Sydney: World Pride and Legal Prejudice

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.

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’.

While there 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.

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

Footnotes:


[i] 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).

NSW Equality Bill Submission

4 July 2022

Alex Greenwich

Member for Sydney

Via email: sydney@parliament.nsw.gov.au

Dear Mr Greenwich

Submission re Equality Bill Consultation

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)

As noted above, NSW also has the equal worst birth certificate laws in the country. It is one of just two jurisdictions, alongside Queensland, which still requires transgender people to have genital surgery in order to access identity documentation reflecting their gender identity. 

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.

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

Footnotes:


[i] 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.

Not Going Backwards is Not the Same Thing as Going Forwards

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.

NSW Premier Dominic Perrottet

No Cause for Celebration

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Friends, Jagged Little Pill and Transphobia in the NSW Legislative Council

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.

But it is downright depressing comparing the circumstances surrounding the Transgender (Anti-Discrimination and Other Acts) Act 1996 – which received royal assent 25 years ago this Saturday (19 June 1996) – and the current Parliamentary inquiry into the Education Legislation Amendment (Parental Rights) Bill 2020.

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.

As I have written elsewhere, this legislation is the worst legislative attack on LGBTI rights in Australia this century.

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.

Indeed, over the last decade, South Australia, the ACT, Northern Territory, Tasmania and Victoria have all removed any requirement for transgender people to have physically invasive medical treatment in order to obtain new identity documentation.

While the re-elected McGowan Labor Government in WA is under pressure to implement the recommendations of a 2018 WA Law Reform Commission Report which supported the same, and the Palaszczuk Labor Government has committed to introduce its own changes later this year.

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.

*****

Take Action

Following correspondence I sent in February calling on NSW MPs to reject the Education Legislation Amendment (Parental Rights) Bill 2020, today I sent the below short email to the Premier, Opposition Leader, and the Education Minister and Attorney General, plus their shadows. I encourage you to do the same (their contact details are included underneath the text):

Dear Premier

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.

Sincerely

Alastair Lawrie

*****

Premier Gladys Berejiklian webform: https://www.nsw.gov.au/premier-of-nsw/contact-premier

Education Minister Sarah Mitchell webform: https://www.nsw.gov.au/nsw-government/ministers/minister-for-education-and-early-childhood-learning

Attorney General Mark Speakman webform: https://www.nsw.gov.au/nsw-government/contact-a-minister/attorney-general-and-minister-for-prevention-of-domestic-and-sexual-violence

Opposition Leader Chris Minns email: kogarah@parliament.nsw.gov.au

Deputy Opposition Leader and Shadow Minister for Education Prue Car email: londonderry@parliament.nsw.gov.au

Shadow Attorney General Michael Daley email: maroubra@parliament.nsw.gov.au

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

Footnotes:


[i] 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.  

[vi] One of many reasons why the NSW Anti-Discrimination Act is the worst LGBTI anti-discrimination law in Australia. For more, see: What’s Wrong with the NSW Anti-Discrimination Act 1977?

[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…

A Pride Flag for NSW

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.]

Green: Improve birth certificate access

NSW now has the equal worst birth certificate laws in Australia, alongside Queensland. 

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.

Blue[ii]: Trans discrimination law reform

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.

However, that would still not address a far bigger problem, including with the broader definition in section 38A: it likely only applies to people with ‘binary’ gender identities, because of its use of the outdated concept of ‘opposite sex’.

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.’

That narrow definition means NSW’s anti-discrimination laws are the only such laws in Australia that fail to protect bisexuals against discrimination.

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.]

The six issues discussed above are of course not an exhaustive list. There are plenty of other LGBTI laws and policies which also need to be amended by NSW to provide genuine equality to its citizens irrespective of sexual orientation, gender identity and sex characteristics.[iv]

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.

Welcome to Sydney: Australia’s Capital of Homophobia, Biphobia and Transphobia

Over the past week, the Australian media has been busy re-living the Sydney 2000 Olympics during its 20thanniversary. While this trip down nostalgia lane has been a welcome distraction from the living nightmare that is 2020, it has also been a reminder of the lost opportunity to build on that brief moment of unity.

To borrow from a certain fracking drag queen reality TV host, in the two decades since the Olympics Sydney[i] has been ‘resting on pretty’.

In terms of the lesbian, gay, bisexual, transgender and intersex (LGBTI) community, the situation could just as easily be described as ‘resting on party’.

Known around the world for the Gay & Lesbian Mardi Gras Parade, Party and Festival, Sydney’s reputation as an LGBT-inclusive city is not reflected in the reality of its laws, politics and media.

Indeed, in terms of legal rights, Sydney and the state of NSW now have the worst LGBTI laws of any jurisdiction in Australia. If that sounds like a hyperbolic claim, consider this:

For lesbians and gay men, the NSW Anti-Discrimination Act 1977 (ADA) offers the weakest protections against discrimination of any state and territory anti-discrimination law.

