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.

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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).

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Welcome to Sydney: Australia’s Capital of Homophobia, Biphobia and Transphobia

Over the past week, the Australian media has been busy re-living the Sydney 2000 Olympics during its 20thanniversary. While this trip down nostalgia lane has been a welcome distraction from the living nightmare that is 2020, it has also been a reminder of the lost opportunity to build on that brief moment of unity.

To borrow from a certain fracking drag queen reality TV host, in the two decades since the Olympics Sydney[i] has been ‘resting on pretty’.

In terms of the lesbian, gay, bisexual, transgender and intersex (LGBTI) community, the situation could just as easily be described as ‘resting on party’.

Known around the world for the Gay & Lesbian Mardi Gras Parade, Party and Festival, Sydney’s reputation as an LGBT-inclusive city is not reflected in the reality of its laws, politics and media.

Indeed, in terms of legal rights, Sydney and the state of NSW now have the worst LGBTI laws of any jurisdiction in Australia. If that sounds like a hyperbolic claim, consider this:

For lesbians and gay men, the NSW Anti-Discrimination Act 1977 (ADA) offers the weakest protections against discrimination of any state and territory anti-discrimination law.

That is because the exceptions in section 56(d) – allowing religious organisations to lawfully discriminate against us – are the equal-broadest in the country (and a long way behind the best practice laws in Tasmania), while NSW is the only place to allow all private schools, religious and non-religious alike, to discriminate against students, teachers and other staff on the basis of their sexual orientation and gender identity.

For bisexuals, the situation is even worse. The ADA is the only anti-discrimination law in Australia that does not actually protect bisexual people against discrimination. At all. 

For trans and gender diverse people, NSW’s laws – covering multiple areas of life – are also the worst in the country.

The ADA only protects transgender people with binary gender identities (‘male-to-female’ or ‘female-to-male’), while excluding people who identify as non-binary (although, sadly, it is not the only jurisdiction to do so: Victoria, Queensland, Western Australia, South Australia and the Northern Territory also offer limited protection). 

As with lesbians and gay men, however, the ADA allows all private schools, even those that are non-religious, to discriminate against transgender students, teachers and other staff.

NSW also has the equal-worst framework for trans and gender diverse people to access birth certificates reflecting their gender identity: alongside Queensland, it still requires surgery in order to obtain new identity documents. Unlike Queensland, however, there has been zero indication the NSW Government is interested in removing this unjust and unnecessary hurdle.[ii]

Intersex people might be the only LGBTI group in respect of which NSW does not have the outright worst laws in Australia. Sadly, that’s more due of the lack of progress in the majority of states and territories, than it is because of any particular progress on intersex law reform here.

The ADA does not provide anti-discrimination protection on the basis of ‘intersex status’[iii] or ‘sex characteristics’[iv] – although neither does Victoria, Queensland, Western Australia or the Northern Territory.[v]

Meanwhile, no Australian jurisdiction has prohibited the ongoing human rights abuses that are unnecessary surgeries and other involuntary medical treatments on children born with intersex variations of sex characteristics.

In encouraging news, the Tasmanian Law Reform Institute recommended criminalisation of non-consensual, deferrable medical interventions on children in June 2020, while the Australian Human Rights Commission is currently also engaged in a project on this issue. However, as far as I am aware, there is no equivalent work being undertaken by the NSW Government.

Finally, Queensland recently introduced prohibitions on sexual orientation and gender identity conversion practices (albeit only within healthcare settings), while the ACT passed more comprehensive reforms which targeted conversion practices more broadly, including in religious environments.

Bans on gay and trans conversion practices are also seriously being considered in South Australia, Tasmania and Victoria. However, once again, there have been no signs whatsoever that the NSW Government, or Parliament, are interested in ending this psychological torture.

Overall, then, it is clear that on contemporary LGBTI law reform issues – from expanding anti-discrimination protections, enacting birth certificate reform, ending non-consensual medical interventions on intersex children, to eradicating gay and trans conversion practices – NSW is a laggard.

Sydney might be a beautiful city, but on LGBTI rights NSW is undeniably backward.

Some people might argue that the people of Sydney are more accepting of the LGBTI community than their politicians. And that may be partly true, especially in pockets of the city. However, the outcome of the 2017 same-sex marriage law postal survey contradicts that view.

NSW was the only state or territory in Australia where the Yes vote for marriage equality was lower than 60%: just 57.8% of people in NSW supported removing anti-LGBTI discrimination from the Marriage Act 1961(Cth). The next lowest state was Queensland, but its result was nearly 3 points higher (60.7%).

More damningly, only 17 electorates around Australia did not record a majority Yes vote. 12 of those were found in metropolitan Sydney,[vi] including the seven electorates with the highest No vote (reaching up to 73.9% No in Blaxland).

Based on this (admittedly context-specific) example, Sydney has the highest rates of homophobia, biphobia and transphobia in the entire country.

The history of marriage equality in Australia is just as illustrative of the corrosive impact politicians from Sydney have had on the rights of all LGBTI Australians.

The Liberal Prime Ministers who first banned marriage equality (John Howard), first proposed to hold an unnecessary, wasteful, divisive and harmful public vote on our rights (Tony Abbott),[vii] actually held that vote (Malcolm Turnbull) and paid for it (Scott Morrison, as Treasurer), were all from Sydney.

Morrison in particular is on track to be the worst Prime Minister on LGBTI issues in Australia’s history, from his ‘gender whisperer’ comments, to his broken promise to protect LGBT students against discrimination, and the proposed Commonwealth Religious Discrimination Bill which overrides, and undermines, existing LGBTI anti-discrimination protections. 

It is likely no coincidence Sydney is the home of News Corp Australia, where it publishes Bernard Lane’s campaign against trans-affirming healthcare (in The Australian) and Miranda Devine’s columns targeting LGBTI-inclusive education (in the Daily Telegraph).

Perhaps the most depressing realisation of all is that, in September 2020, there is more chance things will get worse rather than better.

As we have already seen, there are no public signs the NSW Government is interested in reforming trans and gender diverse access to birth certificates, ending non-consensual medical interventions on intersex children, or banning gay and trans conversion practices.

Nor is there any current indication they will act to modernise the nation’s worst LGBTI anti-discrimination law, to include bisexuals, non-binary people and intersex people, and repeal the exceptions which allow religious organisations, and private schools, to lawfully discriminate against our community.

Even at a procedural level, the NSW Government does not have a formal LGBTI consultative mechanism, unlike the Victorian LGBTIQ Taskforce, Queensland LGBTI Roundtable, ACT LGBTIQ+ Ministerial Advisory Council, and a range of long-standing Tasmanian LGBTIQ+ Government working groups.

On the other hand, while there are no legislative proposals to improve the rights of LGBTI people currently before NSW Parliament, there are several Bills which, if passed, would set our legal rights back even further.

That includes the Mark Latham/One Nation Anti-Discrimination (Religious Freedoms and Equality) Bill 2020, that would undermine our existing, limited protections against discrimination, which the Government and Opposition nevertheless saw fit to refer to a Joint Select Committee for consideration.

And then there’s the truly awful Education Legislation Amendment (Parental Rights) Bill 2020 – also from Latham/One Nation – which not only seeks to erase trans and gender diverse students and teachers entirely from all NSW schools, but also attempts to introduce a UK ‘section 28’-style provision making life difficult for all LGBTI kids, while introducing an erroneous and stigmatising legislative definition of intersex, too.

That Bill has also been referred to a Parliamentary Committee for inquiry – with the Committee chaired by Mark Latham himself.

We are now 18 months into the Berejiklian Liberal/National Government’s term. It is time for them to step up – not just to defend LGBTI people in NSW against Mark Latham’s, and One Nation’s, attacks on our community, by rejecting outright his deeply flawed ‘religious freedom’ and anti-trans kids legislative proposals.

