.

Even if that legislation is (hopefully) defeated, the introduction of a ‘general limitation’ defence in the ACT Discrimination Act would likely see religious fundamentalists exploit this provision to undermine the ability of women, LGBT people, people with disability and even people of minority faiths to live their lives free from discrimination.

Finally, I oppose the general limitation defence because of the possible adverse impact on the ACT Government’s long-overdue reforms to protect LGBT students, teachers and other workers in religious schools against discrimination, which were passed in late 2018.

Again, as outlined on page 15:

‘Such a provision may also weaken protections under existing exceptions, for example exceptions that allow discrimination by religious schools but only on certain grounds and subject to a range of conditions. A single justification defence would remove these clear restrictions and potentially allow discrimination in a broader range of circumstances, which may negatively impact LGBTIQ+ students and staff.’

It would be cruel and unusual to grant anti-discrimination protections to these students and staff, allowing them to finally learn and teach without the threat of mistreatment or abuse, only to take that away from them just four years later.

For all of these reasons I support the alternative approach, which is to refine the existing exceptions in the Act, and especially to narrow the religious exceptions which it contains.

Religious Exceptions

As indicated in the above answer, I strongly support the changes to religious exceptions made by the ACT Government in 2018, to protect LGBT students, teachers and other workers in religious schools against discrimination.

However, in my view, the job is only half-done, with a similarly-urgent need to protect LGBT employees of, and people accessing services from, other religious organisations operating across health, welfare and community services.

Therefore, I welcome this Discussion Paper’s focus on this out-standing reform to religious exceptions.

In principle, I support the approach to this subject in the Tasmanian Anti-Discrimination Act 1998, which:

  • Only allows religious organisations to discriminate on the ground of religious belief and activity, and not against other attributes such as sexual orientation or gender identity
  • Allows discrimination in relation to participation in religious observance (section 52)
  • Does not allow general discrimination in service delivery, and
  • Allows discrimination in employment, but only where it is an inherent requirement of the position (section 51(1): ‘A person may discriminate against another person on the ground of religious belief or affiliation or religious activity in relation to employment if the participation of the person in the teaching, observance or practice of a particular religion is a genuine occupational qualification or requirement in relation to the employment’).

These positions inform my responses to the Discussion Paper’s specific questions in relation to religious exceptions, as follows:

Question 7: Should the exception protecting religious observances (eg appointment of ministers etc) be refined so that discrimination is only permitted where necessary to conform with the doctrines of the relevant religion?

Provided that the circumstances in which this discrimination is permitted are narrowly defined (including ordaining or appointing priests, ministers of religion or members of a religious order etc), I am agnostic about whether the test to determine whether such discrimination is allowed needs to be changed.

Question 8: Should the religious bodies exception be changed so that religious bodies cannot lawfully discriminate when conducting commercial (for-profit) activities?

Yes. I can see no justification for providing religious organisations conducting commercial/for-profit activities with special privileges allowing them to discriminate where it would otherwise be unlawful.

Question 9: Should the religious bodies exception be changed so that religious bodies cannot lawfully discriminate when providing goods or services to members of the public?

Yes. Again, I can so no justification for providing religious organisations that provide goods and services to members of the public with special privileges allowing them to discriminate where it would otherwise be unlawful.

Question 10: Should religious health care providers only be permitted to discriminate on the ground of religion in employment decisions where the duties are of a religious nature?

Question 11: Should any other religious service providers only be permitted to discriminate on the ground of religion in employment decisions where the duties are of a religious nature?

Question 12: Are there any other circumstances in which religious bodies should be permitted to discriminate in employment decisions?

(Answered together)

As discussed earlier, I endorse the approach to these issues which is adopted in section 51(1) of the Tasmanian Anti-Discrimination Act 1998, namely that:

‘A person may discriminate against another person on the ground of religious belief or affiliation or religious activity in relation to employment if the participation of the person in the teaching, observance or practice of a particular religion is a genuine occupational qualification or requirement in relation to the employment.’

This would allow religious belief to be considered where it is intrinsic to the role in question (such as a hospital chaplain), and to be excluded from consideration where it is irrelevant.

Question 13: Should some sectors or types of organisations be prevented from relying on the general religious bodies exception? For example, organisations that receive a certain proportion of public funding?

Provided that the above positions are adopted (that religious organisations can only discriminate on the basis of religious belief and not on the basis of other protected attributes, that they cannot discriminate in general service delivery, and can only discriminate in employment where it is a genuine occupational requirement), then this type of further limitation may be unnecessary.

There is also a danger in drawing this kind of distinction, whereby those organisations which are not in receipt of government funding seek broader exceptions to discriminate in both employment and service delivery, including on the basis of sexual orientation and gender identity (see, for example, the recently-passed Victorian Equal Opportunity (Religious Exceptions) Amendment Act 2021 which disappointingly retained the special privileges allowing non-government funded religious organisations to discriminate in service delivery on the basis of sex, sexual orientation, lawful sexual activity, marital status, parental status and gender identity).

Question 14: Should religious bodies only be permitted to discriminate against members of the public on some grounds, and not others? If so, which grounds should be permissible?

Yes, as articulated earlier, I support the approach in the Tasmanian Anti-Discrimination Act 1998 – and the Discrimination Act 1991’s existing approach in relation to religious schools – which is to permit discrimination on the basis of religious belief only, and not on the basis of other attributes like sexual orientation and gender identity.

Thank you in advance for taking this submission into consideration.

Please do not hesitate to contact me, at the details provided, should you require clarification or additional information.

Sincerely

Alastair Lawrie

Why the Religious Discrimination Bill must be rejected (in 1000 words or less)

The Morrison Government’s Religious Discrimination Bill is a serious threat to the rights of women, LGBT people, people with disability, people of minority faiths and many other Australians.

However, because anti-discrimination law is already highly technical, and the proposed Bill is both incredibly complex, and contains a range of provisions that are completely unprecedented, it can be difficult to understand exactly what is at stake.

The following, then, is my attempt to explain the major problems contained in the Religious Discrimination Bill in 1000 words or less:

*****

The statement of belief’ provision protects offensive, humiliating, insulting and ridiculing comments against women, LGBT people, people with disability, people of minority faiths and others on the basis of who they are.

It does this by taking away existing protections against discrimination under all Commonwealth, state and territory anti-discrimination laws, including targeting the best practice provisions of Tasmania’s Anti-Discrimination Act.

As long as they are motivated by religious belief, people will be empowered to make demeaning and derogatory comments in all areas of public life: in workplaces, schools and universities, hospitals, aged care, public transport, cafes, restaurants and shops. Everywhere.

And because the definition of statement of belief depends only on the subjective interpretation of the person making them, it protects fringe or radical views, including religiously-motivated anti-Semitism, Islamophobia and even racism.

By overriding all other anti-discrimination laws, the ‘statement of belief’ provision also denies access to justice to victims of discrimination.

This is because it effectively introduces a Commonwealth ‘defence’ to state laws, meaning state tribunals – which hear the majority of anti-discrimination cases – will be unable to resolve complaints where this issue is raised.

These cases will instead need to be heard by state supreme courts, or federal courts, at massively-increased costs to complainants.

The groups most likely to experience religiously-motivated discrimination – women, LGBT people, people with disability and people of minority faiths – will lose the most.

