Tag Archives: aged care

Submission to Draft National Care and Support Strategy 2023

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Submitted online 

26 June 2023

To whom it may concern

Thank you for the opportunity to provide this submission in response to the Draft National Care and Support Strategy 2023.

I do so as a long-standing advocate for lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) Australians, with a particular focus on ensuring our communities are legally protected and can live our lives free from discrimination on the basis of who we are.

At the outset, I would like to commend the Government for taking on the issue of ensuring the ‘care and support economy’ is working effectively and efficiently for the benefit of all people, including the people accessing these services as well as the workers providing them.

As noted in the draft strategy as circulated, this is especially important given ‘Australian Government spending in these sectors is projected to rise from around $60bn in 2021-22 to more than $110bn by 2026-27.’

In this context, however, it is disappointing that so little consideration is given to how the care and support economy impacts LGBTIQ people.

Indeed, as far as I can tell, there is only one reference to LGBTIQ people in the entire 56 pages of the proposed strategy (which I will address in more detail below).

Almost inevitably, this means that the impact of the care and support economy on LGBTIQ people accessing services, and LGBTIQ workers – as well as the inter-relationship between these two cohorts – is not adequately addressed.

I therefore call for the following issues to be addressed in more detail in the final version of the strategy to be released later this year.

  1. Better protections for LGBTQ people accessing care and support services

While increased Government funding for care and support services overall is obviously welcome, one particular aspect of this funding which causes potential problems for the LGBTIQ community is that a significant share is provided to religious organisations to operate what are essential public services.

Although many religious organisations are now accepting of LGBTQ people and our families, many others remain discriminatory in their approaches towards diversity in sexual orientation and gender identity.

And in at least some of these cases, although thankfully not all, this discrimination is legally permitted under the Commonwealth Sex Discrimination Act 1984.

First, on the positive side, the 2013 amendments to this legislation, which protected LGBTI people against discrimination under federal law for the first time, included a ‘carve-out’ which provides that Commonwealth-funded age care services operated by religious organisations are not permitted to discriminate against LGBTQ people accessing those services (sub-section 37(2)(a): ‘Paragraph (1)(d) does not apply to an act or practice of a body established for religious purposes if… the act or practice is connected with the provision, by the body, of Commonwealth-funded aged care.’)

While welcome, this carve-out is also extremely narrow. It does not protect LGBTQ people accessing non-Commonwealth Government funded aged care services against discrimination because of their sexual orientation and/or gender identity.

Even worse, the fact this carve-out only applies to aged care, means that other parts of the care and support economy – from disability services, through veterans’ care and early childhood education and care – are not covered.

In other words, religious organisations which operate services in these sectors are free to discriminate against LGBTQ people accessing them, even where the service is being provided with Australian Government money. With taxpayers’ money. With our money.

This is completely unacceptable in 2023. People should be able to access these services – disability services, veterans’ care and early childhood education and care – without having to fear such discrimination.

It is also completely contradictory to the otherwise-worthy stated objectives of the Draft Strategy.

This includes 1.4 ‘Services are culturally and psychologically safe for all people.’ Supported by the discussion on page 19 – which is the only place LGBTIQ people are explicitly mentioned in the document: ‘In addition to formal qualifications, the increasingly diverse Australian population also requires a workforce that is culturally competent for First Nations people, people from culturally and linguistically diverse backgrounds and lesbian, gay, bisexual, transgender and intersex people.’

Services cannot be culturally and psychologically safe for all people if some services are granted special privileges to discriminate against LGBTQ people accessing them.

And aiming for a workforce that is culturally competent to engage with LGBTI people is undermined if those services are permitted to refuse to engage with LGBTQ people anyway.

Therefore, if the Draft Strategy is to meet its stated objectives it must also include a recommendation, and commitment, to remove the exceptions in the Sex Discrimination Act that currently allow religious organisations to discriminate against LGBTQ people accessing disability services, veterans’ care and early childhood education and care.

2. Better protections for LGBTQ workers providing services

The need to improve legal protections for LGBTQ people under the Sex Discrimination Act doesn’t just apply to the people accessing those services – but also extends to the workers providing them.

This is especially important when, as noted in the draft Strategy, ‘The health care and social assistance industry now accounts for 15 per cent of Australia’s workforce, making it the largest employing industry in Australia’ and that ‘The care and support workforce is growing 3 times faster than other sectors in the Australian economy.’

Being able to enjoy safe and secure jobs, and ultimately careers, is therefore important for all cohorts within the Australian community – but this is something currently denied to too many LGBTQ workers.

