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.

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“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.

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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.

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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

Submission to Victorian Inquiry into Anti-Vilification Protections

The Committee Manager

Legislative Assembly Legal and Social Issues Committee

Parliament House, Spring St

East Melbourne VIC 3002

Submitted via: avpinquiry@parliament.vic.gov.au

Thursday 19 December 2019

 

To the Committee

 

Inquiry into Anti-Vilification Protections

 

Thank you for the opportunity to make a submission on this important subject.

 

I do so as a long-term advocate for the lesbian, gay, bisexual, transgender and intersex (LGBTI) community, having previously served on the Committee of Management of the Victorian Gay & Lesbian Rights Lobby (2004-05, and 2007).

 

In this submission, I will primarily focus on term of reference 8: ‘Possible extension of protections or expansion of protection to classes of people not currently protected under the existing Act.’

 

As the Committee is aware, Victoria currently only provides protection against vilification on the basis of two attributes – race (section 7) and religion (section 8) – under the Racial and Religious Tolerance Act 2001 (Vic).

 

From an LGBTI perspective this is incredibly disappointing, especially because the similar absence of LGBTI anti-vilification protections under Commonwealth law, which only covers race,[i] means that lesbian, gay, bisexual, transgender and intersex Victorians currently have no vilification protections at either level.

 

This stands in contrast to the laws of several other Australian jurisdictions.

 

For example, Tasmania protects against ‘incite[ment of] hatred towards, serious contempt for, or severe ridicule of, a person or a group of persons on the ground of’ sexual orientation,[ii] gender identity[iii] and intersex variations of sex characteristics.[iv]

 

Tasmania’s best practice legislation also prohibits ‘conduct which offends, humiliates, intimidates, insults or ridicules another person on the basis of an attribute’, which again includes sexual orientation, gender identity and intersex variations of sex characteristics.[v]

 

The Australian Capital Territory protects against ‘incite[ment of] hatred toward, revulsion of, serious contempt for, or severe ridicule of’ persons on the basis of gender identity,[vi] intersex status[vii] and sexuality.[viii]

 

Although I note that intersex advocates have called for protection of the attribute of ‘sex characteristics’,[ix] rather than ‘intersex status’, reflecting both the biological rather than identity-based nature of variations of sex characteristics, and to promote consistency with the Yogyakarta Principles plus 10.[x]

 

Queensland also prohibits the ‘incite[ment of] hatred towards, serious contempt of, or severe ridicule of, a person or group of persons on the ground of the race, religion, sexuality or gender identity of the person of members of the group.’[xi]

 

Meanwhile, NSW has adopted two separate, and in some ways contradictory, approaches to vilification. It provides civil protection against vilification (which includes ‘incite[ment of] hatred towards, serious contempt for, or severe ridicule of’) to binary[xii] transgender people,[xiii] and lesbians and gay men.[xiv]

 

On the other hand, in 2018 NSW Parliament amended the Crimes Act 1900 to provide that ‘[a] person who, by public act, intentionally or recklessly threatens or incites violence towards another person or a group of persons on any of the following grounds is guilty of an offence’ and nominated sexual orientation,[xv] gender identity[xvi] and intersex status.[xvii]

 

Overall, then, LGBTI people are protected against vilification in both Tasmania and the Australian Capital Territory, LGBT people are protected in Queensland, and lesbians, gay men and some trans people have access to civil protection in New South Wales, while all LGBTI people are covered by the narrower criminal offence of ‘publicly threatening or inciting violence’ in that state.

 

Of course, the fact other jurisdictions have adopted a different approach to this issue is not necessarily a compelling argument that Victoria should do the same. However, I do support such an expansion for two main reasons.

 

First, in principle, there is no reason why vilification on the basis of race or religion should be treated any differently to vilification on the basis of sexual orientation, gender identity or sex characteristics.

 

Vilification on any of these attributes is serious, and racial or religious vilification is no more serious than anti-LGBTI vilification. This is especially so given the harm caused by each type of vilification can be severe, and therefore the conduct which contributes to this harm should be prohibited, irrespective of whether it is racist, anti-religious or homophobic, biphobic, transphobic or intersexphobic.

 

Second, in practice, lesbian, gay, bisexual, transgender and intersex Australians remain exposed to unacceptably high rates of discrimination and vilification on the basis of who they are.

 

This was particularly demonstrated during the Commonwealth Government’s 2017 Same-Sex Marriage Postal Survey, and its lingering aftermath.

 

This unnecessary, wasteful and divisive vote on the rights of a minority group encouraged people to ‘have their say’ about LGBTI Australians, and inevitably (and, it should be noted, entirely predictably) stirred up significant amounts of public homophobia, biphobia, transphobia and intersexphobia against us.

 

Sadly, once the genie of anti-LGBTI bigotry was deliberately let out of the bottle by the Turnbull Liberal-National Government, it will take the rest of us many years, if not decades, of concerted effort to put it back in again.

 

This can be seen by the ongoing hate-based campaign targeting trans and gender diverse people, and especially trans children, which appears on an almost daily basis in our nation’s newspapers, and elsewhere.

 

As we enter the 2020s, the homophobia, biphobia, transphobia and intersexphobia whipped up by the Commonwealth Government in the last decade still haunts us, and will likely continue to do so for some time yet.

 

For both of these reasons, principled and practical, I urge the Victorian Parliament to follow the lead of other jurisdictions and introduce vilification protections on the basis of sexual orientation, gender identity and sex characteristics.

 

Recommendation 1: That the Racial and Religious Tolerance Act 2001 (Vic) be amended to prohibit vilification on the basis of:

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

 

I note that the Racial and Religious Tolerance Amendment Bill 2019, introduced by Fiona Patten MLC, proposes to do exactly that. It also proposes to add gender, and disability, to the list of attributes that would be protected against vilification under that legislation.

 

While I am not an expert on gender or disability-based vilification, for (at least) the first of the reasons outlined above, I can see no good reason why Victorians should not also be protected against vilification on the basis of these attributes.

 

Recommendation 2: That the Racial and Religious Tolerance Act 2001 (Vic) be amended to prohibit vilification on the basis of gender and disability.

 

One final issue I would like to address in this submission also arises through Ms Patten’s Racial and Religious Tolerance Amendment Bill 2019, and specifically relates to proposed amendments to section 24 of the principal Act which creates the offence of serious racial vilification.

 

These amendments would add the words ‘or recklessly’ to, and remove the words ‘the offender knows’ from, the fault element of this offence.

 

I support both changes. The first change would help create consistency with the offences established in other jurisdictions (including the recently-introduced NSW Crimes Act 1900 provisions).

 

The second would remove the ‘offender knows’ subjective test from this offence, which is important because such harmful conduct should be prohibited irrespective of whether the specific offender knew that was the likely outcome.

 

Recommendation 3: That serious vilification offences in the Racial and Religious Tolerance Act 2001 (Vic) be amended to prohibit intentionally or recklessly engaging in conduct that is likely to incite hatred, or to threaten, or incite others to threaten, physical harm or harm to property.

 

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

 

Sincerely

Alastair Lawrie

 

Fiona Patten

Fiona Patten MLC, whose Racial and Religious Tolerance Amendment Bill 2019 would protect LGBTI Victorians against vilification.

 

Footnotes:

[i] Section 18C Racial Discrimination Act 1975 (Cth).

[ii] Section 19(c) Anti-Discrimination Act 1998 (Tas).

[iii] Section 19(e) Anti-Discrimination Act 1998 (Tas).

[iv] Section 19(e) Anti-Discrimination Act 1998 (Tas).

[v] Section 17(1) Anti-Discrimination Act 1998 (Tas).

[vi] Section 67A(1)(b) Discrimination Act 1991 (ACT).

[vii] Section 67A(1)(d) Discrimination Act 1991 (ACT).

[viii] Section 67A(1)(g) Discrimination Act 1991 (ACT).

[ix] Darlington Statement, March 2017, Article 9: ‘We call for effective legislative protection from discrimination and harmful practices on grounds of sex characteristics.’

[x] Which defines sex characteristics as ‘each person’s physical features relating to sex, including genitalia and other sexual and reproductive anatomy, chromosomes, hormones, and secondary physical features emerging from puberty.’ Yogyakarta Principles plus 10, 10 November 2017.

