Submission re Current and emerging threats to trans and gender diverse human rights
Thank you for the opportunity to provide this submission to this important inquiry.
I do so as long-term advocate for the rights of the lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) community in Australia, including as a volunteer for a number of LGBTIQ community organisations, and through my personal website www.alastairlawrie.net
While I am a cisgender gay man, I have consistently attempted to serve as an active ally for trans and gender diverse (TGD) people. This has included writing about:
Anti-discrimination and vilification laws, at Commonwealth and state and territory level, including how they protect (or in many cases fail to protect) TGD people
Birth certificate laws across Australian states and territories, and
The need for public funding, through Medicare, for gender-affirming health care.
These are the three main topics I will focus on in this submission.
Anti-discrimination and vilification laws
Australia’s anti-discrimination and vilification laws fail to adequately protect TGD people in a number of key areas, including:
Protected attributes for discrimination
While the Sex Discrimination Act 1984 (Cth) and most state and territory anti-discrimination frameworks clearly cover all sections of the TGD community against discrimination, in two jurisdictions they fall short of even this minimum standard.
NSW’s Anti-Discrimination Act 1977 only covers transgender people with binary gender identities (because of the outdated references to ‘identifying as a member of the opposite [sic] sex’ in the interpretive provision in section 38A, leaving non-binary and gender fluid people without legal protection.
While Western Australia’s Equal Opportunity Act 1984 is even narrower, only prohibiting discrimination against ‘a gender reassigned person on gender history grounds’ (section 35AB). Because of associated definitions in section 4 and section 35AA, this effectively restricts protection to transgender people with binary gender identities who have had a gender recognition certificate issued in WA (or equivalent legal recognition elsewhere).
Both the NSW Anti-Discrimination Act and WA Equal Opportunity Act must be reformed to ensure all TGD people enjoy the human right to non-discrimination.
Vilification protections
There are even larger gaps when it comes to legal prohibitions on anti-trans vilification. While Tasmania, the ACT, Northern Territory and Queensland all prohibit vilification against all TGD people, there are currently no protections against transphobic vilification under the Commonwealth Sex Discrimination Act, nor under the laws of Victoria or Western Australia (despite both State Governments having committed to doing so over several years), or South Australia.
The situation in NSW is more complex, with only transgender people with binary gender identities covered in relation to civil vilification under the Anti-Discrimination Act, while all TGD are protected by the ‘threatening or inciting violence’ offence in s93Z of the Crimes Act 1900 (NSW) (because the latter adopts the more modern terminology of ‘gender identity’).
The lack of clear, nation-wide prohibitions on anti-trans vilification is even more problematic given the rise in hate speech against TGD people, especially over 2023 and early 2024, including (but sadly not limited to) the anti-trans rally on the steps of Victorian State Parliament in March 2023 to which neo-Nazis turned up shouting at trans counter-protestors with a banner saying ‘destroy paedo freaks’.
The State Governments of Victoria, WA, SA and NSW, and especially the Commonwealth Government, must take urgent action to address this worsening national crisis.
Religious exceptions permitting discrimination against TGD people
One of the major weaknesses of anti-discrimination laws relating to LGBTQ+ Australians, including TGD people, are exceptions allowing religious organisations to engage in conduct that would otherwise be unlawful.
Over the past decade, this issue has received particular attention in relation to religious schools.
In 2024, it remains lawful for a publicly-funded religious educational institution to discriminate against TGD students under the Commonwealth Sex Discrimination Act, as well as in NSW, Western Australia and, most likely, South Australia too.
Indeed, the exceptions in NSW are so broad they apply to all ‘private educational authorities’, and there is no test that these institutions are required to satisfy before being able to mistreat TGD students – the exceptions are ‘blanket’ exclusions from the Act’s operations.
These exceptions deny the fundamental human right to education. All students should enjoy the ability to learn and to grow, free from the fear of discrimination because of who they are. That must include TGD students.
The situation for TGD teachers is even worse. Once again, they are legally permitted to be discriminated against under Commonwealth law, as well as in NSW, Western Australia, and South Australia (although schools must publish their discriminatory policies).
In Queensland a ‘Don’t Ask, Don’t Tell’ regime applies, although thankfully the Queensland Government has been consulting on legislation to remove these exceptions entirely.
Religious exceptions deny the fundamental human rights of TGD workers, including the right to non-discrimination. TGD teachers should be hired or not hired, fired or not fired, and otherwise treated in the workplace, according to their skills and experience, not their gender identity.
The Albanese Labor Government was elected in May 2022 with clear commitments to end the legally authorised mistreatment of TGD students and teachers.
However, despite referring this issue to the Australian Law Reform Commission for review in November 2022, and receiving the ALRC’s straight-forward recommendations for how LGBTQ+, including TGD, students and teachers should be protected in December 2023, the Government is now refusing to implement reforms without bipartisan agreement (an unnecessary prerequisite for legislation to pass, and an artificial barrier that will most likely result in ineffective protections – or no protections at all).
The Albanese Labor Government’s failure to act is not only a broken election promise. It is a denial of the rights of TGD Australians and will have long-term implications in poorer life outcomes for TGD people.
While the exceptions which apply in relation to religious schools have received the most scrutiny to date, the special privileges that allow other publicly-funded religious organisations to discriminate, across health, disability, aged care (noting that amendments to the Sex Discrimination Act in 2013 protected LGBTQ+ people accessing aged care services but not the workers of those same faith-based providers), housing and other essential community services must also be removed.
Finally, I note many anti-discrimination laws include other exceptions, including in relation to the participation of TGD people in sport, but defer to the views of TGD organisations on these provisions.
TGD birth certificate laws
Having access to identity documents that accurately reflect who you are is a fundamental human right, but one that is currently denied to far too many TGD people in Australia.
This is especially so in NSW which, as a consequence of provisions of the Births, Deaths and Marriages Registration Act 1995, remains the only jurisdiction in Australia that still requires transgender people to have genital surgery in order to update their birth certificate to reflect their gender identity.
This is surgery many TGD do not wish to undertake – including because it is not necessary for them to live their daily lives according to their gender identity. For many who do wish to access gender-affirming surgery, they simply cannot afford the prohibitive costs (which will be addressed in more detail in the third and final section of this submission, below).
Given that this genital surgery is also sterilising, imposing this barrier in order to legally update birth certificates can justifiably be seen as a denial of the right to reproductive freedom, including the human right to found a family.
Finally, the NSW approach is also deficient in that it currently only allows binary sex or gender markers (male or female), with no legislated option to record non-binary and other gender diverse identities.
Both of these issues – the unnecessary requirement for genital surgery, and the lack of options to record gender beyond male or female – would be resolved through passage of the Equality Legislation Amendment (LGBTIQA+) Bill 2023, introduced by Alex Greenwich MP and currently being considered by a NSW Parliamentary Inquiry (although the NSW Government has still yet to indicate their position on this long overdue reform).
Unfortunately, the approach in Western Australia is only slightly better, and that is primarily because of the intervention of the High Court, rather than the provisions of Gender Reassignment Act 2000 (WA) itself.
Thanks to the decision in AB v Western Australia; AH v Western Australia [2011] HCA 42, genital surgery is no longer required in Western Australia.
However, some form of physical medical intervention, such as top hormone treatment or top surgery, is still deemed necessary, and once again, there are no legislated options to record gender beyond male or female.
Disappointingly, while the WA Government has committed to replace with Gender Reassignment Act 2000 with more contemporary legislation, including allowing options beyond male and female, and abolishing the Gender Reassignment Board, they have not chosen to adopt best practice frameworks, such as those that exist in Tasmania and, following recent amendments, the ACT.
Instead, the WA Government’s announcements have indicated they will be following the flawed approach of South Australia and the Northern Territory, both of which still require a TGD person to obtain approval from a medical professional, such as a psychologist or counsellor, before a new birth certificate can be issued.
This is unnecessary and inappropriate ‘medical gate-keeping’ of the legal rights of TGD people, including their right to have identity documents matching their lived reality.
It also perpetuates the incorrect assumption that being transgender or gender diverse is a form of mental illness, rather than simply part of the beautiful diversity of being human.
Requiring ‘sign-off’ from psychologists or counsellors places additional financial hurdles in the way of TGD people who simply want identity documents that actually reflect their identity.
Above all, identity documents are exactly that, intended to record a person’s identity – and TGD people are TGD irrespective of whether a psychologist or counsellor supports them.
Instead, a full self-identification model should be adopted, along similar lines to the legislation in Tasmania and the ACT. I urge the Western Australian Government to reconsider their decision to introduce laws that fall well short of this standard.
And for the South Australian and Northern Territory Governments to reform their own laws to ensure TGD people in those jurisdictions enjoy straight-forward access to new birth certificates too.
Medicare funding for gender-affirming health care
While much is written about the need to reform the laws which apply to TGD people seeking accurate birth certificates, far less attention is often paid to a much broader, and arguably even more important, problem – that the cost of accessing gender-affirming health care is prohibitive, and out of reach for many TGD people in Australia.
These costs apply not just to various kinds of surgery (including ‘top’ and ‘bottom’ surgeries, as well as, for some TGD people, facial surgeries), but also to other health services, including hormone treatments.
These expenses can mean the difference between being able to affirm one’s gender identity or not – but are so high that they can effectively push some trans people into poverty. While for others, they are completely unaffordable.
For example, in March 2018, the ABC reported that: ‘There’s a massive price tag on being transgender in Australia. For some, the cost of surgery and treatment for gender dysphoria will crack $100,000’ [noting there has been significant inflation in health care in the six years since then, meaning contemporary figures may be even higher].
LGBTIQ policy expert Liam Elphick noted in The Conversation in March 2019 that: ‘Medicare and private health insurance do not cover many treatments that transgender and gender-diverse people may require to transition, such as surgical changes, because these are deemed “cosmetic”.’
However, gender-affirming health care is not cosmetic, but essential.
ACON’s 2019 ‘A blueprint for improving the health and wellbeing of the trans& gender diverse community in NSW’ raised the issue of TGD out-of-pocket medical costs, noting on page 20 that:
‘For medical services to be covered by the public health system in Australia, they must be medically necessary, clinically effective and cost effective. For many trans and gender diverse people, the ability to alter their body is part of affirming their gender and can be an important treatment if they are experiencing distress or unease from being misgendered and/or feeling incongruence between their gender identity and their body.’
‘Research has demonstrated that access to gender-affirming care has led to reduced mental health risks and improved quality of life for trans and gender diverse people.’
These factors – better mental health and quality of life outcomes – are obviously important reasons why trans out-of-pocket medical costs must be reduced. Or better still, eliminated entirely.
There is an even more fundamental argument: TGD people have a human right to live their affirmed gender identity, and that right is just as important as health, education and housing.
Sadly, as with anti-discrimination and vilification laws, and access to birth certificates reflecting their identity, the rights of TGD Australians are being denied in this area too.
As a consequence, for some TGD people, whether they are able to afford gender-affirming health care turns on whether they are able to run a successful ‘gofundme’ campaign (or other fundraising initiative).
Access to essential health care should never be determined in this lottery-like manner.
Instead, it’s time for the Commonwealth Government to ‘go fund them’, by ensuring all forms of gender-affirming health care are fully covered by Medicare, so that all TGD people who want to undertake surgery, and receive other services, are able, irrespective of their individual financial circumstances.
Thank you in advance for your consideration of the issues raised in this submission. Please do not hesitate to contact me, at the details provided, should you require further information.
Sincerely
Alastair Lawrie
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Today is the International Day Against LGBTIQA+ Discrimination.
May 17 marks the day in 1990 homosexuality was removed from the World Health Organisation Classification of Diseases, with IDAHOBIT now an annual event drawing attention to the denial of fundamental human rights of lesbian, gay, bisexual, transgender, intersex, queer and asexual people around the world, including Australia.
Ordinarily, I would use IDAHOBIT to optimistically highlight issues of anti-LGBTIQ discrimination that can and must be addressed by Commonwealth, State and Territory Governments.
But I must admit I’m running as low on optimism at the moment as I am energy. On IDAHOBIT 2024, I just feel tired.
I’m tired of leaders who promise to protect LGBTQ students in religious schools against discrimination, but then fail to follow through on their commitments.
In the past, this statement applied to former Prime Minister Scott Morrison, who promised to remove the exceptions in the Commonwealth Sex Discrimination Act1984 that allow religious schools to mistreat students because of their sexual orientation or gender identity in October 2018 – before spending the following three-and-a-half years running away from that commitment.
Now it applies to Prime Minister Anthony Albanese, who promised to protect both LGBTQ students and teachers ahead of the May 2022 federal election but, having received an Australian Law Reform Commission report outlining exactly how to do this, now refuses to introduce legislation to make this a reality without the support of Opposition Leader Peter Dutton.
Which is both an entirely unnecessary requirement – because the Parliamentary numbers exist to pass these reforms without the Liberal and National Parties – and will almost inevitably lead to an outcome which doesn’t actually end this anti-LGBTQ discrimination, either because the Coalition won’t agree to any changes, or any changes that are agreed simply allow this mistreatment to continue in other ways.
