A Potential Warning to LGBTI Tourists to Australia

Today is one of my favourite days of the LGBTI calendar: Sydney Gay & Lesbian Mardi Gras Fair Day. Tens of thousands of people will gather in Victoria Park in a beautiful celebration of our community.

 

That includes visitors from interstate and from overseas, especially from the Asia-Pacific region, whose numbers will swell over the next fortnight in the lead-up to the Mardi Gras Parade and Party, to be held on Saturday 29 February.

 

It creates a real buzz around the city. I can only imagine how much louder Sydney will hum in 2023 as we host World Pride, the first city in the Southern Hemisphere to do so.

 

However, there is a looming threat to LGBTI tourism to Australia, one that has the potential to dampen our celebrations more than even literal rain on our parade: the Government’s proposed Religious Discrimination Bill.

 

If passed, this legislation could have a negative impact on nearly every aspect of the visitor experience. So much so, it is easy to envisage the following warnings being handed out to lesbian, gay, bisexual, transgender and intersex tourists to Australia in the future:

 

  1. Don’t get sick

 

Not only because our health care system can be expensive for people who are not citizens or permanent residents. But also because the Religious Discrimination Act allows doctors, pharmacists and some other health practitioners to refuse to provide health services, even where this has a disproportionate impact on vulnerable groups. For example, doctors and pharmacists can:

  • refuse to provide hormone treatments, even where this adversely affects trans and gender diverse people[i]
  • refuse to provide PEP/PrEP, even where this has a detrimental impact on gay and bisexual men (and others at increased risk of HIV transmission), and
  • refuse to provide reproductive health services (such as the morning after pill), irrespective of the effect on people with uteruses.

 

If possible, make sure you bring all of your medications with you, and be careful not to lose them during your stay.

 

  1. Be prepared to ‘shop around’ for doctors, pharmacists and other health practitioners

 

If you do get sick, or lose your medication, while in Australia, you should be prepared for the possibility any individual doctor or pharmacist may refuse to provide a specific health service or treatment. You may need to see several of each in order to obtain access to the medications you need. Unfortunately, it is also likely you will be charged for appointments even where the health practitioner refuses to provide a service.

 

Importantly, whether a doctor or pharmacist will refuse to provide a specific health service or treatment may not be apparent before you see them. Individual doctors or pharmacists at public hospitals are also entitled to refuse service: if this happens, try asking for a new practitioner until you receive treatment.

 

  1. Be prepared for doctors, pharmacists and other health practitioners to express abhorrent views about you, to you

 

Even if a doctor, pharmacist or other health practitioner provides you with the health service or treatment that you need, they are also free to express offensive, humiliating, ‘moderately’ intimidating, insulting or ridiculing views about your sexual orientation, gender identity or sex characteristics while doing so. For example, they may be able to:

  • tell trans and gender diverse people that gender is binary and that their gender identity is an abomination[ii]
  • tell lesbian, gay and bisexual people that same-sex relationships are intrinsically disordered and sinful, and
  • tell intersex people that sex should be male or female and that their sex characteristics are a mistake that must be corrected.

 

Doctors, pharmacists and other health practitioners will be able to express these abhorrent views to you as long as they are based on their religious beliefs.

 

  1. Be prepared for people to express abhorrent views about you, to you, in all areas of public life

 

In fact, people will be to express such views about you, to you, in all areas of public life: on the plane or boat you arrive on; at the airport; in taxis, ubers, buses, ferries, trains and other forms of transport; at hotels, motels and B&Bs; at galleries, museums and other tourist attractions; at cafes and restaurants; at shops. Everywhere you go while you are in Australia.

 

That’s because the Religious Discrimination Act exempts ‘statements of belief’ from constituting discrimination under all other Commonwealth, state and territory anti-discrimination laws, as long as those statements are based on that person’s religious beliefs and fall short of harassment, threats, serious intimidation or incitement to hatred or violence.

 

  1. If you are subjected to abhorrent views and wish to make a complaint, try to find out whether the person expressing them is religious

 

Because abhorrent views are protected where they are based on religious beliefs, you may be able to complain about homophobic, biphobic, transphobic and intersexphobic comments that are not motivated by religion.[iii] Therefore, if you wish to make a complaint about such mistreatment, you will first need to work out whether the person making the statement is religious.

 

In practice, it may be difficult to determine whether someone is religious and/or whether their anti-LGBTI prejudice is based on their religious beliefs. It may also be physically unsafe to do so. In these circumstances, it may be wiser not to make a complaint and instead try to avoid the person(s) expressing such views (if possible).[iv]

 

  1. If you need emergency food or shelter during your stay, consider pretending to be Christian

 

In Australia, the Government outsources a wide range of health, education and other community services to religious organisations. This includes some homelessness shelters, as well as food vans and other welfare services.

 

Under the Religious Discrimination Act, religious charities are able to discriminate on the basis of religious belief in terms of who they provide these services to, even where they are providing them with public funding.

 

Given the vast majority of faith-based charities in Australia are Christian, if you experience financial difficulties during your stay and need emergency food or shelter, you should consider pretending to be Christian. You may even need to pretend to be from the specific Christian denomination providing that service (eg Catholic or Anglican).

 

**********

 

The above warnings might sound absurd, but if the Government’s Religious Discrimination Bill becomes law in its current form, then they will be all too real.

 

And we will have a responsibility to provide these warnings to all LGBTI tourists to Australia, not just during Mardi Gras and World Pride, Midsumma, Feast and other pride festivals around the country, but all year round, each and every year.

 

Of course, it won’t just be tourists who will be adversely affected by this legislation either. In fact, all of the warnings I have included will also apply to LGBTI Australians.

 

Doctors, pharmacists and other health practitioners will be able to refuse to provide specific health services and treatments to us, and we won’t necessarily know before we make an appointment.

 

Everyone in public life (including health practitioners, as well as people providing education, accommodation, transportation, food and other goods and services) will be able to express abhorrent views about us, and to us, as long as those views are religiously-motivated.

 

And if we fall on hard times, our religion (or lack of religion) may determine whether we are able to access some publicly-funded essential services.

 

The only glimmer of hope is that this post is a potential warning, rather than an actual one. It is only a Religious Discrimination Bill at this stage, not an Act. This disturbing vision of the future can still be prevented from becoming a reality – but only if we take action now.

 

Please speak up in the coming days and weeks. If you see a federal politician at Fair Day, or at the Mardi Gras Parade, ask them whether they will vote against a Religious Discrimination Bill that takes rights away from the LGBTI community. If they post about it on twitter, facebook or other socials, ask them the same thing.

 

You should also write to:

  • ALP MPs and Senators
  • Greens MP and Senators
  • Centre Alliance Senators (if you’re in South Australia)
  • Senator Jacqui Lambie (if you’re in Tasmania), and
  • Liberate moderate/gay and lesbian MPs (including Trent Zimmerman, Trevor Evans, Tim Wilson, Angie Bell, Warren Entsch, Senator Dean Smith)

because they will help determine whether this legislation becomes a waking nightmare, or just a temporary bad dream.

 

PFLAG Australia has made this process easy, using the website Equality, Not Discrimination. Equality Australia has a similar helpful platform, here. Make your voice heard, because this legislation will affect LGBTI tourists, and LGBTI Australians, alike.

 

Rainbow Bridge

 

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] Attorney-General Christian Porter confirmed that trans and gender diverse patients could be denied treatment on the day he released the Second Exposure Draft Religious Discrimination Bill:

“Mr Porter used the example of a GP who did not want to ‘engage in hormone therapies’ for a trans person. ‘That’s fine, but you have to exercise that in a consistent way, so you don’t engage in the procedure at all’.”

‘Rules for doctors, pharmacists tightened in new religious discrimination bill’, 10 December 2019, Sydney Morning Herald.

[ii] The explanatory notes to the Second Exposure Draft Religious Discrimination Bill confirm this. At para 549, on page 66:

‘For example, a statement by a doctor to a transgender patient of their religious belief that God made men and women in his image and that gender is therefore binary may be a statement of belief, provided it is made in good faith. However, a refusal by that doctor to provide medical services to a transgender person because of their religious belief that gender was binary would not constitute a statement of belief as the refusal to provide services constitutes an action beyond simply stating a belief, and therefore may constitute discrimination on the basis of gender identity.’

[iii] This also depends on the jurisdiction the tourist finds themselves in. Anti-LGBTI vilification is not prohibited under Commonwealth law, or in Victoria, Western Australia, South Australia or the Northern Territory. Anti-LGBTI vilification is prohibited in both Tasmania and the ACT, anti-LGBT vilification is prohibited in Queensland, while NSW has different coverage for inciting or threatening violence (LGBTI), or civil vilification (only lesbian, gay and binary transgender). For more see: A Quick Guide to Australian LGBTI Anti-Discrimination Laws.

[iv] Indeed, this seems to be the Government’s intention – to discourage people who experience discriminatory conduct from bringing complaints.

Submission to Victorian Inquiry into Anti-Vilification Protections

The Committee Manager

Legislative Assembly Legal and Social Issues Committee

Parliament House, Spring St

East Melbourne VIC 3002

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

Thursday 19 December 2019

 

To the Committee

 

Inquiry into Anti-Vilification Protections

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Sincerely

Alastair Lawrie

 

Fiona Patten

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

 

Footnotes:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Did You Know? South Australia Still Hasn’t Abolished the Gay Panic Defence

[Updated 23 February 2020: A response from South Australian Attorney-General Vickie Chapman is included at the end of this article; and Updated 8 June 2020 with reference to a motion passed in the South Australian Legislative Council]

For those who are not aware, the ‘gay panic’ defence (sometimes referred to as the homosexual advance defence) was a partial defence to murder in Australia.

Part of the broader partial defence of provocation, the gay panic defence applied where a defendant killed another person but claimed it was because they lost control in response to an unwanted, non-violent sexual advance by the victim.

