Letter to WA Political Parties re Anti-Discrimination and Birth Certificate Reform

The writs for the Western Australian state election will be issued at 6pm today (3 February 2021). The upcoming poll, on Saturday 13 March, is an opportunity to make long-overdue progress on a range of important policy issues affecting the lesbian, gay, bisexual, transgender and intersex (LGBTI) community.

As with elections last year in the Northern Territory, Australian Capital Territory and Queensland, I am writing to political parties contesting the WA election asking for their commitments on LGBTI law reform.

While there are a variety of different policy issues that must be addressed, my letter focuses on two areas where I have the most expertise:

  • Reform of the Equal Opportunity Act 1984 (WA),[i] and
  • Changes to identity documentation for trans and gender diverse people.[ii]

This letter has been sent to the leaders of the WA Labor Party, Liberal Party and National Party, as well as to all MLCs from other parties: The Greens; One Nation; Liberal Democrats; Shooters, Fishers and Farmers; and Western Australia Party. As with previous elections, I will post any responses I receive from these parties below.

*****

Given the upcoming Western Australian state election, I am writing to ask about your Party’s positions on two important issues for the lesbian, gay, bisexual, transgender and intersex (LGBTI) community.

I do so as a long-term advocate for the LGBTI community, including via my website www.alastairlawrie.net where I focus on anti-discrimination and anti-vilification law reform around Australia, among other topics.

The first issue I would like to ask about is reform of the Equal Opportunity Act 1984 (WA), which is necessary to address its serious shortcomings in relation to discrimination against and vilification of LGBTI people in Western Australia. Specifically:

  1. Will you protect intersex people against discrimination by introducing a new protected attribute of ‘sex characteristics’?
  2. Will you protect all trans and gender diverse people against discrimination by replacing the current inappropriate, ineffective and outdated protected attribute of discrimination against ‘a gender reassigned person on gender history grounds’ with a protected attribute of ‘gender identity’?
  3. Will you protect LGBT students, teachers and other staff at religious schools against discrimination by removing the special privileges which currently allow them to discriminate?
  4. Will you protect LGBT employees at, and people accessing services from, religious organisations in health, housing and other community services against discrimination by amending religious exceptions generally, based on the best practice approach in Tasmania’s Anti-Discrimination Act 1998?
  5. Will you protect LGBTI people against hate speech by introducing prohibitions on vilification on the basis of sexual orientation, gender identity and sex characteristics?

The second issue I would like to ask about is access to identity documentation, including birth certificates, for trans and gender diverse people, which is another area where Western Australia’s legislative approach has fallen far behind most other jurisdictions. Specifically:

  1. Will you allow trans and gender diverse people to update their birth certificates and other identity documents without requiring surgery, other medical treatments or counselling?
  2. Will you allow trans and gender diverse people to update their birth certificates and other identity documents based on self-identification alone?
  3. Will you allow trans and gender diverse people to update their birth certificates and other identity documents by identifying as male, female, non-binary or ‘other, please specify’, in line with recent reforms in both Tasmania and Victoria?

Thank you in advance for your prompt consideration of this request. Please note that any answers provided will be published via my website, to assist LGBTI people in Western Australia make an informed choice on Saturday 13 March.

Please do not hesitate to contact me, at the details provided, should you require clarification of the above.

Sincerely

Alastair Lawrie

*****

Update: 13 February 2021

During the week, I received the first formal Party response to the above correspondence, from the WA Greens. Their commitments are reproduced below:

Dear Alastair

Thank you for your email to WA Greens MPs.

I am pleased to advise that the Greens are committed to removing discrimination on the grounds of gender identity or sexuality from all federal and state laws. We want the process for legal recognition of gender in Western Australia to be simplified and for Western Australian birth certificates to have an X gender marker, in line with most of the rest of Australia.

The Greens (WA) will encourage and support legislation and actions that ensure that intersex and transgender people, without undertaking surgeries, are able to alter their sex on all official documents, consistent with how they live and identify, and irrespective of their marital status.

As the Member for the North Metropolitan Region and Greens (WA) spokesperson I have been a long term advocate in this space. In 2018 I introduced a Private Members Bill into the WA Legislative Council, the Equal Opportunity (LGBTIQ Anti-Discrimination) Amendment Bill 2018, seeking to end discrimination against LGBTIQ parents, students and staff by religious schools. Disappointingly, this bill has not received the support necessary from other political parties for it to be passed and to become law.

The Greens will continue to fight to remove all exceptions in the Equal Opportunity Act that permit discrimination against people on the basis of their gender identity and/or sexuality.

If you would like more information, the Greens (WA) Sexuality & LGBTQIA+ Issues and Gender Identity policies provide more information about our party’s commitments in these areas.

The Greens have also proposed a WA Charter of Rights to provide further protections against rights-based infringements including discrimination.

Thank you for your interest and advocacy in this important area.

Kind regards

Alison

Hon Alison Xamon MLC (BA, LLB, Cert IV HS, Cert Adv Arb)

Member for the North Metropolitan Region, Legislative Council, Parliament of Western Australia

*****

Update: 25 February 2021

On Tuesday (23 February 2021), I received the following reply from the Leader of the WA Nationals, Mia Davies, which, as you will see, does not give specific commitments on either LGBTI anti-discrimination law reform or improved access to birth certificates for trans and gender diverse people – other than that Nationals MPs would be granted conscience votes on both issues.

Dear Mr Lawrie

2021 STATE ELECTION: LGBTI LEGISLATIVE REFORM

Thank you for your correspondence dated 3 February 2021. I appreciate your advocacy in relation to LGBTI legislation and the need for reform.

One of the founding principles of The Nationals WA is that regional West Australians deserve access to relevant services and protections against discrimination, regardless of their postcode. As you would be aware the day-to-day issues faced by LGBTI people are often exacerbated by remoteness and isolation from services and support networks.

If legislation to resolve the issues raised was introduced to Parliament, voting on it would be a matter of conscience for Members of The Nationals WA team. I encourage you to send your questions to each local candidate in The Nationals WA team for their individual responses. Their details can be found on our website http://www.nationalswa.com/

Although not specific to LGBTI individuals and families, The Nationals WA have made the following election commitments to date which may be of interest:

-$15 million for an office of the State Rural Health Commissioner, to complement the work done at a national level. This office would be independent of Government, providing advice and reporting on rural and regional health concerns.

-$140 million for regional mental health services, including demographically targeted funding for regional community support hours.

Further details on these and other election commitments can be found on our website.

Yours sincerely

Hon Mia Davies MLA

LEADER

Footnotes:


[i] For example, see What’s wrong with Western Australia’s Equal Opportunity Act 1984?  and A Quick Guide to Australian LGBTI Anti-Discrimination Laws.

[ii] For example, see Identity, Not Surgery and Did You Know? Trans People in NSW and Queensland Still Require Surgery to Update Their Birth Certificates.

LGBTIQ Law Reform Priorities for 2021

ANU Gender Identity + Sexuality Law Moot Webinar Presentation

In October 2020, I was invited to be a judge for the round robin stage of the inaugural ANU Gender Identity + Sexuality Law Moot. In the lead-up to the moot itself, I participated in a webinar for participants about the state of LGBTIQ law reform in Australia, including being asked to address the following two questions:

What are, in your view, the most significant issues that need legal reform with respect to LGBTIQ rights and inclusion? and

How can we ensure that workplaces are inclusive and safe for people from all backgrounds but in particular for the LGBTIQ community?

While the panel ultimately adopted a more ‘free-wheeling’ approach to its discussion, I prepared the below, more detailed responses to these questions. Now that, at the end of a busy year, I’ve finally had the chance to tidy them up, I thought they might be worth sharing. I’m also keen to hear other people’s views, including on what you think the most significant issues that need legal reform are today – please leave your comments below.

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Question 1. What are, in your view, the most significant issues that need legal reform with respect to LGBTIQ rights and inclusion?

Despite what many people might assume – and what far too many members of our political and media classes seem to believe following the recognition of LGBTI marriage in 2017 – there remain a large number of outstanding legal reforms necessary for LGBTIQ rights and inclusion in 2020 [and I guess we can say 2021 now, too]. The following are my top three:

  1. Ending coercive medical interventions on children born with intersex variations of sex characteristics

Intersex people, and especially children born with intersex variations of sex characteristics, currently experience the worst human rights abuses of any group within the Australian LGBTIQ community.

Intersex people are born with physical sex characteristics that do not neatly fit medical norms for female or male bodies. Infants, children, adolescents and adults born with intersex variations risk or suffer forced and coercive medical interventions, designed to make their bodies more typically female or male. These interventions are not medically necessary, but instead rely on social or cultural rationales.[i]

The consequences of early and unnecessary deferrable interventions can include pain, trauma, shame, loss of sexual function and sensation, urinary incontinence and urgency, a need for ongoing medical treatment or repeat surgeries, experiences of violation and sexual assault, reinforcement of incorrect sex assignment and loss of choice.

These coercive medical interventions breach a large number of human rights principles, including the right to bodily integrity. They also adversely impact on rights to liberty, security, non-discrimination, privacy and freedom from torture, experimentation and harmful practices.

Unfortunately, coercive medical interventions on intersex people, and especially children born with intersex variations, have not been legally prohibited in any Australian jurisdiction. 

Instead, they are self-governed by clinical guidelines which support coercive interventions despite a lack of supporting medical evidence. And they are enabled by a legal system, including family law, which have permitted coercive interventions on the basis of (often poorly-informed) parental consent. The most infamous decision was the 2016 Family Court decision of Re: Carla, although it was merely one of a long line to contravene the human rights of intersex children.

In terms of law reform, there has been disappointingly little progress in this area. This month (October 2020) marks seven years since a bipartisan Senate Committee recommended new guidelines be developed that ‘should favour deferral of normalising treatment until the person can give fully informed consent, and seek to minimise surgical intervention on infants undertaken for primarily psychosocial reasons’ (among other recommendations).[ii]

Unfortunately, the Abbott, Turnbull and Morrison Governments have effectively done nothing to implement even these modest proposals.

More encouragingly, in June 2020 the Tasmanian Law Reform Institute released the final report of its inquiry into the legal recognition of sex and gender. It made a number of recommendations about intersex law reform, including:

Recommendation 7

The Criminal Code should be reformed to criminalise non-consensual medical interventions in the following terms:

178F Unnecessary medical intervention to change the sex characteristics of children.

(1) Any person who performs a surgical, hormonal or other medical intervention to alter or modify the sex characteristics of a child is guilty of a crime, unless:

(a) it is performed to address a clear danger to the life or health of the child and it cannot be deferred until the child is able to give informed consent; or

(b) it takes place with the informed consent of the child.

(2) Nothing in this Section is intended to apply to interventions involving a consenting transgender child seeking treatment to delay puberty or secondary sexual differentiation.

Charge: Performing unnecessary medical intervention to change the sex characteristics of a non-consenting child.

Recommendation 8 of that report also recommended that:

‘intersex people should be able to pursue claims for compensation for personal trespass and breach of professional duty against doctors where medical interventions to alter intersex variations of sex characteristics have resulted in physical or mental harm, irrespective of any parental consent to the intervention at the time it was performed.’

The Tasmanian Government is now considering these recommendations, meaning it is possible it will become the first Australian jurisdiction to criminalise coercive medical interventions on children born with intersex variations.

Before moving on, I should note the Australian Human Rights Commission has also been undertaking a long-running project on these issues.[iii] I understand it is (finally) nearing completion, and my personal hope is it recommends all Australian jurisdictions criminalise these human rights abuses.

