If you thought the Religious Discrimination Bill was bad, wait til you hear about Mark Latham’s anti-trans kids Bill

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.

For more detail on the Bill, see I Stand With Trans Kids, and Against Mark Latham.

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.

For more on the Inquiry process, see: Surprise!* Mark Latham’s Inquiry is just as unbalanced and transphobic as his Bill.

What did the Inquiry recommend?

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:

  1. 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).

Indeed, the Liberal Party Parliamentary Secretary for Education, Kevin Conolly, expressed his personal support for the Latham anti-trans kids Bill in his response to my letter to NSW MPs this time last year, asking them to reject the Bill (my original letter is here: NSW MPs can be champions for trans and gender diverse kids. Or bullies while I published Conolly’s response here: NSW Liberal Parliamentary Secretary for Education Supports Bill to Erase Trans Kids).

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Senator Bragg: So your answer is no?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mrs Deeming: I think-

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

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

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

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

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

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

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

*****

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Senator Rice: It’s how it’s drafted.

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

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

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

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

Senator Rice: Exactly.

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

*****

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

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

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

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

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

Conclusion

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

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

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

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

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

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

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

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

LGBTIQ Law Reform Priorities for 2022

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

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

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

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

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

  1. Stopping the Commonwealth Religious Discrimination Bill

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

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

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

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

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

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

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

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

2. Ending coercive surgeries on intersex children

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

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

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

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

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

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

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

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

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

This situation is simply not good enough.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Commonwealth

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

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

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

New South Wales

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

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

Victoria

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

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

Queensland

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

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

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

Western Australia

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

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

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

South Australia

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

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

Australian Capital Territory

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

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

Northern Territory

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

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

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

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

Conclusion

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

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

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

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

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

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

Submission to ACT Government Discrimination Law Reform Discussion Paper

ACT Government Justice and Community Safety Directorate

Via: civilconsultation@act.gov.au

Sunday 30 January 2022

To the consultation team

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

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

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

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

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

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

‘General limitation’ defence

Question 3: Should the exceptions in the Discrimination Act:

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

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

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

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

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

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

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

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

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

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

Again, as outlined on page 15:

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

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

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

Religious Exceptions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(Answered together)

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

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

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

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

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

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

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

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

Thank you in advance for taking this submission into consideration.

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

Sincerely

Alastair Lawrie

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

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

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

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

*****

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

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

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

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

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

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

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

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

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

Laws that are at risk include:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(999 words)

*****

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

  • the Public Interest Advocacy Centrehere;

and

  • the Australian Discrimination Law Experts Grouphere

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

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

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

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

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

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

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

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

LGBT kids don’t need more hollow promises

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Law Reform Commission

GPO Box F317

Perth WA 6841

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

Friday 5 November 2021

To the Commission

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

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

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

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

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

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

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

Protected Attributes

Gender identity

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

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

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

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

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

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

(1) ‘For the purposes of this Part, a person has a gender history if the person identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex.

(2) In subsection (1)-

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

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

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

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

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

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

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

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

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

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

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

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

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

Recommendation 1:

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

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

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

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

Sex characteristics

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

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

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

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

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

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

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

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

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

(b) the person’s chromosomes; and

(c) the person’s hormones; and

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

Recommendation 2:

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

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

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

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

(b) the person’s chromosomes; and

(c) the person’s hormones; and

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

Sexual orientation

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

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

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

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

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

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

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

Recommendation 3:

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

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

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

*****

Religious Exceptions

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

For example, section 72 currently provides:

‘Nothing in this Act affects-

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

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

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

(d) any other act or practice of a body established for religious purposes, being an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion.’

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

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

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

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

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

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

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

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

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

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

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

51. Employment based on religion

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

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

51A. Admission of person as student based on religion

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

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

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

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

52. Participation in religious observance

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

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

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

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

(d) any other act that-

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Specifically, subsection 34(3) states:

This Division does not apply to discrimination on the ground of sexual orientation, gender identity or intersex status in relation to employment or engagement for the purposes of an educational institution if-

(a) the educational institution is administered in accordance with the precepts of a particular religion and the discrimination is founded on the precepts of that religion; and

(b) the educational authority administering the institution has a written policy stating its position in relation to the matter; and

(c) a copy of the policy is given to a person who is to be interviewed for or offered employment with the authority or a teacher who is to be offered engagement as a contractor by the authority; and

(d) a copy of the policy is provided on request, free of charge-

(i) to employees and contractors and prospective employees and contractors of the authority to whom it relates or may relate; and

(ii) to students, prospective students and parents and guardians of students and prospective students of the institution; and

(iii) to other members of the public.