But also to make long-overdue progress on other important issues, including birth certificate changes, protecting intersex kids, ending conversion practices and engaging in broader anti-discrimination reforms.

As of this week, they have 30 months left until the next State election. How they use their time between now and 25 March, 2023, will determine whether NSW will continue to have the worst LGBTI laws in Australia, or at least something closer to the national average.

There is another significant event in Sydney from mid-February to early March in 2023 which is highly relevant to this conversation: World Pride will be hosted by the Sydney Gay & Lesbian Mardi Gras.

Assuming it is not cancelled because of coronavirus, large numbers of LGBTI eyes from around the globe will be focused squarely on us. The world already knows Sydney puts on a good party, Olympics, Mardi Gras or otherwise. But during World Pride they will also be looking at the State of our rights.

If the NSW Government doesn’t undertake essential, and long overdue, reforms in the next two-and-a-half years, we will be greeting our international guests by saying ‘Welcome to Sydney: Australia’s capital of homophobia, biphobia and transphobia’.

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Take Action

Of course, it doesn’t have to be this way. There are at least three things you can do to avoid that potential embarrassment (a good outcome) and make the lives of LGBTI people in NSW better on a day-to-day basis (a great one):

  1. Get involved

For too long, the burden of fighting for our rights has been borne by too few. There are a range of different organisations you can join or support to help make a difference, including:

And there are plenty of others too (including Union Pride, as well as LGBTI advocacy groups within political parties). 

2. Defend our community against attacks

As the above article (hopefully) makes clear, LGBTI rights in NSW are currently under attack by Mark Latham.

You can help the campaign against One Nation’s Education Legislation Amendment (Parental Rights) Bill, aka the anti-trans kids Bill, in the following ways:

  • Sign the Gender Centre, just.equal and AllOut petition 
  • Sign Sam Guerra’s individual Change.Org petition (which is already over 80,000 signatures), and
  • Use Equality Australia’s platform to write to the Premier, Deputy Premier, Education Minister, Opposition Leader and Education Minister here.

You can also find out about, and take action against, the One Nation Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020 on the Equality Australia website here.

3. Support campaigns for positive change

A lot of our time, at both NSW and Commonwealth level, is currently being spent fighting against proposals that would take our rights backward. That is necessary and important work – but we won’t achieve progress without campaigns which seek to make our existing laws better.

Whether it is anti-discrimination law reform, improving birth certificate access, ending non-consensual medical interventions on intersex children, or banning gay and trans conversion practices – or a wide range of other important LGBTI issues – find a campaign and help drive it forward.

Positive change doesn’t happen in a vacuum, it happens when we use our voice.

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Footnotes:

[i] I should clarify here that this post is about the small ‘c’ city of Sydney (meaning the large metropolitan area of 5 million people), and not the capital ‘C’ City of Sydney Council, which is largely progressive.

[ii] Disappointingly, the Queensland Government has failed to make progress on birth certificate reform since its 2018 Discussion Paper, and, as far as I am aware, have not promised to take action on this issue even if they are re-elected on 31 October.

[iii] Which is a protected attribute in both the Sex Discrimination Act 1984 (Cth) and Equal Opportunity Act 1984 (SA).

[iv] Which is the preferred protected attribute for intersex advocates, as per the March 2017 Darlington Statement, and was recently included in the Discrimination Act 1991 (ACT), while the Tasmanian Anti-Discrimination Act 1998 covers ‘intersex variations of sex characteristics’.

[v] ‘Intersex status’ was included in the 2018 amendments to the Crimes Act 1900 (NSW), which prohibited ‘public threats of violence on grounds of race, religion, sexual orientation, gender identity or intersex or HIV/AIDS status’, although to date this legislation has still not been used.

[vi] Of the other five, three were in regional Queensland, and two were in suburban Melbourne. Zero electorates in Western Australia, South Australia, Tasmania, the ACT and the Northern Territory voted No.

[vii] Tony Abbott’s decision, as Opposition Leader, to deny Coalition MPs and Senators a conscience vote also cruelled any chance of Stephen Jones’ 2012 marriage equality legislation being passed.

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.

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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

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?

I Stand With Trans Kids, and Against Mark Latham

Wednesday 5 August 2020 saw the introduction of the most damaging legislative attack on lesbian, gay, bisexual, transgender and intersex (LGBTI) rights in Australia this century: Mark Latham’s Education Legislation Amendment (Parental Rights) Bill 2020.

Don’t let the innocuous title fool you. This Bill seeks nothing less than the total erasure of any and all trans and gender diverse content, inclusion programs and even counselling from every school in NSW, government and non-government alike. In doing so, it seeks to completely erase trans and gender diverse kids, too.

It does this by adding the following definition to the Education Act 1990 (NSW):

gender fluidity means a belief there is a difference between biological sex (including people who are, by their chromosomes, male or female but are born with disorders of sexual differentiation) and human gender and that human gender is socially constructed rather [than] being equivalent to a person’s biological sex.

This definition effectively excludes the very existence of trans and gender diverse people.

Latham’s Bill then prohibits the inclusion of anything to do with ‘gender fluidity’ from all courses approved for use in schools across NSW.

And it prohibits not just ‘the teaching of gender fluidity’ (proposed section 17A), but also any ‘instruction, counselling and advice provided to students by:

  • non-teaching school executives;
  • non-teaching school counsellors,
  • non-teaching staff, contractors, advisors and consultants of a school,
  • non-school based staff, contractors, advisors and consultants of a school, and
  • volunteers at a school’ (proposed section 17C).

Everyone – from teachers, to principals, counsellors, and parents volunteering in the classroom or the tuckshop – must adopt an official silence on anything to do with trans and gender diverse people.

The consequences for teachers breaching this silence are severe: the Bill proposes amendments to the Teacher Accreditation Act 2004 (NSW) that would cancel the accreditation of any teacher who even acknowledges that trans and gender diverse people are a thing.

As Latham stated in his Second Reading Speech:

My bill outlaws gender fluidity teaching, course development and teacher training and ends the accreditation, and thus the employment, of any individual breaking that law.

Of course, the consequences for trans and gender diverse students are far worse. They will be made to feel completely invisible, with no information about who they are, let alone reassurance who they are is okay.

There will be no trans and gender diverse content in health and physical education classes, at any age, or in any other subject, either. History, literature, indeed all of the social sciences, must be purged of any reference to trans and gender diverse characters and people. As Penny Sharpe MLC interjected during Latham’s speech, this is book-banning writ large.

Trans and gender diverse students will have nowhere to turn for assistance. School counsellors, who are supposed to help all students, will be prohibited from even talking about gender identity issues with them.

Even sympathetic teachers will feel compelled to pretend that the trans and gender diverse kids in their classrooms, sitting right in front of them, do not exist. They will be encouraged to misgender and deadname them, or jeopardise their careers. They would likely be unable to intervene to stop transphobic bullying and harassment of these kids as well.

Because to acknowledge that trans and gender diverse kids exist would be to acknowledge that sex is different to gender, and that gender exists on a spectrum.

Tragically, the purging of all trans and gender diverse content from courses, the invisibilisation of trans and gender diverse kids themselves, and the removal of all support from teachers, counsellors and others, will inevitably lead to trans and gender diverse kids killing themselves.

But then that’s possibly the point. The Education Legislation Amendment (Parental Rights) Bill 2020 appears to be built on the ideology that it is better for a child to be dead than to be happy, well-adjusted and trans or gender diverse.

Before moving on, we should also highlight the serious problems this legislation will cause for trans and gender diverse employees. It seems likely that identification as non-binary will be prohibited – teachers, and other staff, would not be able to insist on the use of they/them pronouns, or other non-gendered language. They would be forced to deny who they are.

