In 2015 and 2018, under then-Leader Bill Shorten, the Australian Labor Party adopted national party platforms with wide-ranging policy commitments on LGBTIQ issues. These helped to inform the promises taken to the federal elections in the following years, which were similarly-broad in scope.
In 2021, the ALP, under Shorten’s replacement Anthony Albanese, adopted a much more narrowly-drafted party platform, which involved jettisoning some previously-held LGBTIQ policies (although a few of these were restored via conference resolutions from the floor). This was then reflected in an relatively narrow range of LGBTIQ promises at the May 2022 election.
With the next ALP National Conference coming up in Brisbane on August 17-19 2023, this week the Party’s national policy forum released its draft Platform for public consultation.
Unfortunately, the LGBTIQ policy commitments it contains have been pared back even further than the already-limited 2021 offerings, including in the following key areas:
The draft platform axes previous support for LGBTIQ vilification protections
The 2021 National ALP Platform includes a commitment that:
‘Labor will work closely with LGBTIQ Australians and advocates to develop policy that will…
b. strengthen laws and expand initiatives against discrimination, vilification and harassment on the basis of sexual orientation, gender identity or sex characteristics.’ (p64).
The 2023 draft Platform instead includes the general statement that: ‘Labor will work closely with LGBTIQ+ Australians and advocates to develop policy that meets the specific needs of the community to ensure equality with broader Australian society.’ (p56).
This clause is so generic, and so bland, as to be almost meaningless.
It is difficult to comprehend why previous ALP support for vilification protections has been axed in the current political climate, with TERFs and neo-Nazis rallying on the steps of Victorian Parliament, Christian Lives Matter rioting in Sydney, Mark Latham being Mark Latham, and escalating violent threats against local councils hosting Drag Story Time events (and LGBTIQ community events more broadly).
What makes this axing even worse is that, just two pages later, under the heading ‘Freedom of thought, conscience and religion’, the 2023 draft Platform actually retains its previous commitment from the 2021 Platform for Commonwealth religious vilification laws:
‘Labor believes that people of faith deserve the same human rights, equality, respect and safety as every other Australian. No Australian should ever be vilified, discriminated against or subjected to violence or threats of violence because of that person’s religion or religious belief. Labor will work to ensure that Australia’s anti-vilification laws and discrimination framework are fit for purpose.’ (p58).
Those are strong sentiments. I, and I’m sure many other LGBTIQ Australians, could perhaps suggest another community, currently under sustained attack from far-right extremists, who could perhaps do with a similar expression of support…
But the piece de resistance of this shameful situation is that the draft Platform actually repeats the promise of religious vilification laws on the following page for a second time:
‘Labor believes that people of faith deserve the same human rights, equality, respect and safety as every other Australian. No Australian should ever be vilified, discriminated against or subjected to violence or threats of violence because of that person’s religion or religious belief. Labor will therefore ensure that Australia’s anti-vilification laws are fit for purpose.’ (p59).
So, the draft 2023 ALP Platform axes support for LGBTIQ vilification protections, at a time when we need them more than ever, while promising it to people of faith. Twice.
That’s the opposite of great.
2. The draft platform axes previous support for affordable trans health care
The 2015 and 2018 ALP National Platforms included commitments to, where possible, reducing out-of-pocket medical costs for gender-affirming health care.
While this was cut from the official platform in 2021, a conference resolution was passed which included the following:
‘Labor acknowledges the needs and rights of transgender and gender diverse people to fair, equal and affordable access to health care services. For many, this many include accessing vital specialist health services and gender-affirming medical technologies. Labor commits to removing, wherever possible, barriers to accessing these services in consultation with medical experts and government.’ (p140).
That statement appears to have been significantly cut back, reappearing in the following form in the 2023 draft:
‘Labor supports queer, transgender and gender diverse Australians and their families, and will work to support their agency in health decisions. Labor will provide access to the vital health and support services LGBTIQ+ Australians need.’ (p44).
Worryingly, this redrafted clause removes any specific reference to the affordability of trans health care, which is really the point: far too many trans and gender diverse people are currently blocked from accessing the care they need because they simply cannot afford it.
3. The draft platform axes most intersex-specific commitments
Intersex Australians fare even worse than their trans and gender diverse counterparts in the draft 2023 Platform.
The 2021 version included a commitment to: ‘support intersex-led organisations to provide support to intersex persons and their families, and advocate on intersex issues.’ (p64).
The 2021 conference also passed multiple resolutions from the floor, including statements that:
‘Labor will recognise the bodily integrity of intersex persons, prohibiting modifications to the sex characteristics of people with innate variations of sex characteristics performed for social or cultural reasons, and ensuring respect for intersex persons right not to undergo sex normalisation treatment. Labor commits to supporting the development and implementation with community participation of human-rights affirming oversight and standards of care, including for accessing lifetime medical treatments and procedures.’ (p140).
and
‘Labor will ensure that the actions of a Federal Labor Government are informed by the Yogyakarta Principles on the Application of International Human Rights Law in Relation to sexual orientation, gender identity, gender expression and sex characteristics and the Plus 10 Supplementary Principles. Further, Labor acknowledges the Darlington Statement as a guide to intersex policy responses within Australia.’ (p142).
As far as I can tell, not one of these commitments made it into the draft 2023 Platform. This is deeply troubling given the human rights abuses experienced by intersex Australians aren’t just the worst of those affecting the LGBTIQ community, they are some of the worst affecting any group in Australia.
4. The draft platform fails to support an LGBTIQA+ Human Rights Commissioner at the Australian Human Rights Commission
One area where the draft Platform hasn’t gone backwards from 2021 is on the question of a stand-alone, dedicated Commissioner for Sexual Orientation, Gender Identity and Sex Characteristics at the Australian Human Rights Commission (AHRC) – because neither version commits to creating this much-needed role.
However, the 2015 and 2018 platforms did, with the Shorten Labor Opposition promising to introduce one at both the 2016 and 2019 federal elections.
Recent events have, I believe, demonstrated the urgent need for such a position. Unfortunately, in the absence of an LGBTIQA+ Commissioner, the AHRC has not issued any media releases in response to the TERF and neo-Nazi rally, Christian Lives Matter riot, or escalating threats of violence against Drag Story Times.
The LGBTIQ community is under attack, and it feels like nobody federally is on our side.
Instead of seeking to rectify this situation, the draft 2023 Platform offers this acceptance of the unsatisfactory status quo: ‘Labor supports the Australian Human Rights Commission and its commissioners, including the important work they do to promote a more inclusive and respectful society.’ (p59).
We need an LGBTIQA+ Commissioner, and we need it yesterday.
Who knows, perhaps if there already was such an office-holder, the people responsible for drafting the consultation version of the 2023 national platform might have done a better job at understanding the need for more, and more-detailed, LGBTIQ policy commitments?
*****
If you haven’t guessed by now, I am genuinely disappointed (#understatement) by the draft national ALP platform released this week, and its omission of key policy commitments affecting the LGBTIQ community.
Beyond that, I am perturbed by the thought process that must have gone into the decision to cut support for things like LGBTIQ vilification protections, at a time of growing threats of violent extremism against our community.
The four issues outlined above are just those I have identified today. I am sure there will be others, affecting different parts of our community, which will become apparent in the coming days.
But there is an urgency to this analysis, because the draft platform is only open for public consultation until 23 June (ie just over three weeks away).
It’s time to get writing – and get lobbying – because what the ALP national policy forum has released this week is simply not good enough on LGBTIQ issues.
Anthony Albanese at the 2021 ALP National Conference.
Yes, I acknowledge it’s early April (and a lot has already happened this year, including Better Together in Adelaide, Sydney World Pride, TERF tours, neo-Nazi rallies, Christian Lives Matter riots and Mark Latham being, well, Mark Latham ie a homophobic and transphobic bigot).
But there’s still plenty of 2023 yet to come. I would therefore like to take this opportunity to set out what I think are, or should be, some of the law reform priorities for the lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) community in Australia.
Ending non-consenting surgeries and other harmful medical interventions on children born with variations of sex characteristics
The ongoing mistreatment of intersex kids, which includes egregious violations of the fundamental right to bodily autonomy, remains the worst human rights abuses against any part of the LGBTIQ community.
Once passed, the ACT will become the first jurisdiction in Australia to prohibit many of these non-consenting surgeries and other harmful medical interventions.
This achievement obviously reflects the leadership of ACT Chief Minister Andrew Barr, and his Government. But above all, it is a tribute to the relentless advocacy of Intersex Human Rights Australia, its tireless Executive Director Morgan Carpenter, and the intersex community and movement more broadly.
However, even after this historic legislation is implemented, there will remain seven other states and territories where children born with variations of sex characteristics are not protected.
October 2023 will mark ten years since the Final Report of the Senate Inquiry into ‘Involuntary or coerced sterilisation of intersex people in Australia’, which first recommended such surgeries should end. At the current rate – of one jurisdiction legislating every ten years – it will take until 2093 before all intersex children are protected around the country.
That is clearly not good enough. We need the Governments of New South Wales, Victoria, Queensland, Western Australia, South Australia, Tasmania and the Northern Territory to follow the lead of the ACT and urgently introduce their own Bills to outlaw these abhorrent practices.
2. Reforming trans birth certificate laws in NSW, Queensland and WA
It is appalling that, in 2023, trans and gender diverse people in NSW and Queensland are still required to undergo genital surgery in order to update identity documents, including birth certificates, to reflect their gender identity. WA is almost as bad – trans people there must demonstrate they have engaged in some form of physical treatment (which may include genital surgery, top surgery and/or hormone treatment), to do the same.
As with the issue of intersex surgeries, on trans birth certificates we start 2023 with good news – in two of these three jurisdictions anyway.
The Queensland Government has introduced the Births, Deaths and Marriages Registration Bill 2022 which, once passed, will remove all requirements for genital surgery, as well as other forms of medical treatment or approval from psychologists or counsellors. I urge the Queensland Parliament to pass this vital law as quickly as possible.
The WA Government meanwhile has publicly committed to abolish their Gender Recognition Board, and remove the serious barriers which confront trans and gender diverse people who simply want identity documents to accurately reflect their identity. Hopefully, the WA reform Bill can be developed, introduced and passed before the end of this year.
Which just leaves NSW – and, assuming both the above Bills do pass, will leave NSW as the only jurisdiction in Australia which mistreats its trans and gender diverse community in this way.
While March saw a change of Government in NSW, the new Minns Labor Government has not made specific commitments to change the laws here. Their response to a question on this topic in the LGBTIQ pre-election community survey, led by ACON, only noted ‘Labor will review these provisions in consultation with the community and trans and gender diverse communities’.
There is therefore a need for significant community pressure to be applied on the NSW Government to reform trans birth certificate laws as a matter of priority – and that pressure should come not just from the trans and gender diverse community, but also from cisgender allies who support trans human rights.
As at April 2023, only two Australian jurisdictions have prohibited sexual orientation and gender identity conversion practices generally: Victoria and the ACT.
A third, Queensland, has only done so in health settings, which means the places where conversion practices primarily occur – religious settings – are not covered.
Therefore, we need 6 of 8 Australian states and territories to either introduce, or upgrade, bans on conversion practices.
There are signs of movement in at least some of those jurisdictions:
The Western Australian Government promised in December 2022 that it would introduce legislation banning conversion practices (although some of the language used at the time suggested it may follow the flawed Queensland approach, rather than the more comprehensive Victorian and ACT models), and
The Tasmanian Government has also committed to implement the recommendations of a Tasmanian Law Reform Institute inquiry into conversion practices (although there have been some delays in the introduction of its legislation).
Meanwhile, the newly elected Labor Government in NSW sent mixed signals on conversion practices during the recent state election campaign. After first promising to ban conversion practices outright, the now-Premier Chris Minns later indicated it may not apply to religious settings, telling faith leaders that:
‘Taking offence at the teachings of a religious leader will not be banned, expressing a religious belief through sermon will not be banned, and an individual, with their own consent, seeking guidance through prayer will not be banned either.’
Advocates will need to spend considerable time explaining to Minns and his Cabinet colleagues why such a limited ban would be almost pointless in addressing the serious harms caused by conversion practices.
At this stage, I am unaware of current proposals in either South Australia or the Northern Territory to prohibit conversion practices – if you know more, please add the details in the comments section, below.
Let’s hope all six jurisdictions named (NSW, Queensland, WA, SA, Tasmania and the NT) take concrete steps this year to consign conversion practices to history (I was going to add ‘… where they belong’, but really, conversion practices have always been torture, and were never acceptable).
4. Modernising LGBTIQ anti-discrimination laws
2022 ended with two important developments in Australian LGBTIQ anti-discrimination legislation. The first saw the NT Parliament pass a major update to its Anti-Discrimination Act 1992, including covering non-binary and intersex people for the first time, and finally protecting LGBTQ teachers in religious schools against discrimination.