The ‘statement of belief’ provision also grants extraordinary powers to the Commonwealth Attorney-General to take away existing rights in other areas, by ‘prescribing’ additional laws that will be undermined.

Laws that are at risk include:

  • ‘Safe access zone’ protections covering pregnant people seeking lawful terminations
  • Bans on sexual orientation and gender identity conversion practices, and even
  • Section 18C of the Racial Discrimination Act, which prohibits racial vilification.

The ‘religious exceptions’ in the proposed Bill are just as dangerous.

While many anti-discrimination laws contain ‘religious exceptions’, the special privileges allowing religious organisations to discriminate under the Religious Discrimination Bill are far broader than any other Commonwealth, state or territory anti-discrimination law.

This is both because it adopts a much more lenient test than other laws to determine when this discrimination is permitted (only requiring that one other person of the same religion could reasonably consider the discrimination to be justified).

And because it applies to a much wider range of organisations than other laws, covering charities, hospitals, aged care facilities, accommodation providers, disability service providers, camps and conference sites and even religious organisations undertaking some commercial activities.

Unlike the Sex Discrimination Act and similar laws, the Bill does not require these bodies to have been ‘established for religious purposes’, imposing the much easier test of ‘conducted in accordance with’ religious beliefs.

The people who stand to lose most from these exceptions are Muslim, Jewish, Buddhist, Hindu, agnostic and atheist workers denied jobs, promotions and training they are qualified for simply because of their religious beliefs (or lack thereof).

These exceptions also apply to ‘religious educational institutions’, covering everything from child-care and early learning centres, through to schools, colleges and universities.

However, unlike best practice provisions in Tasmania, Queensland, the ACT and NT which limit these exceptions to enrolment only, the proposed Bill permits discrimination against students on the basis of religious belief throughout their education.

In this way, the Religious Discrimination Bill allows discrimination against children and young people, denying them their religious freedom to question, explore and develop their own faith as they learn and grow, without fear of punishment.

The same provisions could also be used by religious schools to discriminate against LGBT kids, not on the basis of their sexual orientation or gender identity itself, but on whether they affirm statements like ‘homosexuality is intrinsically disordered’ or ‘God created man and woman, therefore being transgender is sinful’. The outcome would nevertheless be the same: LGBT kids being mistreated because of who they are.

This means that, even if the Morrison Government finally implements its promise to amend the Sex Discrimination Act to protect LGBT students, religious schools could still discriminate against them via alternative means.

The Bill also allows discrimination against teachers and other employees of religious educational institutionsmeaning they can be hired and fired on the basis of their faith, not their skills.

In addition, it grants extraordinary powers to the Commonwealth Attorney-General, allowing them to take away existing rights from teachers under state and territory anti-discrimination laws.

This includes recently-passed laws in Victoria which only permit discrimination where it is an inherent requirement of the role, and ‘reasonable and proportionate in the circumstances’, as well as similar laws in operation in Queensland for two decades, and in Tasmania and the ACT.

As with students, these provisions could also provide an alternative means to permit discrimination against LGBT workers ‘under the guise of religious views’. LGBT teachers and other staff are potentially at risk in Victoria, Queensland, Tasmania and the ACT.

Finally, the Bill includes a range of other significant problems:

  • Removing the ability of qualifying bodies to take appropriate action about harmful ‘statements of belief’ made by professionals outside the workplace (for example, protecting repeated homophobic and transphobic comments by a doctor in a small town, even where this makes it unsafe for LGBT people to access essential healthcare)
  • Providing an unprecedented ability for religious organisations to make discrimination complaints in their own right, including allowing faith bodies to take legal action to prevent Commonwealth, state and territory governments from requiring organisations that receive public funding not to discriminate against LGBT people
  • Preventing local governments from passing by-laws to address harmful anti-LGBT ‘street preachers’
  • Introducing a totally unnecessary amendment to the Charities Act to ‘protect’ charities advocating a ‘traditional view of marriage’ (and those charities only), and
  • Expanding ‘religious exceptions’ in the Marriage Act to allow religious educational institutions to deny the use of their facilities for LGBTI-inclusive weddings, even where these facilities are offered to the public on a commercial basis.

Overall, the Religious Discrimination Bill promotes rather than prohibits discrimination. It must be blocked.

(999 words)

*****

The above summary does not even cover all of the many problems created by the Religious Discrimination Bill. If you would like to know more of the technical details, I encourage you to read the public submissions made by:

  • the Public Interest Advocacy Centrehere;

and

  • the Australian Discrimination Law Experts Grouphere

to the two Parliamentary committees (Joint Committee on Human Rights, and Senate Committee on Legal and Constitutional Affairs) which have been holding inquiries into this legislation over summer.

Both Committees are due to table their final reports to Parliament on Friday 4 February, meaning the Religious Discrimination Bill could be debated, and passed, in the sitting weeks beginning on Tuesday 8 February.

There is, however, still time to stop this extraordinary and extreme, radical and unprecedented – and downright dangerous – law, but only if you make your opposition to it known right now.

There are a number of actions you can take, today:

  • Contact the following list of moderate and/or lesbian and gay Liberal MPs and Senators, expressing your serious concerns about the Bill and asking them to cross the floor to protect the rights of all Australians (using their contact details from Parliament House):
    • Angie Bell (Member for Moncrieff)
    • Dave Sharma (Wentworth)
    • Katie Allen (Higgins)
    • Fiona Martin (Reid)
    • Trevor Evans (Brisbane)
    • Tim Wilson (Goldstein)
    • Trent Zimmerman (North Sydney)
    • Warren Entsch (Leichhardt)
    • Bridget Archer (Bass)
    • Andrew Bragg (Senator for New South Wales)
    • Richard Colbeck (Senator for Tasmania), and
    • Dean Smith (Senator for Western Australia).

Together, we can ensure the Religious Discrimination Bill is rejected, for the benefit of women, LGBT people, people with disability, people of minority faiths and many, many other Australians whose rights would be at risk if this divisive law was allowed to pass.

If you have enjoyed reading this article, please consider subscribing to receive future posts, via the right-hand scroll bar on the desktop version of this blog or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus

[NB This article is written in a personal capacity and does not represent the views of employers, past or present.]

LGBT kids don’t need more hollow promises

On Thursday, it was reported that Attorney-General Michaelia Cash has written to the Australian Law Reform Commission, asking for ‘detailed drafting’ to protect LGBT children from discrimination in faith-based schools.  

‘It is … the government’s position that no child should be suspended or expelled from school on the basis of their sexuality or gender identity,’ wrote Cash.

There are at least six reasons why this seemingly positive expression of support for LGBT kids is a bitterly disappointing statement of hollow nothingness.

First, we’ve heard this all before.  On 11 October 2018 the Prime Minister, Scott Morrison, stated unequivocally: ‘We do not think that children should be discriminated against’. He promised to amend the Sex Discrimination Act to protect LGBT students in religious schools against discrimination before the end of that year.

That was more than 3 years ago. 1,137 days to be exact (and yes, I’m counting). In that time, the Morrison Government has failed to do anything concrete to implement its promise.