That is because the exceptions in section 56(d) – allowing religious organisations to lawfully discriminate against us – are the equal-broadest in the country (and a long way behind the best practice laws in Tasmania), while NSW is the only place to allow all private schools, religious and non-religious alike, to discriminate against students, teachers and other staff on the basis of their sexual orientation and gender identity.

For bisexuals, the situation is even worse. The ADA is the only anti-discrimination law in Australia that does not actually protect bisexual people against discrimination. At all. 

For trans and gender diverse people, NSW’s laws – covering multiple areas of life – are also the worst in the country.

The ADA only protects transgender people with binary gender identities (‘male-to-female’ or ‘female-to-male’), while excluding people who identify as non-binary (although, sadly, it is not the only jurisdiction to do so: Victoria, Queensland, Western Australia, South Australia and the Northern Territory also offer limited protection). 

As with lesbians and gay men, however, the ADA allows all private schools, even those that are non-religious, to discriminate against transgender students, teachers and other staff.

NSW also has the equal-worst framework for trans and gender diverse people to access birth certificates reflecting their gender identity: alongside Queensland, it still requires surgery in order to obtain new identity documents. Unlike Queensland, however, there has been zero indication the NSW Government is interested in removing this unjust and unnecessary hurdle.[ii]

Intersex people might be the only LGBTI group in respect of which NSW does not have the outright worst laws in Australia. Sadly, that’s more due of the lack of progress in the majority of states and territories, than it is because of any particular progress on intersex law reform here.

The ADA does not provide anti-discrimination protection on the basis of ‘intersex status’[iii] or ‘sex characteristics’[iv] – although neither does Victoria, Queensland, Western Australia or the Northern Territory.[v]

Meanwhile, no Australian jurisdiction has prohibited the ongoing human rights abuses that are unnecessary surgeries and other involuntary medical treatments on children born with intersex variations of sex characteristics.

In encouraging news, the Tasmanian Law Reform Institute recommended criminalisation of non-consensual, deferrable medical interventions on children in June 2020, while the Australian Human Rights Commission is currently also engaged in a project on this issue. However, as far as I am aware, there is no equivalent work being undertaken by the NSW Government.

Finally, Queensland recently introduced prohibitions on sexual orientation and gender identity conversion practices (albeit only within healthcare settings), while the ACT passed more comprehensive reforms which targeted conversion practices more broadly, including in religious environments.

Bans on gay and trans conversion practices are also seriously being considered in South Australia, Tasmania and Victoria. However, once again, there have been no signs whatsoever that the NSW Government, or Parliament, are interested in ending this psychological torture.

Overall, then, it is clear that on contemporary LGBTI law reform issues – from expanding anti-discrimination protections, enacting birth certificate reform, ending non-consensual medical interventions on intersex children, to eradicating gay and trans conversion practices – NSW is a laggard.

Sydney might be a beautiful city, but on LGBTI rights NSW is undeniably backward.

Some people might argue that the people of Sydney are more accepting of the LGBTI community than their politicians. And that may be partly true, especially in patches. However, the outcome of the 2017 same-sex marriage law postal survey contradicts that view.

NSW was the only state or territory in Australia where the Yes vote for marriage equality was lower than 60%: just 57.8% of people in NSW supported removing anti-LGBTI discrimination from the Marriage Act 1961(Cth). The next lowest state was Queensland, but its result was nearly 3 points higher (60.7%).

More damningly, only 17 electorates around Australia did not record a majority Yes vote. 12 of those were found in metropolitan Sydney,[vi] including the seven electorates with the highest No vote (reaching up to 73.9% No in Blaxland).

Based on this (admittedly context-specific) example, Sydney has the highest rates of homophobia, biphobia and transphobia in the entire country.

The history of marriage equality in Australia is just as illustrative of the corrosive impact politicians from Sydney have had on the rights of all LGBTI Australians.

The Liberal Prime Ministers who first banned marriage equality (John Howard), first proposed to hold an unnecessary, wasteful, divisive and harmful public vote on our rights (Tony Abbott),[vii] actually held that vote (Malcolm Turnbull) and paid for it (Scott Morrison, as Treasurer), were all from Sydney.

Morrison in particular is on track to be the worst Prime Minister on LGBTI issues in Australia’s history, from his ‘gender whisperer’ comments, to his broken promise to protect LGBT students against discrimination, and the proposed Commonwealth Religious Discrimination Bill which overrides, and undermines, existing LGBT anti-discrimination protections. 

It is likely no coincidence Sydney is the home of News Corp Australia, where it publishes Bernard Lane’s campaign against trans-affirming healthcare (in The Australian) and Miranda Devine’s columns targeting LGBTI-inclusive education (in the Daily Telegraph).

Perhaps the most depressing realisation of all is that, in September 2020, there is more chance things will get worse rather than better.

As we have already seen, there are no public signs the NSW Government is interested in reforming trans and gender diverse access to birth certificates, ending non-consensual medical interventions on intersex children, or banning gay and trans conversion practices.