The second was the Commonwealth Government amending the Fair Work Act 2009 to explicitly include gender identity and intersex status as protected attributes for the purposes of adverse action and unlawful termination protections (after more than four years of campaigning, by myself and others, including Intersex Human Rights Australia and Just.Equal Australia).
Nevertheless, there remains a long way to go before the patchwork of our anti-discrimination laws finally ensure all LGBTIQ people, all around the country, can live our daily lives free from the threat of discrimination just because of who we are.
In (the remainder of) 2023, some of the main areas of activity will include:
Commonwealth
At Commonwealth level, the primary focus is obviously the Australian Law Reform Commission inquiry into religious exceptions allowing discrimination against LGBTQ students and teachers at religious schools, which is currently due to report on 21 April. Demanding that any subsequent Bill passed protects students and teachers, without allowing discrimination via alternative means, is essential.
But it is by no means sufficient. We also need to reform religious exceptions under the Sex Discrimination Act 1984more broadly, to ensure LGBTQ people accessing services, and LGBTQ workers, are not discriminated against by faith-based bodies across a range of public services, including health, housing, disability, welfare and other community services. As well as lobbying to include similar reforms to protect LGBTQ workers in the Fair Work Act(which also has incredibly broad religious exceptions), including via the Commonwealth Government’s Employment White Paper process.
New South Wales
Regular readers of this blog will be aware that the NSW Anti-Discrimination Act 1977 is the worst LGBTIQ anti-discrimination law in Australia. It fails to protect bisexual people. And non-binary people. And intersex people. It has the broadest exceptions allowing discrimination against LGBTQ students. And teachers. And the broadest religious exceptions generally. (For more background, see: What’s Wrong With the NSW Anti-Discrimination Act 1977?)
While the previous Government effectively ignored these problems, the new NSW Government has at least agreed to refer the Act to the NSW Law Reform Commission for comprehensive review. This review needs to take place as quickly as possible, as does any legislation which emerges from it, to finally drag the NSW Anti-Discrimination Act into the 21st century.
Queensland
Queensland’s Anti-Discrimination Act 1991 is already much better than NSW’s – and, by the end of 2023, it’s LGBTIQ anti-discrimination laws should move even further ahead (and approach those of Tasmania, Victoria and the ACT which are now the best in the country). That’s because the Bill updating trans birth certificate requirements, described earlier, also modernises the definition of gender identity, to protect non-binary people, and introduces a new protected attribute of sex characteristics.
Even more significantly, the Government has agreed in-principle to all of the recommendations of last year’s review of the Anti-Discrimination Act by the Queensland Human Rights Commission, and vowed to introduce a new Act by the end of this year. That Bill should finally remove the ‘Don’t Act, Don’t Tell’ regime which still applies to LGBTQ teachers in Queensland’s religious schools, and replace it with a system where teachers are judged on their ability, not their sexual orientation or gender identity.
Western Australia
Western Australia has much, much worse LGBTIQ anti-discrimination laws than Queensland – indeed, they are almost as bad as NSW’s – but they are on track to make a great leap forward this year. The WA Government has similarly accepted the recommendations of its own Law Reform Commission review of the Equal Opportunity Act 1984, including to ensure all trans and gender diverse people, as well as intersex people, are finally covered, and to modernise its approach to religious exceptions, including to protect LGBTQ students and teachers in religious schools. This legislation needs to be introduced and passed as a matter of priority – because LGBTIQ people in WA have waited for far too long already to enjoy effective anti-discrimination laws.
South Australia
The only Australian jurisdiction which does not already unequivocally protect LGBTQ students and teachers in religious schools against discrimination and which also does not have at least a process in place (or promised) that could lead to these exceptions being removed is South Australia. It’s time for the South Australian Government to take urgent steps to remedy this situation.
The same NT laws which modernised their Anti-Discrimination Act 1992 also prohibited vilification there for the first time through the introduction of new section 20A, which provides:
‘A person must not do an act that (a) is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and (b) is done because of an attribute of the other person or of some or all of the people in the group.’
Despite this positive development, there are still four Australian jurisdictions which do not prohibit anti-LGBTIQ vilification in any way: the Commonwealth, Victoria, Western Australia and South Australia.
Of these, the WA Law Reform Commission review of the Equal Opportunity Act 1984 recommended that anti-LGBTIQ vilification should be prohibited, so hopefully this gap will be addressed this year.
While the Victorian Government has a long-standing commitment to introducing anti-LGBTIQ vilification laws, a commitment which seems to have been revived following the recent TERF and neo-Nazi rally on the steps of Victorian Parliament.
Indeed, the events of the past few months, including that TERF tour and neo-Nazi demonstration, as well as the Christian Lives Matter riot in Sydney and Mark Latham’s potentially vilifying, and definitely homophobic, tweets, have reiterated the need for vilification protections nation-wide, meaning the Commonwealth and South Australia Governments must address this menace too.
6. Creating an LGBTIQA+ Commissioner at the Australian Human Rights Commission
The disturbing events of the past few months have confirmed one of the other major holes in Australia’s LGBTIQ rights framework – the absence of a dedicated LGBTIQA+ Human Rights Commissioner at the Australian Human Rights Commission (AHRC).
While there are existing Commissioners for Race, Sex, Disability, Age, Children, and Aboriginal and Torres Strait Islander Social Justice, there is no stand-alone, independent office-holder with primary responsibility for advocating on issues affecting the LGBTIQA+ community.
This gap meant there were many missed opportunities for commenting on, educating about and generally advancing the rights of LGBTIQA+ Australians when those same rights came under sustained attack.
In my view, it is simply not good enough to ask the Sex Discrimination Commissioner to take on additional responsibility for sexual orientation, gender identity and intersex human rights issues within the AHRC with whatever spare capacity they have left after addressing discrimination against women (hint: not much).
Indeed, as far as I can tell, there have been exactly zero media releases and/or news items on the Commission’s website about the awful attacks on our community over the past month (while the LGBTI section of the website has not been updated since October 2021).
Please note, this is not a criticism of the many good people who work at the Commission. It is simply an inevitable consequence of the severe structural weakness of a model where LGBTQA+ rights are only ever an add-on to someone else’s existing role.
It is beyond time for this structural weakness to be remedied, by the creation and appointment of an LGBTIQA+ Commissioner at the AHRC.
7. Supporting LGBTIQ refugees and people seeking asylum
This priority is both a law reform issue, and something where policies need to be improved and increased funding provided. Australia’s abhorrent refugee laws also obviously harm all people seeking asylum, rather than just LGBTIQ people. In that context, it should be stated that mandatory detention, and off-shore processing, must both be ended for all people seeking asylum.
However, there are some issues which do have a particular impact on LGBTIQ people seeking asylum, including that Australia’s off-shore processing scheme could still involve sending LGBTIQ refugees to Papua New Guinea, a country where male homosexuality remains criminalised (and from which all refugees should be repatriated to Australia).
Our processes for the intake of people seeking asylum are still not suitably tailored to deal with the needs of LGBTIQ people, and in my view we should be increasing the intake of LGBTIQ refugees from countries which are newly–criminalising same-gender sexual activity (including Uganda).
Finally, Australia needs to better support the LGBTIQ refugees and people seeking asylum who are in Australia, including by funding dedicated LGBTIQ refugee support services and the LGBTIQ refugee peak body, Forcibly Displaced People Network (FDPN).
8. Supporting the Voice to Parliament at the upcoming referendum
Even after writing just that heading, I can already hear some people respond: ‘But that isn’t an LGBTIQ issue.’
Except that all LGBTIQA+ people living in Australia are either First Nations LGBTIQA+ people, including brotherboys and sistergirls, or non-Indigenous LGBTIQA+ people living on Aboriginal land.
Meaning all of us have an interest in supporting reconciliation and, in my personal view, the best chance we have of making progress on that in 2023 is by supporting the generous invitation extended by First Nations people through the Uluru Statement from the Heart, which includes commitments to the three inter-related pillars of Voice, Treaty and Truth.
The first step in making that happen is by campaigning, and voting, for a constitutionally-enshrined Voice when it is the subject of a referendum later this year.
LGBTIQA+ Australians, as the community most-recently subjected to a national public vote on our human rights, also have an intimate understanding of what it is like to be at the centre of this type of debate, including consistent attacks from extreme-right politicians and the Murdoch press.
My sincere hope is that many non-Indigenous LGBTIQA+ Australians demonstrate solidarity with LGBTIQA+ First Nations people, and Indigenous people more broadly, by supporting the Voice as it too is attacked by the same people who attacked us. In other words, Vote Yes.
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This included a letter to Prime Minister Albanese, Treasurer Chalmers, and seven of their ministerial colleagues, calling on them to include consideration of two matters in particular that affect LGBTIQ people in the workplace:
The absence of explicit protections for trans, gender diverse and intersex employees in the Fair Work Act 2009(Cth), and
The breadth of exceptions, in the Sex Discrimination Act 1984 (Cth) and elsewhere, allowing religious organisations to discriminate against employees on the basis of their sexual orientation and/or gender identity, including in the delivery of public services using taxpayers’ money.
Since then, the issue of potential LGBTIQ exclusion from the Jobs and Skills Summit has been picked up by my friends at Just.Equal Australia, as well as being reported on by:
I also received the below, generic response from the Treasurer’s office, which, to be honest, did not inspire much confidence that my concerns, and the concerns of my community, were being taken seriously:
Dear Alastair,
Thank you for your email and attached correspondence about the Albanese Government’s Jobs and Skills Summit, which is scheduled to held over the 1st and 2nd of September.
The Jobs and Skills Summit will bring together around 100 representatives including from unions, employers, civil society and governments, to address our shared economic challenges.
The outcomes of the Summit will inform the Employment White Paper, which will be a shared vision and comprehensive blueprint for the future of Australia’s labour market.
Although Summit attendance will be limited and invite only, Treasury will be opening a submission process to collect insights and perspectives from the wider community later in 2022.
Again, thanks for taking the time to share your thoughts and views on the above which will be brought to the attention of the Treasurer’s ministerial team.
Best wishes
[Name withheld], on behalf of the Hon. Jim Chalmers MP
Office of the Hon. Jim Chalmers MP | Treasurer of Australia and Federal Member for Rankin
Which made it a pleasant surprise to read, via Out in Perth, the Treasurer Jim Chalmers confirm that LGBTIQA+ issues would indeed be on the agenda at the conference:
‘We recognise that many LGBTIQA+ Australians often face a range of unique challenges when it comes to secure employment.
‘These are exactly the issues that we hope to address through our Jobs and Skills Summit.
‘That’s why removing barriers to employment and workforce participation are central themes of our Jobs and Skills Summit. Our aim is to bring people together around our big economic challenges to ensure more Australians can get a secure, well-paid job.’
Of course, just because LGBTIQ issues might actually be discussed, does not mean the Summit itself, or the Government afterwards, will recommend or commit to taking action to fix the problems which lead to workplace discrimination against, and exclusion of, LGBTIQ people.
I should also note I have not had a response from Albanese, Chalmers or any of the other seven Ministers addressing the substantive concerns raised by my letter.
In which case, the push continues to ensure the Fair Work Act, Sex Discrimination Act and other relevant laws are amended so that LGBTIQ workers are judged on the basis of their ability, not their sexual orientation, gender identity or sex characteristics.
In that context, today I have sent the below emails to two of the primary non-Government voices that will be represented at the Jobs and Skills Summit: ACTU Secretary Sally McManus and Business Council of Australia CEO Jennifer Westacott.
Hopefully their assistance will help give voice to the need to legislate better protections for LGBTIQ workers in Australia.
*****
Sunday 28 August 2022
Sally McManus
Secretary
Australian Council of Trade Unions
Dear Ms McManus
Please support reforms to protect LGBTIQ workers at the Jobs and Skills Summit
I am writing to you about the upcoming Jobs and Skills Summit, at which you will be a key voice advocating for the interests of Australian workers.
In particular, I am writing, both as a union member for two decades, and as a leading advocate for my community, to ask you to support important reforms to protect the rights of lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) workers.
These include:
Reforms to the Fair Work Act 2009 (Cth) to explicitly protect trans, gender diverse and intersex workers against adverse action and unlawful termination. This could be achieved, easily, by adding gender identity and sex characteristics as protected attributes in relevant sections where categories such as race, sex, disability, age and even sexual orientation are already covered.
Reforms to the Sex Discrimination Act 1984 (Cth) and other Commonwealth and State and Territory anti-discrimination laws to remove the special privileges granted to religious organisations allowing them to discriminate against workers on the basis of their sexual orientation and/or gender identity, including in the delivery of public services using taxpayers’ money. This problem is especially acute in what is described in the Issues Paper as the ‘care economy’ and their removal would, I believe, lead to more LGBTQ people entering professions like education, disability services and aged care.
I attach with this correspondence a letter which was sent to Prime Minister Albanese, Treasurer Chalmers and seven of their ministerial colleagues, that provides more detail about these issues, and the compelling reasons why changes must be made to both.
I note both your own strong personal support, and the strong support of many unions and members of the ACTU, to LGBTIQ rights over the past decade, including through the campaign for marriage equality.