That is because religious organisations receiving Commonwealth, State and Territory funding to deliver these services are legally permitted under federal anti-discrimination law to discriminate against workers simply based on their sexual orientation and/or gender identity.

Unlike LGBTQ people accessing aged care services, this includes LGBTQ workers in those services – sub-section 37(2)(d) makes it clear that the ‘carve-out’ does not apply where ‘the act or practice is… connected with the employment of persons to provide that aged care.’

There is also no Commonwealth protection for LGBTQ workers delivering disability services, veterans’ care or early childhood education and care, where their employers are faith bodies.

This is unacceptable. Workers should be hired, fired, promoted or otherwise engaged or not engaged on the basis of their ability to deliver this vital ‘care and support’ – not on their sexual orientation and/or gender identity.

This obviously has direct negative impacts on the LGBTQ workers involved – and potential workers too, who may be dissuaded from entering the care and support workforce to begin with if they are aware large sections of these industries are legally empowered to mistreat them just because of who they are.

But it also undermines the stated objectives of the draft strategy, including:

2.4 ‘Workplaces are safe and healthy, and psychological and physical risks are eliminated or, if this is not possible, minimised’ and

2.6 ‘Workplaces are inclusive of diverse cultures, genders, ages and abilities and are culturally safe for all workers, including First Nations workers.’

Psychological risks for LGBTQ workers are not being eliminated or minimised however long religious organisations in the care and support economy are legally permitted to discriminate against them.

And workplaces can never be ‘culturally safe for all workers’ while this situation prevails too.

If the Government is serious about achieving both of those objectives, then it must include a recommendation, and commitment, to remove the exceptions in the Sex Discrimination Act that currently allow religious organisations to discriminate against LGBTQ workers providing aged care, disability services, veterans’ care and early childhood education and care.

3. Better protections for LGBTQ workers will lead to better services for all people, including LGBTQ people, accessing these services

It should be noted that, as well as benefitting individual LGBTQ workers, removing the ability of religious organisations in this sector to discriminate against LGBTQ workers will also deliver a higher quality of care – which is something all Australians have an interest in.

I have been writing about this phenomenon for several years, including the following section from my 2019 submission to the Royal Commission into Aged Care: 

The first and most obvious way in which the ability of religious organisations to discriminate against LGBT employees impacts on the quality of aged care services is the reduction of potential talent in their aged care workforce.

This is an entirely logical, and foreseeable, outcome; by excluding some highly-qualified applicants, for reasons that have nothing whatsoever to do with their ability to perform the relevant role(s), the number of qualified applicants from which to choose is inevitably diminished.

This impact may be exacerbated in remote, rural and regional Australia, where the number of applicants for a position may be much smaller to begin with – any loss of highly-qualified applicants, simply because of their sexual orientation or gender identity, could have a severe impact on service standards.

And this impact will likely exist for as long as the general exception in the Sex Discrimination Act 1984 allows religious aged care services to discriminate in this way.

Because, even if a particular aged care facility doesn’t discriminate at a particular point in time, highly-qualified LGBT employees may nevertheless be discouraged from applying because of the possibility of being legally discriminated against in the future. In remote, rural and regional Australia, where there may be limited employment options, this could even result in qualified employees being lost to the aged care services industry entirely.

There is also a compelling argument that the stress of LGBT employees working in religious aged care services that may lawfully discriminate against them, where they may need to be constantly vigilant in self-censoring their words and actions lest they be ‘found out’, undermines the quality of service provided because it serves as a potential distraction from their day-to-day responsibilities.

People accessing aged care services have the right to expect the highest possible standard of care. That is not provided when an aged care service refuses to employ highly-qualified people simply because they are lesbian, gay, bisexual or transgender.

The second practical reason why allowing religious aged care services to discriminate against LGBT employees impacts on the quality of aged care services is that it can contribute to an organisational culture of homophobia, biphobia and transphobia.

Once an organisation acts in a manner that suggests discriminating against employees on the basis of their sexual orientation or gender identity is acceptable, it is hard not to see this abuse spilling over into the treatment of LGBT people accessing these services.

LGBT individuals and couples in aged care facilities may directly witness the homophobic, biphobic and transphobic mistreatment of staff, and feel less safe in their surroundings as a result. Or they could be subject to direct or indirect anti-LGBT discrimination themselves.

There is already a significant power imbalance between people accessing these services and the service-providers themselves. As a result, even if the LGBT person accessing the service technically has a right not to be discriminated against under the Sex Discrimination Act 1984, they may feel uncomfortable in making a formal complaint because of a legitimate fear that the organisation will not be responsive to it.