Second, the Attorney-General was writing to ask the ALRC to do what it was already tasked to do by her predecessor, Christian Porter, back in April 2019. His original terms of reference requested the Commission to review religious exemptions, ‘having regard to… the importance of protecting the rights of all people, and children in particular, to be free from discrimination in education.’

More than 30 months later, the new Attorney-General is trying to spin a request for ‘detailed drafting’ as being something new. Exactly how that varies from ordinary ALRC recommendations is a distinction without a difference.

Third, we don’t need ‘detailed drafting’. We know how to protect LGBT students in religious schools against discrimination.  Four jurisdictions – Queensland, Tasmania, the ACT and NT – have already done so. Tasmania has been protecting LGBT kids, successfully, for more than 23 years. The amendments required are simple. There’s no need to reinvent the wheel.

Fourth, there’s not even a need to invent a new Bill. In response to the Prime Minister’s promise to protect LGBT kids in October 2018, the Labor Opposition introduced their own legislation the following month (the Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018). The schedule of substantive amendments came to a grand total of 70 words.

If the ALRC reports in 2023, and the Government finally takes action that same year (both of which remain big ifs), it could end up taking them 5 years to draft 70 words. At just over one word per month, they’re certainly pacing themselves.

Fifth, we can see from the time and energy expended on the Religious Discrimination Bill where the Government’s real priorities lie. 

We’ve already gone through two rounds of public exposure drafts on the ‘religious freedom’ Bills package (which actually comprises three separate Bills). We’ve had 157 pages of draft legislation, before we even get to the third and final version(s) next week.

The drafting effort that has gone into the Religious Discrimination Bill demonstrates what happens when a Government wants to get something done. The comparative lack of effort in drafting straight-forward amendments to protect LGBT kids reveals what happens when they don’t.

Sixth, based on Senator Cash’s correspondence, it’s not even clear whether the Government supports ending all discrimination against LGBT students, or only removing the ability of religious schools to suspend or expel them. If it’s just the latter, then other forms of mistreatment would continue to be permitted, and the harm they experience will go on.

A child who was in Year 7 when the Prime Minister first promised to protect them from discrimination is on track to finish high school before he keeps that promise. That’s an entire generation of LGBT kids abandoned because they’re not considered a priority by their own Government.

LGBT kids don’t need more ‘detailed drafting’. They need action. What do we have instead? The Attorney-General sending the emptiest of gestures to the Australian Law Reform Commission, asking them to do something they’ve already been tasked to do.

It is a fig-leaf trying to cover up years of the Morrison Government’s inaction. But nothing can hide their lack of care about this issue. Because if they cared, it would have been fixed years ago.

The tragedy of it all is that, for as long as the Government prevaricates and obfuscates, vulnerable children are left exposed to abuse and mistreatment, discrimination, suspension and even expulsion, just because of who they are.

LGBT students deserve the right to learn in safety. Instead, Commonwealth anti-discrimination laws grant religious schools extraordinary special privileges to discriminate against them.

If you have enjoyed reading this article, please consider subscribing to receive future posts, via the right-hand scroll bar on the desktop version of this blog or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus

Submission to the WA Law Reform Commission Review of the Equal Opportunity Act 1984

Law Reform Commission

GPO Box F317

Perth WA 6841

Via email: equalopportunityreview@justice.wa.gov.au

Friday 5 November 2021

To the Commission

Submission to Review of the Equal Opportunity Act 1984 (WA)

Thank you for the opportunity to provide this individual submission in response to the Commission’s Discussion Paper as part of this important and long-overdue review.

I do so as a long-standing advocate for the lesbian, gay, bisexual, transgender and intersex (LGBTI) community, and as a leading expert on LGBTI anti-discrimination law in Australia, as demonstrated by my personal website www.alastairlawrie.net

Based on this experience, I submit that the Equal Opportunity Act 1984 (WA) is one of the worst LGBTI anti-discrimination laws in Australia, failing to offer necessary protections to multiple sections of the LGBTI community, across multiple areas.[i]

In this submission, I will provide major comments in relation to three primary areas for reform:[ii]

  • Protected attributes
  • Religious exceptions, and
  • Anti-vilification coverage.

I will then provide some additional comments regarding a number of other issues raised in the Discussion Paper.

Protected Attributes

Gender identity

I welcome the Discussion Paper’s focus on the issue of ‘gender history discrimination and gender identity’ on pages 107 to 109 (although I also note the problematic aspects of this discussion in relation to sex characteristics, which I will address further below).

Western Australia’s anti-discrimination protections for trans and gender diverse people are the narrowest and therefore most limited in Australia.

It is the only jurisdiction to limit anti-discrimination coverage to people who have undergone surgical and/or hormonal gender affirmation treatment, and have also had that gender affirmation recognised by the State (in this case, under the Gender Reassignment Act 2000 (WA)).[iii]

This is because of the combination of three provisions: the definition of gender reassigned person in section 4:

‘gender reassigned person means a person who has been issued with a recognition certificate under the Gender Reassignment Act 2000 or a certificate which is an equivalent certificate for the purposes of that Act’;

the definition of ‘gender history’ in section 35AA:

(1) ‘For the purposes of this Part, 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.

(2) In subsection (1)-

opposite sex means a sex of which the person was not a member at birth’;

and the test for discrimination on the protected attribute of ‘gender history’ in section 35AB (and subsequent sections):

(1) ‘For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against a gender reassigned person on gender history grounds if, on the ground of the gender reassigned person having a gender history, the discriminator treats the gender reassigned person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person not thought by the discriminator to have a gender history.’

In my view, there is no justification to limit protections for gender identity-related discrimination to the comparatively small group of people who have had their gender identity recognised by the State, while leaving the much larger group of other trans and gender diverse people without any protections whatsoever.

It is time for Western Australia to remove this limitation, and follow the lead of the Commonwealth Government, and all other states and territories, by removing any link between formal gender recognition and anti-discrimination protection.

A related problem is caused by the definition of ‘gender history’ in section 35AA, which limits protections to people who ‘identify as a member of the opposite sex’ – meaning a person who was assigned female at birth but whose gender identity is male, and vice versa.

Irrespective of the gender recognition restriction (above), this definition itself excludes a wide range of nonbinary and gender diverse people whose gender identities do not neatly fit within this supposed ‘gender binary’.

Unfortunately, in this respect, Western Australia has some company – anti-discrimination coverage in NSW, Queensland and the Northern Territory also excludes nonbinary and gender diverse people.

However, that means all other jurisdictions, including the Commonwealth, Victoria, South Australia, Tasmania and the ACT, have amended their laws to protect nonbinary and gender diverse people.

Once again, I can see no legitimate justification to allow discrimination against nonbinary and gender diverse people on the basis of their gender identity.

It is time for Western Australia to follow the best practice approach of other jurisdictions. The most recent, and not-coincidentally most inclusive, is the definition of gender identity which commenced in the Victoria Equal Opportunity Act 2010 on 26 October 2021:

‘gender identity means a person’s gender-related identity, which may or may not correspond with their designated sex at birth, and includes the personal sense of the body (whether this involves medical intervention or not) and other expressions of gender, including dress, speech, mannerisms, names and personal references’ (section 4).

Finally, I see no justification for why anti-discrimination protections for trans and gender diverse people should apply in fewer areas of public life compared to other protected attributes. The Act should be amended so that the prohibition on discrimination on the basis of gender identity applies in the same areas as race, sex and sexual orientation.