I look forward to your support once again, on Thursday and Friday of this week, and over the following months, for the interests of LGBTIQ workers.
Because I am confident that you agree trans, gender diverse and intersex workers should have the same Fair Work Act protections as any employee. And that LGBTQ workers should be judged on their ability, rather than their sexual orientation and/or gender identity.
Sincerely
Alastair Lawrie
*****
Sunday 28 August 2022
Jennifer Westacott
Chief Executive Officer
Business Council of Australia
Dear Ms Westacott
Please support reforms to protect LGBTIQ workers at the Jobs and Skills Summit
I am writing to you about the upcoming Jobs and Skills Summit, at which you will be a key voice in central debates around economic and industrial relations reforms.
In particular, I am writing as a leading advocate for my community to ask you to support important reforms to protect the rights of lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) workers.
These include:
Reforms to the Fair Work Act 2009 (Cth) to explicitly protect trans, gender diverse and intersex workers against adverse action and unlawful termination. This could be achieved, easily, by adding gender identity and sex characteristics as protected attributes in relevant sections where categories such as race, sex, disability, age and even sexual orientation are already covered.
Reforms to the Sex Discrimination Act 1984 (Cth) and other Commonwealth and State and Territory anti-discrimination laws to remove the special privileges granted to religious organisations allowing them to discriminate against workers on the basis of their sexual orientation and/or gender identity, including in the delivery of public services using taxpayers’ money. This problem is especially acute in what is described in the Issues Paper as the ‘care economy’ and their removal would, I believe, lead to more LGBTQ people entering professions like education, disability services and aged care.
I attach with this correspondence a letter which was sent to Prime Minister Albanese, Treasurer Chalmers and seven of their ministerial colleagues, that provides more details about these issues, and the compelling reasons why changes must be made to both.
Indeed, I note that you made some of the same arguments for better workplace inclusion in your speech on 27 May this year at the 2022 Australian LGBTIQ Inclusion Awards:
‘[T]oday we are here to celebrate and applaud the excellence of employers and their teams for their commitment to advancing inclusion and diversity.
It’s the right thing to do.
And not just that – it’s also smart business.
When every person can be their best selves at work:
They’re happier
They’re more productive
They’re more creative
They’re more loyal, and
They’re more likely to stay with their current employer.
Doing the right thing is a win-win…
I do not believe that any person should be made to feel excluded.
I do not believe that any person should be made to feel less than they are.
I do not believe that anyone’s personal struggle should be used as a political football.
So today I want to spend the bulk of my time apologising.
I want to apologise to our transgender colleagues.
I want to apologise:
For the hurt you have endured
For the cruelty you have been subjected to, and
For the fundamental misinformation and unfairness that has shrouded the discussion over the last year, but particularly during the election.’
You went on to acknowledge:
‘I understand the fear and worry when you turn up to work and every single new encounter is potentially:
A rejection
The loss of your employment status, or
The loss of your job.
I understand that there is only one choice you have to make.
It is not a flippant or superficial lifestyle choice.
Instead, it’s a difficult and often agonising acceptance to either be yourself or to pretend to be someone else.’
The upcoming Jobs and Skills Summit is another opportunity to demonstrate your commitment to improving the lives of trans and gender diverse Australians, who are affected by both the lack of explicit protections under the Fair Work Act, and the broad special privileges granted to religious organisations under the Sex Discrimination Act.
I look forward to you building on your public apology in May by supporting essential reforms to both these laws later this week.
Because I am confident, based on your speech, that you agree trans, gender diverse and intersex workers should have the same Fair Work Act protections as any employee. And that LGBTQ workers should be judged on their ability, rather than their sexual orientation and/or gender identity.
Sincerely
Alastair Lawrie
*****
ACTU Secretary Sally McManus and Business Council of Australia CEO Jennifer Westacott will play a key role in whether the upcoming Jobs and Skills Summit supports much-needed law reform to protect the rights of LGBTIQ workers.
NB This post is written in a personal capacity, and does not reflect the views of employers past or present.
If you have enjoyed reading this article, please consider subscribing to receive future posts, via the right-hand scroll bar on the desktop version of this blog or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus
The Albanese Labor Government’s Jobs and Skills Summit will be held on September 1 and 2, 2022, now just eleven days away.
While there has been significant coverage of a wide range of issues relevant to this conference, there has been little to no reporting of how it will affect lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) workers.
The letter below, to Prime Minister Albanese, Treasurer Chalmers and a number of other Ministers, seeks to place at least two important and urgent LGBTIQ policy matters onto the Jobs and Skills Summit agenda.
As always, I will publish any responses received.
*****
Prime Minister Anthony Albanese
Treasurer Jim Chalmers
Attorney-General Mark Dreyfus
Minister for Employment and Workplace Relations Tony Burke
Minister for Health and Aged Care Mark Butler
Minister for Aged Care Anika Wells
Minister for Education Jason Clare
Minister for Social Services Amanda Rishworth
Minister for the NDIS Bill Shorten
Sunday 21 August 2022
Dear Prime Minister Albanese and other Ministers
Please include LGBTIQ workers in the Jobs and Skills Summit
I am writing to you about the upcoming Jobs and Skills Summit, and the need to include lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) workers and the issues which affect them.
I was initially encouraged to observe the Summit would include a focus on ‘expanding employment opportunities for all Australians including the most disadvantaged.’[i]
However, I am both concerned and deeply disappointed by the Jobs and Skills Summit Issues Paper, released on 17 August,[ii] which completely omits LGBTIQ Australians as one of the groups which should be considered as part of this focus.
Specifically, page 2 of that document states:
‘While the participation rate is around historically high levels, many Australians still face barriers to secure and well-paid employment. In particular, women, First Nations people, people with disability, older Australians, migrants and refugees, and those living in certain regional and remote areas face specific barriers to entering the workforce. This means there are further opportunities and obligations to ensure the benefits of strong labour market conditions are accessible to all people in Australia.’
There is no mention of LGBTIQ workers here, nor on any other of the Issues Paper’s 14 pages.
This is despite the fact employment-related discrimination against LGBTIQ workers, including and perhaps especially transgender and gender diverse workers, is well-documented.
For example, a 2021 paper[iii] found that for transgender, including gender diverse and nonbinary (trans), people:
‘The unemployment rate of 19% was three times that of the Australian general population rate of 5.5% in May 2018 and well above the youth unemployment rate (12.2%). Notably, 33% of respondents perceived discrimination in employment. Unemployment may also occur due to difficulty with name and identity documents, discrimination in basic housing and health care, and the impact of mental health conditions such as depression and anxiety on an individual’s ability to seek or maintain employment. Conversely, levels of depression and anxiety may be higher due to unemployment.’
The omission of LGBTIQ workers from the Jobs and Skills Summit Issues Paper also comes despite many LGBTIQ workers enjoying lesser workplace rights and protections than other employees, and a large number of employers being legally entitled to fire, to refuse to hire, or to otherwise discriminate against, LGBTQ workers simply because of their sexual orientation and/or gender identity. This often includes the use of taxpayers’ money in said discrimination.
These issues must be addressed if the Jobs and Skills Summit is to indeed focus on ‘expanding employment opportunities for all Australians including the most disadvantaged.’
I include below two fundamental, urgent issues which therefore must be included in the Summit’s agenda.
Protect transgender, gender diverse and intersex workers under the Fair Work Act
Currently, transgender, gender diverse and intersex workers do not enjoy the same legal status under the Fair Work Act 2009 (Cth) as other employees, including women, people with disability, and even lesbian, gay and bisexual people.
This is because the adverse action protections in section 351, and unlawful termination protections in section 772, contain a long list of protected attributes – such as ‘race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin’ – but omit the protected attributes of gender identity and sex characteristics (intersex status).
In practice, this means transgender, gender diverse and intersex workers may not have the same guaranteed access to the low-cost, low-barrier Fair Work Commission as other employees who are subjected to mistreatment or unfair dismissal simply because of who they are.
Despite raising the lack of explicit Fair Work Act protections for these workers with the previous Government for several years,[iv] they refused to take any action to address this discrepancy, even voting against straight-forward Greens amendments to the 2021 Respect@Work Bill which would have remedied the situation, providing much-needed remedies to workers.[v]
I note the then-Labor Opposition voted for some, although not all, of those Greens amendments.[vi] I also note that, as a result of advocacy from myself and others, the 2021 ALP National Conference passed the following special resolution:[vii]
‘Aligning the Fair Work Act and Sex Discrimination Act
Labor will amend the relevant sections of the Fair Work Act to align with the Sex Discrimination Act to cover workers who are currently not protected.’
Unfortunately, while implementing this commitment – which would involve adding gender identity and intersex status as protected attributes in the Fair Work Act – would achieve some improvement, it would not bring that legislation up to best practice.
This is because sex characteristics[viii] is considered a more accurate, and more inclusive, protected attribute, and is the terminology preferred by intersex advocates, including Intersex Human Rights Australia.
Therefore, at least part of the response to this question on page 5 of the Jobs and Skills Summit Issues Paper:
‘How can we ensure workplaces are safe and fair, particularly for those people at higher risk of harassment, discrimination and other breaches of workplace minimum standards?’
is to add gender identity and sex characteristics as protected attributes in the Fair Work Act 2009 (Cth), including in relation to adverse action (s351) and unlawful termination (s772), so that transgender, gender diverse and intersex workers have the same rights and protections as everyone else.
Recommendation 1: The Jobs and Skills Summit must ensure transgender, gender diverse and intersex workers have the same rights and protections under the Fair Work Act as other employees, including in relation to adverse action and unlawful termination.
2. Remove special exceptions allowing religious organisations to discriminate against LGBTQ workers
That same question – ‘How can we ensure workplaces are safe and fair, particularly for those people at higher risk of harassment, discrimination and other breaches of workplace minimum standards?’ – is also relevant to the second issue which I submit must be on the Jobs and Skills Summit agenda: removing special exceptions which allow religious bodies to discriminate against lesbian, gay, bisexual, transgender and queer (LGBTQ) workers.
In fact, this issue is pertinent to a range of discussion, and questions, covered in the Issues Paper, including this statement on pages 6 and 7:
‘Addressing the barriers to participation and promoting equality of opportunity will contribute to a stronger and more inclusive economy, enable more Australians to realise their full potential, and help address current labour market challenges. This, in turn, will help ensure that the benefits of full employment are shared fairly across our community.’
And the associated questions on page 7:
‘How can we reduce the barriers to employment for some Australians? How should governments, unions, business and the broader community best coordinate efforts to achieve this?’ and
‘What strategies can be used to reduce discrimination and increase awareness of the value that diversity can bring to business and the broader economy?’
And on page 11: ‘How do we navigate workforce shortages in the care economy while supporting our frontline workers?’
Many people are aware of this issue because of public debate over the past five years surrounding ‘religious freedom’, the previous Government’s proposed (but thankfully-defeated) Religious Discrimination Bill, and the discriminatory (mis)treatment of LGBTQ students, teachers and other staff under the Sex Discrimination Act 1984 (Cth).
Many people may not be aware of how broad these exceptions are in practice, not just under the Sex Discrimination Act, but also under the Age Discrimination Act 2004 (Cth), Fair Work Act itself (undermining both its adverse action and unlawful termination protections), and the majority of state and territory anti-discrimination laws (including in my home state of NSW where the Anti-Discrimination Act 1977 has the broadest religious exceptions in the country).
The effects of these exceptions are all-too-real for LGBTQ workers.
Not only can LGBTQ teachers be denied, or fired from, jobs for which they are otherwise eminently qualified, simply because of their sexual orientation and/or gender identity.
But so too can LGBTQ aged care workers, nurses, doctors, social workers, disability workers and other employees across what is described in the Issues Paper as the care economy.
There are a range of serious consequences which flow from this discrimination, including:
For LGBTQ workers, obviously this includes being denied employment, and losing significant financial benefits, or alternatively being forced to stay closeted while in the workplace, with associated mental health harms.
For the LGBTQ community more broadly, this discrimination reinforces poorer health and well-being outcomes, as well as entrenching economic disadvantage.
For the services themselves, they are rejecting the best person for the job on the basis of criteria which has nothing whatsoever to do with their ability to do the job. Alternatively, they are forcing some employees to not bring their whole selves to work, thereby diminishing the quality of the work those employees do.
This also means that, for people accessing these services, they are effectively denied being served by the most qualified person for the role. A person in an aged care home deserves the best aged care worker possible, not the best cisgender-heterosexual worker. A student deserves to learn from the most qualified teacher, not the most qualified cisgender-heterosexual one. And so on. And so on. Across society.
It should be remembered that the vast majority of these roles are delivering what are basically public services, like education, health, aged care, or social and disability services, and in nearly all cases using public – or taxpayers’ – money to do so. That means every Australian is helping to fund this discrimination, and even more egregiously, that LGBTQ workers are being asked to subsidise their own oppression.