If successfully raised, the defendant would be convicted of manslaughter instead of murder, and generally a lower maximum sentence would be imposed.

If this sounds abhorrent, that’s because it was. Primarily used in circumstances where a heterosexual man killed a gay man, the gay panic defence was nothing short of legalised homophobia.

It told society that one of the most awful things that could happen to a heterosexual man was to be ‘hit on’ by a gay or bisexual man.

It told gay and bisexual men their lives were not as valuable as other members of the community.

Despite this, the gay panic defence was upheld as valid by a majority of the High Court of Australia in the infamous case of Green v The Queen [1997] HCA 50.

The injustice of this outcome was eloquently described by Justice Michael Kirby in his dissenting judgment to that decision:

“If every woman who was the subject of a ‘gentle’, ‘non-aggressive’ although persistent sexual advance… could respond with brutal violence rising to an intention to kill or inflict grievous bodily harm on the male importuning her, and then claim provocation after a homicide, the law of provocation would be sorely tested and undesirably extended…

Any unwanted sexual advance, heterosexual or homosexual, can be offensive. It may intrude on sexual integrity in an objectionable way. But this Court should not send the message that, in Australia today, such conduct is objectively capable of being found by a jury to be sufficient to provoke the intent to kill or inflict grievous bodily harm. Such a message unacceptably condones serious violence by people who take the law into their own hands.”

But that was exactly the message that Kirby’s High Court colleagues chose to send. And it sent a message to state and territory parliaments around the country: the only way to end the gay panic defence was for them to amend the partial defence of provocation.

As well as a third and final message to the LGBTI community – that we needed to engage in eight separate campaigns to remove the stain of the gay panic defence from the law books.

Seven of those campaigns have been successful. As with many LGBTI law reforms, Tasmania was the first to act, abolishing the partial defence of provocation entirely (therefore including the gay panic defence) in 2003.

Victoria, Western Australia and Queensland have also chosen to abolish provocation entirely, while New South Wales, the Australian Capital Territory and Northern Territory have instead legislated that non-violent sexual advances (including same-sex advances) are not a valid defence to murder.

Queensland was the last of these jurisdictions to take action – abolishing the gay panic defence in 2017.

Unfortunately, though, that leaves one jurisdiction that has so far failed to take action. It also means that the use of the past tense, in the introduction to this article, was incorrect.

That’s because today, 2 February 2020, the gay panic defence is still a partial defence to murder in South Australia.

That seems extraordinary – the first Australia jurisdiction to decriminalise homosexuality, in 1975, is the last to reform a law that says a heterosexual man killing a gay or bisexual man who makes an unwanted, non-violent sexual advance towards him is less culpable than other killers.

Of course, LGBTI rights advocates in South Australia have long called for the repeal of the gay panic defence.

The South Australian Law Reform Institute has also recommended this change, calling for the partial defence of provocation to be abolished in April 2018.

The current Liberal Government has even agreed. On 9 April 2019, South Australian Attorney-General Vickie Chapman issued a media release titled ‘State Government moves to abolish provocation defence’, including the following comments:

The Marshall Liberal Government will introduce legislation abolishing the defence of provocation by the end of the year, after announcing today a Bill will be drafted to go out for extensive consultation…

“The fact that an outdated legal position such as this is [sic] still exists is disappointing, to say the least,” Ms Chapman said…

“Cabinet has now approved the drafting of a Bill that reflects the Marshall Government’s response to the [South Australian Law Reform] Institute’s recommendations, and ensure our laws in this area are brought up to date.”

Ms Chapman said key stakeholders – such as the Director of Public Prosecutions, the Courts Administration Authority and victims’ rights groups – would be consulted on the draft legislation, with a view to bringing a Bill before the Parliament by the end of the year.

Unfortunately, the end of 2019 came and went, but legislation ending the gay panic defence in South Australia was nowhere to be seen.

There does not appear to be any current Bill before the South Australian Parliament to end this abhorrent partial defence. Nor has there been any follow-up media release from Ms Chapman as far as I can ascertain.

Indeed, the only thing that comes up when searching for ‘gay panic’ or ‘provocation’ on the website of the South Australian Attorney-General’s Department is that initial April 2019 release promising reform before the end of last year.

This situation is obviously not good enough. In the third decade of the 21st century, it is simply unacceptable that the law of an Australian jurisdiction still provides that killing a gay or bisexual man who makes an unwanted, non-violent sexual advance is in any way justifiable.

It’s time for the South Australian Government to live up to its promise to end the gay panic defence once and for all. With Parliament resuming this coming Wednesday, 5 February 2020, what better time to get started.

Take Action

You can write to the Premier, or Attorney-General (or both!), calling for them to implement their promise to abolish the gay panic defence as a matter of priority. Their contact details:

 

The Hon Steven Marshall MP

Premier of South Australia

GPO Box 2343

ADELAIDE SA 5001

premier@sa.gov.au

Twitter: https://twitter.com/marshall_steven

Facebook: https://www.facebook.com/StevenMarshallMP/

 

The Hon Vickie Chapman

Attorney-General of South Australia

GPO Box 464

ADELAIDE SA 5001

AttorneyGeneral@sa.gov.au

Twitter: https://twitter.com/VickieChapmanMP

Facebook: https://www.facebook.com/vickiechapmanMP/

 

My own email to the Attorney-General, and copied to the Premier:

Dear Ms Chapman,

I welcome your promise of 9 April 2019 to abolish the gay panic defence (media release: ‘State Government moves to abolish provocation defence’).

However, I note your commitment that this legislation would be introduced before the end of last year does not appear to have been met.

As we enter the third decade of the 21st century, there is no room in the law for this partial defence, which tells society that one of the most awful things that can happen to a heterosexual man is to be ‘hit on’ by a gay or bisexual man.

More importantly, this law tells gay and bisexual men their lives are not as valuable as other members of the community.

With South Australian Parliament resuming on Wednesday 5 February, I look forward to the Government introducing legislation to abolish the gay panic defence as a matter of urgency.

Sincerely,

Alastair Lawrie

 

The following response was received from Attorney-General Vickie Chapman:

21 February 2020

Dear Mr Lawrie

Abolition of the ‘gay panic’ defence

I write in response to your email of 2 February 2020 to myself and the Premier, the Hon Steve Marshall MP, regarding the repeal of the so-called ‘gay panic’ defence.

I acknowledge your concerns that legislation to remove the gay panic defence is yet to be introduced in Parliament. As I have previously made clear, my views are that the gay panic defence is offensive and unacceptable, and I appreciate what the removal of this defence means to so many in the LGBTQI community.

To that end, I advise that officers in the Attorney-General’s Department are working on the Bill to make significant changes to this area of law, largely based on recommendations contained in the South Australian Law Reform Institute (SALRI) Report on The Provoking Operation of Provocation.

The defence of provocation is a complex area of sentencing law, and it is important that the legislation to remove the gay panic defence is properly considered. Accordingly, it has been necessary for me to seek expert advice regarding the abolition of the defence in murder cases as well as consider further reforms to sentencing and defences relating to family violence. The potential implications of the removal of the defence are significant and there are aspects of provocation laws that should remain in our sentencing regime, including for example, where domestic violence victims kill an abuser in self-defence.

The Bill will abolish the common law defences of provocation, necessity, duress and marital coercion and substitute statutory defences for necessity and duress. The partial defence of provocation (which has been, in some circumstances, used as a defence to unwanted same-sex advances) will be abolished.

The passage of this Bill remains a priority for the Government. It is my intention to progress the Bill to consultation in the first quarter of this year.

Thank you for your interest in this issue.

Yours sincerely

Vickie Chapman MP

Deputy Premier

Attorney-General

 

On Wednesday 3 June 2020, the South Australian Legislative Council debated a motion proposed by Greens MLC Tammy Franks calling on the SA Government to take action to finally abolish the gay panic defence.

Liberal Minister Lensink, representing the Attorney-General, reiterated the Government’s commitment to take action, stating “The passage of this bill remains a priority for the government. It is the Attorney’s intention to progress the bill to wider consultation in coming months.”

Which, as the above correspondence makes clear, we’ve frankly heard before. Hopefully this time they follow through, with the full urgency this issue deserves.

On the positive side, the motion, while amended, nevertheless passed and featured the following statement: “That this council condemns the continued existence of the so-called ‘gay panic’ provocation defence for murder.”

On a personal note, it was also pleasing to be cited during ALP MLC Irene Pnevmatikos’s speech in the debate, who referred to this article and the above response from Attorney-General Chapman to my correspondence from earlier this year. Sometimes old-fashioned advocacy can still make a difference.

 

Screen Shot 2020-06-08 at 1.37.30 pm

An excerpt from Irene Pnevmatikos MLC’s speech during the debate on 3 June 2020.

 

Chapman

South Australian Attorney-General Vicki Chapman.

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

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

The ‘Bad Faith’ Religious Discrimination Bill Must Be Blocked

It is ironic that a Bill that uses the phrase ‘in good faith’ multiple times (four times in the First Exposure Draft, and nine times in the Second) was itself developed through a process that was the polar opposite.

The Religious Discrimination Bill is the end product of the Religious Freedom Review, which was a gift to religious fundamentalists during parliamentary debate about marriage equality in 2017, and was payback against LGBTI Australians for having the temerity to demand equal rights under secular law.

When that review was finally released in December 2018, Attorney-General Christian Porter promised that the Government’s Religious Discrimination Bill would be similar to other anti-discrimination laws, and ‘follow a very standard architecture’.[i] Instead he has delivered incredibly complex legislation with several unique, special rights for religious individuals and organisations to discriminate against others (more on that below).