[xi] Section 124A Anti-Discrimination Act 1991 (Qld).

[xii] Because the definition of transgender in section 38A only protects a person:

(a) ‘who identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex, or

(b) who has identified as a member of the opposite sex by living as a member of the opposite sex…’

[xiii] Section 38S Anti-Discrimination Act 1977 (NSW).

[xiv] Section 49ZT Anti-Discrimination Act 1977 (NSW).

[xv] Section 93Z(1)(c) Crimes Act 1900 (NSW).

[xvi] Section 93Z(1)(d) Crimes Act 1900 (NSW).

[xvii] Section 93Z(1)(e) Crimes Act 1900 (NSW).

Submission to Victorian Government Consultation on Banning Conversion Practices

The Victorian Government is currently consulting on legislative options to ban conversion practices, including ‘ex-gay therapy’ and ‘ex-trans therapy’. Submissions close 24 November 2019, with more details here. The following is my personal submission:

 

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Thank you for the opportunity to provide this submission in response to the Discussion Paper: ‘Legislative options to implement a ban of conversion practices.’

 

I write this as a long-term advocate for the lesbian, gay, bisexual, transgender and intersex (LGBTI) community, as someone who survived five years at an explicitly homophobic religious boarding school in Queensland in the early 1990s,[i] and as someone who has written on this issue previously.[ii]

 

While I am not Victorian, given early-adopting jurisdictions will be effectively setting the standard for other states and territories to follow (including my current state of NSW), I am interested to ensure that the scheme introduced by the Victorian Government is as strong as possible.

 

On that basis, my answers to the consultation questions are as follows:

 

Do you agree with the HCC’s definition?

Would you suggest any changes?

Should the definition of conversion practices be broad enough to capture the practices that do not involve health services or counselling?

What treatments and practices should be expressly excluded from the definition?

 

The Health Complaints Commissioner’s definition appears reasonable. It is particularly important that the second part of the definition – ‘including efforts to eliminate sexual and/or romantic attractions or feelings toward individuals of the same gender, or efforts to change gender expressions’ – is retained.

 

This is because the harms caused by conversion practices arise exclusively in the context of activities trying to prevent people from identifying as lesbian, gay, bisexual or transgender.

 

There is no evidence of harmful ‘conversion practices’ in the other direction (forcing people to be LGBT), and therefore care should be taken to ensure that support services for LGBT people, and especially LGBT children and young people, are not inadvertently captured in any definition of conversion practices.

 

The definition should, however, capture anti-LGBT conversion practices outside health services or counselling. Conversion practices are basically psychological torture and as such they should not be acceptable in any context.

 

There may nevertheless be scope for increased penalties, or additional regulatory responses, where these practices occur in health services or counselling given the duty of care involved in these settings.

 

Who do you think should be protected?

Should protection be limited to children and people experiencing vulnerability? If so, what vulnerable groups should be included?

Should protection be available to all members of the community?

In what ways do you think the issue of consent is relevant to determining who should be protected?

 

I think all people should be protected, including adults. Again, my starting position is that conversion practices are psychological torture. And torture is not acceptable in any context, or with respect to any victim.

 

We should also remember that an adult who seeks out conversion practices has likely grown up in a homophobic, biphobic or transphobic environment, and that the cumulative effect of years or even decades of this bigotry and intolerance is probably the primary causative factor in them agreeing to participate in such harmful activities. It is therefore not truly free and informed consent.

 

Of course, there are some groups who are particularly vulnerable, including children as well as people with mental ill-health or other reasons for diminished legal capacity. The penalties for engaging in conversion practices aimed at these vulnerable groups could be made higher than for other adults (for example, by making the vulnerability of the victim an aggravating factor in sentencing).

 

Who do you think should be banned from providing conversion practices?

Specific professionals or persons? Or everyone who offers conversion practices?

 

These practices should be banned by anyone. There is no justification to allow psychological torture in any context.

 

There may however be reasons to provide additional regulatory responses for health practitioners, including counsellors, who engage in these practices (including referring people to these practices). This could include being suspended, or deregistered from providing any health services in the future, in addition to criminal or other penalties which apply to everyone.

 

Do you think conversion practices should be regulated wherever they occur or only in certain contexts or places?

 

If only health professionals are regulated, then again it should not matter where the conversion practices take place, because psychological torture should be prohibited wherever it occurs. It is a breach of the duty to care for patients for health practitioners to engage in these practices, or to refer others to them, in any context or place.

 

Do you think conversion practices should be regulated through criminal law, civil regulatory schemes or civil laws, or a combination of these?

What aspects of each approach would be effective in regulating conversion practices?

What aspects of each approach would be less effective in regulating conversion practices?

 

Given the abhorrent practices involved, and their harmful consequences on the lives of victims, I believe there should be criminal penalties for providing conversion practices, and for referring people to conversion practices.

 

This is a proportionate response to the seriousness of the underlying offence, and necessary to send a signal to the community that such practices will not be tolerated, any time, any where.

 

However, acknowledging the potential difficulty in criminal prosecution in these areas, these laws should be supplemented by civil regulatory sanctions, enforced by the Health Complaints Commissioner, Commissioner for Children and Young People or another similar body.

 

Finally, victims of such practices should be able to make claims of negligence against the people providing them, especially where it involves health practitioners and/or counsellors. Again, this is in recognition of the damage caused to their lives. Any laws necessary should be changed to allow this outcome, and provide financial redress for the victims.

 

What rights do you think are relevant to consider when determining how best to implement a ban of conversion practices?

Can the impact on these rights be justified in light of the harm conversion practices cause?

 

The most important rights in terms of this debate are the right to health, and the right to non-discrimination (given conversion practices are an attack on people with diverse sexual orientations and/or gender identities).

 

I acknowledge that there may be an adverse impact on freedom of religion, in that some individuals and organisations may assert that these practices are in line with their religious beliefs against LGBT identities.

 

However, their religious beliefs do not justify the imposition of psychological torture on others, including children and vulnerable people. In the same way that religious beliefs do not justify physical torture, including female genital mutilation, a position already reflected in Australian law.[iii]

 

Are there other matters that you consider critical for the design of legislation or effective implementation?

 

I reiterate my view that the approach adopted in states like Victoria will exert considerable influence on the position that will ultimately be embraced in others states and territories. As such, I strongly encourage the Victorian Government to introduce the strongest possible ban on these abhorrent practices, for the benefit of LGBT people nation-wide.

 

Thank you in advance for taking this submission into consideration. Please do not hesitate to contact me at the details supplied should you require clarification or additional information.

 

Sincerely

Alastair Lawrie

 

Footnotes:

[i] See The Longest Five Years.

[ii] See Criminalising Ex-Gay Therapy August 6, 2018; Submission to NSW Parliament Inquiry into False or Misleading Health Practices re Ex-Gay Therapy and Intersex Sterilisation 16 June, 2014.

[iii] And, hopefully, one day religious beliefs will not be used to justify male genital mutilation/circumcision either.

Saving Safe Schools

This post is part of a series looking at the unfinished business of LGBTI equality in Australia. You can see the rest of the posts here

 

Safe Schools is, simultaneously, one of the simplest policy issues in Australia, and one of the most complex.

 

Simple, because it is an effective, evidence-based program aimed at reducing bullying of one of the most vulnerable groups in our society: young lesbian, gay, bisexual, transgender and intersex (LGBTI) people. Surely, supporting this group, and lowering the disproportionate rates of social exclusion, and mental health issues, that they experience, should be straightforward?

 

Complex, because – well, have you listened to (most) Liberal and National politicians over the past few years? Did you read The Australian newspaper in 2016? [*Neither is recommended of course, but if you did you would have heard and seen a barrage of criticism of this initiative addressing anti-LGBTI bullying]

 

This little program became the focal point of one of the biggest culture wars in our recent history, such that among right-wing circles even the name Safe Schools has itself become toxic, synonymous with all manner of imagined problems.

 

It is hard to remember that, at the federal level, Safe Schools was initially the epitome of bipartisanship – announced and funded by the then Rudd Labor Government before the 2013 election, before being launched under the Abbott Coalition Government in mid-2014.