Finally, in an era of large and growing worker shortages across education, health, aged care, and social and disability services, permitting lawful discrimination on the basis of sexual orientation and gender identity discourages at least some members of the LGBTQ community from considering careers in these areas – which is perhaps a rational response to the knowledge that large employers in your chosen profession may be lawfully able to refuse to hire you, or fire you, just because of who you are.
For all of these reasons, a Jobs and Skills Summit that is focused on ‘expanding employment opportunities for all Australians including the most disadvantaged’ must seriously consider the harmful impacts of special exceptions which allow religious organisations to discriminate against LGBTQ workers simply because of their sexual orientation and/or gender identity.
And I submit it should recommend that such exceptions be abolished, not just for the benefit of those LGBTQ workers, but for the benefit of people accessing publicly-funded services in education, health, aged care, and social and disability services, and the benefit of the Australian community generally.
Recommendation 2: The Jobs and Skills Summit should call for the repeal of special exceptions allowing religious organisations to discriminate against LGBTQ workers simply because of their sexual orientation and/or gender identity.
Thank you in advance for considering the above issues ahead of the Jobs and Skills Summit. Please do not hesitate to contact me at the details provided should you require additional information.
Sincerely
Alastair Lawrie
Will Prime Minister Anthony Albanese ensure that significant issues affecting LGBTIQ workers are considered at the Jobs and Skills Summit?
NB This post is written in a personal capacity, and does not reflect the views of employers past or present.
If you have enjoyed reading this article, please consider subscribing to receive future posts, via the right-hand scroll bar on the desktop version of this blog or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus
[vi] The Labor Party supported the inclusion of gender identity and intersex status as protected attributes in the Fair Work Act – which are the same attributes already covered under the Sex Discrimination Act 1984 (Cth) – but did not support amendments which would have added gender identity and sex characteristics as protected attributes, with the latter terminology now considered best practice, and supported by intersex community organisations including Intersex Human Rights Australia.
Thank you for the opportunity to provide this personal submission as part of your consultation process on a proposed Equality Bill.
Thank you also for your leadership on the issue of lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) rights in NSW, something which has been neglected by too many for far too long.
As I have written previously, LGBTIQ rights in NSW are now the worst of any state or territory in the country – through decades of inaction on law reform by the NSW Government and Parliament, Sydney has become Australia’s capital of homophobia, biphobia and transphobia.
This includes the worst LGBTIQ anti-discrimination protections, and the equal worst birth certificate laws for trans and gender diverse people. As well as an ongoing failure to prohibit non-consenting surgeries and other medical interventions on children born with variations in sex characteristics (intersex children), and to ban sexual orientation and gender identity conversion practices.
If these issues are not addressed before next February, then Sydney’s hosting of World Pride 2023 will not be a cause for celebration, but instead the focus of global embarrassment about the incredibly poor state of legal rights for the LGBTIQ people who live here.
In this submission I will make recommendations for reform in the above-mentioned four areas, with a particular focus on LGBTI anti-discrimination law reform, as well as in relation to commercial surgery.
LGBTI reforms to the Anti-Discrimination Act 1977 (NSW)
The NSW Anti-Discrimination Act was once a leader – including becoming the first anti-discrimination law in Australia to prohibit discrimination on the basis of homosexuality in 1982 (before homosexuality was even decriminalised here, which did not happen until 1984).
However, it now compares incredibly poorly across a wide range of criteria, from protected attributes, special privileges for private schools and special privileges for religious organisations generally (for comparative analysis of how it fares overall, see A Quick Guide to Australian LGBTI Anti-Discrimination Laws).
While the Act itself is now so out-dated that it is impossible for it to become best practice without a comprehensive review followed by complete overhaul, there are some immediate, interim steps which could be taken to ensure LGBTI people are better protected against discrimination on the basis of who they are. This includes:
1. Replace homosexuality with sexual orientation
NSW is the only jurisdiction in Australia which does not prohibit discrimination against bisexual, bi+ and/or pansexual people. That is because the protected attribute in the Anti-Discrimination Act is ‘homosexuality’ rather than sexuality or sexual orientation.
This should be replaced with a protected attribute of ’sexual orientation’, with a definition drawing from s4(1) of the Equal Opportunity Act 2010 (Vic):
‘sexual orientation means a person’s emotional, affectional and sexual attraction to, or intimate or sexual relations with, persons of a different gender or the same gender or more than one gender.’
2. Replace transgender with gender identity
NSW also offers extremely narrow protection against discrimination for trans and gender diverse people, effectively excluding people with non-binary gender identities completely.
The protection attribute of ‘transgender’ should be replaced with ‘gender identity’, with a definition again drawing from the Equal Opportunity Act 2010 (Vic):
‘gender identity means a person’s gender-related identity, which may or may not correspond with their designated sex at birth, and includes the personal sense of the body (whether this involves medical intervention or not) and other expressions of gender, including dress, speech, mannerisms, names and personal references’.
The definition of ‘recognised transgender person’ in section 4 of the Anti-Discrimination Act 1977 (NSW) should be removed at the same time.
3. Add a new protected attribute of sex characteristics
Intersex people are also poorly-served by anti-discrimination laws in NSW, with the Act failing to include a stand-alone protected attribute to prohibit discrimination against them.
A new protected attribute of ‘sex characteristics’ should be added, once again drawing from the Equal Opportunity Act 2010 (Vic):
‘sex characteristics means a person’s physical features relating to sex, including-
(a) genitalia and other sexual and reproductive parts of the person’s anatomy; and
(b) the person’s chromosomes, genes, hormones, and secondary physical features that emerge as a result of puberty.’
4. Add new protected attributes of sex work, and genetic characteristics
I support-in-principle the inclusion of protected attributes of sex work, with a definition developed in consultation with sex worker organisations such as Scarlet Alliance, and genetic characteristics, developed in consultation with Intersex Human Rights Australia.
5. Remove special privileges for private educational authorities
The Anti-Discrimination Act is the only such law in the country which provides blanket exceptions to all private schools, colleges and universities, irrespective of whether they are religious or not, allowing them to engage in conduct that would otherwise be prohibited.
This includes special privileges to discriminate on the basis of homosexuality against students (s49ZO) and teachers and other staff (s49ZH), and on the basis of transgender status against students (s38K) and workers (s38C), too.
There can be no possible justification for these special rights to discriminate in 2022 – they must be repealed entirely.
In order to ensure LGBT students, teachers and other staff at religious schools are properly protected against discrimination, it is also necessary to introduce a limitation on the general religious exception in section 56 (discussed further below), so that it does not apply to religious educational institutions.[i]
6. Significantly narrow special privileges for religious organisations
In addition to specific exceptions for private schools, colleges and universities, s56 of the Anti-Discrimination Actprovides incredibly broad exceptions for religious organisations more generally.
While paras (a) and (b) of that provision (which permit discrimination in relation to the appointment, and training, of priests and ministers of religion) may be justifiable on the basis of religious freedom (because of their closeness to religious observance), the same justification does not apply to para (c), which allows discrimination by religious organisations in employment (including in the delivery of publicly-funded health, housing and welfare services) and (d), which effectively grants faith bodies a blank cheque to discriminate in service provision.
Both para s56(c) and 56(d) should be repealed entirely.[ii]
7. Remove special privileges for faith-based adoption services
Under s59A of the Anti-Discrimination Act, adoption agencies operated by religious organisations are permitted to discriminate against rainbow families.
This is frankly outrageous, not only discriminating against prospective parents on the basis of irrelevant factors such as their sexual orientation and/or gender identity, but also not being in the best interests of the child, given the exclusion of loving parents on these grounds.
S59A should be repealed entirely.
8. Remove the specific transgender exception in superannuation
Under s38Q of the Act, superannuation providers are given an exception to discriminate against transgender people, by ‘treat[ing] the transgender person as being of the opposite sex to the sex with which the transgender person identifies.’
This type of provision is not found in the equivalent Sex Discrimination Act 1984 (Cth).
Once again, there can be no possible justification for this special right to discriminate in 2022 – this provision must be repealed entirely.
9. Significantly narrow the specific transgender exception in sport
Under s38P of the Act, it is lawful to discriminate against transgender people in relation to a wide range of sporting activities, from elite level through to community sport.
This exception is much, much broader than equivalent exceptions elsewhere, including s42 of the Sex Discrimination Act 1984 (Cth), which includes qualifications that such discrimination is only permitted ‘in any competitive sporting activity in which the strength, stamina or physique of competitors is relevant’, and does not apply to children under 12.
At a minimum, these qualifications should also be introduced in NSW, with consideration of adopting the narrower approach found in s29 in the Anti-Discrimination Act 1998 (Tas), or the proposed changes in this area in the ACT Government’s recent Exposure Draft Discrimination Amendment Bill 2022.
Any reforms in this area should be made in close consultation with trans and gender diverse people, and organisations representing them, and intersex people and their representative bodies as well (given the impact of sporting exceptions on that community).
10. Prohibit civil vilification on the basis of sexual orientation, gender identity and sex characteristics
Assuming changes are made to replace the protected attributes of homosexuality with sexual orientation, and transgender with gender identity (1 and 2, above), equivalent changes to civil vilification provisions under the Anti-Discrimination Act should be made at the same time.
I also support introducing civil prohibitions against vilification on the basis of sex characteristics.
11. Ensure consistency between the Anti-Discrimination Act 1977 and the Crimes Act 1900 (NSW)
If the civil vilification provisions of the Anti-Discrimination Act are updated to cover sexual orientation, gender identity and sex characteristics, equivalent amendments should be made to s93Z of the Crimes Act 1900 (NSW),[iii] which makes it a criminal offence to ‘by a public act, intentionally or reckless threaten or incite violence towards another person or a group of persons’ on the basis of a range of attributes.
Reforms to the Births, Deaths and Marriages Registration Act 1995 (NSW)
This situation is completely unacceptable. Gender identity is exactly that, a fundamental characteristic of personal identity, and exists irrespective of surgery, or other forms of medical or psychological treatment.
In my opinion, trans and gender diverse people should be able to update their identity documentation, including birth certificates, solely on the basis of self-identification.
That means imposing no restrictions based on whether the person has had surgery, whether they have had other forms of physical treatment (including hormones), or whether they have accessed counselling or psychological services. It also means not requiring an application to include supporting statements from medical or psychological ‘gate-keepers’.
There is only one Australian jurisdiction which currently meets this standard, the Tasmanian Births, Deaths and Marriages Registration Act 1999, with s28A(2)(b) simply requiring the applicant to make a ‘gender declaration’ in support of their application.
I therefore support-in-principle the introduction of birth certificate reforms in NSW drawing on the existing framework in Tasmania.
One other important element is ensuring children and young people have the right to update their identity documentation, irrespective of whether it makes some adults uncomfortable.
This, at a minimum, would involve allowing young people aged 16 and 17 to make applications for new birth certificates in their own right.
It also means ensuring there is a process to allow children under 16 to update their birth certificates where they have two or more parents or guardians and those parents/guardians disagree among themselves whether to support that application.
Finally, it means introducing a framework to allow children under 16 to apply in the absence of support from a parent or guardian, where a court or tribunal considers it to be in the best interests of the child and also assesses the child to be capable of consenting to the application (such as in s29J of the Births, Deaths and Marriages Registration Act 1996 (SA)).
However, as a cisgender member of the LGBTIQ community, I defer to the views of trans and gender diverse people, and the organisations representing them, on what the exact details of birth certificate reforms should include.
Ending non-consenting surgeries and other medical interventions on intersex children
The unnecessary, non-consenting and/or deferrable surgeries and other medical interventions which continue to be inflicted on children born with variations of sex characteristics (intersex children) aren’t just some of the biggest human rights abuses against the LGBTIQ community, but against any segment of the Australian community.
In this context, it is extremely frustrating that, approaching nine years from the historic 2013 Senate Inquiry into ‘Involuntary or coerced sterilisation of intersex people in Australia’, no Australian jurisdiction has legally prohibited these practices, including there being no signs of action in this area by the NSW Government.
Fortunately, the ACT Government has committed to ending these practices, and recently released their draft Variation in Sex Characteristics (Restricted Medical Treatment) Bill 2022 for public consultation.
On this issue, and whether the ACT legislation is best practice, I defer to the expertise of Intersex Human Rights Australia (IHRA). I note that in their submission to the current inquiry, they wrote:
‘The ACT government draft bill, published in May 2022, arises out of a commitment made in 2019, and deep engagement with community, clinicians, and human rights, bioethics and legal expertise. We commend this bill as a basis for reform in New South Wales.
‘The ACT government bill implements demands in the Darlington Statement of intersex community organisations and advocates in our region, and the Yogyakarta Principles plus 10… Action on this issue implements recommendations 1, 4, 7, 8 and 9 of the 2021 Australian Human Rights Commission report ‘Ensuring health and bodily integrity: towards a human rights approach for people born with variations in sex characteristics’. It also implements calls for reform by UN Treaty Bodies CEDAW, CRPD, CRC, HRC and CESCR, and addresses calls in 2021 position statements citing IHRA staff by the Australian Medical Association and the Public Health Association of Australia. It is consistent with a 2018 submission to the Australian Human Rights Commission by the Royal Australian and New Zealand College of Psychiatrists’ [emphasis added].
