Who pays for homophobia, biphobia and transphobia?

Prejudice against the lesbian, gay, bisexual and transgender (LGBT) community comes with a hefty price tag.

 

It is paid for by the individuals who are subject to direct and indirect acts of discrimination, being denied employment, or services, because of who they are, who they love or how they identify.

 

And by others, who self-censor, missing out on opportunities and on full participation in society, because of the legitimate fear of such discrimination.

 

It is paid for in the adverse mental health impacts experienced by the LGBT community, with depression, anxiety and other mental illness caused by homophobia, biphobia and transphobia.

 

And most tragically by those who end their lives as a consequence.

 

It has even been estimated that homophobia costs the global economy at least $119.1 billion in lost GDP every single year (and presumably more if the effects of biphobia and transphobia are included).

 

But, in this post, I want to take this question – who pays for homophobia, biphobia and transphobia – more literally.

 

In essence, who provides the money that funds anti-LGBT prejudice, who allows it to occur in the first place?

 

The answer (or at least one of the answers), sadly, is all of us. Let me explain.

 

You are probably aware that most religious schools in Australia currently enjoy special privileges that permit them to discriminate against LGBT students, teachers and other staff.

 

This includes religious exceptions such as section 38 of the Commonwealth Sex Discrimination Act 1984, as well as equivalent anti-discrimination laws in New South Wales and Victoria.

 

In fact, Tasmania is the only Australian jurisdiction that does not allow religious schools to discriminate against teachers and students on the basis of sexual orientation, gender identity or relationship status.

 

All of the other states and territories allow at least some discrimination against LGBT students, or teachers, or in many cases both (Queensland actually comes closest to matching Tasmania’s ‘best practice’ approach: it does not permit discrimination against LGBT students, while LGBT teachers are subject to a ‘don’t ask, don’t tell’ regime – although that still means they can be fired if they even mention having a same-sex partner in the workplace).[i]

 

And you likely also know that in Australia, religious schools receive significant government funding.

 

But you are probably not aware just how much public money – taxpayers’ money, your money – is given to these institutions.

 

According to the 2018 Budget, the Commonwealth Government will provide:

 

  • $11.829 billion to non-government schools in 2018-19
  • $12.452 billion in 2019-20
  • $13.145 billion in 2020-21, and
  • $13.821 billion in 2021-22.

 

That’s a total of $51.247 billion in taxpayers’ money going to non-government schools in just four years.

 

In fact, it’s even worse than that. In September, the Morrison Liberal-National Government announced an extra $1.1 billion for non-government schools over the next four years (and $4.5 billion over the next decade).

 

And these numbers don’t include the funding provided by state and territory governments.

 

Based on averages published by the Australian Curriculum, Assessment and Reporting Authority (ACARA), state and territory governments provide approximately one-third of the amount funded by the Commonwealth.

 

That means an extra $17.43 billion of public funding over the next four years alone, bringing the overall total to $69.78 billion.

 

Now, a couple of important caveats. Given religious schools in Tasmania are not permitted to discriminate against either LGBT students or teachers, let’s subtract $1.438 billion from this figure (the $1.079 billion allocated to Tasmanian non-government schools in the Commonwealth Budget, plus an extra third for additional state government funding).

 

And, with a small proportion of non-government schools being non-religious in nature and therefore generally not allowed to discriminate (except in NSW, where the Anti-Discrimination Act 1977 permits all private schools, religious or otherwise, to discriminate against homosexual and transgender students and teachers), let’s be generous and subtract another 5%.

 

That still leaves $64.92 billion in Commonwealth, state and territory government funding allocated to religious schools over the next four years even though they are allowed to discriminate against LGBT teachers, students or both.[ii]

 

And who picks up the tab for this Government-sponsored homophobia, biphobia and transphobia? You do of course.

 

According to the Australian Bureau of Statistics, in June 2017 there were 19.963 million Australians aged 15 and over (and therefore potentially of taxpaying age).

 

This means that for every Australian individual taxpayer Commonwealth, state and territory governments will collectively give $3,252 over the next four years to religious schools that have the legal right to discriminate against LGBT students and/or teachers. Roughly $800 every year, per person, spent subsidising anti-LGBT prejudice.[iii]

 

What makes these figures truly offensive, obscene even, is remembering that this money is coming from LGBT teachers, who are paying for religious schools to have the ability to deny them employment in up to 40% of the jobs for which they are qualified.

 

From the parents of LGBT children, who are paying for the special privileges of these institutions to reject their child’s enrolment simply because of their sexual orientation or gender identity.

 

And from same-sex couples in rainbow families, who are paying for religious schools to deny their children admission on the basis of their parents’ relationship.

 

Indeed, the homophobia, biphobia and transphobia of religious schools is being paid for by the taxes of all LGBT Australians, our families, friends and allies.

 

And by the 61.6% of voters who just last year said that we are, or should be, equal irrespective of our sexual orientation or gender identity.

 

Despite that result (or perhaps even because of it) the Liberal-National Government seems intent on making what is a horrible situation worse.

 

Former Prime Minister Malcolm Turnbull commissioned the Ruddock Review of Religious Freedom during last year’s same-sex marriage parliamentary debate.

 

The contents of that review’s final report, delivered to the government in May but not yet released to the public, were leaked yesterday to Fairfax newspapers, and appear to support the further entrenchment, and possible expansion, of the ‘right’ of religious schools to discriminate against LGBT students and teachers.

 

This could potentially include the Commonwealth Government using the Sex Discrimination Act 1984 to override the anti-discrimination laws of states and territories like Tasmania (and to a lesser extent Queensland) that have moved to limit these special privileges.

 

New Prime Minister Scott Morrison does not seem opposed to such a development, saying that the right to discriminate against gay students ‘already exists’ (ignoring the fact it has been curtailed in some jurisdictions).

 

Three weeks’ ago he also told Sky’s Paul Murray that:

 

Let me give you this example. I send my kids to a Christian school, I think that Christian school should be able to ensure they can provide education consistent with the Christian faith and teaching that I believe as a parent. That’s why I’m sending them there. I don’t think that school should be told who they can and can’t employ, or have restrictions on them in ensuring that they’re delivering to me – the parent, their client, their customer – what I’ve invested in for my children’s education.

 

What he fails to mention is that, by virtue of public funding for religious schools, we are all ‘investing’ in his children’s education.

 

And what the Ruddock Review, Prime Minister Morrison and some members of his Government seem to want is for all of us to pay even more to allow more religious schools to discriminate against more LGBT students and teachers.

 

Well, fuck that. Enough is enough.

 

It’s time we stopped handing over money so that religious schools can fuck over LGBT students.

 

And it’s time we stopped coughing up cash so that these institutions can tell LGBT teachers and other staff to fuck off.

 

These human rights violations have gone on long enough.

 

To borrow a phrase from the American Revolution, there should be no taxation without anti-discrimination protection. Or even more simply:

 

No Taxation For Discrimination.

 

Instead of being an excuse for expanding religious exceptions in relation to religious schools, the Religious Freedom Review should be the catalyst for these special privileges to finally be subjected to proper scrutiny.

 

If the Morrison Government introduces amendments to entrench and expand the exceptions in section 38 of the Sex Discrimination Act, and potentially to override the best practice approach of the Tasmanian Anti-Discrimination Act, it will be up to Labor, the Greens and the cross-bench to block it (for his part, Opposition Leader Bill Shorten is making the right noises, saying “The fact is every child is entitled to human dignity. We shouldn’t even be having this debate”).

 

The pressure will also be on Liberal moderates, who like to claim credit for delivering marriage equality (they didn’t, but that’s a post for another day), to stand up and help defeat proposals that will increase discrimination against that same community.

 

But stopping things from getting worse would hardly be a heroic achievement. The religious exceptions of the Sex Discrimination Act, and the equivalent laws in most states and territories that promote anti-LGBT prejudice, must be repealed.

 

Because LGBT teachers should be employed on the basis of their abilities, not their orientations or identities.

 

And LGBT students should not be refused enrolment, expelled, or discriminated against in any way, shape or form, just because of who they are. Not one student. Not ever.

 

While the rest of us shouldn’t be forced to pay for it, literally funding the homophobia, biphobia and transphobia of religious schools.

 

Bottom line: if religious schools want one cent from us, they must be decent to us, and that means ending their special privileges to discriminate against LGBT students, teachers and other staff once and for all.

 

To take action, please sign and share this petition from just.equal: www.equal.org.au/protectourkidsandteachers

 

aud100front

Your hard-earned dollars are funding anti-LGBT prejudice.

 

Footnotes:

 

[i] For more information about these laws, see: A Quick Guide to Australian LGBTI Anti-Discrimination Laws.

[ii] I am not suggesting that all of these schools would discriminate against LGBT students and/or teachers. In practice, a number provide welcoming environments irrespective of sexual orientation and gender identity. However, these schools retain the legal right to discriminate on these grounds.