I’m tired of states that have allowed their own anti-discrimination laws to atrophy, through decades of neglect, such that they do not provide adequate protection against discrimination to the LGBTIQ community.
I am of course thinking of the successive governments in NSW who failed to update the Anti-Discrimination Act 1977, with the consequence that, in 2024, it still does not protect bisexual, non-binary or intersex people. Or LGBTQ students or teachers. And plenty of others too.
At least the current Minns Labor Government has referred this legislation to the NSW Law Reform Commission for comprehensive review. Although it would be even better if, in the interim, they supported the Equality Legislation Amendment (LGBTIQA+) Bill 2023, currently being considered by a parliamentary committee, which could address many of these shortcomings right now.
I’m even more thinking of the WA Labor Government who, despite promising to modernise the Equal Opportunity Act 1984 after their own Law Reform Commission inquiry process, have failed to use their parliamentary majorities in both houses to do anything about it, squandering what might be a once-in-a-lifetime opportunity to finally bring WA anti-discrimination laws into the 21st century.
I’m tired of the absence of action on birth certificates, particularly in NSW, which remains the only place in Australia that still requires trans and gender diverse people to undergo sterilising genital surgery in order to update their identity documents. And which does not provide legislative options to recognise sex or gender markers beyond male or female either.
Although, as with anti-discrimination reform, this could be solved quickly and easily through the rapid passage of the Equality Bill’s amendments to the Births, Deaths and Marriages Registration Act 1995.
I’m tired of the lack of Medicare funding for gender-affirming healthcare, too. While not all trans and gender diverse people seek access to such services, including but not limited to surgery, many do – but the significant out-of-pocket costs involved place them out-of-reach for far-too-many trans Australians.
These are vital, in many instances literally life-saving, healthcare services. They are the opposite of ‘elective’, and must be properly, publicly, funded, to ensure all trans and gender diverse people who want to can access them.
I’m tired of the glacial pace of change to protect children born with variations of sex characteristics (aka intersex kids) from non-consenting surgeries and other harmful medical interventions.
It’s been more than a decade since the Commonwealth Senate first investigated these gross violations of human rights – the worst violations against any part of the Australian LGBTIQ community – and yet only one jurisdiction has passed any kind of law to limit them (the ACT, which legislated reforms in 2023, although I understand Victoria is also moving, slowly, toward its own scheme).
Intersex people deserve to control what happens to their bodies.
I’m tired of right-wing, and far right, politicians at all levels using the LGBTIQ community as convenient punching bags for their own self-promotional purposes. The latest notorious example being Cumberland City Councillor Steve Christou, with his thankfully short-lived ban on books depicting same-sex parents from council libraries.
But, really, we could be talking about any number of people who use anti-LGBTIQ platforms to seek, or retain, public office, from Mark Latham to Katherine Deves, and Alex Antic to Claire Chandler.
I’m tired of the far right extremist threat against LGBTIQ people not being taken seriously by Government, and especially by the Commonwealth Government.
In the wake of the downright disturbing sight of neo-Nazis turning up to an anti-trans rally on the steps of Victorian Parliament in March 2023, the Albanese Government passed urgent legislation banning Nazi symbols, and salutes, but so far have still not introduced amendments to prohibit anti-LGBTIQ vilification under federal law.
Nor has there been clear Commonwealth condemnation of the wave of threats of violence and intimidation against Drag Story Times at community libraries around the country.
I’m tired of politicians who turn up to march with us in events like the Sydney Gay & Lesbian Mardi Gras parade, but don’t turn up to vote for us on the floors of our parliaments.
And who post short statements supporting LGBTIQ people on social media on days like today, but won’t say anything when it really matters, when our community is under attack.
I’m tired of some people in the LGBTIQ community who fought for the right to marry for themselves, but then turned away from the ongoing battles for the rights of others within our own community, including trans and gender diverse, and intersex, people.
And especially of fringe groups like the LGB Alliance who actively seek to deny human rights to trans and gender diverse people, employing the same arguments, and sometimes aligned with the same groups, that were used to deny their own.
And I’m tired of the amount of time, energy and emotional resources that we must consistently spend defending existing rights from baseless attack, simply stopping the situation from getting worse, rather than making progress on the many, many issues where change is still desperately needed.
I acknowledge that this list is at least partly the product of my own choice to be an advocate for LGBTIQ equality, both professionally and personally.
A choice that means, to some extent, nearly every day for me is a day standing up against LGBTIQ discrimination.
And so on this International Day Against LGBTIQA+ Discrimination I’m choosing to do something else.
I’m logging off, and spending the day with the man who I love, doing many of the simple but beautiful things we enjoy together.
In other words, we’re making sure on this IDAHOBIT we’re living the gayest, and most fabulous, lives possible.
The struggle for LGBTIQ equality will continue tomorrow. And many, many tomorrows after that.
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On April 16 2024, I was invited to give the keynote address to launch Issue 47(1) of the UNSW Law Journal.
I was asked to talk about the Issue’s theme – ‘Decoding Life, Freedoms and Governance’ – with reference to at least some of the Issue’s articles (which are open-source, and can be found here), as well as my background as a long-term LGBTIQ advocate and professional experience in public policy.
The following is what I came up with (the two sections in square brackets were omitted on the night to keep to time, but are included here for completeness). Thanks for reading, I hope you find it interesting.
‘Decoding Life, Freedoms and Governance’
Thank you for that generous introduction. And of course for the invitation to speak here tonight.
Thank you also for the broad theme of Issue 47(1) to address in my remarks – ‘Decoding Life, Freedoms and Governance’ – which took me several days to ‘decode’.
I must confess I don’t feel particularly qualified to talk in detail on the topic of ‘decoding life’ – which is something most people do in consultation with their therapist.
I do, however, have plenty to say on the twin, and intertwining, topics of ‘decoding freedoms’ and ‘decoding governance’, at least partly based on my lived experience.
That’s because, as a 45-year-old gay man, it has been impossible to avoid thinking about the meaning of freedom – of what I have been free to do, or not do, or protected from, or not, at different stages of my life. And what others, including religious organisations, have been legally free to do to me.
Or to deny the role of governance, and governments – state and federal – in determining the extent of those ‘freedoms’, far-too-often without consultation with or even consideration of those most affected by their decisions.
Indeed, some of the key events in my life overlap with milestones in the history of LGBTIQ rights in Australia.
I was born in July 1978, just weeks after NSW Police arrested 53 people for participating in the first Sydney Gay Mardi Gras parade – an indication of how unwelcoming both the law, and its enforcement, were for LGBTIQ people here.
Although I grew up in rural Joh Bjelke-Petersen-era Queensland, which was undoubtedly worse.
Queensland did not decriminalise male homosexuality between adults until January 1991 – but even then it introduced a differing age of consent for anal intercourse (18, compared to 16 for other sexual acts), a discrepancy that was not abolished until 2016, and with charges and convictions arising because of this inequality still not included in their historical homosexual conviction expungement scheme today.
January 1991 was also personally significant for a couple of reasons. Just one week after decriminalisation, I found myself travelling 800 kilometres from the family farm to a religious boarding school in Brisbane. Then, on my first day there, I found I was same-gender attracted too.
Audience members will be unsurprised to learn religious schools were lawfully permitted to discriminate against LGBTQ students (and teachers) in Queensland at that time. Loopholes my school took full advantage of over the following five years.
While I will spare you the details tonight, it would be an understatement to describe growing up gay at a religious boarding school which enjoyed special privileges to be prejudiced, as horrific. [You can read more about my experiences, here].
Fast forward to 2008, and to another coincidence. I was employed as a ministerial adviser to the Rudd Labor Government. At the same time as I met, and began my first de facto relationship with, the man who is still my partner today, I was provided internal on the details of Commonwealth same-gender de facto relationship recognition.
Some younger members of the crowd may not be aware this recognition did not exist before 1 July 2009.
Then, in January 2010, my partner Steve and I got engaged – meaning I would spend the remainder of my time working for a Government which did not support the legal equality of my own relationship.
Despite departing Canberra in mid-2012, I continued to advocate for the introduction of Commonwealth anti-discrimination protections for LGBTIQ people, something that was finally achieved in June 2013 – just 10 years ago, but almost four decades after race discrimination was prohibited federally, and more than three decades after homosexual discrimination protections were introduced in NSW (something we will return to later).
The subsequent four years were predictably dominated by the subject of marriage equality – not only campaigning for it to be passed, but also debating the manner of its passage, from conscience votes through to the push for the ALP to hold a binding vote.
And from successful LGBTIQ community efforts to stop the Turnbull Coalition Government’s plebiscite, to failed attempts to prevent their postal survey – in another coincidence, I started at the Public Interest Advocacy Centre just a couple of months before we helped one of the unsuccessful High Court challenges to block what may have technically been a statistical survey but was also an anti-democratic anomaly.
I note this challenge fell just prior to the relevant time period for the article ‘How does the High Court interpret the Constitution? A Qualitative Analysis between 2019-21’ – it would have been interesting to see how Tan, Paige, Hrambanis and Green characterised that Wilkie decision.
In any event, thank you for indulging me in sharing a little of my back-story. Which I think reinforces that to be a gay man – or any member of the LGBTIQ community – in the final two decades of the 20thcentury, and the first few of the 21st, is to have been engaged in a constant state of contestation of our legal rights.
Our lives have been made inherently political, with participation in the political process rendered essential – even if ‘the State’ has frequently been our oppressor, or at least acted on the oppressor’s side.
That background also helps to explain why I am an LGBTIQ advocate today.
Why I chose ‘sexuality-related anti-discrimination law in practice’ as the topic of my law honours paper at ANU.
Why I’ve spent much of the past two decades volunteering for a range of LGBTIQ community organisations, including both the Victorian, and NSW, Gay & Lesbian Rights Lobbies.
And why I have ended up at PIAC, where over the past seven years I have been fortunate enough to work not just on marriage equality, but also on advocacy against the Morrison Government’s Religious Discrimination Bills, which presented a grave threat to the rights of LGBTQ people (as well as women, people with disability and even people of minority faiths).
Above all, I’ve focused on efforts to secure anti-discrimination protections for LGBTQ students and teachers in religious schools, under both state and federal law. Which is obviously a full-circle moment given where I started!
I intend to use the remainder of this speech to talk about what LGBTIQ rights look like in NSW today, across four key issues: conversion practices; birth certificates; medical interventions on intersex children; and anti-discrimination protections.
Now, had I given this address a month ago, I would have been able to make the pithy observation that we live in the worst jurisdiction in Australia for LGBTIQ laws.
Instead, following passage of the Conversion Practices Ban Act in late March, we’ve moved all the way up to equal worst, with Western Australia (actually, that’s perhaps uncharitable – if we’re being generous, we might even be able to say we are now second-worst… just).
From an LGBTIQ advocate’s perspective, this legislation is both welcome and long overdue.
It will legally prohibit conversion practices, defined in section 3 as:
‘a practice, treatment or sustained effort that is (a) directed to an individual on the basis of the individual’s sexual orientation or gender identity, and (b) directed to changing or suppressing the individual’s sexual orientation or gender identity.’
This is needed because, as described in the opening article in issue 47(1) – Martin Clark and Brendan Gogarty’s excellent ‘Searching the Reins and Hearts: Conversion Practices Reforms in Australia’:
Quote
‘[S]cientific and clinical evidence has consistently shown that there is no evidence that conversion practices are ‘effective’ in their capacity to effect a change or suppression of sexual orientation or gender identity. There is also consistent evidence that conversion practices carry clear risks of harmful effects on those subjected to them, including physical and psychological harms, such as increased suicidality, self-harm, post-traumatic stress disorders, anxiety and depression, feelings of alienation, loneliness and exclusion, sexual dysfunction, substance abuse, internalised homophobia and feelings of failure, and reluctance to seek medical treatment.’
Endquote
Disappointingly to Clark and Gogarty, who argue against a carceral approach, the new Act implements both a criminal offence, and civil complaints scheme, for conversion practices.
Although I must respectfully disagree with them – given the seriousness of the harms they outline, I would suggest criminal penalties for the worst examples are appropriate.
Either way, the passage of this law is a testament to the advocacy of conversion practices survivors like Anthony Venn-Brown, Chris Csabs and Nathan Despott, over many decades.
But I would not be honouring their work without also highlighting their primary criticism of the law as passed – that, unlike the ‘best practice’ scheme in Victoria, the NSW law does not provide a formal mechanism for third-party complaints to Anti-Discrimination NSW.
As it stands, the only complaints that can be made are from survivors directly, or via representative complaints with the consent of each of those survivors.
This framework not only reinforces one of the limitations of anti-discrimination law more broadly – that the onus for seeking redress falls on the people who have been mistreated.
It ignores the particular characteristics of conversion practices, where the people undergoing them appear to do so ‘voluntarily’ (despite what, as Martin and Gogarty note, is the ‘impossibility of genuine consent’ in these circumstances), and are therefore unlikely to bring, or consent to, complaints until after they have extricated themselves from them. If they first survive them.
The lack of third-party complaints is a major gap in this scheme that must be rectified.