Nor is there any current indication they will act to modernise the nation’s worst LGBTI anti-discrimination law, to include bisexuals, non-binary people and intersex people, and repeal the exceptions which allow religious organisations, and private schools, to lawfully discriminate against our community.

Even at a procedural level, the NSW Government does not have a formal LGBTI consultative mechanism, unlike the Victorian LGBTIQ Taskforce, Queensland LGBTI Roundtable, ACT LGBTIQ+ Ministerial Advisory Council, and a range of long-standing Tasmanian LGBTIQ+ Government working groups.

On the other hand, while there are no legislative proposals to improve the rights of LGBTI people currently before NSW Parliament, there are several Bills which, if passed, would set our legal rights back even further.

That includes the Mark Latham/One Nation Anti-Discrimination (Religious Freedoms and Equality) Bill 2020, that would undermine our existing, limited protections against discrimination, which the Government and Opposition nevertheless saw fit to refer to a Joint Select Committee for consideration.

And then there’s the truly awful Education Legislation Amendment (Parental Rights) Bill 2020 – also from Latham/One Nation – which not only seeks to erase trans and gender diverse students and teachers entirely from all NSW schools, but also attempts to introduce a UK ‘section 28’-style provision making life difficult for all LGBTI kids, while introducing an erroneous and stigmatising legislative definition of intersex, too.

That Bill has also been referred to a Parliamentary Committee for inquiry – with the Committee chaired by Mark Latham himself.

We are now 18 months into the Berejiklian Liberal/National Government’s term. It is time for them to step up – not just to defend LGBTI people in NSW against Mark Latham’s, and One Nation’s, attacks on our community, by rejecting outright his deeply flawed ‘religious freedom’ and anti-trans kids legislative proposals.

But also to make long-overdue progress on other important issues, including birth certificate changes, protecting intersex kids, ending conversion practices and engaging in broader anti-discrimination reforms.

As of this week, they have 30 months left until the next State election. How they use their time between now and 25 March, 2023, will determine whether NSW will continue to have the worst LGBTI laws in Australia, or at least something closer to the national average.

There is another significant event in Sydney from mid-February to early March in 2023 which is highly relevant to this conversation: World Pride will be hosted by the Sydney Gay & Lesbian Mardi Gras.

Assuming it is not cancelled because of coronavirus, large numbers of LGBTI eyes from around the globe will be focused squarely on us. The world already knows Sydney puts on a good party, Olympics, Mardi Gras or otherwise. But during World Pride they will also be looking at the State of our rights.

If the NSW Government doesn’t undertake essential, and long overdue, reforms in the next two-and-a-half years, we will be greeting our international guests by saying ‘Welcome to Sydney: Australia’s capital of homophobia, biphobia and transphobia’.

**********

Take Action

Of course, it doesn’t have to be this way. There are at least three things you can do to avoid that potential embarrassment (a good outcome) and make the lives of LGBTI people in NSW better on a day-to-day basis (a great one):

  1. Get involved

For too long, the burden of fighting for our rights has been borne by too few. There are a range of different organisations you can join or support to help make a difference, including:

And there are plenty of others too (including Union Pride, as well as LGBTI advocacy groups within political parties). 

2. Defend our community against attacks

As the above article (hopefully) makes clear, LGBTI rights in NSW are currently under attack by Mark Latham.

You can help the campaign against One Nation’s Education Legislation Amendment (Parental Rights) Bill, aka the anti-trans kids Bill, in the following ways:

  • Sign the Gender Centre, just.equal and AllOut petition 
  • Sign Sam Guerra’s individual Change.Org petition (which is already over 80,000 signatures), and
  • Use Equality Australia’s platform to write to the Premier, Deputy Premier, Education Minister, Opposition Leader and Education Minister here.

You can also find out about, and take action against, the One Nation Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020 on the Equality Australia website here.

3. Support campaigns for positive change

A lot of our time, at both NSW and Commonwealth level, is currently being spent fighting against proposals that would take our rights backward. That is necessary and important work – but we won’t achieve progress without campaigns which seek to make our existing laws better.

Whether it is anti-discrimination law reform, improving birth certificate access, ending non-consensual medical interventions on intersex children, or banning gay and trans conversion practices – or a wide range of other important LGBTI issues – find a campaign and help drive it forward.

Positive change doesn’t happen in a vacuum, it happens when we use our voice.

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

Footnotes:

[i] I should clarify here that this post is about the small ‘c’ city of Sydney (meaning the large metropolitan area of 5 million people), and not the capital ‘C’ City of Sydney Council, which is largely progressive.

[ii] Disappointingly, the Queensland Government has failed to make progress on birth certificate reform since its 2018 Discussion Paper, and, as far as I am aware, have not promised to take action on this issue even if they are re-elected on 31 October.

[iii] Which is a protected attribute in both the Sex Discrimination Act 1984 (Cth) and Equal Opportunity Act 1984 (SA).