Recommendation 1:

Trans and gender diverse people in Western Australia should be protected against discrimination irrespective of whether their gender identity is formally recognised by the State, and irrespective of whether their gender identity is binary, nonbinary or gender diverse.

This should be achieved by replacing the protected attribute of ‘gender history’ with a protected attribute of ‘gender identity’, and adopting the best practice definition from the Victorian Equal Opportunity Act 2010:

‘gender identity means a person’s gender-related identity, which may or may not correspond with their designated sex at birth, and includes the personal sense of the body (whether this involves medical intervention or not) and other expressions of gender, including dress, speech, mannerisms, names and personal references’.

Prohibitions against discrimination on the basis of gender identity should also apply in the same areas of public life as existing core protected attributes, such as race, sex and sexual orientation.

Sex characteristics

As flagged earlier, perhaps the most disappointing aspect of the entire Discussion Paper is the conflation of the two distinct protected attributes of gender identity and sex characteristics.

In the section ‘Gender history discrimination / gender identity / intersex status’ on pages 107 to 109, it is unclear whether the Discussion Paper’s author(s) understand the differences between trans and gender diverse people, and people with innate variations of sex characteristics (intersex people).

Indeed, the questions posed on page 109 – ‘Should the protections in the Act be expanded beyond the currently defined gender reassigned persons (for example, persons identifying as another sex)? Should there be exceptions? What other legislation is relevant to this provision?’ – do not even ask directly about what attribute should be introduced to protect people with innate variations of sex characteristics against discrimination.

Obviously, I believe that intersex people in Western Australia do require protection against discrimination under the Equal Opportunity Act.

In my view, this should be achieved by introducing a new protected attribute of ‘sex characteristics’, as called for by intersex people and organisations in the March 2017 Darlington Statement, and as reflected in the Yogyakarta Principles plus 10

The terminology ‘sex characteristics’ is best practice, and has been recently introduced in both the ACT and Victoria (with ‘intersex variations of sex characteristics’ covered in Tasmania). Sex characteristics is also preferred compared to older attributes of ‘intersex status’, as protected in the Sex Discrimination Act 1984 (Cth), and in South Australia.

I endorse the definition of sex characteristics proposed by Intersex Human Rights Australia in their submission in response to the Discussion Paper:[iv]

‘sex characteristics means a person’s physical features relating to sex, and includes:

(a) the person’s genitalia and other sexual and reproductive parts of the person’s anatomy; and

(b) the person’s chromosomes; and

(c) the person’s hormones; and

(d) secondary features emerging as a result of puberty.’

Recommendation 2:

People with innate variations of sex characteristics (intersex people) in Western Australia should be protected against discrimination on the basis of who they are.

This should be achieved by introducing a protected attribute of ‘sex characteristics’, based on the wording used in the submission by Intersex Human Rights Australia:

‘sex characteristics means a person’s physical features relating to sex, and includes:

(a) the person’s genitalia and other sexual and reproductive parts of the person’s anatomy; and

(b) the person’s chromosomes; and

(c) the person’s hormones; and

(d) secondary features emerging as a result of puberty.’

Sexual orientation

One issue not addressed at all in the Discussion Paper is the need to update the definition of the protected attribute of sexual orientation.

Currently, section 4 of the Act defines sexual orientation as:

‘in relation to a person, means heterosexuality, homosexuality, lesbianism or bisexuality and includes heterosexuality, homosexuality, lesbianism or bisexuality imputed to the person.’

While this does include people who identify as lesbian, gay and bisexual, it does not expressly include other sexual orientations such as pansexuality. It has also fallen behind the best practice definitions of sexual orientation adopted elsewhere in Australia.

For example, recent amendments to the Victorian Equal Opportunity Act 2010, which commenced on 26 October 2021, define sexual orientation as:

‘means a person’s emotional, affectional and sexual attraction to, or intimate or sexual relations with, persons of a different gender or the same gender or more than one gender.’

The WA Equal Opportunity Act 1984 should be amended in a similar manner to ensure sexual orientations other than lesbian, gay and bisexual – including people identifying as pansexual – are explicitly protected.

Recommendation 3:

People with sexual orientations other than lesbian, gay and bisexual – such as pansexual people – in Western Australia should be protected against discrimination on the basis of who they are.

This should be achieved by modernising the definition of ‘sexual orientation’ in section 4 of the Act, with reference to the best practice definition in the Victorian Equal Opportunity Act 2010:

‘sexual orientation means a person’s emotional, affectional and sexual attraction to, or intimate or sexual relations with, persons of a different gender or the same gender or more than one gender.’

*****

Religious Exceptions

The religious exceptions contained in the Equal Opportunity Act 1984 (WA) are excessive, and do not reflect contemporary community standards. Nor do they respect the right of LGBT people in Western Australia to go about their daily lives, free from discrimination. In employment. In education. In health and community services. In all areas of public life.

For example, section 72 currently provides:

‘Nothing in this Act affects-

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

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

(c) the selection or appointment of persons to perform duties or functions for the purposes of or in connection with, or otherwise to participate in any religious observance or practice; or

(d) 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.’

While there may be some possible justification for sub-sections (a) through (c) (although I would argue (c) needs to be more narrowly drafted), in order to respect the ability of religious bodies to employ, train and appoint people to engage in religious ceremonies, there can be no possible justification for granting religious organisations an effective ‘blank cheque’ to discriminate against people in all areas of public life, and in relation to all protected attributes, including sexual orientation and gender identity.

In this respect, the Western Australian Equal Opportunity Act has fallen well behind best practice, and in particular the approach to religious exceptions adopted by Tasmania 23 years ago.

Under the Tasmania Anti-Discrimination Act 1998, the circumstances in which religious organisations may discriminate are more narrowly constrained. More importantly, such discrimination is only allowed on the ground of religious belief or activity or religious activity, and therefore not on other grounds such as sexual orientation, gender identity or intersex variations of sex characteristics.

Not only is this, in my view, a preferrable accommodation of the legitimate needs of religious organisations to form communities of faith, but it has also operated successfully for more than two decades, thereby setting an example I would strongly encourage Western Australia to follow.

The arguments against allowing religious organisations to discriminate against LGBT people generally are even stronger in relation to LGBT students, teachers and other staff in the context of religious schools.

Under section 73 of the Equal Opportunity Act, religious schools are permitted to discriminate against:

  • LGBT teachers (sub-section (a))
  • LGBT contract workers (sub-section (b)), and
  • LGBT students and/or families (sub-section (c)).

This is unacceptable. LGBT teachers should be free to impart their knowledge, and utilise their skills, in any environment without having to fear that their sexual orientation, gender identity or relationship status will be used to discipline them in, or even dismiss them from, their role. 

LGBT students should also be free to learn without fearing that their place of learning will discriminate against them. The parents of LGBT students, as well as rainbow families with children, should be able to feel confident in sending their children to any school in the knowledge they will not be mistreated because of who they, or their families, are.

Currently, Western Australia’s anti-discrimination laws fall well short of this ideal.