The Act also includes a range of ‘carve-outs’, providing that activities like ‘clinically appropriate’ healthcare, ‘stating what relevant religious teachings are or what a religion says about a specific topic’, and ‘parents discussing matters relating to sexual orientation, gender identity, sexual activity or religion with their children’, do not constitute conversion practices.
Despite this, a number of conservative religious organisations campaigned against the law in its totality, alleging it constituted an attack on ‘religious freedom’.
I must, perhaps a little less respectfully this time, disagree with them too. There is no philosophical justification for the right to inflict serious psychological harm, on children and young people, in the (misused) name of religious freedom.
Even in the case of adults – where there is at least a possible argument for the freedom to engage in practices which may result in self-harm – I would submit there is a clear justification for government regulation.
This is because of what Clark and Gogarty describe as the role played by ‘conversion ideology’ as a precursor to ‘conversion practices’:
Quote
‘Survivor-advocates have consistently contended that ‘conversion ideology’ – the worldview that it is possible and necessary for LGBTQA+ people to change their sexual orientation and gender identity, and that being LGBTQA+ is due to trauma, spiritual brokenness, and can be fixed by prayer – is central to defining and understanding conversion practices’,
because
‘the inculcation of these beliefs in congregants is important for smoothing the path for them taking part in actual conversion practices.’
Endquote
In other words, perpetrators of conversion practices first convince healthy people to believe their sexual orientation or gender identity is somehow ‘sick’ (when it is not), before offering a ‘cure’ that actually causes serious psychological harm.
The law should not protect the ‘freedom’ to engage in this abuse.
Before I conclude on this subject, I feel compelled to express my condemnation of the role played by the Liberal/National Coalition during parliamentary consideration of this law.
And especially of their vote in favour of minor-party amendments to remove ‘gender identity’ from any protection under the Conversion Practices Ban Act.
In other words, the NSW Opposition voted for the continued legality of ‘practices, treatments or sustained efforts’ to stop trans people, and especially trans young people, from being trans.
This was a shameful act, and one I would strongly urge them to reconsider in relation to future LGBTIQ law reform – including on the next topic we will turn to.
That is birth certificate legislation, and in particular, the regulation of access by trans and gender diverse people to identity documents reflecting who they are. Sadly, the NSW Births, Deaths and Marriages Registration Act 1995 is unequivocally the worst such law in the nation.
We are the only jurisdiction which still requires people to undergo genital surgery before being able to update their birth certificates – surgery many trans people do not wish to undertake, and of those that do, many cannot afford, because of a lack of Medicare funding.
While we are one of only two jurisdictions, alongside Western Australia, with no legislative options for sex or gender markers beyond male or female: non-binary people cannot access state-issued ID stating they are, in fact, non-binary.
These laws aren’t just an insult to the human dignity of trans and gender diverse people. The requirement for surgery, which causes sterilisation, is a denial of reproductive freedom and therefore the right to found a family.
While the inability of many trans and gender diverse people to access birth certificates reflecting who they are at all, means they are confronted by the possibility of ‘outing’ in the growing range of contemporary scenarios where ID is mandated.
Fortunately, the Equalities Legislation Amendment (LGBTIQA+) Bill 2023, introduced by the Independent Member for Sydney Alex Greenwich and currently being considered by a Parliamentary Inquiry, would address these problems, and at least bring NSW law up to the standard of Victoria and Queensland.
Although even then, and this is my personal rather than professional view, it would fall short of the ‘best practice’ approach of Tasmania, which is the only Australian state or territory to adopt a true ‘self-identification’ model for trans and gender diverse people.
Instead, the NSW law – like Victoria and Queensland – would still require a trans person, in addition to their own statutory declaration, to submit:
‘a support statement by an adult who has known the applicant for at least 12 months stating that (i) the adult believes the person is making the application in good faith, and (ii) the adult supports the person making the application…’
Given identity, including the characteristic of gender identity, is an inherently personal attribute, I do not agree the recognition of someone’s gender should be dependent on whether another person ‘supports’ it.
Looked at from another perspective, I do not concede that my sexual orientation, as a gay man, should only be acknowledged if I am able to produce a statutory declaration from another person saying they ‘support’ it.
I am who I say I am, a fact generally accepted by others. Trans and gender diverse people deserve to enjoy exactly the same respect.
Nevertheless, we (being PIAC), support the Equality Bill as a significant step forward along the long journey to LGBTIQ, and especially trans, equality. We urge both the NSW Government, and Opposition, to support it.
Turning to the third topic I flagged earlier, and in which NSW law is manifestly deficient: medical interventions on intersex children.
For audience members new to this subject, intersex people have innate sex characteristics that do not fit medical norms for female or male bodies. It is estimated somewhere up to 1.7% of children are born with these variations of sex characteristics.
Tragically, the medical system’s response to many intersex children is to perform so-called ‘normalising’ surgeries on them.
These interventions are frequently not clinically necessary for the child’s health, but instead performed for non-therapeutic or ‘psycho-social’ reasons, including to assuage the disappointment of parents who expected their child’s body to conform to societal norms, or to ‘assist’ the child to fulfil gendered stereotypes in the future.
For those curious about what that means in practice, I suggest reading the 2016 Family Court case of Re: Carla, which ruled that a family can consent to the sterilisation of their 5-year-old child without court approval, without clear medical necessity and at least partly motivated by gendered expectations, including attitudes to that young child’s potential future sexuality. It was then, and remains today, a genuinely heart-breaking decision.
These unnecessary surgeries are obviously done without the consent of the person affected by them, who should be free to agree, or not agree, to them when they have at least reached Gillick competency and understand what is involved.
In my view, medical interventions on intersex children, which are a fundamental denial of bodily autonomy, are one of the gravest human rights violations happening in Australia today – not just in relation to the LGBTIQ community, but across society.
There have been multiple public inquiries recommending these practices be ended, including the 2013 Senate ‘Inquiry into the involuntary or coerced sterilisation of intersex people in Australia’, and the Australian Human Rights Commission’s 2021 report ‘Ensuring health and bodily integrity: towards a human rights approach for people born with variations in sex characteristics.’
Sadly, however, only one Australian jurisdiction has so far passed legislation to prohibit these surgeries: the ACT. While I understand Victoria may be close to finalising its own laws.
In contrast, there is no NSW Government commitment to introducing equivalent laws here, nor was it included in Mr Greenwich’s Equality Bill.
This is a gross failure of governments, in NSW and elsewhere, to protect the rights of the most vulnerable.
It is unsurprising I had this issue front-of-mind while reading the article ‘Out-of-Home Care, Contact Orders and Infant Mental Health: Recognising a Unique Developmental Stage in Law, Policy and Practice’ by Rachel Gregory-Wilson, Elizabeth Handsley, Liesel Spencer and Toby Raeburn, including their observation that:
Quote
‘Infancy is, therefore, a special and critically important stage of human development, and infants as a class of persons require special recognition and safeguards, including under child protection law. Infants are not little children, just as children are not little adults; they need different and unique exposures in their environments to facilitate optimum physical growth and emotional development’.
Endquote
While they made this observation in a different context, I think it reasonable to apply these principles to intersex children, who deserve legislative safeguards for their bodily autonomy, and who should be allowed to grow and develop free from unnecessary medical interventions to try to change their bodies into what society expects them to be.
Let intersex kids be free from surgeries performed according to the wants of others, rather than their own needs – and only performed following their own timeframes, if they so consent.
[One final point before moving on – while the circumstances, and associated rights, of trans young people, and intersex children, are quite distinct, it is depressing to observe the intellectual inconsistency of those who oppose the rights of both.
For example, Liberal Senator Alex Antic’s Childhood Gender Transition Prohibition Bill 2023, currently before Commonwealth Parliament, seeks to ban access by trans and gender diverse young people to gender-affirming health care, even puberty blockers and even where they are Gillick competent.
While simultaneously providing a specific carve-out to allow non-consenting medical interventions to continue to be performed on intersex children.
According to Antic, there should be no gender-affirming health care for trans kids who want it and who are able to consent. But no protection for intersex kids from harmful surgeries that are not clinically necessary and where they are in no position to consent.
Trans and intersex kids lose either way].
Turning to the final topic of my speech – anti-discrimination coverage – once again NSW has the worst laws in the country. Nowhere is this more apparent than in the protections the Anti-Discrimination Act 1977 offers, or more accurately fails to offer, LGBTIQ people.
It wasn’t always this way. In fact, NSW was the first Australian jurisdiction to protect lesbians and gay men against discrimination, in late 1982. Incidentally, this was before the decriminalisation of homosexuality in mid-1984, meaning there was an 18-month period during which gay men were criminals but legally could not be denied housing.
But the lack of subsequent reform, especially over the past 28 years, has allowed this law to atrophy.
We are now the only place nation-wide which does not protect bisexual people against discrimination. And one of two, with Western Australia, that does not protect non-binary and intersex people.
The provisions allowing discrimination by religious schools are the broadest in Australia too.
Indeed, they are so broad they apply to all ‘private educational authorities’, not just religious schools. And they offer complete or ‘blanket’ privileges to discriminate – unlike all other jurisdictions, there is no test which NSW schools must satisfy before being permitted to discriminate. The Act simply does not apply to them.
These serious flaws are just some of the reasons PIAC has made comprehensive anti-discrimination law reform a priority, including through our August 2021 report ‘Leader to Laggard: The case for modernising the NSW Anti-Discrimination Act’.
We were obviously pleased NSW Labor listened to that report and made comprehensive review of the ADA an election commitment. And we have welcomed, participated in and will continue to participate in the current NSW Law Reform Commission inquiry into this broken and outdated law.
But, as people discovered at the start of the century – when the Law Reform Commission completed its last review of this legislation, with its report then gathering dust rather than being implemented – an inquiry is meaningless if nothing subsequently changes.
We will continue to advocate to the Minns Labor Government until we finally have an Anti-Discrimination Act fit for the 21st century, one offering genuine protection against discrimination for all communities, including LGBTIQ people.
Speaking of Law Reform Commission reports at risk of gathering dust, I cannot discuss anti-discrimination law reform tonight without also addressing the current situation federally.
[Before we get into those details, however, and on indulgence, I might take this opportunity to vent the frustrations of an advocate for protecting LGBTQ students in religious schools who regularly comes up against the intellectually disingenuous, and sometimes downright dishonest, arguments of those opposed to reform.
I speak of some conservative religious schools, and their representative bodies, who simultaneously claim that religious schools do not discriminate against lesbian, gay, bisexual and trans students – but that under no circumstances can their legal privileges to do so ever be repealed.
They can never satisfactorily answer why that should be the case.
Until you realise it is because these religious schools do in fact discriminate against queer kids – they just call it something else.
Which is how you end up with the anti-LGBTQ, and especially anti-trans, student enrolment contract, proposed by Citipointe Christian College in Brisbane in 2022.
Or the situation in late 2023, when a Sydney Catholic school rejected a female student’s request to bring their same-gender partner to their formal (with it later becoming apparent this was policy across that entire Catholic school network).
Indeed, Catholic schools seem to be experts in this special kind of hypocrisy – claiming not to discriminate, while doing exactly that – as can be seen in the 2023 Sydney Catholic Schools’ ‘Gender Dysphoria Policy’ – a 6-page guide that only ever refers to students with ‘gender dysphoria’, never once acknowledging some students are trans.
I would submit it is fundamentally discriminatory to refuse to acknowledge who a trans child is.
It is almost refreshing to witness the comparative honesty of an organisation like the Presbyterian Church of Australia, who have publicly stated gay students cannot hold leadership positions within their schools because they are unable to ‘model Christian living’.
Almost – until you remember they are unashamedly, and unrepentantly, saying they will actively mistreat young people solely because of an intrinsic attribute.
That is nothing more than bullying, pure and simple. There should be no place for it in places of learning.
Anyway, thanks again for your forbearance.]
As audience members are aware, this issue has been ongoing for several years – since late 2018, when both the then-Morrison Government, and then-Shorten Opposition, promised to protect LGBTQ students. With Labor going further in promising to protect LGBTQ teachers too.
Albanese took these commitments to the May 2022 election, with Attorney-General Mark Dreyfus referring the question of how they should be implemented to the Australian Law Reform Commission in November that year.
The ALRC handed its report to Dreyfus in December. They proposed straight-forward amendments, to the Sex Discrimination Act 1984, and Fair Work Act 2009, to reflect the following two principles:
That LGBTQ young people should enjoy the freedom to learn and to grow, without fear of discrimination on the basis of who they are, and
That LGBTQ teachers should be employed on the basis of their skills and experience, rather than their sexual orientation and gender identity.
We hoped the privileges for prejudice enjoyed by religious schools might finally end.
But, when the Government released the ALRC report in March, those hopes were immediately dashed – because Prime Minister Albanese indicated no legislation would even be introduced to Parliament without bipartisan support from the now-Dutton Opposition. Effectively abdicating responsibility for his own election promises to the parties he had defeated.
Remember, not only did the Coalition do nothing to implement Morrison’s 2018 promise to protect LGBTQ kids, they withdrew their own Religious Discrimination Bills from Senate consideration because of amendments to prohibit discrimination against trans students.