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

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

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

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

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

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

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

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

Recommendation 4:

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

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

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

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

*****

Anti-Vilification Protections

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

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

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

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

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

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

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

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

  • sexual orientation
  • gender identity, and
  • sex characteristics

as defined earlier in this submission.

Recommendation 5:

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

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

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

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

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

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

While section 19 states that:

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

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

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

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

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

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

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

Recommendation 6:

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

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

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

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

and

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

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

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

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

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

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

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

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

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

(ii) any purpose in the public interest.’

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

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

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

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

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

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

Recommendation 7:

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

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

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

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

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

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

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

(ii) any purpose in the public interest.’

*****

Other Issues

Removing Barriers to Identity Documentation for Trans and Gender Diverse People

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

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

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

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

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

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

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

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

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

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

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

Recommendation 8:

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

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

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

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

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

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

‘Protections from harmful practices in medical settings

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

Recommendation 9:

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

Prohibiting Conversion Practices

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

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

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

Recommendation 10:

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

Long Title and Objects Clause

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

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

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

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

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

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

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

Interpretive Provision

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

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

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

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

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

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

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

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

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

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

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

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

It’s an unholy mess.’

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

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

Additional Protected Attributes

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

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

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

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

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

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

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

Definition of Religious or Political Conviction

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

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

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

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

‘political conviction includes-

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

(b) engaging in political activity; and

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

(d) not engaging in political activity.’

‘religious conviction includes-

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

(b) engaging in religious activity; and

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

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

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

(f) not engaging in religious activity.’

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

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

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

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

*****

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

Sincerely

Alastair Lawrie


Footnotes:

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

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

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

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

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

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

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

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

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

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

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

Why there MUST be a Senate Inquiry into the Religious Discrimination Bill

There is a *lot* of news happening at the moment. In the midst of the COVID-19 pandemic, and now during COP26 – and with it humanity’s last best chance to address the existential threat of global heating – it can be difficult to keep track of other serious challenges to our human rights.

In Australia, one of those is the Morrison Liberal/National Government’s proposed Religious Discrimination Bill, which they remain committed to introducing into Commonwealth Parliament before the end of 2021.

While most people outside the Government still don’t know what form the final Bill will take (unlike a select few, like religious fundamentalists including the Australian Christian Lobby, with whom the Government has been negotiating – more on that later), we did learn something new last week:

Attorney-General Michaelia Cash is seeking to avoid the scrutiny of a Senate Inquiry into the Religious Discrimination Bill.

As reported in the Sydney Morning Herald last Sunday (24 October):

‘Attorney-General Michaelia Cash signalled the government would ramp up pressure on Labor to not hold a Senate inquiry because the government “has conducted two rounds of public consultation on draft legislation, and met face to face with over 90 stakeholders in a series of roundtables”.’

This position – Attorney-General Cash wanting to avoid the usual scrutiny of a Senate Inquiry – was then confirmed during Senate Estimates last Tuesday (26 October), via the following exchange with Greens Senator Janet Rice:

Senator Rice: … Given the far-reaching impacts of this proposed legislation, will you commit to having a full and thorough Senate inquiry into the bill once it’s introduced?

Senator Cash: That’s a decision for the Senate.

Senator Rice: Is the government committed and supportive?

Senator Cash: That is a decision for the Senate.

Senator Rice: It will be a decision for the Senate, but will the government be supporting having a Senate inquiry into this legislation?

Senator Cash: Again, that is a decision for the Senate.

Senator Rice: Will the government support that by helping to provide the numbers in the Senate?

Senator Cash: If the Senate determines that there should be an inquiry then there will be an inquiry.

Senator Rice: Do you think that there should be an inquiry?

Senator Cash: That is a decision for the Senate.

Senator Rice: Do you think that there should be an inquiry given it is your legislation?

Senator Cash: The normal process would be that a bill goes to an inquiry.

*****

Count them: that’s six separate opportunities for the Attorney-General to confirm the Government would support a Senate Inquiry into the Religious Discrimination Bill. And six refusals to do so.

The closest Cash came was stating it would be a ‘normal process’ to hold such an inquiry, not that the Government would agree to one.

Why does it matter?

This isn’t just a technical question of whether the Senate follows ‘normal process’ in holding an inquiry. Whether or not the Senate conducts an investigation into the Religious Discrimination Bill really matters, for two key reasons:

First, the Religious Discrimination Bill has the potential to affect the everyday lives of *all* Australians, religious and non-religious alike, including women, lesbian, gay, bisexual transgender and intersex (LGBTI) people, people with disability, divorced people and people in de facto relationships.

Everyone.