[iv] Which is the preferred protected attribute for intersex advocates, as per the March 2017 Darlington Statement, and was recently included in the Discrimination Act 1991 (ACT), while the Tasmanian Anti-Discrimination Act 1998 covers ‘intersex variations of sex characteristics’.

[v] ‘Intersex status’ was included in the 2018 amendments to the Crimes Act 1900 (NSW), which prohibited ‘public threats of violence on grounds of race, religion, sexual orientation, gender identity or intersex or HIV/AIDS status’, although to date this legislation has still not been used.

[vi] Of the other five, three were in regional Queensland, and two were in suburban Melbourne. Zero electorates in Western Australia, South Australia, Tasmania, the ACT and the Northern Territory voted No.

[vii] Tony Abbott’s decision, as Opposition Leader, to deny Coalition MPs and Senators a conscience vote also cruelled any chance of Stephen Jones’ 2012 marriage equality legislation being passed.

Did You Know? Most Australian Jurisdictions Don’t Prohibit Anti-LGBTI Vilification

Hate-speech against minority groups is inherently harmful, and most people accept it should be regulated in some way (even if there is debate about what such regulation should look like).

Indeed, almost a quarter of a century since racial vilification was prohibited under Commonwealth law – the Racial Hatred Act was passed by Parliament in August 1995 – many probably assume that vilification against minority groups, including against lesbian, gay, bisexual, transgender and intersex (LGBTI) people, is already outlawed.

Which means that some would likely be surprised to discover the majority of Australian jurisdictions do not prohibit vilification against LGBTI people, and that even among those states and territories that do, only two cover all parts of our community.

Tasmania

The first jurisdiction that prohibits vilification against all of lesbians, gay men, bisexuals, transgender and intersex people is Tasmania.

Section 19 of the Anti-Discrimination Act 1998 (Tas) outlaws ‘inciting hatred’:

‘A person, by a public act, must not incite hatred towards, serious contempt for, or severe ridicule of, a person or a group of persons on the ground of’ protected attributes including sexual orientation, gender identity and intersex variations of sex characteristics.’

Tasmania also has best practice protections under section 17(1), which further provides that:

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

Once again, the attributes covered include sexual orientation, gender identity and intersex variations of sex characteristics.

Australian Capital Territory

The ACT is the second jurisdiction that prohibits vilification against all of lesbians, gay men, bisexuals, transgender and intersex people.

Section 67A of the Discrimination Act 1991 (ACT) makes vilification unlawful:

‘It is unlawful for a person to incite hatred toward, revulsion of, serious contempt for, or severe ridicule of a person or group of people on the ground of any of the following, other than in private:

(b) gender identity

(d) intersex status

(g) sexuality.’

Although it should be noted that intersex advocates have called for discrimination and vilification protections on the basis of ‘intersex status’ to be replaced by the attribute of ‘sex characteristics’,[i] based on the definition in the Yogyakarta Principles plus 10.[ii]

Queensland

Queensland is one of two other jurisdictions that protect some, but not all, parts of the LGBTI community against vilification.

Section 124A of the Anti-Discrimination Act 1991 (Qld) provides that:

‘A person must not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race, religion, sexuality or gender identity of the person or members of the group.’[iii]

And it should be noted that the definition of gender identity in this Act only includes ‘binary’ transgender gender, not non-binary or other gender diverse people (‘gender identity, in relation to a person, means that the person… identifies, or has identified, as a member of the opposite sex by living or seeking to live as a member of that sex’).

Meaning that only LGB and some T Queenslanders are protected. Unfortunately, there is no indication the Queensland Government will update the definition of gender identity, and include sex characteristics as a protected attribute, before the upcoming state election, scheduled for 31 October 2020.

New South Wales

The situation in NSW is far more complex. The Anti-Discrimination Act 1977 (NSW) contains civil sanctions against vilification targeting binary transgender people, as well as lesbians and gay men.

Specifically, section 38S(1) prohibits anti-transgender vilification:

‘It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of-

(a) a person on the ground that the person is a transgender person, or

(b) a group of persons on the ground that the members of the group are transgender persons.’

However, this clause does not protect non-binary or other gender diverse people, because the definition in section 38A of the Act is out-dated:

‘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.’

Section 49ZT(1) then prohibits vilification – meaning inciting hatred towards, serious contempt for, or severe ridicule – of ‘a person or group of persons on the ground of the homosexuality of the person or members of the group’.

Note that this only refers to homosexuality, meaning civil sanctions under the Anti-Discrimination Act 1977 (NSW) do not cover bisexual people.

On the other hand, amendments to the Crimes Act 1900 (NSW), introduced in 2018, created a criminal offence of ‘publicly threatening or inciting violence on grounds of race, religion, sexual orientation, gender identity or intersex or HIV/AIDS status’. Section 93Z(1) now provides that:

‘A person who, by a public act, intentionally or recklessly threatens or incites violence towards another person or a group of persons on any of the following grounds is guilty of an offence:

(c) the sexual orientation of the other person or one or more of the members of the group

(d) the gender identity of the other person or one or more of the members of the group

(e) that the other person is, or one or more of the members of the group are, of intersex status…’

The individual penalty for contravention of this provision is up to 100 penalty units or 3 years imprisonment (or both).