Just today, Shadow Attorney-General Michaelia Cash has written an opinion piece not just opposing reforms to the Sex Discrimination Act, but also backing calls by religious schools for ‘positive rights’ to discriminate under federal law, with the consequence of overriding protections for LGBTQ teachers, and even students, in states and territories that have progressive laws.
It was abundantly clear to observers when Mr Albanese announced his ‘bipartisanship’ push, and is undeniable now, there are only two possible outcomes:
There is no agreement, and therefore no protection for LGBTQ students and teachers
There is agreement – but any Bill supported by the Coalition will not offer genuine protection for LGBTQ students and teachers.
Either way, LGBTQ Australians lose again.
It is hard not to share the sentiments, if not the choice of language, of religious school discrimination survivor James Elliot-Watson, when he described the impasse thus:
Quote
‘MPs are paid in excess of $200,000 so everybody should do their fucking job.
And I think that’s especially true for the leader of the government and my Prime Minister.
The purpose of parliament is to enact laws that ensure the safety, integrity and protection of… Australian citizens and that’s what this is about.
It needs to protect vulnerable children from legal discrimination practices that religious institutions are allowed to engage by chang[ing] the law.
Let’s get it done.’
Endquote
If Albanese doesn’t ‘get it done’ this term, it will be no less a failure of governance, and governments, to realise the basic freedoms of LGBTIQ Australians as the failure to achieve marriage equality over many years.
Indeed, there are many similarities between these two issues.
Both were reforms supported by a large majority of the Australian community.
Both could be delivered with legislative ease, following well-established precedents (in the case of marriage equality, overseas examples; in anti-discrimination law, the successful operation of state and territory laws).
Both issues had politicians who claimed to support change, but were recalcitrant in delivering it.
Significantly, both marriage equality and anti-discrimination reform have seen Prime Ministers impose artificial barriers hindering change – in the former, an unnecessary plebiscite-cum-postal survey; in the latter, the unnecessary need for bipartisan support.
With the result that on both issues LGBTIQ Australians are made to wait far too long for positive change.
Which is the most important point. It is LGBTIQ Australians who suffer real-world harm because of political intransigence.
In marriage equality, we remember Peter ‘Bon’ Bonsall-Boone and Peter De Waal, who were together for 50 years, and, in the face of Bon’s declining health, desperately pleaded for Malcolm Turnbull to introduce marriage equality so they could finally wed.
Bon died 6 months before it was passed.
In relation to LGBTQ students, I think about the person whose story we will never get to hear – because the mistreatment they experience causes them to prematurely end their life.
I say that with confidence – because it was nearly my story.
The horrific discrimination I suffered at the hands of my religious boarding school, which I mentioned earlier, caused me to experience suicide ideation from the second term of year 8, through the final term of Year 12. And beyond.
I am, in many respects, very lucky to still be here.
But I am also full of resolve. Because that is no way for a child to learn, or to grow up.
And so I can state with equal confidence that I, and PIAC, will continue to advocate until no child has to endure the same.
As I come to the end of tonight’s speech, I’m tempted to apologise for the ‘heaviness’ of some of the subjects I’ve spoken about, including the personal impacts of anti-LGBTIQ prejudice.
It is an ‘occupational hazard’ of being an advocate, and especially one who focuses on policy and law reform, to be constantly critical, to highlight where the law is deficient, and the terrible outcomes of those shortcomings.
I do not intend to convey the impression there has been no positive law reform in my lifetime (or since that very first Mardi Gras) – not just on conversion practices, but also decriminalisation, de facto and rainbow family rights, and in many other areas.
Nor is the plight of LGBTQ people in religious schools intractable. I am reliably informed my own boarding school is now welcoming of same-gender attracted and gender diverse students, a product of anti-discrimination protections for students that have existed in Queensland for twenty years.
But I do mean to impart the understanding that the struggle for the full realisation of LGBTIQ human rights and freedoms in Australia is far from over, and that we will never reach that end-point without the concerted efforts of the community, both LGBTIQ and non-LGBTIQ alike.
I welcome those present tonight as fellow travellers on the long journey ahead.
Congratulations on Issue 47(1) of the UNSW Law Journal to Jessie Liu, your editorial team and to all of the authors published. It is truly impressive in its breadth, and depth, of scholarship.
And thank you for listening to my remarks.
[The video of this event has been published here. My speech begins at the 20-minute mark].
Photo credit: UNSW Law Journal
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Right now, the NSW Government is consulting the community about whether to introduce new commemorative birth certificates, with proposed themes including ‘AFL, Olympic and Astrology Zodiac’ (yes, seriously).
At the same time, trans and gender diverse people in NSW continue to endure the most regressive birth certificate laws of any state or territory in Australia, which require people seeking to update their identity documents to first undergo genital surgery – something many do not want, and even more cannot afford.
It is offensive that I might be able to access an astrology-themed birth certificate (Leo, don’t judge) before many of my trans and gender diverse friends can obtain identity documents that simply reflect who they are.
The Births, Deaths and Marriages Registration Act is far from the only NSW law that treats LGBTIQ people as second-class citizens. There are many ways in which LGBTIQ people in this state wake up each day confronted by their own ‘horror-scope’ of discrimination and mistreatment.
For LGBTQ students at religious schools: You could be suspended or expelled today simply because of who you are. [Or, as we saw last week, you could be denied the ability to bring your partner to the school formal because they are the ‘wrong’ gender.] But there’s nothing you or anyone else can do about it.
For LGBTQ teachers at religious schools: You could lose your job today, and it has nothing to do with your ability to perform your role.
For bisexual, non-binary and intersex people: You could be discriminated against or vilified as you go about your everyday activities, but don’t bother complaining to Anti-Discrimination NSW – the Anti-Discrimination Act doesn’t protect you.
For LGBTQ people seeking to access publicly-funded disability, health, homelessness, and other community services operated by religious organisations: Closed doors could be a constant in your day – because the services you need can turn you away just for being you.
And for vulnerable young LGBTQ people: Watch out for people or groups seeking to change or suppress your sexual orientation or gender identity – even though what they offer is psychological torture, it’s still totally legal here.
Despite being the home of the Sydney Gay & Lesbian Mardi Gras, and recent host of World Pride, it’s no exaggeration to describe the state of LGBTIQ laws in this state as abysmal. Indeed, none of the above scenarios have changed since before the Sydney Olympics, leaving us with the worst legislation in Australia.
NSW is the gold medal winner in anti-LGBTIQ bigotry. Although somehow I doubt we’ll be able to get that on any ‘Olympic’ themed commemorative certificate.
Right now, there are two Bills before NSW Parliament that would remedy this situation: strengthening protections against discrimination, finally providing trans and gender diverse people with access to identity documents that reflect their gender identity, and prohibiting sexual orientation and gender identity conversion practices.
They were drafted following consultation with the community, including trans and gender diverse people as well as survivors of conversion practices.
In many cases, they would simply drag NSW law up to minimum standards that have existed in other jurisdictions for years, or even decades (with LGBTQ students in religious schools protected against discrimination for upwards of twenty years in Tasmania, Queensland and the Northern Territory).
The NSW Government is currently considering whether to support them. It is imperative they do – and seize the opportunity to bring many of the state’s LGBTIQ laws into the 21st century.
Even if they do, however, the job of achieving full protection for the LGBTIQ community will not be over. Sadly, the Bills currently before Parliament do not follow the ACT’s precedent in addressing one of the most extreme human rights violations against any part of our community: the ongoing involuntary surgeries and other medical interventions performed on children born with variations of sex characteristics (intersex children).
Nevertheless, the reforms contained in Greenwich’s Bills are essential, and should be progressed.
So, as the Minns Labor Government decides whether to support the fundamental protections these Bills offer, they should read their own horoscope for today:
You have the chance to make a tangible difference in the lives of LGBTIQ people across NSW. And it’s much more important than introducing star sign-themed birth certificates.
Chris Minns (centre) marching in this year’s Sydney Gay & Lesbian Mardi Gras Parade.
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Well, it’s official. When Sydney World Pride kicks off in less than a fortnight, it will be held in the jurisdiction with the worst LGBTIQ laws in Australia.
This incontrovertible fact is not surprising to anybody who has been paying attention. But it is still shocking to observe all of the different forms of legal prejudice which still exist in NSW. And, as always, the most vulnerable members of our community are the ones left paying the price.
This includes all those let down by the worst anti-discrimination legislation in the country.
The NSW Anti-Discrimination Act 1977 is already the only anti-discrimination law which fails to protect bisexuals against discrimination.
With legislation currently before Queensland Parliament, and a recent promise by the Western Australian Government to implement WA Law Reform Commission recommendations there, NSW will also soon be the only place which fails to protect non-binary people.
And the only place with no explicit intersex protections either.
The Anti-Discrimination Act’s exceptions which allow ‘private educational authorities’ to lawfully discriminate against LGBTQ students and teachers remain the broadest in Australia too.
Once again, the WA Government’s promised response to their Law Reform Commission, and the current Australian Law Reform Commission inquiry into the Commonwealth Sex Discrimination Act 1984, mean it is highly likely, by the end of this year, NSW will retain the only anti-discrimination law which fails to protect LGBTQ young people.
When it comes to the LGBTIQ community, the NSW Anti-Discrimination Act permits more discrimination than it prohibits.
Trans and gender diverse people in NSW are also subjected to out-dated and overly restrictive birth certificate laws.
It is currently one of only two states that still require transgender people to have genital surgery in order to access identity documents which reflect their gender identity – but the other, Queensland, has a Bill before Parliament to remove this unnecessary barrier.
A third jurisdiction, Western Australia, also requires physical treatment of some kind (such as hormone therapy) although the WA Government recently committed to reform their laws.
Unfortunately, the NSW Government has made no such promise here, effectively abandoning trans people who either cannot afford (because of the prohibitive costs involved) or do not wish to undergo surgery, as well as people with non-binary gender identities.
NSW’s laws fail the LGBTIQ community in two other areas which are no less important.
First, there is no ban on sexual orientation and gender identity conversion practices in NSW.
Victoria and the ACT have already banned these dangerous and harmful psychological practices, while Queensland has partially banned it (in health settings only). Other jurisdictions, including Tasmania and Western Australia, have promised to outlaw it. But ‘ex-gay’ and ‘ex-trans’ torture remains legally permitted in NSW today.
Second, there is no prohibition on non-consenting surgeries and other unnecessary and deferrable medical interventions on children born with variations of sex characteristics in NSW either.
These are horrific and ongoing human rights abuses, denying the fundamental right to bodily integrity of intersex infants. Just as horrific is the fact no Australian jurisdiction has, to date, ended these practices.
Thankfully the ACT Government will shortly become the first, with legislation expected to be introduced in the first half of 2023.
Once again, however, there have been no promises, and no signs of movement, on this issue from the NSW Government.
The current appalling situation in these four areas (LGBTIQ anti-discrimination laws, trans and gender diverse birth certificates, sexual orientation and gender identity conversion practices, and non-consenting surgeries and other medical interventions on children born with variations of sex characteristics) constitutes nothing less than a crisis in LGBTIQ rights in NSW.
To some extent, it is a crisis that has emerged, and worsened, only gradually over time, thanks to the inaction of successive Governments of both persuasions (especially in relation to the broken Anti-Discrimination Act).
However, with the O’Farrell/Baird/Berejiklian/Perrottet Liberal-National Government about to celebrate 12 years in office, they must clearly shoulder a significant share of the blame.
Indeed, the last LGBTIQ-specific law reform which the Coalition implemented was way back in 2018.[i] That means they passed exactly zero LGBTIQ-related laws during the entire parliamentary term which has just ended.
By way of contrast, the Victorian Government reformed their Equal Opportunity Act (to better protect trans, non-binary and intersex people, and protect LGBTQ students and teachers), updated trans birth certificate laws, and banned conversion practices, all in the same period (2019-22).
To be fair, during the past term the Berejiklian/Perrottet Government did initiate a Special Commission of Inquiry into LGBTIQ hate crimes (although they rejected community calls for this to be constituted as a Royal Commission, and it obviously remains to be seen what the practical outcomes of the Inquiry will be, if any).
The NSW Government also ultimately rejected Mark Latham’s legislative attack on trans kids. Although that was only after a parliamentary inquiry in which all three Coalition Committee members supported his Bill, and an 18-month public debate during which trans kids and their families felt abandoned. Plus, as I wrote at the time, not going backwards (by rejecting Latham’s Bill) is not the same thing as going forwards (like pro-actively addressing all of the ways in which NSW law still discriminates against trans and gender diverse people).
Perhaps the only unequivocally positive achievement during the term was the development and launch of the NSW LGBTIQ+ Health Strategy 2022-27, which contains a number of important initiatives.
However, no amount of health programs can remove the legal prejudice which confronts LGBTIQ people in NSW – only Government, and Parliament, can do that.
On that note, I find it incredibly curious, and probably revealing that, despite knowing World Pride was headed to Sydney since October 2019, the NSW Government took exactly zero steps to fix any of the four major deficiencies in LGBTIQ rights in this state. They were apparently content for the spotlight to fall on NSW and proudly show their failures to the world.