We know this because of the content of the first two Exposure Draft Bills, released in August and December 2019 respectively, with the most recent of those including the following features:

  • Allowing health practitioners, including doctors, nurses, pharmacists and psychologists, to ‘conscientiously object’ to providing health services – even where this has disproportionate adverse impacts on particular groups (for example, refusing to provide puberty blockers, to the detriment of trans and gender diverse young people), and
  • Allowing people to make offensive, humiliating, intimidating, insulting or ridiculing comments against women, LGBTI people, people with disability and even people of minority faiths, in all areas of public life, as long as those comments are motivated by religious belief. 

Both the right to access health care, and the ability to go about your daily life – in workplaces, and schools and universities, and community services, and public transport, and other public spaces – without being subjected to vile comments on the basis of who you are, are at risk.

[For more detail on these and other serious problems with the Bill, see: The ‘Bad Faith’ Religious Discrimination Bill Must Be Blocked’.] 

Legislation which carries such serious consequences deserves the highest level of scrutiny, and that must include a Senate Inquiry.

Second, the Religious Discrimination Bill has the potential to be the biggest change to Commonwealth anti-discrimination law for almost four decades.

Since the passage of the Racial Discrimination Act in 1975, and Sex Discrimination Act in 1984, the basic framework of Commonwealth anti-discrimination laws has remained relatively consistent.

This includes the general tests for what constitutes direct and indirect discrimination, and in what circumstances religious organisations are permitted to discriminate. It also includes the ‘complementary’ structure of Commonwealth, state and territory anti-discrimination laws, where they operate alongside each other, without seeking to override the other.

The Disability Discrimination Act 1992Age Discrimination Act 2004, and even the addition of sexual orientation, gender identity and intersex status as protected attributes in the Sex Discrimination Act in 2013, did not fundamentally alter these arrangements.

However, the Second Exposure Draft Religious Discrimination Bill marks a radical departure from these precedents.

For example, the ability to make offensive, humiliating, intimidating, insulting or ridiculing ‘statements of belief’ is included in a provision (clause 42) which limits the operation of all other anti-discrimination legislation: Commonwealth (including the Fair Work Act 2009), and state and territory (singling out the Tasmanian Anti-Discrimination Act 1998 in particular).

In practice, this would be the first time the Commonwealth Government directly sought to override the anti-discrimination laws of other Australian Governments.

The ‘conscientious objection’ provision (in clause 8) discussed earlier also involves a significant departure from standard practice. That is because it seeks to amend how the test for indirect discrimination operates, in favour of health practitioners who wish to discriminate in the types of services they provide.

One of the Religious Discrimination Bill’s other, more-infamous provisions – the so-called ‘Folau clause’ (also in clause 8) – is similarly-designed, altering the test for indirect discrimination to ‘stack the decks’ in favour of employees who make otherwise discriminatory statements outside core business hours.

Meanwhile, its proposed ‘religious exceptions’ (in clause 11, and scattered elsewhere throughout the Bill) dramatically re-write the existing scope of these special privileges. Not only do they apply to an expanded range of organisations, but the two different tests for whether a ‘religious exception’ applies are *both* far easier for organisations to use than the tests in the Sex Discrimination Act (section 37) and Age Discrimination Act (section 35).

Legislation which seeks to override state and territory anti-discrimination laws for the first time, and which significantly departs from existing practice in the test for indirect discrimination and significantly expands the scope and test for religious exceptions, deserves the highest level of scrutiny. That must include a Senate Inquiry.

What is the Government’s excuse?

Attorney-General Cash did not attempt to either clarify, or justify, the Government’s opposition to sending the Religious Discrimination Bill to an inquiry in her exchange with Senator Rice.

Which means we are left with her quote in the Sydney Morning Herald, namely that she does not support an inquiry: because the government “has conducted two rounds of public consultation on draft legislation, and met face to face with over 90 stakeholders in a series of roundtables”.

This rationale does not withstand the application of even the slightest skerrick of scrutiny.

Yes, the Government released two Exposure Draft Bills, which were open for public submissions. And yes, both the Bills, and associated submissions, have been published (see the Attorney-General’s Department website for the First Exposure Draft Bills here, and for the Second Exposure Draft Bills here.)

However, unlike a Senate Inquiry, there is little transparency about these processes:

  • There is no report document summarising feedback from either process
  • There is no public list of attendees at the roundtables mentioned by Senator Cash, and
  • There is no transcript of the evidence provided by these witnesses to the Government.

Also, unlike a Senate Inquiry, there was a lack of independence to these processes:

  • They were conducted by the Attorney-General’s Department, acting on the instructions of their Minister
  • Attendees of the roundtables were presumably selected by, or with the close involvement of, the Attorney-General, and
  • There was no opportunity for Opposition, Greens and cross-bench Senators to interrogate the evidence being provided to the Government.

In short, Government-run consultation processes are no substitute for the independence and transparency of a Senate Inquiry.