2. Trans and gender diverse birth certificate reform

Trans and gender diverse people should have access to birth certificates, and other identity documentation, based solely on self-identification, and without medical approval (because gender identity is exactly that, identity, and not a ‘medical’ issue). Currently only one Australian jurisdiction has completely achieved this model: Tasmania, following its historic 2019 birth certificate reforms.

Victoria is a close second, also following changes in 2019, which removed the involvement of medical gatekeepers, although unfortunately it does not fully realise self-identification, because applications must be accompanied by a statement from someone who has known the applicant for at least 12 months and ‘supports’ the application.

Three other jurisdictions – South Australia, the ACT and the Northern Territory – have removed requirements for surgery or other physically invasive treatments. However, they still adopt a medical model, because they require engagement with psychologists or counsellors prior to approval. Ultimately, these laws will need to be updated.

However, the largest problems are in the other three states. NSW and Queensland still require surgery in order to access new identity documents, which is completely inappropriate not just because it unnecessarily medicalises gender identity, but also because not all trans and gender diverse people want surgery (or can afford it).[iv]

Western Australia’s legislation also requires surgery, although thanks to a favourable High Court decision, this has been interpreted to ‘only’ require some forms of physical treatment (such as hormone therapy).

Nevertheless, all three states – NSW, Queensland and Western Australia – must urgently amend their births, deaths and marriages laws to support self-identification for their trans and gender diverse residents [for more on this topic, see Did You Know? Trans People in NSW and Queensland Still Require Surgery to Update Their Birth Certificates].

3. LGBTIQ refugees in Papua New Guinea and Nauru

One LGBTIQ human rights abuse that is not technically in Australia, but is perpetrated by Australia, is the detention, processing and resettlement of LGBTIQ refugees and people seeking asylum in countries that criminalise them.

In particular, there remain LGBTIQ refugees and people seeking asylum who are trapped in Papua New Guinea – because the Australia Government put them there – a country which retains a maximum penalty of up to 14 years imprisonment for male same-sex activity.

And, even though Nauru decriminalised homosexuality in 2016, that does not necessarily translate into it being a safe environment for the LGBTIQ refugees and people seeking asylum which the Australian Government imprisoned there.

Of course, for anyone interested in international human rights law, all offshore detention, processing and resettlement is abhorrent, and should be ended for all refugees irrespective of their sexual orientation, gender identity or sex characteristics (or other attributes).

However, we must not overlook the fact Australia’s immigration framework has a particularly awful impact on people fleeing persecution on the basis of being lesbian, gay, bisexual, transgender, intersex or queer. They should be brought to Australia immediately.[v]

Anti-Discrimination Reform

While there is no individual LGBTI anti-discrimination law reform issue which is as important as the above three topics, I would argue that addressing our inadequate, incomplete and inconsistent LGBTI anti-discrimination and vilification framework overall must also be a high priority. Specifically, the majority of Commonwealth, state and territory anti-discrimination laws should be updated across three main areas:

Ensuring everyone is protected against discrimination. Most state and territory laws currently exclude at least some parts of our community. The NSW Anti-Discrimination Act 1977 is the worst – it doesn’t even protect bisexuals.[vi] While NSW, Victoria, Queensland, Western Australia and the Northern Territory don’t cover people with non-binary gender identities – and the same jurisdictions exclude intersex people as well.

Repealing the special privileges enjoyed by religious organisations. Loopholes allow faith bodies to discriminate against LGBT people, in employment and against people accessing services, even when they are delivering public services using public funding. Nearly all Australian anti-discrimination laws, including the Sex Discrimination Act 1984 (Cth), need to be reformed – although the Tasmanian Anti-Discrimination Act 1998 provides a template for how this can be done, by permitting religious organisations to preference people from their own faith (in limited circumstances), while not allowing discrimination on the basis of other attributes like sexual orientation or gender identity.[vii]

Obviously, the religious exceptions which have received the most public debate, at least in the past few years, are those allowing religious schools to discriminate against LGBT students, teachers and other staff. Positively, four jurisdictions (Tasmania, Queensland, the ACT and Northern Territory) have already legislated to cover LGBT students, although only two (Tasmania and the ACT) fully protect LGBT teachers and other staff. On the negative side, Scott Morrison’s Broken Promise to Protect LGBT Students is Now Two Years Old, and there’s little chance he will act on it for several years to come either.

Introducing prohibitions on anti-LGBTI vilification. There is currently no prohibition on anti-LGBTI vilification under Commonwealth law. Although they are by no means alone – currently Most Australian Jurisdictions Don’t Prohibit Anti-LGBTI Vilification. Of those that do (NSW, Queensland, Tasmania and the ACT), only Tasmania and the ACT protect all sections of the LGBTI community. Given homophobia, biphobia, transphobia and intersexphobia are just as damaging, and harmful, as racism, I firmly believe anti-LGBTI vilification should be prohibited on the same basis as racial vilification (equivalent to section 18C of the Racial Discrimination Act 1975 (Cth)). 

[For more on the overall state of LGBTI anti-discrimination and vilification law, see A Quick Guide to Australian LGBTI Anti-Discrimination Laws.]

Other LGBTIQ Law Reform Issues

There are a range of other LGBTIQ law reform issues which still need to be addressed, including:

  • Sexual orientation and gender identity conversion practices (sometimes called ex-gay or ex-trans therapy) should be outlawed across Australia. The Queensland Government recently introduced the first ban on these practices – although disappointingly it only applied in health care settings, and not in the religious environments where most anti-gay and anti-trans conversion practices occur. The ACT Government followed shortly thereafter, and their legislation has been welcomed by survivor groups because it covers both health care and religious settings. I understand that there are also moves to outlaw these practices in Victoria, Tasmania and South Australia – although sadly not in my adopted home state of NSW [NB Since the webinar, Victoria has introduced their own Bill to ban conversion practices, which appears to be stronger than both Queensland and the ACT, while the Tasmanian Law Reform Institute has released an Issues Paper on ‘Sexual Orientation and Gender Identity Conversion Practices’, with submissions due 7 January 2021].
  • South Australia still needs to abolish the gay panic defence (or homosexual advance defence). Thankfully, after much prompting, the South Australian Government has finally released draft legislation that does just that, for public consultation. Hopefully it is finally removed from the statute books later this year or in early 2021. [NB South Australian Parliament passed legislation finally abolishing the gay panic defence on 1 December 2020].
  • Expungement regimes – which allow for historical convictions for same-sex sexual activity to be expunged from a person’s criminal record – should also be strengthened. In particular, there is a serious limitation in the Queensland scheme, which does not allow gay, bisexual and other men who have sex with men who were convicted as a result of the unequal age of consent for anal intercourse between 1991 and 2016 to have their records expunged,[viii] and
  • The Marriage Act 1961 (Cth) needs to be amended to remove the unjustified special privileges that were introduced for existing civil celebrants, and religious organisations, as part of the Marriage Amendment (Definition and Religious Freedoms) Act 2017. Note that I usually do not refer to that legislation as providing ‘marriage equality’ as a result of these exceptions, because they mean LGBTI couples marrying now can be discriminated against in ways that divorced people remarrying before 2017 could not. We can get married, but it is still not equal.[ix]

Protecting Existing Rights

Some people take the quote ‘the arc of the moral universe is long, but it bends towards justice’ a little too literally, and consequently fail to appreciate LGBTIQ rights can go backwards. Something which has happened multiple times in the past decade, including the Newman LNP Government in Queensland winding back civil partnership laws passed by the Bligh Labor Government.

In the area of anti-discrimination, we should also remember the Baillieu Coalition Government in Victoria undid the introduction of a modest ‘inherent requirements’ test for religious exceptions passed by the Brumby Labor Government in 2010 – before they had even commenced. While the Hodgman Liberal Government tried multiple times to undermine vilification protections for LGBTI Tasmanians (and other groups) as long as that vilification was religiously-motivated (although thankfully those efforts failed).

There are currently three major efforts to undermine LGBTIQ rights:

The Commonwealth Government’s proposed Religious Discrimination Bill, of which we have seen two Exposure Drafts and was due to be introduced in March 2020 but has been delayed because of the coronavirus pandemic. This legislation would:

  • Make it easier to make comments that ‘offend, humiliate, intimidate, insult or ridicule’ LGBTI Australians
  • Make it easier for health practitioners to refuse to provide services to LGBTI patients
  • Make it easier for religious organisations to discriminate against others
  • Make it more difficult for big business to promote diversity and inclusion
  • Create a Religious Freedom Commissioner at the Australian Human Rights Commission (when we still don’t have a Commissioner for Sexual Orientation, Gender Identity and Sex Characteristics)
  • Entrench unjustified religious exceptions in the Marriage Act 1961 (Cth), and
  • Explicitly protect charities advocating against LGBTI relationship recognition in the Charities Act 2013 (Cth), despite it being completely unnecessary.

[For more, see The ‘Bad Faith’ Religious Discrimination Bill Must Be Blocked.] 

The Mark Latham/One Nation Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020 in NSW, which, similar to the Commonwealth Religious Discrimination Bill, seeks to privilege the rights of religious individuals and organisations over the rights of others, including the right of LGBTI people in NSW to be protected against discrimination [since the webinar, I had this opinion piece published in the Sydney Morning Herald, outlining just one of the many serious problems created by the NSW ‘Religious Freedoms’ Bill], and

The Mark Latham/One Nation Education Legislation Amendment (Parental Rights) Bill 2020, also in NSW. This legislation does (at least) three awful things:

  • Prohibiting the teaching of ‘gender fluidity’ – where teaching includes anything to do with a school (including counselling) by anyone connected to a school (including volunteers), and ‘gender fluidity’ means acknowledging that gender identity can be different to biological sex at birth. In effect, it will mean erasing trans and gender diverse students, as well as teachers, in schools across NSW
  • Introducing a UK section 28-style law against ‘promotion’ of ideological views about sexuality and gender identity – which, just like section 28 did there, will impose a silence on LGBT students struggling with invisibility at the most vulnerable point in their lives, and
  • Enacting an erroneous and stigmatising definition of intersex in NSW law for the first time (‘disorders of sexual differentiation’).

[For more, see I Stand with Trans Kids, and Against Mark Latham.]

Of course, ordinarily, we wouldn’t be too concerned about legislation being proposed by fringe extremists in the NSW Legislative Council. However, the NSW Government and Opposition have both supported both One Nation Bills being referred to Committee for inquiry – with the anti-trans kids inquiry chaired by Mark Latham himself. Which means we must resist the laws themselves, as well as fighting against toxic debate surrounding them which has the potential to harm vulnerable younger members of our community, and especially trans and gender diverse kids.

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Question 2. How can we ensure that workplaces are inclusive and safe for people from all backgrounds but in particular for the LGBTIQ community?

My answer to this will (thankfully) be significantly shorter than for the previous question, in part because we’ve already discussed some of the reforms that are needed, especially in terms of anti-discrimination law reform, such as repealing the special privileges that allow religious organisations to discriminate against LGBT employees.

This includes amending the Sex Discrimination Act 1984 (Cth) to protect LGBT teachers in religious schools, as well as reforms in the other jurisdictions where LGBT school staff are not fully protected (all states and territories bar Tasmania and the ACT).[x]

It also means ensuring LGBT employees in Government-funded aged care services operated by religious organisations are protected (where people accessing these services are currently covered under the SDA, but staff in those same facilities are not). There are several reasons for this, including because it is unfair on employees:

‘People should be hired, not hired or even fired, on the basis of how well they are able to provide care and support to the people accessing aged care services, not who they are attracted to or how they identify.’[xi]

It is also unfair on people accessing these services, who ‘have the right to expect the highest possible standard of care. That is not provided when an aged care service refuses to employ highly-qualified people simply because they are lesbian, gay, bisexual or transgender.’[xii]

The same reasons also apply in terms of fighting against the Commonwealth Government’s proposed Religious Discrimination Bill, especially in the era of coronavirus. That’s because the 2nd Exposure Draft Religious Discrimination Bill allows hospitals to hire the most religious, not the most qualified: 

‘Surely, that must have an impact on the standard of care that patients will receive. Imagine the worry if one of your loved ones is taken to the emergency department of a faith-based hospital and you can’t be certain whether the health practitioner is there because of what they believe, not what they can do.’