With the state election on March 25 (less than a month after World Pride finishes), perhaps they thought we would be satisfied with the ‘bread and circuses’ of the coming weeks. Or, to adapt another Roman saying, maybe they believed we would be happy to just dance while our human rights burn.
Well, they might soon discover they were badly mistaken.
[UPDATE 17 February 2023: Following pressure for Independent Member for Sydney Alex Greenwich MP, who has developed his own legislation to ban conversion practices, and a promise by the Labor Opposition to do the same if elected, Premier Perrottet finally expressed ‘in-principle support’ for a ban. However, there remains no detail to this expression of support, including whether it specifically includes gender identity conversion practices, or whether it will cover all sites where conversion practices occur, including religious settings.
UPDATE 23 February 2023: This week, Premier Perrottet wrote to faith leaders to reassure them any bans on conversion practices would not affect religious freedoms, as well as telling a community forum: ‘We will not ban prayer. We will not ban preaching. That is fundamental to freedom of religion.’ In effect, it seems likely any ban by a re-elected Liberal Government would therefore exclude religious settings, where the vast majority of harm is caused. In which case, a Perrottet conversion practices ban would not be worth the paper it is printed on.]
Again, to be fair, this is not to let the NSW Labor Opposition off the hook either.
They were also missing in action in terms of defending our community from Mark Latham’s legislative attack on trans kids, with neither of their Leaders (Jodi McKay and Chris Minns) prepared to publicly condemn it, and one of the two ALP members of the parliamentary Committee actively supporting it.
After 12 years in Opposition, and less than seven weeks out from the election, they also don’t have a comprehensive LGBTIQ policy agenda. Indeed, based on Chris Minns’ ‘Fresh Start Plan’, and the issues listed on his website (https://www.chrisminns.com.au/issues), they don’t appear to have any specific LGBTIQ election policies at all.
Having said that, they do commit to referring the Anti-Discrimination Act to the Law Reform Commission for ‘holistic review’, although the policy (here: https://www.chrisminns.com.au/reviewantidiscriminationact) doesn’t make any detailed commitments in relation to LGBTIQ inclusion, such as protecting LGBTQ students or teachers, or covering bisexual, non-binary or intersex people (while specifically noting ‘the need to address discrimination on the basis of religion.’)
The Policy Committee Report to last year’s ALP State Conference also suggests ‘an incoming NSW Labor Government will work with relevant government agencies and other stakeholders to ban gay conversion therapy in NSW.’ But this is problematic, not just because it is silent on gender identity conversion practices, but also because it goes on to note ‘any proposed legislation to ban gay conversion therapy must not outlaw individuals voluntarily seeking out medical, health, allied health or other advice and assistance regarding their personal circumstances’.
[UPDATE 11 February 2023: Today, Opposition Leader Chris Minns committed a Labor Government to banning LGBTQ+ conversion practices. Importantly, this includes both formal and informal practices, covers LGBTQ+ (rather than just sexual orientation), and features a commitment to work with survivors in drafting the legislation. More details here.
UPDATE 27 February 2023: Unfortunately, just like Premier Perrottet before him, today Opposition Leader Mines ‘reassured’ faith leaders that the ALP’s ban on conversion practices would not impact ‘religious freedom’. His quote, as reported by the Sydney Morning Herald: ‘Taking offence at the teachings of a religious leader will not be banned, expressing a religious belief through sermon will not be banned, and an individual, with their own consent, seeking guidance through prayer will not be banned either.’ This means the ALP’s ban will also only be partial, and therefore only partially effective.]
While there still appears to be no ALP commitments in relation to trans access to birth certificates, or ending medical interventions on intersex kids.
This situation, in 2023, is simply not good enough. The LGBTIQ community of NSW deserves much better, from the Government and the Opposition.
I should clarify here that this article is by no means a criticism of Sydney World Pride, or of its organisers.
Celebrating pride is a worthy and important activity, in and of itself, especially if it contributes to long-lasting culture change. Sydney World Pride’s focus on First Nations LGBTQIA+SB people, as well as human rights in the Asia-Pacific, are both welcome. And, on a personal level, I’m genuinely looking forward to a fortnight of queer cultural events and parties (the tiredness that will inevitably follow, perhaps less so).
However, when the glitter has been swept up, and the paint from the rainbows which have been painted across Sydney starts to crack and fade, we will still be left living under the worst LGBTIQ laws in Australia.
Laws which mean a gay student who simply holds his boyfriend’s hand at Fair Day could be expelled the very next day.
Laws which allow a school to sack a teacher just for marching with her wife and children in the Rainbow Families float in the Mardi Gras Parade.
During World Pride, trans and gender diverse people will have the opportunity to walk across the Harbour Bridge. But most still won’t be able to walk into the NSW Registry of Births, Deaths and Marriages to update their birth certificate simply to match their gender identity.
It is also likely many LGBTQ people will begin their ‘coming out’ journey over the next month, inspired by the visibility of World Pride. But if they’re in NSW and don’t have a supportive family and/or community, they could still be subjected to sexual orientation or gender identity conversion practices – entirely lawfully.
Finally, Sydney World Pride will bring much celebration of the human body, and the joy it can bring. But – tragically – in 2023, NSW continues to allow violations of the bodily integrity of children born with variations of sex characteristics.
So, by all means celebrate during Sydney World Pride, including the achievements that have already been won, and our resilience in the face of ongoing oppression. I know I will.
But we cannot allow ourselves to be distracted from the challenges which remain, challenges which are especially acute right here in NSW.
What better time then to raise our voices, loudly, passionately, as a community, to tell the Government, and Opposition – and anybody else who is seeking our vote on 25 March – that our community deserves better than the legal prejudice which we currently endure?
NB This post is written in a personal capacity, and does not reflect the views of employers past or present, nor of any community organisations with which I am involved.
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Footnotes:
[i] In 2018, the then-Berejiklian Government passed two LGBTIQ-related reforms:
-the first ended forced trans divorce (although they were effectively compelled to do this following the passage of marriage reforms federally), and
-the second replaced homosexual and transgender serious vilification offences in the Anti-Discrimination Act with sexual orientation, gender identity and intersex status ‘threatening or inciting violence’ offences in the Crimes Act (although my understanding is that these offences have yet to be used).
Thank you for the opportunity to provide this personal submission as part of your consultation process on a proposed Equality Bill.
Thank you also for your leadership on the issue of lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) rights in NSW, something which has been neglected by too many for far too long.
As I have written previously, LGBTIQ rights in NSW are now the worst of any state or territory in the country – through decades of inaction on law reform by the NSW Government and Parliament, Sydney has become Australia’s capital of homophobia, biphobia and transphobia.
This includes the worst LGBTIQ anti-discrimination protections, and the equal worst birth certificate laws for trans and gender diverse people. As well as an ongoing failure to prohibit non-consenting surgeries and other medical interventions on children born with variations in sex characteristics (intersex children), and to ban sexual orientation and gender identity conversion practices.
If these issues are not addressed before next February, then Sydney’s hosting of World Pride 2023 will not be a cause for celebration, but instead the focus of global embarrassment about the incredibly poor state of legal rights for the LGBTIQ people who live here.
In this submission I will make recommendations for reform in the above-mentioned four areas, with a particular focus on LGBTI anti-discrimination law reform, as well as in relation to commercial surgery.
LGBTI reforms to the Anti-Discrimination Act 1977 (NSW)
The NSW Anti-Discrimination Act was once a leader – including becoming the first anti-discrimination law in Australia to prohibit discrimination on the basis of homosexuality in 1982 (before homosexuality was even decriminalised here, which did not happen until 1984).
However, it now compares incredibly poorly across a wide range of criteria, from protected attributes, special privileges for private schools and special privileges for religious organisations generally (for comparative analysis of how it fares overall, see A Quick Guide to Australian LGBTI Anti-Discrimination Laws).
While the Act itself is now so out-dated that it is impossible for it to become best practice without a comprehensive review followed by complete overhaul, there are some immediate, interim steps which could be taken to ensure LGBTI people are better protected against discrimination on the basis of who they are. This includes:
1. Replace homosexuality with sexual orientation
NSW is the only jurisdiction in Australia which does not prohibit discrimination against bisexual, bi+ and/or pansexual people. That is because the protected attribute in the Anti-Discrimination Act is ‘homosexuality’ rather than sexuality or sexual orientation.
This should be replaced with a protected attribute of ’sexual orientation’, with a definition drawing from s4(1) of the Equal Opportunity Act 2010 (Vic):
‘sexual orientation means a person’s emotional, affectional and sexual attraction to, or intimate or sexual relations with, persons of a different gender or the same gender or more than one gender.’
2. Replace transgender with gender identity
NSW also offers extremely narrow protection against discrimination for trans and gender diverse people, effectively excluding people with non-binary gender identities completely.
The protection attribute of ‘transgender’ should be replaced with ‘gender identity’, with a definition again drawing from the Equal Opportunity Act 2010 (Vic):
‘gender identity means a person’s gender-related identity, which may or may not correspond with their designated sex at birth, and includes the personal sense of the body (whether this involves medical intervention or not) and other expressions of gender, including dress, speech, mannerisms, names and personal references’.
The definition of ‘recognised transgender person’ in section 4 of the Anti-Discrimination Act 1977 (NSW) should be removed at the same time.
3. Add a new protected attribute of sex characteristics
Intersex people are also poorly-served by anti-discrimination laws in NSW, with the Act failing to include a stand-alone protected attribute to prohibit discrimination against them.
A new protected attribute of ‘sex characteristics’ should be added, once again drawing from the Equal Opportunity Act 2010 (Vic):
‘sex characteristics means a person’s physical features relating to sex, including-
(a) genitalia and other sexual and reproductive parts of the person’s anatomy; and
(b) the person’s chromosomes, genes, hormones, and secondary physical features that emerge as a result of puberty.’
4. Add new protected attributes of sex work, and genetic characteristics
I support-in-principle the inclusion of protected attributes of sex work, with a definition developed in consultation with sex worker organisations such as Scarlet Alliance, and genetic characteristics, developed in consultation with Intersex Human Rights Australia.
5. Remove special privileges for private educational authorities
The Anti-Discrimination Act is the only such law in the country which provides blanket exceptions to all private schools, colleges and universities, irrespective of whether they are religious or not, allowing them to engage in conduct that would otherwise be prohibited.
This includes special privileges to discriminate on the basis of homosexuality against students (s49ZO) and teachers and other staff (s49ZH), and on the basis of transgender status against students (s38K) and workers (s38C), too.
There can be no possible justification for these special rights to discriminate in 2022 – they must be repealed entirely.
In order to ensure LGBT students, teachers and other staff at religious schools are properly protected against discrimination, it is also necessary to introduce a limitation on the general religious exception in section 56 (discussed further below), so that it does not apply to religious educational institutions.[i]
6. Significantly narrow special privileges for religious organisations
In addition to specific exceptions for private schools, colleges and universities, s56 of the Anti-Discrimination Actprovides incredibly broad exceptions for religious organisations more generally.
While paras (a) and (b) of that provision (which permit discrimination in relation to the appointment, and training, of priests and ministers of religion) may be justifiable on the basis of religious freedom (because of their closeness to religious observance), the same justification does not apply to para (c), which allows discrimination by religious organisations in employment (including in the delivery of publicly-funded health, housing and welfare services) and (d), which effectively grants faith bodies a blank cheque to discriminate in service provision.
Both para s56(c) and 56(d) should be repealed entirely.[ii]
7. Remove special privileges for faith-based adoption services
Under s59A of the Anti-Discrimination Act, adoption agencies operated by religious organisations are permitted to discriminate against rainbow families.
This is frankly outrageous, not only discriminating against prospective parents on the basis of irrelevant factors such as their sexual orientation and/or gender identity, but also not being in the best interests of the child, given the exclusion of loving parents on these grounds.
S59A should be repealed entirely.
8. Remove the specific transgender exception in superannuation
Under s38Q of the Act, superannuation providers are given an exception to discriminate against transgender people, by ‘treat[ing] the transgender person as being of the opposite sex to the sex with which the transgender person identifies.’
This type of provision is not found in the equivalent Sex Discrimination Act 1984 (Cth).
Once again, there can be no possible justification for this special right to discriminate in 2022 – this provision must be repealed entirely.
9. Significantly narrow the specific transgender exception in sport
Under s38P of the Act, it is lawful to discriminate against transgender people in relation to a wide range of sporting activities, from elite level through to community sport.
This exception is much, much broader than equivalent exceptions elsewhere, including s42 of the Sex Discrimination Act 1984 (Cth), which includes qualifications that such discrimination is only permitted ‘in any competitive sporting activity in which the strength, stamina or physique of competitors is relevant’, and does not apply to children under 12.
At a minimum, these qualifications should also be introduced in NSW, with consideration of adopting the narrower approach found in s29 in the Anti-Discrimination Act 1998 (Tas), or the proposed changes in this area in the ACT Government’s recent Exposure Draft Discrimination Amendment Bill 2022.
Any reforms in this area should be made in close consultation with trans and gender diverse people, and organisations representing them, and intersex people and their representative bodies as well (given the impact of sporting exceptions on that community).