Mr Porter also stated in December 2018 that ‘we are well-advanced on the drafting of [the Bill] and which we would have out early next year [2019], so that people can see it.’ Yet the Liberal-National Government did not reveal any details of the Bill until after the May 2019 federal election, leaving voters in the dark about a central plank of their platform (perhaps some voters may have voted differently had they known their human rights would later come under sustained attack).

In August, the Guardian Australia reported that:

Christian Porter has sought to allay concerns that a federal religious discrimination bill could water down protections for LGBT people in state legislation. The attorney general told Guardian Australia the bill “is not intended to displace state law…”’[ii]

But when the First Exposure Draft Bill was released on 29 August it did exactly that, with clause 41 directly over-riding Commonwealth, state and territory anti-discrimination legislation, and specifically over-riding Tasmania’s best practice protections against ‘conduct which offends, humiliates, intimidates, insults of ridicules’[iii] others, including women, LGBTI people and others.

At no point between December 2018 and August 2019 did the Morrison Government consult with anyone other than the religious organisations who would benefit from the Bill. There was no engagement with any of the people who stood to lose the most, from women, to LGBTI people, single parents, divorced people and people in de facto relationships, and people with disability.

Even when the Attorney-General released the Exposure Draft Religious Discrimination Bill for public comment – and received a deluge of criticism from representatives of those groups, as well as the vast majority of civil society organisations, and even the Australian Human Rights Commission, the independent body who would be responsible for overseeing any legislation once passed – Porter, and the Government, have chosen to ignore that feedback.

In fact, the only major substantive change to the Bill was something demanded by religious organisations – to expand its religious exceptions even further, allowing religious hospitals and aged care services to discriminate on the basis of religious belief in employment. Even when receiving taxpayers money to deliver public services.

It is completely unsurprising that, having undertaken a bad faith process to develop its legislation, the Government has produced what is essentially a ‘bad faith’ Religious Discrimination Bill. A Bill that prioritises and privileges the rights of religious individuals and organisations over and above everyone else.

This can be seen in how the Second Exposure Draft[iv] differs from the First in relation to its four major problems[v] – or, rather, in how there is nothing to separate the two Bills, meaning the Government has not addressed these flaws.

 

The Religious Discrimination Bill will still make it easier to make comments that ‘offend, humiliate, intimidate, insult or ridicule’ minorities

Clause 42 (which was previously clause 41) continues to exempt ‘statements of belief’ from discrimination complaints under all Commonwealth, state and territory anti-discrimination legislation, including the Fair Work Act 2009 (Cth) and Tasmania’s best practice Anti-Discrimination Act 1998.

Indeed, multiple changes to the Bill will actually ensure more discriminatory statements of belief are protected from legal consequences. This includes expanding the definition of statements of belief (so that they do not need to align with the mainstream views of any religion, but can be from the extreme fringes of faith), as well as providing that comments will be protected even where they are ‘moderately’ intimidating towards the victim.[vi]

Nor has the Government addressed the constitutional flaws of this provision. Because the Bill would introduce a Commonwealth defence to state laws, state tribunals would legally be unable to determine whether the defence was valid. So where a person makes a complaint of discrimination, and a respondent claims it was a ‘statement of belief’, it would need to be referred from the tribunal to a court to hear that particular issue, and then referred back to the tribunal to determine the remainder of the complaint – massively increasing the costs and time involved, with the likely outcome that many discrimination complaints will be withdrawn no matter how valid they are.

Overall, clause 42 will still encourage degrading and demeaning comments about women, LGBTI people, single parents, people in de facto relationships, divorced people, people with disability, and even people from minority faiths,[vii] in all areas of public life, from workplaces to schools and universities, health care, aged care and other community services, to cafes, restaurants and even shops.

 

The Religious Discrimination Bill will still make it easier for health practitioners to refuse to serve minorities

There have been some minor improvements to the ‘conscientious objection’ provisions in the Second Exposure Draft (previously clauses 8(5) and (6), now clauses 8(6) and (7) of the Bill). This includes narrowing the list of health practitioners who will be able to take advantage of these sections, as well as including a note that they are not intended to allow practitioners to refuse to provide a service to a category of people.

But, in practice, these changes are superficial rather than substantive. The list of practitioners who remain covered:

  • Doctors
  • Midwives
  • Nurses
  • Pharmacists, and
  • Psychologists

means the vast majority of interactions between patients and the health system are nevertheless potentially jeopardised via ‘conscientious objection’.

Meanwhile, the distinction between refusing to provide a service to a category of people (which would not be permitted) and refusing to provide a category of service to people (which would be) is so blurry as to be meaningless.

As Attorney-General Porter himself confirmed when releasing the Second Exposure Draft, it is designed to protect ‘a GP who did not want to “engage in hormone therapies” for a trans person. “That’s fine, but you have to exercise that in a consistent way, so you don’t engage in the procedure at all.”’[viii]

The net effect is that GPs and pharmacists will be empowered to:

  • Refuse to provide reproductive health services, even where this disproportionately affects women
  • Refuse to provide PEP and/or PrEP, even there this disproportionately affects gay, bisexual and other men who have sex with men, and
  • Refuse to provide hormone therapy (including puberty blockers), even where this disproportionately affects trans and gender diverse people.

Overall, clauses 8(6) and (7) will still encourage practitioners to refuse to provide vital health care services to some of the most vulnerable members of the Australian community.

 

The Religious Discrimination Bill will still make it easier for religious bodies to discriminate against others

In fact, as hinted at earlier, the religious exceptions contained in the Second Exposure Draft will make it even easier for even more religious organisations to discriminate in even more circumstances.

Clause 11 (which was previously clause 10), provides an exception to all religious schools and universities, as well as ‘registered public benevolent institutions’ (even where providing commercial services to members of the public), as well as ‘any other body that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion (other than a body that engages solely or primarily in commercial activities)’.

This exception allows these bodies to discriminate on the ground of religion in both employment, and who they provide services to (or withhold services from).

The test for determining whether the organisation can (ab)use these special privileges is also much easier to satisfy in the Second Exposure Draft. In fact, there are now two alternative tests, and the organisation need only satisfy one:

  • Clause 11(3) is already a lower standard than the existing religious exception in the Sex Discrimination Act 1984 (Cth), because the organisation can simply act, ‘in good faith, in conduct to avoid injury to the religious susceptibilities of adherents of the same religion’ – unlike section 37(1)(d) of the SDA, these acts do not need to be ‘necessary’.
  • Clause 11(1) sets an even lower standard again. It provides that a ‘religious body does not discriminate against a person under this Act by engaging, in good faith, in conduct that a person of the same religion as the religious body could reasonably consider to be in accordance with the doctrines, tenets, beliefs or teachings of that religion.’

This second test is entirely subjective. A religious body is only required to demonstrate that one other person considers their discrimination is in accordance with their faith. They don’t even have to agree with the discrimination itself! This hurdle is so easy to clear that it is almost impossible to imagine any scenario where a court or tribunal will disallow religious discrimination by these organisations.

Which is particularly devastating because the Second Exposure Draft also expands the types of organisations that can take advantage of these privileges.

Clauses 32(8) and (10) allow religious hospitals, aged care services and accommodation providers to discriminate in employment on the ground of religion. And clauses 33(2) and (4) permit religious camps and conference sites to discriminate in who they provide services to (even where these are facilities run on a commercial basis and otherwise open to the public).

As I have written previously, these religious exceptions will mean that:

  • A professor can be denied a job because they are Jewish.
  • A doctor can be refused employment at a hospital because they are Muslim.
  • A school student can be expelled because they are atheist.
  • A homeless person can miss out on a bed in a shelter because they are Hindu.
  • A charity worker can be rejected for promotion because they are Buddhist.
  • An aged care employee can lose shifts because they are agnostic.

Overall, clause 11 (and related clauses) will fundamentally divide Australia, by empowering religious organisations to discriminate both in employment, and in who they provide services to, on the grounds of religion. And they will be able to do so while using taxpayers’ money. Your money. My money, Our money.

 

The Religious Discrimination Bill will still make it more difficult for big business to promote diversity and inclusion

Clauses 8(3) and (5) (which were previously 8(3) and (4)) are the provisions which were created in response to the circumstances of a certain ex-footballer – by making it incredibly difficult for organisations with revenue of at least $50 million per annum to impose codes of conduct that prevent an employee from making discriminatory comments outside their ordinary hours of employment.

These clauses have been slightly improved in the Second Exposure Draft. By clarifying they only protect employees in conduct ‘other than in the course of the employee’s employment’, it actually applies to a reduced set of circumstances.

But Attorney-General Porter has also included a new clause 8(4), which makes things much worse again – by preventing qualifying bodies (like legal admission or medical registration bodies) from taking into account degrading or demeaning public comments which applicants may have made ‘unless compliance with the rule by the person is an essential requirement of the profession, trade or occupation’.

Previously, these bodies may have denied admission or registration on the basis that the applicant was not a ‘fit and proper person’ – instead, homophobes, biphobes and transphobes will be encouraged to discriminate with little or no professional consequences.

**********

Any of these problems should be sufficient in and of itself for anyone interested in human rights for all Australians, and not just for some, to oppose the Bill. All of them together should be enough for Labor, the Greens and Senate Cross-Bench to vote against it – although only the Greens’ opposition is secure at this stage.

And that’s not even including some of the other ‘lesser’ problems in the package of ‘religious freedom’ laws the Government is seeking to pass, which are each significant in their own right:[ix]

  • Creating a ‘Religious Freedom Commissioner’ within the Australian Human Rights Commission, to advance the ‘religious freedom’ agenda, even though such a position was not recommended by the Government’s own Ruddock Review, and while LGBTI Australians continue to be denied a Sexual Orientation, Gender Identity and Sex Characteristics Commissioner.
  • Amending the Marriage Act 1961 (Cth) to reinforce the ability of religious educational institutions to reject same-sex weddings, even where they provide those services to the public on a commercial basis – and despite the fact such a ban was not previously required to reject divorced people remarrying (meaning this is essentially an anti-marriage equality provision),[x] and
  • Amending the Charities Act 2013 (Cth) to ‘protect’ charities advocating against an inclusive definition of marriage, even though the Australian Charities and Not-for-profits Commission (ACNC) explicitly stated such a clause was not needed, and despite the fact no other type of advocacy (from Indigenous, to environmental or LGBTI) is protected in this way.