The situation for binary trans teachers and other staff would be nothing short of horrifying. If anyone in the school community, from students to other staff and even parents, became aware of their gender identity, and decided to weaponise it against them, they would be unable to defend themselves, because again to do so would be to affirm sex is not gender. They too would be powerless to stop themselves from being deadnamed and misgendered.

The attack on trans and gender diverse people, and especially trans and gender diverse kids, in this legislation is brutal. But other parts of the LGBTI community aren’t spared either.

That’s because the Bill also establishes a new framework in the Education Act 1990 (NSW) which restricts teaching around a wide range of issues. These are framed as ‘matters of parental primacy’, and defined as:

in relation to the education of children, moral and ethical standards, political and social values, and matters of personal wellbeing and identity including gender and sexuality.

It would then allow parents and guardians to remove their child from any course that even mentions sexuality (proposed section 17D) – meaning any class, from health and physical education, through any of the social sciences, which dares to state that lesbian, gay and bisexual people exist.

It would also compel schools to consult with parents and guardians at the start of each year about any course which includes anything to do with sexuality (proposed section 17E) and then attempt to teach that course consistently with ‘the moral and ethical standards and the political and social values of parents of students’ (proposed section 6(o)).

Of course, given it is impossible to teach any course consistent with the political and social values of all parents, and the significant administrative hurdles involved, most schools will simply jettison all courses that mention anything to do with same-sex attraction. Lesbian, gay and bisexual content will be purged just like trans and gender diverse information before it.

Even where schools do decide to include this information, proposed section 17B would intervene to limit its effectiveness:

17B Teaching to be non-ideological

In government schools,[i] the education is to consist of strictly non-ideological instruction in matters of parental primacy. The words non-ideological instruction are to be taken to include general teaching about matters of parental primacy as distinct from advocating or promoting dogmatic or polemical ideology.[ii]

The impact of this clause is potentially far-reaching. After all, if some parents believe homosexuality is ‘sinful’, then presumably it would be ‘ideological’ for a school to teach being lesbian, gay or bisexual is okay. And if some parents assert all sex outside marriage is prohibited, and that LGB people must be celibate, then it could be ‘ideological’ to provide safer sex education at all, but especially about non-heterosexual intercourse.

The use of the words ‘advocating or promoting’ is especially concerning. This provision is, in effect, an Australian equivalent of the UK’s notorious section 28, which was introduced by the Thatcher Government in 1988, and persisted until 2003 when it was finally repealed.

Section 28 of the Local Government Act 1988 (UK) stated that a local authority ‘shall not intentionally promote homosexuality or publish material with the intention of promoting homosexuality’ or ‘promote the teaching in any maintained school of the acceptability of homosexuality as a pretended family relationship.’

The word ‘promotion’ was interpreted broadly, meaning many teachers and schools simply refused to discuss anything to do with same-sex attraction, lest they be accused of ‘promoting’ it. This clause caused a generation of same-sex attracted students to be abandoned, left alone, scared and confused, and without access to safer sex education at the height of the HIV epidemic.

Mark Latham’s section 17B would have the same chilling effect as section 28 – teachers, principals, counsellors and volunteers (including parents) would fear telling a struggling lesbian, gay or bisexual student that who they are is perfectly okay, because it could be seen as promoting an ‘ideological’ view.

While on first glance the provisions of the Education Legislation Amendment (Parental Rights) Bill 2020 which apply to sexuality appear to be less harsh than the more direct attack on trans and gender diverse kids, the outcome could nevertheless be the same – silence, invisibility and lack of support, leading to dead children.

Finally, it should be noted that the provisions of this Bill are damaging to intersex kids too.

The definition of ‘gender fluidity’, reproduced above, includes this phrase: ‘including people who are, by their chromosomes, male or female but are born with disorders of sexual differentiation’, which is presumably a reference to people born with intersex variations of sex characteristics.

Except intersex variations of sex characteristics are not *disorders*, and the use of this terminology is particularly destructive, reinforcing stereotypes that these differences are wrong and something to be ‘corrected’. This term therefore increases the stigmatisation of intersex children, and will lead to further unnecessary and harmful medical and surgical interventions – an ongoing human rights abuse that must be ended, not perpetuated.

Mark Latham’s Education Legislation Amendment (Parental Rights) Bill 2020 is a direct assault on all parts of the LGBTI community, and especially LGBTI children. Above all, it seeks to completely erase trans and gender diverse content, inclusion programs and counselling from every school in NSW – and thereby erase trans and gender diverse kids themselves.

That’s why, in my view, it is the most damaging attack on the LGBTI community this century. Worse than John Howard’s original ban on same-sex marriage. Worse than the Morrison Government’s proposed Religious Discrimination Bill (although it also has far-reaching negative consequences for LGBTI Australians). Worse even than Latham’s own Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020.

Because it is a calculated and deliberate campaign against the most vulnerable among us.

It is a transphobic (and homophobic, and biphobic, and intersexphobic) agenda that we must resist with all our resources.

Unfortunately, we are already off to a bad start, with the NSW Legislative Council also voting on Wednesday to refer this legislation to Portfolio Committee No. 3 – Education, for inquiry. For those who are not aware, the chair of that Committee is … Mark Latham himself.

Which means we will need to appeal directly to the other members of the Committee to reject his proposal:

  • Matthew Mason-Cox (LIB, Deputy Chair)
  • Anthony D’Adam (ALP)
  • Wes Fang (NAT)
  • Scott Farlow (LIB)
  • Courtney Houssos (ALP), and
  • David Shoebridge (GRNS).

Ultimately, and perhaps somewhat ironically, the debate surrounding a Bill which explicitly mentions ‘moral and ethical standards, political and social values’ is a test of character for the Members of the NSW Parliament.

The question is one for NSW Premier Gladys Berejiklian, and Opposition Leader Jodi McKay: do you stand with trans and gender diverse kids, and LGBTI kids generally, or do you support a Bill that purges LGBTI content from classes, removes support from teachers, counsellors and others, and renders LGBTI kids themselves invisible?

Most importantly, they must make their decision quickly, and rule out supporting the Education Legislation Amendment (Parental Rights) Bill 2020, before the inevitable toxic debate, inside and outside Parliament, led by Latham and backed by his cheerleaders in the right-wing media.

I stand with trans kids, and against Mark Latham. What about you Gladys and Jodi?

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.

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Mark Latham’s Education Legislation Amendment (Parental Rights) Bill 2020 is a worse attack on the LGBTI community than John Howard’s 2004 ban on same-sex marriage.

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

Footnotes:

[i] Presumably, non-government schools will be able to be ‘ideological’ and provide instruction which condemns same-sex attraction.

[ii] Section 17B ends with: ‘For the avoidance of doubt, this section does not apply to special religious education provided under section 32 of this Act’, which leaves open the possibility that homophobic materials will be able to be distributed in special religious education in government schools.

Opening Statement to Victorian Inquiry into Anti-Vilification Protections

On 25 June, I was invited to give evidence to the Victorian Parliamentary Inquiry into Anti-Vilification Protections. My opening statement, highlighting the need to introduce prohibitions on vilification on the basis of sexual orientation, gender identity and sex characteristics, is published below (the full transcript of my evidence, including answers to questions from members of the Legislative Assembly’s Legal and Social Issues Committee, can be found here).

This evidence builds on my submission to the inquiry in December 2019. The Committee’s original timeline requires them to report by 1 September 2020, although given current circumstances it would of course be understandable for this deadline to be extended. Hopefully, whenever the Committee reports, they recommend that LGBTI Victorians are finally provided with legal protections against vilification.