Instead, both in relation to religious exceptions broadly, and in relation to religious schools specifically, I submit that Western Australia should adopt similar provisions to those already successfully operating in the Tasmanian Anti-Discrimination Act 1998, namely:

51. Employment based on religion

(1) A person may discriminate against another person on the grounds of religious belief or affiliation or religious activity in relation to employment if the participation of the person in the teaching, observance or practice of a particular religion is a genuine occupational qualification or requirement in relation to the employment.

(2) A person may discriminate against another person on the ground of religious belief or affiliation or religious activity in relation to employment in an educational institution that is to be conducted in accordance with the tenets, belief, teachings, principles or practices of a particular religion if the discrimination is in order to enable, or better enable, the educational institution to be conducted in accordance with those tenets, beliefs, teachings, principles or practices.

51A. Admission of person as student based on religion

(1) A person may discriminate against another person on the ground of religious belief or affiliation or religious activity in relation to admission of that other person as a student to an educational institution that is or is to be conducted in accordance with the tenets, beliefs, teachings, principles or practices of a particular religion.

(2) Subsection (1) does not apply to a person who is enrolled as a student at the educational institution referred to in that subsection.

(3) Subsection (1) does not permit discrimination on any grounds referred to in section 16 other than those specified in that subsection.

(4) A person may, on a ground specified in subsection (1), discriminate against another person in relation to the admission of the other person as a student to an educational institution, if the educational institution’s policy for the admission of students demonstrates that the criteria for admission relates to the religious belief or affiliation, or religious activity, of the other person, the other person’s parents or the other person’s grandparents.

52. Participation in religious observance

A person may discriminate against another person on the ground of religious belief or affiliation or religious activity in relation to-

(a) the ordination or appointment of a priest; or

(b) the training and education of any person seeking ordination or appointment as a priest; or

(c) the selection or appointment of a person to participate in any religious observance or practice; or

(d) any other act that-

(i) is carried out in accordance with the doctrine of a particular religion; and

(ii) is necessary to avoid offending the religious sensitivities of any person of that religion.

There is obviously a lot of detail in these sections, but one particular point I would like to draw to the Commission’s attention is that it does allow religious schools to discriminate on the basis of religious belief or affiliation or religious activity against students, but only at admission or enrolment, and not post-enrolment.

Preferencing students of a particular religion is a concession to the ability of denominations to form communities of faith in which to educate children. However, the limitation – only allowing discrimination at enrolment and not beyond – is just as important, for two reasons.

First, it allows the child to determine their own religious beliefs as they age. Schools should not be able to discriminate against students who, as they grow older, question the faith of the school, or particular elements of that faith, adopt a different faith, or decide to have no faith at all.

Second, prohibiting discrimination on the basis of religious belief beyond enrolment is a necessary safeguard against religious schools imposing discrimination on the basis of other attributes, including sexual orientation or gender identity, via alternative or indirect routes.

For example, were religious schools permitted to discriminate on the basis of religious belief throughout a student’s education, they could potentially ask students to sign codes of conduct which state that ‘homosexuality is intrinsically disordered’ or that ‘sex is binary and determined at birth’ (thereby erasing trans and gender diverse children).

The school in these circumstances could claim students who refused to sign such a document, and were subsequently punished, were not being discriminated against because of their sexual orientation or gender identity, but because of the specific tenets of the faith of the school. This discrimination would nevertheless inflict the same harmful outcome on LGBT students and should be prohibited.

Indeed, each of the four Australian jurisdictions which have already legislated to protect LGBT students in religious schools against discrimination (Queensland, the Northern Territory and the ACT, in addition to Tasmania) only allow religious schools to discriminate against students on the basis of religious belief, and only at the point of enrolment.

Finally, in relation to religious exceptions, I would like to highlight three alternative approaches to this issue which I would caution against being adopted in the Western Australian Equal Opportunity Act.

First, the Queensland Anti-Discrimination Act 1991, and specifically section 25, establishes what I describe as a ‘Don’t Ask, Don’t Tell’ scheme, whereby religious schools are not allowed to ask teachers about their sexual orientation or gender identity.

However, where LGBT teachers and other staff members are ‘out’, disclose anything about their orientation, identity or relationship status – or ‘openly act in a way that the person knows or ought reasonably to know is contrary to the employer’s religious beliefs’ (sub-section 25(3)(a)) – they can be fired.

Forcing LGBT teachers into the closet in order to teach is inhumane. Compelling them to continually watch over the shoulders, and be ever-vigilant in policing their own sexual orientation and/or gender identity, is intolerable.

Don’t Ask, Don’t Tell was a failed policy in the US military. It is an awful approach under the Queensland Anti-Discrimination Act. And it must not be replicated in Western Australia.

Second, the South Australian Equal Opportunity Act 1984, and specifically section 4, adopts what I consider to be an unsatisfactory approach in allowing discrimination by religious schools against LGBTI teachers, but only where the person discriminated against was provided with a publicly-available policy spelling out this discrimination.

Specifically, subsection 34(3) states:

This Division does not apply to discrimination on the ground of sexual orientation, gender identity or intersex status 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.

In my view, the publication of such a policy does not ameliorate the discrimination involved. It does not make discrimination against LGBTI teachers any more acceptable, only more public.

Indeed, attempting to justify such a policy on the basis of ‘transparency’ is akin to suggesting the White Australia Policy was something less than racist because it was written down. Anti-LGBTI prejudice is just as unacceptable when it is published.

Third, the Victorian Government recently proposed amendments to the religious exceptions in their Equal Opportunity Act 2010 (via the Equal Opportunity (Religious Exceptions) Amendment Bill 2021, currently awaiting debate).

While passage of this legislation would result in significant improvements to their anti-discrimination framework, including removing the ability of religious schools to discriminate against LGBT students, teachers and other staff, it also introduces a dichotomy into the Act, establishing different protections in some circumstances based on whether the services being delivered are government funded or not (proposed new section 82B).

Where those services are not government funded – even if they are in the public sphere (such as community services) – religious organisations would retain the ability to discriminate against people accessing those services on the basis of ‘religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity’ (existing section 82(2)).

In my view, the discrimination itself remains unacceptable irrespective of the source of the funds used in its execution. This is both a practical consideration – that the individuals who are discriminated against in this way would suffer adverse and unjustified impacts.

And a normative one. A primary function of anti-discrimination laws is to signal to society what types of discrimination are acceptable, and what types are not. Retaining provisions which explicitly state there will be certain situations in which it is acceptable to discriminate on the basis of sexual orientation or gender identity reinforces negative anti-LGBT attitudes. 

In this way, while a large step forward, the proposed Victorian amendments still fall short of the best practice Tasmanian approach.

Recommendation 4:

Lesbian, gay, bisexual and transgender people in Western Australia should be protected against discrimination by religious organisations, both in employment and in relation to access to services.

This should include protection for LGBT students and their families, and for teachers and other staff members, in relation to religious schools and other religious educational institutions.

Where discrimination by religious schools is allowed in relation to students, this must be limited to the ground of religious belief or activity, and must not be legally permitted beyond enrolment.

This should be achieved by using the best practice provisions of the Tasmanian Anti-Discrimination Act 1998 – and specifically sections 51, 51A and 52 – as a starting point.

*****

Anti-Vilification Protections

I welcome the Discussion Paper’s focus on the issue of anti-vilification protections, from page 150 onwards, including acknowledgement that in Western Australia, only racial harassment and some aspects of racial vilification are prohibited, and not general vilification on the basis of other protected attributes.