Unfortunately, there are even more problems in the Religious Discrimination Bill, and its two related Bills (the Religious Discrimination (Consequential Amendments) Bill, and the Human Rights Legislation Amendment (Freedom of Religion) Bill), although it would take too long to describe them all in detail here.

In short, these are deeply flawed Bills, developed through a bad faith process, that will have a terrible impact on women, LGBTI people, people with disability and others. If passed, they would lead to increased division between different communities, changing our country for the worse. They must be blocked.

Perhaps the most frustrating part of this debate is that a genuine Religious Discrimination Bill, one that protected people of faith and no faith against discrimination on the basis of who they are, would have been a welcome development.

If the Government had prepared the Religious Discrimination Bill in good faith, it would have been met with substantial community goodwill. Instead, they listened to religious fundamentalists, and have now released two slightly different versions of legislation containing the same fundamental flaw – it increases discrimination rather than reducing it.

Significantly, the victims of the Government’s Bill will not only be women, LGBTI people, single parents, people in de facto relationships, divorced people, and people with disability. People from minority faiths, atheists and agnostics all stand to lose under Attorney-General Porter’s, and Prime Minister Morrison’s, disingenuous and disastrous Second Exposure Draft ‘Religious Freedom’ Bills.

Anti-discrimination legislation should reduce discrimination, not increase it. It should unite us, rather than divide us. The Religious Discrimination Bill fails on those most fundamental criteria. It is a bad faith Bill, and the only possible good outcome from here would be for it to be rejected in its entirety.

 

Take Action

One of my main objectives for the blog this year is to include practical information on as many posts as possible about actions readers can take. In this instance, there are at least three things you can do:

 

  1. Write a submission on the Second Exposure Draft Bills

The Second Exposure Draft ‘Religious Freedom’ Bills are open for public consultation until Friday 31 January 2020. Details of the Bills are here, and you can send written submissions via email to FoRConsultation@ag.gov.au

You don’t have to be a lawyer to make a submission, nor do you need to comment on all of the Bills’ many problems. Instead, you can simply describe your general concerns about the proposed legislation, as well as any specific fears about its impact on you and your community. Some suggested points include:

  • All Australians deserve to be protected against discrimination.
  • This includes people of faith, and no faith. But it must also include women, LGBTI people, single parents, people in de facto relationships, divorced people, people with disability and others.
  • Unfortunately, the Second Exposure Draft Religious Freedom Bill will increase discrimination against many groups, including people from minority faiths, rather than reduce it.
  • It will encourage people to make ‘statements of belief’ that degrade and demean others just because of who they are, in workplaces, schools and universities, health care, aged care and community services, cafes, restaurants, shops and other public places.
  • It will encourage doctors, pharmacists and other health practitioners to refuse to provide vital health services to vulnerable Australians.
  • It will encourage religious organisations to discriminate against people on the basis of their faith, in schools and universities, hospitals, aged care and other community services, even where they are delivering essential public services using public funding.
  • The Government should scrap the current version of the Religious Discrimination Bill, and prepare a new Bill that reduces discrimination rather than increasing it.
  • If the Government fails to do so, the Parliament must reject the Second Exposure Draft Religious Discrimination Bill, and associated ‘Religious Freedom’ Bills.

 

  1. Write to MPs and Senators expressing your concerns

While submissions about the Exposure Draft Bills are valuable, it is essential you also convey your concerns directly to your elected representatives.

It is especially important to write to the following:

  • ALP MPs and Senators
  • Greens MP and Senators
  • Centre Alliance Senators (if you’re in South Australia)
  • Senator Jacqui Lambie (if you’re in Tasmania), and
  • Liberate moderate/gay and lesbian MPs (including Trent Zimmerman, Trevor Evans, Tim Wilson, Angie Bell, Warren Entsch, Senator Dean Smith).

PFLAG Australia has made this process easy, using the website Equality, Not Discrimination.

You can also access a range of materials from Equality Australia here, including a submission-writing toolkit.

 

  1. Attend a public rally against the Bills

For those who prefer their activism to be on the streets, there will also be a number of public rallies around the country in coming weeks, including:

Sydney: Saturday 8 February at 1pm, Sydney Town Hall

Melbourne: Sunday 9 February at 1pm, State Library of Victoria

Brisbane: Saturday 1 February at 5pm, King George Square, and

Perth: Saturday 8 February at 1pm, Forrest Chase

The bad faith Religious Discrimination Bill, and the two other proposed ‘Religious Freedom’ Bills, can be blocked, but only if we all take action together.

 

Christian Porter

Attorney-General Christian Porter, author of the ‘Bad Faith’ Religious Discrimination Bill.

 

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] Attorney-General Media Conference, 13 December 2018.

[ii]Christian Porter says religious freedom bill won’t erode state LGBT protections’ 12 July 2019.

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

[iv] The complete Religious Freedom Bills – Second Exposure Drafts (which includes the updated Religious Discrimination Bill) can be found here.

[v] See The Growing List of Problems with the Religious Discrimination Bill.

[vi] Clause 42(2) provides that statements of belief will not be protected if it is:

  • malicious
  • that would, or is likely to, harass, threaten, seriously intimidate or vilify another person or group of persons; or
  • would be considered ‘counselling, promoting, encouraging or urging conduct that would constitute a serious offence.’

[vii] See The Internal Contradiction of the Morrison Government’s Religious Discrimination Bill.

[viii] ‘Rules for doctors, pharmacists tightened in new religious discrimination bill’, Sydney Morning Herald, 10 December 2019.

[ix] For more detail, see The Growing List of Problems with the Religious Discrimination Bill.

[x] Unfortunately, it would not be the only provision in the Marriage Act 1961 (Cth) which discriminated against same-sex couples, despite the postal survey result. For more see: No, We Don’t Have Marriage Equality Yet.

She who should not be named (on a tennis stadium)

The 2020 Australian Open starts tomorrow. As a long-term tennis fan, it is one of my favourite times of the year (although sadly I won’t be there in person this time around). As a long-term LGBTI advocate, however, I am not looking forward to the next fortnight – primarily because there will be considerable attention on a certain former Australian women’s tennis player.

Not just because the third largest court is named after her, but also because this year marks the 50th anniversary of her calendar-year grand slam – which was, admittedly, a remarkable achievement (for context, only one singles player, male or female, has repeated this feat in the half-century since: Steffi Graf in 1988).

Given we won’t be able to avoid this topic in the days ahead, I thought I would share my perspective on what should happen when Tennis Australia commemorates Margaret Court’s accomplishment, and why they should permanently remove her name from Margaret Court Arena.

I should start by saying what this is not about. It’s not about her opposition to marriage equality. Despite seeking to discriminate against LGBTI couples under secular law, she was entitled to her opinion, no matter how wrong it was (and thankfully the majority of Australians decided she was indeed very wrong).

On the other hand, it is about Margaret Court being a vocal opponent of the equalisation of the age of consent in Western Australia in 2002 (which is actually when, as a queer activist at university, I first came across her bigoted views). For those who don’t know, she literally campaigned for young gay and bisexual men, aged 16 to 20, to remain subject to criminalisation, including the threat of imprisonment, simply because of who they were.

That, to me, went beyond the pale. This was not simply a difference in policy – she used her position of influence in political debate to target vulnerable members of our community. That incident alone should be sufficient to mean she is not celebrated by Tennis Australia – or indeed anyone with a conscience.

Although unfortunately it was not the last time Margaret Court would attack LGBT young people. As recently as three weeks ago, she reportedly described trans kids as being the work of the devil (“That LGBT in the schools, it’s of the devil, it’s not of God… you know when children are making the decision at seven or eight years of age to change their sex. Just read the first two chapters of Genesis, that’s all I say. God made male and female”).

Court’s list of tennis records might be long, but her record of homophobic, biphobic and transphobic statements is much, much longer (noting that these are just a couple of examples out of many I could have chosen).

Of course, some people might respond by saying that the above actions are unrelated to tennis, and she should be judged solely on her sporting career. The only problem with this defence is that she has an equally lengthy history of anti-LGBT prejudice in relation to tennis.

As far back as 1990, Court criticised out lesbian champion Martina Navratilova (“a great player but I’d like someone at the top who the young players can look up to. It’s very sad for children to be exposed to homosexuality. Martina is a nice person. Her life has just gone astray”) and famously said that lesbians were ruining tennis.

In the three decades since, her views have not evolved, although who she attacks has – Margaret Court now adds trans tennis players, and trans women athletes in particular – to her growing list of targets (“ And you know with that LGBT, they’ll wish they never put the T on the end of it because, particularly in women’s sports, they’re going to have so many problems”).

But, out of the many hateful and hurtful ‘contributions’ Margaret Court has made to public life over the years, there is one that stands out in my memory, for all the wrong reasons. In 2013, following the birth of Casey Dellacqua and her partner Amanda Judd’s first child, Margaret Court wrote the following newspaper letter to the editor:

 

Fathers for babies

The article (Dellacqua, partner welcome baby boy, 29/8) rightly celebrates the birth of a child. Yet it is with sadness that I see that this baby has seemingly been deprived of his father.

If we continue to dismantle the traditional family unit as old fashioned, archaic and no longer even necessary or relevant, we will create a fatherless generation.