The next NSW state election is not due until 25 March 2023, meaning there is plenty of time available for the current Government to amend the Anti-Discrimination Act 1977 (NSW) to ensure its civil vilification prohibitions also cover bisexuals, non-binary or other gender diverse people and intersex people – as well as fixing some of the many, many other problems with Australia’s worst LGBTI anti-discrimination law.[iv]

*

Five other jurisdictions do not prohibit anti-LGBTI vilification, at all:

Commonwealth

There is currently no prohibition – civil or criminal – on anti-LGBTI vilification in Commonwealth law.

This remains the case almost 25 years since the Racial Hatred Act 1995 (Cth) added section 18C to the Racial Discrimination Act 1975 (Cth) (‘the RDA’):

‘(1) It is unlawful for a person to do an act, otherwise than in private, if:

(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.’

Unfortunately, it seems far more likely the Morrison Liberal/National Government will wind back section 18C of the RDA (something former Attorney-General George Brandis attempted, but thankfully failed, to do), than to introduce an LGBTI equivalent before the next federal election, due in May 2022.

Indeed, current Attorney-General Christian Porter’s proposed Religious Discrimination Bill, if passed, would immediately undermine Tasmania’s existing prohibition on conduct which offends, humiliates, intimidates, insults or ridicules LGBTI people,[v] as well as leaving the door open to explicitly overriding all state and territory LGBTI anti-vilification laws, via simple regulation, in the future.[vi]

Victoria

Victoria is another jurisdiction that fails to protect LGBTI people against vilification.

The Equal Opportunity Act 2010 (Vic) contains no prohibitions against vilification, for anyone. While, as the name suggests, the Racial and Religious Tolerance Act 2001 (Vic) currently only prohibits racial and religious vilification.

On the positive side, and unlike the Commonwealth, there are at least signs of possible progress in Victoria, with Fiona Patten MLC having introduced a Racial and Religious Tolerance Bill 2019. Her Bill would add sexual orientation, gender identity and sex characteristics (among other categories) to the list of protected attributes in that Act.

The issue of anti-vilification protections is also being considered by a parliamentary committee, with that inquiry due to report by 1 September 2020.[vii] Which leaves sufficient time for the Victorian Government to take action to address this shortcoming before the next election, on 26 November 2022.

Western Australia

Another jurisdiction with disappointingly out-dated anti-discrimination legislation – perhaps the second-worst in the country behind only NSW – is Western Australia.

The Equal Opportunity Act 1984 (WA) does not contain any prohibitions on vilification, on any attribute. However, the Criminal Code Act 1913 (WA) does create a range of offences linked to racial vilification[viii] – although there are no equivalent offences for anti-LGBTI vilification.

The Western Australian Government has referred the Equal Opportunity Act 1984 (WA) to the Law Reform Commission of Western Australia for review. Encouragingly, one of the terms of reference for this inquiry is to consider ‘the inclusion of vilification, including racial, religious, sexual orientation and impairment vilification’.

However, the website for the inquiry has not been updated for more than 12 months (since 6 March 2019), and the next Western Australian election is due in less than 12 months (scheduled for 13 March 2021), making it highly unlikely for LGBTI anti-vilification protections to be passed this term.

South Australia

South Australia also has no anti-vilification coverage for the LGBTI community.

The Equal Opportunity Act 1984 (SA) does not include any vilification provisions, while, as the name suggests, the Racial Vilification Act 1996 (SA) only covers vilification based on race.

Unlike Victoria and Western Australia, though, I am not aware of any South Australian Government processes considering the issue of LGBTI anti-vilification laws prior to their next state election, to be held on 19 March 2022.

Northern Territory

The Northern Territory is unique, in that it is the only Australian jurisdiction without its own racial vilification provisions. However, section 18C of the RDA still applies, which means racial vilification is outlawed – there is no such luck for LGBTI Territorians.

The Northern Territory Attorney-General’s Department did conduct a public consultation about their Anti-Discrimination Act (NT) in January 2018, which included consideration of ‘introducing specific anti-vilification laws prohibiting offensive conduct on the basis of race, religious belief, disability, sexual orientation, gender identity and intersex status.’

Unfortunately, that inquiry’s website has not been updated since May 2019 – with that ‘radio silence’ making it extremely unlikely LGBTI anti-vilification laws will be passed before the Northern Territory election which is just over two months away (22 August 2020).

*

Vilification against members of the lesbian, gay, bisexual, transgender and intersex community can be incredibly damaging, especially for younger and/or vulnerable individuals. This was demonstrated, painfully and unequivocally, by the harm caused by the Turnbull Liberal/National Government’s wasteful and unnecessary same-sex marriage postal survey in 2017.

However, it is disturbing to realise that, in 2020, fewer than one million Australians – out of a population of more than 25 million – live in jurisdictions that prohibit vilification against all parts of the LGBTI community: Tasmania and the ACT.