10. Prohibit civil vilification on the basis of sexual orientation, gender identity and sex characteristics
Assuming changes are made to replace the protected attributes of homosexuality with sexual orientation, and transgender with gender identity (1 and 2, above), equivalent changes to civil vilification provisions under the Anti-Discrimination Act should be made at the same time.
I also support introducing civil prohibitions against vilification on the basis of sex characteristics.
11. Ensure consistency between the Anti-Discrimination Act 1977 and the Crimes Act 1900 (NSW)
If the civil vilification provisions of the Anti-Discrimination Act are updated to cover sexual orientation, gender identity and sex characteristics, equivalent amendments should be made to s93Z of the Crimes Act 1900 (NSW),[iii] which makes it a criminal offence to ‘by a public act, intentionally or reckless threaten or incite violence towards another person or a group of persons’ on the basis of a range of attributes.
Reforms to the Births, Deaths and Marriages Registration Act 1995 (NSW)
This situation is completely unacceptable. Gender identity is exactly that, a fundamental characteristic of personal identity, and exists irrespective of surgery, or other forms of medical or psychological treatment.
In my opinion, trans and gender diverse people should be able to update their identity documentation, including birth certificates, solely on the basis of self-identification.
That means imposing no restrictions based on whether the person has had surgery, whether they have had other forms of physical treatment (including hormones), or whether they have accessed counselling or psychological services. It also means not requiring an application to include supporting statements from medical or psychological ‘gate-keepers’.
There is only one Australian jurisdiction which currently meets this standard, the Tasmanian Births, Deaths and Marriages Registration Act 1999, with s28A(2)(b) simply requiring the applicant to make a ‘gender declaration’ in support of their application.
I therefore support-in-principle the introduction of birth certificate reforms in NSW drawing on the existing framework in Tasmania.
One other important element is ensuring children and young people have the right to update their identity documentation, irrespective of whether it makes some adults uncomfortable.
This, at a minimum, would involve allowing young people aged 16 and 17 to make applications for new birth certificates in their own right.
It also means ensuring there is a process to allow children under 16 to update their birth certificates where they have two or more parents or guardians and those parents/guardians disagree among themselves whether to support that application.
Finally, it means introducing a framework to allow children under 16 to apply in the absence of support from a parent or guardian, where a court or tribunal considers it to be in the best interests of the child and also assesses the child to be capable of consenting to the application (such as in s29J of the Births, Deaths and Marriages Registration Act 1996 (SA)).
However, as a cisgender member of the LGBTIQ community, I defer to the views of trans and gender diverse people, and the organisations representing them, on what the exact details of birth certificate reforms should include.
Ending non-consenting surgeries and other medical interventions on intersex children
The unnecessary, non-consenting and/or deferrable surgeries and other medical interventions which continue to be inflicted on children born with variations of sex characteristics (intersex children) aren’t just some of the biggest human rights abuses against the LGBTIQ community, but against any segment of the Australian community.
In this context, it is extremely frustrating that, approaching nine years from the historic 2013 Senate Inquiry into ‘Involuntary or coerced sterilisation of intersex people in Australia’, no Australian jurisdiction has legally prohibited these practices, including there being no signs of action in this area by the NSW Government.
Fortunately, the ACT Government has committed to ending these practices, and recently released their draft Variation in Sex Characteristics (Restricted Medical Treatment) Bill 2022 for public consultation.
On this issue, and whether the ACT legislation is best practice, I defer to the expertise of Intersex Human Rights Australia (IHRA). I note that in their submission to the current inquiry, they wrote:
‘The ACT government draft bill, published in May 2022, arises out of a commitment made in 2019, and deep engagement with community, clinicians, and human rights, bioethics and legal expertise. We commend this bill as a basis for reform in New South Wales.
‘The ACT government bill implements demands in the Darlington Statement of intersex community organisations and advocates in our region, and the Yogyakarta Principles plus 10… Action on this issue implements recommendations 1, 4, 7, 8 and 9 of the 2021 Australian Human Rights Commission report ‘Ensuring health and bodily integrity: towards a human rights approach for people born with variations in sex characteristics’. It also implements calls for reform by UN Treaty Bodies CEDAW, CRPD, CRC, HRC and CESCR, and addresses calls in 2021 position statements citing IHRA staff by the Australian Medical Association and the Public Health Association of Australia. It is consistent with a 2018 submission to the Australian Human Rights Commission by the Royal Australian and New Zealand College of Psychiatrists’ [emphasis added].
I therefore endorse IHRA’s view – that the ACT draft legislation be used as a basis for reform in NSW, with any necessary amendments developed in close consultation with IHRA.
Banning sexual orientation and gender identity conversion practices
The fourth major reform which should be included in the NSW Equality Bill is a prohibition on sexual orientation and/or gender identity (SOGI) conversion practices (sometimes referred to as gay/trans conversion therapy, or ex-gay/ex-trans therapy).
These are incredibly harmful practices which cause immense psychological, and sometimes physical, harm on LGBTQ people.
In my view, SOGI conversion practices should be banned, both through civil prohibitions, allowing for a range of legal responses, and criminal offences in serious cases (such as where it causes actual physical or psychological harm, and/or involves minors or other vulnerable persons).
Importantly, these prohibitions must apply across a broad range of circumstances, including religious settings (where much of the reported harm takes place), and not just in health settings (which means the existing Queensland approach to this issue cannot be supported).
My understanding is there are potential strengths to both the Victorian Change or Suppression (Conversion) Practices Act 2021 and ACT Sexuality and Gender Identity Conversion Practices Act 2020.
However, as with trans and gender diverse birth certificate reform and intersex surgeries, I defer to the views of survivors of sexual orientation and/or gender identity conversion practices, and the organisations representing them, on what the exact details of this legislation should contain.
Legalising commercial surrogacy in NSW
This reform is different from the previous four in that it is not exclusively or even primarily an issue for the LGBTIQ community, given individuals and couples seeking to employ commercial surrogacy services can be cisgender and heterosexual also.
However, rainbow families, and especially male same-gender couples, are disproportionately affected by the current legal approach to surrogacy in NSW, which is not only to prohibit commercial surrogacy domestically (s8 of the Surrogacy Act 2010 (NSW)), but also to capture individuals or couples who engage in commercial surrogacy elsewhere but are ‘ordinarily resident or domiciled in the State’ (s11).
The maximum penalty for this offence is high: up to 1,000 penalty units or imprisonment for 2 years, or both, for individuals.
More than a decade after this legislation was introduced, I don’t believe anyone in NSW genuinely believes that individuals and couples, including rainbow families, are not still engaging in commercial surrogacy arrangements in a wide range of international jurisdictions (and perhaps the only thing to even slow this process down has been since-eased pandemic-related travel restrictions, not domestic laws).
In this context, my personal view is that commercial surrogacy should be legalised in NSW.
There are two reasons for this. The first is based on harm reduction. Yes, I acknowledge that commercial surrogacy arrangements include a significant potential for exploitation, especially for women who are vulnerable or financially disadvantaged.
However, given commercial surrogacy is continuing (and will continue into the future, based on the strong desires of some members of the community to have children), the best way to minimise such exploitation is to permit commercial surrogacy within NSW, with careful and close oversight – in contrast to the current situation which sees people engage in surrogacy in jurisdictions potentially with minimal or no oversight, and with a legal incentive to avoid scrutiny of their activities.
The second reason for legalising commercial surrogacy in NSW is based on the best interests of the child. For the child being born into these families, it simply cannot be in their best interests for their parent(s) to be liable to up to 2 years imprisonment for the crime of the manner of their birth.
*****
Thank you in advance for your consideration of this submission. Please do not hesitate to contact me, at the details provided, if you would like further information or to discuss its contents.
Sincerely
Alastair Lawrie
NB This post is written in a personal capacity, and does not reflect the views of employers past or present.
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Footnotes:
[i] This approach applies in the absence of prohibitions against discrimination on the basis of religious belief in NSW. If religious belief is added as a stand-alone protected attribute to the Anti-Discrimination Act 1977 (NSW) in the future, it may be appropriate to allow discrimination by religious schools on the basis of religious belief only (and not other attributes), but only against students at the point of enrolment, and only against teachers and other staff where it is an inherent requirement of the role.
[ii] As with the previous footnote, this approach applies in the absence of a stand-alone protected attribute of religious belief under the Act. If such an attribute were to be introduced in future, it may be appropriate to permit some discrimination on the basis of religious belief only, in narrowly-restricted circumstances, informed by existing laws in Tasmania, and Victoria.
[iii] This includes potentially updating the existing definitions of sexual orientation and gender identity in s93Z of the Crimes Act, as well as replacing the attribute of intersex status with sex characteristics.
Almost two weeks after the Sydney Gay & Lesbian Mardi Gras, the NSW LGBTIQ community has been given a belated reason to celebrate.
Yesterday (Wednesday 16 March), the NSW Government finally released its response to Mark Latham’s anti-trans kids Bill (formally called the Education Legislation Amendment (Parental Rights) Bill 2020), in which they categorically rejected his proposed legislation.
This was a law that, if passed, would have erased trans and gender diverse students from classrooms and schoolyards across the State.
It also would have introduced a Thatcher-esque section 28-style prohibition on positive references to LGBTQ people generally (modelled after a UK law from the 1980s and 90s which harmed a generation of queer kids there).
As well as enacting a new offensive and stigmatising definition of intersex people in NSW legislation.
Importantly, the Perrottet Liberal/National Government also rejected key recommendations of the Parliamentary Inquiry into Latham’s Bill (which, in a disturbing conflict of interest, featured Latham himself as Chair). This included ruling out:
Banning trans students from using the bathroom reflecting their gender identity
Outing trans students to non-supportive parents, even where this puts the student in danger
Stopping trans students from seeking confidential help from school counsellors, and
Outing trans students to all of the parents of other students in their year group.
The Government’s decision to reject Latham’s anti-trans kids Bill, and key recommendations of his biased inquiry, is obviously incredibly welcome.
Above all, it is a huge relief to LGBTIQ students, and especially trans and gender diverse kids and their families, who no longer need fear his legislative attack on their right to a safe and inclusive education.
However, this does not mean we should be overly-congratulatory towards the NSW Government either.
For example, in their response the Government notes, as one of their reasons for rejecting the Bill, that it ‘may lead to targeted discrimination against a marginalised community which already experiences poorer mental health and wellbeing outcomes’ (ie trans and nonbinary children and young people).
Which is true. But it was also true on the day Latham first introduced his legislation way back in August 2020.
There was no need for a drawn-out Parliamentary Inquiry to tell them that.
There was definitely no need to refer it to Latham’s Committee for that Inquiry.
There was no justification for all three Government members of that Inquiry to support the main elements of Latham’s Bill, including backing harmful recommendations about outing trans kids, and preventing them from accessing bathrooms, or seeking help from counsellors.
And there was clearly no justification for the Parliamentary Secretary for Education, Kevin Conolly, to express his personal support for the Bill (noting that he remains in that portfolio today).
The NSW Government could, and should, have spared the trans community from being forced to endure yet another debate about their very existence, by rejecting the Bill from the outset rather than taking 19 months and giving One Nation a platform to spread their transphobia in the meantime.
So, while the response yesterday was the right outcome, the tortuous route it took them to arrive there means they deserve, at best, a polite clap rather than a standing ovation.
The second reason why we should not be giving thunderous applause to the NSW Government is that all they have done is stop the situation in NSW from getting worse.
LGBTIQ people in NSW still woke up this morning in the worst jurisdiction for their legal rights in the country. Just as they did yesterday, and as they will tomorrow.
This includes having the worst anti-discrimination laws, which fail to protect bisexual people (the only place in Australia not to do so), nonbinary people, and intersex people. And which have extraordinary exceptions, allowing all private schools and colleges, religious and non-religious alike, to discriminate against LGBTQ students and teachers.
NSW will likely also soon be the only state or territory which requires trans and gender diverse people to have genital surgery in order to update their birth certificate (assuming Queensland follows through on its promises to reform their own laws this year).
NSW has made no progress on, or given any firm commitments to, prohibiting sexual orientation and gender identity conversion practices (which have already been banned in Victoria and the ACT, partially banned in Queensland, with bans under active consideration elsewhere).
And NSW has also shown no signs it will end what I consider to be the worst human rights abuses against any part of the LGBTIQ community: coercive surgeries and other non-consensual medical interventions on children born with innate variations in sex characteristics (with the ACT and Victorian Governments already committed to reform in this area, and realistic hope for change in at least one other jurisdiction).
All the NSW Government did yesterday was rule out taking another step backwards.
But even standing still means that, with each and every passing year, NSW falls further and further behind on LGBTIQ law reform.
Next week (Friday 25 March) will mark exactly one year to go until the next State election.
That’s a full 12 months for the Perrottet Liberal/National Government to do more than just publicly reject a terrible law attacking some of the most vulnerable members of our community, and instead to make long-overdue progress on at least some, if not all, of the above-mentioned law reforms to make the lives of LGBTIQ people in NSW better.
If they do, they will have actually earned some real praise.
Finally, lest I be accused of being partisan, we cannot let the Minns Labor Opposition off the hook on this subject either.
Because they too have failed to publicly condemn Mark Latham’s anti-trans kids Bill over the past 19 months.