Indeed, the lines are becoming increasingly blurred as the march towards such partnerships, even gay marriage, is fuelled by minority voices rising in opposition to respected Christian beliefs which many cultures also believe.

For the person who is birthed with no exposure, or even acknowledgement, of their natural dad there will always remain questions as to their identity and background.

Personally, I have nothing against Casey Dellacqua or her “partner”.

I simply want to champion the rights of the family over the rights of the individual to engineer social norms and produce children into their relationships.

As a patron of the Australian Family Association, I really want to see a society where traditional family values are still celebrated and every child has the best possible start in life.

Margaret Court, Victory Life Centre

 

Note this was not simply an expression of her views about ‘rainbow families’ in general, it was specific criticism of one such family in particular. It was a pre-meditated attack on a couple at a time when they should have been celebrating something precious and wonderful, not being subjected to unfair commentary because of their sexual orientation.

And, contrary to Court’s protestations (‘I have nothing against Casey Dellacqua or her “partner”’), the use of scare quotes there says everything you need to know about her level of disrespect towards them.

Nor can this episode be divorced from Court’s tennis career. The letter was written by a former Australian tennis player, about a then-current Australian player – and this context was no doubt influential in ensuring it was published.

The truth is that, as much as Margaret Court was a champion on the tennis court, she has been the exact opposite off it. And, because of her actions – including the attack on Casey Dellacqua and her family – it is impossible to separate the two.

That is why, whenever Tennis Australia chooses to commemorate the 50th anniversary of Margaret Court’s calendar grand slam during the next fortnight, I hope the crowd at Melbourne Park (respectfully) turn their backs on her. And if she is given the opportunity to speak, I hope they cover their ears too – because she has abused far too many platforms, over far too many years, to demean and denigrate lesbian, gay, bisexual and transgender Australians.

It is also why she should not be named above the third largest court there. While Court may have been a tennis star in the 1960s and 1970s, everything she has done since means she has nothing to offer in the 2020s and beyond (she is definitely not a role model for the current generation of players – ask yourself, have you ever heard any Australian player, including our recent champions Sam Stosur and Ash Barty, say they look up to Margaret Court? Definitely not).

What makes this decision even easier is that there is such a clear alternative. A seven-time major winner in singles, and former world number one, from the 1970s and 1980s. An Aboriginal champion, who used her post-playing career to give back to Aboriginal young people (her Companion of the Order of Australia recognised her “eminent service to tennis as a player at the national and international level, [and] as an ambassador, supporter and advocate for the health, education and wellbeing of young Indigenous people through participation in sport, and as a role model”).

Once the 2020 Australian Open wraps up on Sunday February 2, it’s time to take down the signage for Margaret Court Arena, and put up a new name in its place: Evonne Goolagong Cawley Arena.

Margaret-Court-Arena-Gal2

2020 should be the last year Margaret Court’s name appears above the third court at Melbourne Park.

Census 2021 – Count Us In

Update:

On Monday 11 February 2020, the Guardian Australia reported that the 2021 Census Regulations had been lodged by the Assistant Treasurer, Michael Sukkar – without any new questions on sexual orientation, gender identity and sex characteristics.

In case it wasn’t clear before this, it is now undeniable that, as far as the Morrison Liberal-National Government is concerned, LGBTI Australians don’t count, and we therefore shouldn’t be counted.

The ramifications of this exclusion will last for most of the 2020s. The next opportunity to include sexual orientation, gender identity and sex characteristics will be the 2026 Census. Data from that Census will be progressively published from 2027 onwards, meaning service-delivery based on that data, in health, education and other community services, is unlikely before 2028.

The decision to effectively erase LGBTI Australians from the Census will be felt for most of the next decade (at least). Shame on the Minister, and Government, who would prefer us to be invisible.

Original Post:

It may not seem all that important right now, with everything else going on, but whether lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians are included in the 2021 Census will have a long-term impact on the health of our communities.

The Commonwealth Treasury Department is currently conducting a public consultation on Exposure Draft Census and Statistics Amendment (Statistical Information) Regulations 2019.

Submissions close next Friday, 10 January 2020. If you have the time, please consider making a short submission, asking them to #CountUsIn. More information about how to make your voice heard, from the National LGBTI Health Alliance, is provided below.

Here’s my letter:

 

Division Head
Macroeconomic Modelling and Policy Division
Treasury
Langton Cres
Parkes ACT 2600

Submitted via: 2021CensusRegulations@treasury.gov.au

Friday 3 January 2020

 

To Whom It May Concern

Re: Census of Population and Housing

I am writing to you as a long-term advocate for the lesbian, gay, bisexual, transgender and intersex (LGBTI) community, to bring to your attention my personal view about the importance of including questions on sexual orientation, gender identity and intersex status in the 2021 Census.

For me, a census that captures sexual orientation, gender identity and intersex data will enable us all to better manage our health. It is important for governments at Commonwealth and state and territory level, and service providers, to have access to this data, so that I and my family and friends have the same access to targeted health services as all other Australians.

I am aware that the ABS itself asked the Commonwealth Government to consider sexual orientation, gender identity and intersex status questions to be included in the census based on an overwhelming need for this data to be collected.

I also note that in 2017 the Commonwealth Government spent $80.5 million in engaging the ABS to conduct the same-sex marriage law postal survey.

Apparently, asking all Australians to express their opinion about the relationships, and lives, of LGBTI people and their families was acceptable then.

It would be an incredible, and unjustifiable, double-standard to decide that asking people about their sexual orientation, gender identity and intersex status is unacceptable now.

LGBTI people are part of every Australian community, and everyone deserves to be counted.

We count. Our lives count. Our health counts. Our futures count. It’s time to count us in.

I respectfully ask that you reconsider the inclusion of these questions in the 2021 Census.

Yours sincerely,

Alastair Lawrie

 

Take Action

One of my main objectives for the blog this year is to include practical information on as many posts as possible about actions readers can take.

In this case, I strongly encourage you to visit the National LGBTI Health Alliance website, where they have provided a draft template letter on which the one above is based.

Please download it, add your own personal message and lodge it by Friday 10 January 2020. As requested by the Alliance, if you are emailing it, please also copy info@lgbtihealth.org.au and ask for your submission to be made public on the Treasury website.

Make your voice heard. Make sure our community is counted. #CountUsIn2021

ABS

What Gender Reveal Parties Actually Reveal

If the Germans hadn’t invented the term schadenfreude several centuries ago, we would have needed to create it to describe the most 21st century of phenomena: laughing at gender reveal fail videos.

 

These videos are (unintentionally) hilarious not just because when they go wrong, they go very wrong. With people coming up with increasingly intricate and in many cases bizarre scenarios to ‘stand out’, the potential for things to go awry has grown exponentially.

 

They are also deeply funny because the concept of a gender reveal party itself is inherently problematic, which means that laughing at the misfortunate of those involved is usually a guilt-free pleasure.

 

If you’re reading this and still think gender reveal parties are just a bit of harmless fun, perhaps it is useful to consider what exactly it is these parties are revealing – which is far more about the parent(s) than about their child(ren).

 

First, they reveal that some parents don’t seem to understand the difference between sex and gender.

 

Sex is biological (defined by the Oxford English Dictionary as ‘either of the two main categories (male and female) into which humans and many other living things are divided on the basis of their reproductive functions’).

 

On the other hand, gender is identity-based (with the Yogyakarta Principles defining gender identity as ‘each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms’).[i]

 

Given it is impossible to know a child’s gender identity before or at birth (and usually for years after that), this means these celebrations should at the very least be renamed ‘sex reveal parties’.

 

Second, they reveal that some parents don’t seem to understand that both sex and gender are much more complicated than just male and female.

 

At its very core, a gender reveal party is an attempt to place an unborn child (or children) into one of two boxes: boy or girl.

 

And yet, in 2019, we know that gender identity is a spectrum, and there is a wide range of other options, including non-binary.

 

We also know that some children will be ‘born with physical sex characteristics that don’t fit medical and social norms for female or male bodies’ (the definition of intersex from Intersex Human Rights Australia).[ii]

 

Gender reveal parties therefore deliberately exclude some of the beautiful diversity of the human experience.[iii]

 

Third, they reveal that some parents are willing participants in a reductivist view of gender.

 

Gender reveal parties simplify the concepts of male and female into blue and pink respectively, as though entire genders can be signified by, even summed up by, a colour. When there is obviously more diversity within genders, and more similarities across people of different genders, than such a basic dichotomy can hope to represent.

 

Somewhat amusingly, these colours are also the exact opposite of those from just a century ago. From US Ladies Home Journal in June 1918:

 

‘The generally accepted rule is pink for the boys, and blue for the girls. The reason is that pink, being a more decided and stronger color, is more suitable for the boy, while blue, which is more delicate and dainty, is prettier for the girl.’

 

Mush less amusingly, while the colours have changed, some of those gender stereotypes remain and gender reveal parties tend to entrench, rather than question, them.

 

Based on these three factors, gender reveal parties can actually be harmful. By supporting a view that gender will match sex assigned at birth, they can make life much more difficult for trans and gender diverse children.

 

By raising expectations that babies will be born with sex characteristics that are exclusively male or female, they can erase intersex children (and even potentially increase pressure for unnecessary surgeries post-birth to ensure their bodies match these societal ‘norms’).

 

And by entrenching the notion that boys and girls are inherently different, and reinforcing stereotypes about how they will (or should) behave, gender reveal parties place artificial restrictions on all of us, and our behaviours.

 

It may sound like I am unsympathetic to the parents who hold gender reveal parties. I’m not, at least in part because most are simply replicating the actions of those around them (and those they follow on social media), and probably haven’t considered any of the issues described above. They are acting out of ignorance rather than malice.[iv]

 

I’m also sympathetic because, as a society, we seem to be placing an ever-greater emphasis on gender, certainly much more than I can remember as a child growing up in the 1980s. From unnecessarily gendered toys, to unnecessarily gendered toiletries, and even unnecessarily gendered grocery items, heightened expectations of ‘gender conformity’ are all around us – so it is perhaps only natural they will be felt most keenly by expecting parents.