LGBT people accessing these services are also denied natural allies because any LGBT employees at the facility may feel unable to advocate on their behalf because they are also afraid of retribution from the organisation itself (in this case, entirely legal).

Homophobic, biphobic and transphobic discrimination against LGBT employees inevitably has a detrimental impact on LGBT individuals and couples accessing aged care services.

The third and final practical reason why allowing religious aged care services to discriminate against LGBT employees impacts on the quality of aged care services, especially for LGBT people, is that it denies them an opportunity for human connection.

Residential aged care facilities, in particular, are the ‘homes’ of the people living in them, usually for the final years or decades of their lives. The provision of services is about much more than simply providing shelter, food and health care.

For LGBT individuals and couples, having one or more LGBT employees offers the opportunity to bond with them over potential interests, and to share stories with each other (including, I might add, the ability for younger LGBT employees to learn from the older LGBT residents).

However, this opportunity is lost if an LGBT employee is unable to discuss this aspect of their lives, for fear of being discriminated against. For the resident, the possibility of conversation is replaced by silence.

Discrimination against LGBT employees in aged care services can exacerbate the social isolation experienced by LGBT individuals and couples accessing those services.

In conclusion, there are principled reasons why religious aged care services should not be able to discriminate against LGBT employees. These employees should be judged on their ability to perform the role, not on the basis of their sexual orientation or gender identity. And taxpayers’ money should not be used to subsidise anti-LGBT discrimination.

There are also practical reasons why such discrimination should be prohibited, including that it impacts on the quality of aged care services provided, contributes to a culture of homophobia, biphobia and transphobia, and denies LGBT residents an opportunity for human connection.

Therefore, to improve the quality of aged care services, including although not only for LGBT residents, the special privilege allowing such discrimination should be repealed.

*****

The same or similar arguments can be made with respect to LGBTQ workers providing other services in the care and support economy.

If we care about the care and support economy, if we care about the people working in it, and above all the people accessing the services within it, then the special privileges which allow religious organisations to discriminate against LGBTQ people must be repealed.

Sadly, not a lot has changed since I wrote that Aged Care Royal Commission submission more than four years ago. Perhaps the only two developments to note are a) even more money seems to be going to these sectors (and therefore to faith-based organisations providing these services), and b) the change to the Commonwealth Government in May 2022.

The previous Morrison Liberal/National Government was clearly uninterested in protecting LGBTQ people accessing services, and LGBTQ workers (indeed, with their thankfully abandoned Religious Discrimination Bill, they potentially sought to increase discrimination against both groups).

The questions now are for the Albanese Labor Government:

How serious are you about ensuring care and support economy services are ‘culturally and psychologically safe for all people’, including LGBTQ people?

What priority do you give to eliminating as far as possible psychological risks to workers, and ensuring workplaces are ‘culturally safe for all workers’, including LGBTQ workers?

Because if you’re serious about this, if it’s a priority to you, then the final version of the National Care and Support Economy Strategy 2023 must include recommendations, and commitments, to remove the special privileges under the Sex Discrimination Act 1984 (Cth) which allow religious organisations to discriminate against people on the basis of their sexual orientation and/or gender identity.

Thank you in advance for taking the issues raised in this submission into consideration as the National Care and Support Strategy is finalised. Please do not hesitate to contact me, at the details provided, should you require more information.

Sincerely

Alastair Lawrie

What’s Wrong With the Commonwealth Sex Discrimination Act 1984?

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This post is part of a series examining anti-discrimination laws around the country, focusing on how well, or in many cases how poorly, they protect lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians against discrimination and vilification. The other posts can be found at the page LGBTI Anti-Discrimination[i] while the text of the Commonwealth Sex Discrimination Act 1984 (‘the Act’) can be found at the Federal Register of Legislation.[ii]

In this post I will be analysing the Act in terms of three main areas: protected attributes, religious exceptions and anti-vilification coverage. I will then briefly discuss any other key ways in which the protections offered by the Act could be improved or strengthened.

As we shall see, while the fact the Sex Discrimination Act includes all sections of the LGBTI community is to be welcomed, there are still some serious deficiencies that need to be remedied before it can be considered an effective anti-discrimination, and anti-vilification, framework.

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Protected Attributes

The Commonwealth Sex Discrimination Act 1984 is one of only four anti-discrimination laws in Australia that explicitly includes all of lesbians, gay men and bisexuals[iii], and transgender[iv] and intersex[v] people (with the other jurisdictions being Tasmania, the ACT and South Australia).