Likewise, the proposed Religious Discrimination Bill allows aged care facilities to hire the most religious, not the most qualified. As I wrote earlier this year: ‘As someone with a grandmother who turned 99 last Wednesday, and who is in a nursing home, I would hate to think she is being cared for by someone who is there because of their views and not their vocational skills’.

[Both quotes taken from my March 2020 article Coronavirus and the Religious Discrimination Bill which I think holds up pretty well, 9 months later, as a strong argument against the RDB when the Morrison Government inevitably brings it back it in the first half of 2021.] 

But repealing religious exceptions is not the only law reform needed to make workplaces inclusive and safe for people from all backgrounds, and in particular for the LGBTIQ community.

One specific reform that should be introduced as a matter of priority are amendments to the Fair Work Act 2009 (Cth) to ensure it treats trans, gender diverse and intersex employees exactly the same as lesbian, gay and bisexual ones.

Currently, the adverse action protections in section 351(1), and unlawful termination protections in section 772(1)(f), of that Act cover sexual orientation, but do not explicitly include gender identity or sex characteristics.[xiii]

Unfortunately, despite this issue being raised repeatedly with the Turnbull and Morrison Governments, they do not appear to be in any hurry to remedy this omission.

A broader structural reform to anti-discrimination law is ensuring it is able to deal with real-life people, who are complex and have multi-faceted characteristics (covering race, sex, age, disability, sexual orientation, gender identity, sex characteristics and more attributes besides).

Often, it is impossible for people to know whether they have been discriminated against because of a particular protected attribute, or a combination of attributes. Any definition of discrimination must be able to deal with this complexity, and uncertainty. In my perspective, one of the best approaches is found in section 8 of the ACT Discrimination Act 1991:

‘Meaning of discrimination

(1) For this Act, discrimination occurs when a person discriminates either directly, or indirectly, or both, against someone else.

(2) For this section, a person directly discriminates against someone else if the person treats, or proposes to treat, another person unfavourably because the other person has 1 or more protected attributes.

(3) For this section, a person indirectly discriminates against someone else if the person imposes, or proposes to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because the other person has 1 or more protected attributes.’

One final point that should be mentioned, if we are genuine about making workplaces inclusive and safe for people from all backgrounds, is that there is a gap in terms of anti-discrimination protections around religious belief, and lack of belief.

It is unacceptable that the Commonwealth, NSW and South Australian anti-discrimination regimes do not protect people of faith, and no faith, against discrimination – this is something that should be addressed.

But it must not be addressed in the way proposed by the Commonwealth Religious Discrimination Bill, or the Mark Latham/One Nation Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020 in NSW. Because they are just as unacceptable.

People of faith, and no faith, should be protected against discrimination on exactly the same terms as everyone else, including to the same standard as sexual orientation, gender identity and sex characteristics.

People of faith, and especially faith-run organisations, must not be given new special privileges to discriminate against others, including people of minority faiths or no faith, as well as women, LGBTIQ people, single parents, divorced people and people in de facto relationships, people with disability and plenty more.

Doing this one simple thing – protecting everyone against discrimination, equally – would help create an Australia where all people are accepted for who they are. And it would be a great leap forward for LGBTIQ people of faith too, many of whom experience discrimination on the basis of both sexual orientation/gender identity/sex characteristics and faith.

Footnotes:


[i] The information in this, and following, paragraph(s) is summarised from the website of Intersex Human Rights Australia. Please check them out here.

[ii] I made a submission to this inquiry way back in July 2013.

[iii] Please see my Submission to AHRC Consultation re Medical Interventions on People Born with Variations of Sex Characteristics.

[iv] This issue – financial barriers to trans healthcare – is something we don’t discuss enough. For more, see: Trans out-of-pocket medical costs.

[v] For more, see: Australia’s (Mis)Treatment of LGBTI Refugees.

[vi] For more, see: Did You Know? The NSW Anti-Discrimination Act Doesn’t Protect Bisexuals Against Discrimination.

[vii] For more, see: What’s Wrong With Tasmania’s Anti-Discrimination Act 1998? 

[viii] An issue I raised in my Submission re Queensland Criminal Law (Historical Homosexual Convictions Expungement) Bill 2017

[ix] For more, see: No, We Don’t Have Marriage Equality Yet.

[x] For more, see: Back to School, Back to Discrimination for LGBT Students and Teachers

[xi] From my Submission to [the] Royal Commission into Aged Care.

[xii] Ibid.

[xiii] For more, see: Unfairness in the Fair Work Act.

Private Lives. Public Discrimination. Political Exacerbation.

In November, La Trobe University’s Australian Research Centre in Sex, Health and Society (ARCSHS) released ‘Private Lives 3: The Health and Wellbeing of LGBTIQ People in Australia’. 

Building on reports in 2005 and 2011, Private Lives is Australia’s largest national survey of the health and wellbeing of lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) people.

Covering a diversity of topics, from households and relationships, to housing and homelessness, general health and wellbeing, mental health and wellbeing, alcohol, tobacco and other drug use, and intimate partner and family violence (among others), it makes for both fascinating reading and invaluable research. I strongly encourage you to download and read it.

However, as someone with a particular interest in all things LGBTIQ discrimination, it is their section on ‘Discrimination, harassment and feelings of acceptance’ I will focus on today.

The Private Lives 3 findings in this area are, frankly, disturbing.

Asked, ‘to what extent do you feel accepted in the following situations?’, just 60.7% of LGBTIQ Australians answered ‘a lot’ or ‘always’ in relation to work.

That figure dropped to 55.3% in educational institutions, and 43.4% when accessing a health or support service.

Only 30.5% of LGBTIQ people said they felt accepted a lot or always in public (eg in the street/park), and a perhaps unsurprising but still shockingly low figure of 10.5% at religious or faith-based events or services.

It is also unsurprising that cisgender members of the LGBTIQ community reported higher rates of acceptance than trans and non-binary people.

For example, while 68.5% of cisgender men and 61% of cisgender women felt accepted a lot or always at work, this fell to 50% for trans women, 48.8% for trans men and just 43% for non-binary people.[i]

There was a similar divergence in terms of acceptance by sexual orientation, with gay and, to a lesser extent, lesbian respondents reporting higher rates than bisexual, pansexual, queer and asexual people.

For example, while 69.6% of gay and 63.8% of lesbian people said they felt accepted at work always or a lot, just 53.6% of bisexual, 54.5% of pansexual, 54.5% or queer and 47.4% of asexual people said the same thing.[ii]

The responses to the question ‘In the past 12 months, to what extent do you feel you have been treated unfairly because of your sexual orientation or gender identity?’ are just as disturbing (if not more). As the authors (Hill, Bourne, McNair, Carman and Lyons) observe on page 40:

‘Almost six in ten participants reported that they had been treated unfairly to some degree (either a little, somewhat, a lot or always) because of their sexual orientation in the past 12 months, with 4.5% reporting a lot or always. Over three quarters (77.5%) of trans and gender diverse participants reported that they had been treated unfairly to some degree because of their gender identity in the past 12 months, with 19.8% reporting a lot or always.’

Even more shocking are the high reported rates of experiences of vilification – and worse – based on sexual orientation and/or gender identity. In the previous 12 months:[iii]

  • 34.6% of respondents reported experiencing verbal abuse (including hateful or obscene phone calls) due to their sexual orientation or gender identity
  • 23.6% experienced harassment such as being spat at and offensive gestures
  • 22.1% received written threats of abuse via emails or social media
  • 14.6% experienced threats of physical violence, physical attack or assault without a weapon
  • 11.8% experienced sexual assault
  • 11.4% received written threats of abuse in other ways
  • 10% experienced refusal of service
  • 9.9% experienced refusal of employment or being denied promotion
  • 5.3% received written threats of abuse via graffiti, and
  • 3.9% experienced physical attack or assault with a weapon (knife, bottle, stones).

‘Overall, trans and gender diverse participants reported higher levels of harassment and abuse than cisgender participants. For example, a greater proportion of trans women (51.6%), non-binary participants (49.4%) and trans men (45%) reported verbal abuse in the past 12 months due to their sexual orientation or gender identity compared to 28.7% of cisgender women and 32.7% of cisgender men.’

This is nothing short of an epidemic of discrimination, harassment, vilification and violence against LGBTQ Australians on the basis of their sexual orientation and, especially, gender identity. And it is getting worse, not better.

For example, reported rates of verbal abuse increased from 25.5% in Private Lives 2 (released in 2011) to 34.6% in Private Lives 3; harassment such as being spat at and offensive gestures rose from 15.5% in PL2 to 23.6% in PL3; physical attack or assault with a weapon doubled, from 1.8% to 3.9%; and sexual assault quadrupled, from 2.9% to 11.8%.

Let me think, what happened in the period between Private Lives 2, and the survey period for Private Lives 3 (from 24 July to 1 October 2019), which could have caused greater homophobia, biphobia and transphobia in the Australian community?

It seems undeniable that the Coalition Government’s proposed plebiscite on same-sex marriage, and actual postal survey – and the toxic public debate surrounding both – has directly contributed to increased anti-LGBTQ prejudice.

Nor should we underestimate the negative impact of the ‘religious freedom’ movement which they deliberately unleashed, with the Religious Freedom Review in 2018, and the Morrison Government’s First Exposure Draft Religious Discrimination Bill which was released right in the middle of the Private Lives 3 survey period, in August 2019.

What should happen from here?

The Private Lives 3 survey results show us the scale of the problem: appalling rates of discrimination, harassment, vilification and violence against LGBTQ Australians on the basis of their sexual orientation and, especially, gender identity. And we have a pretty good idea about who is to blame (at least for making the situation much, much worse than it already was). But what is the solution?

I would argue the following three actions would be a good place to start (although I’m sure readers of this blog could offer other useful suggestions, via the comments section below):

  1. Improve LGBTI anti-discrimination laws

The introduction of Commonwealth anti-discrimination protections for the LGBTI community, through the historic Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, was an important step, although by no means the end of the journey.

As I have written previously, these laws need to be strengthened, including by:

  • Updating ‘intersex status’ to ‘sex characteristics’
  • Protecting LGBT students, teachers and other staff in religious schools against discrimination
  • Limiting overly-generous religious exceptions that permit discrimination against LGBT people across many areas of public life, and
  • Appointing a Commissioner for Sexual Orientation, Gender Identity and Sex Characteristics at the Australian Human Rights Commission.

Discrimination in employment, especially against trans and gender diverse employees as identified in Private Lives 3, also needs to be addressed by explicitly including gender identity and sex characteristics in adverse action and unlawful termination provisions of the Fair Work Act 2009 (Cth). 

2. Introduce LGBTI anti-vilification protections

One of the long-standing, missing pieces of LGBTI law reform, at least at Commonwealth level, is protection against anti-LGBTI vilification. The high rates of hate-speech reported through Private Lives 3 has merely confirmed the urgency of addressing this gap.

As I hav consistently advocated over many years,[iv] given homophobia, biphobia, transphobia and intersexphobia can be just as harmful as racism, the Sex Discrimination Act 1984 (Cth) should be amended to prohibit anti-LGBTI vilification on an equivalent basis to the prohibition of racial vilification in section 18C of the Racial Discrimination Act 1975 (Cth).