 

The challenge then is what we can do to overcome these norms, especially the emerging norm that parents will hold gender reveal parties in the first place.

 

I have four suggestions to start, from the easiest to the most difficult:

 

  1. Don’t hold a gender reveal party

 

If you are having a child, simply refuse to have one of these ‘celebrations’. Which is easy for someone like me to say (a cis gay man who has decided, with his partner, not to have children, at least in part because of the climate emergency), so let’s move on…

 

  1. Don’t attend gender reveal parties

 

If you are invited to one of these ‘celebrations’, don’t attend. If people all stopped going, parents would stop holding them.

 

  1. Let the person know why you’re not attending

 

This is clearly more difficult than simply not turning up, especially because many of us prefer to avoid confrontation. But if we are to do the hard yards of ending this social norm, then we should take the time to explain to the person who has sent the invitation why you won’t be there.

 

  1. Stop asking ‘What are you having?’

 

Obviously, this is another degree of difficulty again, especially because this is something we’ve been conditioned to ask, usually first, when someone says they are pregnant (and something I have been guilty of, on more than one occasion).

 

But what does it actually matter? And aren’t there more interesting and/or important questions to ask, like ‘What are you looking forward to?’ ‘What are you nervous about?’ ‘Are you prepared?’ and ‘Is there anything I can do to help?’

 

For those having difficulty making this mental adjustment, consider thinking of it this way. When you are asking ‘What are you having?’ what you’re really asking is ‘What are your child’s sex chromosomes and/or genitalia?’ and ‘What gender do you currently intend to raise your child even though you cannot know now their eventual gender identity?’

 

Rationally, an expecting parent who knows the difference between sex and gender could also respond to the ‘What are you having?’ inquiry by saying that they’ll get back to the questioner in five, ten, 15 or even 20 years, when the child decides for themself.

 

Which brings me to the primary exception to my ‘no gender reveal parties’ stance: where trans and gender diverse people announce their own gender identity. This is truly something to celebrate, especially for those who’ve overcome years or even decades of transphobia from families, schools, and society in general.

 

[I suppose I would also make an exception for parents who hold a gender reveal party and then release a colour like green or brown and tell attendees that they’ll let their child determine their identity for themselves.]

 

Other than that, gender reveal parties are a social phenomenon that has risen to prominence incredibly quickly over the past decade – and hopefully will recede just as quickly in the early 2020s.

 

Indeed, that’s the view of the woman whose 2008 post is widely-credited as popularising ‘gender reveal parties’, Jenna Karvunidis. From NPR in July 2019:[v]

 

‘Plot twist! The baby from the original gender reveal party is a girl who wears suits,’ Karvunidis says. ‘She says ‘she’ and ‘her’ and all that, but you know she really goes outside gender norms’.

 

… Karvunidis says her views on sex and gender have changed, especially when she’s talking to her daughter.

 

‘She’s telling me ‘Mom, there are many genders. Mom, there’s many different sexualities and all different types,’ and I take her lead on that,’ Karvunidis says.

 

She says she does have some regrets and understands these parties aren’t beneficial to everyone.

 

‘I know it’s been harmful to some individuals. It’s 2019, we don’t need to get our joy by giving others pain,’ she says. ‘I think there’s a new way to have these parties.’

 

And that idea is as simple as just eating cake.

 

‘Celebrate the baby,’ she says. ‘There’s no way to have a cake cut into it, to see if they’re going to like chess. Let’s just have a cake.’

 

Which is a great idea. And then to eat any leftovers while watching videos of gender reveal party fails because, let’s face it, some of them are funny as hell.

 

Untitled design (5)

An infamous 2017 gender reveal party fail, which caused a 47,000 acre fire in Arizona.

 

Footnotes:

[i] Yes, I’m aware that both the concepts of sex and gender, and the relationship between them, are far more complex. However, in the context of ‘gender reveal parties’ it’s clear these celebrations are based on biological sex (chromosomes and/or genitalia) rather than identity-based ideas of gender.

[ii] IHRA website, here.

[iii] We should note here that variations in sex characteristics is separate to non-binary gender identities, with many intersex people identifying with the ‘sex’ they were assigned at birth. Again for the Intersex Human Rights Australia website:

‘Some intersex people and some non-intersex (‘endosex’) people use nonbinary terms to describe their identities and sex classifications. Often, however, we encounter assumptions that to be intersex is to be nonbinary, or to be nonbinary is to be intersex. These assumptions are harmful. They fail to recognize the diversity of the intersex population, and in this case even the existence of intersex boys and girls, and intersex women and men.’

[iv] Of course, some parents possibly are deliberately setting expectations that their children will be either male or female, and that they will ‘act accordingly’ (including not identifying as trans or gender diverse), to which I say ‘fuck you’.

[v] Woman who popularized gender reveal parties says her views on gender have changed.

Stonewall 50: Bouquets & Bricks

Today marks 50 years since the Stonewall Riots, a key moment in the history of LGBTI rights activism, both in the United States and around the world.

In a different world I had hoped to be in New York, attending the World Pride celebrations marking this significant anniversary – although unfortunately sometimes the more mundane parts of life, like mortgage payments, have other plans.

I wanted to be there to pay my respects to the activists who have come before us, and on whose shoulders we stand, who have paved the way towards the improved rights and increased acceptance many of us enjoy today.

Even though I may not be there in person I can still honour their achievements in my own small way, on this somewhat niche LGBTI rights blog, on the other side of the globe.

Thank you to the brave people at the Stonewall Inn who, in the early hours of June 28 1969, fought back against police oppression, and fought to end the injustice that was ubiquitous in the lives of queer people at that time.

Thank you to the trans and gender diverse people, the drag queens and the people of colour who have been at the forefront of this battle from the very beginning.

Of course, the Stonewall Riots was not the first instance of LGBTI people fighting back against abuse and mistreatment. Thank you too to the people at Compton’s Cafeteria, and Cooper Do-nuts, and likely other instances of queer rebellion that have been lost to history, because we were not the ones who were writing it.

Nor was Stonewall the starting point for LGBTI rights within the United States, with groups like the Mattachine Society and Daughters of Bilitis undertaking the comparatively-boring legal reform work – but who, in doing so, took far greater risks than we could possibly appreciate today.

Obviously, the story of LGBTI activism did not begin and does not end with the US either (a mistake we make all-too-often, especially on anniversaries like this).

Thank you as well to the countless campaigners for our rights around the world, from the advocates for homosexual recognition in Germany in the second half of the 19th century, to the courageous people fighting for decriminalisation in the 68 UN Member States where homosexuality remains criminalised today.

Looking closer to home, Australia’s most-famous instance of queer people celebrating amidst the spectre of police brutality had its own 40th anniversary just last year. Thank you to the 78ers, whose courage at that first Sydney Gay Mardi Gras helped inspire the generations here that followed.

Just as in the US, however, Mardi Gras was not the starting point for LGBTI rights in Australia.

Thank you to the people who stood up in the preceding decade, from the formation of the Homosexual Law Reform Society of the ACT in July 1969 (just one month after Stonewall, and who will celebrate their own 50th anniversary in four weeks’ time), through the early 70s activism of groups like Campaign Against Moral Persecution (CAMP for short), to the decriminalisation advocates in South Australia and elsewhere.

Thank you to the people who responded to the HIV/AIDS crisis in the 1980s, which decimated our community when it had only just begun to emerge from the darkness. You fought for your lives – and for all of us – and in doing so you kept the (candle)light alive.

Thank you to the HIV activists today, who understand that this struggle is not over.

Thank you to the law reformers, who over decades have secured the building blocks of legal equality, from anti-discrimination protections, to relationship recognition and most recently the right to marry the person we love.

Thank you to the trans and gender diverse activists, who have been fighting – against even greater resistance – for the right to live the lives you were always meant to. The battles for access to birth certificates and identity documentation, and health care, are not over.

Thank you to the intersex activists whose struggles seem bigger still. Many of whom are survivors of gross violations of the human right to bodily autonomy, but who speak out to stop those same coercive surgeries and treatments from being inflicted on others. And who must fight against the indifference of politicians, the arrogance of medical professionals and too-often the ignorance of other members of the LGBTI community.

Thank you to the queer people of colour, and especially to Aboriginal and Torres Strait Islander LGBTI people, who fight not just against homophobia, biphobia, transphobia and intersexphobia, but also against the racism that lies at the heart of our country (and, sadly, within our own community too).

As can be seen from the above, the incredible progress made so far on LGBTI rights has been achieved because of the work of more than any one particular individual or organisation. We have all played a role.

From the brave people who threw the first bricks at Stonewall. To others who have thrown bricks through the legal, social and cultural discrimination which LGBTI people all-too-commonly faced. And everyone who has thrown their own bricks through the closet of invisibility and shame that too many people have endured.

With those bricks we have built ourselves a community, and a home, where more people than at any point in history can feel accepted for who they are, no matter their sexual orientation, gender identity or sex characteristics.

But, as we all know, the house of LGBTI rights remains incomplete – there is still much unfinished business, in Australia, the United States and around the world, before all lesbian, gay, bisexual, transgender and intersex people can finally be considered ‘free & equal’.

Which means we need more (metaphorical) brick-throwers, to smash down the walls of homophobia, biphobia, transphobia and intersexphobia that keep many LGBTI community members imprisoned.

So today, as we celebrate Stonewall 50, and give thanks to the LGBTI activists who have made our world a better place, we should take a moment to reflect on what each of us can do, what we should do, and what we must do, to carry on their work.

the_stonewall_riots_didnt_start_the_gay_rights_movement_1050x700

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

Unfairness in the Fair Work Act

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

The first item of ‘unfinished business’ that I have chosen to write about is the discrimination that remains in the Commonwealth Fair Work Act 2009.