This high level of inclusivity is in large part a consequence of the fact the Commonwealth was the last jurisdiction in Australia to introduce any protections against anti-LGBTI discrimination.

The Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 was only passed in June 2013, taking effect on August 1st of that year – more than three decades after the NSW Anti-Discrimination Act 1977 first covered homosexual discrimination (way back in 1982).

It is perhaps logical then that the most recently passed anti-discrimination law in the country would use the most contemporary terminology. Nevertheless, the achievements of the Act, and the breadth of the protected attributes that are covered, should still be celebrated.

In particular, the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 was the first national anti-discrimination law in the world to explicitly include intersex status as a stand-alone protected attribute. Although, it should be noted that, in the March 2017 Darlington Statement, intersex activists called for this terminology to be replaced by the protected attribute ‘sex characteristics’ as being more accurate and more inclusive.

The definitions of the other protected attributes introduced – sexual orientation and gender identity – are progressive in that they do not reinforce a sex or gender ‘binary’.

Sexual orientation in the Act refers to attraction to “the same sex” or “a different sex” (rather than the opposite sex), while the definition of gender identity does not require a transgender person to identify as male or female (and does not impose any medical or surgical requirements to receive protection either).

Overall, then, the Sex Discrimination Act 1984 is strong in terms of the protected attributes that it covers. Unfortunately, it is mostly downhill from here.

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Religious Exceptions

While the Sex Discrimination Act 1984 is close to the best of any jurisdiction when it comes to protected attributes, in terms of religious exceptions it repeats the same mistakes of most state and territory anti-discrimination legislation.

Under sub-section 37(1), the Act provides religious organisations with extremely broad special rights to discriminate against LGBT[vi] Australians:

“37 Religious bodies

(1) Nothing in Division 1 or 2 affects:

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

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

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

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

If religious exceptions are supposed to protect ‘religious freedom’, then the first three paragraphs above, (a)-(c), at least have the benefit of being targeted at activities that are essentially religious in nature (the appointment of religious office-holders, and the holding of religious ceremonies).

However, paragraph (d) appears to endorse discrimination against lesbian, gay, bisexual and transgender Australians across large swathes of public life, including in community, health and welfare services, provided the organisation that does the discriminating was established by a religious body.

This is overly generous, and completely unjustified – especially, although not solely, because the vast majority of these services receive public funding. After all, the sexual orientation or gender identity of a social worker or healthcare professional has absolutely zero bearing on their competence in their role.

The same provision also means that these services can turn away lesbian, gay, bisexual and transgender clients – irrespective of their personal circumstances and need – which is perhaps even more offensive than discriminating against LGBT employees.

Just in case there was any doubt whether religious schools were covered by sub-section 37(1)(d)[vii], the Act then includes an entire section which allows these schools to discriminate against LGBT teachers[viii], contract workers[ix] and students[x].

It appears some religious schools believe the capacity of a person to teach mathematics or science or English is somehow affected by their sexual orientation or gender identity. And it seems that the teachers employed by these schools are expected to impart the values of exclusion and intolerance to their students – what better way for young people to learn to discriminate against LGBT people, all endorsed by the Sex Discrimination Act.

There is however one area in which the Act refused to provide carte blanche to religious organisations to discriminate against LGBTI people, and that was through the inclusion of sub-section 37(2):

“Paragraph (1)(d) does not apply to an act or practice of a body established for religious purposes if:

(a) the act or practice is connected with the provision, by the body, of Commonwealth-funded aged care; and

(b) the act or practice is not connected with the employment of persons to provide that aged care.”[xi]

In other words, religious organisations that operate Commonwealth-funded aged care services cannot discriminate against lesbian, gay, bisexual or transgender people accessing those services (although they can continue to fire, or refuse to hire, LGBT employees).

This ‘carve-out’ was passed despite opposition from some sections of the then Tony Abbott-led Liberal-National Opposition, including Shadow Attorney-General George Brandis[xii], as well as some particularly vocal and extreme religious organisations, with the provisions taking effect on August 1st 2013.

In practice, there has been no controversy about the operation of this carve-out[xiii] – basically, it works to protect LGBT people accessing aged care services, irrespective of who operate those services, while having no adverse impact on religious freedom.

It is now time that this approach – limiting the ability of religious organisations to discriminate against LGBT people in one area of public life – was expanded to protect LGBT employees in those same aged care services, as well protecting employees and clients across education, community, health and welfare services[xiv].