**********

“Thank you very much for the opportunity to appear today and give evidence on this important topic. I do so as an advocate for LGBTI anti-discrimination law reform for close to two decades. This includes previously serving as the chair of the policy working groups of both Victorian and New South Wales gay and lesbian rights lobbies, although I appear here in a personal capacity. In my comments I will focus on terms of reference 4, ‘comparisons in the operation of the Victorian Act with legislation in other jurisdictions’, and 8, ‘possible extension of protections or expansion of protection to classes of people not currently protected’.

Starting with the comparative approach, it is clear that Victoria has fallen behind the standards set by several other Australian jurisdictions. In my own state of New South Wales protections against vilification on the basis of homosexuality were first added to the Anti-Discrimination Act in 1993, just four years after racial vilification was first prohibited and before passage of the commonwealth Racial Hatred Act 1995. Transgender vilification protections were then added in 1996. While there are limitations to these protections, such as the exclusion of bisexual, non-binary and intersex people, many LG and T people here have enjoyed anti-vilification coverage for close to a quarter of a century.

LGBT people have also been protected against vilification in Queensland for almost 20 years following the inclusion of both sexuality and gender identity in their vilification provisions in 2002. The ACT Discrimination Act has included prohibitions on vilification on the basis of sexuality and transsexuality from 2004, with gender identity replacing transsexuality in 2010 and intersex added in 2016, meaning the ACT’s vilification provisions cover the entire LGBTI community, one of two such laws in the country.

The other jurisdiction to cover all of lesbians, gay men, bisexuals, transgender and intersex people is Tasmania, which has the most extensive anti-vilification laws in Australia. These protections have two parts. Section 19 of the Tasmanian Anti-Discrimination Act prohibits public acts that:

incite hatred towards, serious contempt for, or severe ridicule of, a person or a group of persons …

That section has included sexual orientation from its commencement in 1999, and it included transsexuality within sexual orientation from that time until 2014. Gender identity and intersex variations of sex characteristics were both added in May last year. Section 17 separately prohibits:

conduct which offends, humiliates, intimidates, insults or ridicules another person on the basis of an attribute …

Those provisions have covered sexual orientation, gender identity and intersex status, or intersex variations of sex characteristics, since 2014. From a comparative approach alone, it is disappointing the Victorian Racial and Religious Tolerance Act has not been extended beyond racial and religious vilification since it commenced in 2002.

Turning now to the second issue—the possible extension of protection to classes of people not currently protected—I think the preamble to the Act is quite instructive. Paragraph 3 in particular reads:

… some Victorians are vilified on the ground of their race or their religious belief or activity. Vilifying conduct is contrary to democratic values because of its effect on people of diverse ethnic, Indigenous and religious backgrounds. It diminishes their dignity, sense of self-worth and belonging to the community. It also reduces their ability to contribute to, or fully participate in, all social, political, economic and cultural aspects of society as equals, thus reducing the benefit that diversity brings to the community.

From an LGBTI advocate’s perspective, it seems obvious to me that the exact same description could be applied to my community. Some people are vilified on the ground of their sexual orientation, gender identity or sex characteristics. This conduct is contrary to democratic values because of its effect on us. Homophobia, biphobia, transphobia and intersex phobia diminish our dignity, sense of self-worth and belonging to the community. It also reduces our ability to contribute to or fully participate in all aspects of society as equals and reduces the benefits of diversity.

Explaining this to you in a more structured or systematic way, I would submit (1) sexual orientation, gender identity and sex characteristics are fundamental or inherent human characteristics; (2) lesbian, gay, bisexual, transgender and intersex people are frequently subjected to vilification on the basis of who they are; and (3) that vilification can cause serious harm and should therefore be legally prohibited.

In 2020 the first point is obviously not up for serious debate. In terms of points 2 and 3, I would draw the committee’s attention to a community survey which I conducted at the end of 2016 with 1672 LGBTIQ respondents from around Australia, including 386 in Victoria [*see below]. One of the questions asked, ‘Have you ever experienced verbal harassment or abuse because of your sexual orientation, gender identity or intersex status?’. Overall 74 per cent of respondents answered yes, with 48 per cent of all respondents then reporting at least one instance of verbal harassment or abuse in the previous 12 months.

That is one in two LGBTIQ Australians indicating they were verbally abused in the year 2016 alone, which I should note was before the postal survey. Perhaps unsurprisingly but nevertheless disappointingly, these rates were even higher amongst transgender respondents: 68.3 per cent reported abuse in the previous 12 months. And intersex respondents, 82.2 per cent in the previous year. The rates in Victoria were average for the country, 74.1 per cent reporting abuse or harassment ever and 49.8 per cent in the previous 12 months.

Now I acknowledge that many—indeed, likely most—of these responses would fall short of the legal standard for vilification, but no doubt some would meet it. Taking just one respondent’s experience:

I have been referred to as a tranny and had both my sexuality and gender identity mocked and invalidated repeatedly. I have been told to kill myself an innumerable number of times, including being told to ‘get my teeth and gender straight or kill myself’, and that my gender is ‘cancer’. This is just a short list of the abuse I’ve suffered.

When asked for the location for anti-LGBTI comments in the previous 12 months, 92 per cent of respondents said social media, 83 per cent said politics, 81 per cent religion, 80 per cent media and 67 per cent in a public space. Finally, when asked to explain the impact that witnessing homophobic, bi-phobic, transphobic and intersex-phobic comments had on him, here are just two of the comments received:

They make me feel worthless, like a freak, like I don’t deserve to live, like I don’t deserve anything, like I will be alone forever, like no-one will love me, like I should just kill myself because it would be easier.

And:

… disgust and shame at both myself and Australia. I feel marginalised, oppressed, fearful, frustrated and in some cases terrified of the country I live in.

This brings me back to the preamble of the Racial and Religious Tolerance Act and the benefit that including sexual orientation, gender identity and sex characteristics as protected attributes would bring. In my view it would not only reflect Victoria’s democratic values but enhance the dignity, self-worth and belonging of a significant cohort of Victorians. That would be a positive outcome, and I hope the committee, and the Parliament ultimately, agrees. Thank you.”

*These figures, and quotes, are taken from my 2016 research survey ‘The State of Homophobia, Biphobia and Transphobia’.

No Homophobia No Exceptions (1)

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

If you have enjoyed reading this 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

Australian trans, gender diverse and intersex employees need better protection, too

On Tuesday morning, Australian news sites and social media feeds alike trumpeted the US Supreme Court decision to protect lesbian, gay, bisexual and transgender (LGBT) employees against discrimination.

As with too many issues of social justice, however, it seems our ability to see discrimination clearly is much better from across the vast Pacific Ocean than it is at home.

I wonder how many of those who shared that welcome news are aware the Fair Work Act here does not protect trans, gender diverse and intersex employees against adverse action and unlawful termination?

That’s because the relevant provisions of our industrial law (sections 351 and 772 of the Fair Work Act 2009 (Cth)) cover ‘race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin’ – but not gender identity or sex characteristics (intersex status).

The consequence of this exclusion is that trans, gender diverse and intersex employees who are subjected to abuse at work, or even dismissed, on the basis of who they are cannot make a complaint to the Fair Work Commission.

This lack of protection is particularly harmful given these are populations that already experience low rates of employment.

A recent survey by Equality Australia found that, while the proportion of LGBTIQ+ people aged 25 to 64 years who were unemployed or looking for work increased from 6% pre COVID-19 to 10.8% post COVID-19, for trans and gender diverse people specifically it rose from an already-high 10.5% to a shocking 15.2% now.

That’s almost 1-in-6 trans and gender diverse adults unemployed today, with the potential to go much, much higher in coming months.

I raised the lack of protection for trans, gender diverse and intersex employees with the Turnbull Government in 2018, with then-Minister for Small and Family Business, the Workplace and Deregulation, Craig Laundy, rejecting calls to address this legislative gap, instead pointing to general discrimination protections in the Sex Discrimination Act 1984 (Cth) (SDA).