But there is an even bigger problem with Attorney-General Cash’s attempted justification for not supporting a Senate Inquiry into the Religious Discrimination Bill – and that is the First and Second Exposure Draft Bills were released in August and December 2019 respectively. That is more than, and just under, two full years ago.

Indeed, submissions in response to the Second Exposure Draft Bill closed in January 2020, less than a week after the first case of novel coronavirus was detected in Australia. A *lot* has changed in the intervening 21 months, including the Attorney-General (with Michaelia Cash replacing former Attorney-General Christian Porter in March 2021).

It is highly likely some aspects of the Religious Discrimination Bill will have changed in that period too – perhaps for the better, maybe for the worse.

Most members of the Australian community, and the community groups which represent them, will not be aware of those changes until the final Bill is introduced to Parliament. They deserve the opportunity to comment on the Bill’s final provisions, not past versions that have potentially been superseded.

Of course, some groups *are* aware, and have been closely involved in negotiations about the Bill’s contents for the past two years. This includes religious fundamentalists, such as the Australian Christian Lobby (ACL).

Indeed, the same Sydney Morning Herald article in which Cash argued against a Senate Inquiry was primarily about the ACL revealing the final Religious Discrimination Bill will include some version of the ‘Folau clause’.

The article is titled ‘Christian Lobby boasts religious freedom laws will include ‘Folau clause’, and goes on to quote ACL boss Martyn Iles:

‘Mr Iles said the ACL was “very, very strongly applying pressure from a grassroots level and from our lobbying level to ensure the Folau clause remains in the bill. It was fought tooth and nail, it was really at risk for a long time there[. O]ne great win is that the final draft of the bill will contain a Folau clause. It’s not perfect, but it’s not bad. And it does exist within the bill.”’

The Government’s consultations with the ACL were not denied by Attorney-General Cash, once again at Senate Estimates:

Senator Rice: Minister, we’ve seen media reports – and I’m tabling the media report that I was reading last week, that the Australian Christian Lobby say that they’re in the final days of negotiations with the Prime Minister’s office over the bill. The ACL are claiming they are ‘part of a coalition of faith leaders who jointly have been negotiating very closely with the Attorney-General, and with the Prime Minister’s Office’. Is that an accurate summation of what’s been happening with the negotiations on the bill?

Senator Cash: I’ve been negotiating far and wide in relation to the bill.

Senator Rice: Who else have you been negotiating with over the last month, for example?

Senator Cash: I’ve been negotiating with stakeholders across the board. I would take on notice whether or not they want their names provided, though, with all due respect to them. Some actually don’t want their name provided formally.

Senator Rice: Could I take on notice a list of all the stakeholders, as far as they are willing to be named?

Senator Cash: I’m more than happy to do that, absolutely. I need to go to them to get their permission, but-

Senator Rice: Can you name some others, other than those that will be part of this coalition of faith leaders?

Senator Cash: I would prefer not to, in the event they don’t want their names publicly disclosed as having discussions with me, but I’m more than happy to take it on notice for you.

Senator Rice: Have you been negotiating with any of the human rights organisations or LGBTIQ+ organisations?

Senator Cash: Yes. They’re a very important stakeholder.

*****

This exchange is deeply unsatisfactory, for a number of reasons.

The Attorney-General was unwilling to divulge the name of *any* stakeholder with whom she had been negotiating, or even consulting, over the biggest change to Commonwealth anti-discrimination law in almost four decades.

Even though Cash eventually agreed to take this question on notice (meaning she will need to respond in writing in coming months), this will unlikely be revealed until after the Bill itself has been introduced, and even then stakeholders who wish to remain secret will apparently have their names withheld from the public.

Cash’s answers also do not reveal the level of engagement with each group. For example, it is possible for the Government to be ‘negotiating’ with religious fundamentalists about the text of the Bill, but only ‘consulting’ with other groups in high-level or non-specific terms.

The final answer is also worrying; Cash uses the singular form (‘They’re a very important stakeholder’) in response to a question about negotiating with ‘human rights organisations or LGBTIQ+ organisations’.

This could imply she may only be meeting with one such body, and it is unclear who that would be, especially when there is no generalist national LGBTIQ+ organisation that is accountable to the LGBTIQ+ community (LGBTIQ+ Health Australia is the closest there is although, as the name suggests, its primary focus is health).

In fact, there are a wide range of organisations that either represent particular sections of the community (like Intersex Human Rights Australia), or advocate on LGBTIQ+ issues generally (such as Just.Equal Australia and Equality Australia), as well as several state and territory membership-based LGBTIQ organisations. Senator Cash should be ‘negotiating’ with all of them.