After all, the worthy objects of the Sex Discrimination Act 1984, including “to eliminate, so far as is possible, discrimination against persons on the ground of sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy or breastfeeding in the areas of work, accommodation, education, the provision of goods, facilities and services, the disposal of land, the activities of clubs and the administration of Commonwealth laws and programs”[xv] cannot be met if, in the same text it allows LGBT Australians to be discriminated against by a large number of organisations, and across a wide range of services.

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Anti-Vilification Coverage

This section will be the shortest of this post because, well, there isn’t any – the Sex Discrimination Act 1984 contains no coverage against vilification for lesbian, gay, bisexual, transgender and intersex Australians.

This stands in marked contrast to the situation for vilification based on race, which is prohibited by section 18C of the Racial Discrimination Act 1975 – a section that has operated effectively for more than two decades (just ask Andrew Bolt), and which has withstood multiple recent attempts at its severe curtailment.

Given homophobic, biphobic, transphobic and intersexphobic vilification are just as serious, and just as detrimental, as racial vilification, there is no reason why LGBTI Australians should not have equivalent protections under the Sex Discrimination Act 1984[xvi].

This would also bring the Commonwealth into line with the four Australian jurisdictions[xvii] that already prohibit vilification against at least some parts of the LGBTI community.

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Other Issues

There are several other areas in which the Sex Discrimination Act 1984 does not currently provide adequate protections for the LGBTI community, including:

The failure to create an LGBTI Commissioner

Part V of the Act creates the position of Sex Discrimination Commissioner within the Australian Human Rights Commission (AHRC). Other areas of discrimination also benefit from the appointment of stand-alone full-time Commissioners, whose primary purpose is to combat such discrimination (including the Race, Age and Disability Commissioners).

However, no equivalent position, addressing LGBTI discrimination, was created with the passage of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013.

This serious oversight meant that, for most of the last term of Parliament, LGBTI issues were handled on a part-time basis by the then ‘Freedom Commissioner’ (and now Liberal MP), Tim Wilson, whose primary role was to ‘defend’ traditional rights. Whenever those two areas of human rights were deemed to come into conflict, LGBTI issues seemed to come off second-best[xviii].

If LGBTI discrimination is to be treated seriously by the Commonwealth Government, it must provide the same level of resources to address it within the AHRC – and that means introducing an LGBTI Commissioner as a matter of priority.

Superannuation protections exclude transgender and intersex people

Section 14 of the Act prohibits discrimination in employment, with sub-section 14(4) focusing on superannuation. However, while it prohibits discrimination on the basis of sexual orientation, it excludes gender identity and intersex status from the list of relevant attributes[xix], apparently leaving transgender and intersex people without protection in this area.

Partnerships of five or less people can discriminate against LGBTI people

Section 17 of the Sex Discrimination Act 1984 prohibits discrimination in relation to ‘partnerships’, including who is invited to become a partner and the terms and conditions on which they are invited. However, these protections only apply to situations where there are six or more partners, meaning that LGBTI are not protected where there are five or less partners[xx].

Voluntary bodies have no restriction on their ability to discriminate

Section 39 of the Act provides a very broad ‘right’ for voluntary bodies to discriminate on a wide range of protected attributes, including sexual orientation, gender identity and intersex status, including in determining who may be admitted as members, and the benefits that members receive. While acknowledging the importance of the ‘freedom to associate’, it seems strange that there is no requirement that the discrimination be related to the purpose of the voluntary body, but is instead essentially unrestricted.

Discrimination by marriage celebrants

As part of the recent passage of LGBTI marriage by Commonwealth Parliament, the Sex Discrimination Act was amended so that, in addition to the existing ability of ministers of religion and military chaplains to decline to perform wedding ceremonies, the new category of ‘religious marriage celebrants’ will also be free to discriminate against LGBTI couples seeking to marry[xxi]. This is despite the fact this includes existing civil celebrants who have nominated to so discriminate based on nothing more than their personal religious beliefs.

Protections in sport exclude transgender and intersex people aged 12 and over

Section 42 of the Sex Discrimination Act 1984 limits the coverage of anti-discrimination protection in relation to sport, in particular by allowing discrimination against transgender and intersex people in “any competitive sporting activity in which the strength, stamina or physique of competitors is relevant” where the participants are aged 12 or over. As with the voluntary bodies provision, this exception appears unnecessarily broad.

Requesting information that does not allow options other than male or female is not prohibited

Finally, section 43A provides that “[t]he making of a request for information is not unlawful… merely because the request does not allow for a person to identify as being neither male nor female” and that “[n]othing… makes it unlawful to make or keep records in a way that does not provide for a person to be identified as being neither male nor female.” If we are to truly recognise diversity in sex and gender, it should be reflected in requests for information.