And it’s true that gender identity and intersex status are covered in the SDA – but this ignores the fact complaints to the Australian Human Rights Commission can take much longer to conciliate, and enforcing them may require action in the Federal Court or Federal Circuit Court, at the risk of significant costs orders against the complainant.

In contrast, arbitration by the Fair Work Commission can be much quicker, and it is generally a ‘no-costs’ jurisdiction.

That’s exactly why sex, sexual orientation, marital status, family responsibilities and pregnancy are covered under *both* the SDA and Fair Work Act, allowing parties to choose an expedited, low-cost resolution if it suits their circumstances.

Women, and even lesbians, gay men and bisexuals, discriminated against in the workplace can exercise that choice. As can employees discriminated against on the basis of race, disability and age, who are all protected by their respective federal discrimination Acts, as well having access to the Fair Work Commission.

That choice is denied to some of the most vulnerable members of our community. Trans, gender diverse and intersex employees are confronted by the possibility of longer wait times, and potentially higher costs, to address the same type of dispute.

Of course, a lot has happened in the two years since Minister Laundy refused to fix this problem. The economic crisis brought on by coronavirus means that the Government, business and unions are now involved in consultations on how to reform the industrial relations regime to get people back to work.

This is an ideal opportunity for Prime Minister Morrison, and Attorney-General Porter – who is also the Minister for Industrial Relations – to help trans, gender diverse and intersex Australians into employment, and to protect them against possible mistreatment once there.

This is obviously not the only employment-related discrimination provision that needs updating (hello LGBT teachers in religious schools outside Tasmania and the ACT, LGBT employees in religious aged care homes and other service delivery organisations outside Tasmania, bisexual employees in the NSW public service, and non-binary and intersex employees in the NSW, Victorian, Queensland, WA and NT public services, too – see A Quick Guide to Australian LGBTI Anti-Discrimination Laws).

Indeed, Australia’s LGBTI anti-discrimination regime could perhaps be described as a ‘patchwork’ – except it is still missing far too many patches and for too many of us it simply doesn’t work.

But it is possibly the problem that is most easily fixed. It would only take a couple of quick legislative stitches to ensure trans, gender diverse and intersex people finally enjoy the cover of the Fair Work Act.

Take Action

As indicated above, the Morrison Government is currently engaged in consultation with business and unions about its coronavirus-related industrial relations reforms. Which means now is the perfect time to ask for the Fair Work Act 2009(Cth) to be amended to cover gender identity and sex characteristics (intersex status). Why not start with the AG himself:

The Hon Christian Porter MP

Attorney-General and Minister for Industrial Relations

PO Box 6022

House of Representatives

Parliament House

Canberra ACT 2600

(02) 6277 7300

Online contact

Twitter: @cporterwa

Update 21 June 2020:

It has been brought to my attention that there is a possibility the Fair Work Commission would interpret ‘sex’ to include gender identity and potentially intersex status, based on this information on their website.

However, this interpretation is open to legal challenge, and may be overturned in the Federal Court. I remain of the view the only way to put workplace protection for trans, gender diverse and intersex people beyond doubt would be to add gender identity and sex characteristics to the Fair Work Act.

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The US Supreme Court decision highlights the lack of Fair Work Act coverage of trans, gender diverse and intersex employees in Australia.

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

Submission to NSW Parliament Inquiry into Gay and Transgender Hate Crimes Between 1970 and 2010 – 57th Parliament

Standing Committee on Social Issues

NSW Legislative Council

via email: socialissues@parliament.nsw.gov.au

Thursday 30 April 2020

 

To the Committee

Submission re Gay and Transgender Hate Crimes Between 1970 and 2010

Thank you for the opportunity to provide this submission on the subject of ‘Gay and Transgender hate crimes between 1970 and 2010’ in NSW.

I do so further to my original submission to the inquiry into the same subject, held in the previous Parliament.

I welcome the decision by the NSW Legislative Council to re-establish an inquiry into this important topic, and continue this work, this term.

In this submission, I endorse the submissions already made to the re-established inquiry by organisations that represent the LGBT community in NSW. This includes the submission made by ACON.

Specifically, I endorse ACON’s comments relating to Recommendation 3 of the Interim Report (‘That the NSW Police Force ensure that all officers have the skills and knowledge to engage with lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) people respectfully and equally’), namely:[i]

The recommendation of the Interim Report relating to the responsibility of the New South Wales Police Force fails to recognise the historical context that this Inquiry examined. We would assert that the NSW Police Force also needs to consider the impact of their policing and its effect on our communities in the past. It is only in conjunction with ongoing reflection on these issues that skills and knowledge will have any effect on the relationship between our communities and the Police.

I also endorse ACON’s comments about the disappointing response to the Interim Report provided by the Minister for Police, the Hon David Elliott:[ii]

ACON believes the response does not adequately take into consideration the overall content of the Committee’s Report on the Inquiry, focusing only on a singular recommendation. The work of the Committee in putting together the Report reflects, to a degree, the personal stories and experiences of community members and organisations. While the Report goes some way to frame these stories in the context of problems with policing and our communities, the response from Minister Elliott downplays these experiences. The brevity of the response, and its ignorance of the full subject matter of the Report, is disappointing…

The crimes that occurred in the past are abhorrent, and the police response to these crimes was negligent at best. These facts are known by our communities. ACON was extremely disappointed that no such acknowledgement was included in Minister Elliott’s response.

Finally, I endorse the call made by ACON for the Committee to seek evidence from NSW Police to assess the four measures that are proposed in the one-page response by Minister Elliott, including how they are being implemented in practice:[iii]

  1. Revised bias crime indicator assessment tools supported by appropriate training packages
  2. A review of internal policies ensuring open-mindedness regarding motive
  3. Ongoing internal ethical and cultural training to specifically include LGBTIQ experiences
  4. Ongoing improvements to ensure bias crimes are centrally captured for state-wide investigations.

I also endorse the submission to the re-established inquiry made by the NSW Gay & Lesbian Rights Lobby. This includes their comments that:[iv]

The trust to which our community can place in the NSW Police Force will continue to suffer as long as the Force continues to come to grips with its culture of homophobia. As per our previous submission, we want to see ongoing education modules relating to LGBTIQ people as a standard of employment for every employee of NSW Police Force, from the Commissioner down. It is no longer good enough to have a handful of ‘trained’ GLLOs, unevenly distributed across the state…

An individual living in any corner of this state should be able to deal with any NSW Police Officer or any other public service employee with confidence, knowing they will be treated equally and respectfully.

I also endorse the NSW Gay & Lesbian Rights Lobby’s submission on the need for anti-discrimination law reform to help address homophobia and transphobia in NSW:[v]

[T]he tacit approval of discrimination must be avoided. Anti-discrimination laws, and their exemptions, have been the subject of wide-spread consideration in recent years. The swift public backlash to exemptions which permit discrimination by religious schools against LGBTIQ people are heartening. However, as yet, the GLRL eagerly awaits the removal of these exemptions. The research and lived experiences … demonstrate how discrimination permitted by laws such as the Anti-Discrimination Act 1977 (NSW) contribute to a culture which sees hate crimes committed against LGBTIQ people.

Finally, I support the submission made by the Pride History Group (submission number 15), and draw the Committee’s attention to the personal accounts of homophobia and transphobia, including homophobic and transphobic violence, which it contains.

In terms of my own substantive comments, I have two criticisms of the Interim Report which I would like to make to the Committee.

The first concerns observations, both in the Chair’s foreword, and in evidence provided by Assistant Commissioner Anthony Crandell of the NSW Police Force, that appears to frame NSW Police as passively reflecting the homophobia and transphobia of NSW society, rather than being an active contributor to this discrimination and intolerance.