All of this is to say that the broader community has almost no idea who has been meeting with Attorney-General Cash about the Religious Discrimination Bill, or how much access and influence each organisation has been able to achieve. Based on her evidence to Senate Estimates last week, it is possible we will never be permitted to know.

Which simply confirms that the *only* way there can be a truly independent, and transparent, consultation process – where the names of witnesses are published, hearings are held in public with everyone able to know who has been advocating for what, as well as an opportunity for all Parties to interrogate those views – is for there to be a Senate Inquiry.

What is Labor’s position?

It remains unclear what Labor’s position is on whether there should be a Senate Inquiry into the Religious Discrimination Bill.

Shadow Attorney-General Mark Dreyfus is quoted in the same Sydney Morning Herald article as Senator Cash, although he does not address this issue (to be fair, he may not have been asked about it, or he may have provided quotes on this topic that were not included).

Of more concern is the lack of public position on this by Labor in the period since then. I am not aware of any criticism from ALP MPs or Senators about Cash’s push to avoid the scrutiny of a Senate Inquiry, nor did any Labor Senators on the Estimates Committee alongside Senator Janet Rice join her in challenging this position.

It is possible the Labor Opposition will push for a Senate Inquiry when the final parliamentary sitting fortnight of the year starts on Monday 22 November (which is presumably when the Government will introduce the Religious Discrimination Bill).

However, it is also possible that the ALP, under Leader Anthony Albanese, does not support referral to a Senate Inquiry. If so, their rationale for doing so would be just as weak as Attorney-General Cash’s.

In the Opposition’s case, they may seek to avoid any criticism they are ‘holding up’ so-called ‘religious freedom’ laws in the lead-up to the federal election, due in the first half of 2022 (even though it is the Morrison Government’s own delays that have led to this timing).

But that cannot be justification for not closely scrutinising the biggest change to Commonwealth anti-discrimination laws in nearly four decades. Nor would it excuse failing to support at least an inquiry into legislation that is a serious threat to the rights of women, LGBTI people, people with disability, divorced people and people in de facto relationships, even people of minority faiths.

If Labor fails to support a Senate Inquiry into the Religious Discrimination Bill in an attempt to avoid being politically ‘wedged’, then it seems highly likely they would subsequently also just ‘wave through’ the Government’s legislation.

That course of events would be reminiscent of the Labor Opposition’s actions under then-Leader (and now One Nation NSW Leader) Mark Latham in supporting John Howard’s Bill banning same-sex marriage in 2004. A ban which took a long and painful 13 years to overturn.

If Albo does not support a Senate Inquiry into the Religious Discrimination Bill, and instead simply votes for the legislation, it would be the biggest display of Labor spinelessness on LGBTI rights since Latham revealed himself to be an invertebrate on marriage equality.

Why there MUST be a Senate Inquiry into the Religious Discrimination Bill

I know that, for some of you, whether or not there is a Senate Inquiry on the Religious Discrimination Bill might seem like a fairly technical discussion. 

I hope I’ve convinced you that’s not the case, and shown why holding a Senate Inquiry is essential to independently and transparently scrutinise the biggest change to Commonwealth anti-discrimination law in 37 years.

And why we need this investigation to shine a light on any proposals that undermine the rights of women, LGBTI people, people with disability, divorced people and people in de facto relationships, and even people of minority faiths.

Of course, a Senate Inquiry is no guarantee this harmful legislation (if that’s what it turns out to be, because most of us have yet to see the final version) is ultimately defeated, or that its worst aspects are amended or at least ameliorated. It may still end up being passed.

But it would be a terrible sign if the Government is successful in avoiding a Senate Inquiry.

Perhaps think of it like this: if the Government was proud of this Bill and its key features, if it thought it could stand up to the rigour of independent and transparent consideration by a multi-partisan Committee, then it would gladly agree to it.

That Attorney-General Cash has publicly argued against doing so, suggests the final Religious Discrimination Bill will be a fundamentally bad law.

Instead, it seems they hope to ram it through Parliament, either late this year, or early next year, while everyone is distracted by other news: COVID-19, COP26 and global heating, the impending election campaign itself, and plenty more besides.

If they are successful, then the first time some people are aware it has even happened will be when they are refused a vital health care service. At their doctor. Or by their nurse. Or pharmacist. Or psychologist.

Or when they are subjected to vile comments about who they are. In their workplace. Or at their school or university. Or at another community service. Or on public transport.

Or any other public space in which making offensive, humiliating, intimidating, insulting or ridiculing comments about other people has been permitted as long as it’s motived by religious belief.

Attorney-General Michaelia Cash came empty-handed to Senate Estimates last week, unwilling to answer whether the Government supports a Senate Inquiry into the Religious Discrimination Bill, and unwilling to disclose who she has been ‘negotiating’ with about this legislation.