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Summary

Based on the above discussion, the LGBTI anti-discrimination protections that were introduced via the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 can be described as a good start (albeit one that was long overdue).

That it includes all sections of the LGBTI community is obviously welcome, and the ‘carve-out’ of aged care service provision from religious exceptions is important in and of itself, as well as demonstrating that those same kind of exceptions are both unnecessary and unjustified.

On the other hand, the fact the Act permits discrimination by religious aged care services against LGBT employees, as well as religious organisations providing education, community, health and welfare services – against employees and clients – is its biggest downfall.

Other major problems include the complete absence of anti-vilification coverage for the LGBTI community (unlike section 18C of the Racial Discrimination Act 1975), and the failure to create an LGBTI Commissioner within the Australian Human Rights Commission.

All of which means there is plenty of work left to do until the Sex Discrimination Act 1984 provides a comprehensive and effective anti-discrimination, and anti-vilification, framework for lesbian, gay, bisexual, transgender and intersex Australians.

Christian Porter

Commonwealth Attorney-General Christian Porter should spend a little more time fixing the serious problems of the Sex Discrimination Act 1984, and a little less trying to undermine it through his proposed Religious Discrimination Bill.

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Footnotes:

[i] See LGBTI Anti-Discrimination

[ii] See the Federal Register of Legislation

[iii] Discrimination on the ground of sexual orientation is prohibited by section 5A, with sexual orientation defined by the Act in section 4 as “sexual orientation means a person’s orientation towards:

(a) persons of the same sex; or

(b) persons of a different sex; or

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

[iv] Discrimination on the ground of gender identity is prohibited by section 5B, with gender identity defined by the Act in section 4 as “gender identity means the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth.”

[v] Discrimination on the ground of intersex status is prohibited by section 5C, with intersex status defined by the Act in section 4 as “intersex status means the status of having physical, hormonal or genetic features that are:

(a) neither wholly female nor wholly male; or

(b) a combination of female and male; or

(c) neither female nor male.”

[vi] Prima facie, it also appears to allow discrimination against intersex people, although the lengthy consultation process that preceded the legislation’s passage demonstrated that religious organisations did not propose to use this exception for that purpose. The Explanatory Memorandum for the Act also indicates these exceptions should not be used with respect to this protected attribute.

[vii] There isn’t really any doubt – sub-section 37(1)(d) clearly applies to religious schools, which means that, just like the NSW Anti-Discrimination Act 1977, religious schools can actually choose from between two different exceptions to defend their discrimination against LGBT teachers and students.

[viii] Section 38 Educational institutions established for religious purpose

(1) Nothing in paragraph 14(1)(a) or (b) or 14(2)(c) renders it unlawful for a person to discriminate against another person on the ground of the other person’s sex, sexual orientation, gender identity, marital or relationship status or pregnancy in connection with employment as a member of the staff of an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the first-mentioned person so discriminates in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.

[ix] Section 38(2) Nothing in paragraph 16(b) renders it unlawful for a person to discriminate against another person on the ground of the other person’s sex, sexual orientation, gender identity, martial or relationship status or pregnancy in connection with a position as a contract worker that involves the doing of work in an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the first-mentioned person so discriminates in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.

[x] Section 38(3) Nothing in section 21 renders it unlawful for a person to discriminate against another person on the ground of the other person’s sexual orientation, gender identity, marital or relationship status or pregnancy in connection with the provision of education or training by an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the first-mentioned person so discriminates in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.

[xi] This provision is reinforced by sub-section 23(3A) which states that religious organisations cannot discriminate against LGBT residents of Commonwealth-funded aged care facilities in terms of accommodation: “Paragraph 3(b) does not apply to accommodation provided by a religious body in connection with the provision, by the body of Commonwealth-funded aged care.”

[xii]See #QandA, Senator Brandis and LGBTI anti-discrimination reforms

[xiii] Given the wide range of scare campaigns run by the Australian Christian Lobby, and others, over recent years (calling for the abolition of the Safe Schools program, and their unsuccessful opposition to marriage equality) there is no doubt if there had been any practical problems with the aged care provisions they would have been splashed across the front page of The Australian by now.

[xiv] This would involve repealing sub-section 37(1)(d) entirely, as well as restricting related provisions (such as sub-section 23(3)(b) that allows religious bodies to discriminate in the provision of accommodation) so that they only apply with respect to the appointment and training of ministers of religion, and the holding of religious ceremonies.