For example, the Hon Shayne Mallard MLC wrote on page vii that:

For many decades, pervasive prejudices against LGBTIQ people ran deeply in society. Even with legislative change following the decriminalisation of homosexuality in 1984, bias attitudes were still being perpetuated within the broader community with a legacy that is still keenly experienced today. The ensuing violence and crime against gay and transgender people, particularly in the 1970s, 1980s and 1990s, was shocking, abhorrent and all too common. Amidst this stood a NSW Police Force and a broader criminal justice system with a culture influenced by the social values of the time [emphasis added].

Similarly, on page 8, the Interim Report noted that:

While Assistant Commissioner Anthony Crandell, Police Education and Training, NSW Police Force acknowledged that the ‘police force reflected the community and was no different, with culture and values taking far longer to evolve.’

And again on page 45:

In evidence to the inquiry, Assistant Commissioner Crandell acknowledged that historically, the ‘NSW Police Force accepted a culture and society that marginalised people who happened to be sexually or gender diverse.’

He made further comments along the same lines on page 69:

Assistant Commissioner Crandell observed that at no stage had the NSW Police Force indicated that there was ‘no more homophobia, transphobia or that sort of sentiment’ within the force. Rather, he stated: ‘We reflect the community.’ He explained: ‘If we can say that about the community then perhaps I could say that about the police force, but you cannot say that about the community and I cannot say that about the police force…’

The overall impression of these comments is that NSW Police was only ever a ‘mirror’ reflecting society’s homophobia and transphobia back to itself, rather than an organisation with agency that itself generated homophobia and transphobia through its own culture, policies and operational decisions.

I would dispute this ‘mirror’ characterisation in at least two ways. First, the police force is a key shaper of societal attitudes. It plays a role in deciding those rules that are actively enforced, and those that are not (because there will always be far more ‘crimes’ committed than are investigated or prosecuted at any one time) – and this sends a signal to ordinary community members about what are serious breaches of the law versus minor infractions. In this way, the law enforcement actions of police carry a ‘normative’ value.

Indeed, this can be seen in prioritisation of anti-homosexual policing described on page 7 of the Interim Report:

Societal views and attitudes of the time were said to have been compounded by the leadership approach taken by senior policy officers. For example, during the 1950s, the then NSW Police Commissioner Colin Delaney voiced personal views regarding homosexuality that encouraged vigilant detecting and prosecution of homosexual acts and homosexual men by police. In 1958, Commissioner Delaney described homosexuality as “Australia’s greatest menace’; that homosexuals were a “cancer in the community”, who threatened to damage society’s “moral welfare.”

I submit it is impossible to argue that these comments, from the ‘top cop’ in the biggest jurisdiction in Australia, did not have an impact on societal homophobia – especially when it was reinforced by police entrapment and harassment of gay and bisexual men.

The second way in which NSW Police contributed to homophobia and transphobia in society (rather than the other way around), was by failing to properly investigate crimes against gay, bisexual and transgender victims of crime.

While I concede many people at the time may have considered LGBT people to be ‘lesser’ than other members of the community, the actions of NSW Police actually made them so under the law, and therefore actively encouraged others to treat them in the same way.

As noted by the Committee itself on page 35:

Throughout the inquiry the committee heard that police investigations into a number of suspected gay hate crimes during the 1980s and 1990s were inadequate, ineffective and in some cases absent almost entirely, with victims and loved ones never receiving adequate justice.

As described by Mr Larry Galbraith on page 32:

[E]fforts to encourage victims to report were often ‘undermined by the police themselves’, which in turn impacted on the willingness of victims to report crimes. Mr Galbraith recounted a sentiment expressed to him, that going to the police was like a ‘lucky dip – expect it was a lucky dip that too many gay men were not prepared to risk’. He explained: ‘For many gay men, it was sheer luck if the cop you saw took your matter seriously and was willing to do something about it.’

By failing to do their jobs and investigating crimes committed against anyone, irrespective of who they were, NSW Police sent a message to the community that crimes committed against gay and bisexual men, and transgender people, were less serious than crimes committed against cisgender and heterosexual people. That reflects the special role of police in law enforcement, and goes far beyond simply ‘mirroring’ intolerant attitudes.

For these reasons, it was incredibly disappointing to see on page 94 that key sections of the draft Interim Report were removed by Committee members prior to its publication.

This includes the [now deleted] observation that:

The committee accepts the view put forward by a number of inquiry participants that the homophobic culture within NSW Police during the time period examined has significantly obstructed the delivery of justice for members of the LGBTIQ community subjected to violence and hate crimes, in addition to further marginalising a community that already felt ‘rejected’ by many in society’.

Most disappointingly, it involved removing Finding 2:

That the NSW Police Force failed in its responsibility to properly investigate cases of historic hate crime and this has undermined the confidence of lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) communities in the NSW Police Force and the criminal justice system more broadly.

I strongly urge the committee to make this finding as part of the re-established inquiry.

My second substantive criticism of the Interim Report relates to how it dealt with the issue of the gay panic, or ‘homosexual advance’, defence – or, more accurately, how it failed to properly address this topic.

The terms of reference specifically included the following:

(b) in relation to LGBTIQ hate crimes more generally:

i. what role the so-called ‘Gay panic’ defence played in the culture of LGBTIQ hate crimes between 1970 and 2010,

ii. how the so-called ‘Gay panic’ defence impacted the delivery of justice and the treatment of Gay men during LGBTIQ hate crime investigations and court proceedings

However, despite this term of reference, and Chapter 4 of the Interim Report discussing this issue at some length, the Interim Report does not include any findings or recommendations on this subject.

Even worse, once again strong statements on this subject, including a proposed Recommendation, were removed by the Committee prior to the public of the Interim Report (as noted on page 99 of the Report). These deleted paras stated:

While the Crimes Act 1900 has been amended to finally reflect the recommendations of both the 1995 NSW Attorney-General’s Working Party on Homosexual Advance Defence and the parliamentary inquiry into the partial defence of provocation, the committee acknowledges that there is a ‘gay panic’ defence legacy.

The committee supports the NSW Government’s 2013 directive for the NSW Law Reform Commission to conduct a comprehensive review of the law of homicide and homicide defences, as initially recommended by the 2013 Legislative Council Select Committee on the Partial Defence of Provocation to ensure that recent legal reforms have effectively removed any potential for further injustice to occur. The committee therefore recommends that the NSW Attorney General issue a reference to the NSW Law Reform Commission to require it to undertake a comprehensive review of the law of homicide and homicide defences in New South Wales.

Recommendation 10

That the NSW Attorney General issue a reference to the NSW Law Reform Commission to require that it undertake a comprehensive review of the law of homicide and homicide defences in New South Wales to ensure that recent legal reforms have effectively removed any potential for injustice to occur.

I believe that these paras, and the proposed Recommendation 10, were justified on the basis of evidence provided to the inquiry by ACON, Mr Larry Galbraith,[vi] and Mr Nathan Johnstone,[vii] among others.

I strongly urge the Committee to incorporate these comments, and to make a similar recommendation to the deleted Recommendation 10, in its Final Report.

This would highlight the deleterious impact of the gay panic defence, not just on the individual victims whose lives were treated as somehow being less worthy by the criminal justice system, but also the entire LGBT community because crimes against them were seen as less serious than crimes committed against others.

My final comment in relation to the Interim Report is to express my support for the position of the NSW Young Lawyers Human Rights Committee, as summarised on page 50:

The NSW Young Lawyers Human Rights Committee argued that there are limitations to the current GLLO program that need to be addressed. These include:

  • the name of the program creates barriers to access for bisexual, transgender, intersex and queer people
  • there are significant gaps in when and where GLLOs are available; and
  • there is limited evaluation of the performance of GLLOs in their role.