No Cause for Celebration

Sydney World Pride is now just 17 months away. With the official Opening Ceremony scheduled for 24 February 2023, it promises to be one of the largest LGBTI celebrations in a post-pandemic world.

Unfortunately, when it comes to LGBTI law reform, there is very little reason to celebrate.

The NSW Anti-Discrimination Act is the worst LGBTI anti-discrimination law in the country. It’s the only one that fails to protect bisexuals, and the only one allowing all private schools, religious and non-religious alike, to discriminate against LGBT students. The ADA also excludes nonbinary people, and people with innate variations of sex characteristics.

With Queensland promising to amend their birth certificate laws, NSW will soon be the only jurisdiction in Australia requiring trans people to undergo genital surgery (which many don’t want, and some who do can’t afford) to update their identity documents.

While Queensland, the ACT and Victoria have already prohibited gay and trans conversion practices (to varying extents), and other states consider this vital reform, there’s no clear commitment for NSW to do the same.

Nor has the NSW Government promised to prohibit what are the worst of all human rights abuses against the LGBTI community: coercive surgeries and other involuntary medical treatments on intersex children.

In this context, it’s depressing to realise the next step on LGBTI rights here is likely to be a great leap backwards.

Earlier this month, a NSW Parliamentary Committee recommended adoption of the core elements of Mark Latham’s Education Legislation Amendment (Parental Rights) Bill 2020, more accurately known as his anti-trans kids Bill.

That includes support for a domestic version of the UK’s infamous ‘section 28’, which traumatised a generation of LGBT students there before being abandoned in 2003.

By threatening teachers with having their accreditation revoked for mentioning anything ‘political or ideological’ in relation to gender or sexuality – which could be as simple as telling struggling gay kids that who they are is perfectly okay – it will drive most teachers to say nothing at all, creating the perfect conditions for ignorance and shame to thrive.

Even worse are the proposed changes to Bulletin 55: Transgender Students in Schools, which would (among other things):

  • Prohibit students from confidentially coming out as transgender to their teachers or school counsellors
  • Effectively ban transgender students from being able to access toilets or changerooms matching their gender identity, and
  • Out students who transition while at school to the parents of every other student in their year group.

These anti-trans rules are just the tip of the iceberg. This Bill, and associated Committee Report, are truly a Titanic-size assault on the rights of trans and gender diverse kids in NSW.

In policing children’s names and pronouns, their ability to play sport and even go to the bathroom, these are really Texas Republican Party-level interventions in the daily lives of people whose lives don’t matter to them.

It is, frankly, embarrassing. And no-one should be more embarrassed than Premier Gladys Berejiklian, who for 13 months has steadfastly refused to condemn, or even comment on, these proposed changes – all the while allowing Latham to chair the inquiry into his own Bill.

Her reluctance to publicly reject his anti-trans agenda has only allowed it to gather strength. Not only did all three Coalition MLCs on the Committee endorse its recommendations, but her own Parliamentary Secretary for Education declared his personal support for the anti-trans kids Bill earlier this year

The Government now has six months to respond (coincidentally, the deadline is the Monday after next year’s Mardi Gras). With more Coalition MPs so far publicly expressing support for the Bill than opposing it, the starting assumption has to be they are more likely to implement these changes than reject them.

And if they do? The biggest victims will be a generation of trans and nonbinary kids whose own Government will be actively seeking to erase their very existence, closely followed by other LGBT students who will be offered silence rather than support from their schools.

As for World Pride, well, it seems highly likely there would be a global boycott – one I would fully endorse. To do otherwise would be to invite the world to come and dance over the bodies of trans kids, killed by the transphobia of NSW Parliamentarians.

Even if it ultimately does not pass, the debate since August 2020 has already caused significant harm to trans kids in NSW, and to the families who love them.

If we cannot keep trans kids safe, if we cannot protect LGBT students in private schools against discrimination, if we cannot stop the psychological torture from gay and trans conversion practices, if we cannot prevent the physical torture of intersex children – if we can’t defend the most vulnerable among us – tell me again what exactly we would be celebrating at Sydney World Pride?

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

Pathetic, and antipathetic, in equal measure

Pathetic: adjective, ‘unsuccessful or showing no ability, effort, or bravery, so that people feel no respect’

Last week, the Senate witnessed one of the most pathetic votes by any Government in recent memory: on Wednesday 1 September, Liberal and National Party Senators voted against amendment sheet 1427 to the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021.

As that description suggests, those amendments, moved by the Australian Greens, were largely technical in nature. All they did (or at least would have done, had they passed), was ensure the terms gender identity and intersex status were included in exactly the same sections of the Fair Work Act 2009 (Cth) which cover other protected attributes, such as race, sex, disability and sexual orientation.