As we have seen, another two states – Queensland and NSW – offer only partial coverage, while the Commonwealth, Victoria, Western Australia, South Australia and Northern Territory offer no legal protection at all.

Well. That. Is. Simply. Not. Good. Enough.

This winter, I will be regularly posting about these and other serious weaknesses of Australian LGBTI anti-discrimination laws.[ix] #WinterOfDiscriminationContent. To follow, you can:

  • Sign up to my blog (via the right-hand scroll bar on desktop, or near the bottom of the page on mobile)
  • Follow me on twitter, and/or
  • Like No Homophobia, No Exceptions on Facebook.

Anti-discrimination protections are essential to the full participation of lesbian, gay, bisexual, transgender and intersex people in Australian life. And we have allowed them to atrophy for far too long. So, as well as fighting against a Religious Discrimination Bill that undermines those rights we already have, we need to fight even harder to make sure LGBTI anti-discrimination and anti-vilification laws are made much, much better.

LGBTI Vilification Australia June 2020

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

Footnotes:

[i] ‘Article 9. We call for effective legislative protection from discrimination and harmful practices on grounds of sex characteristics.’ Darlington Statement, 10 March 2017.

[ii] ‘Understanding ‘sex characteristics’ as each person’s physical features relating to sex, including genitalia and other sexual and reproductive anatomy, chromosomes, hormones, and secondary physical features emerging from puberty.’ The Yogyakarta Principles plus 10: Additional principles and state obligations on the application of international human rights law in relation to sexual orientation, gender identity, gender expression and sex characteristics to complement the Yogyakarta Principles, 10 November 2017.

[iii] Somewhat confusingly, section 124A is found in Chapter 4, Part 4 of the Anti-Discrimination Act 1991 (Qld), titled ‘Racial and religious vilification’, which may lead some people to erroneously assume LGBT vilification is not prohibited.

[iv] For more, see What’s Wrong With the NSW Anti-Discrimination Act 1977?

[v] Clause 42(1)(b) of the Second Exposure Draft Religious Discrimination Bill.

[vi] Clause 42(1)(c) of the Second Exposure Draft Religious Discrimination Bill. For more, see: The ‘Bad Faith’ Religious Discrimination Bill Must Be Blocked.

[vii] You can see my submission to that inquiry, here.

[viii] Including:

Section 77 Conduct intended to incite racial animosity or racist harassment

Section 78 Conduct likely to incite racial animosity or racist harassment

Section 79 Possession of material for dissemination with intent to incite racial animosity or racist harassment

Section 80 Possession of material for dissemination that is likely to incite racial animosity or racist harassment

Section 80A Conduct intended to racially harass

Section 80B Conduct likely to racially harass.

[ix] For a comparative analysis, see A Quick Guide to Australian LGBTI Anti-Discrimination Laws.

Did You Know? The NSW Anti-Discrimination Act Doesn’t Protect Bisexuals Against Discrimination

The Sydney Gay & Lesbian Mardi Gras Parade is on tonight, and I am looking forward to attending the festivities in Taylor Square.

Although it will likely be in less noteworthy company than last year when, through an unlikely combination of circumstances, I ended up watching most of the parade standing next to NSW Premier Gladys Berejiklian.

Always the activist, and never one to waste an opportunity, I did manage to ask her an LGBTI rights question during the event. The question I chose:

Are you aware that NSW is the only jurisdiction in Australia that does not protect bisexuals against discrimination?

The Premier answered that ‘no, she wasn’t aware of that’ (or words to that effect) before turning back to talk to her companions.

In her defence, she would not have been alone in not knowing about this bizarre, and unacceptable, loophole in the NSW Anti-Discrimination Act 1977 (although she definitely cannot claim ignorance now).

It is a gap that has existed from the time discrimination on the basis of homosexuality was prohibited in late 1982 (a full 18 months before male homosexuality was even decriminalised in this state).

And one that wasn’t fixed when a definition of ‘homosexual’ was inserted in section 4 of the Anti-Discrimination Act in 1994: ‘homosexual means male or female homosexual’.

This is the definition that remains to this day. Which quite clearly excludes people whose sexual orientation is towards people of the same sex and people of different sexes. [Interestingly, it also prevents heterosexual people from enjoying protection under the Act].

As I stated in my question to Ms Berejiklian, NSW is alone in having such a narrow definition.

The Commonwealth prohibits discrimination on the basis of ‘sexual orientation’ in the Sex Discrimination Act 1984, with a definition that clearly covers lesbian, gay, bisexual and heterosexual people.

Victoria, Western Australia, South Australia and Tasmania all also prohibit discrimination on the basis of ‘sexual orientation’, while Queensland the Australian Capital Territory and the Northern Territory cover ‘sexuality’ [for more, see A Quick Guide to Australian LGBTI Anti-Discrimination Laws].

What does NSW’s exclusion of bisexuals mean in a practical sense?