Given the perceived limitations of the GLLO program, the NSW Young Lawyers Human Rights Committee put forward three recommendations to improve its accessibility and effectiveness. These were:

  • Changing the name of the program to the LGBTIQ Liaison Officer program
  • Increasing the number of LGBTIQ liaison officers particularly in areas where gaps exist
  • Regularly evaluating the performance of LGBTIQ liaison officers and ensuring adequate support is provided for such officers to perform effectively in their roles.

I urge the Committee to adopt these suggestions in its Final Report. In this way, and provided they are subsequently adopted by NSW Police, it would help to strengthen this program – and, most importantly, to prevent some of the historical injustices heard by the Committee from being repeated in the future.

Thank you for taking this submission into consideration as part of this important inquiry. Please do not hesitate to contact me, at the details provided, should you require additional information.

Sincerely

Alastair Lawrie

w1-truthandjustice

ACON’s In Pursuit of Truth and Justice Report, which documents gay and transgender prejudice killings in NSW in the late 20th century, can be found here.

Footnotes:

[i]  Submission Number 12, ACON, page 11.

[ii] Submission Number 12, ACON, pages 12-13.

[iii] Submission Number 12, ACON, pages 14-15.

[iv] Submission Number 14, NSW Gay & Lesbian Rights Lobby, page 6.

[v] Submission Number 14, NSW Gay & Lesbian Rights Lobby, page 8.

[vi] From page 61 of the Interim Report:

Mr Galbraith was of the view that the ‘gay panic’ defence ‘helped perpetuate the idea that… somehow the crime was lesser and therefore… should not be treated as seriously’. He added it was likely that the ‘gay panic’ defence fed ‘into a culture where other crimes against gay men should not be treated as seriously.’

[vii] Noting that the following para, describing Mr Johnstone’s evidence, was also removed from the final report:

Mr Nathan Johnstone, Committee member, NSW Gay and Lesbian Rights Lobby summarised for the committee the legacy of the “gay panic” defence:

I certainly think that it feeds into the level of distrust or the damage to the relationship between perhaps our community and not just police but perhaps the whole criminal justice system. You have got at least, I think it was, 13 people in about a three- or five-year period… who successfully used this before it was abolished. This is remarkable… That will still breed that culture and fuel that culture of distrust.

Did You Know? Trans People in NSW and Queensland Still Require Surgery to Update Their Birth Certificates

This week marked an important milestone on the long march to trans and gender diverse equality in Australia. From 1 May 2020, trans and gender diverse people in Victoria can update their birth certificate and other identity documentation without requiring surgery.

Unfortunately, there are still two Australian jurisdictions that continue to impose this unjustified and unnecessary barrier, as well as a third where the laws also require urgent amendment.

New South Wales

Under section 32B of the Births, Deaths and Marriages Registration Act 1995, in order to apply to alter the register to record a change of sex, a person must first have ‘undergone a sex affirmation procedure’, which is defined in section 32A as:

‘a surgical procedure involving the alteration of a person’s reproductive organs carried out:

a) for the purpose of assisting a person to be considered to be a member of the opposite sex, or

b) to correct or eliminate ambiguities relating to the sex of the person.’

The Berejiklian Liberal National Government has given no commitments to fix this appalling provision during the current parliamentary term, with the next election not due until 25 March 2023 (which would represent a dozen years of inaction on this vital reform).

If the Births, Deaths and Marriages Registration Act 1995 (NSW) is not updated before then, another event in February and March 2023 – Sydney World Pride – will ensure that the Berejiklian Government is rightly subject to significant global criticism.

Queensland

Section 22 of the Births, Deaths and Marriages Registration Act 2003 provides that ‘the reassignment of a person’s sex after sexual reassignment surgery may be noted in the person’s entry in the register of birth.’

The Palaszczuk Labor Government actually engaged in a public consultation process about removing this requirement, releasing the Registering Life Events: Recognising sex and gender diversity and same-sex families discussion paper more than two years ago.

Unfortunately, there does not appear to have been much movement on this issue since then, and time is quickly running out, with just five months left of sittings before Parliament is dissolved before the state election scheduled on 31 October 2020.

The clock is ticking for the Palaszczuk Government to fix the Births, Deaths and Marriages Registration Act 2003 (Qld) – trans and gender diverse Queenslanders have waited long enough for access to identity documentation that accurately reflects who they are.

Western Australia

The situation is only slightly better in the nation’s West, where section 14 the Gender Reassignment Act 2000 allows people to apply for gender recognition certificates where that person ‘has undergone a reassignment procedure’. Section 3 defines ‘reassignment procedure’ as:

‘a medical or surgical procedure (or a combination of such procedures) to alter the genitals and other gender characteristics of a person, identified by a birth certificate as male or female, so that the person will be identified as a person of the opposite sex and includes, in relation to a child, any such procedure (or combination of procedures) to correct or eliminate ambiguities in the child’s gender characteristics.’

Fortunately, following a decision of the High Court in AB v Western Australia; AH v Western Australia [2011] HCA 42 6 October 2011, this has been interpreted such that genital surgery is not required. However, physical medical treatment, such as hormone therapy, remains a pre-requisite to access a new birth certificate in Western Australia.

These issues were examined in the Law Reform Commission of Western Australia’s 2018 Report: Review of Western Australian legislation in relation to the registration or change of a person’s sex and/or gender and status relating to sex characteristics, which recommended that applications for change of gender involve a simple administrative process, including a statutory declaration, with no requirement for surgical or other medical treatment.

With less than 12 months left before the next state election, due on 13 March 2021, the pressure is on the McGowan Labor Government to implement these reforms.

South Australia, Australian Capital Territory and Northern Territory

These three jurisdictions have abolished the requirement for trans and gender diverse people to have surgery, or other physical medical interventions, in order to access updated birth certificates and identity documentation.

However, they do still require doctors or other health practitioners, such as counsellors or psychologists, to approve such applications, which remains inappropriate medicalisation of people’s gender identities, that should instead be based on self-identification.

Section 29L of South Australia’s Births, Deaths and Marriages Registration Act 1996 provides that ‘if the Registrar is satisfied that the applicant has undertaken a sufficient amount of appropriate clinical treatment in relation to their sex or gender identity, the Registrar may make an entry about the change of the person’s sex or gender identity in the Register…’, with section 29H clarifying that ‘clinical treatment need not involve invasive medical treatment (and may include or be constituted by counselling).’

Likewise, section 24 of the Australian Capital Territory’s Births, Deaths and Marriages Registration 1997 provides that a person applying to have the register amended to reflect a change of sex must have ‘received appropriate clinical treatment for alteration of the person’s sex’. Clinical treatment is not further defined, meaning it does not explicitly require surgical intervention.

The Northern Territory has also adopted a similar approach, with section 28B of their Births, Deaths and Marriages Registration Act providing that trans and gender diverse people can update their birth certificates if they can show that they have ‘received appropriate clinical treatment in relation to the adult’s sex or gender’.

It is positive that each of South Australia, the ACT and NT have removed the requirement for surgery or other physical medical interventions. However, in order to reflect the self-determination of trans and gender diverse people, they should still amend their laws to remove the role of health practitioners as ‘gate-keepers’ of their identity.

Victoria

As indicated above, Victoria’s new birth certificate reforms mean trans and gender diverse Victorians can update their identity documentation without having surgery or other physical medical interventions.

Importantly, these changes, which were introduced by the Births, Deaths and Marriages Registration Amendment Act 2019 (Vic), also mean that trans and gender diverse people do not need approval from doctors or other health practitioners, such as counsellors or psychologists. Their role as ‘gate-keepers’ is over.

However, there is one requirement which fails the principle of complete ‘self-identification’. That’s because section 30A of the Victorian Births, Deaths and Marriages Registration Act 1996 requires adults to submit a ‘supporting statement’ made by a person who is aged 18 years or over and who has known the applicant for at least 12 months and state that the person making the supporting statement:

  • believes that the applicant makes the application to alter the record of their sex in good faith, and
  • supports the application.