[iii] By way of comparison, the Commonwealth Government will provide $245.6 million over the next four years to another inappropriate and unjustified school funding initiative (the National School Chaplaincy Program), or the equivalent of $12.30 for every Australian aged 15 and over. On the other hand, the Turnbull Government, of which Scott Morrison was Treasurer, axed the $8 million Safe Schools program in 2016 – in effect, they could not even be bothered spending 40c per taxpayer, spread over four years (so just 10c per taxpayer per year), to help address homophobia, biphobia and transphobia in schools.

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A Quick Guide to Australian LGBTI Anti-Discrimination Laws

Commonwealth_ Sex Discrimination Act 1984

 

In the five years I have been writing about LGBTI rights in Australia, I have yet to come across a quick guide to the laws which protect lesbian, gay, bisexual, transgender and intersex Australians against discrimination (even the Wikipedia page ‘LGBT rights in Australia’ has a brief description of the rights provided by the Sex Discrimination Act 1984 before stating that ‘each of the states and territories have their own laws which protect LGBTI people from discrimination’ – and that’s it).

 

In which case, and given I have already written in detail about the LGBTI anti-discrimination and anti-vilification laws that exist in the Commonwealth, and each of the States and Territories (those posts can be found here), I thought it would be useful to provide the following short summary of these laws, including who they cover, the religious exceptions they contain, and whether they provide protection against vilification:

 

  1. What is the relevant law?

 

Jurisdiction

Legislation

Commonwealth

Sex Discrimination Act 1984

New South Wales

Anti-Discrimination Act 1977
Victoria

Equal Opportunity Act 2010

Queensland

Anti-Discrimination Act 1991

Western Australia

Equal Opportunity Act 1984
South Australia

Equal Opportunity Act 1984

Tasmania

Anti-Discrimination Act 1998

Australian Capital Territory

Discrimination Act 1991

Northern Territory

Anti-Discrimination Act

 

  1. Are lesbians, gay men and bisexuals protected against discrimination?

 

                                 

Lesbians and gay men

Bisexuals

Commonwealth

New South Wales

Victoria

Queensland

Western Australia

South Australia

Tasmania

Australian Capital Territory

Northern Territory

 

As you can see, the NSW Anti-Discrimination Act 1977 is the only anti-discrimination law in Australia that does not cover bisexual people[i] (perhaps relatedly, it is also the only jurisdiction where heterosexuals have no protection under anti-discrimination law).

 

  1. Are transgender people protected against discrimination?

 

Different jurisdictions have adopted different approaches to transgender anti-discrimination protection, in large part due to when their respective laws were introduced. This means that while some cover gender identity broadly,[ii] others only protect trans people with binary gender identities (where a person identifies with the ‘opposite’ gender to that which they were assigned at birth – eg MTF and FTM trans people) and exclude people with non-binary gender identities (ie people whose gender identities are more diverse).[iii]

 

                                 

Trans people with binary gender identities

People with non-binary gender identities

Commonwealth

New South Wales

Victoria

Queensland

Western Australia

Some*
South Australia

Tasmania

Australian Capital Territory

Northern Territory

Some*

 

Disappointingly, only four jurisdictions cover people with both binary and non-binary gender identities. While seven laws at a minimum cover all people with binary gender identities, there are two jurisdictions that have adopted even narrower definitions:

 

  • The Western Australian Equal Opportunity Act 1984 only covers people who have been issued with a recognition certificate under the Gender Reassignment Act 2000 (meaning those people who have transitioned and where that transition has been recognised by the Government);[iv]

 

  • The Northern Territory Anti-Discrimination Act protects ‘transsexuality’ as part of the definition of ‘sexuality’ – some people who have binary gender identities (MTF or FTM) may not identify with this terminology. More hopefully, the new NT Government is currently considering possible improvements to their legislation, including the introduction of ‘gender identity’ as a protected attribute (for more information, see their consultation paper here.)

 

  1. Are intersex people protected against discrimination?

 

 

Intersex

Commonwealth

New South Wales

Victoria

Queensland

Western Australia

South Australia

Tasmania

Australian Capital Territory

Northern Territory

 

When the Commonwealth Government passed the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, it became the first national parliament in the world to include ‘intersex status’ as a protected attribute.[v] Since then, Tasmania, the ACT and South Australia have all introduced amendments to protect intersex people against discrimination.

 

It should be noted however that intersex advocates have called for this terminology to be updated, with ‘intersex status’ replaced with the protected attribute of ‘sex characteristics’ (as part of the historic March 2017 Darlington Statement). As at the start of 2018, no Australian jurisdiction has adopted this terminology.

 

  1. Are LGBT people protected against discrimination by religious organisations (general)?

 

As I have written extensively elsewhere, one of the key weaknesses of most LGBTI anti-discrimination laws in Australia is that they provide special rights for religious organisations to discriminate against lesbian, gay, bisexual and transgender people.[vi] We will first examine how these religious exceptions operate generally, before looking specifically at the issues of students in religious schools (question 6) and teachers and other staff in religious schools (question 7).

 

                                 

Do LGBT people have any protections against discrimination by religious organisations?

LGBT people have limited protections against religious discrimination

LGBT people have general protections against religious discrimination

Commonwealth

Aged care*
New South Wales

Victoria

Queensland

Western Australia

South Australia Teachers*

Tasmania

Australian Capital Territory

Northern Territory

 

There is only one LGBTI anti-discrimination law in Australia that offers general protections against discrimination by religious organisations: Tasmania’s Anti-Discrimination Act 1998. That is because the religious exceptions contained in that legislation only allow religious organisations to discriminate on the basis of people’s religious beliefs, and not on the basis of sexual orientation, gender identity or intersex status (or relationship status).

 

On the other hand, the religious exceptions contained in the anti-discrimination laws of New South Wales, Victoria, Western Australia and the Australian Capital Territory provide religious organisations with carte blanche to discriminate against LGBT people. Section 56 of the NSW Anti-Discrimination Act 1977 is a typical example of the special rights given to these bodies:

 

“Nothing in this Act affects:

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

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

(c) the appointment of any other person in any capacity by a body established to propagate religion, or

(d) any other act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avid injury to the religious susceptibilities of the adherents of that religion.”

 

The other jurisdictions offer only limited protections against religious-based discrimination against LGBT people. Under the Commonwealth Sex Discrimination Act 1984, religious organisations can discriminate against LGBT people in all circumstances other than with respect to LGBT people accessing Commonwealth-funded aged care services[vii] (although they can still discriminate against LGBT employees in these facilities).

 

The Queensland Anti-Discrimination Act 1991 actually contains the second-best protections for LGBT people against discrimination by religious organisations. It does not allow discrimination against LGBT students in religious schools, and has limited protections for teachers too (see questions 6 and 7 respectively). More broadly, it does not provide a general right for religious organisations to discriminate against LGBT employees, but instead limits this right to employees where acting, or not acting, in a particular way breaches the ‘genuine occupational requirements’ of that position.[viii]

 

The South Australian Equal Opportunity Act 1984 provides broad religious exceptions outside religious schools, where they are (probably) able to discriminate against LGBT students, and have to satisfy procedural obligations in order to discriminate against LGBT teachers (see questions 6 and 7, below).

 

Finally, the religious exceptions contained in the Northern Territory Anti-Discrimination Act are narrower than in other jurisdictions because of the specific wording that is used:

 

“Section 51 This Act does not apply to or in relation to: …

(d) an act by a body established for religious purposes if the act is done as part of any religious observance or practice.”

 

This at least restricts the discrimination that is permissible to acts in relation to ‘religious observance or practice’ only (although there are specific exceptions in relation to employment in religious schools – see question 7 below).

 

  1. Are LGBT students protected against discrimination by religious schools?

 

 

LGBT students at religious schools

Commonwealth

New South Wales

Victoria

Queensland

Western Australia

Probably not*

South Australia

Probably not*
Tasmania

Australian Capital Territory

Northern Territory

 

There are only three jurisdictions in which LGBT students are clearly protected against discrimination by religious schools: Tasmania, Queensland and the Northern Territory.

 

In two other jurisdictions, the level of protection is debatable. In South Australia section 37 of the Equal Opportunity Act 1984 provides quite broad protections against discrimination by educational authorities against students on the basis of sexual orientation or gender identity.[ix] However, it is likely these protections are still overridden by the broad religious exceptions contained in sub-section 50(1)(c).[x]

 

A similar situation exists in Western Australia, where the specific exceptions which apply to religious schools (section 73 of the Equal Opportunity Act 1984) do not allow discrimination against LGBT students, but the general religious exception in section 72 likely still applies, allowing religious schools to discriminate in any event.

 

In all of the other jurisdictions, including the Commonwealth, NSW, Victoria and the ACT, LGBT students do not have protection against discrimination by religious schools. Indeed, the exceptions contained in the NSW Anti-Discrimination Act 1977 go even further, allowing discrimination against lesbian, gay and transgender students by all private schools and colleges, even where those institutions are not religious.[xi]

 

For more on this subject, see Back to School, Back to Discrimination for LGBT Students and Teachers.

 

  1. Are LGBT teachers protected against discrimination by religious schools?

 

 

LGBT teachers at religious schools

Commonwealth

New South Wales

Victoria

Queensland

Don’t Ask, Don’t Tell*
Western Australia

South Australia

Procedural requirements*
Tasmania

Australian Capital Territory

Northern Territory

 

Only one Australian LGBTI anti-discrimination law fully protects lesbian, gay, bisexual and transgender teachers and other staff at religious schools against discrimination: Tasmania’s Anti-Discrimination Act 1998.