This unfairness includes two distinct issues, one relatively well-known (and which exists in other legislation, such as the Commonwealth Sex Discrimination Act 1984), the other much less so.

Starting with the sometimes-overlooked problem first: did you know that the Fair Work Act 2009 does not protect trans, gender diverse and intersex people against workplace discrimination?

While this legislation prohibits adverse treatment on the basis of sexual orientation – thereby protecting lesbians, gay men and bisexuals (at least to some extent: see the second discussion below) – it does not include equivalent protections for trans, gender diverse and intersex people.

For example, sub-section 351(1) provides that ‘An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.’

Note that this list excludes both gender identity (which would cover trans and gender diverse people) and intersex status (the term used in the Sex Discrimination Act 1984 to protect intersex people, although the intersex community has since advocated for this to be updated to ‘sex characteristics’; see the Darlington Statement).

The same list of attributes, with the same exclusions, is found in sub-section 772(1)(f) which protects employees against unlawful termination.

In short, the Fair Work Act 2009 (Cth) does not protect trans, gender diverse and intersex Australians from mistreatment or unfair dismissal based on who they are. This is either a gross oversight, or a deliberate choice to treat transphobic and intersexphobic workplace discrimination less seriously than other forms of mistreatment.

Nor are these the only sections of the Fair Work Act to omit trans, gender diverse and intersex people:

  • Section 153 provides that discriminatory terms must not be included in modern awards. The list of relevant attributes includes sexual orientation, but excludes gender identity and sex characteristics;
  • Section 195 includes a similar prohibition on discriminatory terms in enterprise agreements, and once again omits trans, gender diverse and intersex people; and
  • Sub-section 578(c) provides that the Fair Work Commission must perform its functions taking into account ‘the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.’

There is literally no requirement in the Act for the Fair Work Commission to help prevent or eliminate transphobic and intersexphobic workplace discrimination.

There can be no justification for these omissions. Nor can there be any excuse for the Government, or Parliament more broadly, not to pass urgent amendments to ensure trans, gender diverse and intersex Australians are finally included in the Commonwealth Fair Work Act 2009.

Here are my letters to the Prime Minister, and the Minister for Jobs and Innovation, asking them to do exactly that:

**********

The Hon Malcolm Turnbull MP

Prime Minister of Australia

PO Box 6022

House of Representatives

Parliament House

Canberra ACT 2600

27 May 2018

 

Dear Prime Minister

Please include trans, gender diverse and intersex people in the Fair Work Act

On 15 November last year, in your press conference following the announcement of the 61.6% Yes vote in the same-sex marriage postal survey, you said that: ‘we are a fair nation. There is nothing more Australian than a fair go. There is nothing more Australian than equality and mutual respect.’

A little later in that same press conference you added: ‘we are a nation of a fair go and mutual respect and we treat people equally. We don’t discriminate against people because of their gender of their sexual orientation, their religion or race or the colour of their skin.’

Unfortunately, trans, gender diverse and intersex Australians are still a long way from receiving a ‘fair go’, and that includes being treated unfairly within the Commonwealth Fair Work Act 2009.

Section 351 of this legislation includes protections against adverse treatment on the basis of a wide range of attributes, including sexual orientation. However, it excludes both gender identity and sex characteristics (the latter being the term preferred by intersex advocates, as articulated in the Darlington Statement, replacing ‘intersex status’ as used in the Sex Discrimination Act 1984).

Similarly, section 772 of the Fair Work Act prohibits unfair dismissal on the same grounds as 351, once again leaving trans, gender diverse and intersex Australians without equivalent protection.

Meanwhile, sections 153 and 195 do not prohibit the use of discriminatory terms against trans, gender diverse and intersex people in modern awards and enterprise agreements, respectively.

Finally, while section 578 of the Fair Work Act mandates that, in performing its functions, the Fair Work Commission must take into account ‘the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination’, this does not cover either transphobic or intersexphobic discrimination.

I am writing to ask that you, and your Government, introduce amendments to the Fair Work Act 2009 to rectify these gross oversights as a matter of priority.

Trans, gender diverse and intersex people deserve to be protected against workplace discrimination in exactly the same way as other employees, including lesbians, gay men and bisexuals.

If you fail to do so, you will be continuing to deny a ‘fair go’ to trans, gender diverse and intersex Australians, and your words of 15 November last year will ring hollow.

Sincerely,

Alastair Lawrie

**********

Senator the Hon Michaelia Cash

Minister for Jobs and Innovation

PO Box 6100

Senate

Parliament House

Canberra ACT 2600

via minister.cash@jobs.gov.au

27 May 2018

 

Dear Minister Cash

Please include trans, gender diverse and intersex people in the Fair Work Act

I am writing to you about the Commonwealth Fair Work Act 2009, which you administer, and specifically its failure to adequately protect trans, gender diverse and intersex employees against workplace discrimination.

Section 351 of this legislation includes protections against adverse treatment on the basis of a wide range of attributes, including sexual orientation. However, it excludes both gender identity and sex characteristics (the latter being the term preferred by intersex advocates, as articulated in the Darlington Statement, replacing ‘intersex status’ as used in the Sex Discrimination Act 1984).

Similarly, section 772 of the Fair Work Act prohibits unfair dismissal on the same grounds as 351, once again leaving trans, gender diverse and intersex Australians without equivalent protection.

Meanwhile, sections 153 and 195 do not prohibit the use of discriminatory terms against trans, gender diverse and intersex people in modern awards and enterprise agreements, respectively.

Finally, while section 578 of the Fair Work Act mandates that, in performing its functions, the Fair Work Commission must take into account ‘the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination’, this does not cover either transphobic or intersexphobic discrimination.

I am writing to ask that you, and the Liberal-National Government, introduce amendments to the Fair Work Act 2009 to rectify these gross oversights as a matter of priority.

Trans, gender diverse and intersex people deserve to be protected against workplace discrimination in exactly the same way as other employees, including lesbians, gay men and bisexuals.

If you fail to do so, you will be failing to ensure trans, gender diverse and intersex Australians receive a ‘fair go’ in their jobs.

Sincerely,

Alastair Lawrie

**********

The second, much better-known, issue of unfairness in the Fair Work Act 2009 is its inclusion of extensive ‘religious exceptions’. These are loopholes that allow religious organisations to discriminate against employees on the basis of their sexual orientation (and would likely allow discrimination on the basis of gender identity were it to be included as a protected attribute in the Act in future).

The Fair Work Act entrenches these loopholes in two ways.

First, the prohibition on adverse treatment in section 351 (described above) does not apply to any action that is ‘not unlawful under any anti-discrimination law in force in the place where the action is taken’ (sub-section (2)(a)).

This means that the Fair Work Act reinforces the religious exceptions that already exist in the Commonwealth Sex Discrimination Act 1984, and its state and territory equivalents (other than the Tasmanian Anti-Discrimination Act 1998),[i] which permit anti-LGBT discrimination.

However, the Fair Work Act then includes its own ‘religious exceptions’ in sub-section 351(2)(c), allowing adverse treatment ‘if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed – taken:

(i) in good faith; and

(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.’

In effect, the Act provides two different avenues for religious organisations to justify mistreating employees simply because of their sexual orientation.

The protection against unfair dismissal in section 772 also includes its own ‘religious exception’, while even the terms of modern awards (section 153) and enterprise agreements (section 195) are allowed to be explicitly discriminatory on the basis of sexual orientation where it relates to employment by a religious institution.

There is, however, one important difference between the religious exceptions in this Act and those that are contained in the Sex Discrimination Act 1984: the Fair Work Act religious exceptions technically apply across all protected attributes.

This means that, theoretically at least, a religious organisation could claim its beliefs required it to discriminate on the basis of race, or even physical or mental disability – and that it would therefore be protected from any adverse consequences under the Act.

Of course, in practice we all know that religious exceptions are most likely to be used to justify discrimination against women (including unmarried and/or pregnant women) and LGBT people.

Unfortunately, the Ruddock Religious Freedom Review recently handed to Prime Minister Malcolm Turnbull (although not yet publicly released) is likely to recommend that these loopholes are expanded, rather than drastically reduced. That is a subject I am sure I will be writing about further in coming months.

Nevertheless, in the meantime we should continue to highlight the injustice of religious exceptions, including those found in the Fair Work Act and elsewhere, and campaign for their removal.

One such campaign, called ‘Change the Rules on Workplace Discrimination’, is currently being run by the Victorian Gay & Lesbian Rights Lobby. I encourage you to sign their petition, here.

Ultimately, we need to collectively work towards a Fair Work Act that covers all parts of the LGBTI community – and that doesn’t feature extensive ‘religious exceptions’ allowing discrimination against us.

**********

Update 24 October 2018:

Earlier this year, the (then) Minister for Small and Family Business, the Workplace and Deregulation, the Hon Craig Laundy MP, replied to my letter. As you can see below, it is an extremely disappointing response.

He, and the Liberal-National Government, either don’t understand that the Fair Work Act excludes trans, gender diverse and intersex Australians (leaving them at a disadvantage compared to other groups, including lesbian, gay and bisexual people). Or they simply don’t care. I think we all know which is the likelier explanation.

This issue has taken on added importance in the context of the current debate around the Ruddock Review, and removing religious exceptions that allow discrimination against LGBT students and teachers.

That is because, even if those exceptions are repealed (from both the Sex Discrimination Act and the Fair Work Act), if the protected attributes of gender identity and sex characteristics/intersex status are not also added to the Fair Work Act, there will still be a two-tiered system for LGBTI teachers.