 

How did we get from there, to wherever the hell it is we are now? I’m not proposing to rehash that depressing history – instead, I would strongly suggest you read the excellent Quarterly Essay ‘Moral Panic 101: Equality, acceptance and the Safe Schools scandal’ by Benjamin Law.

 

However, I am interested in the why – why did a simple and straight-forward program aimed at reducing homophobia, biphobia, transphobia and intersexphobia in schools provoke such an angry response from so-called conservatives around the country?

 

Part of the explanation can be found in the response of one of the program’s greatest advocates, Victorian Premier Daniel Andrews, to the decision by the then Turnbull Liberal National Government to ‘review’ the program in early 2016. From his Facebook post:

 

“Schools have to be a safe place for every kid – no exceptions.

Teachers have to be given the tools to deal with every situation – no excuses.

And there is absolutely nothing wrong with this effective little program, which achieves the above two aims and nothing more.

But let’s be honest here: I don’t think these extreme Liberals are actually offended by the structure of the program, or the teachers who lead it.

I just think they’re offended by the kids who need it.

They don’t like the fact that some young people might be different.

And I’m sick of it.

I’m sick of Liberal politicians telling our kids that there’s something wrong with them – when there isn’t.

I’m sick of Liberal politicians trying to push us all back, whenever we all take a few steps forward.

Cory Bernadi [sic] says teenagers are too young to know about love and care and acceptance.

Well, I can assure you, Senator: they know a whole lot more than you.”

 

This offence – at the fact LGBTI kids exist – was so great that, even though the independent review found the program to be effective, age-appropriate and consistent with the curriculum, they axed it anyway. The NSW Liberal National Government, and other conservative administrations around the country, quickly followed suit.

 

But while the offence of Liberal politicians that LGBTI kids have the temerity to exist might be part of the explanation for Safes Schools’ axing, it is by no means a complete explanation.

 

One perhaps even more important contributing factor is discussed in Benjamin Law’s Quarterly Essay, in response to the changes by then Education Minister Simon Birmingham that “schools must now obtain the approval of parent bodies to train teachers [in Safe Schools], and before any lessons are taught.”

 

As Paul Thoemke is quoted on page 57/58 in relation to trans children: “This may be the most politically unsavvy thing I can say. But I sometimes think the greatest risk for these kids is their families… Family life can be awful for a homosexual child, too. Youth who come out meet with parental grief, confusion, denial, or rage so hot that, for everyone involved, the prospect of the child eating from dumpsters or sleeping under bridges may be preferable to coexisting with them under the same roof.”

 

This really is the crux of the debate. Some parents are so homophobic, biphobic, transphobic or intersexphobic (often all four) that they would prefer LGBTI children to be in a wooden box rather than sitting at a wooden desk in a safe and supportive classroom. And not ‘just’ their own children, but all LGBTI kids.

 

Of course, the majority of parents do not see this issue in this warped way. They, like the LGBTI community itself, want to see all children have the ability to live their best lives.

 

Indeed, one of the features of this debate is that it is the LGBTI community and its allies who are arguing for the best interests of kids, while our opponents, who have long (falsely) railed against us with the ‘Won’t somebody please think of the children?’ mantra in the name of ‘traditional family values’, that are acting in the interests of intolerant adults.

 

Unfortunately, in 2016 the Turnbull Liberal-National Government listened to the hateful minority, followed by a number of states and territories.

 

As a result, in early 2019, the Safe Schools program is only functional in Victoria, the ACT (called the Safe and Inclusive Schools Initiative), Western Australia (called the Inclusive Education Program) and the Northern Territory.

 

It has been replaced by general, and generic, ‘anti-bullying programs’ in NSW, Tasmania and South Australia (disappointingly the Queensland Labor Government has never fully supported Safe Schools), in part based on the argument that LGBTI kids don’t deserve a special program to specifically promote acceptance of their difference.

 

Law takes apart this view in his Quarterly Essay on page 64, responding to an example about Hindu students from Elisabeth Taylor of the Australian Christian Lobby:

 

“When Taylor tells me this, I’m initially taken by her argument. Why should minorities of any kind have special treatment? Why should queer kids get the attention when others [sic] kids are being bullied too? It takes a while before the obvious presents itself: first, that general anti-bullying measures have existed for decades and haven’t helped queers at school. Second, that Safe Schools doesn’t exists solely for LGBTIQ youth, but also for the countless other Australian kids who are agents – as well as victims – of schoolyard homophobia. Third: Hindu children are born into Hindu families and communities, who affirm their religion, culture and worldview. Lesbian, gay, bisexual, transgender and intersex young people do not have that luxury. Gays are mostly raised in heterosexual families. And if our families and communities don’t accept us, there are consequences. One 2010 national study found that “rates of self harm are higher in [queer] young people who are not supported when they disclose to mother, dad, brother or sister.” If these kids aren’t safe at home or school, where else do they have?”

 

In 2019, we still have Governments at Commonwealth level, and in half the states and territories, that really don’t seem to care about the answer to that question.

 

Who don’t support the right of LGBTI kids simply to be – but instead listen to a vocal minority of bigots who would prefer LGBTI kids not to be. Themselves. Supported. Or Accepted.

 

The question is what we do about it. I would argue the onus is on us, the LGBTI community, our allies, and indeed every Australian who supports diversity, of sexual orientations, gender identities and sex characteristics, to vote against those Governments.

 

Because our kids are counting on us.

 

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Victorian Premier Daniel Andrews has shown the leadership too many of his Commonwealth, state and territory counterparts refuse to.

 

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Criminalising Ex-Gay Therapy

This post is part of a series looking at the unfinished business of LGBTI equality in Australia. You can see the rest of the posts here

 

One of the many positive outcomes of the passage of same-sex marriage legislation late last year is that it has – finally – given greater space for the discussion of other important (in many cases, more important) issues affecting the LGBTI community.

 

One that is attracting particular attention right now is so-called ‘ex-gay therapy’, or gay conversion therapy (and the related ex-trans or trans conversion therapy).

 

Indeed, a recently released survey of 2,662 LGBTIQ people, undertaken by just.equal and PFLAG, found that ending the practice of ex-gay therapy was the top priority for reform. As reported by the Guardian, “[s]ome 93% of LGBTIQ respondents rated a national ban on ‘conversion’ or ‘reparative’ therapies as of high or very high importance.”

 

This prominence can be attributed to a range of factors including recent coverage by journalists like Farrah Tomazin, and because of campaigning from ex-gay therapy survivor Chris Csabs (I encourage you to sign his Change.org petition, here.)

 

The subject was also the centre of controversy at this year’s Victorian Liberal Party state conference, where religious extremists within the organisation sought to pass a motion in defence of this dangerous and abhorrent practice (disappointingly, Commonwealth Health Minister Greg Hunt not only failed to condemn ex-gay therapy, but when asked instead argued for the right to ‘free speech’ for those who support it).

 

The abuse of lesbian, gay, bisexual, and transgender teenagers through ex-gay and ex-trans therapy is even the subject of two upcoming films, The Miseducation of Cameron Post and Boy Erased.

 

Of course, the attention this important issue is currently receiving is also a result of previous exposes from journalists such as Jill Stark, and the substantial work of ex-gay therapy survivor, and long-term campaigner, Anthony Venn-Brown of Ambassadors and Bridge Builders International (ABBI).

 

Thanks to all of these factors, it seems the time is ripe for long-overdue action to be taken to help end the practice of ex-gay and ex-trans therapy in Australia.

 

On a policy basis, there are two clear options for reform. The first lies in the existing regulation of health practitioners. This could include providing that offering or undertaking ex-gay or ex-trans ‘treatment’ is to be considered serious malpractice, because it is unsupported by any clinical evidence for its effectiveness (with plenty of evidence that it does not and never has worked, and that it nearly always causes severe psychological harm, including contributing to numerous suicides).

 

Any doctor, psychiatrist, psychologist, counsellor or other health care professional subsequently found to engage in these practices would consequently have their registration terminated and be banned from offering any health care services to the community in the future.