In my view, this is a significant weakness of the Equal Opportunity Act 1984 (WA), especially given the ongoing high levels of anti-LGBTI harassment and hate speech in the community.

It also means that, in yet another core area of anti-discrimination legislation, Western Australia has fallen behind the standard set by other jurisdictions.[v]

Specifically, Tasmania and the ACT both prohibit vilification against all parts of the lesbian, gay, bisexual, transgender and intersex community.

Meanwhile, Queensland prohibits vilification against lesbian, gay, bisexual and some transgender people (those with binary gender identities), but does not prohibit vilification against nonbinary people or people with innate variations of sex characteristics.

Finally, NSW provides different parts of the LGBTI community with different levels of protection – all LGBTI people are protected by the Crimes Act 1900 (NSW) offence of publicly threatening or inciting violence (section 93Z), but only lesbian, gay and some transgender people (those with binary gender identities) are able to access civil anti-vilification protections under the Anti-Discrimination Act 1977 (NSW).

Importantly, it should be noted that the Victorian Government recently committed to extending its own vilification protections to cover sexual orientation, gender identity and sex characteristics, meaning a clear majority of Australian jurisdictions have already, or will soon, cover the LGBTI community against vilification either in part or in full.

In my view, LGBTI people in Western Australia should also be protected against vilification by the introduction of explicit vilification protections in the Equal Opportunity Act 1984. These should cover the protected attributes of:

  • sexual orientation
  • gender identity, and
  • sex characteristics

as defined earlier in this submission.

Recommendation 5:

Lesbian, gay, bisexual, transgender and intersex (LGBTI) people in Western Australia should be protected against vilification.

This should be achieved by the inclusion of prohibitions on vilification within the Equal Opportunity Act 1984 which cover (at least):

  • sexual orientation
  • gender identity, and
  • sex characteristics.

In terms of what form these provisions should take, I believe the Tasmanian Anti-Discrimination Act 1998 demonstrates best practice in this area.

Specifically, Tasmania adopts a bifurcated approach. Section 17(1) provides that:

‘A person must not engage in any conduct which offends, humiliates, intimidates, insults or ridicules another person on the basis of an attribute… in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated, intimidated, insulted or ridiculed.’

While section 19 states that:

‘A person, by a public act, must not incite hatred towards, serious contempt for, or severe ridicule of, a person or a group of persons on the ground of-

(a) the race of the person or any member of the group; or

(b) any disability of the person or any member of the group; or

(c) the sexual orientation or lawful sexual activity of the person or any member of the group; or

(d) the religious belief or affiliation or religious activity of the person or any member of the group; or

(e) the gender identity or intersex variations of sex characteristics of the person or any member of the group.’

This approach – a broad-based prohibition on conduct which offends, humiliates, intimidates, insults or ridicules, supplemented by a narrower prohibition on the even more serious acts of inciting hatred, serious contempt or severe ridicule – ensures that all types of behaviour which should be banned are in fact covered.

Recommendation 6:

LGBTI people in Western Australia should enjoy both broad-based protections against conduct which offends, humiliates, intimidates, insults or ridicules, as well as narrower protections against conduct which incites hatred, serious contempt or severe ridicule.

This should be achieved by adopting the bifurcated model of the Tasmanian Anti-Discrimination Act 1998, and specifically sections 17(1) and 19 of that legislation.

I note that the Discussion Paper asks the following questions on page 153:

Should or how may vilification provisions address concerns about the impact on other rights and exemptions under the Act?

and

Should or how may vilification provisions address concerns around the loss of freedom of speech?

In response, I would like to highlight that we are talking about harmful speech, objectively-determined (the test in section 17(1) of the Tasmanian Anti-Discrimination Act provides that it must be ‘in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated, intimidated, insulted or ridiculed’).

It is not a question of how the victim of such harmful speech feels, but about whether such harmful speech would be seen by others as causing offence, humiliation, intimidation, insult or ridicule.

Having said that, Tasmania, like all other jurisdictions which have adopted prohibitions on vilification, does provide an exception for speech which is for a public purpose. Section 55 of the Anti-Discrimination Act 1998 (Tas) states:

‘The provisions of section 17(1) and section 19 do not apply if the person’s conduct is-

(a) a fair report of a public act; or

(b) a communication or dissemination of a matter that is subject to a defence of absolute privilege in proceedings for defamation; or

(c) a public act done in good faith for-

(i) academic, artistic, scientific or research purposes; or

(ii) any purpose in the public interest.’

These carve-outs are relatively broad, especially sub-section 55(c)(ii), and would seem to provide adequate and appropriate balance in the interests of free speech where that speech is in good faith and for a public purpose.

I should note that some other jurisdictions go slightly further. For example, civil vilification prohibitions in NSW include the following carve-out (taken from section 49ZT(2)(c) of the Anti-Discrimination Act 1977, which deals with homosexual vilification):

‘a public act, done reasonably and in good faith, for academic, artistic, religious instruction, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.’

I do not support the express inclusion of ‘religious instruction’ in this context. There does not appear to be a legitimate reason why religious instruction should be elevated above other ‘public purposes’ in this way (noting that it is already exempt under the Tasmanian provisions where it is ‘done in good faith for any purpose in the public interest’). 

Indeed, there was an attempt in 2016 and 2017 to amend the Tasmanian Anti-Discrimination Act in a similar way, which was thankfully defeated by their Legislative Council.

In my view, section 55 of the Tasmanian Act remains the best attempt to ensure that harmful speech is prohibited while legitimate speech is allowed.

Recommendation 7:

In order to ensure legitimate speech continues to be allowed, there is a need to introduce a provision exempting conduct which is done in good faith and for a public interest purpose.

This should be achieved by adopting the best practice exemption found in section 55 of the Tasmanian Anti-Discrimination Act 1998:

‘The provisions of section 17(1) and section 19 do not apply if the person’s conduct is-

(a) a fair report of a public act; or

(b) a communication or dissemination of a matter that is subject to a defence of absolute privilege in proceedings for defamation; or

(c) a public act done in good faith for-

(i) academic, artistic, scientific or research purposes; or

(ii) any purpose in the public interest.’

*****

Other Issues

Removing Barriers to Identity Documentation for Trans and Gender Diverse People

The current restriction of anti-discrimination protections in the Act to ‘gender reassigned persons on gender history grounds’ inevitably raises the issue of lack of access to identity documentation, including birth certificates, for trans and gender diverse people.

Even if, as recommended earlier, a new protected attribute of gender identity replaces gender history, there is still an urgent need to remove barriers to this documentation.

Indeed, the terms of the Gender Reassignment Act 2000 (WA) make Western Australia the third worst jurisdiction in Australia for trans and gender diverse people to access birth certificates reflecting their gender identity.[vi]

The only reason it is not equal worst, with NSW and Queensland, is because the High Court decision in AB v Western Australia; AH v Western Australia [2011] HCA 42 removed the requirement for genital surgery – although there remains a requirement for physical treatment of some kind.