[xv] Sub-section 3(b).

[xvi] For more on this issue – the contrast between section 18C of the RDA, and the lack of LGBTI anti-vilification protections federally – see Don’t Limit Racial Vilification Protections, Introduce Vilification Protections for LGBTI Australians Instead

[xvii] Queensland, NSW, the ACT and Tasmania.

[xviii] For more on this issue, see Why we need a full-time LGBTI Commissioner at the Australian Human Rights Commission

[xix] (4) Where a person exercises a discretion in relation to the payment of a superannuation benefit to or in respect of a member of a superannuation fund, it is unlawful for the person to discriminate, in the exercise of the discretion, against the member or another person on the ground, in either case, of the sex, sexual orientation or marital or relationship status of the member or that other person.

[xx] The same situation applies with respect to sex, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities.

[xxi Section 40 includes the following:

“(2A)  A minister of religion (as defined in subsection 5(1) of the Marriage Act 1961) may refuse to solemnise a marriage despite anything in Division 1 or 2, as applying by reference to section 5A, 5B, 5C or 6, if any of the circumstances mentioned in paragraph 47(3)(a), (b) or (c) of the Marriage Act 1961 apply.

(2AA)  A religious marriage celebrant (as defined in subsection 5(1) of the Marriage Act 1961) may refuse to solemnise a marriage despite anything in Division 1 or 2, as applying by reference to section 5A, 5B, 5C or 6, if:

(a)  the identification of the person as a religious marriage celebrant on the register of marriage celebrants has not been removed at the time the marriage is solemnised; and

(b)  the circumstances mentioned in subsection 47A(1) of the Marriage Act 1961apply.

(2AB)  A chaplain in the Defence Force may refuse to solemnise a marriage despite anything in Division 1 or 2, as applying by reference to section 5A, 5B, 5C or 6, if any of the circumstances mentioned in paragraph 81(2)(a), (b) or (c) of the Marriage Act 1961apply.

Note: Paragraph 37(1)(d) also provides that nothing in Division 1 or 2 affects any act or practice of a body established for religious purposes that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion.”

Sex Discrimination Amendment (LGBTI) Bill Senate Inquiry Submission

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Another week, another submission, this time to the Senate Legal & Constitutional Affairs Committee Inquiry into the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013.

Now that the Government has ‘deferred’ the Human Rights and Anti-Discrimination Bill/consolidation reforms, this Bill is the vehicle it has chosen to progress federal anti-discrimination protections for the lesbian, gay, bisexual, transgendernand intersex (LGBTI) community.

It is by no means a perfect Bill – at the very least it should incorporate the Government’s own policy of removing religious exceptions for people accessing aged care services. At best, it should remove all religious exceptions outside of the appointment of ministers of religion and religious ceremonies.

Nevertheless, this Bill, if passed, would be a significant step forward in terms of LGBTI law reform. If you have a chance to write your own submission before this Friday (26 April), I strongly encourage you to do so. Details here: http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=legcon_ctte/sex_discrim_sexual_orientation/info.htm

NB I have also not included the appendix to this submission, because it is simply the discussion about religious exceptions from my submission on the HRAD Bill last year.

Senate Legal and Constitutional Affairs Committee

Inquiry into Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013

Submission by Alastair Lawrie

I am writing this submission to make three main recommendations:

i)                    That the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013, which introduces federal anti-discrimination protections for lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians for the first time, should be supported.

ii)                   That the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 should be passed as a matter of priority by the Commonwealth Parliament; and

iii)                 That the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 should be amended to remove all religious exceptions which would otherwise allow discrimination against LGBTI Australians, outside of appointments of religious office-holders (such as priests) and religious ceremonies.

I was born in 1978. That is three years after the passage of the Racial Discrimination Act 1975. In the year I turned 6, the Commonwealth Parliament supported the Sex Discrimination Act 1984. The Disability Discrimination Act was passed in 1992, about three years before I first came out as gay at age 17. Even the most recent stand-alone Commonwealth anti-discrimination law, the Age Discrimination Act 2002, has already been in operation for more than a decade.

In 2013, I am 34 years old, and I have still never enjoyed the protection of federal anti-discrimination laws on the basis of my sexual orientation. Discrimination on the basis of race has been prohibited for my entire life, and on the basis of sex for almost as long. But up until now, successive Governments have not seen fit to legislate to prohibit discrimination on the basis of sexual orientation, gender identity and intersex status.