 

In Queensland, religious schools are allowed to discriminate against people who work for religious schools where “the person openly acts in a way that the person knows or ought reasonably to know is contrary to the employer’s religious beliefs, during a selection process; or in the course of the person’s work; or in doing something connected with the person’s work; and it is a genuine occupational requirement of the employer that the person… act in a way consistent with the employer’s religious beliefs.”[xii]

 

However, religious schools are not allowed to ‘seek information’ in relation to an employee’s sexual orientation or gender identity. In effect, LGBT teachers and other staff at religious schools in Queensland are subject to a ‘Don’t Ask’ Don’t Tell’ policy (which, as was seen in relation to the United States military, is nevertheless an unjust and unjustifiable imposition on a minority group).

 

In South Australia, religious schools are allowed to discriminate against LGBT teachers and other staff, however this ‘right’ is subject to procedural requirements, including that the school must have a written policy outlining its discriminatory policy which is provided to people interviewed for or offered employment. The policy must also be provided on request, free of charge, to employees, students and parents (and prospective employees, students and parents) as well as to general members of the public.[xiii]

 

In all other Australian jurisdictions (the Commonwealth, NSW, Victoria, WA, the ACT and the Northern Territory[xiv]), religious schools are free to discriminate against LGBT teachers. Once again, in NSW this extends to all private schools and colleges, even where they are not religious.[xv]

 

For more on this subject, see Back to School, Back to Discrimination for LGBT Students and Teachers.

 

  1. Are lesbians, gay men and bisexuals protected against vilification?

 

                                 

Lesbians and gay men

Bisexuals
Commonwealth

New South Wales

Partial
Victoria

Queensland

Western Australia

South Australia

Tasmania

Australian Capital Territory

Northern Territory

 

Only four Australian jurisdictions offer any anti-vilification protections for the LGBTI community: NSW, Queensland, Tasmania and the ACT.

 

In NSW, the situation has been complicated by recent amendments to both the Anti-Discrimination Act and the Crimes Act. In short, while lesbians, gay men and bisexuals are all covered by the new ‘inciting violence provisions’, only lesbians and gay men can make civil vilification complaints to the Anti-Discrimination Board.

 

In contrast, the Commonwealth, Victoria, Western Australia and South Australia all have protections against racial vilification, but fail to offer equivalent protections against anti-LGBTI vilification. The Northern Territory does not prohibit either racial or anti-LGBTI vilification – although it is considering the issue of anti-vilification protections as part of its current consultation process.

 

  1. Are trans and intersex people protected against vilification?

 

                                 

Trans people with binary gender identities

People with non-binary gender identities

Intersex

Commonwealth

New South Wales Partial

Partial

Victoria

Queensland

Western Australia

South Australia

Tasmania

Australian Capital Territory

Northern Territory

 

Four jurisdictions protect transgender people with binary gender identities against vilification (NSW, Queensland, Tasmania and the ACT). However, the Queensland Anti-Discrimination Act 1991 does not protect people with non-binary identities, while the situation in NSW is similar to that described above: trans, non-binary and intersex people are included in the Crimes Act incitement to violence provisions, but only trans people with binary identities can make civil vilification complaints under the Anti-Discrimination Act.

 

Only Tasmania and the ACT fully protect people with non-binary gender identities against vilification.

 

Those same jurisdictions – Tasmania and the ACT – are also the only places in Australia to completely prohibit vilification on the basis of intersex status. However, in Tasmania there is a concern in that while all of sexual orientation, gender identity and intersex are included in the general anti-vilification provision,[xix] only sexual orientation is included as part of the more serious offence of inciting hatred.[xx]

 

  1. What other issues exist with Australian LGBTI anti-discrimination laws?

 

The above questions have examined three main areas of the LGBTI anti-discrimination laws across the Commonwealth, and the States and Territories:

 

  • Protected Attributes
  • Religious Exceptions, and
  • Anti-Vilification Coverage.

 

However, these are not the only areas where there are significant problems with the anti-discrimination laws that apply to lesbian, gay, bisexual, transgender and bisexual people in Australia. The following is a non-exhaustive list of some of the other issues I have come across:

 

Commonwealth: The Sex Discrimination Act 1984 does not establish a position of LGBTI Discrimination Commissioner (despite providing for a Sex Discrimination Commissioner). This leaves Australia’s LGBTI community at a significant disadvantage compared to other vulnerable groups, and should be rectified (for more on this issue, see: Why we need a full-time LGBTI Commissioner at the Australian Human Rights Commission).

 

NSW: The Anti-Discrimination Act 1977 allows employers with five employees or less to discriminate against LGBT employees[xxi]. There are no such provisions allowing employers to discriminate on the basis of race.

 

Victoria: The Equal Opportunity Act 2010 doesn’t just allow religious organisations to discriminate against LGBT people, it also includes a special right for individuals to do the same[xxii] (a provision that does not seem to be replicated in any other jurisdiction).

 

Queensland: The Anti-Discrimination Act 1991 includes a particularly abhorrent section which allows discrimination against transgender people in relation to employment that involves children. Section 28 states:

 

“Work with children

(1) It is not unlawful to discriminate on the basis of lawful sexual activity or gender identity against a person with respect to a matter that is otherwise prohibited under subdivision 1 if-

(a) the work involves the care or instruction of minors; and

(b) the discrimination is reasonably necessary to protect the physical, psychological or emotional wellbeing of minors having regard to all the relevant circumstances of the case, including the person’s actions.”

 

Western Australia: While the Equal Opportunity Act 1984 allows for positive discrimination “to ensure that persons of a particular sexual orientation have equal opportunities with other persons”[xxiii] there are no equivalent provisions allowing for positive discrimination for transgender people.

 

South Australia: Disappointingly, the Equal Opportunity Act 1984 makes it lawful to discriminate “on the ground of gender identity in relation to employment or engagement if the discrimination is for the purposes of enforcing standards of appearance and dress reasonably required for the employment or engagement.”[xxiv]

 

  1. Are LGBTI people protected against discrimination under the Commonwealth Fair Work Act 2009?

 

While most anti-discrimination protections are included in the nine Commonwealth, state and territory laws discussed above, there is also a key protection against discrimination located in the Fair Work Act 2009.

 

                                 

Are lesbians, gay men and bisexuals protected under the Fair Work Act?

Are transgender people protected? Are intersex people protected?
Commonwealth

 

Unfortunately, as this table demonstrates, the Commonwealth Fair Work Act 2009 does not protect all parts of the LGBTI community against discrimination. That is because section 351 provides that:

 

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

 

While it includes sexual orientation (meaning lesbian, gay and bisexual people enjoy protection), the omission of gender identity and intersex status leaves both of these groups without equivalent protection.[xxv] This is a serious deficiency that must be addressed as a matter of priority.

 

For more on this subject, see Unfairness in the Fair Work Act.

 

**********

 

For more detailed analysis of the LGBTI anti-discrimination laws that operate in the Commonwealth, and each State and Territory, see:

 

 

 

 

 

 

 

 

 

 

**********

 

Footnotes:

[i] NSW protects only ‘homosexuality’, with the definition in section 4 of the Anti-Discrimination Act 1977 stating that ‘homosexual means male or female homosexual’. In contrast, other jurisdictions either include a protected attribute of ‘sexual orientation’, or specifically include both homosexuality and bisexuality.

[ii] For example, section 4 of the Commonwealth Sex Discrimination Act 1984 defines gender identity as ‘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.’

[iii] For example, section 38A of the NSW Anti-Discrimination Act 1977 states that ‘[a] reference in the Part to a person being transgender or a transgender person is a reference to a person… (i) who identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex, or (ii) who has identified as a member of the opposite sex by living as a member of the opposite sex…’

[iv] The Western Australian Equal Opportunity Act 1984 prohibits discrimination ‘against a gender reassigned person on gender history grounds’ (section 35AB), where section 4 defines a gender reassigned person as ‘a person who has been issued with a recognition certificate under the Gender Reassignment Act 2000’ while section 35AA states that ‘a person has a gender history if the person identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex.’

[v] With ‘intersex status’ defined in section 4 of the Commonwealth Sex Discrimination Act 1984 as ‘the status of having physical, hormonal or genetic features that are:

(a) neither wholly female nor wholly male; or

(b) a combination of female and male; or

(c) neither female nor male.’

[vi] In this section, I refer primarily to LGBT people, rather than LGBTI people, because it is generally understood that religious exceptions would not (or at the very least should not) be used against people with intersex variations.

[vii] Sub-section 37(2) of the Commonwealth Sex Discrimination Act 1984 limits the general religious exceptions contained in the Act by stating that they do “not apply to an act or practice of a body established for religious purposes if:

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

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

[viii] Sub-section 25(3) of the Queensland Anti-Discrimination Act 1991 provides that:

“It is not unlawful for an employer to discriminate with respect to a matter that is otherwise prohibited under section 14 or 15, in a way that is not unreasonable, against a person if-

(a) the person openly acts in a way that the person knows or ought reasonably know is contrary to the employer’s religious beliefs-

(i) during a selection process; or

(ii) in the course of the person’s work; or

(iii) in doing something connected with the person’s work; and

(b) it is a genuine occupational requirement of the employer that the person, in the course of, or in connection with, the person’s work, act in a way consistent with the employer’s religious beliefs.”