3. Publicly-fund programs against homophobia, biphobia, transphobia and intersexphobia

Being an advocate for LGBTI law reform, it is easy to forget that changing the law can only ever be one part of the solution – and often only a small part at that.

To address the ongoing, high levels of anti-LGBTQ discrimination in employment, healthcare, education and other areas of public life identified in Private Lives 3, we need well-funded, publicly-funded campaigns explicitly targeting homophobia, biphobia, transphobia and intersexphobia.

We also need our elected representatives to lead by example, by calling out prejudice on the basis of sexual orientation, gender identity and sex characteristics, and making sure anti-LGBTIQ comments are never acceptable in public debate.

What is actually happening?

Unfortunately, when we examine what is being done in relation to the three actions described above, the answer is not much. In fact, worse than just political inaction, the Coalition Government seems intent on exacerbating these problems rather than solving them.

For example, the proposed Religious Discrimination Bill – which Attorney-General Christian Porter recently confirmed remained part of the Government’s legislative agenda – would make it easier for religious individuals and organisations to discriminate against LGBTIQ Australians, including by refusing to provide healthcare services that benefit members of our communities (for more, see The ‘Bad Faith’ Religious Discrimination Bill Must Be Blocked).

That same legislation also calculatingly, and explicitly, undermines state and territory anti-vilification laws (where they exist), by making it easier for people to make comments that ‘offend, humiliate, intimidate, insult or ridicule’ LGBTI people as long as those comments are motivated by faith. This includes over-riding the ‘best practice’ Anti-Discrimination Act 1998 (Tas).

As for culture change, then-Prime Minister Malcolm Turnbull first ‘gutted’ then abolished entirely the national, evidence-based program targeting bullying against LGBT kids in schools (Safe Schools).

Meanwhile, current Prime Minister Scott Morrison has publicly attacked school counsellors who support trans and gender diverse children, deriding them as ‘gender whisperers’ in a now-infamous tweet. And he has taken more concrete action to remove trans-inclusive toilet door signs in the Department of Prime Minister & Cabinet, than he has to implement his 2018 promise to protect LGBT students in religious schools against discrimination (for more, see ‘Scott Morrison’s Broken Promise to Protect LGBT Students is Now Two Years Old).

The findings of Private Lives 3 reveal a bushfire of bigotry is burning in the Australian community – but far-too-often our elected representatives are the ones who are fanning the flames.

Of course, it isn’t just the Commonwealth Government who should be taking action to address discrimination, harassment, vilification and violence against LGBTQ Australians. Our state and territory governments, too, need to step up, including by modernising their own anti-discrimination laws.[v] The Anti-Discrimination Act 1977 (NSW), and Equal Opportunity Act 1984 (WA) in particular have fallen far, far below community standards.

Victoria, Western Australia, South Australia and the Northern Territory also need to introduce their own LGBTI anti-vilification laws (in addition to the Commonwealth), while it is probably fair to say all Governments could be doing more to combat homophobia, biphobia, transphobia and intersexphobia in their respective jurisdictions.

Nevertheless, I would argue that the sheer size of the challenge which confronts us, as so disturbingly revealed in the ‘Discrimination, harassment and feelings of acceptance’ pages of Private Lives 3, demonstrates a national approach is desperately needed.

That obviously means stopping those things which would simply make the problem worse – including by abandoning any Religious Discrimination Bill that would undermine the rights of LGBTIQ Australians. But it also requires positive steps to make things better.

We’ll find out in 2021 whether the Commonwealth Government, and Parliament more broadly, is willing to do that which is necessary – or allow anti-LGBTIQ prejudice to rage on.

Footnotes:


[i] The rates of acceptance at health services were even lower, showing a significant drop-off for cisgender women. Specially, while 55.5% of cisgender men felt accepted ‘a lot/always’, this fell to 42.4% for cisgender women, 46.5% for trans women, 30.1% for trans men and just one in five non-binary people (21.5%).

[ii] The rates of acceptance at health services were even lower. Only gay respondents felt accepted ‘a lot/always’ more often than not (54.8%), compared to just 40.1% of lesbian, 43.8% bisexual, 37.3% pansexual, 26.7% queer and 33.3% asexual respondents. 

[iii] Check out the full list on page 40 of the Private Lives 3 Report.

[iv] See also: ‘Did You Know? Most Australian Jurisdictions Don’t Prohibit Anti-LGBTI Vilification‘.

[v] For a comprehensive discussion of LGBTI anti-discrimination protections around the country, see: A Quick Guide to Australian LGBTI Anti-Discrimination Laws

Submission re: South Australia’s Equal Opportunity (Religious Bodies) Amendment Bill 2020

22 November 2020

Attorney-General’s Department

Legislative Services

GPO Box 464

Adelaide SA 5001

Via email: LLPSubmissions@sa.gov.au

To whom it may concern

Submission re: Equal Opportunity (Religious Bodies) Amendment Bill 2020

Thank you for the opportunity to provide a submission on the draft Equal Opportunity (Religious Bodies) Amendment Bill 2020.

I do so as a long-term advocate for the rights of the lesbian, gay, bisexual, transgender and intersex (LGBTI) community, and as someone with particular expertise in anti-discrimination legislation, including comparative analysis of LGBTI anti-discrimination protections across Australia.[i]

First, I welcome the intention of the draft legislation, which is to narrow the scope of the excessive and extreme religious exceptions currently found in section 50 of the Equal Opportunity Act 1984 (SA). These exceptions allow religious organisations to discriminate against LGBTI South Australians in a wide range of everyday situations, causing direct and significant harm to a vulnerable population.

Second, I particularly welcome proposed section 50(1)(c)(ix), which would have the effect of protecting LGBTI students in religious schools against discrimination on the basis of who they are. This protection is long overdue, with change in South Australia made necessary because of the failure of the Morrison Government to deliver on his October 2018 promise to prohibit such discrimination under the Sex Discrimination Act 1984 (Cth).[ii]

However, while passage of this legislation would represent an improvement in terms of the rights of LGBTI South Australians to participate in public life without fear of discrimination, I would like to highlight three major problems with the Bill as drafted:

  1. The scope of areas where LGBTI people will be protected – or not

The draft Equal Opportunity (Religious Bodies) Amendment Bill 2020 effectively creates a ‘carve-out’ from the general religious exception found in section 50(c)[iii] of the Equal Opportunity Act 1984 (SA) so that it does not apply in relation to certain areas of public life.

This approach appears to be based on section 37(2) of the Sex Discrimination Act 1984 (Cth), which provides that the general religious exception in section 37(1) of that Act does not allow aged care services operated by religious organisations to discriminate against LGBT people accessing those services (although, disappointingly, it continues to allow religious aged care services to discriminate against LGBT employees).

It is encouraging that the draft South Australian Bill extends this carve-out to a wider range of areas of public life, including:

  • Children’s education
  • Health care and disability support
  • Aged care
  • Emergency accommodation
  • Public housing, and
  • Foster care placement.

In another welcome development, the carve-out also applies to employees in these areas (other than in relation to educational institutions, an issue which is discussed further below).

However, the carve-out approach has inherent limitations. In particular, the boundary between areas of public life where LGBTI people will be protected, and those where they will not, may appear arbitrary and difficult to justify.

For example, while proposed sections 50(1)(c)(ix) and 50(1)(c)(x) mean that religious pre-schools, primary schools and secondary schools will not be able to discriminate against LGBTI students, the absence of a similar carve-out for tertiary education means that religious universities will nevertheless still be able to discriminate against LGBTI students.

In an environment when many university-age students are exploring and ultimately affirming their sexual orientation and/or gender identity, I do not believe it is acceptable to allow religious universities to discriminate against those students simply because of who they are (and especially where religious universities use public funds to do so).

In a similar way, while it is pleasing that emergency accommodation services operated by religious organisations will not be able to turn away LGBTI people in need of their assistance, it seems arbitrary that other essential service providers (such as food services or other forms of welfare support)[iv] will be able to reject people on the basis of their sexual orientation, gender identity or intersex status.[v]

Finally, proposed section 50(1)(c)(i) would ensure that religious foster care agencies will not be able to discriminate against LGBTI people (including employees, potential foster carers and children being placed). However, the absence of a similar provision in relation to adoption agencies presumably means that religious organisations providing that particular service will be able to discriminate in this way.

This double-standard – where rainbow families are ‘good enough’ to be foster carers, but can still be rejected as adoptive parents just because of who they are – cannot be justified.

Therefore, if the carve-out approach is retained, in my view it should at a minimum be extended to include tertiary education, broader welfare services and adoption agencies.

Recommendation 1: If the ‘carve-out’ approach in section 50(1)(c) of the draft Bill is retained, the following areas of public life should be added:

  • Tertiary education
  • Welfare services generally, and
  • Adoption agencies.

2. The ongoing ability of religious organisations to discriminate on the basis of gender identity, sexual orientation and intersex status

I have framed the above recommendation in a qualified manner because I believe the ‘carve-out’ approach is itself problematic. That is because, in any area of public life that is not listed in section 50(1)(c), religious organisations will continue to be permitted to discriminate on the basis of gender identity, sexual orientation and intersex status, including in terms of who they employ and who they provide their services to.

This will obviously have a negative impact on LGBTI South Australians by restricting their ability to participate in public life without fear of discrimination. And it falls well below the best practice approach to religious exceptions, which has been adopted in the Anti-Discrimination Act 1998 (Tas), and in a more limited way the Discrimination Act 1991 (ACT).[vi]

The Tasmanian ‘gold standard’ allows religious organisations to discriminate – but only on the basis of religious belief or activity, and not on other grounds, such as sexual orientation, gender identity or intersex variations of sex characteristics.

For example, section 51 allows religious organisations to discriminate in employment in the following way:

(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 religious 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 or is to be conducted in accordance with the tenets, beliefs, 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.

Section 51A then allows discrimination on the ground of religious belief or affiliation or religious activity in relation to enrolment at religious educational institutions (although not after the point of admission), while section 52 allows discrimination by religious organisations on the ground of religious belief or affiliation or religious activity in relation to ‘participation in religious observance’.[vii]

From my perspective, this is a fairer way in which to allow religious organisations to prioritise people from their own faith, while not infringing upon the rights of others – including LGBTI people – to live their lives free from discrimination.

I strongly urge the South Australian Government to improve the proposed Equal Opportunity (Religious Bodies) Amendment Bill 2020 by moving to a model where religious organisations are only allowed to discriminate on the basis of religious belief or activity, and not in relation to other protected attributes, including gender identity, sexual orientation and intersex status.

Recommendation 2: The South Australian Government should consider adopting the Tasmanian best practice approach to religious exceptions, allowing religious organisations to discriminate on the basis of religious belief and activity, but not in relation to other protected attributes including gender identity, sexual orientation and intersex status.

3. The ongoing ability of religious schools and universities to discriminate against LGBTI teachers, lecturers and other staff

The final, and arguably most important, problem with the Equal Opportunity (Religious Bodies) Amendment Bill 2020 is something it does not do – it does not remove the ability of religious education institutions (including schools and universities) to discriminate against LGBTI teachers, lecturers and other staff (which is currently permitted under section 34(3) of the Equal Opportunity Act 1984 (SA)).

In my view, this exception is unacceptable, for several reasons.

First, it is unfair on LGBTI teachers, lecturers and other staff. They may be the best qualified person for a job, but they can be denied employment (or, where they already work for a religious school or university, fired), on the basis of something which has no connection to their ability to perform the role. This is especially egregious given the large amounts of public funding provided to these institutions.