Which means that the reforms contained in the Labor Government’s Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 are both incredibly welcome, and long overdue. Lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians deserve the right to be employed, to access services, indeed to simply go about their everyday lives, without the threat of being discriminated against on these grounds.

If and when this Bill is eventually passed, it will be another key milestone on the long journey towards full equality for our LGBTI citizens. Which is why my first recommendation is that this legislation should be supported.

My second recommendation is that the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 should be passed by the Commonwealth Parliament as a matter of priority.

There are now only five Parliamentary sitting weeks left before the end of this term, ahead of the federal election which is currently expected to be held on September 14th. Having waited so long – decades, in fact – it would be a devastating blow to the LGBTI community were this legislation to be delayed yet again because the current Parliament simply ran out of time.

The future is always unknowable: it may be that, should these reforms not be passed now, a new Parliament or even Government introduces similar legislation later this year, or early next year. That would obviously be a welcome development. But it may also be that, after the upcoming election, LGBTI anti-discrimination reforms are delayed for several more years.

The current Bill fulfils the general objective of signalling that discrimination on the basis of sexual orientation, gender identity and intersex status is no longer tolerated, by society and by the Parliament. It is already drafted, and (leaving aside the amendments suggested in my third recommendation) it is ready to go.

That is why all serving Parliamentarians, from all political parties and independents, should pass the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 as soon as possible.

My third and final recommendation is that the Bill should be amended to ensure that religious exceptions from LGBTI-anti-discrimination requirements are narrowly drafted, only covering religious appointments, such as priests, and religious ceremonies.

The justification for this position involves my personal experience. Like many, indeed probably most, LGBTI Australians I have been discriminated against in a wide variety of different situations. I have been abused on the street, and threatened with violence, simply for holding my boyfriend’s hand. I have received sub-standard treatment from different service-providers simply because of my sexual orientation, or at least because of their perceptions of me.

I have likely been discriminated against in terms of employment, because I have always been upfront about who I am, including through my job applications. But I will probably never know for sure, because discrimination like homophobia is insidious, and its victims can never know all of the different ways in which they are mistreated.

But by far the activity in which I have been discriminated against the most was the education I received during the five years that I attended a religious boarding school. There was, from memory, a school rule against homosexuality, I was bullied on the basis of my (perceived) sexual orientation and this was effectively condoned by the school which was aware of it but failed to take any action, the sex education that was provided completely ignored homosexuality (including omitting essential safe sex/HIV-prevention messages), and I had a pastor intimate that killing yourself because you were gay was not the worst possible outcome.

It distresses me to think that, if religious organisations are granted wide-ranging exceptions under anti-discrimination laws, they will lawfully be able to (mis)treat future students in this way.

No student should be subject to prejudice, from their schools as well as from other students, because of their sexual orientation, gender identity or intersex status. No teacher should have to fear for their job simply because of who they are, or who they are attracted to.

This principle extends far and wide across a range of different activities. Patients receiving hospital and other health or community services should not have to consider whether disclosing their identity will compromise the standard of care they receive. LGBTI doctors, nurses and other employees in the health and community sector should be able to be confident in talking about who they are without fearing possible repercussions.

This principle obviously also includes aged care services. And I welcome the Labor Government’s commitment that they will legislate to protect people accessing aged care services from discrimination on the basis of sexual orientation, gender identity and intersex status.

However, I question why these protections are not included in the current Bill – the drafting of such provisions is not overly complicated, and I would like to believe that no Parliamentarian could argue, or vote, against such a basic proposition.

I also question why such protections should not equally apply to the employees of aged care services. If we are going to have truly inclusive aged care services, then neither the service recipients nor the employees should be subject to discrimination simply because they are LGBTI.

But, for the reasons outlined above, I do not believe that even ‘carving out’ the aged care sector from the operation of religious exceptions goes far enough. There is no justification for allowing religious organisations to discriminate against service recipients or employees in any activity which is carried on in the public sphere. For further discussion of this, please see Appendix A, which I provided to the Senate Inquiry into the Exposure Draft of the Human Rights and Anti-Discrimination Bill 2012 in December last year on this very topic.

In conclusion, I would like to thank the Committee for the opportunity to comment on the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013. As I have indicated, I think this Bill could be significantly improved by limiting the operation of religious exceptions which undermine protections that would otherwise cover LGBTI Australians.

However, even if these exceptions are not removed by the current Bill, the fact that some LGBTI anti-discrimination protections will finally be enacted federally is sufficient justification to recommend both that the Commonwealth Parliament support the Bill, and that it be passed as a matter of priority. The Australian LGBTI community has waited long enough for these reforms. It’s time to just get it done.