[ix] SA Equal Opportunity Act 1984: “Section 37- Discrimination by educational authorities …

(2) It is unlawful for an educational authority to discriminate against a student on the ground of sex, sexual orientation or gender identity-

(a) in the terms or conditions on which it provides the student with training or education; or

(b) by denying or limiting access to a benefit provided by the authority; or

(c) by expelling the student; or

(d) by subjecting the student to other detriment.”

[x] SA Equal Opportunity Act 1984: “This Part does not render unlawful discrimination in relation to-

(c) any other practice of a body established for religious purposes that conforms with the precepts of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.”

[xi] Sections 38K(3) and 49ZO(3), NSW Anti-Discrimination Act 1977.

[xii] Sub-sections 25(2) and (3) of the Queensland Anti-Discrimination Act 1991.

[xiii] SA Equal Opportunity Act 1984: Sub-section 34(3):

“This Division does not apply to discrimination on the ground of sexual orientation or gender identity in relation to employment or engagement for the purposes of an educational institution if-

(a) the educational institution is administered in accordance with the precepts of a particular religion and the discrimination is founded on the precepts of that religion; and

(b) the educational authority administering the institution has a written policy stating its position in relation to the matter; and

(c) a copy of the policy is given to a person who is to be interviewed for or offered employment with the authority or a teacher who is to be offered engagement as a contractor by the authority; and

(d) a copy of the policy is provided on request, free of charge-

(i) to employees and contractors and prospective employees and contractors of the authority to whom it relates or may relate; and

(ii) to students, prospective students and parents and guardians of students and prospective students of the institution; and

(iii) to other members of the public.”

[xiv] Despite its relatively narrow religious exceptions, section 37A of the NT Anti-Discrimination Act provides an explicit right for religious schools to discriminate against LGBT teachers:

“An educational authority that operates or proposes to operate an educational institution in accordance with the doctrine of a particular religion may discriminate against a person in the area of work in the institution if the discrimination:

(a) is on the grounds of:

(i) religious belief or activity; or

(ii) sexuality; and

(b) is in good faith to avoid offending the religious sensitivities of people of the particular religion.”

[xv] Sub-sections 38C(3)(c) and 49ZH(3)(c), NSW Anti-Discrimination Act 1977.

[xvi] Footnote removed.

[xvii] Footnote removed.

[xviii] Footnote removed.

[xix] Section 17 of the Tasmanian Anti-Discrimination Act 1998.

[xx] Section 19 of the Tasmanian Anti-Discrimination Act 1998.

[xxi] Sub-sections 38C(3)(b) and 49ZO(3)(b), NSW Anti-Discrimination Act 1977.

[xxii] Section 84, Victorian Equal Opportunity Act 2010.

[xxiii] Section 35ZD, Western Australian Equal Opportunity Act 1984.

[xxiv] Sub-section 34(4), South Australian Equal Opportunity Act 1984.

[xxv] The inclusion of ‘marital status’ rather than ‘marital or relationship status’ is also out-dated.

An LGBTI Agenda for NSW

Today marks exactly two years until the next NSW State election (scheduled for Saturday 23 March, 2019).

 

Despite the fact we are half-way through it, there has been a distinct lack of progress on policy and law reform issues that affect NSW’s lesbian, gay, bisexual, transgender and intersex (LGBTI) communities during the current term of Parliament.

 

This is in marked contrast to the previous term – which saw the abolition of the homosexual advance defence (or ‘gay panic’ defence), as well as the establishment of a framework to expunge historical convictions for gay sex offences.

 

The parliamentary term before that was even more productive, with a suite of measures for rainbow families (including the recognition of lesbian co-parents, equal access to assisted reproductive technology and altruistic surrogacy, and the introduction of same-sex adoption) as well as the establishment of the registered relationships scheme.

 

With a (relatively) new Premier in Gladys Berejiklian, now is the time for the Liberal-National Government specifically, and the NSW Parliament generally, to take action to remedy their disappointing recent lack of activity.

 

Here are 12 issues, in no particular order, which I believe need to be addressed as a matter of priority – and if Premier Berejiklian won’t fix them in the next 24 months, then they must be on the agenda of whoever forms government in March 2019.

 

**********

 

The first four issues relate to the state’s fundamentally broken anti-discrimination laws, with the Anti-Discrimination Act 1977 now one of, if not, the worst LGBTI anti-discrimination regime in the country[i].

 

  1. Include bisexual people in anti-discrimination laws

 

NSW was actually the first jurisdiction in Australia to introduce anti-discrimination protections on the basis of homosexuality, in 1982.

 

However, 35 years later and these laws still do not cover bisexuality – meaning bisexual people do not have legal protection against discrimination under state law (although, since 2013, they have enjoyed some protections under the Commonwealth Sex Discrimination Act 1984).

 

NSW is the only state or territory where bisexuality is excluded. This is a gross omission, and one that the NSW Parliament must rectify urgently.

 

  1. Include intersex people in anti-discrimination laws

 

The historic 2013 reforms to the Commonwealth Sex Discrimination Act 1984 also meant that Australia was one of the first jurisdictions in the world to provide explicit anti-discrimination protection to people with intersex traits.

 

Since then, Tasmania, the ACT and more recently South Australia have all included intersex people in their respective anti-discrimination laws. It is time for other jurisdictions to catch up, and that includes NSW.

 

  1. Remove excessive and unjustified religious exceptions

 

The NSW Anti-Discrimination Act 1977 also has the broadest ‘religious exceptions’ in the country. These legal loopholes allow religious organisations to discriminate against lesbian, gay and trans people in a wide variety of circumstances, and even where the organisation itself is in receipt of state or Commonwealth money.

 

The most egregious of these loopholes allow all ‘private educational authorities’, including non-religious schools and colleges, to discriminate against lesbian, gay and trans teachers and students.

 

There is absolutely no justification for a school – any school, religious and non-religious alike – to be able to fire a teacher, or expel a student, on the basis of their sexual orientation or gender identity.

 

All religious exceptions, including those exceptions applying to ‘private educational authorities’, should be abolished beyond those which allow a religious body to appoint ministers of religion or conduct religious ceremonies.

 

  1. Reform anti-vilification offences

 

NSW is one of only four Australian jurisdictions that provide anti-vilification protections to any part of the LGBTI community. But the relevant provisions of the Anti-Discrimination Act 1977 are flawed in two key ways:

 

  • As with anti-discrimination (described above), they do not cover bisexual or intersex people, and
  • The maximum fine for a first time offence of homosexual or transgender vilification is lower than the maximum fine for racial or HIV/AIDS vilification.

 

There is no legitimate reason why racial vilification should be considered more serious than anti-LGBTI vilification so, at the same time as adding bisexuality and intersex status to these provisions, the penalties that apply must also be harmonised.

 

**********

 

The following are four equally important law reform and policy issues for the state:

 

  1. Reform access to identity documentation for trans people

 

The current process for transgender people to access new identity documentation in NSW – which requires them to first undergo irreversible sex affirmation surgical procedures – is inappropriate for a number of reasons.

 

This includes the fact it is overly-onerous (including imposing financial and other barriers), and makes an issue that should be one of personal identification into a medical one. It also excludes trans people who do not wish to undergo surgical interventions, and does not provide a process to recognise the identities of non-binary gender diverse people.

 

As suggested in the Member for Sydney Alex Greenwich’s Discussion Paper on this subject[ii], the process should be a simple one, whereby individuals can change their birth certificates and other documentation via statutory declaration, without the need for medical interference.

 

At the same time, the requirement for married persons to divorce prior to obtaining new identity documentation (ie ‘forced trans divorce’) should also be abolished.

 

  1. Ban involuntary sterilisation of intersex infants

 

One of the major human rights abuses occurring in Australia today – not just within the LGBTI community, but across all communities – is the ongoing practice of involuntary, and unnecessary, surgical interventions on intersex children.

 

Usually performed for entirely ‘cosmetic’ reasons – to impose a binary sex on a non-binary body – this is nothing short of child abuse. People born with intersex characteristics should be able to make relevant medical decisions for themselves, rather than have procedures, and agendas, imposed upon them.

 

The NSW Government has a role to play in helping to end this practice within state borders, although ultimately the involuntary sterilisation of intersex infants must also be banned nation-wide.

 

  1. Ban gay conversion therapy

 

Another harmful practice that needs to be stamped out is ‘gay conversion therapy’ (sometimes described as ‘ex-gay therapy’).

 

While thankfully less common that it used to be, this practice – which preys on young and other vulnerable LGBT people who are struggling with their sexual orientation or gender identity, and uses pseudo-science and coercion in an attempt to make them ‘straight’/cisgender – continues today.

 

There is absolutely no evidence that it works, and plenty of evidence that it constitutes extreme psychological abuse, often causing or exacerbating mental health issues such as depression.