I therefore endorse IHRA’s view – that the ACT draft legislation be used as a basis for reform in NSW, with any necessary amendments developed in close consultation with IHRA.
Banning sexual orientation and gender identity conversion practices
The fourth major reform which should be included in the NSW Equality Bill is a prohibition on sexual orientation and/or gender identity (SOGI) conversion practices (sometimes referred to as gay/trans conversion therapy, or ex-gay/ex-trans therapy).
These are incredibly harmful practices which cause immense psychological, and sometimes physical, harm on LGBTQ people.
In my view, SOGI conversion practices should be banned, both through civil prohibitions, allowing for a range of legal responses, and criminal offences in serious cases (such as where it causes actual physical or psychological harm, and/or involves minors or other vulnerable persons).
Importantly, these prohibitions must apply across a broad range of circumstances, including religious settings (where much of the reported harm takes place), and not just in health settings (which means the existing Queensland approach to this issue cannot be supported).
My understanding is there are potential strengths to both the Victorian Change or Suppression (Conversion) Practices Act 2021 and ACT Sexuality and Gender Identity Conversion Practices Act 2020.
However, as with trans and gender diverse birth certificate reform and intersex surgeries, I defer to the views of survivors of sexual orientation and/or gender identity conversion practices, and the organisations representing them, on what the exact details of this legislation should contain.
Legalising commercial surrogacy in NSW
This reform is different from the previous four in that it is not exclusively or even primarily an issue for the LGBTIQ community, given individuals and couples seeking to employ commercial surrogacy services can be cisgender and heterosexual also.
However, rainbow families, and especially male same-gender couples, are disproportionately affected by the current legal approach to surrogacy in NSW, which is not only to prohibit commercial surrogacy domestically (s8 of the Surrogacy Act 2010 (NSW)), but also to capture individuals or couples who engage in commercial surrogacy elsewhere but are ‘ordinarily resident or domiciled in the State’ (s11).
The maximum penalty for this offence is high: up to 1,000 penalty units or imprisonment for 2 years, or both, for individuals.
More than a decade after this legislation was introduced, I don’t believe anyone in NSW genuinely believes that individuals and couples, including rainbow families, are not still engaging in commercial surrogacy arrangements in a wide range of international jurisdictions (and perhaps the only thing to even slow this process down has been since-eased pandemic-related travel restrictions, not domestic laws).
In this context, my personal view is that commercial surrogacy should be legalised in NSW.
There are two reasons for this. The first is based on harm reduction. Yes, I acknowledge that commercial surrogacy arrangements include a significant potential for exploitation, especially for women who are vulnerable or financially disadvantaged.
However, given commercial surrogacy is continuing (and will continue into the future, based on the strong desires of some members of the community to have children), the best way to minimise such exploitation is to permit commercial surrogacy within NSW, with careful and close oversight – in contrast to the current situation which sees people engage in surrogacy in jurisdictions potentially with minimal or no oversight, and with a legal incentive to avoid scrutiny of their activities.
The second reason for legalising commercial surrogacy in NSW is based on the best interests of the child. For the child being born into these families, it simply cannot be in their best interests for their parent(s) to be liable to up to 2 years imprisonment for the crime of the manner of their birth.
*****
Thank you in advance for your consideration of this submission. Please do not hesitate to contact me, at the details provided, if you would like further information or to discuss its contents.
Sincerely
Alastair Lawrie
NB This post is written in a personal capacity, and does not reflect the views of employers past or present.
If you have enjoyed reading this article, please consider subscribing to receive future posts, via the right-hand scroll bar on the desktop version of this blog or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus
Footnotes:
[i] This approach applies in the absence of prohibitions against discrimination on the basis of religious belief in NSW. If religious belief is added as a stand-alone protected attribute to the Anti-Discrimination Act 1977 (NSW) in the future, it may be appropriate to allow discrimination by religious schools on the basis of religious belief only (and not other attributes), but only against students at the point of enrolment, and only against teachers and other staff where it is an inherent requirement of the role.
[ii] As with the previous footnote, this approach applies in the absence of a stand-alone protected attribute of religious belief under the Act. If such an attribute were to be introduced in future, it may be appropriate to permit some discrimination on the basis of religious belief only, in narrowly-restricted circumstances, informed by existing laws in Tasmania, and Victoria.
[iii] This includes potentially updating the existing definitions of sexual orientation and gender identity in s93Z of the Crimes Act, as well as replacing the attribute of intersex status with sex characteristics.
The ‘star candidate’ of the first week of the election campaign – for all the wrong reasons – has undoubtedly been the Liberal candidate for Warringah, Katherine Deves.
Hand-picked by Prime Minister Scott Morrison, the head of anti-trans lobby group Save Women’s Sport Australasia has left a long trail of public comments for the media to scrutinise. And, well, the results aren’t pretty.
Already this week, they have reported on posts:
Describing trans kids as ‘surgically mutilated and sterilised’, while sharing topless images of a trans teenager who had undergone top surgery.
Saying she is ‘triggered’ by the rainbow pride flag (‘I get triggered by it. Whenever I see it on social media I think ‘What now? What are they demanding now?’ And I grew up with gay relatives and siblings and hung out in Surry Hills and X in Sydney in the 1990s. Lots of LGB family and friends, their movement has been destroyed.’)
Likening her lobbying against the participation of trans women and girls in sport to standing up against the Holocaust.[i]
Alleging ‘half of all males with trans identities are sex offenders’ (her tweet: ‘Half of all males with trans identities are sex offenders, compared with less than 20% for the rest of the male estate. That should tell you something.’), and
Belittling the serious mental health harms caused by transphobia (‘We hear from the other side the toll, all the harm, the devastation, we’re all going to commit suicide and blah blah’).
When confronted by the media about the above, Deves has been forced to apologise. It seems inevitable there will be more transphobic comments found, and more apologies, in coming days.
For people who only pay attention to federal politics every three years, Deves’ comments must seem bizarre, and extreme. And they are obviously both.
But, one thing they are *not* is an outlier.
Unfortunately, the Liberal candidate for Warringah’s views must be seen in the context of a rising tide of transphobia in Australian political discourse over the past six or seven years.
This includes the moral panic against the Safe Schools program in 2015 and early 2016, after which then-Prime Minister Malcolm Turnbull first reviewed it, then ‘gutted’ its contents, before finally de-funding it completely.
And the same-sex marriage postal survey in the second half of 2017, which became a platform for groups opposing marriage equality to target trans and nonbinary children (indeed, one of the leading organisations against equality, the Marriage Alliance, has since become anti-trans lobby group Binary Australia).
Following his elevation to the Prime Ministership, Scott Morrison himself has engaged in the anti-trans culture wars on a number of occasions (tweeting against teacher support for trans kids – describing them as ‘gender whisperers’ – in September 2018; criticising a trans-inclusive Cricket Australia participation policy in April 2019; and personally intervening to remove gender identity-inclusive toilet door signs in the Department of Prime Minister and Cabinet in August 2019).
However, from my perspective I would argue that the Coalition’s political campaign against trans and gender diverse Australians has really escalated in the past ten months.
In fact, I would pin-point that escalation to ten months ago yesterday (15 June 2021), when the Senate considered a motion from extremist One Nation Senator Malcolm Roberts on the subject of ‘childhood gender dysphoria’, which effectively called for gender-affirming health care to be denied to trans and nonbinary children and young people.
Not only was Roberts’ motion not based on either the evidence of experts in the field, or the lived experience of trans people themselves, but if adopted as public policy would directly lead to serious health and mental health harms for gender diverse kids.[ii]
Despite this, the Morrison Liberal/National Government granted its Senators a conscience vote, and they supported this attack on trans health care by a margin of 21 to 6.
Coalition Senators voting to deprive trans kids of evidence-based support included Attorney-General Michaelia Cash, and Assistant Minister to the Attorney-General Amanda Stoker.
The only Coalition Senators who voted to support trans kids were Simon Birmingham, Andrew Bragg, Richard Colbeck, Jane Hume, Marise Payne and Dean Smith (thank you).
Thankfully, the motion was defeated overall (because Labor, the Greens and Jacquie Lambie opposed it), but from my perspective it marked a turning point in debate, with attacks by the Government only becoming more frequent in the months since.
For example, less than three months later in September last year the Government voted against straight-forward amendments to the Fair Work Act 2009 (Cth), which simply would have ensured trans, nonbinary and intersex workers had exactly the same access to the Fair Work Commission as other employees.
There was absolutely no justification for their opposition. Not only because gender identity and intersex status were already included in the Sex Discrimination Act 1984 (Cth), but also because the then-Tony Abbott-led Liberal/National Opposition had actually supported the inclusion of those protected attributes back in 2013.
The Government’s position on trans (and intersex) rights had effectively gone backwards in the eight years since. It was, as I wrote at the time, both a pathetic position to take, and antipathetic to the rights of some of the most vulnerable members of the community.
Then of course there was the Religious Discrimination Bill, introduced to Parliament less than three months later again, in November of last year.
Overrode existing state and territory anti-discrimination laws to allow demeaning and derogatory comments against women, LGBT people, people with disability and even people of minority faiths, provided they were religiously-motivated
Overrode existing state and territory anti-discrimination laws that protect LGBT teachers in religious schools against discrimination (especially in Tasmania, the ACT and Queensland, and soon to commence laws in Victoria), and
Introduced religious exceptions which may have allowed discrimination against LGBT students in religious schools ‘under the guise of religious views’.
From this list it is clear trans people were one of many groups who stood to lose out under this legislation (so it wasn’t *only* a transphobic Bill).
But it is also undisputed that trans people were squarely in the sights of religious fundamentalists as they contemplated how they might (ab)use their new special privileges to discriminate had the laws passed (including Citipointe Christian College’s enrolment contract which primarily targeted trans kids, and Senate evidence of the Presbyterian Church of Victoria demanding the ability to misgender trans people in the workplace).
The Government then sought to mistreat trans people again when the Religious Discrimination Bill was considered by Parliament in February 2022, with Prime Minister Morrison introducing amendments that only protected lesbian, gay and bisexual students in religious schools against discrimination (and even then only against expulsion).
Even worse, after the Religious Discrimination Bill package was amended by the Opposition, cross-bench and five moderate Liberal MPs to protect trans and nonbinary kids, Morrison then chose not to have the Bill considered by the Senate at all (at least partially at the behest of the Australian Christian Lobby and Christian Schools Australia).
That is how much the Liberal/National Government opposes the rights of trans and nonbinary children: they were prepared to abandon another of their core promises entirely just because gender diverse students might have been protected as a by-product.
Then, on the very same day the Religious Discrimination Bill was placed on pause (to the relief of many, myself included), Tasmanian Liberal Senator Claire Chandler introduced a private members Bill to amend the Sex Discrimination Act in order to exclude trans women and girls from participating in women’s sport (a law which also would have had a significant detrimental impact on intersex women).
Within two weeks, the ‘Save Women’s Sports’ Bill had been personally endorsed by Prime Minister Morrison himself, while campaigning in Tasmania. Even though it is still not ‘official’ Government policy, this endorsement dramatically increases the risk this law will be passed should the Coalition win in May.
Finally, in the dying days of the Parliamentary term in early April, Liberal Senator Alex Antic misused Senate Estimates hearings by asking a range of witnesses how they would define ‘woman’, which is simply re-heated transphobic culture war nonsense copied directly from the Republican Party handbook in the United States.
A few things become clear when looking back on the events of the past ten months in this systematic way.
First, the Liberal/National Government’s war on the rights of trans Australians is relentless.
Second, their attacks only seem to be becoming more frequent.
Third, far from being an outlier, a candidate like Katherine Deves is likely to feel right at home inside the Coalition.
Indeed, her advocacy efforts, aiming to exclude trans women and girls from participating in women’s sport, seems to be the main reason why she was chosen in the first place.
On the first full day of the campaign (Monday 11 April) Morrison told 2GB radio that:
‘She’s [Deves is] standing up for things that she believes in, and I share her views on those topics. And, and I think it’s important that they’re raised and it’s got nothing to do with, you know, the broad agenda debates. This is just about, you know, common sense and what’s right. And I think Katherine’s right on the money there.’
Before telling another radio station later that day, during a discussion of trans inclusion in (or exclusion from) sport: ‘I welcome Katherine’s selection, pleased to play a role in that. I think she’s raised very important issues. I think Claire Chandler’s also been outspoken and brave on these issues. I share their views’ (emphasis added).
Katherine Deves was not chosen as a candidate in spite of her transphobic views. Deves was hand-picked as a candidate, by Scott Morrison, as a direct result of her anti-trans advocacy.
In fact, it seems to have been her primary ‘contribution’ to public life. The only other time I have come across her previously was listening to her as a witness at hearings into Mark Latham’s anti-trans kids Bill, in April 2021.