Second, it is unfair to students generally – who are denied being taught by the best possible teacher or lecturer for their class.

Third, it is unfair on LGBTI students in particular. Not only are they denied positive role models, they are also enrolled in an educational institution which has adopted a hostile attitude towards LGBTI teachers, lecturers and other staff, something which will inevitably influence the broader culture of the school or university.

Fourth, I do not believe the supposed ‘safeguard’ contained in sections 34(3)(b), (c) and (d) – which requires educational institutions wishing to rely on this exception to have a written policy stating its (discriminatory) position, that is provided to employees and potential employees, and on request to students, their families and members of the public – is sufficient.[viii]

Transparency doesn’t make prejudice any less real, or any more acceptable. LGBTI teachers, lecturers and other staff members can still be denied employment simply because of their gender identity, sexual orientation or intersex status – attributes which have absolutely nothing to do with their ability to perform the role.

Further, and even more damagingly, LGBTI students at these institutions who are aware of such policies will be acutely aware their presence there is only ‘tolerated’ because the institution is legally prohibited from discriminating against them (in other words, they would discriminate against these students if they could). They will know that they will never be truly accepted for who they are.

This last reason alone justifies removal of the exception for religious educational institutions in section 34(3) of the Equal Opportunity Act 1984 (SA) and instead prohibit all religious schools and universities from discriminating against LGBTI employees.

Recommendation 3: The exception allowing religious education institutions to discriminate against LGBTI teachers, lecturers and other staff in section 34(3) of the Equal Opportunity Act 1984 (SA) must be repealed, with these institutions prohibited from discriminating against employees on the basis of gender identity, sexual orientation and intersex status.

In conclusion, I should reiterate that, despite the problems identified above, the draft Equal Opportunity (Religious Bodies) Amendment Bill 2020 would, if passed in its current form, still significantly improve the rights of LGBTI people in South Australia to go about their lives free from discrimination.

In particular, I welcome the commitment of the South Australian Government to protect LGBTI students at religious schools against discrimination. This is much needed, and would have an immediate and appreciable benefit for vulnerable students across the state.

Nevertheless, I firmly believe the proposed legislation can be substantially strengthened, including by extending the scope of areas in which LGBTI people are protected to include tertiary education, welfare services and adoption agencies – or, even better, to adopt the best practice Tasmanian approach to religious exceptions (as discussed earlier).

Above all, I strongly encourage the South Australian Government to remove the ability of religious educational institutions to discriminate against LGBTI teachers, lecturers and other staff members, so that these places can become welcoming and inclusive places for all people seeking to learn, or impart knowledge, irrespective of their gender identity, sexual orientation or intersex status.

Thank you in advance for your consideration of this submission. Please contact me at the details provided should you wish to clarify any of the above, or for further information.

Sincerely,

Alastair Lawrie

Footnotes:


[i] See: A Quick Guide to Australian LGBTI Anti-Discrimination Laws.

[ii] For more information, see: Scott Morrison’s Broken Promise to Protect LGBT Students is Now Two Years Old

[iii] ‘This Part does not render unlawful discrimination in relation to- any other practice of a body established for religious purposes that conforms with the precepts of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.’

[iv] In many cases, these services will be using local, state and/or Commonwealth funding to do so. In nearly all cases, they will be relying on tax exemptions supporting them to carry out this work.

[v] Intersex status is the protected attribute currently included in the Equal Opportunity Act 1984 (SA). However, I support the replacement of intersex status with ‘sex characteristics’, as called for by Intersex Human Rights Australia, as well as intersex advocates in the March 2017 Darlington Statement.

[vi] The ACT has adopted the Tasmanian approach in relation to religious schools (only allowing discrimination on the basis of religious conviction, and not on the ground of sexuality, gender identity or sex characteristics), but not for other religious organisations.

[vii] Noting that section 52(d) of the Anti-Discrimination Act 1998 (Tas) is quite generous: ‘A person may discriminate against another person on the ground of religious belief or affiliation or religious activity in relation to- (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.’

[viii] Even if, in some circumstances, it may be useful in applying external pressure on religious educational institutions whose employment practices fall short of community standards.

Scott Morrison’s Broken Promise to Protect LGBT Students is Now Two Years Old

Two years ago today, Prime Minister Scott Morrison promised to protect lesbian, gay, bisexual and transgender (LGBT) students in religious schools against discrimination. He stated, unequivocally: ‘We do not think that children should be discriminated against.’ 

This promise was made following the leaking of the Ruddock Religious Freedom Review’s recommendations, which sought to clarify but not repeal the existing ability of religious schools to discriminate against LGBT kids just because of who they are, and the significant public backlash it received from people who did not realise these schools already enjoyed this extraordinary special privilege under the Commonwealth Sex Discrimination Act 1984.

Morrison further committed to introducing amendments to prevent religious schools mistreating LGBT students in this way before the end of 2018, saying: ‘I believe this view is shared across the Parliament and we should use the next fortnight to ensure this matter is addressed.’ 

Scott Morrison has reneged on his promise to protect LGBT students in religious schools against discrimination. Brazenly. Deliberately. And without any apparent consideration of the serious harms his broken promise will cause to a generation of LGBT kids.

Morrison’s Government never even bothered to introduce a Bill into Parliament to attempt to implement his commitment, let alone tried to have it passed.

When the Greens, with the Discrimination Free Schools Bill 2018, and then Labor, with the Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018, both sought to do so themselves, the Liberal/National Government referred these Bills to Senate inquiries rather than debating them.

Even after those inquiries, which took place in late 2018 and over the summer of 2018/19 respectively, handed down their reports, the Morrison Government failed to support those proposals and still did not propose a Bill of their own. Instead, they stalled and effectively counted down the clock until the 2019 Federal election. 

On the very last day before the writs were issued for that election, Attorney-General Christian Porter referred the issue of ‘religious exceptions’ generally to the Australian Law Reform Commission (ALRC) for a detailed, 12-month review. 

After the Morrison Government was re-elected on 18 May 2019, they returned to power with even less sense of urgency to give effect to his promise from October 2018. Instead, they gave priority to preparing two Exposure Drafts of the Religious Discrimination Bill, in late 2019 and early 2020, legislation that would

  • Make it easier to make comments that ‘offend, humiliate, intimidate, insult or ridicule’ minorities, including LGBTI people
  • Make it easier for health practitioners to refuse to provide services that benefit minorities, including LGBTI people
  • Make it easier for religious organisations to discriminate against others, and
  • Make it more difficult for big business to promote diversity and inclusion, including for LGBTI people.

On the other hand, they first delayed the ALRC’s reporting timeline until December 2020. And then, on 2 March 2020, the Attorney-General amended the ALRC’s reporting deadline to be ‘12 months from the date the Religious Discrimination Bill is passed by Parliament.’ 

That change alone is enough to guarantee Morrison’s promise – which, let’s remember, was to protect LGBT students before the end of 2018 – will not happen this term.

First, the Religious Discrimination Bill may not pass (and, in its current form, it most definitely should not). Second, even if it passes, it will not happen until the first half of 2021 at the earliest. At a minimum, that makes the ALRC’s new reporting deadline the first half of 2022, which is when the next federal election is due (by May 2022, although there is increasing speculation it will instead be held in late 2021).

Even after the ALRC ultimately delivers its report, it usually takes a Government at least six months to prepare a formal response, and six months again to introduce legislation based on its response. 

Which means, even if the Government still feels bound by Morrison’s original promise from October 2018, even if the Liberal/National Government is re-elected, even if Morrison remains Prime Minister, even if the ALRC recommends how to implement his commitment, even if the Government accepts the ALRC recommendation, even if the Government prepares and introduces legislation to make this change and even if Parliament passes it, that legislation will not happen until 2023, and will likely not take effect until 2024.

A student in Year 7 when Scott Morrison first promised to urgently protect LGBT kids in religious schools against discrimination will finish Year 12 before his Government gives effect to it – if they ever do.

This isn’t just any ordinary broken promise either. In raising hopes that some of the most vulnerable members of our community might finally be legally protected, and then comprehensively dashing them, Morrison has broken hearts, while leaving a trail of broken lives in his wake.

That’s because anti-discrimination exceptions allowing religious schools to mistreat LGBT students just because of who they are inflict serious, real-life harm on those kids.

Religious schools can harm LGBT kids through the hateful things they say to them. And they can harm LGBT kids by not saying anything positive at all, leaving children who are struggling to figure out who they are to suffer, alone, in the all-enveloping silence of the closet.

Religious schools can harm LGBT kids by expelling them because of their sexual orientation or gender identity. But, generally, they don’t need to – the threat alone is enough. Where a student does bravely decide to come out despite that school’s prejudiced views, the school can ‘encourage parents to find a more suitable environment for their child’ (and what parent would force a school to expel their child in such circumstances?).

Religious schools can harm LGBT kids in myriad ways that fall short of expulsion too, from special rules targeting same-sex attraction, and erasing gender diversity.

Above all, religious schools can harm LGBT kids by creating a toxic environment, where those students know they will not receive safety and protection if they need it – something other kids figure out all too quickly, and take advantage of with impunity. 

I know the above from bitter personal experience – barely surviving five years at a religious boarding school in Brisbane in the early 1990s.

When they weren’t saying hateful things about my sexual orientation (like the pastor who suggested that, for kids struggling with ‘confusion’, killing themselves was not the worst possible outcome), they said nothing at all, leaving a dangerous void in which homophobia can, and did, flourish.

Their explicit rules against same-sex attraction didn’t need to be enforced either – all students knew being ‘out and proud’ simply wasn’t an option. Worst of all, the school’s anti-LGBT stance meant other boarders were free to ‘police’ any students who displayed even the subtlest signs of difference: I was subjected to both verbal, and at times physical, abuse.

The most depressing part of all is the realisation that, in many parts of Australia, little has changed in the past 25 years. While, thankfully, Queensland, Tasmania, the ACT and Northern Territory have all legislated to remove the special privileges allowing religious schools to discriminate against LGBT kids, other jurisdictions have not. 

In 2020, it is appalling and infuriating that religious schools in NSW, Victoria, Western Australia and South Australia can still legally mistreat LGBT students simply because of who they are. 

And they still do, too. As Oliver Griffith wrote, in 2018, about his own, more-recent experiences at a religious school (in an article called Growing up gay in a Christian school had lasting effects on my life’):

‘Growing up gay in an environment like this is a challenge because you are faced with your realisation of your own identity and at the same time are taught by people you trust that you are a deviant, a danger to society, and otherwise should be shunned from the community… the open criticism of homosexuality meant that I was always aware that revealing who I was to the people around me could result in being ostracised from my friends and the teachers I had learnt to respect. Despite becoming aware of my sexuality at the age of 14, I never revealed this publicly until I was in my 20s.’

My, and Oliver’s, stories of survival are by no means unique. And, of course, there are the countless stories we will never get to hear, because those students took their own lives as a direct consequence of the homophobia, biphobia and transphobia of religious schools, all legally supported by our Commonwealth Government.

The serious harms caused by the special exceptions provided to religious schools is backed up by the evidence. As expert in this area, Dr Tiffany Jones, wrote in the conclusion of their submission to the 2018 Senate inquiry titled ‘The Wrong of ‘Discrimination Rights’:

The data outlined in this submission adds to the author’s past submissions on [Sex Discrimination Act] Drafts citing evidence showing that the majority of LGBT students who attended religious schools rated them as homophobic spaces and that many LGBT students in religious schools suffered attempts to be ‘converted to heterosexuality’ or were forced out of their schools (eg in 2012). This submission shows new evidence that this trend continues in Australian religious schools, especially for people on the trans-spectrum. This is despite the fact that conversion attempts are widely and strongly denounced by peak psychology bodies.