 

There are multiple policy options to address this problem; my own preference would be to make both the advertising, and provision, of ‘conversion therapy’ criminal offences. Where this targets people aged under 18, the offence would be aggravated, attracting a higher penalty (and possible imprisonment)[iii].

 

  1. Improve the Relationship Register

 

As Prime Minister Malcolm Turnbull and his Liberal-National Government continue to dither on marriage equality (despite it being both the right thing to do, and overwhelmingly popular), in NSW the primary means to formalise a same-sex relationship remains the relationships register.

 

However, there are two main problems with the ‘register’ as it currently stands:

 

  • Nomenclature: The term ‘registered relationship’ is unappealing, and fails to reflect the fundamental nature of the relationship that it purports to describe. I believe it should be replaced with Queensland’s adopted term: civil partnership.
  • Lack of ceremony. The NSW relationship register also does not provide the option to create a registered relationship/civil partnership via a formally-recognised ceremony. This should also be rectified.

 

Fortunately, the five-year review of the NSW Relationships Register Act 2010 was conducted at the start of last year[iv], meaning this issue should already be on the Government’s radar. Unfortunately, more than 12 months later no progress appears to have been made.

 

**********

 

The following two issues relate to the need to ensure education is LGBTI-inclusive:

 

  1. Expand the Safe Schools program

 

Despite the controversy, stirred up by the homophobic troika of the Australian Christian Lobby, The Australian newspaper and right-wing extremists within the Commonwealth Government, Safe Schools remains at its core an essential anti-bullying program designed to protect vulnerable LGBTI students from harassment and abuse.

 

Whereas the Victorian Government has decided to fund the program itself, and aims to roll it out to all government secondary schools, in NSW the implementation of Safe Schools has been patchy at best, with limited take-up, and future funding in extreme doubt.

 

Whatever the program is called – Safe Schools, Proud Schools (which was a previous NSW initiative) or something else – there is an ongoing need for an anti-bullying program to specifically promote the inclusion of LGBTI students in all NSW schools, and not just those schools who put their hands up to participate.

 

  1. Ensure the PDHPE curriculum includes LGBTI content

 

Contrary to what Lyle Shelton et al might believe, the LGBTI agenda for schools goes far beyond just Safe Schools. There is also a need to ensure the curriculum includes content that is relevant for lesbian, gay, bisexual, transgender and intersex students.

 

One of the key documents that should include this information is the Personal Development, Health and Physical Education (PDHPE) curriculum.

 

The NSW Education Standards Authority is currently preparing a new K-10 PDHPE curriculum. Unfortunately, it does not appear to be genuinely-inclusive of LGBTI students, with only one reference to LGBTI issues (conveniently, all in the same paragraph, on the same page), and inadequate definitions of sexuality/sexual orientation.

 

Fortunately, there is an opportunity to make a submission to the consultation process: full details here. But, irrespective of what the Education Standards Authority recommends, if the PDHPE curriculum does not appropriately include LGBTI students and content, then the Parliament has a responsibility to step in to ensure it is fixed.

 

**********

 

The final two issues do not involve policy or law reform, but do feature ‘borrowing’ ideas from our colleagues south of the Murray River:

 

  1. Appoint an LGBTI Commissioner

 

The appointment of Rowena Allen as Victorian Commissioner for Gender and Sexuality appears to have been a major success, bringing together LGBTI policy oversight in a central point whilst also ensuring that LGBTI inclusion is made a priority across all Government departments and agencies.

 

I believe NSW should adopt a similar model, appointing an LGBTI Commissioner (possibly within the NSW Department of Premier and Cabinet), supported by an equality policy unit, and facilitating LGBTI community representative panels on (at a minimum) health, education and law/justice.

 

  1. Create a Pride Centre

 

Another promising Victorian initiative has been the decision to fund and establish a ‘Pride Centre’, as a focal point for the LGBTI community, and future home for several LGBTI community organisations (with the announcement, just last week, that it will be located in St Kilda).

 

If it acted quickly, the NSW Government could acquire the T2 Building in Taylor Square – just metres from where the 1st Sydney Gay Mardi Gras Parade started in June 1978 – before it is sold off by the City of Sydney. This is an opportunity to use this historic site for purposes that benefit the LGBTI community, and including the possible housing of an LGBTI Museum and/or exhibition space.

 

**********

 

This is obviously not an exhaustive list. I’m sure there are issues I have forgotten (sorry), and I’m equally sure that readers of this blog will be able to suggest plenty of additional items (please leave your ideas in the comments below).

 

But the most important point is that, if we are going to achieve LGBTI policy and law reform in the remaining two years of this parliamentary term, we need to be articulating what that agenda looks like.

 

And, just as importantly, if we want to achieve our remaining policy goals in the subsequent term – from 2019 to 2023 – then, with only two years left until the next election, we must be putting forward our demands now.

 

Gladys Berejiklian at Mardi Gras

NSW Premier Gladys Berejiklian at the recent Sydney Gay & Lesbian Mardi Gras Parade. It’s time to back up this symbolic display of support with progress on policies and law reform.

 

Footnotes:

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

[ii] See my submission to that consultation, here: Submission to Alex Greenwich Discussion Paper re Removing Surgical Requirement for Changes to Birth Certificate.

[iii] For more on both of the last two topics – intersex sterilization, and gay conversion therapy – see my Submission to NSW Parliament Inquiry into False or Misleading Health Practices re Ex-Gay Therapy and Intersex Sterilisation.

[iv] See my submission to that review, here: Submission to Review of NSW Relationships Register Act 2010.

Letter to Paul Lynch re LGBTI Anti-Vilification Reform

In June, NSW Shadow Attorney-General Mr Paul Lynch MP introduced the Crimes and Anti-Discrimination Legislation Amendment (Vilification) Bill 2016. Details of the Bill can be found here.

 

In short, the legislation seeks to implement the recommendations of the Legislative Council Standing Committee on Law and Justice’s 2013 Inquiry into Racial Vilification Law in NSW.

 

Importantly, in doing so the Bill ignores the Report’s (implicit) approach to treat racial vilification differently from the other forms of vilification currently prohibited by the Anti-Discrimination 1977: namely homosexual, transgender and HIV/AIDS vilification.

 

Just as importantly, however, the Bill fails to update the definitions of these grounds, and also fails to extend anti-vilification coverage to bisexual and intersex people in NSW.

 

The following is my letter to the Shadow Attorney-General about his Bill, sent before the return of State Parliament next week (Tuesday 2 August 2016).

 

**********

 

Mr Paul Lynch MP

Shadow Attorney-General

100 Moore St

Liverpool NSW 2170

liverpool@parliament.nsw.gov.au

 

24 July 2016

 

 

Dear Mr Lynch

 

LGBTI Anti-Vilification Reform

 

I am writing to you about your Crimes and Anti-Discrimination Legislation Amendment (Vilification) Bill 2016 (‘the Bill’), currently before NSW Parliament.

 

Specifically, I am writing to congratulate you on what is included in the Bill, while also encouraging you to amend the Bill to address other inadequacies within the NSW anti-vilification framework.

 

First, to the positives. I welcome the fact that the Bill removes one of the more bizarre and, in my opinion, completely unjustifiable aspects of the NSW Anti-Discrimination Act 1977 (‘the Act’) – that the penalties for the offences of serious racial and HIV/AIDS vilification are different to, and slightly higher than, the penalties for the offences of serious homosexual and transgender vilification.

 

By consolidating these offences in one place – the proposed new section 91N of the NSW Crimes Act 1900 – your Bill would ensure there is no difference in severity in how these offences are treated by the Government, and therefore avoids sending the signal that some forms of vilification are worse than others.

 

I also welcome the fact you have avoided one of the key pitfalls of the Legislative Council Standing Committee on Law and Justice’s Inquiry into Racial Vilification Law in NSW, which, given it exclusively focused on racial vilification, only suggested changes to the laws surrounding one of the four existing attributes that attract anti-vilification protection.

 

Were these recommendations to be implemented in their entirety (and no other changes made), it would exacerbate, rather than remove, the inequality in treatment between serious racial vilification and the three other current grounds (homosexual, transgender and HIV/AIDS vilification).

 

I further support the substantive amendments proposed in your Bill, including:

 

  • Removing the requirement for the Attorney-General to give consent to prosecution for any vilification offence
  • Extending the time within which prosecutions for vilification offences must be commenced from 6 months to 12 months (addressing a flaw in the current Act highlighted by the case of Simon Margan v Director of Public Prosecutions & Anor [2-13] NSWSC 44)
  • Adopting the recommendation of the Law and Justice Standing Committee report that recklessness is sufficient to establish intention to vilify
  • Clarifying which public acts constitute unlawful vilification
  • Providing that vilification applies whether or not the person or members of the group vilified have the characteristic that was the ground for the promotion of hatred, contempt or ridicule concerned, and
  • Ensuring that the President of the Anti-Discrimination Board refers vilification complaints to the Commissioner of Police where the President considers that the offence of serious racial, transgender, homosexual or HIV/AIDS vilification may have been committed.