 

The second option is for wider legal reform, through the criminalisation of ex-gay and ex-trans therapy. This could cover any activity advertising, offering or undertaking by any individual or organisation seeking to change a person’s sexual orientation from same-sex attracted to heterosexual, or to alter gender identity to a person being cisgender.

 

Given the significant harms caused by this practice this would then be enforced through a possible term of imprisonment. Where any victims (or potential victims) of the ex-gay or ex-trans therapy are minors – who are therefore particularly vulnerable to such abuse – this fact could be treated as an aggravating factor, leading to increased penalties.

 

At this stage, only one Australian jurisdiction has taken concrete actions to prohibit ex-gay and ex-trans therapy, and that is Victoria, which has in fact adopted a ‘hybrid’ approach.

 

In 2017, the Andrews Labor Government created the Health Complaints Commissioner, which can investigate complaints against (some) registered and all ‘unregistered’ health practitioners, with the first appointee confirming that this would include pseudo-counselling services providing ex-gay and ex-trans therapy.

 

Where the Commissioner finds that a service is harmful, they can order the practitioner or organisation to cease providing it – and if they fail to do so, they can then be prosecuted, and potentially imprisoned (section 98 of the Health Complaints Act 2016 (Vic) provides that ‘a general health service provider who has been served with a prohibition order must comply with the order’, with a maximum penalty for a natural person for breaching this order of 240 penalty units or 2 years imprisonment, and for a body corporate of 1200 penalty units).

 

While these provisions are obviously a welcome step forward, it should be noted that there were no formal complaints in the first 12 months of the Commissioner’s operation (something that will hopefully be addressed by the current investigation into ex-gay therapy by the Commissioner).

 

Perhaps the bigger problem (or at least my problem with the Victorian approach) is that the act of providing ex-gay or ex-trans therapy itself is not criminalised. Even in the absence of a prohibition order by the Commissioner, this practice is so dangerous, and so harmful, that I believe it should attract criminal sanction in and of itself.

 

So-called ‘conversion therapy’ is, after all, nothing less than targeted psychological abuse, leading to severe actual or potential harm.

 

As this issue is hopefully addressed by other states and territories in coming months (with commitments already in place from some jurisdictions, such as the Australian Capital Territory) I think they should adopt both approaches:

 

  • The regulation of health practitioners, both registered and unregistered, who offer or undertake ex-gay or ex-trans therapy, and
  • The criminalisation of advertising, offering or undertaking ex-gay or ex-trans therapy by any individual or organisation, subject to potential imprisonment and including higher penalties where the victim (or potential victim) is a minor.

 

By implementing both, hopefully this abhorrent practice will finally be a thing of the past.

 

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Ex-gay therapy is having a cultural ‘moment’, with films like The Miseducation of Cameron Post (which is great, by the way). The question is whether Australian states and territories will seize the momentum that currently exists and ban this abhorrent practice once and for all.

 

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

Victoria’s Equal Opportunity Amendment (Religious Exceptions) Bill 2016

Update: 15 January 2017

 

Unfortunately, this legislation was voted down by the Victorian Legislative Council on 6 December 2016.

 

As reported by The Age here (‘Coalition and conservative crossbenchers unite to vote down equal rights bills’), the Liberal and National Parties rejected the Equal Opportunity Amendment (Religious Exceptions) Bill 2016, describing it as an attack on ‘religious freedom’.

 

Of course, it was nothing of the sort – instead it was a modest (some might argue too modest) reform that would have simply required religious schools and other religious bodies to demonstrate that any discrimination against LGBT employees was because of an ‘inherent requirement’ of the relevant job. Nothing less, and nothing more.

 

But even that was too much for Coalition MLCs, meaning lesbian, gay, bisexual and transgender teachers at religious schools, and LGBT employees at other religious organisations, can continue to be discriminated against for at least another two years, solely because of who they are and irrespective of the responsibilities of the actual role they are performing.

 

Hopefully, Victoria’s LGBTI community remembers this shameful sell-out by the Liberal and National Parties when they cast their ballots on 24 November 2018 – and that the next Parliament strengthens the state’s LGBTI anti-discrimination laws as a matter of priority in early 2019.

 

Original Post:

 

Ten days ago I wrote about the first of two LGBTI law reforms put forward by the Andrews Labor Government that are currently before the Victorian Parliament – the Births, Deaths and Marriages Registration Amendment Bill 2016.

This post will discuss the second – the Equal Opportunity Amendment (Religious Exceptions) Bill 2016.

As the title suggests, this Bill will amend the religious exceptions currently contained in the Equal Opportunity Act 2010, making it more difficult, in certain circumstances, for religious bodies and schools to discriminate against employees on the basis of their sexual orientation or gender identity[i].

It does this by reintroducing the ‘inherent requirements test’ for employment by religious bodies or schools, which was part of the Act as passed in 2010, but which was subsequently repealed by the Baillieu Liberal-National Government in 2011 before it commenced operation.

This test is set out in clauses 3 and 4 of the Bill, which would amend the current exceptions applying to religious bodies and religious schools featured in sections 82 and 83 respectively:

“(3) Nothing in Part 4 applies to anything done in relation to the employment of a person by a religious body where-

(a) conformity with the doctrines, beliefs or principles of the religion is an inherent requirement of the particular position; and

(b) the person’s religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity means that the person does not meet that inherent requirement.

(4) The nature of the religious body and the religious doctrines, beliefs or principles in accordance with which it is conducted must be taken into account in determining what is an inherent requirement for the purposes of subsection (3).”[ii]

As you can see from this proposed wording, these are very modest changes. All the Bill does is to remove the ‘blanket’ ability for religious bodies and schools to discriminate against all employees on the basis of these attributes, replacing it with a slightly narrower ability whereby, in order to discriminate, the body or school must show that such discrimination is required because of the particular position involved.

As described by Attorney-General Martin Pakula in his second reading speech:

“A large number of people are employed by or seek to be employed by religious bodies and schools in Victoria, in a range of different positions. In these circumstances, it is fair to ask these organisations to demonstrate the necessary connection between their religious beliefs and principles, and proposed discrimination in employment because of an individual’s personal attribute…

“What the test will do, and appropriately so, is require those organisations that do seek to discriminate in employment on religious grounds to demonstrate the necessary connection between their particular religious beliefs and the need to discriminate.”

pakulamartin58250

Victorian Attorney-General Martin Pakula

Despite the extremely modest nature of the Bill, it has nevertheless attracted strong opposition from the Australian Christian Lobby[iii] and the Liberal and National Opposition, meaning that, although it has cleared the Legislative Assembly where the Government has the numbers, it is unclear whether it will be passed in the Legislative Council where the Government does not, and where it is expected to be debated later this week (with Victorian Parliament sitting from Tuesday 11 October).

Given this, I have sent a short email to all members of the Victorian upper house, encouraging them to pass this Bill, with the text included at the end of this post.

Before we get to that, however, an important caveat. Regular readers of this blog would be aware that I am opposed to religious exceptions beyond those that are necessary for the appointment of religious office-holders, and for the observance of religious ceremonies.

Indeed, these views formed part of my criticisms of the Victorian anti-discrimination framework, expressed earlier this year in my post What’s Wrong With Victoria’s Equal Opportunity Act 2010?[iv]

On this basis, I would obviously support amendments to the religious exceptions contained in the Act that go beyond what has been proposed by the Andrews Labor Government. This would, at the very least, include extending the ‘inherent requirement test’ to protect those people accessing services, including education, from these religious bodies and schools, in addition to employees.

However, we have already seen an unsuccessful attempt by the Victorian Government, this term, to restrict the rights of religious bodies to discriminate against people accessing services – it sought to prevent discrimination against same-sex couples by religious adoption agencies as part of the broader introduction of adoption equality.

Those particular amendments to religious exceptions were defeated in the Victorian Legislative Council, while the overall reform passed.

In this context, it is difficult to see how any amendments to religious exceptions that go further than those currently proposed would be passed by the upper house[v]. Indeed, the fate of the narrow changes that are contained in the Equal Opportunity Amendment (Religious Exceptions) Bill 2016 still seems precarious.