Perhaps unsurprisingly, Deves (wearing her Save Women’s Sport Australasia hat) supported Latham’s Bill to erase trans students from classrooms and schoolyards across NSW – legislation which was so extreme that the NSW Perrottet *Liberal/National* Government ultimately rejected it because it ‘may lead to targeted discrimination against a marginalised community which already experiences poorer mental health and wellbeing outcomes’.
I started this post by highlighting some of the more appalling social media posts and other public comments for which Deves has been forced to apologise this week. But, rather than the (admittedly extreme) ways in which she expresses her position, it is the substance of those views – seeking to exclude trans women and girls from sport, supporting laws to erase trans kids and nonbinary students from classrooms – for which she should apologise.
But we already know that she won’t, because campaigning against trans rights is what Katherine Deves is known for.
I will now end this post by making three final points.
First, none of the above is news to trans and gender diverse Australians, who have been enduring this culture war for the past six or seven years, and are all-too-aware of its escalation over the past ten months. We already know it is having a devastating impact on their mental health and wellbeing, and will continue to do so for as long as it is allowed to go on.
Second, none of this will stop until the rest of us stand up and make it stop. Trans and gender diverse Australians have been fighting this battle on their own for far too long. It’s time for cis allies, including within the LGBTIQ community, but also in the Labor Opposition, Greens, moderate Liberals, and everyday members of the community, to tell the Morrison Liberal/National Coalition that enough is enough.
Trans women are women.
Trans men are men.
Trans rights are human rights.
And trans kids will be protected with all of our collective might.
Third, perhaps the most frustrating part of all is that spending significant time fighting back against attacks on trans rights means there’s less time to advocate for much-needed positive changes to improve the lives of trans Australians, because the project of trans equality is far from complete.
This obviously includes amending the Fair Work Act to explicitly protect trans and nonbinary (and intersex) workers.
And amending the Sex Discrimination Act to remove the ability of religious schools to lawfully discriminate against LGBT students, and teachers and other staff members.
It also includes removing the high out-of-pocket costs for gender-affirming health care which places transition financially out of reach for too many trans Australians (and leaves others under severe financial stress).
And plenty more besides.
These are the things we need to happen. Not another ten months of unrelenting attacks on the trans community. And not the election of candidates like Katherine Deves, or other people with views like hers.
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.
NB This post is written in a personal capacity, and does not reflect the views of employers past or present.
Katherine Deves
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Footnotes:
[i] Full quote: ‘I’ve always loved 20th-century history and I think many people would say to themselves, ‘I’d never been to villages that stayed quiet, while the trains went past or whatever, I would have been part of the French Resistance, the underground, you know, I would be one of those people.’ And when all of this was happening, and no one was speaking out, I thought, this is it. This is the moment in my life, when I’m going to have to stand up and say something against the status quo and against the establishment and say, ‘I don’t think this is right’.’
(i) in 100 years of diagnostic history of childhood gender dysphoria (GD) there is an alarming trend that teenage girls, with no history of GD, have become the largest group seeking treatment,
(ii) in the United States of America, girsl requesting gender reassignment surgery in 2016-17 rose 400%,
(iii) in the United Kingdom, girls presenting with GD in the last 10 years rose 4000%, and
(iv) Australia’s Royal Children’s Hospital indicates referrals have grown from 1 every two years to 104 patients in 2014;
(b) further notes that:
(i) Sweden’s leading gender clinic has ended treatment of minors with hormonal drugs due to safety concerns, citing cancer and infertility, and
(ii) suicide mortality rate for transgendered people is 20 times higher than comparable peers;
(c) supports children presenting with GD to be given:
(i) the ‘wait and see’ method as the first choice, since evidence shows between 70-90% of young people’s dysphoria resolves itself by puberty, and
(ii) a comprehensive therapeutic pathway, since a large percentage of these children have pre-existing mental health issues, and not a medical pathway; and
(d) condemns the practice of children receiving:
(i) experimental and unproven medical treatments of irreversible puberty blockers and sex hormone treatments, and
Problem: Transgender and intersex workers are not explicitly protected under the Fair Work Act 2009 (Cth).
While discrimination on the basis of sexual orientation, gender identity and intersex status are all prohibited under the Sex Discrimination Act 1984 (Cth), only sexual orientation is included as a relevant attribute in the Fair Work Act for the purposes of protections against ‘adverse action’ (section 351(1)), and ‘unlawful termination’ (section 772(1)(f)), as well as in sections covering the contents of awards (section 153) and enterprise agreements (section 195), and the functions of the Fair Work Commission (section 578(c)).
This means that while the ability of lesbian, gay and bisexual workers to bring complaints to the Fair Work Commission (FWC) is certain, there is significant doubt about whether trans, nonbinary and intersex employees can do the same.
In practice, a trans worker who is mistreated in the workplace because of their gender identity, or an intersex employee who is fired on the basis of their sex characteristics, may be unable to have their issue resolved quickly and at low cost via the FWC, and instead be forced to go through a much less timely, and potentially more expensive, complaint to the Australian Human Rights Commission (and then in federal court after that).
This is a completely unjustified discrepancy in the rights of LG and B Australians on one hand, and transgender and intersex people on the other, and it must be resolved.
Solution: Amend the Fair Work Act to explicitly protect transgender and intersex workers.
Simple, right? Well, it certainly should be.
Sadly, however, the Liberal/National Government has proven itself to be completely uninterested in doing anything to address this most straightforward of problems.
What makes that vote even more disappointing is the then Opposition, under Tony Abbott, had actually voted in favour of protecting transgender and intersex people in the SDA back in 2013 – meaning the Liberal/National Coalition has gone *backwards* in its support for these groups in the subsequent eight years.
In any event, with the election expected to be called today (and at the latest by Monday 18 April), it is clear the lack of explicit protections for trans, nonbinary and intersex workers in the Fair Work Act will not be addressed this term.
In which case, I think we should ensure that finally addressing this problem is made an election issue for the upcoming poll (on May 14 or 21).
What policy commitments do we want?
From my perspective, any election commitment on this issue should comprise four, inter-related parts.
First, a commitment to ensure the Fair Work Act explicitly covers trans, nonbinary and intersex workers.
Second, a commitment to use best practice terminology to do so.
This includes adding a protected attribute of ‘gender identity’, using the definition in section 4 of the Sex Discrimination Act (‘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’) as a starting point, and finalised in consultation with trans community organisations.
However, while the SDA currently uses the protected attribute ‘intersex status’ (defined in section 4 as ‘the status of having physical, hormonal or genetic features that are (a) neither wholly female nor wholly male; or (b) a combination of female and male; or (c) neither female nor male’) this is no longer supported by the intersex community, at least in part because it has been interpreted by some as relating to identity rather than biology.
Instead, the best practice terminology is now ‘sex characteristics’, as called for in the historic March 2017 Darlington Statement, and most recently defined in the Equal Opportunity Act 2010 (Vic) as:
‘a person’s physical features relating to sex, including-
(a) genitalia and other sexual and reproductive parts of the person’s anatomy; and
(b) the person’s chromosomes, genes, hormones, and secondary physical features that emerge as a result of puberty.’
The definition of sex characteristics should also be finalised in consultation with intersex community organisations, particularly Intersex Human Rights Australia.
Third, if the attribute of ‘sex characteristics’ is added to the Fair Work Act, the Parliament should use the same opportunity to update the Sex Discrimination Act, replacing the protected attribute of intersex status with sex characteristics.
Fourth, a commitment to make these reforms within the first 12 months of the next Parliamentary term.
This discrepancy has existed since the passage of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, in June of that year.
Which means by mid-2023 it would have been a full decade of trans, nonbinary and intersex workers having less clear, and potentially lesser, workplace rights than lesbian, gay and bisexual employees.
That is far too long for workers to wait for what are basic protections, making a request that it be fixed in the next year entirely reasonable.
In this context, today I sent the below emails to the Government, Opposition and Greens.
The email to the Government highlights their rejection of amendments to the Fair Work Act in September last year, and asks them to take concrete action to protect trans, nonbinary and intersex workers as a matter of urgency.
The email to the Opposition welcomes their vote to support adding ‘intersex status’ to the Fair Work Act last September, while calling on them to go further, and commit to instead add the protected attribute of ‘sex characteristics’ if they form Government.
Finally, the email to the Greens thanks them for their leadership on this issue to date (it was their amendments that were voted on last year) and urges them to continue to prioritise this reform in the upcoming term of Parliament.
Please commit to protecting trans, nonbinary and intersex workers in the Fair Work Act 2009 (Cth)
All workers should be protected against adverse action, and unlawful termination, on the basis of who they are.
These protections must include transgender and intersex employees.
As you are aware, these groups are not explicitly covered by relevant provisions of the Fair Work Act 2009 (Cth), unlike other protected attributes like race, sex, age, disability, religious belief and even sexual orientation.
In this context, it was extremely disappointing that you, and other Government Senators, voted to reject straight-forward amendments to address this discrepancy in September 2021, thus leaving the position of trans, nonbinary and intersex workers unclear.
In light of the upcoming federal election, I call on you, and the Liberal/National Coalition, to unequivocally commit to fixing this problem as a matter of priority next term.
Not only would this be the right thing to do in principle, it would also be consistent with the actions of the then Abbott Opposition in 2013 (of which you were a member), to support the prohibition of discrimination on the basis of gender identity and intersex status in the Sex Discrimination Act 1984 (Cth).
A commitment in four, inter-related parts
From my perspective, this commitment should include the following four, closely-linked, elements:
First, a commitment to protect transgender and intersex workers on exactly the same basis as other groups.
Second, a commitment to add the protected attributes of ‘gender identity’ (based on the definition in the Sex Discrimination Act, and finalised in consultation with transgender community groups) and ‘sex characteristics’ (which is now best practice rather than intersex status, based on the recently-added definition in the Equal Opportunity Act 2010 (Vic), and finalised in consultation with Intersex Human Rights Australia) to the Fair Work Act.
Third, a commitment to use the same legislation to replace the protected attribute of intersex status in the Sex Discrimination Act with the best practice terminology sex characteristics.
Fourth, a commitment to complete the above steps within the first 12 months of the next Parliamentary term, especially given trans, nonbinary and intersex workers have been waiting for these protections since mid-2013.
I look forward to receiving your response to this correspondence, and sincerely hope you are able to provide clear promises on these issues on behalf of the Morrison Liberal/National Government.
Please note that, as your commitments (or lack of commitments) on the above will be in the public interest, I will publish the contents of any response I receive on my personal website: www.alastairlawrie.net
Please commit to protecting trans, nonbinary and intersex workers in the Fair Work Act 2009 (Cth)
All workers should be protected against adverse action, and unlawful termination, on the basis of who they are.
These protections must include transgender and intersex employees.
As you are aware, these groups are not explicitly covered by relevant provisions of the Fair Work Act 2009 (Cth), unlike other protected attributes like race, sex, age, disability, religious belief and even sexual orientation.
In this context, the ALP’s support for amendments in September 2021 to add gender identity and intersex status as protected attributes in the Fair Work Act was obviously welcome, although it was disappointing this did not extend to supporting the best practice terminology of sex characteristics.
In light of the upcoming federal election, I call on you, and the Australian Labor Party, to commit to protecting trans, nonbinary and intersex workers as a matter of priority next term.
Not only would this be the right thing to do in principle, it would also be consistent with, and build on, one of the major achievements of the most recent Labor Government, the passage of the historic Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (during your term as Attorney-General).
A commitment in four, inter-related parts
From my perspective, this commitment should include the following four, closely-linked, elements:
First, a commitment to protect transgender and intersex workers on exactly the same basis as other groups.
Second, a commitment to add the protected attributes of ‘gender identity’ (based on the definition in the Sex Discrimination Act, and finalised in consultation with transgender community groups) and ‘sex characteristics’ (which is now best practice rather than intersex status, based on the recently-added definition in the Equal Opportunity Act 2010 (Vic), and finalised in consultation with Intersex Human Rights Australia) to the Fair Work Act.
Third, a commitment to use the same legislation to replace the protected attribute of intersex status in the Sex Discrimination Act with the best practice terminology sex characteristics.
Fourth, a commitment to complete the above steps within the first 12 months of the next Parliamentary term, especially given trans, nonbinary and intersex workers have been waiting for these protections since mid-2013.
I look forward to receiving your response to this correspondence, and sincerely hope you are able to provide clear promises on these issues on behalf of the Albanese Labor Opposition.
Please note that, as your commitments (or lack of commitments) on the above will be in the public interest, I will publish the contents of any response I receive on my personal website: www.alastairlawrie.net
Lack of explicit protections for trans, nonbinary and intersex workers under the Fair Work Act 2009 (Cth)
Thank you for your ongoing leadership on this issue in the Commonwealth Parliament.
This includes regularly raising the lack of explicit protections for transgender and intersex employees in the Fair Work Act 2009 (Cth) during Senate Estimates hearings.