 

In terms of the proposal to replace ‘incitement’ with ‘promotion’ within the definition of vilification itself, while I have not had the opportunity to examine this amendment in great depth, on a prima facie basis it appears reasonable.

 

Finally, I agree with your decision to relocate the offence of serious vilification to the Crimes Act 1900, for the reasons outlined in your Second Reading Speech:

 

“Certainly, the legal effect of a provision should be the same whether it is located in the Crimes Act or in the Anti-Discrimination Act. However, there is significant symbolism in the provision being located in the Crimes Act in the new section 91N. And symbolism, as everyone in this Chamber knows, is important.”

 

Now, I will turn my attention to the shortcomings of the Bill and, unfortunately, in my opinion they are significant.

 

Specifically, while what the Bill includes is to be welcomed, it is flawed because of what it excludes. It fails to address one of the main problems of the Anti-Discrimination Act 1977, which is that it only protects some parts of the lesbian, gay, bisexual, transgender and intersex (LGBTI) community, and not others.

 

As I have detailed elsewhere (see “What’s wrong with the NSW Anti-Discrimination Act 1977?”), the out-dated terminology used in the Act means that only lesbian, gay and transgender people are protected (and even then not all transgender people are covered).

 

Meanwhile, there is still no anti-vilification protection for bisexual people, or for intersex people, in NSW (with the absence of Commonwealth LGBTI anti-vilification laws only compounding this problem).

 

In my view, the limited coverage offered by the NSW anti-vilification framework is an even greater problem than those issues identified by the Standing Committee on Law and Justice’s Inquiry into Racial Vilification Law.

 

As such, I believe this issue should be addressed before, or at least simultaneously to, those provisions contained in your Bill. Otherwise, the differential treatment of groups within the LGBTI community would only become further entrenched.

 

For these reasons, I strongly encourage you to consider amending your Bill to ensure that all sections of the LGBTI community are protected against vilification. To achieve this, you may wish to incorporate the definitions included in the historic Commonwealth Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013.

 

This would involve:

 

  • Replacing the current protected attribute of homosexual with ‘sexual orientation’ (and which would therefore cover bisexual people)
  • Amending the protected attribute of transgender to the more inclusive term ‘gender identity’, and
  • Introducing the new protected attribute of ‘intersex status’.

 

If you are interested in pursuing these changes then I also encourage you to consult with the LGBTI community, and its representative organisations, beforehand (to ensure that any consequential difficulties are avoided).

 

To conclude, and despite the issues described above, I genuinely welcome the provisions contained in the Crimes and Anti-Discrimination Legislation Amendment (Vilification) Bill 2016. However, by extending the scope of vilification offences to protect bisexual and intersex people, I sincerely believe you would significantly improve your legislation.

 

Thank you for your consideration of this letter. I am of course happy to discuss any of the issues raised at the contact details provided below.

 

Sincerely,

Alastair Lawrie

 

print.jpg

NSW Shadow Attorney-General Paul Lynch

 

What’s Wrong With the NSW Anti-Discrimination Act 1977?

This post is part of a series looking at anti-discrimination laws around Australia and examining how well, or how poorly, they protect lesbian, gay, bisexual, transgender and intersex (LGBTI) people against discrimination and vilification.[i]

 

This includes analysing three key issues: protected attributes, religious exceptions and anti-vilification coverage. Unfortunately, as we shall see below, the Anti-Discrimination Act 1977 has serious shortcomings in all of these areas, and NSW has gone from having the first gay anti-discrimination laws in Australia, to having (arguably) the worst.

 

It is clear this legislation is in urgent need of major reform. What is less clear is whether the current NSW Government, and Parliament, is up to the task.

 

Protected Attributes

 

As indicated above, NSW was the first jurisdiction in Australia to introduce anti-discrimination protections for ‘homosexuals’. In fact, it passed these laws in late 1982, 18 months before homosexuality was decriminalised, meaning a gay man could not be discriminated against for who he was (in some areas of public life at least), but could still be convicted for having sexual intercourse in private. The problem is that the protected attributes included in the Anti-Discrimination Act 1977 have not kept pace with community standards in the decades since.

 

There was one positive clarification in 1994 that “homosexual means male or female homosexual”[ii] (to overcome any erroneous assumption that homosexuality only referred to gay men). However, the only significant expansion in the past 35 years was the introduction of transgender as a protected attribute in 1996:

 

Section 38A Interpretation

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[iii]:

(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, or

(c) who, being of indeterminate sex, identifies as a member of a particular sex by living as a member of that 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.”

 

While this reform was a major step forward, it nevertheless failed to cover all discrimination on the basis of gender identity. This protected attribute focuses only on binary genders – covering people whose sex was designated as male at birth, but now identify as female (and vice versa). It does not cover other people along a more inclusive spectrum, including people who do not identify exclusively as either male or female.

 

Section 38A of the NSW Anti-Discrimination Act 1977 is therefore no longer best practice, and a new, more inclusive definition[iv] should be adopted to ensure all transgender people benefit from anti-discrimination protection.

 

Intersex people are even worse off under the Act. Paragraph (c) of the definition above offers their only protection under NSW law, but it is problematic because:

  • It inappropriately conflates intersex, which relates to physical sex characteristics, with gender identity, and
  • It only appears to protect people with intersex variations where they identify as either male or female.

 

To remedy this situation, a stand-alone protected attribute of ‘sex characteristics’ should be introduced, based on the March 2017 Darlington Statement by intersex activists.[v]

 

There is, however, one section within the LGBTI community that is not included in the entire Anti-Discrimination Act, not even in an out-dated, fundamentally flawed or only partial way. In fact, one of the five letters of the acronym has no anti-discrimination coverage at all: bisexual people.

 

NSW is the only jurisdiction in Australia where its anti-discrimination laws do not cover discrimination on the basis of bisexuality. That is as bizarre as it is offensive.

 

It must be remedied at the earliest possible opportunity by the NSW Parliament, with either the introduction of a new stand-alone protected attribute of ‘bisexual’, or (preferably) by the modernisation of the current protected attribute of ‘homosexual’ to instead refer to ‘sexual orientation’, in line with the Commonwealth Sex Discrimination Act 1984[vi].

 

Summary: The protected attributes contained in the NSW Anti-Discrimination Act 1977 are the narrowest in the country, only offering protection to gay men, lesbians, and some transgender people. It needs to be updated to ensure it covers gender identity and sex characteristics, as well as extending anti-discrimination protection to bisexual people, whose exclusion is a gross oversight that has been allowed to stand for far too long.

 

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Religious Exceptions

 

In contrast to its narrowly-defined protected attributes, the religious exceptions included in the NSW Anti-Discrimination Act are in fact the broadest in Australia.

 

These loopholes allow religious organisations to discriminate against lesbian, gay and transgender people in a wide variety of circumstances, and are so generous that they substantially, and substantively, undermine the overall purpose of the legislation (which is supposedly “[a]n Act to render unlawful racial, sex and other types of discrimination in certain circumstances and to promote equality of opportunity between all persons”).

 

The main exceptions permitting anti-LG&T discrimination by religious organisations are found in section 56 of the Act:

 

Section 56 Religious bodies

Nothing in this Act affects:

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

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

(c) the appointment of any other person in any capacity by a body established to propagate religion, or

(d) any other act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.”

 

While sub-sections (a) and (b) might appear reasonable, as they are at least related to the internal training and appointment of ministers of religion, sub-sections (c) and especially (d) are outrageous in their breadth, essentially sanctioning discrimination against lesbian, gay and transgender employees and people accessing services in any organisation that is considered ‘religious’, including schools, hospitals and social services.

 

The operation of these provisions, and sub-section 56(d) in particular, in giving effective carte blanche to religious organisations to discriminate on the basis of sexual orientation and gender identity in NSW was confirmed in a 2010 decision of the Court of Appeal[vii], allowing Wesley Mission to discriminate against a male same-sex couple who had applied to be foster carers to children in need.

 

Wesley successfully defended its prejudiced approach on the basis that “[t]he biblical teaching on human sexuality makes it clear that monogamous heterosexual partnership within marriage is both the norm and ideal.”[viii] This was in spite of the fact Wesley allowed single men and women to be carers (apparently they believed two dads or two mums had less to offer than one).

 

The ‘right to discriminate’ provided to religious organisations by section 56 of the NSW Anti-Discrimination Act 1977 is essentially without restriction. And this general ability to exclude lesbian, gay and transgender people in NSW is supplemented by additional loopholes covering specific areas of public life.

 

One of these covers discrimination in adoption services. While the equal right of same-sex couples to adopt was recognised in NSW law in 2010, those very same reforms inserted the following into the Anti-Discrimination Act 1977:

 

Section 59A Adoption services

(1) Nothing in Part 3A [transgender protections] or 4C [homosexual protections] affects any policy or practice of a faith-based organisation concerning the provision of adoption services under the Adoption Act 2000 or anything done to give effect to any such policy or practice.”

 

Which means that a religious organisation that operates an adoption service is legally permitted to deny a child the best possible adoptive parents solely because they might be lesbian, gay or transgender.