That includes provisions which protect workers against adverse action (section 351(1)) and unlawful termination (section 772(1)(f)) on the basis of who they are, meaning the amendments would have guaranteed trans, gender diverse and intersex employees the exact same ability to access the Fair Work Commission as women, people with disability and even lesbians, gay men and bisexuals. [For more background on this issue, see ‘Unfairness in the Fair Work Act’]

As well as being largely technical, they also should have been entirely uncontroversial. Gender identity and intersex status are already protected attributes in the Sex Discrimination Act 1984 (Cth). The amendments were simply intended to bring these two pieces of legislation into closer alignment.

Indeed, the Greens changes in sheet 1427 directly tied the proposed definitions in the Fair Work Act back to the Sex Discrimination Act:

‘gender identity has the same meaning as in the Sex Discrimination Act 1984.

intersex status has the same meaning as in the Sex Discrimination Act 1984.’[i]

And yet, these largely technical and entirely uncontroversial changes were still rejected by the Coalition Government. Together with One Nation, their votes were enough for the amendments to be voted down, leaving the rights of trans, gender diverse and intersex workers in doubt.

It seems like anything that advances the rights of LGBTI Australians, even if just an inch, will inevitably be rejected by the Morrison Liberal/National Government. Which is, frankly, pathetic.

*****

Antipatheic: adjective, ‘showing or feeling a strong dislike, opposition, or anger’

Perhaps the most depressing aspect of this situation is that the 2021 Coalition were voting against the protection of groups which the Coalition had actually supported eight years earlier.

In 2013, the Liberal/National Opposition, under the leadership of Tony ‘no friend of the gays’ Abbott, voted in favour of the then-Labor Government’s historic Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013.

That legislation inserted gender identity and intersex status into the Sex Discrimination Act in the first place. But, eight years later, the Coalition refused to back the inclusion of the exact same terms, with the exact same definitions, in the Fair Work Act.

Think about that for a second. The current Government is more opposed to the rights of trans, gender diverse and intersex Australians than the Abbott Opposition was back then.

The ‘strong dislike, opposition or anger’ towards trans rights from notoriously transphobic Senators like Claire Chandler has overwhelmed any semblance of support from other, more sympathetic sections of the Morrison Government.[ii]

The Coalition’s antipathy to trans rights also seems to have overwhelmed their ability to make political judgements that benefit them.

This amendment was a potential win for them. Almost 28 months into a maximum 36-month parliamentary term, it is increasingly likely the Government will not pass a single pro-LGBTI Bill before the next election (including a failure to introduce legislation to implement Scott Morrison’s since-broken promise to protect LGBT students in religious schools against discrimination).

If they had chosen to vote for these changes – the most straight-forward of amendments, merely introducing consistency in the groups protected under the Sex Discrimination and Fair Work Acts – moderate Liberal Senators, and Liberal candidates for socially-progressive electorates, could have pointed to this outcome as evidence they care about LGBTI rights.

Instead, by voting against these amendments, everybody can see that they don’t care, about anybody whose gender identities or sex characteristics are different to societal expectations.

*****

The Government’s reasons for not supporting these amendments also demonstrate the simultaneously pathetic and antipathetic nature of their opposition. Attorney-General, Senator Michaelia Cash, made the following comments in relation to the Greens’ amendments:

‘The government will also be opposing the amendment moved by the Australian Greens. The government believes that people are entitled to respect, dignity and the opportunity to participate in society and receive the protection of the law, regardless of their sexual orientation, gender identity or intersex status. The Sex Discrimination Act prohibits discrimination on these grounds in a range of areas of public life. The primary purpose of this bill is to implement the government’s commitments in its response to the Respect@Work report and to implement, as a matter of urgency, measures to strengthen national laws to better prevent and respond to sexual harassment in Australian workplaces. Discrimination on the basis of gender identity and intersex status is already prohibited in the Sex Discrimination Act…’

Cash raises a number of different arguments there. Unfortunately, none of them are compelling upon closer inspection.

For example, her attempt to declare that the primary purpose of the legislation is ‘to implement the government’s commitments in its response to the Respect@Work report’, might be an explanation of why they did not include these changes in the original Bill. It is not a justification for voting against these changes when they are moved by others.