Most importantly, thank you for introducing amendments to the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 in September last year which, at best, would have added gender identity and sex characteristics as protected attributes to the Fair Work Act or, at a minimum, would have included gender identity and intersex status instead.
As you know, I shared your disappointment when neither set of amendments was successful.
However, I also share your passion to ensure this work is finally completed.
For your information, and in light of the upcoming federal election, this morning I have written to both the Attorney-General and Shadow Attorney-General calling on the Government and Opposition respectively to promise the following:
First, a commitment to protect transgender and intersex workers on exactly the same basis as other groups.
Second, a commitment to add the protected attributes of ‘gender identity’ (based on the definition in the Sex Discrimination Act, and finalised in consultation with transgender community groups) and ‘sex characteristics’ (which is now best practice rather than intersex status, based on the recently-added definition in the Equal Opportunity Act 2010 (Vic), and finalised in consultation with Intersex Human Rights Australia) to the Fair Work Act.
Third, a commitment to use the same legislation to replace the protected attribute of intersex status in the Sex Discrimination Act with the best practice terminology sex characteristics.
Fourth, a commitment to complete the above steps within the first 12 months of the next Parliamentary term, especially given trans, nonbinary and intersex workers have been waiting for these protections since mid-2013.
Ideally, both major parties will commit to protecting the rights of trans, nonbinary and intersex workers, and this reform will be passed quickly and on a bipartisan basis.
However, in the event that neither of the major parties is willing to make these promises, or that they do but do not follow through on them with appropriate and timely action, I urge you to continue fighting on this issue.
In particular, if no amendments are forthcoming by mid-2023, I call on you to reintroduce your amendments to the Fair Work Act either as part of a relevant legislative package, or via a private members Bill.
I look forward to receiving your response to this correspondence.
As with my emails to the Government and Opposition, please note that, as your response on the above will be in the public interest, I will publish the contents of any correspondence I receive on my personal website: www.alastairlawrie.net
Sincerely,
Alastair Lawrie
*****
Update, Sunday 8 May 2022:
On Friday (6 May) I received the following response from Greens Senator, and LGBTIQA+ spokesperson, Janet Rice:
Dear Alistair Lawrie
Thank you for your correspondence of 10 April 2022, in relation to improvements to antidiscrimination legislation, in order to protect members of LGBTIQA+ communities. I would like to thank you for your tireless and important advocacy on such important issues, and in particular the legal expertise you have brought to issues which have such crucial importance for people’s lives.
Let me re-affirm the Greens’ commitment to fighting for LGBTIQA+ rights, as set out in our policy.
We will continue to advocate for the necessary changes to the Fair Work Act 2009 to ensure that workers who are trans or have intersex variations are protected on the same basis as other groups. That should include appropriate definitions in relation to gender identity and sex characteristics, developed in consultation with relevant communities. Those changes should also be accompanied by relevant updates to the Sex Discrimination Act 1984 as needed.
As you are aware, the Greens have a significant opportunity in this Parliament to achieve balance of power, potentially in both the House of Representatives and the Senate. We will continue to advocate as forcefully as we are able to, for these changes and others to protect the rights of LGBTIQA+ people.
Yours sincerely
Senator Janet Rice Australian Greens LGBTIQA+ spokesperson
This is obviously encouraging, including commitments to advocate for the introduction of gender identity and sex characteristics as protected attributes in the Fair Work Act, with definitions to be developed in consultation with trans and intersex communities.
Disappointingly, I am yet to receive any response from either Senator Cash on behalf of the Government, or Mark Dreyfus on behalf of the Australian Labor Party.
Today I have written again to both, asking for any response to be provided by Sunday 15 May, so that they can be published prior to the election. I will obviously update this post if and when any such response is received.
*****
Update Wednesday 18 May:
Well, the update is really that there is nothing to update.
Unfortunately, despite writing again to both the Attorney-General Michaelia Cash and her Shadow Mark Dreyfus, I have received no response from either the Morrison Liberal/National Coalition, or the Albanese Labor Party. Which is perhaps not surprising in the case of the former (given they voted against protecting trans, gender diverse and intersex workers in the Fair Work Act in September last year), but is more disappointing in the case of the latter given they actually supported including gender identity and intersex status as protected attributes at a minimum (although need to go one step further by supporting the best practice terminology of sex characteristics).
I will of course update the post further if any response is received between now (COB Wednesday) and the opening of polls on Saturday morning.
NB This post is written in a personal capacity, and does not reflect the views of employers past or present.
Commonwealth Attorney-General Michaelia Cash and Shadow Attorney-General Mark Dreyfus
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Almost two weeks after the Sydney Gay & Lesbian Mardi Gras, the NSW LGBTIQ community has been given a belated reason to celebrate.
Yesterday (Wednesday 16 March), the NSW Government finally released its response to Mark Latham’s anti-trans kids Bill (formally called the Education Legislation Amendment (Parental Rights) Bill 2020), in which they categorically rejected his proposed legislation.
This was a law that, if passed, would have erased trans and gender diverse students from classrooms and schoolyards across the State.
It also would have introduced a Thatcher-esque section 28-style prohibition on positive references to LGBTQ people generally (modelled after a UK law from the 1980s and 90s which harmed a generation of queer kids there).
As well as enacting a new offensive and stigmatising definition of intersex people in NSW legislation.
Importantly, the Perrottet Liberal/National Government also rejected key recommendations of the Parliamentary Inquiry into Latham’s Bill (which, in a disturbing conflict of interest, featured Latham himself as Chair). This included ruling out:
Banning trans students from using the bathroom reflecting their gender identity
Outing trans students to non-supportive parents, even where this puts the student in danger
Stopping trans students from seeking confidential help from school counsellors, and
Outing trans students to all of the parents of other students in their year group.
The Government’s decision to reject Latham’s anti-trans kids Bill, and key recommendations of his biased inquiry, is obviously incredibly welcome.
Above all, it is a huge relief to LGBTIQ students, and especially trans and gender diverse kids and their families, who no longer need fear his legislative attack on their right to a safe and inclusive education.
However, this does not mean we should be overly-congratulatory towards the NSW Government either.
For example, in their response the Government notes, as one of their reasons for rejecting the Bill, that it ‘may lead to targeted discrimination against a marginalised community which already experiences poorer mental health and wellbeing outcomes’ (ie trans and nonbinary children and young people).
Which is true. But it was also true on the day Latham first introduced his legislation way back in August 2020.
There was no need for a drawn-out Parliamentary Inquiry to tell them that.
There was definitely no need to refer it to Latham’s Committee for that Inquiry.
There was no justification for all three Government members of that Inquiry to support the main elements of Latham’s Bill, including backing harmful recommendations about outing trans kids, and preventing them from accessing bathrooms, or seeking help from counsellors.
And there was clearly no justification for the Parliamentary Secretary for Education, Kevin Conolly, to express his personal support for the Bill (noting that he remains in that portfolio today).
The NSW Government could, and should, have spared the trans community from being forced to endure yet another debate about their very existence, by rejecting the Bill from the outset rather than taking 19 months and giving One Nation a platform to spread their transphobia in the meantime.
So, while the response yesterday was the right outcome, the tortuous route it took them to arrive there means they deserve, at best, a polite clap rather than a standing ovation.
The second reason why we should not be giving thunderous applause to the NSW Government is that all they have done is stop the situation in NSW from getting worse.
LGBTIQ people in NSW still woke up this morning in the worst jurisdiction for their legal rights in the country. Just as they did yesterday, and as they will tomorrow.
This includes having the worst anti-discrimination laws, which fail to protect bisexual people (the only place in Australia not to do so), nonbinary people, and intersex people. And which have extraordinary exceptions, allowing all private schools and colleges, religious and non-religious alike, to discriminate against LGBTQ students and teachers.
NSW will likely also soon be the only state or territory which requires trans and gender diverse people to have genital surgery in order to update their birth certificate (assuming Queensland follows through on its promises to reform their own laws this year).
NSW has made no progress on, or given any firm commitments to, prohibiting sexual orientation and gender identity conversion practices (which have already been banned in Victoria and the ACT, partially banned in Queensland, with bans under active consideration elsewhere).
And NSW has also shown no signs it will end what I consider to be the worst human rights abuses against any part of the LGBTIQ community: coercive surgeries and other non-consensual medical interventions on children born with innate variations in sex characteristics (with the ACT and Victorian Governments already committed to reform in this area, and realistic hope for change in at least one other jurisdiction).
All the NSW Government did yesterday was rule out taking another step backwards.
But even standing still means that, with each and every passing year, NSW falls further and further behind on LGBTIQ law reform.
Next week (Friday 25 March) will mark exactly one year to go until the next State election.
That’s a full 12 months for the Perrottet Liberal/National Government to do more than just publicly reject a terrible law attacking some of the most vulnerable members of our community, and instead to make long-overdue progress on at least some, if not all, of the above-mentioned law reforms to make the lives of LGBTIQ people in NSW better.
If they do, they will have actually earned some real praise.
Finally, lest I be accused of being partisan, we cannot let the Minns Labor Opposition off the hook on this subject either.
Because they too have failed to publicly condemn Mark Latham’s anti-trans kids Bill over the past 19 months.
They too voted for it to be referred to a Parliamentary Inquiry chaired by Latham himself.
And, disappointingly, they also had one of their two members on that Inquiry support the main elements of Latham’s Bill, including backing harmful recommendations about outing trans kids, and preventing them from accessing bathrooms, or seeking help from counsellors.
That’s simply not good enough. Nor is the fact that, one year out from what looks to be a highly competitive election, we currently know next-to-nothing about Labor’s plans on the issues described earlier.
It’s time for them to demonstrate to the LGBTIQ community exactly what they would do to end NSW’s reign as the jurisdiction with the worst laws in Australia.
In summary, then, while I am happy and relieved for LGBTIQ students, and trans and gender diverse kids in particular, that Latham’s anti-trans kids Bill has finally been rejected, I am far from satisfied with the current state of law reform in NSW. We can and must demand better, from both the Perrottet Liberal/National Government, and Minns Labor Opposition.
Please reject the Education Legislation Amendment (Parental Rights) 2020
I am writing to urge you to reject the One Nation Education Legislation Amendment (Parental Rights) Bill 2020 – otherwise known as Mark Latham’s anti-trans kids Bill.
All students in NSW deserve the opportunity learn and grow in a safe and welcoming school environment. That must include lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) students.
The Education Legislation Amendment (Parental Rights) Bill 2020 fails this fundamental principle. It fails LGBTIQ students generally, and trans and nonbinary students in particular, by making them feel invisible, and denying them the same support as other students.
This includes erasing trans and nonbinary students in classrooms and schoolyards across the state via the ban on any discussion of ‘gender fluidity’, which would prevent teachers, principals and counsellors from even acknowledging that trans and gender diverse people exist, and leave students who are already vulnerable feeling even more isolated and alone.
It includes a broader ban on positive references to diversity in sexual orientation and gender identity. This provision – modelled on the notorious ‘section 28’ which harmed a generation of LGBTQ students in the UK in the 1980s and 1990s – would have a chilling effect on all school staff, and would even stop school counsellors from being able to reassure a student struggling with their sexual orientation, by telling them who they are is perfectly normal.
And it includes the insertion of a new offensive and stigmatising definition of people born with intersex variations of sex characteristics in NSW law.
Unfortunately, this is legislation that would harm LGBTIQ children and young people rather than help them. It must be rejected.
I also call on you to reject the recommendations of the Parliamentary Inquiry into the Education Legislation Amendment Bill, through your Government’s response which is due by 7 March 2022.
That Inquiry was flawed from the very beginning, with One Nation Leader Mark Latham chairing the examination of his own legislation.
Nor did it hear from the communities who would be most at risk under the Bill: only one witness out of more than 40 who gave evidence was transgender, and none were current trans or nonbinary students.
Unsurprisingly, given this bias, the Committee’s recommendations would make the problems caused by the Bill worse, rather than better, including Recommendation 8 that would (among other things):
Ban trans students from using the bathroom that reflects their gender identity
Out trans students to non-supportive parents, even where this puts them in danger
Stop trans students from seeking confidential help from school counsellors, and
Out trans students to all of the parents of students in their year group.
These recommendations would only compound the harms caused by what was a deeply damaging and divisive Bill to begin with.
The Bill, and Inquiry recommendations, are in direct conflict with the message of unity which you emphasised when you first became Premier on 5 October 2021. You said:
‘Being Premier is a great honour, but I want to be clear that the job I have committed to today is not just to lead NSW, but to serve all the people of our state’ (emphasis added).[i]
Abandoning LGBTIQ children and young people, and especially trans and nonbinary students, would clearly not be serving all the people of NSW.
In those same comments that day, you also said:
‘The true strength of NSW is its people, our working mums and dads, business owners, frontline workers, teachers, workers, doctors, paramedics, firefighters, police, tradies’ (emphasis added).
If you genuinely support teachers, then you will oppose legislation that would place them in the most impossible of circumstances: having to choose between supporting the LGBTIQ students in their classes, or keeping their job.