In short, lesbian, gay and bisexual teachers will be able to complain to both the Fair Work Ombudsman and the Australian Human Rights Commission, while trans, gender diverse and intersex teachers will only be able to complain to the latter.

Unfortunately, the otherwise positive Discrimination Free Schools Bill 2018 from the Australian Greens makes this fundamental mistake. We are also still waiting to see whether the now Morrison Government will introduce any reforms in this area at all, as well as what a Shorten Labor Opposition Bill (or amendments) might look like.

But, irrespective of whose Bill it is, and whatever other amendments it contains, if it doesn’t add gender identity and sex characteristics/intersex status to the Fair Work Act, it will be incomplete.

**********

16 July 2018

Dear Alastair

Thank you for your email of 27 May 2018 to Senator the Hon Michaelia Cash, Minister for Jobs and Innovation, about protection from discrimination against trans, gender diverse and intersex employees under the Fair Work Act 2009. As the issues raised fall within my portfolio responsibilities as Minister for Small and Family Business, the Workplace and Deregulation, your email was referred to me for reply.

The Australian Government believes that discrimination in the workplace is unacceptable and all employees have the right to be free from discrimination at work.

The Sex Discrimination Act 1984 (the Sex Discrimination Act) is the principle legislation providing protection against discrimination or harassment on the basis of sex and/or gender. It also covers discrimination and harassment in the workplace. The Sex Discrimination Act explicitly covers discrimination on the basis of gender identity and intersex status.

The Human Rights Commission Act 1986 provides remedies for workers who have been discriminated against, harassed or dismissed on the basis of gender identity or intersex status, including in the workplace. The Australian Human Rights Commission (AHRC) is responsible for responding to complaints about harassment or discrimination on the basis of gender identity or intersex status.

Any person who has been discriminated against, harassed or dismissed on the basis of gender identity or sex characteristics should contact the AHRC for information and advice. The AHRC has the power to investigate and conciliate the complaints of discrimination and breaches of human rights. Information on what is required to make a complaint is available at www.humanrights.gov.au under the complaints tab on that page. There is also a National Information Service line on 1300 656 419.

Yours sincerely

Craig Laundy

(then) Minister for Small and Family Business, the Workplace and Deregulation

Update 21 June 2020:

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

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

Morrison

Will Scott Morrison’s Government continue to exclude trans, gender diverse and intersex employees from the Fair Work Act?

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] For more information on the differences in these laws, see A quick guide to Australian LGBTI anti-discrimination laws.

Twenty years

 

Like most people, different people would describe me in different ways. Earnest. Passionate. Opinionated. I’m sure some there’d be some less flattering terms too. One adjective that I don’t think would be used very often is melodramatic. Yet that is exactly the right word to describe my coming out experience.

 

Twenty years ago tonight I told my parents I was gay. The anniversary of that personally momentous occasion (as well as another upcoming ‘round number’, my 40th birthday) has prompted me to reflect both on what happened then, and how much has changed since. So here is my somewhat over-the-top, but very true, coming out story…

 

**********

 

Fenner_Hall_North_Tower

 

In 1998, I was a second year student at the Australian National University in Canberra. I lived in one of the larger student residences (Fenner Hall), and was a bit of a ‘joiner’ – signing up to countless clubs and societies, and participating in various sporting and cultural activities.

 

One such endeavour was the annual college theatre production. That year it was a not-especially memorable play called ‘The Prodigal Son’, about the return of a gay man to his estranged family following the death of his father.

 

I was cast as the prodigal son’s boyfriend (a role made slightly more complicated by the fact one of the first men I had ever slept with played the title character, although he is now one of my best friends).

 

As the ‘outsider’ in the play, my character’s main function was to observe the family’s interactions and offer insights like ‘Why can’t parents accept their children for who they are?’ and ‘Despite their differences I know they actually love each other.’

 

My personal response to this situation was to decide that this was the perfect opportunity to come out to my parents. So I convinced them to come down to see me perform, without explaining why.

 

**********

 

Now, that sounds like a terrible decision. Probably because, well, it was. But, while the thought processes involved only ever really made sense in the conflicted mind of a closeted 19 year old, I do recall at least some of the reasons why.

 

First, it gave me the firm push I required. I had actually tried to tell my parents the summer beforehand, but always found an excuse to back out. The play served as a necessary self-imposed deadline – it’s hard to completely avoid the topic of sexuality after you’re parents have already seen you as a gay man (even if it was only on stage).

 

Second, it was on my ‘home turf’. The play was an excuse to get my parents to Canberra, which was important because, if they disowned me, I would still have accommodation, and money (I was fortunate enough to be on a scholarship), in place. In short, I wouldn’t be homeless.

 

Again, that might seem a bit melodramatic to some readers, especially in this post-same sex marriage haze. I can assure you it was a legitimate fear, not just because of the time period (this was early John Howard-era Australia after all) but especially because of my family background.

 

I grew up on a cattle property outside Blackwater, a small town about two hours west of Rockhampton in Central Queensland. As well as being a farmer, my dad was heavily involved in agri-politics, and had stood for pre-selection for the National Party in the federal electorate of Maranoa (he would later be an unsuccessful candidate in the state seat of Fitzroy, parts of which are now included in Mirani, the only Queensland seat currently held by One Nation).

 

My mum, a nurse at one of the local coal mines, was also very conservative. In fact, my entire extended family were right-wing; my sister was the next most progressive after me, and that was because she voted Liberal!

 

Oh, and given where we lived, my parents had sent all three children to a Lutheran boarding school in Brisbane for five years, where we were indoctrinated with German efficiency (although the full horrors of my time there are for another post, at another time).

 

Based on this up-bringing, the idea that my parents would react badly to their son’s homosexuality was definitely not implausible.

 

The third reason why I chose to tell them in this way was because it meant I had a support system in place. I had only come out to a few close friends late in the previous year. Through the play I found another close-knit group of accepting people. Together they gave me the confidence, and courage, to finally follow through.

 

**********

 

Before we get to the ‘big night’ itself, there’s one other consequential choice I made: to disclose my sexuality to my sister beforehand. By that stage, she was in her 7th year of university. I figured that, if anyone in my family was ever going to be okay with me being gay, it was her.

 

And she was. Within 15 minutes of me telling her over the phone, she was joking around (in a light-hearted manner), putting me at ease.

 

What I didn’t learn until afterwards though, was that she then decided to let my parents know before they headed down to Canberra, including telling my mum as she recovered in hospital from elective surgery.

 

**********

 

Like most life-changing events, I don’t actually remember much detail about what happened the night of the play (the final performance of its short and, as far as I’m aware, only run), just certain moments and particular emotions.

 

The adrenaline kicking in back-stage. The words of encouragement from my cast-mates before the curtains went up. The odd mixture of sheer terror and profound relief as I looked out under the lights and saw that my parents were indeed in the audience. The surreal-ness of my character asking parents to accept their children no matter who they are – as I did exactly that.

 

Afterwards, I took them out for a predictably awkward dinner, and we had ‘the chat’. Again, most of what followed was a blur, although they made sure to let me know that they loved me – even if they did so in their own reserved, country kind of way.

 

By the time I re-joined the rest of the cast for the after-party, [cliché alert] it felt like the weight of the world had been lifted from my shoulders, and I could exhale – properly – for the first time in a long time, maybe ever.

 

**********

 

As other members of our community know all too well, ‘coming out’ is never a one-off event, but a life-long process, especially as you continually meet new people, or enter novel situations.

 

Even with people to whom you have already disclosed, there are degrees of being out, and a spectrum of acceptance. So it was with my parents.

 

They had said ‘all the rights things’ that frosty May night in Canberra because they had been forewarned by my sister. But that wasn’t necessarily a true reflection of how they really felt – as I discovered during the June/July holidays when I headed back to the farm.

 

The reception there was much, much colder, including from my brother who was then working on the farm (although he is much more accepting now, primarily thanks to the influence of a good woman).

 

Things deteriorated rapidly, and to such an extent that one day, in the car with my mum driving home from town, she said something especially egregious – which I won’t repeat here – and I had to tearfully, but forcefully, threaten to turn the car around and head all the way back to uni (two full days’ drive away) if she didn’t want me, all of me, in her life anymore.

 

It was the emotional confrontation that hadn’t happened the night of the play, but that was essential for things to improve. She backed down, and our relationship slowly but surely improved over the years that followed, a process that was greatly accelerated by the arrival of my fiancé Steve on the scene, ten years later.

 

**********

 

Now, two decades on, and my mum and dad are proud, yes-voting folks, very much looking forward to attending Steve and my wedding (I think they are especially pleased at the idea of him being their son-in-law – but then, who wouldn’t be?)

 

Indeed, so much has changed in those twenty years that even writing this post has been challenging. Because it’s difficult to remember a time when, far from being comfortable in my skin, I buried myself in so many layers just to make sure nobody could see who I really was.

 

Twenty years ago the idea that I would meet someone to share my life with, all of my life, and that he would be accepted as an integral part of my family, and me in his, seemed preposterous. Today it is as normal, as fundamental, as breathing.

 

Twenty years ago I could not conceive of a time, a place, any context, in which I would be so happy. That life could be, would be, so beautiful. I wish he could have known that back then…

 

**********

 

As a long-term activist and advocate on behalf of the lesbian, gay, bisexual, gay and transgender (LGBTI) community, I am not nearly naïve enough to underestimate the challenges that are still faced by many young people today.

 

Some parents do still disown their children. Or send them to gay or trans conversion (so-called) therapy. Some young people, especially those who are trans and gender diverse, from culturally and linguistically diverse backgrounds, Indigenous, or live in rural and regional Australia, can and do still face significant barriers just to become who they are. Too many tragically never make it.

 

So, I cannot say that #itgetsbetter for everyone. But I can speak from my own experience: it got better for me. Much, much better. Although, perhaps a little disappointingly, much less melodramatic too.