As a result, I have chosen to send this short email calling for these reforms to be passed, as a minimum standard, and in the hope that more comprehensive changes may be able to be made by a subsequent parliament, one where (hopefully) the influence of the extreme right is less powerful[vi].

**********

Monday 10 October 2016

Dear Member of the Victorian Legislative Council

Please Support the Equal Opportunity Amendment (Religious Exceptions) Bill 2016

I am writing to call on you to support the Equal Opportunity Amendment (Religious Exceptions) Bill 2016 when it comes before the Legislative Council.

This Bill is an important reform that will better protect lesbian, gay, bisexual and transgender (LGBT) employees, and prospective employees, from discrimination that has absolutely nothing to do with their ability to do their jobs.

As noted by Attorney-General Martin Pakula in his second reading speech, these reforms simply ask religious bodies and schools to “demonstrate the necessary connection between their religious beliefs and principles, and proposed discrimination in employment because of an individual’s personal attribute.”

These are modest changes, and it is difficult to see how the introduction of an ‘inherent requirement test’ can be argued against.

In practice, voting against the reforms contained in the Equal Opportunity Amendment (Religious Exceptions) Bill 2016 is effectively saying that LGBT people can be discriminated against simply because of their sexual orientation or gender identity, even where there is absolutely no reason why they cannot perform a particular role.

I do not believe such an extreme ideological position is sustainable in 2016. I sincerely hope you agree, and in doing so, vote for this Bill.

Please do not hesitate to contact me, at the details provided below, should you have any questions, or wish to clarify any of the above.

Sincerely,

Alastair Lawrie

Footnotes:

[i] Noting that intersex status is not a protected attribute under Victorian law.

[ii] The wording of the amendment in relation to religious schools is largely similar.

[iii] Media Release, Is this kind of Government interference really warranted?, 1 September 2016.

[iv] Also expressed through my Submission to Victorian Greens Equal Opportunity Amendment (LGBTI Equality) Bill 2016.

[v] Perhaps the only complementary change that stands some chance of success in the current political environment would be the introduction of a provision requiring religious bodies and schools seeking to use the ‘inherent requirement exception’ to advertise the fact it will discriminate against LGBT employees with respect to particular positions, rather than simply asserting this ability as part of any defence to discrimination proceedings. However, determining whether such an amendment would be passed is best left to Victorian LGBTI advocates.

[vi] In drafting this email I have been careful to avoid language that rules out the need for further reform, or that would contradict amendments to the Bill, such as those proposed by the Victorian Greens (which would limit the ability of religious bodies or schools to discriminate to a greater degree), even if it is my personal view that such amendments are unlikely to be successful at this time.

Victoria’s Births, Deaths and Marriages Registration Amendment Bill 2016

Update: 14 January 2017

 

Unfortunately, this necessary and important legislation was voted down by the Victorian Legislative Council on December 6 2016.

 

As reported by SBS here (‘Gender change voted down in Vic parly’), the Victorian Liberal and National Parties combined with cross-bench conservative MLCs to reject the Births, Deaths and Marriages Registration Amendment Bill 2016.

 

In the process, Victorian Coalition MPs have ensured that the process for transgender people to amend their birth certificates remains onerous, and continues to exclude a large number of trans and gender diverse people completely, especially those who identify as non-binary and gender-fluid.

 

The decision to reject this vital reform was shameful, and will hopefully be remembered by all LGBTI Victorians when they go to the polls next, in November 2018.

 

Original post:

 

The Andrews Labor Government, elected in November 2014, has repeatedly demonstrated its commitment to the rights of lesbian, gay, bisexual, transgender and intersex (LGBTI) Victorians in its first two years in office. This includes:

  • Creating the nation’s first Minister for Equality (Martin Foley)
  • Appointing a Gender and Sexuality Commissioner (Rowena Allen) and establishing an LGBTI Taskforce
  • Legalising adoption by same-sex couples
  • Apologising to people unjustly convicted for historical homosexual offences
  • Committing funds to establish a Pride Centre, and
  • Defending the Safe Schools program from Commonwealth Government attacks.

It is currently pursuing two further important items of law reform. The first of these is the Births, Deaths and Marriages Registration Amendment Bill 2016 (the second, the Equal Opportunity Amendment (Religious Exceptions) Bill 2016, will be the subject of a later post).

As noted by Attorney-General Martin Pakula in the Bill’s second reading speech, “[t]he bill implements the government’s pre-election commitment to remove barriers for trans, gender diverse and intersex Victorians to apply for new birth certificates.”

Specifically, the Births, Deaths and Marriages Registration Amendment Bill 2016 will:

  • Remove the requirement for trans and gender diverse people to undergo gender affirmation surgery in order to alter their official records, including birth certificates
  • Remove the requirement for trans and gender diverse people to be unmarried in order to alter their records (thus ending the policy of ‘forced trans divorce’)
  • Simplify the process for adults to alter their records – with the new system based on a statutory declaration by the individual, supported by a statement from another adult who has known them for more than 12 months
  • Allow children to alter their records for the first time (with the application made by parent(s) or guardian(s), and supported by a statement from a doctor or registered psychologist that the alteration is in the child’s interest), and
  • Allow individuals to nominate a descriptor of their choice – ‘male’, ‘female’ or any other term chosen by the applicant (provided it is not obscene or offensive) – to recognise their trans, gender diverse or non-binary identity.

Writing as a cisgender gay man, these reforms seem very straightforward – allowing trans and gender diverse people to access documentation that reflects their identity, removing inappropriate and unjust barriers (such as the requirement to undergo gender affirmation surgery – something many trans people will never do – and abolishing the horrific practice of forced trans divorce).

The reforms also appear to be widely supported by trans, gender diverse and intersex advocates, with Transgender Victoria’s Chair Brenda Appleton noting that “[t]his is a profoundly important reform for our community, as many of us are currently prevented from changing the most basic form of documentation to reflect our true identity.”[i]

Intersex advocate Gina Wilson also welcomed the changes in the same media release: “[f]or the Victorian Parliament to say ‘we give you here a document that acknowledges the truth of your life’ would be life changing… It is very difficult to explain to someone who has never struggled to fit in the way Intersex people often have to how much joy and relief that would bring.”

Consequently, one would hope such legislation, respecting the autonomy of people to nominate their own gender identity or sex, rather than having one imposed upon them (by the medical profession, and ultimately by the Government), would be uncontroversial.

Alas, those hopes were forlorn. The Bill has been opposed by the ‘unholy’ triumvirate of contemporary Australian politics: the right-wing of the Coalition, the Australian Christian Lobby, and News Corp (in this case, via the Herald Sun).

The Bill has already been debated, and voted on, in the Legislative Assembly, where it only passed by a margin of 45 votes to 35. The debate leading up to this vote saw a number of ill-informed and, frankly, intolerant, contributions by some members of the Liberal and National Parties, perhaps none ‘less-informed’ than that by the Member for Ripon, Louise Staley. Her speech included the following ignorant observations:

“I oppose this bill. This bill goes too far. This government is in thrall to highly contested gender theories. This is the sort of post-modernist mumbo jumbo we have come to expect from the Andrews Labor Government…

“I ask the house to reflect on what we are doing when we allow a man – and the statistics show most transgender people are born male – who has male chromosomes and who naturally has the right to enjoy the privileges we as a society still give to men, such as earning more and dominating business and politics, to choose to be recognised by the state as a woman because he feels like a sex he biologically is not and cannot by definition actually ever experience. I cannot help feel that such men are engaged in a radical form of mansplaining, telling women what really makes one a woman…

“The feminist in me objects strongly to a man changing his birth certificate to female because he feels enough of a woman to identify as one but not enough to take the step of permanently doing so…

“There are also women-only spaces, services, shelters et cetera that explicitly exclude men for feminist or safety reasons. Allowing preoperative transgender people to join these bodies – especially, I may add, to make political points or to pursue activism – will at some point cause great distress to all involved.”

Many of the worst aspects of transphobia – deliberately misgendering trans people, invalidating non-binary identities, creating panic about trans women accessing women’s spaces – are present and accounted for in Ms Staley’s offensive and outrageous speech. If you want to read the full catastrophe, you can find it here (but make sure you don’t eat immediately beforehand).