In this way, the approach to this issue in Western Australia falls a long way behind the best practice of other jurisdictions, a fact acknowledged by the WA Law Reform Commission previously in its ‘Review of Western Australian legislation in relation to the registration or change of a person’s sex and/or gender and status relating to sex characteristics’ (Project 108). The final report of that review recommended both that:

‘The Gender Reassignment Act 2000 (WA) and Gender Reassignment Regulations 2001 (WA) be repealed’ (Recommendation 10), and

‘The Births, Deaths and Marriages Registration Act 1998 (WA) be amended to provide an administrative process to change the gender classification on a Gender Identity Certificate’ (Recommendation 11).

From my perspective, legislation which provides trans and gender diverse people access to identity documents, including birth certificates, that reflect their gender identity, should meet at least the following three principles:[vii]

  1. Access to amended identity documentation must not depend on surgery or other medical treatments
  2. Access to amended identity documentation must not depend on approval by doctors or other medical professionals, and
  3. Access to amended identity documentation should be granted on the basis of self-identification, through a statutory declaration.

Currently, only one Australian jurisdiction’s birth certificate framework satisfies these criteria: the Tasmanian Births, Deaths and Marriages Registration Act 1999, which – following amendments in 2019 – now allows for complete self-identification of gender identity.[viii]

In modernising its approach to identity documentation, Western Australia should therefore follow the best practice example of Tasmania.

Recommendation 8:

Trans and gender diverse people in Western Australia should be able to access identity documents, including birth certificates, that reflect their gender identities, without the need for surgery or other medical treatments, and without doctors or other medical professionals playing the role of gate-keeper. Access to identity documents should be based on self-identification alone.

This should be achieved by adopting the best practice provisions of the Tasmanian Births, Deaths and Marriages Registration Act 1999.

Prohibiting Coercive Surgeries and Other Medical Treatments on People with Innate Variations of Sex Characteristics

Earlier in this submission, I called for the inclusion of a new protected attribute of sex characteristics, to ensure that people with innate variations of sex characteristics are protected against discrimination in all areas of public life.

While the introduction of this attribute would be an important step towards recognition of the human rights and dignity of intersex people, it is not nearly as important as ending what I consider to be the greatest violation of LGBTI rights in Australia: the ongoing performance of coercive surgeries and other involuntary medical treatments on people with innate variations of sex characteristics, and especially intersex children.

I therefore fully endorse the recommendation made by Intersex Human Rights Australia in its submission to the current consultation, that:[ix]

‘Protections from harmful practices in medical settings

In line with evolving best practice, as described in public commitments and action in the Australian Capital Territory and Victoria, and in line with recommendations of UN Treaty Bodies to Australia, we recommend that the Western Australian government enact separate protections from harmful practices in medical settings for people with innate variations of sex characteristics.’

Recommendation 9:

People with innate variations of sex characteristics in Western Australia should be legally protected from harmful practices in medical settings. Prohibitions on these practices should be developed in partnership with the intersex community and its representatives, including Intersex Human Rights Australia.

Prohibiting Conversion Practices

I welcome the Discussion Paper’s inclusion of a section on the prohibition of sexual orientation and gender identity conversion practices (on page 193).

In my view, such practices constitute psychological torture, and should be prohibited in all settings, including religious environments. This should apply irrespective of whether the person undergoing this torture is a minor or an adult (on the basis that it is not possible to give ‘informed consent’ to torture).

As to the question of whether Western Australia should adopt the models already in place in Queensland, the ACT, or Victoria, a combination of these approaches, or a new approach – and therefore whether this prohibition should be included in the Equal Opportunity Act or elsewhere – I defer to the views of survivors of conversion practices, and encourage the Commission to consult directly with the Brave Network and other survivor organisations.

Recommendation 10:

Lesbian, gay, bisexual and transgender people in Western Australia should be protected against sexual orientation and gender identity conversion practices. Prohibitions on these practices should be developed in partnership with survivors of these practices and their representatives, including the Brave Network.

Long Title and Objects Clause

Both the Long Title of the Act, and the Objects Clause (in section 3), should be updated to reflect improvements recommended above. This includes:

  • Replacing gender history with gender identity
  • Removing limitations in relation to gender identity (ie removing the qualifier ‘in certain cases’)
  • Adding sex characteristics, and
  • Updating sub-section 3(d) to provide that ‘to promote recognition and acceptance within the community of the equality of persons…’ applies to all protected attributes, including gender identity and sex characteristics.

This last change to the objects should also be reflected in the substantive provisions of the Act. For example, section 35ZD of the of Act currently provides an exemption covering ‘measures intended to achieve equality’ for people on the basis of sexual orientation:

‘Nothing in Division 2 or 3 renders it unlawful to do an act a purpose of which is-

(a) to ensure that persons of a particular sexual orientation have equal opportunities with other persons in circumstances in relation to which provisions is made by this Act; or

(b) to afford persons of a particular sexual orientation access to facilities, services or opportunities to meet their special needs in relation to employment, education, training or welfare.’

There is no equivalent provision in relation to gender identity – but there should be.

Interpretive Provision

I note the discussion of a possible interpretive provision on pages 104 to 106 of the Discussion Paper. This includes an interpretive provision proposed by Christian Schools Australia on page 105.

This interpretive provision appears to be taken directly from the One Nation Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020 in NSW – and it should be rejected for the same reasons it should be rejected in NSW, too.

This is best explained by looking at the Explanatory Memorandum for the One Nation Bill, and in particular the example of the Jewish employer of a publisher:

‘As for the remaining provisions of the Act, section 22L must be interpreted in accordance with new section 3 [the interpretive provision proposed by Christian Schools Australia], Principles of Act. In particular, the Siracusa Principles apply the requirement that limitations on religious manifestation must ‘pursue a legitimate aim and be proportionate to that aim’. The following example assists in clarifying this intended operation.

Example: A Satanist requests that a publisher prints material that promote the teachings of Satanism. A Jewish employee of the publisher requests that she not be required to facilitate the order. Having fundamental regard to the International Covenant on Civil and Political Rights and the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, it would not be necessary or proportionate, for the employer to require her involvement in the order where alternative employees who do not have a genuine religious objection are available to facilitate the order. Similarly, it would not be necessary or proportionate for the employer to require her involvement in the order where alternative publishers are reasonably available to facilitate the order. In both of these cases, for the employer to require her involvement in the order would use ‘more restrictive means than are required’. In addition, to require such conduct would not be compatible with the international instruments stated at section 3.’

As I wrote in the Sydney Morning Herald last October,[x] this outcome is perverse, and creates more rather than less discrimination:

‘[A]n employee can refuse to perform the core component of their role (in this case, publishing materials) solely on the basis of their personal religious beliefs, even if this means sending the customer’s business to a competitor.

This would give employees the right to veto the decisions of their employer, including what goods and services are offered and to whom.

And what of the customer? In this example, they are turned away by the publisher because their religious belief does not accord with that of the employee, which is surely the type of discrimination that should be prohibited under a genuine Religious Discrimination Bill.

It’s important also to get a sense of how far this would go. If this is how the bill is intended to operate, employees may refuse to provide goods or services to a wide range of people because of the employee’s religious beliefs: not just to people from different religions, or no religion, but to single parents, unmarried couples, women, people with disability and lesbian, gay, bisexual, transgender or intersex people, among others.

Importantly, from the customer’s perspective, there is no way of knowing in advance whether a particular business will refuse to serve them. Based on the scenario set out in the explanatory notes, any commercial busines could turn away any customer based on the religious beliefs of an individual worker. That is a recipe for chaos.