They too voted for it to be referred to a Parliamentary Inquiry chaired by Latham himself.
And, disappointingly, they also had one of their two members on that Inquiry support the main elements of Latham’s Bill, including backing harmful recommendations about outing trans kids, and preventing them from accessing bathrooms, or seeking help from counsellors.
That’s simply not good enough. Nor is the fact that, one year out from what looks to be a highly competitive election, we currently know next-to-nothing about Labor’s plans on the issues described earlier.
It’s time for them to demonstrate to the LGBTIQ community exactly what they would do to end NSW’s reign as the jurisdiction with the worst laws in Australia.
In summary, then, while I am happy and relieved for LGBTIQ students, and trans and gender diverse kids in particular, that Latham’s anti-trans kids Bill has finally been rejected, I am far from satisfied with the current state of law reform in NSW. We can and must demand better, from both the Perrottet Liberal/National Government, and Minns Labor Opposition.
Sydney World Pride is now just 17 months away. With the official Opening Ceremony scheduled for 24 February 2023, it promises to be one of the largest LGBTI celebrations in a post-pandemic world.
Unfortunately, when it comes to LGBTI law reform, there is very little reason to celebrate.
The NSW Anti-Discrimination Act is the worst LGBTI anti-discrimination law in the country. It’s the only one that fails to protect bisexuals, and the only one allowing all private schools, religious and non-religious alike, to discriminate against LGBT students. The ADA also excludes nonbinary people, and people with innate variations of sex characteristics.
While Queensland, the ACT and Victoria have already prohibited gay and trans conversion practices (to varying extents), and other states consider this vital reform, there’s no clear commitment for NSW to do the same.
Nor has the NSW Government promised to prohibit what are the worst of all human rights abuses against the LGBTI community: coercive surgeries and other involuntary medical treatments on intersex children.
In this context, it’s depressing to realise the next step on LGBTI rights here is likely to be a great leap backwards.
Earlier this month, a NSW Parliamentary Committee recommended adoption of the core elements of Mark Latham’s Education Legislation Amendment (Parental Rights) Bill 2020, more accurately known as his anti-trans kids Bill.
That includes support for a domestic version of the UK’s infamous ‘section 28’, which traumatised a generation of LGBT students there before being abandoned in 2003.
By threatening teachers with having their accreditation revoked for mentioning anything ‘political or ideological’ in relation to gender or sexuality – which could be as simple as telling struggling gay kids that who they are is perfectly okay – it will drive most teachers to say nothing at all, creating the perfect conditions for ignorance and shame to thrive.
Even worse are the proposed changes to Bulletin 55: Transgender Students in Schools, which would (among other things):
Prohibit students from confidentially coming out as transgender to their teachers or school counsellors
Effectively ban transgender students from being able to access toilets or changerooms matching their gender identity, and
Out students who transition while at school to the parents of every other student in their year group.
These anti-trans rules are just the tip of the iceberg. This Bill, and associated Committee Report, are truly a Titanic-size assault on the rights of trans and gender diverse kids in NSW.
In policing children’s names and pronouns, their ability to play sport and even go to the bathroom, these are really Texas Republican Party-level interventions in the daily lives of people whose lives don’t matter to them.
It is, frankly, embarrassing. And no-one should be more embarrassed than Premier Gladys Berejiklian, who for 13 months has steadfastly refused to condemn, or even comment on, these proposed changes – all the while allowing Latham to chair the inquiry into his own Bill.
The Government now has six months to respond (coincidentally, the deadline is the Monday after next year’s Mardi Gras). With more Coalition MPs so far publicly expressing support for the Bill than opposing it, the starting assumption has to be they are more likely to implement these changes than reject them.
And if they do? The biggest victims will be a generation of trans and nonbinary kids whose own Government will be actively seeking to erase their very existence, closely followed by other LGBT students who will be offered silence rather than support from their schools.
As for World Pride, well, it seems highly likely there would be a global boycott – one I would fully endorse. To do otherwise would be to invite the world to come and dance over the bodies of trans kids, killed by the transphobia of NSW Parliamentarians.
Even if it ultimately does not pass, the debate since August 2020 has already caused significant harm to trans kids in NSW, and to the families who love them.
If we cannot keep trans kids safe, if we cannot protect LGBT students in private schools against discrimination, if we cannot stop the psychological torture from gay and trans conversion practices, if we cannot prevent the physical torture of intersex children – if we can’t defend the most vulnerable among us – tell me again what exactly we would be celebrating at Sydney World Pride?
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In 1996, Australians were watching Friends and listening to Alanis Morissette while the NSW Upper House was the site of a toxic debate about trans law reform.
In 2021, Australians are watching the Friends Reunion, can book tickets to Jagged Little Pill: The Musical and the NSW Legislative Council is once again hosting hostile discussion about the rights of its trans citizens.
It is perhaps disappointing to realise how little progress has been made in terms of pop culture and representations of transgender people – with the Friends Reunion refusing to address the recurring transphobic jokes made at the expense of Chandler’s parent, and Jagged Little Pill: The Musical erasing the gender identity of a fictional nonbinary character on its journey to Broadway.
For a start, much of the language in the two debates, a quarter of a century apart, is disturbingly similar, with both deliberate misgendering,[i] and scaremongering about trans women in sports, playing starring roles in each.
With more than a hint of hyperbole, Liberal MLC Marlene Goldsmith declared in 1996 ‘This legislation will mean the end of women’s sports as a concept, an entitlement and a right.’
In 2021, Katherine Deves, speaking on behalf of something called ‘Save Women’s Sport Australasia’, complained that ‘gender identity’ requires women and girls ‘to forego their right to compete on a level playing field in sport because fair competition is destroyed, athletic opportunities are lost and players’ safety is completely disregarded.’
Meanwhile, any small advances – multiple references to ‘tranys’ in the 1996 Hansard[ii] thankfully haven’t been repeated more recently – don’t begin to overcome larger retreats elsewhere.
In the intervening 25 years, opponents of legal equality for trans people have pivoted from expressing pity about their plight, while dismissing trans issues as unimportant,[iii] to portraying trans people as potential predators, and a fundamental threat to ‘Western civilisation’.
This dramatic escalation in rhetoric comes not just from the mover of the latter Bill (One Nation’s Mark Latham, who described trans-inclusive education as ‘part of the post-modernist attack on the nuclear family’ in his Second Reading Speech), but also from multiple witnesses who appeared at April’s hearings into his horrific law.
For example, Mark Sneddon of the Institute for Civil Society said (rather uncivilly, and somewhat ominously) in supporting the Bill: ‘What we are trying to do – or what I understand this Bill is trying to do – is to reduce the social contagion influence of putting more people onto the conveyor belt of gender transition.’
Even fear campaigns about women’s bathrooms have worsened, rather than improved, over the past quarter century.
The only reference to toilets I could find in the 1996 Legislative Council debate came from Fred Nile (yes, the same one still sitting in that chamber), who said: ‘Because I am obviously not a woman, I do not know [how] a woman would feel to have a transsexual who was born a male sitting beside her in a woman’s washroom or powder room in a factory, office or club.’
In 2021, this argument has been weaponised, much more explicitly utilising the language of ‘threat’, with Terri Kelleher of the Australian Family Association giving evidence that ‘Is it not discrimination against natal girls if natal male students who identify as female are allowed to use their toilets, change rooms and showers and share overnight school camp accommodation? What about their right to feel safe and to their privacy in spaces where they may be in a state of undress or asleep?’ and later ‘Now, that is not saying that all males or all boys who identify as girls are going to be a threat, but it sets up a situation where that can occur. That is very serious in the light of the child-on-child sexual abuse in schools.’
And, although most participants in the 1996 debate seemed to at least accept that transgender people are who they say they are, by 2021 a number of extremists appearing before Latham’s Committee were regularly making points about high rates of ‘de-transitioning’ and distinguishing between ‘genuine’ and ‘non-genuine’ trans people, before citing ‘social contagion’ and ‘rapid onset gender dysphoria’ (despite all four arguments being completely unsupported by any evidence whatsoever).
However, the toxic atmosphere surrounding Latham’s anti-trans kids Bill, and the fact contemporary discussion seems to be even worse than it was two and a half decades ago, is merely one small part of much larger frustrations about the situation we find ourselves in today.
At the very least, the 1996 debate was about legislation that would ultimately deliver multiple steps forward for trans rights in this state. Not only did the Transgender (Anti-Discrimination and Other Acts) Act insert transgender as a protected attribute in the NSW Anti-Discrimination Act 1977, it also saw NSW become the first jurisdiction in Australia to legally prohibit transphobic vilification (something that still hasn’t happened under Commonwealth law, nor in Victoria, Western Australia, South Australia and the Northern Territory).
The same Act also amended the Births, Deaths and Marriages Registration Act 1995 to allow transgender people who had undergone gender affirmation surgery to access identity documentation reflecting their gender identity.
These were genuinely historic reforms.
In contrast, the deceptively-named Education Legislation Amendment (Parental Rights) Bill 2020 seeks to completely erase real-life trans and nonbinary students from classrooms and schoolyards across NSW, censoring the curriculum and denying them affirmation and support from teachers, principals and even school counsellors.
Some people might be tempted to dismiss this threat given it is merely the product of fringe extremists in the NSW Upper House (one of the chamber’s perennial features). Except the positions of the major parties on this Bill are, so far, worse than when a generation of young people were mislearning the definition of ironic (myself included).
Back then, the Carr Labor Government relentlessly pursued their reforms to anti-discrimination and birth certificate laws. And, while the Collins Liberal/National Opposition ultimately voted against them (because of baseless concerns about the impact of birth certificate changes to women’s sport, including nonsensical statements about the Sydney Olympics), they at least expressed in-principle support for trans anti-discrimination protections.[iv]
In contrast, in the 10 months since Latham introduced his legislative assault on trans kids, neither the Berejiklian Liberal/National Government nor the McKay, and now Minns, Labor Opposition have publicly condemned it.
Indeed, they both voted in the Legislative Council for the Bill to be considered in more detail by a Committee chaired by Latham himself, while the Liberal Parliamentary Secretary for Education Kevin Conolly has expressed his personal support for it.
In failing to reject Latham’s transphobia, could the major parties be any more pathetic?
But the most frustrating part of all is that we need to expend significant time and energy working to defend existing rights, instead of campaigning for improvements to those same reforms passed in 1996.
Because those changes were far from perfect, even when they were first passed.
For example, the amendments to the Anti-Discrimination Act inserted a definition of ‘recognised transgender person’, applying to people who have undergone gender affirmation surgery and had that recognised under the Births, Deaths and Marriages Registration Act, even though it is irrelevant to determining whether anti-trans discrimination was prohibited under Part 3A (poor drafting which is still causing confusion in 2021, as demonstrated by transphobic discrimination by McIver’s Ladies Baths in Coogee earlier this year).
Unfortunately, neither the definition of ‘recognised transgender person’ nor Part 3A introduced protections against discrimination for trans and gender diverse people whose gender identity was nonbinary (instead only covering people who ‘identify as a member of the opposite sex’).[v]
The 1996 Anti-Discrimination Act reforms also permitted discrimination against trans students and teachers in publicly-funded ‘private educational authorities’, including (but not limited to) religious schools.[vi] Something that was difficult to justify 25 years ago, and is impossible to defend now.[vii]
Finally, in limiting access to updated birth certificates to people who have undergone gender affirmation surgery,[viii] the Births, Deaths and Marriages Registration Act changes excluded the majority of trans and gender diverse people who are either unable to access such procedures (including for financial reasons) or who do not wish to. After all, trans people should be in control of their gender identity, not the(ir) doctor.
This weakness is not brand new information, either. The serious limitations of the birth certificate changes were raised by both Democrat[ix] and Greens MLCs[x] at the time.
Which means it is likely that at some point this term NSW will become the only jurisdiction in Australia which still requires trans people to undergo surgery to access a new birth certificate. Just in time to be subjected to (well-deserved) global scorn as Sydney hosts World Pride in February and March 2023.
Nevertheless, just as the Liberal, National and Labor Parties have refused to publicly reject Latham’s anti-trans kids Bill, none are currently promising to fix the problems in the Anti-Discrimination Act first introduced back in 1996, nor have any committed to finally bring the Births, Deaths and Marriages Registration Act into the 21st century by allowing people to update their birth certificates without surgery or other physically invasive medical treatments.
This ongoing silence, on the fundamental human rights of the trans community, is simply not good enough. We really oughta know where the major parties stand on Latham’s anti-trans kids Bill, anti-discrimination reform and birth certificate requirements by now.
We must use whatever influence we have to demand more on these issues from our elected representatives. And by ‘we’ here I’m not talking about trans and gender diverse people, who are already fighting just for the ability to live their lives without discrimination, and to learn without erasure.
It’s time for cisgender members of the LGBT community, as well as our cis-het allies, to step up, and put pressure on Gladys Berejiklian and her Cabinet, and Chris Minns and his Shadow Ministers, to prioritise the dignity and equality of NSW’s trans and nonbinary citizens.
We must do so urgently, too. Because right now, trans and gender diverse people have very few friends in the NSW Legislative Council, and NSW Parliament more broadly.
