[NB This article is the third in a series looking at the ‘unfinished business’ of LGBTI equality in Australia]
Five years ago today, Commonwealth Parliament passed the historic Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013.
Almost four decades after the Racial Discrimination Act 1975, and nearly three decades after the passage of the Sex Discrimination Act 1984, lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians finally received protection against discrimination under Commonwealth law.
While the SDA amendments were ground-breaking at the time, no piece of legislation is ever perfect. Five years into its operation, here are five areas in which I believe this Act can and should be improved.
- Update ‘intersex status’ to ‘sex characteristics’
With the passage of the 2013 amendments to the Sex Discrimination Act, Australia became one of the first jurisdictions in the world to explicitly protect people with intersex variations against discrimination.
This is because it added ‘intersex status’ as a stand-alone protected attribute, which was defined under section 4 as:
‘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.’
However, since then intersex advocates have expressed concerns about this wording, including that it may not adequately protect all intersex people (for example, potentially conflating or confusing issues of biology and identity).
For these reasons, in the landmark March 2017 Darlington Statement, OII Australia (now Intersex Human Rights Australia) and other intersex representatives ‘call[ed] for effective legislative protection from discrimination and harmful practices on grounds of sex characteristics’ [emphasis added].
Sex characteristics was then defined in the Yogyakarta Plus 10 Principles ‘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.’
Australia helped lead the world in including ‘intersex status’ in the Sex Discrimination Act. Five years later we should take action again by updating this attribute to refer to ‘sex characteristics’ instead.
- Protect LGBT students against discrimination
A positive feature of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 was the aged care ‘carve-out’ from the otherwise overly-generous (see below) exceptions provided to religious organisations.
Sub-section 37(2) of the amended Sex Discrimination Act provides that the general exception ‘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.’
In effect, religious-operated aged care facilities that receive public funding are not permitted to discriminate against LGBT people accessing those services (although unfortunately they can still discriminate against LGBT employees).
Five years since this clause was passed, and there is exactly zero evidence that it has had any negative impact on the supposed ‘religious freedom’ of these institutions – and plenty of evidence that it has helped to protect older lesbian, gay, bisexual and transgender people from unjustifiable discrimination.
Now, it is time to ensure that an equivalent provision is introduced to protect people at the other end of the age spectrum from similar mistreatment: younger LGBT people who are students at government-funded religious schools and colleges.
These students are just as vulnerable as older LGBT people accessing aged care services, and just as with the ‘carve-out’ in sub-section 37(2), there is no reason why taxpayer money should be used to discriminate against them on the basis of their sexual orientation or gender identity.
It is time to amend the Sex Discrimination Act to remove the special privilege enjoyed by publicly-funded religious educational institutions to discriminate against LGBT students. This could be achieved by adding a similar carve-out in sub-section 37(2), and repealing sub-section 38(3), which also allows discrimination by religious schools against LGBT students.
- Limit overly-generous general religious exceptions
While I believe the exceptions allowing discrimination against LGBT students deserve special attention, it is also important to reform the broader religious exceptions contained in the Sex Discrimination Act.
Sub-section 37(1) currently provides that none of the Act’s LGBT discrimination protections apply to:
(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.’
[Section 38 provides a similarly-worded exception in relation to education, with sub-section 38(1) allowing religious schools to discriminate against teachers and other employees, and sub-section 38(2) permitting discrimination against contract workers.]
These clauses, and especially s37(1)(d), provide religious organisations with carte blanche to discriminate against LGBT Australians on the basis of their sexual orientation or gender identity. Such discrimination often has very little to do with sincerely-held religious beliefs, but is instead simply homophobia, biphobia or transphobia dressed up in a cloak of religious-sounding language.
I believe this discrimination has no place in 21st century Australia – and suspect most ordinary Australians agree.
Fortunately, one Australian jurisdiction provides a much better precedent in this area, with legislation that still protects genuine religious freedom without endorsing broader anti-LGBT discrimination.
The Tasmanian Anti-Discrimination Act 1998 allows discrimination in certain circumstances in employment (section 51), admission as a student (section 51A) and participation in a religious observance (section 52), but only on the basis of religious belief or affiliation, and not because of sexual orientation or gender identity (or sex, pregnancy, relationship status or other attributes).
The Commonwealth Sex Discrimination Act should be amended to adopt the much-preferable Tasmanian approach to religious exceptions, thereby dramatically narrowing the special privileges allowing them to engage in discrimination that would otherwise be unlawful.
- Introduce protections against anti-LGBTI vilification
Currently, only four Australian jurisdictions have anti-vilification laws which protect members of the lesbian, gay, bisexual, transgender and intersex community: NSW, Queensland, Tasmania and the ACT. Of those, Queensland doesn’t cover intersex people, while NSW includes LGBTI people in the new criminal offence of ‘publicly threatening or inciting violence’ but only lesbians, gay men and trans people with binary gender identities can make civil complaints of vilification under the Anti-Discrimination Act 1977.
There are still no protections against anti-LGBTI vilification in Victoria, Western Australia, South Australia or the Northern Territory. And there is no LGBTI equivalent of section 18C of the Racial Discrimination Act 1975 under Commonwealth law either.
This is a situation that must change. Because homophobic, biphobic, transphobic and intersexphobic vilification is just as serious, and just as damaging, as racial vilification.
This was unequivocally demonstrated, and witnessed by the entire country, during last year’s same-sex marriage postal survey, with anti-LGBTI (and especially anti-trans) rhetoric in mainstream media and across society more generally. And while there were temporary, narrowly-defined prohibitions on vilification for the duration of that campaign (which have now expired), the hate-speech against our community that it stirred up continues unabated.
For all of these reasons, I believe it is beyond time for the Sex Discrimination Act to be amended to prohibit vilification on the basis of sexual orientation, gender identity and sex characteristics.
- Create an LGBTI Commissioner
From the Australian Human Rights Commission (AHRC) website:
‘The Commission has a President and seven Commissioners:
- President Emeritus Professor Rosalind Croucher AM
- Aboriginal and Torres Strait Islander Social Justice Commissioner Ms June Oscar AO
- Age Discrimination Commissioner The Hon Dr Kay Patterson AO
- Children’s Commissioner Ms Megan Mitchell
- Disability Discrimination Commissioner Mr Alastair McEwin
- Human Rights Commissioner Mr Edward Santow
- Race Discrimination Commissioner Mr Chin Tan
- Sex Discrimination Commissioner Ms Kate Jenkins.’
Notice who’s missing? Of the major groups protected against discrimination under legislation administered by the AHRC, only one does not have a stand-alone Commissioner of their own: the LGBTI community.
Responsibility for LGBTI issues has instead been allocated to the Human Rights Commissioner (both the current office-holder, and his predecessor, Tim Wilson) but it is merely one of a number of different, often competing priorities of their role – sometimes directly so, given their simultaneous responsibility for promoting religious freedom.
It is inevitable that, under this organisational structure, LGBTI issues will not be given the same level of attention as those of race, sex, disability and age. The best way to change this is to amend the Sex Discrimination Act to create a full-time Commissioner dedicated to addressing anti-LGBTI discrimination.
The passage of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 was an important achievement in the long struggle for LGBTI equality in Australia, in my opinion just as significant as the recognition of same-sex de facto relationships in 2008, and the long overdue legalisation of same-sex marriage late last year.
But, just five years old, these historic reforms are already showing their inherent limitations. It’s time for Commonwealth parliament to take action to ensure that the Sex Discrimination Act is effective in addressing anti-LGBTI discrimination and vilification. The five reforms suggested above would be a good place to start.