This second requirement in particular (that another person must ‘support’ the application of a trans or gender diverse person for a new birth certificate) is unnecessary, and is the reason why Victoria’s new scheme, while a massive improvement from the previous regime, falls short of Australian best practice.

Screen Shot 2020-05-02 at 8.08.02 am

Ideally, access to accurate identity documentation for trans and gender diverse people should not depend on whether another person ‘supports’ their application.

Tasmania

That honour belongs to Tasmania’s Births, Deaths and Marriages Registration Act 1999. Following amendments earlier last year, it allows trans and gender diverse Tasmanians (aged over 16) to self-determine their own gender identity.

Without the need for surgery or other physical medical interventions. Without the need for medical approval. And based solely on self-identification.

When NSW, Queensland and Western Australia finally bring their own birth certificate laws into the 21st century, it is the Births, Deaths and Marriages Registration Act 1999 (Tas) they should be emulating.

**********

This article is part of a series. Find other ‘Did You Know?’ posts here.

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

Did You Know? The NSW Anti-Discrimination Act Doesn’t Protect Bisexuals Against Discrimination

The Sydney Gay & Lesbian Mardi Gras Parade is on tonight, and I am looking forward to attending the festivities in Taylor Square.

Although it will likely be in less noteworthy company than last year when, through an unlikely combination of circumstances, I ended up watching most of the parade standing next to NSW Premier Gladys Berejiklian.

Always the activist, and never one to waste an opportunity, I did manage to ask her an LGBTI rights question during the event. The question I chose:

Are you aware that NSW is the only jurisdiction in Australia that does not protect bisexuals against discrimination?

The Premier answered that ‘no, she wasn’t aware of that’ (or words to that effect) before turning back to talk to her companions.

In her defence, she would not have been alone in not knowing about this bizarre, and unacceptable, loophole in the NSW Anti-Discrimination Act 1977 (although she definitely cannot claim ignorance now).

It is a gap that has existed from the time discrimination on the basis of homosexuality was prohibited in late 1982 (a full 18 months before male homosexuality was even decriminalised in this state).

And one that wasn’t fixed when a definition of ‘homosexual’ was inserted in section 4 of the Anti-Discrimination Act in 1994: ‘homosexual means male or female homosexual’.

This is the definition that remains to this day. Which quite clearly excludes people whose sexual orientation is towards people of the same sex and people of different sexes. [Interestingly, it also prevents heterosexual people from enjoying protection under the Act].

As I stated in my question to Ms Berejiklian, NSW is alone in having such a narrow definition.

The Commonwealth prohibits discrimination on the basis of ‘sexual orientation’ in the Sex Discrimination Act 1984, with a definition that clearly covers lesbian, gay, bisexual and heterosexual people.

Victoria, Western Australia, South Australia and Tasmania all also prohibit discrimination on the basis of ‘sexual orientation’, while Queensland the Australian Capital Territory and the Northern Territory cover ‘sexuality’ [for more, see A Quick Guide to Australian LGBTI Anti-Discrimination Laws].

What does NSW’s exclusion of bisexuals mean in a practical sense?

Well, on the positive side, because bisexuals are still protected under the Commonwealth Sex Discrimination Act, discrimination against them in NSW remains prohibited in most (although not all) circumstances.

However, there are limits to this coverage – limits that do not apply to lesbians and gay men.

For example, section 13 of the Sex Discrimination Act provides that protections against discrimination in employment under that Act ‘do not apply in relation to employment by an instrumentality of a State.’

Instrumentalities are independent government agencies or corporations. In effect, bisexual employees of independent NSW Government agencies are not protected against discrimination during their employment.[i] Ironically, this means bisexual employees of Anti-Discrimination NSW itself are potentially not protected.

Another practical effect of the exclusion of bisexuals from the NSW Anti-Discrimination Act 1977 is that they are not covered by civil prohibitions on vilification, unlike their gay and lesbian counterparts.

For example, section 49ZT of the Act defines homosexual vilification as ‘to incite hatred towards, serious contempt for, or severe ridicule of, a person of group of persons on the ground of the homosexuality of the person of members of the group.’

Because there is also no prohibition against anti-LGBTI vilification at Commonwealth level, this means bisexual people cannot make a civil complaint of vilification in any circumstance.

Confusingly, bisexual people are protected by the 2018 amendments to the Crimes Act 1900 (NSW), with section 93Z(1)(c) criminalising:

‘a public act [that] intentionally or recklessly threatens or incites violence towards another person or a group of persons on [the ground of] the sexual orientation of the other person or one or more of the members of the group.’

Sexual orientation is then broadly defined in section 93Z(5) as:

‘a person’s sexual orientation towards:

(a) persons of the same sex, or

(b) persons of a different sex, or

(c) persons of the same sex and persons of a different sex.’

Which is obviously welcome, but invites the logical question that, if the NSW Government was willing to include ‘sexual orientation’ in the Crimes Act, why hasn’t it also updated the NSW Anti-Discrimination Act along the same, inclusive, lines?

The third practical effect of the general exclusion of bisexuals from the NSW Anti-Discrimination Act is that it limits their options in terms of where to lodge complaints and/or file lawsuits.

Whereas lesbians and gay men discriminated against in NSW have the ability to complain to either Anti-Discrimination NSW or the Australian Human Rights Commission (AHRC) – and therefore of pursuing legal action in either the NSW Civil and Administrative Tribunal (NCAT) or multiple courts – bisexuals can only complain to the AHRC and can only file in court.

This has implications in terms of the timelines for lodging complaints, the allocation of costs and the potential award of damages.

Each of these practical effects should be sufficient in and of itself to convince the NSW Government to update the Anti-Discrimination Act 1977, and replace ‘homosexuality’ with ‘sexual orientation’.

But, as with most anti-discrimination laws, the symbolic effect is just as important. After all, what does it say about the place of bisexuals in our own community, and society more widely, that they continue to be excluded from the primary legislation in this state which is designed to ensure all people are treated equally?

Unfortunately, it is not just bisexuals who are excluded in this way either.

The NSW Anti-Discrimination Act 1977 also excludes non-binary people, because the definition of transgender in section 38A only covers someone who ‘identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex, or who has identified as a member of the opposite sex by living as a member of the opposite sex’.

Similarly, the Act also fails to provide discrimination protections to intersex people, because it does not include a protected attribute of either ‘sex characteristics’ (the terminology preferred by Intersex Human Rights Australia) or ‘intersex status’ (the protected attribute in the Commonwealth Sex Discrimination Act 1984).

Although, unlike for bisexuality, NSW is far from alone in these deficiencies:

  • NSW, Victoria, Queensland, Western Australia and the Northern Territory all fail to protect non-binary people, and
  • Those same jurisdictions (NSW, Victoria, Queensland, WA and the NT) also exclude intersex people from their discrimination frameworks.

There is a long, long way to go before Australian anti-discrimination laws adequately and appropriately protect LGBTI Australians against discrimination.

The NSW Anti-Discrimination Act 1977 arguably has the longest journey ahead.[ii] Let’s hope Premier Berejiklian hears that message loud and clear at tonight’s Mardi Gras – and every parade until this exclusionary and out-dated law is fixed.

Bi Pride

This article is part of a series. Find other ‘Did You Know?’ posts here.

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

Footnotes:

[i] To complicate matters, bisexual employees of NSW Government agencies are protected against unlawful termination, because section 772 of the Fair Work Act 2009 (Cth) applies. However, the adverse action protections in section 351 of that Act (which prohibit mistreatment during employment) don’t apply because they must also be prohibited by an equivalent Commonwealth, state and territory anti-discrimination law – which is not the case here.

[ii] For more problems see: What’s Wrong with the NSW Anti-Discrimination Act 1977?