While there remains a real chance their legal rights will go backwards, rather than forwards, in the near future. Which would be a very jagged little pill to swallow.
I am writing to urge you to publicly oppose the Education Legislation Amendment (Parental Rights) Bill 2020, legislation which would erase trans and nonbinary students from classrooms and schoolyards across NSW, as well as censor the curriculum and deny them access to affirmation and support from teachers, principals and even school counsellors.
This Bill is the worst legislative attack on LGBTI rights anywhere in Australia this century. It is simply not good enough that, more than 10 months after it was introduced, the people of NSW still don’t know whether you and your Party condemn or condone the harm it will inevitably cause.
Nor is it good enough that trans and gender diverse people in NSW are forced to live with second-rate anti-discrimination and identity documentation laws.
Therefore, I also urge you to publicly commit to amend the Anti-Discrimination Act 1977 to:
Remove the unnecessary and confusing definition of ‘recognised transgender person’,
Replace the protected attribute of ‘transgender’ with an attribute of ‘gender identity’ and a definition which ensures nonbinary people are protected against discrimination, and
Remove the special privileges which allow publicly-funded ‘private educational authorities’, including religious schools, to discriminate against trans and gender diverse students and teachers simply because of who they are.
Finally, I urge you to amend the Births, Deaths and Marriages Registration Act 1995 to allow trans and gender diverse people to self-determine their gender identity without the need for physically invasive medical treatment, such as surgery, as well as to recognise a wider range of gender identities, including nonbinary.
If the NSW Parliament fails to amend these laws, it is highly likely we will soon be the only jurisdiction in Australia which places this unfair and unnecessary barrier in front of its trans and gender diverse citizens. These hurdles must be removed as a matter of priority.
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Footnotes:
[i] In the 1996 debate, trans women were erroneously described by opponents as ‘transsexual males’, while in the 2021 hearings trans girls were commonly called ‘biological males’ or ‘natal males’. Mark Latham also deliberately used the deadname of a prominent transgender Australian on 20 April.
[ii] The term ‘tranys’ was used by both supporters and opponents of the 1996 legislation, perhaps indicating that this language did not carry the same pejorative connotations it does today. Either way, it was confronting seeing the frequency with which the term was used back then.
[iii] National Party MLC Duncan Gay opposed the 1996 reforms, stating: ‘I am going to be brief in my opposition to this bill. I am amazed about the amount of time spent by honourable members on what I believe is the most stupid and most unnecessary bill to ever come before this Parliament.’
[iv] With Leader of the Opposition in the Legislative Council, John Hannaford, stating: ‘I accept the need to deal with discrimination against members of the transgender community. I acknowledge that violence is committed against such members of the community and also that those members suffer discrimination. It is necessary to address such elements of violence and discrimination.’
[v] Unfortunately, this problem – only protecting trans people with binary gender identities – is shared by the anti-discrimination laws of Queensland, Western Australian and the Northern Territory. For more, see: A Quick Guide to Australian LGBTI Anti-Discrimination Laws.
[vii] Disturbingly, these represent only the most prominent of the problems with trans protections in the NSW Anti-Discrimination Act. One of the provisions inserted in 1996 provided an exception allowing discrimination by superannuation funds:
‘Section 38Q: A person does not discriminate against a transgender person (whether or not a recognised transgender person) on transgender grounds if, in the administration of a superannuation or provident fund or scheme, the other person treats the transgender person as being of the opposite sex to the sex with which the transgender person identifies.’
Interestingly, the then Attorney General, Jeff Shaw, made the following comment about this provision in his Second Reading Speech:
‘Granting legal recognition also has implications for the superannuation sector in terms of differential contributions and benefits. These implications have not yet been fully determined. The legislation therefore provides for an exemption to legal recognition in this area. Nevertheless, I wish to advise the House that the Government is currently examining this matter with a view to possible further amendments at a later date.’
Except, as you’ve probably guessed by now, those changes never happened – and this exception remains, with the exact same wording, today.
[viii] Interestingly, the Births, Deaths and Marriages Registration Act 1995 provisions were amended in 2008, to replace the original terminology of ‘sexual reassignment surgery’ with ‘sexual affirmation procedure’, but the requirement for surgery was not altered.
[ix] Democrat MLC Elisabeth Kirby stated: ‘Although I support the Government’s amendments to the Registration of Births, Deaths and Marriages Act, I request that the Government give serious future consideration to an expansion of the criteria under which a new birth certificate can be obtained’ before highlighting that only a minority of transgender people undergo surgery.
[x] Greens MLC Ian Cohen also expressed his ‘reservations’ about ‘the certificate provisions not including transgender members of our community who, for whatever reasons, decline surgical intervention’ and later that ‘By using medical interventions as the benchmark for altering documents of identity, the legislation leaves out in the cold 80 per cent of the transgender members of our community who do not avail themselves of medical interventions.’ Perhaps with misplaced confidence he subsequently noted that ‘I am certain that with the passage of time this flaw will be recognised and rectified.’ Well, we’re now at 25 years and counting…
Today (26 March 2021) marks exactly ten years since the election of the NSW Liberal/National Government.
In that decade, and especially in their early years, they have passed a few important LGBT law reforms, including the long-overdue abolition of the homosexual advance defence (or ‘gay panic’ defence) in 2014 and establishing a scheme to expunge historical criminal records for same-sex intercourse in the same year.
However, the pace of reform has slowed markedly in recent times. The last new LGBTI laws were both passed in 2018, with the removal of ‘forced trans divorce’ (although this was necessitated by the passage of marriage equality in Commonwealth law, while NSW failed to seize the opportunity to amend identity laws more generally) and the introduction of an offence for publicly threatening or inciting violence against others, including on the basis of sexual orientation, gender identity and intersex status (although it replaced existing criminal vilification offences on the basis of homosexuality and transgender status, and as far as I am aware has not been enforced since it commenced).
Indeed, with this week also marking the halfway point of the Liberal/National Government’s third term, there have been no new laws passed addressing LGBTI issues since then, and none appear to be on the horizon.
This is not because the job of LGBTI law reform in NSW is complete. Far from it. As I have written previously, NSW now has the worst LGBT laws in Australia, and is only saved from that title with respect to intersex issues because some other jurisdictions are similarly appalling.
At least part of the problem is that many people, both inside and especially outside our communities, erroneously believe the struggle is over. Which is where my idea for a pride flag for NSW comes in.
From my perspective, the pride flag is inherently political. A symbol of our strength and resilience in overcoming anti-LGBTI prejudice and abuse, as well as a reminder to continue fighting until all lesbian, gay, bisexual, transgender and intersex people are truly ‘free and equal’.
With that in mind, here is what I think the six colours of the ‘traditional’ pride flag[i] could stand for in NSW today, as a way of bringing attention to at least some of the essential reforms which are still yet to be won here.
Red: Ban conversion practices
Anti-gay and anti-trans conversion practices (sometimes described as ‘ex-gay’ or ‘ex-trans’ therapy) continue in Australia today. Several jurisdictions have already taken steps to ban these practices, with general prohibitions, including in religious environments, now law in Victoria and the ACT, and a more limited ban, only covering health settings, in Queensland. Other states, including Tasmania, are actively considering their own legislation.
To date, the Berejiklian Liberal/National Government has given no firm indication they are considering laws to outlaw these destructive practices. They need to be pressured into taking urgent action to stop them.
Amber/Orange: Protect LGBT students & teachers
By now, we are all familiar with ‘amber alerts’ in the media to draw attention to vulnerable children in danger. Well, every day in NSW there should be an amber alert for LGBT kids – because, in 2021, religious schools are still legally permitted to discriminate against them on the basis of their sexual orientation and/or gender identity.
That is in part because of Scott Morrison’s broken promise from 2018 to amend the Sex Discrimination Act 1984(Cth) to remove the special privileges allowing religious schools to abuse, mistreat, suspend or even expel students just because of who they are.
But it is also because the Berejiklian Liberal/National Government refuses to repeal the special privileges contained in its own law, the Anti-Discrimination Act 1977 (NSW). Indeed, the exceptions in NSW are actually worse, because they permit all private schools, colleges and universities to discriminate, not just those that are religious (making NSW the only jurisdiction in Australia to do so).
Of course, LGBT students are not the only victims of such discrimination. The same provisions also allow private educational authorities to discriminate against LGBT teachers.
If we genuinely want our schools to be safe learning environments where all people are encouraged to reach their full potential, then the NSW Government must protect both LGBT students and teachers from discrimination.
Yellow: End coercive intersex surgeries
As I have written elsewhere, the worst human rights abuses currently affecting any part of the Australian LGBTI community are coercive medical treatments, including surgeries and other interventions, on children born with intersex variations of sex characteristics.
These egregious human rights violations carry lifelong consequences which is why they must be deferred until intersex people can consent, or not consent, to them. Some jurisdictions, including Tasmania and the ACT, appear to be moving in that direction. As yet, there is no sign of similar progress in NSW.
[NB The yellow comes from the intersex pride flag, which is yellow and purple.]
Under the Births, Deaths and Marriages Registration Act 1995 (NSW), trans and gender diverse people must undergo ‘a surgical procedure involving the alteration of a person’s reproductive organs… for the purpose of assisting a person to be considered a member of the opposite sex’ before being allowed to update their birth certificate to reflect their gender identity.
This requirement is both unnecessary and inappropriate, especially when some people may not wish to undergo such surgeries, while others cannot afford to do so given the prohibitive costs involved.
NSW has fallen behind the majority of other Australian jurisdictions which have updated their birth certificate laws to allow access based on self-identification only (which is best practice), or at least without physical medical interventions. It is time the Government gave the green light to trans and gender diverse people here to access birth certificates without any medical gate-keeping.
Trans and gender diverse people in NSW are also let down by confusing and outdated anti-discrimination protections, as amply demonstrated by the controversy surrounding discriminatory efforts to prevent trans women who have not undergone surgery from accessing McIver’s Ladies Baths in Coogee.
On one hand, there is a definition of ‘recognised transgender person’ in section 4 of the Anti-Discrimination Act 1977 (NSW) which some people might, mistakenly, try to use to justify limiting access on the basis of surgery:
‘recognised transgender person means a person the record of whose sex is altered under Part 5A of the Births, Deaths and Marriages Registration Act 1995[iii] or under the corresponding provisions of a law of another Australian jurisdiction.’
Except the substantive protections against transgender discrimination apply irrespective of whether the person has had surgery. According to section 38A:
‘A reference in this Part to a person being transgender or a transgender person is a reference to a person, whether or not the person is a recognised transgender 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…
and includes a reference to the person being thought of as a transgender person, whether the person is, or was, in fact a transgender person’ [emphasis added].
Which means discriminating against transgender women who have not had surgery would probably be found to be unlawful.
Given this, the misleading definition of ‘recognised transgender person’ should be removed from section 4.
In other words, non-binary people in NSW are not explicitly covered by the Anti-Discrimination Act 1977. The NSW Government must remedy this by replacing ‘transgender’ with ‘gender identity’, potentially based on the definition in the Sex Discrimination Act 1984 (Cth):
‘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’.
Lavender/Purple: Bisexual discrimination law reform
The definition of transgender is not the only outdated terminology in the Anti-Discrimination Act 1977 (NSW). The other protected attribute covering (some parts) of the LGBTI community is currently ‘homosexual.’ Section 4 of the Act defines that term to mean ‘male or female homosexual.’
This omission is truly appalling. It is well beyond time for the NSW Government to update the Anti-Discrimination Act to cover sexual orientation generally, in line with other jurisdictions including the Commonwealth Sex Discrimination Act 1984:
‘sexual orientation means a person’s sexual 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.’
[NB The lavender comes from the bisexual pride flag, which is pink, lavender and blue.]
But, in my opinion, these are some of the most essential reforms in order for people to feel pride that we are making real progress in overcoming homophobia, biphobia, transphobia and intersexphobia.
I started this article by highlighting the fact today is the 10th anniversary of the election of the NSW Liberal/National Government.
Coincidentally, today also marks 100 weeks until the planned opening ceremony of World Pride 2023 in Sydney.
That means Premier Gladys Berejiklian has exactly 100 weeks to deliver on each of the six issues identified here.
If her Liberal/National Government fails to make these long-overdue and much-needed changes in that time, then I suggest we fly this ‘pride flag for NSW’ at half-mast during that opening ceremony to acknowledge the damage inflicted and pain caused by their ongoing inaction.
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Footnotes:
[i] I also personally support the newer ‘Progress’ version of the pride flag, incorporating both elements of the trans flag, and black and brown stripes to represent people of colour.
[ii] The blue here could either represent part of the trans pride flag – which is blue, pink and white – or the blue of the Pacific Ocean at McIver’s Ladies Baths.
[iii] Which, as we have seen, only allows the granting of new identity documentation following invasive surgeries.
[iv] Indeed, the Anti-Discrimination Act 1977 (NSW) also needs to be updated to include a new protected attribute of ‘sex characteristics’ covering intersex people, and to remove the general exception in section 56(d) which allows a wide range of religious organisations to discriminate against LGBT employees and people accessing their services.