This is because the Education Legislation Amendment (Parental Rights) Bill 2020 would lead to teachers who acknowledge trans and gender diverse people exist, or make positive references to diversity in sexual orientation and gender identity, having their registration cancelled and therefore being fired.
Any human would choose to support the real-life person in front of them, and to meet their real-life needs, rather than implement discriminatory legislation that is not motivated by the best interests of those students.
As a human, and as Premier, you have the opportunity to reject this legislation, and to remove the threat to teachers for simply doing what teachers do: teach the child in front of them, including making sure they have an inclusive environment in which to learn and grow.
I therefore reiterate my call to you to publicly, and unequivocally, reject the One Nation Education Legislation Amendment (Parental Rights) Bill 2020, and the recommendations of Mark Latham’s Committee which inquired into his own legislation.
In doing so, you would be living up to your words on the day you became Premier, and the message of unity you delivered to the state.
Above all, you would be sending a clear message to LGBTIQ children and young people generally, and to trans and nonbinary students in particular, that who they are is valued, and that they have a place in NSW.
Thank you in advance for considering this correspondence. Please do not hesitate to contact me at the details provided should you require additional information.
Sincerely
Alastair Lawrie
Footnotes:
[i] ‘Dominic Perrottet’s first full speech as leader’, Sydney Morning Herald, 5 October 2021, available here.
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Last week, we had some rare good news: the Commonwealth Government’s Religious Discrimination Bill stalled in the Senate, and now seems unlikely to pass before the upcoming federal election.
That Bill would have legally protected religiously-motivated anti-LGBT speech in all areas of public life, and potentially overridden state and territory protections for LGBT teachers and other workers in religious schools in Victoria, Queensland, Tasmania and the ACT (among many other problems – for more detail, see: Why the Religious Discrimination Bill must be rejected (In 1,000 words or less)).
The fact it has been stopped (at least for now), is obviously a welcome relief.
Unfortunately, that relief is short-lived, especially for LGBTIQ people in NSW, because the NSW Government’s response to the Parliamentary Inquiry into Mark Latham’s Education Legislation Amendment (Parental Rights) Bill 2020 – otherwise known as his anti-trans kids Bill – is expected at any point in the next three weeks, and must be delivered by March 7 (the Monday after Mardi Gras).
This legislation is actually worse than the Religious Discrimination Bill, in particular because it so specifically targets the most vulnerable members of our community. For those who aren’t familiar with it, allow me to explain its main features.
What’s in Mark Latham’s anti-trans kids Bill?
The primary purpose of Latham’s legislation is to erase trans and gender diverse children from classrooms and schoolyards across NSW. It does this by inserting the following definition into the Education Act 1990 (NSW):
gender fluidity means a belief there is a difference between biological sex (including people who are, by their chromosomes, male or female but are born with disorders of sexual differentiation) and human gender and that human gender is socially constructed rather [than] being equivalent to a person’s biological sex.
It then prohibits not just ‘the teaching of gender fluidity’ (proposed section 17A), but also any ‘instruction, counselling and advice provided by’ teachers, support staff, counsellors, principals, contractors, consultants and even volunteers at any school in the state, public or private (proposed section 17C).
The punishment for teachers who breach this prohibition is immediate de-registration (ie being fired).
In effect, the Bill would impose an official silence on anything to do with transgender people – even the fact that they exist. This includes everything from exclusion from the health and physical education syllabus, through to banning school counsellors from discussing gender identity with struggling students who are at risk of self-harm or suicide.
Trans and gender diverse kids would be made to feel invisible, with nowhere to turn to for help.
The Bill then *also* includes provisions to harm LGBTQ kids more generally. It does this by inserting a definition of matters of parental primacy:
in relation to the education of children, moral and ethical standards, political and social values, and matters of personal wellbeing and identity including gender and sexuality.
Before introducing a range of provisions to limit the teaching of anything to do with these issues. Chief among them is proposed section 17B:
Teaching to be non-ideological
In government schools, the education is to consist of strictly non-ideological instructions in matters of parental primacy. The words non-ideological instruction are to be taken to include general teaching about matters of parental primacy as distinct from advocating or promoting dogmatic or polemical ideology.
The impact of this provision is incredibly far-reaching. After all, if some parents believe homosexuality is sinful, then presumably it would be ideological for a school to teach that simply being lesbian, gay or bisexual is okay. As with the ban on the teaching of gender fluidity, this ban also applies in relation to school counsellors (who could not reassure a child struggling with their sexual orientation that who they are is normal).
The use of the phrase ‘advocating or promoting’ reveals this is simply Margaret Thatcher’s infamous section 28 – which harmed a generation of LGBT kids in the UK in the 1980s and 1990s – recycled on the other side of the world for the 2020s.
The outcome would be the same here – teachers and other workers too afraid to mention anything to do with sexual orientation or gender identity at the risk of de-registration, inflicting silence on LGBTQ kids where there should be support.
Finally, Latham’s Bill attacks the ‘I’ part of the LGBTIQ community by including an offensive and stigmatising reference to intersex in NSW law (as part of the definition of gender fluidity – ‘people who are, by their chromosomes, male or female but are born with disorders of sexual differentiation). The use of disorders here is exactly the type of harmful language which encourages the imposition of coercive surgeries and other unnecessary medical treatments on children born with variations of sex characteristics.
But it’s from Mark Latham. Why can’t we just ignore it?
For those (blissfully) unaware of Mark Latham’s current political status, the failed former federal leader of the Australian Labor Party is now the NSW leader of Pauline Hanson’s One Nation Party. In a normal political environment, fringe extremist legislation from a fringe extremist party could sometimes be ignored.
Sadly, the NSW Legislative Council removed this option when, in its infinite (lack of) wisdom, it decided to refer the Education Legislation Amendment (Parental Rights) Bill 2020 to the Education Portfolio Committee for inquiry – the same Committee chaired by… Mark Latham.
Given this, the inquiry process into Latham’s unbalanced and transphobic Bill was, well, unbalanced and transphobic.
In the two days of hearings last April, 42 witnesses were invited to give evidence. Only one (Teddy Cook, from ACON) was trans or gender diverse. None were trans or gender diverse students, the people whose right to a safe learning environment would be stripped away by passage of this law.
There were multiple instances of disrespectful treatment towards submitters who opposed the Bill (from Latham himself), while he encouraged other witnesses to give evidence about subject matter which was not included in the legislation (such as witnesses who focused on the exclusion of trans girls from bathrooms, and sporting activities).
Unsurprisingly, the entire committee process became a platform for some of the worst examples of transphobia we have seen in any Australian parliament in recent history, perhaps best summed up by this statement from Mark Sneddon of the Institute of Civil Society:
‘What we are trying to do – or what I understand the bill is trying to do – is to reduce the social contagion influence putting more people onto the conveyor belt of gender transition.’
Which, at the very least, is being honest: through this Bill, Latham is attempting to stop trans and nonbinary kids from being trans and nonbinary. Presumably because he thinks being those things is a negative in and of itself.
While the rest of us understand that:
Trans and nonbinary people are part of the natural spectrum of human gender identity
Trans and nonbinary kids are awesome, and
There are really two conveyor belts – one which lets trans and nonbinary kids be themselves and delivers them to health and happiness, and one which tells trans and nonbinary kids that they are wrong and should not exist, and causes them serious harm.
Completely unsurprisingly, given the Committee’s lack of impartiality, the Final Report released in September 2021 endorsed core parts of Latham’s anti-trans kids Bill.
This includes Recommendation 2, which supported the section 28-style approach to denying information to lesbian, gay, bisexual and trans students:
That, in recognition of its obligations under the International Covenant on Civil and Political Rights, the NSW Government supports all parental primacy provisions and protections in the Education Legislation Amendment (Parental Rights Bill) 2020 including:
the statutory recognition of parental primacy in definition, object and principle within the Education Act 1990 and related statutes;
the requirement for teaching to be non-ideological;
the enhanced consultation requirements with parents; and
the right for parents to withdraw their children from teaching that is inconsistent with their core values and convictions.
And while there was a brief glimmer of hope when I first read Recommendation 7 (‘That the Legislative Council amend the Education Legislation Amendment (Parental Rights) Bill 2020 to remove the proposed legislative provisions concerning gender fluidity’), this was immediately undone by Recommendation 8, which starts:
‘That the NSW Government update Bulletin 55: Transgender Students in Schools based on the following principles:
The Safe Schools program and Gayby Baby movie are prohibited in NSW Government schools. Gender fluidity is not part of the NSW school curriculum and therefore, should not be taught or promoted, either in classrooms, teacher professional development, by external consultants, special school activities or through the distribution of material to teachers or students. This prohibition also applies to the teaching of gender as a ‘social construct’.’
In practice, the Committee still endorsed the erasure of trans and gender diverse kids from classrooms and schoolyards, they simply thought it could best be achieved via Bulletin, not Bill.
But there are other parts of Recommendation 8 which are *far* worse, and would not be out of place in regressive and repressive, redneck Republican USA. This includes (but is definitely not limited to):
A ban on trans students using the bathroom that reflects their gender identity (Recommendation 8.9: ‘Other than in circumstances of a full medical gender transition,[i] students born biologically male shall not be allowed in female toilets, change rooms, dormitories and excursion accommodation; and vice versa for students born biologically female. Third options shall be made available for these students, such as administrative block toilets and change rooms’)
Outing trans students to non-supportive parents, even where this puts the student in danger (Recommendation 8.4: ‘No school or school staff can withhold information from parents about the gender or gender transition of a student at the school, other than by court order or acting with the advice of a government child protection agency’ and Recommendation 8.5: ‘No student has the right or capacity to stop the school telling their parents information about their gender, where the school is obliged to do so’)
Stopping trans students from seeking confidential help from school counsellors (Recommendation 8.11: ‘For students aged under 18 years, school counsellors should not involve themselves in questions of gender fluidity and transition without prior reference to parents and any medical professionals advising the student and parents on this matter. Parents have the right to know if gender fluidity and transition are being discussed at a school. School counsellors must liaise with parents and relevant medical professionals as much as possible’), and
Outing trans students to all of the parents of students in their year group (Recommendation 8.12: ‘If a student has changed their gender, their parents shall be consulted about the best way of communicating this to the school community. Parents of other children in the same year group should be notified of the change, allowing them to talk to their children in advance’).
The full Committee report, and other harmful parts of Recommendation 8, can be read here.
In short, the adoption of Recommendation 8 in full would cause significant harm for thousands of trans and nonbinary children and young people in NSW.
Which makes it disturbing to realise that not only was this recommendation (and all of the others, including implementing section 28) made by Committee Chair Mark Latham, they were endorsed by all three Coalition members of the Committee, as well as one of the two Labor Opposition members.
Only Labor MLC Anthony D’Adam and Greens MLC David Shoebridge stood up for trans and gender diverse kids against this harmful and hateful Bill.
So, what happens next?
What happens next comes down to the NSW Government, and in particular to new(ish) Premier Dominic Perrottet.
As I indicated in the introduction, they must respond to the Final Report of Mark Latham’s Committee’s Inquiry into Mark Latham’s anti-trans kids Bill by 7 March 2022 at the latest.
The simplest approach would be for Perrottet to reject both the Committee Report, and the Education Legislation Amendment (Parental Rights) Bill 2020, outright, and to instead stand up for the rights of all students – including all lesbian, gay, bisexual, trans and nonbinary, intersex and queer students – to a safe learning environment.
But that outcome is by no means guaranteed. There are obviously some members within the Government who support Latham’s agenda attacking trans and gender diverse kids (starting with the three MLCs on his Committee).
It is therefore entirely possible that Premier Perrottet, and the NSW Government, endorse some parts, or even all, of Mark Latham’s Education Legislation Amendment (Parental Rights) Bill 2020 before Monday March 7.
We could also see them introduce their own legislation on this subject, similar to and possibly inspired by the Latham Bill, in the following weeks or months.
If that happens, then it will take a collective effort just as strong, and just as broad-based, as the campaign against the Religious Discrimination Bill to ensure it is defeated.
We will need to fight like lives depend on it. Because they will. The lives of some of the most vulnerable members of our community: trans and nonbinary kids.
*****
For LGBTIQ+ people, if this post has raised issues for you, please contact QLife on 1800 184 527, or via webchat: https://qlife.org.au/ (between 3pm and midnight, every day)
Or contact Lifeline Australia on 13 11 14.
All eyes will be on Education Minister Sarah Mitchell (front), and Premier Dominic Perrottet (back), in coming weeks as they announce the NSW Government’s response to Mark Latham’s Committee’s Inquiry into Mark Latham’s anti-trans kids Bill.
If you have enjoyed reading this post, you can sign up to receive updates about this and other issues from this blog, via the right-hand scroll bar on desktop, or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus
Footnotes:
[i] Noting that, for the vast majority of trans and gender diverse young people, they do not access what is referred to here as ‘full medical gender transition’ until they are 18.
alastairlawrie 