Even worse, Cash’s argument is directly undermined by the words of her own Department, exactly one year-to-the-day beforehand. In response to my letter to then-Attorney-General Christian Porter calling for him to address this very issue, I received a reply dated 1 September 2020 from an Assistant Secretary in the Attorney-General’s Department, which included the following paragraph:

‘I note the discrepancies you raise between the language in the Fair Work Act 2009 and the Sex Discrimination Act 1984. At this point in time, the Australian Government has not indicated an intention to amend the Fair Work Act 2009 to explicitly include gender identity or intersex status as grounds for lodging an adverse action or unlawful termination application. In saying this, however, you may be interested to know that the Australian Government is currently considering its response to a number of recommendations made in the Australian Human Rights Commission’s Respect@Work: Sexual Harassment National Inquiry Report. This process provides scope for the issues you have raised here to be considered further in the implementation of any proposed recommendations.’ [emphasis added]

Not only did the Department acknowledge this legislative gap, but they highlighted the Respect@Work response as an opportunity for this issue to be resolved. It was the Government itself, and possibly even Michaelia Cash herself or her predecessor Christian Porter, who actively decided to ignore, rather than address, this discrepancy.

Cash’s other arguments are just as flawed. She mentions not once, but twice, that discrimination on the basis of gender identity and intersex status is already prohibited under the Sex Discrimination Act. Which, well, yes, of course it is. As is discrimination on the basis of sex and sexual orientation.

The point is, while sex and sexual orientation are also explicitly included in the Fair Work Act, gender identity and intersex status are not. Meaning women, lesbians, gay men and bisexuals have clear rights to access the Fair Work Commission, while trans, gender diverse and intersex workers do not. That inequality of access is exactly the issue the Greens’ amendments were intended to address, amendments the Government chose to reject.

Which reveals the lie at the heart of Cash’s introductory comment, that ‘[t]he government believes that people are entitled to respect, dignity and the opportunity to participate in society and receive the protection of the law, regardless of their sexual orientation, gender identity or intersex status.’

No. No, you don’t. If you did, you would have voted for these amendments.

*****

Of course, for most people paying attention to Australian politics these days, the fact the Coalition Government doesn’t really give a shit about LGBTI Australians is no surprise.

Last Wednesday’s vote by Liberal and National Party Senators against amendments to explicitly include trans, gender diverse and intersex workers in the Fair Work Act wouldn’t even make a list of the top five worst things the Abbott/Turnbull/Morrison Government has done in relation to LGBTI rights over the past eight years.

[A list that, from my perspective, would include (in no particular order):

  • Holding an unnecessary, wasteful and divisive public vote on our fundamental human rights
  • Defunding an evidence-based program against anti-LGBTI bullying in schools
  • Detaining LGBTI people seeking asylum in countries that criminalise homosexuality
  • Failing to implement the recommendations of the 2013 Senate Inquiry into the Involuntary or Coerced Sterilisation of Intersex People (allowing these human rights violations to continue to this day), and
  • Breaking its promise to protect vulnerable LGBT kids against abuse and mistreatment by publicly-funded religious schools.]

It probably won’t even be the worst thing the Coalition Government does to LGBTI Australians this year, with Cash also committing to introduce the recently-revived Religious Discrimination Bill before the end of 2021.

This is legislation that, based on the Second Exposure Draft, would encourage anti-LGBT comments in all areas of public life, as well as making access to essential healthcare much more difficult, among other serious threats. [For more background on this issue, see ‘The ‘Bad Faith’ Religious Discrimination Bill Must Be Blocked’

Nevertheless, just because this isn’t the worst thing they’ve ever done, doesn’t mean their vote on Wednesday was any less abhorrent.

And just because I earlier described these amendments as largely technical in nature, doesn’t mean they were any less important.

As well as guaranteeing access to the Fair Work Commission, these amendments were an opportunity for the Government, and Parliament more broadly, to reaffirm that trans, gender diverse and intersex Australians should enjoy the same rights as everyone else.

In rejecting the Greens’ amendments to add gender identity and intersex status to the Fair Work Act, the Government repudiated this fundamental principle.

The Senate vote last Wednesday perfectly encapsulates the Morrison Government’s pettiness, and the meanness of its approach, when it comes to LGBTI rights.

How pathetic in their lack of principle, and basic decency.

How antipathetic to the human rights and dignity of their fellow Australians.

In roughly equal measure.

Morrison, Turnbull and Abbott, divided by political ambition but united in their pathetic, and antipathetic, approach to LGBTI rights.

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] Earlier amendments (sheet 1373) that would have introduced the protected attribute of sex characteristics, rather than intersex status, in the Fair Work Act to reflect both best practice and the views of intersex advocates such as Intersex Human Rights Australia, failed with both the Government and Labor expressing their opposition. Sheet 1427, which included intersex status based on the definition in the Sex Discrimination Act was then moved by the Greens because it was seen as being entirely uncontroversial and therefore more chance of succeeding.

[ii] NSW Liberal Senator Andrew Bragg did refer to the issue of trans, gender diverse and intersex inclusion in the Fair Work Act in his second reading debate speech, expressing support for it being addressed at some point, but did not find the courage to cross the floor on the amendment itself.