Past submissions from the author showed there are significantly fewer policy-based protections for LGBT students in religious schools, which is highly problematic as policy protections are associated with decreased risks of experiencing homophobic and transphobic violence and decreased risks of self-harm and suicide rates for the group. However, the 2018 data shows that anti-LGBT conversion approaches contribute to harm the wellbeing of not only LGBT students, but most people attending those schools – who are significantly more likely to consider self-harm and suicide, and attempt self-harm and suicide.

The 2018 data show ‘gay’ is still the top insult in Australian schools. Trans-spectrum people suffer from more staff targeting just attending school as legally enforced. If our nation requires youth to attend school, and insists on funding religious schools, then those schools must be safe. The small portion of extremist conservative religious schools of Australia (not all religious schools, but those taking advantage of the SDA’s exemptions which effectively endorse anti-LGBT approaches) provide an educational environment lacking in basic social competencies for entering a modern diverse Australia and following its laws outside of the unrealistic ‘bubble’ of these schools. We need to ensure safety and better citizenship education at these schools. Not only for LGBTs, but for all students experiencing the wellbeing and educational deficits of discrimination on gender identity, gender expression and sexual orientation. [emphasis in original]

Dr Jones is correct – if we compel students to attend school, then we must ensure that all school environments are safe for all students, including lesbian, gay, bisexual and transgender kids.

Currently, they are not. Religious schools are legally allowed to harm LGBT students, by what they say, and what they don’t say. By what they do (in enforcing anti-LGBT policies and rules), and what they don’t need to (because of the threat hanging over the heads of LGBT kids). And most of all, religious schools are legally permitted to harm LGBT students by creating toxic cultures in which homophobic, biphobic and transphobic bullying and violence can thrive.

Two years ago today, Prime Minister Scott Morrison promised to protect LGBT students in religious schools against discrimination. He has done nothing in the two years since to give effect to this commitment.

While Scott Morrison might be able to walk away from his words, he cannot walk away from his responsibility for the serious harm being inflicted, needlessly, on another generation of LGBT kids because of his inaction. Harm that will still be felt by too many long after his time as Prime Minister comes to an end.

**********

For LGBTI people, if this post has raised issues for you, please contact QLife on 1800 184 527, or via webchat: https://qlife.org.au/ or contact Lifeline Australia on 13 11 14.

Scott Morrison’s broken promise to protect LGBT students in religious schools against discrimination turns two years old today (11 October 2020).

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

Letter to Andrew Barr re ACT Discrimination Act Reform

Mr Andrew Barr

ACT Chief Minister

Via: barr@act.gov.au

CC: Mr Gordon Ramsay

ACT Attorney-General

Via: ramsay@act.gov.au

9 September 2020

Dear Chief Minister

Reforming ‘religious exceptions’ in the Discrimination Act 1991 (ACT)

I am writing to you about the religious exceptions contained in the Discrimination Act 1991 (ACT), and specifically the special privileges they provide to religious organisations to discriminate against people on the basis of their sexuality and gender identity (among other attributes).

First, I would like to congratulate you, and your Government, on the passage of the Discrimination Amendment Act 2018, which removed the ability of religious schools in the ACT to discriminate against LGBT students, teachers and other staff members.

That reform was an essential step forward on the long path towards LGBT equality. As well as providing security to LGBT employees, it will benefit generations of young people who will be able to access education without fear of discrimination on the basis of who they are.

However, I would also take this opportunity to remind you this important reform remains incomplete – because it has not been extended to religious organisations outside education, including other vital health, community and social services.

When you announced these changes in October 2018, it was reported that: 

Mr Barr said he was personally disappointed discrimination was “arguably still possible” under the territory’s current laws. The Government will also undertake an “extensive audit” of all territory laws and close any further gaps and loopholes found.

You reiterated this commitment in your speech on the Bill during debate in the ACT Legislative Assembly in November of that year: 

We are also committed to undertaking a full audit of ACT laws to assist us to eliminate any further areas of discrimination against LGBTIQ Canberrans in the territory’s statute books and to develop a reform package to address any matters identified. As a human rights jurisdiction, we have to ensure that the human rights of everyone in our community are reflected not just in law but in the day-to-day practice in our lives.

I would argue that laws that allow religious health, community and social services to discriminate against LGBT employees and people accessing those services are impediments that should be removed to improve the day-to-day lives of LGBT Canberrans.

During that same speech, you defended the proposed changes on the basis that they were based on the existing protections in Tasmania’s Anti-Discrimination Act 1998

However, in moving quickly we have chosen to follow a safe and tested path, as the limited exception we have adopted in this bill is modelled on the law that has been in existence for many years in Tasmania.

And it is true that the new ACT framework which applies to discrimination by religious schools is the same as the framework which has existed in Tasmania for more than two decades.

However, the Tasmanian Anti-Discrimination Act 1998 protections are not limited to religious schools, but instead protect LGBT employees and people accessing services against discrimination by religious organisations across all areas of public life.

I would argue that, if the ACT wants to base its Discrimination Act on the nation’s best practice laws, then it should replicate the removal of religious exceptions in scope as well.

Finally, in your speech to the ACT Legislative Assembly in November 2018 you expressed the following views:

Let us be clear: the existence of these broad-based exceptions in law should no longer be there. There should not be those exceptions anymore. That is what this legislation is about. A broad-based exception in law designed to protect people from discrimination has to be consistent with the values of equality and social inclusion that we hold dear in this territory. That is why we are moving on this issue. It is because it is unacceptable that personal attributes like whether you are pregnant, your race, your relationship status, your gender identity or your sexuality should be a reason for you to be kicked out of school or no longer able to teach in an educational institution.

These are indeed fine sentiments. But they reinforce the fact the job is half-finished. The ‘existence of broad-based exceptions in law’ – outside of education – continues in section 32 of the Discrimination Act 1991.

It is just as ‘unacceptable that personal attributes like whether you are pregnant, your race, your relationship status, your gender identity or your sexuality should be a reason for you to be kicked out of’ any other health, community or social service, or ‘no longer able to’ work in these same organisations.

With the ACT Assembly election to be held on 17 October 2020, I am seeking your commitment that, if re-elected, you and your Government will finish the job, by reforming section 32 of the Discrimination Act 1991 so that it only allows discrimination on the attribute of religious conviction, and not in relation to other attributes including sexuality or gender identity.

In doing so, you would not only be fulfilling your own commitments from October and November 2018, but you would be improving the day-to-day lives of many LGBT Canberrans.

Please do not hesitate to contact me at the details provided should you require additional information to respond to this request. Please also be advised that any response received will be published at www.alastairlawrie.net

Sincerely,

Alastair Lawrie

Will ACT Chief Minister Andrew Barr commit to ‘finishing the job’ on religious exceptions in the Discrimination Act 1991?

Queensland Election 2020: LGBTI Anti-Discrimination Questions

The Queensland state election will be held on Saturday 31 October, 2020.

One of the primary issues affecting the lesbian, gay, bisexual, transgender and intersex (LGBTI) community that, in my opinion, should be on the agenda is modernisation of the Anti-Discrimination Act 1991.

As my previous article examining this legislation explains, there are (at least) five major problems with Queensland’s Anti-Discrimination Act, including:

  • A narrow definition of gender identity that excludes non-binary people
  • The lack of any protection for intersex people
  • The ‘Don’t Ask, Don’t Tell’ approach to LGBT teachers and other staff at religious schools
  • The working with children exception allowing discrimination against transgender people, and
  • The assisted reproductive technology exception allowing discrimination against lesbian, gay and bisexual people.

Given the upcoming election, I have sent the below questions to representatives of all parties currently represented in the Queensland Parliament, as well as the Independent Member for Noosa, asking them to outline their commitments to reform the Anti-Discrimination Act 1991.

Any answers received prior to the election will be published at the end of this post.

**********

The Queensland Anti-Discrimination Act 1991 is now almost 30 years old, and in 2020 does not provide adequate protections against discrimination for the lesbian, gay, bisexual, transgender and intersex (LGBTI) community.

With the upcoming state election now only eight weeks away, I would appreciate your/your Party’s responses to the following questions, which focus on five of the major problems with this legislation:

  1. The definition of ‘gender identity’ in the Anti-Discrimination Act’s Dictionary currently excludes non-binary people. Will you update the definition of gender identity to ensure non-binary Queenslanders are protected against discrimination and vilification?
  2. Intersex people are not currently covered by the Anti-Discrimination Act. Will you introduce a new protected attribute of ‘sex characteristics’ and ensure intersex Queenslanders are protected against discrimination and vilification?
  3. LGBT teachers and other staff at religious schools are currently subjected to an inappropriate and ineffective ‘Don’t Ask, Don’t Tell’ framework (section 25). Will you amend the Anti-Discrimination Act to ensure all teachers and staff, in all schools, are protected against discrimination on the basis of their sexuality or gender identity?
  4. Under sub-section 28 of the Anti-Discrimination Act, employers are currently permitted to discriminate against transgender employees where their ‘work involves the care or instruction of minors’. This provision is abhorrent in 2020. Will you repeal the ‘working with children’ exception relating to transgender employees?
  5. Under sub-section 45A(1) of the Anti-Discrimination Act, discrimination on the basis of sexuality is currently permitted in relation to assisted reproductive technology. Such discrimination against rainbow families cannot be justified. Will you repeal the ‘assisted reproductive technology’ exception relating to lesbian, gay and bisexual Queenslanders?

I look forward to your/your Party’s responses to these questions. Please note that, if received, your answers will be published on www.alastairlawrie.net, and at ‘No Homophobia, No Exceptions’.

Sincerely,

Alastair Lawrie

**********

Update 29 October 2020:

I have received the below response from Greens MP Michael Berkman. As you can see, the answers to my questions are encouraging, particularly if the Greens are in a balance of power position after 31 October.

Disappointingly, with only two days left until the Queensland State election, I am yet to receive a formal response from either the Labor Party or Liberal-National Party. I will post any correspondence I receive before Saturday here.

28 October 2020 

Dear Alistair, 

Anti-Disrcrimination Act 1991 

Thank you for your email of 5 September 2020, seeking the Queensland Greens’ policy positions ahead of the 2020 Queensland election. 

The Queensland Greens are committed to an inclusive society free from discrimination. I have addressed your questions with corresponding numbers below. All statements are complementary to statements by the Greens’ spokespeople, including myself, and other policy documents which are on the public record. 

The Greens are committed to: 

  1. Updating the definition of ‘gender identity’ in the ​Anti-Discrimination Act 1991​ (Qld) (the Act) to ensure non-binary Queenslanders are protected against discrimination and vilification. 
  2. Introducing a new protected attribute of ‘sex characteristics’ and ensuring intersex Queenslanders are protected against discrimination and vilification. 
  3. Eliminating the exemptions from anti-discrimination law which currently operate to deny protections LGBTIQA+ teachers and other staff at religious schools under anti-discrimination law. 
  4. Repealing the ‘working with children’ exception relating to employees under section 28 of the Act. 
  5. Repealing the ‘assisted reproductive technology’ exception at section 45A of the Act. 

I hope that this information is of assistance. Please do not hesitate to contact my office … if you would like to discuss this matter in more detail. 

Kind regards, 

Michael Berkman MP 

Will Premier Palaszczuk and/or Opposition Leader Frecklington make election commitments to modernise the Anti-Discrimination Act 1991 to better protect LGBTI Queenslanders against discrimination and vilification?

Northern Territory Election: Anti-Discrimination Questions

[Update: For a response from the re-elected Labor Government, please scroll to the end of the post]

The Northern Territory election will be held on Saturday 22 August 2020. One of the many issues that could be affected by the outcome is the future of the Anti-Discrimination Act (NT), which commenced on 1 August 1993.