And it will leave employers around the state in an invidious position: either they compel their employee to perform the inherent requirements of their job and risk the employee claiming discrimination on the basis of religious belief, or they refuse to provide goods and services to customers on the basis of who they are and guarantee not just loss of income, but risk a discrimination complaint for the customer instead.

It’s an unholy mess.’

Western Australia must avoid making the same mistakes as the extreme and unprecedented Bill proposed by One Nation in NSW, where one human right (‘religious freedom’) is prioritised over and above other human rights, including what is the fundamental purpose of anti-discrimination laws: the right to live free from discrimination.

Interpretive provisions which single out ‘religious freedom’ must therefore be rejected.

Additional Protected Attributes

I would like to express my in-principle support for the inclusion of additional protected attributes within the Equal Opportunity Act, particularly where those attributes may be disproportionately relevant to the LGBTI community. These include:

  • Lawful sexual activity (discussed on page 123), and
  • Irrelevant medical record (discussed on page 121).

In terms of this latter attribute, I also endorse the recommendation made by Intersex Human Rights Australia in their submission to the current inquiry that:[xi]

‘In line with best practice international developments and recommendations for Australian jurisdictions, we recommend that the Western Australian government prohibit genetic discrimination in insurance and employment.’

Finally, I support the inclusion of a new protected attribute of ‘irrelevant criminal record’ (as discussed on page 120). I note the Discussion Paper’s acknowledgement there are already some protections for ‘expunged homosexual convictions’ in relation to work as created by the Historical Homosexual Convictions Expungement Act 2018 (WA).

While I believe expunged homosexual convictions would likely fall within irrelevant criminal record – and therefore be protected against discrimination in areas beyond work – this should include clarification that expunged homosexual convictions will always be ‘irrelevant’.

This is in recognition of the fact such convictions are solely the product of state-sponsored homophobia, biphobia and transphobia, and should never have constituted offences in the first place.

Definition of Religious or Political Conviction

I note the Discussion Paper considers whether to add a definition in relation to the existing protected attribute of ‘religious or political conviction’.

As part of this Discussion, an overly-expansive, and in my view, entirely-inappropriate definition for religion is provided by Christian Schools Australia (see page 122). In fact, this definition appears to be taken directly from the One Nation Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020 in NSW.

This would introduce an unnecessarily vague test for determining whether something constitutes religious belief or activity. It would be almost impossible to apply in practice, and should be rejected.

Instead, I submit that, should the Commission recommend the inclusion of definitions for political conviction and religious conviction, it should do so on the basis of the definitions in the ACT Discrimination Act 1991, namely:

‘political conviction includes-

(a) having a political conviction, belief, opinion or affiliation; and

(b) engaging in political activity; and

(c) not having a political conviction, belief, opinion or affiliation; and

(d) not engaging in political activity.’

‘religious conviction includes-

(a) having a religious conviction, belief, opinion or affiliation; and

(b) engaging in religious activity; and

(c) the cultural heritage and distinctive spiritual practices, observances, beliefs and teachings of Aboriginal and Torres Strait Islander people; and

(d) engaging in the cultural heritage and distinctive spiritual practices, observances, beliefs and teachings of Aboriginal and Torres Strait Islander peoples; and

(e) not having a religious conviction, belief, opinion or affiliation’ and

(f) not engaging in religious activity.’

Discrimination in Provision of Goods and Services Where Motivated by Religious Belief

While on the subject of religious belief, I would like to express my strong opposition to any proposal to allow individuals and businesses to refuse to provide goods and services, including on the basis of sexual orientation and gender identity, where that refusal is motivated by religious belief (as discussed on page 173).

Such a proposal would allow significant new discrimination against LGBT people individually, and LGBT couples. This discrimination would also be unpredictable in its operation – LGBT people going about their everyday life would know that any potential interaction could involve being lawfully discriminated against because of how they identity, or who they love.

The introduction of a new ‘exception’ of this kind would seriously undermine the purpose of having an anti-discrimination law in the first place, and should be categorically rejected.

*****

Thank you in advance for your consideration of this submission. Please do not hesitate to contact me, at the details supplied below, should you require additional information.

Sincerely

Alastair Lawrie


Footnotes:

[i] For a comparative analysis of LGBTI anti-discrimination laws across Australia, please see: ‘A Quick Guide to Australian LGBTI Anti-Discrimination Laws. https://alastairlawrie.net/2017/07/29/a-quick-guide-to-australian-lgbti-anti-discrimination-laws/

[ii] These three areas draw from my article about the WA legislation: ‘What’s Wrong With Western Australia’s Equal Opportunity Act 1984?’ https://alastairlawrie.net/2016/10/23/whats-wrong-with-western-australias-equal-opportunity-act-1984/

[iii] While the definition of ‘recognised transgender person’ in section 4 of the NSW Anti-Discrimination Act 1977 is similarly restrictive, the interpretive clause in section 38A makes it clear that NSW anti-discrimination protections apply to transgender people with binary gender identities irrespective of whether their gender identity has been recognised by the State.

[iv] Intersex Human Rights Australia, Submission to the WA Law Reform Commission on Anti-Discrimination Law Reform, 13 October 2021, available at: https://ihra.org.au/39075/walrc-anti-discrimination-2021/

[v] For a comparative analysis of LGBTI anti-vilification laws across Australia, please see: ‘Did You Know? Most Australian Jurisdictions Don’t Prohibit Anti-LGBTI Vilification’. https://alastairlawrie.net/2020/06/01/did-you-know-most-australian-jurisdictions-dont-prohibit-anti-lgbti-vilification/

[vi] For a comparative analysis of birth certificate legislation across Australia, please see: ‘Did You Know? Trans People in NSW and Queensland Still Require Surgery to Update Their Birth Certificates’. https://alastairlawrie.net/2020/05/02/did-you-know-trans-people-in-nsw-and-queensland-still-require-surgery-to-update-their-birth-certificates/

[vii] As articulated in this post from my website: ‘Identity, Not Surgery’. https://alastairlawrie.net/2018/07/17/identity-not-surgery/

[viii] The approach in Victoria, via the Births, Deaths and Marriages Registration Amendment Act 2019, comes close, including that it removes requirements for medical treatment, and removes medical gatekeepers to accessing new identity documents. However, it does not fully satisfy the criteria of self-determination, because under section 30A, an applicant must include a ‘supporting statement’ from another person who both ‘believes that the applicant makes the application to alter the record of the sex of the applicant in good faith, and supports the application.’

[ix] Intersex Human Rights Australia, Submission to the WA Law Reform Commission on Anti-Discrimination Law Reform, 13 October 2021, available at: https://ihra.org.au/39075/walrc-anti-discrimination-2021/

[x] Alastair Lawrie, ‘Religious discrimination bill will create an unholy mess’, Sydney Morning Herald, 26 October, 2020, available here: https://www.smh.com.au/national/nsw/religious-discrimination-bill-will-create-an-unholy-mess-20201022-p567jx.html

[xi] Intersex Human Rights Australia, Submission to the WA Law Reform Commission on Anti-Discrimination Law Reform, 13 October 2021, available at: https://ihra.org.au/39075/walrc-anti-discrimination-2021/