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Transphobic Victorian Liberal MLA Louise Staley

Of course, right-wing Liberal and National Party MPs are not the only ones capable of extreme transphobia. As expected, Lyle Shelton and the Australian Christian Lobby have lived down to their already-low public reputation by inciting bathroom panic as part of their campaign against the Bill. In a web post titled “Why is This Government Putting Women at Risk?”[ii] (yes, seriously), they wrote:

“Australian Christian Lobby Managing Director Lyle Shelton said radical changes that would allow men identifying as women to enter women’s private spaces such as toilets and change rooms needed wider discussion…

“Mr Shelton said Mr Andrews [sic] new laws would make private space unsafe for women. “Why should a man identifying as a woman be allowed into a woman’s gym or a domestic violence shelter? Why should biological males identifying as women be allowed into women’s public toilets and shower facilities?””

It seems the ACL is intent on importing the worst kind of hate-speech from its international counterparts, and especially from anti-LGBTI groups in the United States, whipping up fear against trans women and vilifying people on the basis of their gender identity[iii].

And of course, where right-wing Liberals and Nationals and the ACL ‘lead’ (into the gutter), News Corp papers usually follow – with the Herald Sun backing the transphobic campaign against what should, on its merits, be uncontentious legislation.

In an appalling article titled “Laws allowing Victorians to choose sex on birth certificate raise safety concerns,”[iv] Rita Panahi wrote:

“New laws allowing Victorians to choose their sex on a birth certificate will compromise the safety of female-only spaces, including single-sex schools  changing rooms, domestic violence shelters and even prisons, according to a women’s rights group…

“The proposed changes, which passed the Lower House earlier this month, could see boys and men identifying as female – but with no intention of undergoing gender reassignment or clinical treatment – being allowed access to areas reserved for girls and women.”

Umm, Rita, that would be because they are girls and women, and therefore have the right to access ‘areas reserved for girls and women’. And, just like Ms Staley and Mr Shelton before you, you should already be aware that deliberating misgendering trans people in this way is extremely offensive.

The Bill that has prompted this backlash is expected to be debated in the Legislative Council in the week beginning Tuesday 11 October. Given that the ALP does not have a majority in the Upper House (even with the addition of Greens and Sex Party MLCs), and the ongoing scare campaign against its provisions, it is now uncertain whether the Births, Deaths and Marriages Registration Amendment Bill 2016 will in fact be passed.

As a result, I have sent the below short email to all Members of the Victorian Legislative Council, calling on them to support the Bill. If you have time between now and October 10th, I encourage you to do the same. You can find the contact list for MLCs here.

**********

Friday 30 September 2016

Dear Member of the Victorian Legislative Assembly

Please Support the Births, Deaths and Marriages Registration Amendment Bill 2016

I am writing to you to urge you to support the Births, Deaths and Marriages Registration Amendment Bill 2016 when it is debated and voted upon in October.

This legislation is important because it will remove the barriers that exist for trans, gender diverse and intersex people in terms of accessing new birth certificates.

Specifically, I understand that the Bill will:

  • Remove the requirement for trans and gender diverse people to undergo gender affirmation surgery in order to alter their official records, including birth certificates
  • Remove the requirement for trans and gender diverse people to be unmarried in order to alter their records (thus ending the policy of ‘forced trans divorce’)
  • Simplify the process for adults to alter their records – with the new system based on a statutory declaration by the individual, supported by a statement from another adult who has known them for more than 12 months
  • Allow children to alter their records for the first time (with the application made by parent(s) or guardian(s), and supported by a statement from a doctor or registered psychologist that the alteration is in the child’s interest), and
  • Allow individuals to nominate a descriptor of their choice – ‘male’, ‘female’ or any other term chosen by the applicant (provided it is not obscene or offensive) – to recognise their trans, gender diverse or non-binary identity.

These appear to be straightforward reforms that respect the autonomy of people to nominate their own gender identity or sex, rather than having one imposed upon them by clinicians or the Government. I note they are also supported by trans, gender diverse and intersex advocates.

As highlighted by Jo Hirst, these reforms “won’t mean much to most Victorians, but to an estimated 4 per cent of the population it means everything. It’s certainly significant for my little boy, who’s transgender. He recently told me it would mean more to him than food.”[v]

Hirst then further observes that “[t]o have their birth certificate reflect their true identity would empower young transgender people to fully participate in all the educational, social, sporting and job opportunities our society has to offer. Most importantly it would give them a sense of validation that would help them feel whole.”

I therefore call on you to support the Births, Deaths and Marriages Registration Amendment Bill 2016 to better recognise the human rights of trans, gender diverse and intersex Victorians, by simplifying the process by which they can ensure official records reflect their gender identity or sex.

If you have any questions or would like additional information, please contact me at the details provided below.

Sincerely,

Alastair Lawrie

**********

Footnotes:

[i] Media Release, Birth certificate reforms will deliver respect and recognition for trans, gender diverse and intersex Victorians, 12 September 2016.

[ii] Australian Christian Lobby, Why is this Government Putting Women at Risk?, 29 August 2016.

[iii] Noting of course that anti-LGBTI vilification is not prohibited currently under either Victorian or Commonwealth law.

[iv] Herald Sun, Laws allowing Victorians to choose sex on birth certificate raise safety concerns, 27 September 2016.

[v] Sydney Morning Herald, Surgical sterilisation shouldn’t be the cost of correcting a transgender person’s birth certificate, 15 September 2016.

Submission to Victorian Greens Equal Opportunity Amendment (LGBTI Equality) Bill 2016

The Greens Member for Prahran in the Victorian Parliament, Sam Hibbins, is currently undertaking consultation on his exposure draft Bill to amend the Victorian Equal Opportunity Act 2010.

Full details of the consultation process can be found here. The following is my submission:

Mr Sam Hibbins MP

Member for Prahran

94 Chapel St

Windsor VIC 3181

sam.hibbins@parliament.vic.gov.au

Friday 12 February 2016

Dear Mr Hibbins

Consultation on Equal Opportunity Amendment (LGBTI Equality) Bill 2016

Thank you for the opportunity to provide a submission on your exposure draft Equal Opportunity Amendment Bill.

Thank you also for your commitment to improving the anti-discrimination protections that are provided to lesbian, gay, bisexual, transgender and bisexual (LGBTI) Victorians.

I agree with your statement, made as part of this consultation, that “The [Equal Opportunity] Act needs updating so that it better protects same-sex and gender diverse Victorians from discrimination at school, at work and in the community” (although I note that the phrase ‘same-sex and gender diverse’ does not include intersex people).

I believe that your exposure draft Bill addresses two of three major deficiencies in the current Act (and that I have written about previously – What’s Wrong With the Victorian Equal Opportunity Act 2010).

Specifically, the Bill would significantly improve the protected attributes that are included in the Act, by:

  • Introducing a new protected attribute of ‘intersex status’, consistent with the protections offered under the Commonwealth Sex Discrimination Act 1984, and
  • Updating the definition of ‘gender identity’ to be broader, and to remove any requirement to identify as either male or female in order to attract anti-discrimination coverage (and again in line with the 2013 Federal Labor Government reforms to the Sex Discrimination Act).

Both of these changes are overdue, and are welcome.

I also support the proposed amendments to reduce the current excessive and unjustified ‘exceptions’ that are offered to religious organisations and individuals allowing them to discriminate against LGBT Victorians in circumstances where it would otherwise be unlawful to do so.

The balance which the Bill strikes – removing religious exceptions in schools and other services, in employment and by individuals, while retaining exceptions for ‘core religious functions’, such as the appointment of ministers of religion and the conduct of religious ceremonies[i] – appears to be a reasonable one.

However, there is one major deficiency of Victorian anti-discrimination and vilification law that your exposure draft Equal Opportunity Amendment (LGBTI Equality) Bill 2016 does not address – and that is the absence of anti-vilification protections covering LGBTI people.

As I have written previously:

“There are… protections against both racial and religious vilification under Victoria’s Racial and Religious Tolerance Act 2001.