This legislation is now out-dated, and does not offer appropriate protection to the lesbian, gay, bisexual, transgender and intersex (LGBTI) community. For more information on its problems, see: What’s Wrong With the Northern Territory Anti-Discrimination Act?

While the Northern Territory Department of the Attorney-General and Justice conducted a public consultation on modernisation of the Act in 2018, no reforms have been proposed or progressed prior to the current election campaign.

In this context, I have sent the below questions to the leaders of the three main parties contesting the election: Territory Labor; the Country Liberal Party; and the Territory Alliance. If I receive answers from any Party prior to the poll, they will be published below.

**********

8 August 2020

The Northern Territory Anti-Discrimination Act is now more than a quarter of a century old, and does not offer appropriate protections against discrimination for the lesbian, gay, bisexual, transgender and intersex (LGBTI) community.

If your Party forms government after the election on 22 August 2020, will you commit to, as a matter of priority:

  • Update the definition of ‘sexuality’ to be consistent with the definition of ‘sexual orientation’ in the Sex Discrimination Act 1984 (Cth)?
  • Introduce a new protected attribute of ‘gender identity’, to ensure all trans and gender diverse people are protected against discrimination?
  • Introduce a new protected attribute of ‘sex characteristics’, to ensure all intersex people are protected against discrimination?
  • Amend section 37A(a)(ii) to remove the ability of religious schools to discriminate against teachers and other staff members simply because they are lesbian, gay, bisexual and transgender (LGBT)?
  • Remove the ability of religious organisations to discriminate against LGBT people in relation to accommodation under section 40(3)?
  • Introduce new prohibitions against vilification, including on the basis of race, as well as in relation to sexual orientation, gender identity and sex characteristics?

Please note that, if received, your answers will be published on www.alastairlawrie.net, and at ‘No Homophobia, No Exceptions’.

Sincerely,

Alastair Lawrie

No responses were received from Territory Labor, the Country Liberal Party or Territory Alliance prior to the election on 22 August 2020.

**********

The below response was received from Labor Attorney-General Selena Uibo on 5 October 2020. It is disappointing in two key ways. First, most obviously, they did not comment in time for NT voters to consider ahead of the 22 August election.

Second, and more importantly, it abdicates responsibility for fixing the outdated NT Anti-Discrimination Act, preferring to wait until after the Australian Law Reform Commission (ALRC) to complete its review of religious exceptions at Commonwealth, state and territory law.

However, as I have written previously, that review has been delayed until 12 months after the Commonwealth Religious Discrimination Bill has been *passed* by Commonwealth Parliament, which a) hopefully will not happen and b) if it does, won’t be until the first half of 2021 – meaning the ALRC will not report until 2022 at the earliest.

There is absolutely no justification for the re-elected NT Government to postpone taking urgent action to provide LGBTI Territorians with essential protection against discrimination and vilification. Anyway, here is the short response from Minister Uibo:

Dear Alastair,

I refer to your correspondence dated 8 August 2020 in relation to the Anti-Discrimination Act 1991.

The Territory Labor Government is committed to making changes to modernise the Territory legislation based on feedback received.

The Commonwealth Government have referred a number of recommendations following the Federal Report into Religious Freedoms to the Australian Law Reform Committee [sic]. Given the impact that Commonwealth legislation can have on the Northern Territory, we have been awaiting their report, before any changes are considered. This Report was originally due in April 2020; however, this date has now been extended to allow passage of the Federal Religious Discrimination Bill. It is expected that the Law Reform Committee [sic] Report will be returned sometime in 2021.

Thank you for taking the time to write to me regarding this important issue.

Yours sincerely,

Selena Uibo

Untitled design (1)

Chief Minister Michael Gunner (Territory Labor), Opposition Leader Lia Finocchiaro (Country Liberal Party) and Territory Alliance Leader Terry Mills.

Submission re Aged Care Worker Regulation Scheme – Consultation Paper

Department of Health

Submitted online

Monday 29 June 2020

 

To whom it may concern

Submission re Aged Care Worker Regulation Scheme – Consultation Paper

Thank you for the opportunity to provide a submission on this important topic. In this submission, I will respond to the information presented in the Consultation Paper, while highlighting a fundamental issue that is not addressed in its 56 pages.

Specifically, in discussing existing screening of aged care workers, as well as options for increased screening and/or registration, the Consultation Paper fails to mention a de facto form of screening which already takes place – the lawful exclusion of lesbian, gay, bisexual and transgender (LGBT) employees by some government-funded aged care services operated by religious organisations.

This discrimination is permitted because of the religious exceptions included in the Sex Discrimination Act 1984 (Cth).

While sub-section 37(2)(a) provides that government-funded aged care services operated by religious organisations are not able to discriminate against lesbian, gay, bisexual and transgender people accessing their services, sub-section 37(2)(b) allows those same organisations to fire, or refuse to hire, LGBT employees simply because of who they are.

Such workplace discrimination is unacceptable in principle. But it is also unacceptable in the context of issues confronting the aged care sector, as articulated in the Consultation Paper.

For example, one of the three problems highlighted on pages 7 and 8, under the heading ‘What are the limitations of the existing approach?’ is the following:

Concern that some critical workers (such as personal care workers) may not have adequate qualifications or skills, English proficiency and/or access to continuous professional development (CPD) to support the delivery of safe and high-quality consumer-centred care

-As noted above, PCWs comprise approximately 70 per cent of the aged care workforce. Over the coming years, there will be an increasing demand for PCWs with industry estimates suggesting that an additional 980,000 workers will need to be recruited to perform roles such as those of PCWs.

In a system with concerns about workforce skills, and a looming shortage of personal care workers (as identified in the quote above), it makes absolutely zero sense to allow a significant proportion of aged care services to legally discriminate against employees on the basis of their sexual orientation and/or gender identity.

This discrimination has a range of negative consequences, both for the individual aged care service, as well as for the system as a whole.

For individual services, by limiting the pool of applicants to cisgender, heterosexual people, it is inevitable that in some circumstances better qualified applicants will be rejected because of personal attributes that have no connection to their ability to perform the role.

In other words, where services only hire the best cisgender, heterosexual person for the job, rather than the best person full stop, the overall quality of care provided will be adversely affected, to the detriment of people accessing that service.

However, the systemic outcomes of such discrimination are even worse.

LGBT people considering a career in aged care may decide against entering the industry entirely if they are aware that a substantial proportion of aged care services can refuse to hire them solely on the basis of their sexual orientation and/or gender identity.

Further, LGBT people who are already in the industry and experience discrimination because of who they are may be more likely to exit the industry prematurely rather than risk being confronted by additional mistreatment.

In this way, the ability of government-funded aged care services operated by religious organisations to discriminate against LGBT employees both limits the number of people considering working in aged care in the first place, and accelerates current employees leaving – at the exact same time the Consultation Paper suggests there is a growing demand for more aged care workers.

Sub-section 37(2)(b) of the Sex Discrimination Act 1984 is therefore a structural barrier to an expanded, and better-qualified, aged care workforce, and one that must be removed as a matter of priority.

This view is reinforced by examining the ‘Objectives of an aged care worker screening or registration scheme’, as outlined on pages 13 and 14 of the Consultation Paper.

All six of these objectives are compromised by the ability of government-funded aged care services operated by religious organisations to discriminate against LGBT employees.

  1. Improve the quality and safety of aged care and enhance protections for consumers

As seen in the above discussion, allowing individual aged care services to hire the best cisgender, heterosexual person for the job, rather than the best person overall irrespective of their sexual orientation and/or gender identity, inevitably means that centre is not able to provide the best possible care to consumers.

This problem is amplified for LGBT employees who are currently employed in government-funded aged care services operated by religious organisations and who must constantly worry about the potential of being discriminated against by current, or future, service operators. Every extra second employees spend hiding who they are for fear of mistreatment is one less second they are able to devote to providing the best possible care to consumers.

  1. Avoid unnecessary barriers to workforce entry and facilitate the attraction and retention of aged care workers

Allowing discrimination against current and potential employees simply because they are lesbian, gay, bisexual and transgender seems to be the definition of unnecessary.

  1. Promote consumer-directed care

This is an often-overlooked problem created by the current inconsistent approach adopted in sub-section 37(2) of the Sex Discrimination Act: while LGBT people accessing government-funded aged care services operated by religious organisations have the right to be out, employees of the same services do not.

The absence of ‘out’ LGBT employees – and the (understandable) reluctance of LGBT workers to disclose their sexual orientation and/or gender identity in the workplace, even to LGBT residents – actually heightens the isolation LGBT residents may feel, at a time when they are already facing increased loneliness.

  1. Avoid duplicative regulatory requirements for providers and workers operating across sectors

It is inconsistent to determine that an employee is capable to provide aged care services in one government-funded facility, but not another, simply because of their sexual orientation and/or gender identity. The role is essentially the same. The qualifications for performing it should be, too.

  1. Protect the rights of workers

This is perhaps the most obvious of the objectives – a person’s sexual orientation and/or gender identity is irrelevant to their ability to perform the role of an aged care worker. It is unnecessary, and above all unjustified, discrimination to allow these workers to be fired, or refused to be hired, just because of who they are.

  1. Minimise the cost to workers, providers, consumers and governments

Encouraging more people to train to be aged care workers, but then allowing them to be discriminated against because they are lesbian, gay, bisexual and transgender, is inherently wasteful.

It is a waste of the individual’s time, and in many cases, money (both spending to obtain the necessary qualifications, and lost income because of discrimination). It is wasteful for governments, who subsidise their training and must train even more people to replace those who may be lost to the industry because of discrimination. And it is wasteful for consumers, who miss out on the best possible care because of an irrelevant attribute.

Based on all of these arguments, and while I acknowledge the Consultation Paper’s arguments in favour of enhanced screening and/or registration requirements for aged care workers, I submit that the first step to improve the quality of the aged care workforce should be to remove an existing, unnecessary and harmful de facto screening process.

That is to remove the ability of government-funded aged care services operated by religious organisations to discriminate against employees and potential employees on the basis of their sexual orientation and/or gender identity.

This would obviously have a positive outcome for LGBT aged care workers, including making their retention in the overall industry more likely.

Above all, it would improve the quality of aged care provided in Australia – and that would meet the objectives of any aged care worker regulation scheme.

Recommendation: That sub-section 37(2) of the Sex Discrimination Act 1984 (Cth) be amended to remove the ability of government-funded aged care services operated by religious organisations to discriminate against LGBT employees and potential employees.

Thank you in advance for considering this submission. Please do not hesitate to contact me at the details provided if you require additional information.

Sincerely

Alastair Lawrie

Richard Colbeck

Minister for Aged Care and Senior Australians, Senator the Hon Richard Colbeck

Discrimination Under the Cover of Corona

Coronavirus. SARS-CoV-2. COVID-19. Whatever you call it, it has been the biggest single story of this century (so far). Challenging health systems, governments, economies and communities – its dominance of the news cycle has overshadowed all other issues.

Of course, that does not mean those other challenges have gone away – especially climate change. Indeed, many existing problems have been exacerbated by, or exacerbated the negative impact of, coronavirus, including wealth inequality. Discrimination has sadly also been turbo-charged by the virus, with many disturbing examples of anti-Chinese and anti-Asian racism reported during the past few months.

But, as an LGBTI advocate, it is another type of mistreatment I want to focus on here: discrimination on the basis of sexual orientation and/or gender identity. While less prominent to date in comparison to racism, I am concerned about a potential outbreak of anti-LGBT discrimination under the cover of corona, in at least three ways:

  1. Discrimination in employment

Even with the Government’s temporary JobKeeper program, Australia’s unemployment numbers are expected to at least double between March and June 2020. We could see more than 1,000,000 people permanently lose their jobs in this period alone (not to mention many more who will have their hours, or pay – or often both – reduced).