 

Perhaps the most (in)famous exceptions in the Act are those that apply to ‘private educational authorities’.[ix] Even though subsection 56(d) already allows religious schools to do whatever they want in relation to lesbian, gay and transgender teachers and students, NSW Parliament added specific clauses to ensure that private educational authorities can:

 

  • Discriminate against transgender employees[x]
  • Discriminate against transgender students, including by refusing their admission, attaching conditions to their admission, denying them benefits as a student, or by expelling them[xi]
  • Discriminate against lesbian and gay employees[xii] and
  • Discriminate against lesbian and gay students, including by refusing their admission, attaching conditions to their admission, denying them benefits as a student, or by expelling them[xiii].

 

Imagine considering it justified to seek special privileges to discriminate against these groups, let alone for State Parliament to condone such discrimination via legislation?

 

Perhaps the most extraordinary part of the ‘private educational authorities’ exceptions is that they aren’t even restricted to religious schools – in fact, the Anti-Discrimination Act 1977 allows all non-government schools and colleges, even where they have absolutely nothing to do with religion, to refuse to employ lesbian, gay and transgender people, and exclude or expel LG&T students.

 

Summary: The religious exceptions contained in the NSW Anti-Discrimination Act 1977 are the broadest in Australia, and fundamentally undermine the integrity of a framework which is supposed to address discrimination on the basis of sexual orientation and gender identity. Subsections 56(c) and (d) should be repealed, as well as the more specific exceptions offered to religious organisations in relation to adoption services, and those allowing private educational authorities to discriminate against lesbian, gay and transgender employees and students.

 

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Anti-Vilification Coverage

 

There is one area where NSW is at least somewhat ahead of other jurisdictions, and that is in its inclusion of anti-vilification protections for the LGBTI community – or some parts of it anyway, given, just as for anti-discrimination protections, its anti-vilification laws only cover lesbian, gay and some transgender people.

 

The NSW Anti-Discrimination Act 1977 creates offences of serious transgender vilification[xiv], and serious homosexual vilification[xv]. These offences are based on, and drafted using the same wording as, the offence of serious racial vilification[xvi]:

 

“A person shall 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 of the person or members of the group/on the ground that the person is a transgender person, or a group of persons on the ground that the members of the group are transgender persons/or group of persons on the ground of the homosexuality of the person or members of the group] by means which include:

(a) threatening physical harm towards, or towards any property of, the person or group of persons, or

(b) inciting others to threaten physical harm towards, or towards any property of, the person or group of persons.”

 

And yet, despite having the same wording, and involving exactly the same legal tests, the offences have different penalties:

 

  • The maximum penalty for the offence of serious racial vilification by an individual is “50 penalty units or imprisonment for 6 months, or both”, whereas
  • The maximum penalty for the offences of serious transgender vilification and serious homosexual vilification is “10 penalty units or imprisonment for 6 months, or both.”

 

There can be no justification for treating these offences differently – indeed, the unavoidable implication of imposing a higher fine for one type of vilification than another is that some types of vilification are more serious than others and therefore require greater punishment. Given homophobia, biphobia, transphobia and intersexphobia are just as dangerous, and just as harmful, as racial vilification, that is simply not true.

 

There isn’t even a plausible defence that this discrepancy arose inadvertently – while the penalty for racial vilification was increased in 1994, which was after the offence of serious homosexual vilification had been created, transgender vilification provisions were introduced later still (in 1996), which means Parliament actively chose to introduce a lower penalty for it compared to racial vilification.

 

As well as introducing new vilification protections covering bisexual and intersex people, the NSW Government must harmonise these provisions. Indeed, as part of its response to the State Parliamentary Inquiry into Racial Vilification, then-NSW Attorney General Gabrielle Upton MP publicly committed, via twitter, that “#NSWGovt intends to ensure ADA offences for serious vilification are consistent across the board #nswpol”.[xvii]

 

The then-Baird Liberal-National Government in fact committed to release an exposure draft Bill to reform vilification law in NSW ‘in early 2016’ – although, in December 2017 one has yet to appear.

 

In fact, current Attorney General Mark Spearman has now “confirmed to the Guardian Australia that there is now no intention for reform. “There are no present plans to amend section 20D of the Anti-Discrimination Act,” he said. “Apart from section 20D and its analogues, existing general criminal law provisions, including in the Crimes Act, are capable of covering conduct of the kind in question.””

 

This is obviously incredibly disappointing, and means that the inconsistencies in, and inadequacies of, NSW LGBTI anti-vilification laws will likely last until at least the March 2019 State election, and potentially well beyond.

 

 

Summary: NSW is one of only four Australian states and territories that have anti-vilification protections covering any part of the LGBTI community. However, not only do they not protect bisexual or intersex people from vilification, the penalties imposed for homosexual and transgender vilification offences are different to, and less than, those imposed for racial vilification. Both of these injustices must be addressed.

 

**********

 

Other Issues

 

While the ‘What’s Wrong With’ series concentrates on the three main areas of protected attributes, religious exceptions and anti-vilification coverage, I will also raise other issues relating to LGBTI anti-discrimination laws where they are significant.

 

In the case of the NSW Anti-Discrimination Act 1977, these include:

 

  • An incredibly broad exception allowing “the exclusion of a transgender person from participation in any sporting activity for members of the sex with which the transgender person identifies”[xviii]
  • An inappropriate exception allowing superannuation funds to “treat… the transgender person as being of the opposite sex to the sex with which the transgender person identifies”[xix] and
  • Perhaps most alarmingly, exceptions which allow employers to discriminate against lesbian, gay and transgender applicants and employees “if the number of persons employed by the employer… does not exceed 5”[xx].

 

In fact, a similar exception also permits discrimination in relation to the ground of sex[xxi] – but no such limitation applies to race[xxii].  Which means that the NSW Parliament has effectively determined that racial discrimination cannot be tolerated in employment in any circumstances – but discrimination against lesbians, gay men, transgender people and even women is acceptable in some circumstances. That message is unconscionable, and these provisions must be made uniform (by abolishing the exceptions applying to homosexual, transgender and sex discrimination in employment).

 

**********

 

In conclusion, it is clear that, while NSW once had the first gay anti-discrimination laws in Australia, it now has (arguably) the nation’s worst LGBTI laws – with significant problems in terms of protected attributes and religious exceptions, and serious shortcomings where it does have anti-vilification coverage. These and other issues must be addressed by the Government, and Parliament more broadly, as a matter of priority.

 

NSW ADA homosexuality 1982

NSW was the first Australian jurisdiction to introduce anti-discrimination laws covering any part of the LGBTI community – but 35 years later still doesn’t protect bisexual or intersex people.

 

Footnotes:

[i] The other posts in the series can be found here: LGBTI Anti-Discrimination / #NoHomophobiaNoExceptions

[ii] Section 4 Definitions.

[iii] From section 4: “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 or under the corresponding provisions of a law of another Australian jurisdiction.”

[iv] Potentially modelled on the definition adopted by the Commonwealth Sex Discrimination Act 1984: “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” [Although obviously exact wording should be agreed with NSW’s transgender community.]

[v] OII Australia, and other intersex activists from Australia and Aotearoa/New Zealand, issued the Darlington Statement as a call for wide-ranging law and policy reforms, including ‘for effective legislative protection from discrimination and harmful practices on grounds of sex characteristics’ (paragraph 9, here).

This terminology (‘sex characteristics’) is intended to replace the previous protected attribute of ‘intersex status’, as included in section 4 of the Sex Discrimination Act 1984, and defined as: “intersex status means the status of having physical, hormonal or genetic features that are:

(a) neither wholly female nor wholly male; or

(b) a combination of female and male; or

(c) neither female nor male.”

[vi] Section 4 of the Sex Discrimination Act 1984 states ““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.”

[vii] OV & OW v Members of the Board of the Wesley Council [2010] NSWCA 155 (6 July 2010).

[viii] OW & OV v Members of the Board of the Wesley Mission Council [2010] NSWADT 293 (10 December 2010).

[ix] Defined in section 4 as “private educational authority means a person or body administering a school, college, university or other institution at which education or training is provided, not being:

(a) a school, college, university or other institution established under the Education Reform Act 1990 (by the Minister administering that Act), the Technical and Further Education Commission Act 1990 or an Act of incorporation of a university, or

(b) an agricultural college administered by the Minister for Agriculture.”

[x] Section 38C prohibits discrimination against transgender applicants and employees, but subsection (3)(c) clarifies that this prohibition does not apply to discrimination by private educational authorities.

[xi]Section 38K Education

(1) It is unlawful for an educational authority to discriminate against a person on transgender grounds:

(a) by refusing or failing to accept the person’s application for admission as a student, or

(b) in the terms on which it is prepared to admit the person as a student.

(2) It is unlawful for an educational authority to discriminate against a student on transgender grounds:

(a) by denying the student access, or limiting the student’s access, to any benefit provided by the educational authority, or

(b) by expelling the student or subjecting the student to any other detriment.

(3) Nothing in this section applies to or in respect of a private educational authority.”

[xii] Section 49ZH prohibits discrimination against lesbian and gay applicants and employees, but, just like for transgender people, subsection (3)(c) clarifies that this prohibition does not apply to discrimination by private educational authorities.