“With homophobic, biphobic, transphobic and intersexphobic vilification just as serious, and just as detrimental, as racial and religious vilification, there is no reason why LGBTI people should not have equivalent protections under Victorian law.”[ii]

In this context, the major suggestion I would make for improvement to your exposure draft Bill is for you to consider amendments to introduce protections against vilification on the basis of sexual orientation, gender identity and intersex status, equivalent to the current prohibitions on racial and religious vilification contained in the Racial and Religious Tolerance Act 2001.

Outside of these three main issues – protected attributes, religious exceptions and anti-vilification protections – the other reforms proposed by the exposure draft Bill, to “restore… the powers of the Victorian Equal Opportunity and Human Rights Commission to conduct public inquiries, enter into enforceable undertakings and to issue compliance notices” and to “restore… the power for the Commission to order someone to provide information and documents, and to order a witness… to attend and answer question” also appear reasonable.

Overall, then, I support the provisions contained in the exposure draft Equal Opportunity Amendment (LGBTI Equality) Bill 2016, but encourage you to consider adding provisions to provide protections against vilification on the basis of sexual orientation, gender identity and intersex status.

Beyond the content of the proposed Bill itself, however, I would like to make the additional point that, given the failure of the Victorian Legislative Council to support reforms in late 2015 to ensure that religious organisations could not discriminate against LGBTI people accessing adoption services, the passage of any of the above reforms would appear to be difficult, at least in the current term of Parliament.

In this context, I urge you and the Victorian Greens to work collaboratively with the state Labor Government, the Sex Party (who also supported last year’s reforms), and the Victorian LGBTI community, to persuade remaining cross-benchers, and indeed sympathetic Liberal and National MLCs, to support at least some of these reforms now – while retaining the option of passing the remainder following the 2018 election.

Thank you for taking this submission into consideration. If you would like any additional information, or to clarify any of the above, please contact me at the details provided below.

Sincerely

Alastair Lawrie

160212 Sam Hibbins

Member for Prahran, Sam Hibbins MP.

Update: 14 January 2017

The Greens introduced an amended version of this legislation into Victorian Parliament in mid-2016.

Renamed the Equal Opportunity Amendment (Equality for Students) Bill 2016, as the name suggests it focused specifically on ensuring religious schools could not discriminate against LGBT students.

Its major provision would have added the following new section to the Equal Opportunity Act 2010:

84A Discrimination against school students not exempt

Sections 82(2), 83 and 84 do not permit discrimination by a person or body that establishes, directs, controls, administers or is an educational institution that is a school against a student on the basis of the student’s sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity.”

Unfortunately, despite the modest nature of this proposed reform, it was rejected by the Victorian Legislative Council on November 9 2016, by a margin of 32 to 6 (as reported by the Star Observer here).

Footnotes:

[i] The Bill would leave sub-section 82(1) of the Victorian Equal Opportunity Act 2010 in tact:

“Nothing in Part 4 applies to-

  • the ordination or appointment of priests, ministers of religions or members of a religious order; or
  • the training or education of people seeking ordination or appointment as priests, ministers of religion or members of a religious order; or
  • the selection or appointment of people to perform functions in relation to, or otherwise participate in, any religious observance or practice.”

[ii] What’s Wrong With the Victorian Equal Opportunity Act 2010 

What’s Wrong With the Victorian Equal Opportunity Act 2010?

This post is part of a series looking at Australia’s Commonwealth, state and territory anti-discrimination laws analysing how well – or in some cases, how poorly – they protect lesbian, gay, bisexual, transgender and intersex (LGBTI) people from discrimination and vilification (other posts in the series can be found here).

Each post examines that jurisdiction’s LGBTI anti-discrimination laws, focusing on three main areas:

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

Unfortunately, as we shall see below, Victoria’s Equal Opportunity Act 2010 has serious deficiencies on all three fronts. It is time for the Parliament to act to ensure LGBTI Victorians enjoy adequate protections against homophobic, biphobic, transphobic and intersexphobic discrimination and vilification.

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Protected Attributes

Victoria’s first anti-discrimination protections for lesbian, gay and bisexual people were introduced in 1995. However, rather than protecting people from discrimination on the basis of sexual orientation or homosexuality and bisexuality, the Act instead covered ‘lawful sexual activity’.

This protected attribute was defined as “engaging in, not engaging in or refusing to engage in a lawful sexual activity”[i] and, with its focus on behaviour rather than identity, it is questionable how effective these protections were in practice.

Fortunately, as the name suggests, the Equal Opportunity (Gender Identity and Sexual Orientation) Act 2000 introduced ‘sexual orientation’ as a protected attribute, defined as “homosexuality (including lesbianism), bisexuality or heterosexuality.”[ii]

While the language used may not be the same that would be used today[iii], it is clear that lesbian, gay and bisexual Victorians are all covered by the Equal Opportunity Act 2010.

The same amending legislation in 2000 also introduced anti-discrimination protections for transgender Victorians for the first time.

This is because it introduced ‘gender identity’ as a protected attribute, with the following definition (that remains in place today):

gender identity means-

(a) the identification on a bona fide basis by a person of one sex as a member of the other sex (whether or not the person is recognised as such)-

(i) by assuming characteristics of the other sex, whether by means of medical intervention, style of dressing or otherwise; or

(ii) by living, or seeking to live, as a member of the other sex; or

(b) the identification on a bona fide basis by a person of indeterminate sex as a member of a particular sex (whether or not the person is recognised as such)-

(i) by assuming characteristics of that sex, whether by means of medical intervention, style of dressing or otherwise; or

(ii) by living, or seeking to live, as a member of that sex.”[iv]

Paragraph (a) of this definition applies to transgender people, although, given its focus on ‘binary’ genders, it would appear to only cover those people whose sex was designated as male at birth, but now identify as female (and vice versa). It does not appear to cover people with non-binary gender identities.

The definition in the Victorian Equal Opportunity Act 2010 is therefore no longer best practice, and a new, more inclusive definition of gender identity should be adopted[v] to ensure all transgender people benefit from anti-discrimination protection.

Intersex Victorians are even worse off when it comes to current state anti-discrimination legislation. Paragraph (b) of the definition of gender identity, above, offers their only protection under Victorian law, and it is problematic because:

  • It inappropriately conflates intersex status, which relates to physical sex characteristics, with gender identity, and
  • It only appears to protect people with intersex variations where they identify as either male or female.

In order to remedy this situation, a stand-alone protected attribute of ‘sex characteristics’ should be added to the Act, based on the call by intersex activists in the March 2017 Darlington Statement[vi].

Summary: Lesbian, gay and bisexual Victorians are covered by the Equal Opportunity Act 2010, although some transgender people are likely to fall outside the current binary definition of gender identity. Likewise, many people with intersex variations living within Victoria are unlikely to be covered by the protections offered under the existing Act. Therefore, a more inclusive definition of gender identity should be adopted, alongside a new, stand-alone protected attribute of sex characteristics.

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Religious Exceptions

The religious exceptions contained in Victoria’s Equal Opportunity Act 2010, are, to put it bluntly, outrageous. They are so broad, and so generous, that they substantially, and substantively, undermine laws that are supposed to redress discrimination against LGBTI people (amongst other groups).

While the exceptions for religious bodies[vii] contained in subsection 82(1)[viii] appear largely innocuous, relating to the appointment or training of religious ministers and the selection of people to perform religious services, it is only downhill from there.

For example, subsection 82(2) states that:

“Nothing in Part 4 applies to anything done on the basis of a person’s religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity by a religious body that-

(a) conforms with the doctrines, beliefs or principles of the religion; or

(b) is reasonably necessary to avoid injury to the religious sensitivities of adherents of the religion.”

Essentially, as long as a religious organisation can show that discriminating against LGBTI people is related to their religion, they have carte blanche to do so in areas where it would be otherwise unlawful.

And, lest there be any doubt that these provisions cover religious schools – allowing them to discriminate against LGBTI teachers and students – section 83 reinforces the ‘right’ to discriminate on these grounds:

83 Religious schools

(1) This section applies to a person or body, including a religious body, that establishes, directs, controls, administers or is an educational institution that is, or is to be, conducted in accordance with religious doctrines, beliefs or principles.