While in many workplaces, the entire staff will be terminated, elsewhere employers will keep on some employees while dismissing others. With this process happening across so many businesses, small and large, and across so many sectors, simultaneously, it is inevitable some will (ab)use this opportunity to sack people for illegitimate reasons, including bosses firing LGBT workers simply because of who they are.

Even where homophobia, biphobia and transphobia are not ‘explicit’ in this way, some employers may take irrelevant factors into consideration in making their decisions – such as whether the employee has a partner, whether that partner is also employed, and whether they have children to support. Such discrimination, on the basis of marital or relationship status, or family responsibilities, is likely to disproportionately harm LGBT employees.[i]

For a variety of reasons, we will likely never know the full extent of anti-LGBT discrimination in employment during this crisis – although it should be noted the Sydney Morning Herald is already reporting that:

‘The number of workers raising issues with unfair dismissals has surged because of the coronavirus shutdown, with 65 per cent more employees bringing cases to the national industrial tribunal last month [April] than the same time last year.’ 

  1. Discrimination in service delivery

One serious problem highlighted by the coronavirus crisis has been the ‘hollowing out’ of governments, at all levels, and corresponding outsourcing of what should be public services to the private sector.

In particular, a disturbingly high proportion of essential social services in Australia are now delivered by religious organisations, despite usually using public monies. This includes housing and emergency accommodation, community support, food and even healthcare.

At a time when many Australians will be accessing these services for the first time, lesbian, gay, bisexual and transgender people will have the additional worry of whether such faith bodies will refuse to serve them, or treat them differently to cisgender heterosexual people in the same circumstances.

This is not to suggest that all or even most of these religious organisations will engage in homophobic, biphobic or transphobic discrimination – but some of these services inevitably will, to the detriment of LGBT Australians when they are at their most vulnerable.

  1. Anti-LGBT vilification

The third potential outbreak which concerns me is anti-LGBT vilification. That is, attacks on lesbian, gay, bisexual and transgender individuals – and the LGBT community more broadly – claiming that we are somehow responsible for promulgating the coronavirus, or deserving of infection because of our supposed ‘sinful lifestyles’.

This is not a hypothetical fear, either. At the start of April, Melbourne Jewish radio station J-AIR broadcast the following homophobic and transphobic comments from a Rabbi Kessin:

‘And basically he’s [god’s] 98% finished, that’s how close we are to redemption. Therefore god wants to do is bring the redemption. However, there are certain problems that must be addressed by god in order for the redemption to actually happen. And what we begin to see is that the pandemic is an exact designer drug, if you want to use that expression, that will remove these problems.

Ah, in other words, the plague itself is a vehicle, is an instrument, to accelerate the messianic process by removing these major problems. What are they? You see. So therefore what we see is the following.

The first major problem is that man has corrupted his nature. There is a tremendous amount of, ah, what’s called immorality in the world today. It’s widespread. There’s, in Hebrew it’s called “prichus”. We want, we could say it’s also in the form of homosexuality, and gays and so on and so forth, where all of a sudden the gender differentiation is, is tremendously blurred. So that is an incredible corruption of man’s nature.’

There are, obviously, strong echoes of the homophobic vilification endured by the gay and HIV-positive community as part of the HIV/AIDS epidemic. And we learnt from that experience that more bigots will emerge in the months ahead claiming that coronavirus is ‘divine punishment’ of the LGBT community for having the temerity to exist.

These three risks – anti-LGBT discrimination in employment, and service delivery, and anti-LGBT vilification – demonstrate the importance of robust anti-discrimination and vilification protections. Unfortunately, they also reveal serious weaknesses in Australia’s existing anti-discrimination and vilification framework, in at least four ways:

  1. Onus on complainants

Australia’s anti-discrimination laws are primarily complaint-based, which means responsibility falls on the victims of discrimination to pursue justice against their discriminator(s).

This is a problem at the best of times. That includes because of the usual significant power imbalances involved: between employee and employer; member and group; individual accessing services and service delivery organisation; customer and business; and more.

The burden of making a discrimination complaint should also not be underestimated, including the cost in both time and resources (such as obtaining legal advice, which can be costly), as well as the impact on mental health through stress. It is no surprise that many people who experience discrimination ultimately choose not to lodge a complaint.

And of course the coronavirus crisis means now is far from the best of times. Power imbalances are exacerbated, financial and other stresses already heightened. Even where LGBT Australians experience unequivocal discrimination, the problems of a complaint-based system mean they may not exercise their legal rights but instead focus on more immediate concerns (like where they are going to live, and how they will pay for food, electricity and other essentials).

Now more than ever our anti-discrimination laws should be improved by making it easier for organisations, such as trade unions, to make representative complaints on behalf of vulnerable individuals, as well as strengthening the powers of bodies like the Australian Human Rights Commission and its state and territory equivalents to investigate instances of discrimination even in the absence of individual complainants.

  1. Difficult to prove

Even where a victim of discrimination does choose to lodge a formal complaint, it can sometimes be difficult to prove, at least to the required legal standard.

This will not come as a surprise to most LGBT Australians – or indeed to members of other minority groups in the community. Almost all of us will have experienced multiple instances of mistreatment, where you know without a doubt that your sexual orientation, or gender identity, or sex, or race, or disability, or combination of these, is the motivation – while also knowing it would difficult to establish without an explicit admission by the perpetrator.

The coronavirus crisis, and the associated economic crisis, will only worsen this problem, with employers able to say they abandoned usual procedures because of the scale and speed of the challenge they were facing (and the potential they are given the benefit of the doubt in many circumstances, too). This doesn’t mean there was no discrimination – but it could make already high barriers even harder to overcome for the victims.

  1. Religious exceptions

Regular readers of this blog would be well aware of this major flaw in Australians LGBT anti-discrimination laws. Specifically, under the Commonwealth Sex Discrimination Act 1984, and Fair Work Act 2009 (Cth), and the anti-discrimination laws of most state and territories (other than Tasmania’s best practice Anti-Discrimination Act 1998), it is entirely lawful for religious organisations to discriminate against employees, and people accessing services, on the basis of sexual orientation and gender identity.[ii]

This means that it is legal for a faith-based homeless service in Sydney to deny shelter to someone because they are lesbian, or for a religious-run welfare service in Melbourne to reject a client because they are trans. It also means these organisations can refuse to hire, or even fire, employees because of their sexual orientation or gender identity – which is especially concerning when these bodies may be given more public funding to address the challenges of the next 12 to 18 months, making them one of the few places actually hiring.

In order for lesbian, gay, bisexual and transgender Australians to enjoy the same employment opportunities, and receive the same level of support, as everyone else, religious exceptions to anti-discrimination laws must be repealed.

  1. Gaps in vilification protections

The fourth serious weakness in our current legislative framework is the fact that only a minority of jurisdictions protect LGBT people against vilification. The biggest gap is obviously at Commonwealth level, where there remains no sexual orientation or gender identity equivalent of section 18C of the Racial Discrimination Act 1975.

But there is also no anti-LGBT vilification coverage in Victoria[iii] (meaning the earlier comments on a Melbourne Jewish radio station were likely lawful), or in Western Australia, South Australia or the Northern Territory.

Even where vilification protections exist, their coverage is sometimes incomplete. For example, civil prohibitions on vilification in the NSW Anti-Discrimination Act 1977 only protect lesbians and gay men, and binary transgender people.[iv] Bisexuals, non-binary and intersex people need not apply (or complain).

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These four problems, with Australia’s LGBTI anti-discrimination and anti-vilification laws, are obviously major. But they do not mean all such legal claims will be unsuccessful – merely that people should be aware of the potential pitfalls along the complaints journey that awaits them.

I should also be clear that this isn’t legal advice, either – after all, I am not currently a practising lawyer. However, if you are lesbian, gay, bisexual, transgender or intersex and do experience discrimination or vilification, and are considering your options, there are places where you can seek advice. These include:

The Inner-City Legal Centre in Sydney

The LGBTIQ Legal Service in Melbourne

The LGBTI Legal Service in Brisbane

The HIV/AIDS Legal Centre in Sydney

Or you could contact the local Community Legal Centre in your area. A searchable map is located on the Community Legal Centres Australia website.

Alternatively, you could try the Legal Aid services in your respective state or territory.

The above organisations may assist you in determining whether you wish to make a complaint – and where. They may also be able to provide you with legal representation if you do complain.

Nevertheless, it is not compulsory to obtain advice, or be represented, in order to make an anti-discrimination, or anti-vilification, claim. You could instead decide to go directly to the relevant human rights body. These include:

The Australian Human Rights Commission for discrimination complaints, including employment discrimination [remembering that there are no LGBTI vilification protections under Commonwealth law]

The Fair Work Commission if the complaint relates to employment discrimination only [noting that only lesbian, gay and bisexual people can apply – because the Fair Work Act 2009 (Cth) does not cover gender identity or intersex status/sex characteristics][v]

Anti-Discrimination NSW

The Victorian Equal Opportunity and Human Rights Commission

The Queensland Human Rights Commission

The WA Equal Opportunity Commission

The SA Equal Opportunity Commission

Equal Opportunity Tasmania

The ACT Human Rights Commission

The NT Anti-Discrimination Commission

A lot has been written in recent months about the coronavirus ‘not discriminating’. That SARS-CoV-2 is the ‘great leveller’. That in response to COVID-19 we are now all supposedly playing on the same team (namely ‘Team Australia’).

Of course, that simplistic slogan simply isn’t true. Just like life before the ‘rona, the rich will have fewer adverse outcomes than the poor. Aboriginal and Torres Strait Islander people will continue to experience extremely high rates of disadvantage.

Racial minorities, especially Chinese-Australians and other people from Asian backgrounds, will endure even greater levels of racism than before the pandemic. Prime Minister Scott Morrison is fond of telling Australians to ‘get out from under the doona’. He needs to also pay attention to the increased racist abuse which has sadly – but entirely predictably – emerged from under the covers.

As we have seen, lesbian, gay, bisexual and transgender Australians, as another vulnerable group, are at risk, too – of increased discrimination in employment, in service delivery, and through vilification.

If that happens to you, there may be legal remedies available, including under Commonwealth, state and territory discrimination laws, or the Fair Work Act. As discussed earlier, there may also be good reasons why you ultimately choose not to make a complaint under any of these processes.

But one reason homophobic, biphobic and transphobic bigots shouldn’t be allowed to get away with anti-LGBT discrimination or vilification is that you simply weren’t aware of the options available.

Christian Porter

Commonwealth Attorney-General should spend more time fixing problems with our existing anti-discrimination laws, and less time trying to introduce a Religious Discrimination Bill that would only exacerbate them.

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Footnotes:

[i] Acknowledging of course that traditionally, and unfortunately still today, the most likely targets of discrimination on the basis marital or relationship status, or family responsibilities, are women.

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

[iii] Although there is currently a Victoria Parliament inquiry considering expansion of the Racial and Religious Tolerance Act 2001 (Vic) to cover sexual orientation, gender identity and intersex status. See my submission to that inquiry here.

[iv] Although the criminal offence of publicly threatening or inciting violence, added to the Crimes Act 1900 (NSW) in 2018, does cover all of sexual orientation, gender identity and intersex status. For more on the problems of LGBTI anti-discrimination law in NSW, see What’s Wrong With the NSW Anti-Discrimination Act 1977?

[v] For more, see Unfairness in the Fair Work Act.