Well, on the positive side, because bisexuals are still protected under the Commonwealth Sex Discrimination Act, discrimination against them in NSW remains prohibited in most (although not all) circumstances.

However, there are limits to this coverage – limits that do not apply to lesbians and gay men.

For example, section 13 of the Sex Discrimination Act provides that protections against discrimination in employment under that Act ‘do not apply in relation to employment by an instrumentality of a State.’

Instrumentalities are independent government agencies or corporations. In effect, bisexual employees of independent NSW Government agencies are not protected against discrimination during their employment.[i] Ironically, this means bisexual employees of Anti-Discrimination NSW itself are potentially not protected.

Another practical effect of the exclusion of bisexuals from the NSW Anti-Discrimination Act 1977 is that they are not covered by civil prohibitions on vilification, unlike their gay and lesbian counterparts.

For example, section 49ZT of the Act defines homosexual vilification as ‘to incite hatred towards, serious contempt for, or severe ridicule of, a person of group of persons on the ground of the homosexuality of the person of members of the group.’

Because there is also no prohibition against anti-LGBTI vilification at Commonwealth level, this means bisexual people cannot make a civil complaint of vilification in any circumstance.

Confusingly, bisexual people are protected by the 2018 amendments to the Crimes Act 1900 (NSW), with section 93Z(1)(c) criminalising:

‘a public act [that] intentionally or recklessly threatens or incites violence towards another person or a group of persons on [the ground of] the sexual orientation of the other person or one or more of the members of the group.’

Sexual orientation is then broadly defined in section 93Z(5) as:

‘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.’

Which is obviously welcome, but invites the logical question that, if the NSW Government was willing to include ‘sexual orientation’ in the Crimes Act, why hasn’t it also updated the NSW Anti-Discrimination Act along the same, inclusive, lines?

The third practical effect of the general exclusion of bisexuals from the NSW Anti-Discrimination Act is that it limits their options in terms of where to lodge complaints and/or file lawsuits.

Whereas lesbians and gay men discriminated against in NSW have the ability to complain to either Anti-Discrimination NSW or the Australian Human Rights Commission (AHRC) – and therefore of pursuing legal action in either the NSW Civil and Administrative Tribunal (NCAT) or multiple courts – bisexuals can only complain to the AHRC and can only file in court.

This has implications in terms of the timelines for lodging complaints, the allocation of costs and the potential award of damages.

Each of these practical effects should be sufficient in and of itself to convince the NSW Government to update the Anti-Discrimination Act 1977, and replace ‘homosexuality’ with ‘sexual orientation’.

But, as with most anti-discrimination laws, the symbolic effect is just as important. After all, what does it say about the place of bisexuals in our own community, and society more widely, that they continue to be excluded from the primary legislation in this state which is designed to ensure all people are treated equally?

Unfortunately, it is not just bisexuals who are excluded in this way either.

The NSW Anti-Discrimination Act 1977 also excludes non-binary people, because the definition of transgender in section 38A only covers someone who ‘identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex, or who has identified as a member of the opposite sex by living as a member of the opposite sex’.

Similarly, the Act also fails to provide discrimination protections to intersex people, because it does not include a protected attribute of either ‘sex characteristics’ (the terminology preferred by Intersex Human Rights Australia) or ‘intersex status’ (the protected attribute in the Commonwealth Sex Discrimination Act 1984).

Although, unlike for bisexuality, NSW is far from alone in these deficiencies:

  • NSW, Victoria, Queensland, Western Australia and the Northern Territory all fail to protect non-binary people, and
  • Those same jurisdictions (NSW, Victoria, Queensland, WA and the NT) also exclude intersex people from their discrimination frameworks.

There is a long, long way to go before Australian anti-discrimination laws adequately and appropriately protect LGBTI Australians against discrimination.

The NSW Anti-Discrimination Act 1977 arguably has the longest journey ahead.[ii] Let’s hope Premier Berejiklian hears that message loud and clear at tonight’s Mardi Gras – and every parade until this exclusionary and out-dated law is fixed.

Bi Pride

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

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Footnotes:

[i] To complicate matters, bisexual employees of NSW Government agencies are protected against unlawful termination, because section 772 of the Fair Work Act 2009 (Cth) applies. However, the adverse action protections in section 351 of that Act (which prohibit mistreatment during employment) don’t apply because they must also be prohibited by an equivalent Commonwealth, state and territory anti-discrimination law – which is not the case here.

[ii] For more problems see: What’s Wrong with the NSW Anti-Discrimination Act 1977?

The Right to Learn

The right to education is one of the most fundamental of all human rights.

 

This is both because education has incredible intrinsic value, and because of the significant consequences it can have on an individual’s life outcomes, from employment to health, housing and justice, as well as the ability to fully participate in society.

 

The community also has a collective interest in ensuring that all of its members are able to access the right to learn. Why then does Australia allow ongoing inequality in the enjoyment of this important right?