(2) Nothing in Part 4 applies to anything done on the basis of a person’s religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity by a person or body to which this section applies in the course of establishing, directing, controlling or administering the educational institution that-

(a) conforms with the doctrines, beliefs or principles of the religion; or

(b) is reasonably necessary to avoid injury to the religious sensitivities of adherents of the religion.”

The Victorian Equal Opportunity Act 2010 even includes a somewhat unusual, ‘special right’ for individuals to discriminate against other individuals:

84 Religious beliefs or principles

Nothing in Part 4 applies to discrimination by a person against another person on the basis of that person’s religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity if the discrimination is reasonably necessary for the first person to comply with the doctrines, beliefs or principles of their religion.”[ix]

Tasmania is the only other jurisdiction to include a similar ‘individual’ right to discriminate, although it only allows discrimination on the basis of religion – and not on the basis of sexual orientation, gender identity or intersex status.

Perhaps the most disappointing aspect of these exceptions is that the most recent changes in this area took the law backwards.

In 2010, the then Labor Government introduced amendments to both the general religious exception, and the specific religious schools exception, so that, in order to discriminate in employment the religious body or school would first need to show that:

“(a) conformity with the doctrines, beliefs or principles of the religion is an inherent requirement of the particular position; and

(b) the person’s religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity means that he or she does not meet that inherent requirement.”[x]

However, before this ‘inherent requirement’ test could even take effect, the newly-elected Liberal-National Government repealed these provisions in 2011, effectively restoring the previous broad and generous exceptions.

Not only are groups like the Australian Christian Lobby, Christian Schools Australia and the Catholic Education Office all (predictably and) vehemently opposed to limiting what is in practice an almost unfettered right to discriminate against LGBTI employees[xi], the history of recent adoption equality legislation also shows just how committed the Liberal and National parties are to protecting this so-called ‘right’.

For those who may be unaware, as part of the long overdue introduction of equal adoption rights for same-sex couples in Victoria[xii], the Andrews Labor Government proposed that religious agencies providing adoption services should not be allowed to discriminate against LGBT people. The amendment sought to add a new subsection (3) to section 82 of the Act:

“Despite subsection (2), Part 4 applies to anything done by a religious body that is an approved agency within the meaning of the Adoption Act 1984 in relation to its exercise of any power or performance of any function or duty under that Act for or with respect to adoption, whether or not the power, function or duty relates to a service for a child within the meaning of that Act or for any other purpose.”

Unfortunately, the Liberal and National parties combined with some cross-bench MPs to defeat this amendment, meaning that, while the right of same-sex couples to adopt has now finally been passed, adoption services operated by religious organisations will continue to have the ‘right’ to turn those same couples away.

Undeterred by this setback, in the second half of 2016 the Andrews Labor Government attempted to implement its election commitment by reintroducing the inherent requirements test for anti-LGBT discrimination in employment via the Equal Opportunity Amendment (Religious Exceptions) Bill 2016.

Yet again, however, the Liberal and National parties used their numbers in the Legislative Council to block this modest reform, meaning LGBT teachers at religious schools, and employees at other religious organisations, can still be discriminated against simply because of who they are, and even where this discrimination has nothing whatsoever to do with the actual role they are performing.

With the Andrews Labor Government re-elected on 24 November 2018, and a potentially more supportive Legislative Council, it is now up to Minister for Equality Martin Foley MP and his Government to push for broader reforms than simply re-instating the ‘inherent requirement’ test for employment to considering how best to prohibit discrimination against LGBTI people accessing services.

Ultimately, of course, there is a need to remove all religious exceptions outside those required for the training and appointment of religious ministers, and for the conduct of religious ceremonies.

Summary: The religious exceptions contained in the Victorian Equal Opportunity Act 2010 are overly broad, too generous, and – frankly – outrageous. Current provisions give religious bodies and religious schools wide powers to discriminate both against LGBTI employees and against LGBTI people accessing their services.

The Labor Government is to be commended for attempting to reinstate the ‘inherent requirement’ test for discrimination in employment, and to remove exceptions for religious adoption agencies – but now, following their re-election, they must go further and, at the very least, remove exceptions which allow religious schools to discriminate against LGBT students, teachers and other staff.

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Anti-Vilification Coverage

This section will be the shortest of the post – because, unlike NSW, Queensland, Tasmania and the ACT, there are no anti-vilification laws covering any parts of the LGBTI community.

Given the similar absence of LGBTI anti-vilifications provisions under Commonwealth law, this means Victoria’s lesbian, gay, bisexual, transgender and intersex community do not have any recourse to legislative anti-vilification protection.

There are, however, protections against both racial and religious vilification under Victoria’s Racial and Religious Tolerance Act 2001.[xiii]

With homophobic, biphobic, transphobic and intersexphobic vilification just as serious, and just as detrimental, as racial and religious vilification, there is no reason why LGBTI people should not have equivalent protections under Victorian law.

Summary: There is currently no anti-vilification coverage for LGBTI people under Victorian law. However, given there are existing protections against racial and religious vilification, LGBTI anti-vilification laws should be introduced, too.

Significantly, in 2009, Fiona Patten MLC introduced a Bill to amend the Racial and Religious Tolerance Act to include sexual orientation, gender identity and sex characteristics as protected attributes (alongside gender and disability). This has prompt a parliamentary inquiry into anti-vilification protections – see my submission to that inquiry here. Hopefully, this Bill and inquiry prompts the Victorian Government and Parliament to pass this long-overdue, and much-needed, reform.

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In conclusion, it is clear there is plenty wrong with the Victorian Equal Opportunity Act 2010 – from the need to update the definition of gender identity, and to introduce a new protected attribute covering sex characteristics, to reforming the overly-generous religious exceptions contained in the Act, and to ensuring LGBTI Victorians have equivalent access to anti-vilification protections as those based on race and religion. Which means there is plenty of work for the Government, and Parliament, to do.

Daniel Andrews

It’s time for Victorian Premier Daniel Andrews to make sure all Victorians are protected against discrimination, including LGBT students and teachers in religious schools, and non-binary and intersex people.

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Footnotes:

[i] This definition remains in subsection 4(1) of the Equal Opportunity Act 2010.

[ii] Subsection 4(1), Equal Opportunity Act 2010.

[iii] For example, the Commonwealth Sex Discrimination Act 1984, which was amended in 2013, defines ‘sexual orientation’ 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.”

[iv] Subsection 4(1), Equal Opportunity Act 2010.

[v] Potentially modelled on the definition adopted by the Commonwealth Sex Discrimination Act 1984: “gender identity means the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth.” [Although obviously exact wording should be agreed with Victoria’s transgender community.]

[vi] While the inclusion of ‘intersex status’ in the Commonwealth Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 was seen as world leading at the time, intersex activists now prefer the terminology ‘sex characteristics’ be used as a protected attribute.

[Again, the final wording of the new definition would need to be agreed in consultation with Victoria’s intersex community.]

[vii] Defined in section 81 as “(a) a body established for a religious purpose; or (b) an entity that establishes, or directs, controls or administers, an educational or other charitable entity that is intended to be, and is, conducted in accordance with religious doctrines, beliefs or principles.”

[viii] Subsection (82)(1) “Nothing in Part 4 applies to-

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

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

(c) the selection or appointment of people to perform functions in relation to, or otherwise participate in, any religious observance or practice.”

[ix] Not only is it unclear why this section is necessary (given the protections contained in Part 4 only apply in specific areas of public life, such as employment, education, the provision of goods and services and accommodation, rather than establishing a general right to non-discrimination), it is also concerning that this ‘special right’ extends to unincorporated associations (because ‘person’ is defined in subsection 4(1) of the Equal Opportunity Act as “person includes an unincorporated association and, in relation to a natural person, means a person of any age.”)

[x] The same wording was used in both subsections 82(3) and 83(3) of the then Equal Opportunity Act 2010.

[xi] “Religious groups hit out at Labor’s move to rewrite state’s equal opportunity laws”, The Age, 8 December 2014.

[xii] As passed in the Adoption Amendment (Adoption by Same-Sex Couples) Act 2015.

[xiii] Section 7 prohibits racial vilification while section 8 prohibits religious vilification: Racial and Religious Tolerance Act 2001.