 

I could be talking here about the gross disparity in educational outcomes for Indigenous Australians compared to their non-Indigenous counterparts (with the latest Closing the Gap report showing that Governments are not on track to meet commitments for school attendance, and literacy and numeracy).

 

I could also be talking about the completely disproportionate levels of funding provided by the Commonwealth to private schools over public schools, with ACARA estimating that the Commonwealth Government allocated $8,053 for every private school student compared to just $2,645 per public school student in 2016-17. (Apparently some students are worth more than others.)

 

Instead, for the purposes of this article, I will focus on the fact that cisgender heterosexual students are better able to exercise their right to learn than lesbian, gay, bisexual and transgender (LGBT) students.

 

This is because cisgender heterosexual students in Australia are free to enjoy the right to education without fear of discrimination simply on the basis of these attributes. Unfortunately, the same is not true for far too many LGBT students around the country.

 

That is because the anti-discrimination laws of several Australian jurisdictions allow religious schools to lawfully discriminate against students on the basis of their sexual orientation and gender identity. This includes:

 

The Commonwealth Sex Discrimination Act 1984

 

The NSW Anti-Discrimination Act 1977 (which in fact allows all private schools and colleges to discriminate on the basis of homosexuality, and transgender, even where the school is not religious)

 

The Victorian Equal Opportunity Act 2010

 

The Western Australian Equality Opportunity Act 1984, and

 

The South Australian Equal Opportunity Act 1984 (although for South Australia the legal situation is not entirely certain).

 

On the other hand, LGBT students are legally protected against discrimination at religious schools in Queensland, Tasmania, the ACT and the Northern Territory [for a complete summary of the situation nationally see: Back to School, Back to Discrimination for LGBT Students and Teachers].

 

However, we should not allow this conversation to be dominated by dry legal analysis, when it is the discrimination these laws permit that we should highlight.

 

For example, these were just some of the responses to my 2017 survey looking at The State of Homophobia, Biphobia and Transphobia in Australia:

 

“I was given detention and threatened with suspension for revealing I was attracted to girls at a Christian high school. I was forced to endure hands-on prayer to rid me of the homosexual demons.”

 

“I was at a Christian private school in north Sydney, we had lessons in religion that focused on why being gay is wrong and how you can change.”

 

“My friend goes to a Catholic school and is bisexual. Her music teacher gives her shit about being bisexual and says that she is sinning and she will be going to hell.”

 

I also know from bitter personal experience just how toxic these environments can be, having (barely) survived five years at a religious boarding school in Queensland in the early 1990s.

 

As these accounts demonstrate, the discrimination LGBT students endure at the hands of religious schools concerns far more than simply admission, or expulsion – instead, it is more insidious, and effects every moment of every school day.

 

The fact this prejudice is legally allowed in several Australian jurisdictions is almost unbelievable – and totally unacceptable.

 

Students should be focused on studying for their exams, not studying how to conceal their sexual orientation or gender identity.

 

Students should be worrying about whether the person they ask to take to the formal says yes, not worrying that they will be suspended because their date is the same gender they are.

 

Students should be doing what most teenagers do – complaining about their school uniform – not fearing punishment for wearing the uniform that matches their gender identity.

 

Students should be learning what they need to stay safe in their health and physical education, and sex-ed, classes, not being made to feel invisible and forced to pick up bits and pieces from far less reliable sources.

 

Students who experience homophobic, biphobic or transphobic bullying should be able to have confidence that their school will be on their side, not wondering whether they will be the ones disciplined instead simply because they are LGBT.

 

Students should be thinking about what they would like to do after they finish their education, not contemplating whether they will even survive it.

 

Above all, students should be given the gift of curiosity about the world around them, not taught that the world hates them because of who they are.

 

These are just some of the ways in which lesbian, gay, bisexual and transgender students are currently denied the same right to learn that their cisgender heterosexual equivalents enjoy.

 

It is a situation that has been created by the actions of politicians – and has been allowed to persist because of their inaction.

 

That includes Prime Minister Scott Morrison’s broken promise, made in October last year, to protect LGBT students in religious schools against discrimination by amending the Sex Discrimination Act before the end of 2018.

 

Instead, we now have an Australian Law Reform Commission inquiry into religious exceptions that won’t report until April 2020, and a re-elected Liberal-National Government that likely won’t do anything until the second half of next year (at the earliest).

 

This is simply not good enough. We must remind them of that fact every single day until they act – because LGBT students will be discriminated against every single day until they do.

 

We must also pressure the state governments of NSW, Victoria, Western Australia and South Australia to fix their own broken laws. There is no possible excuse any of them could proffer that would justify allowing this mistreatment to continue.

 

Because reading is fundamental, as is writing, arithmetic, and all of the other essential skills that are imparted by teachers today. And all students deserve access to them, irrespective of who they are.

 

Education is a human right that must be provided to everyone equally, without discrimination on the basis of sexual orientation or gender identity. That currently isn’t the case in Australia. It’s something we must change for the sake of LGBT students now, and for the generations yet to come.

 

The right to learn

All students have an equal right to education, including LGBT students.