[xiii]Section 49ZO Education

(1) It is unlawful for an educational authority to discriminate against a person on the ground of homosexuality:

(a) by refusing or failing to accept the person’s application for admission as a student, or

(b) in the terms on which it is prepared to admit the person as a student.

(2) It is unlawful for an educational authority to discriminate against a student on the ground of homosexuality:

(a) by denying the student access, or limiting the student’s access, to any benefit provided by the educational authority, or

(b) by expelling the student or subjecting the student to any other detriment.

(3) Nothing in this section applies to or in respect of a private educational authority.”

[xiv] Section 38T.

[xv] Section 49ZTA.

[xvi] Section 20C.

[xvii] See Ms Upton’s tweet reproduced here: Will NSW Reforms Prioritise Racial Vilification at the Expense of LGBTI Vilification?

[xviii] Section 38P. It is hoped that, given the work in recent years by transgender groups, the Australian Human Rights Commission and Australian sporting organisations, these provisions could be amended if not repealed entirely in future years.

[xix] Section 38Q.

[xx] Included in both sub-sections 38C(3)(b) and 49ZO(3)(b).

[xxi] Section 25(3)(b).

[xxii] Section 8, which covers Discrimination against applicants and employees on the ground of race, does not include any exception based on the number of employees that an employer has.

Will NSW Reforms Prioritise Racial Vilification at the Expense of LGBTI Vilification?

Post Update #3: 12 January 2017

Contrary to the response received from the Department of Justice in November 2015 (included below), and commitments given by Attorney-General Gabrielle Upton in October 2015, the NSW Government did not release an Exposure Draft Bill to reform vilification laws in early 2016.

In fact, as noted by the Sydney Morning Herald in November 2016: “NSW Parliament has risen for the year without any action on reforms promised by the NSW Attorney-General to ethnic communities a year ago to make it easier to prosecute serious racial vilification cases in the state.”

That means there has been an entire year of inaction on much-needed reforms to vilification laws, that would have not only strengthened racial vilification laws, but also harmonised provisions across the different grounds for vilification (including homosexual, transgender and HIV/AIDS vilification).

This inaction is incredibly disappointing given that same 12-month period has seen a wide range of homophobic and transphobic public debate in NSW, and across Australia (see 2016: Annus Homophobicus). Hopefully 2017 will see this situation change – although, based on the past year, I certainly won’t be holding my breath.

 

Post Update #2: 23 December 2015

I received the following response to my letter (below) on 19 November 2015, not from the Attorney-General Ms Upton, but instead from the Director of the Community Relations Unit in the Department of Justice [and apologies for the delay in posting before now]:

“I refer to your email to the Attorney General, the Hon Gabrielle Upton MP, about your concerns regarding a review of the NSW racial vilification laws. The Attorney General has asked me to reply on her behalf.

NSW is one of the most culturally, linguistically and religiously diverse
communities in the world. To protect the diversity of our community, the
Government has committed to amending the Anti-Discrimination Act 1977 (the Act), in particular the racial vilification laws.

Currently, the vilification offences make it clear that for vilification to
be an offence it must threaten violence or incite others to threaten
violence.

As you are aware, the New South Wales Legislative Council’s Law and Justice Committee conducted a review of racial vilification laws in New South Wales, in particular section 20D of the Act.

Section 20D of the Act makes it a criminal offence to incite hatred
towards, serious contempt for, or severe ridicule of, a person or group of
persons on the grounds of race by means which include; threatening physical harm towards, or towards any property of, the person or group of persons, or inciting others to threaten physical harm towards, or towards any property of, the person or group of persons.

In its Report, the Committee concluded that improvements were required to the Act. These improvements include allowing the President of the
Anti-Discrimination Board to refer complaints directly to the NSW Police,
extending the time limit for commencing prosecutions from six months to 12 months and clarifying reckless actions are sufficient to establish an
intention to incite under section 20D.

In light of the Committee’s Report, the NSW Government considers the racial vilification offence and other vilification offences relating to
homosexuality, HIV/AIDS status and transgender status in the Act also need revising.

The Government intends to release for public consultation an exposure draft Bill amending the State’s vilification laws, with legislation to be
introduced into Parliament in the first half of 2016. Details regarding the
draft exposure Bill will be released in early 2016.

Thank you for taking the time to write about this issue.

Yours faithfully

Director
Community Relations Unit
NSW Department of Justice”

 

Post Update #1: 1 November 2015

The NSW Attorney-General, the Hon Gabrielle Upton MP, announced the NSW Government’s position of vilification reforms on Monday 19 October 2015.

According to the Sydney Morning Herald[i]:

“The government will overhaul hate speech laws in NSW following the terror attack at Parramatta police headquarters and calls from the opposition for stronger laws to clamp down on ‘radical preachers’.

Attorney-General Gabrielle Upton said the government will strengthen and streamline racial vilification laws, defying right-wing commentators who have previously said proposed reforms were ‘straight out of the Leninist playbook.’

Ms Upton said recent events had ‘reinforced the necessarily of being vigilant to and guarding against the spread of racial vilification’.”

Importantly, the Guardian[ii] also reported that “LGBTIQ groups have been lobbying for hate speech against members of their communities to be included in any new laws and it is understood the proposed changes would include them” although it did not provide any further information on this issue.

I sought clarification through twitter from the Attorney-General on the inclusion, or exclusion, of LGBTI vilification in the reforms, and received the following reply:

IMG_0640

This response obviously gives hope that vilification provisions contained in the Anti-Discrimination Act 1977 may finally be amended to be genuinely LGBTI inclusive, although it will be important to closely scrutinise the Government’s exposure draft Bill, which is expected to be released for public consultation in January 2016.

One final cause for optimism – on the day before Attorney-General Upton’s announcement, the Leader of the NSW Opposition, Luke Foley, made a similar commitment on vilification reform. As reported by samesame[iii]:

“The Labor opposition in New South Wales wants to ensure people who promote or advocate violence based on race, gender or sexual orientation are punished under the law.”

All we need to do now is hold both the Liberal-National Government, and Labor Opposition, to their public commitments.

[i] “Hate speech overhaul to try to spread of racial vilification”, Sydney Morning Herald, 19 October 2015: http://www.smh.com.au/nsw/hate-speech-overhaul–to-try-to-stop-spread-of-racial-vilification-20151018-gkbukb.html

[ii] “New South Wales hate speech laws to clamp down on ‘violent extremists’”, The Guardian, 19 October 2015: http://www.theguardian.com/australia-news/2015/oct/19/new-south-wales-hate-speech-laws-to-clamp-down-on-violent-extremists

[iii] “NSW Opposition: ‘Hate speech should be a crime’”, samesame, 19 October 2015: http://www.samesame.com.au/news/12884/NSW-opposition-Hate-speech-should-be-a-crime

 

Original Post: 16 October 2015

The Hon Gabrielle Upton MP

Attorney-General

GPO Box 5341

Sydney NSW 2001

office@upton.minister.nsw.gov.au

Friday 16 October 2015

Dear Attorney-General

REFORMS TO NSW ANTI-VILIFICATION LAWS

I am writing to you on the subject of possible changes to anti-vilification laws in the Anti-Discrimination Act 1977(‘the Act’), as flagged by you in two tweets on 18 September 2015[i], and as confirmed in an article which appeared in The Australian on 23 September 2015, in which your spokesperson “said the NSW government was ‘working towards reform’ in the area”.[ii]

Specifically, I am writing to seek your assurance that any reforms to anti-vilification laws will apply equally across all grounds of vilification, including homosexual, transgender and HIV vilification which are also included in the Act, and will not prioritise racial vilification as more important, or worthy of punishment, than vilification on the basis of other attributes.

Instead, I urge you and the Liberal-National Government to ensure that anti-vilification laws apply fairly both to members of NSW’s ethnic communities, and to the state’s lesbian, gay, bisexual, transgender and intersex (LGBTI) community.

To begin with, I note that currently the provisions of the Anti-Discrimination Act only protect lesbian, gay[iii] and transgender[iv] members of the LGBTI community. There is no legal protection for bisexual and intersex people against vilification on the basis of who they are (or against discrimination more broadly, for that matter).

If reforms are to be made to anti-vilification laws in NSW, then the specific inclusion of bisexual and intersex people in the Act must be a priority.

Even more concerningly, I note that there is a discrepancy in the penalties for vilification which are contained in the Act, depending on the attribute which is involved.

For example, while the maximum penalty for homosexual and transgender vilification by an individual is set at “10 penalty units or imprisonment for 6 months, or both”[v], the penalty for racial or HIV vilification by an individual is set at “50 penalty units or imprisonment for 6 months, or both.”[vi]

Given the vast majority of prosecutions for vilification offences in NSW are unlikely to result in imprisonment, the consequence of this discrepancy is to send the message to the community, whether intentionally or otherwise, that racial and HIV vilification is five times more important, or worthy of punishment, than homosexual or transgender vilification.

I find this message to be inherently offensive – that equivalent acts of vilification should attract differing penalties simply because it involved sexual orientation or gender identity rather than race. I sincerely hope that you agree – and that you will therefore commit to harmonising the penalties for vilification contained in the Act.

However, I am concerned that, rather than ameliorating existing problems, the reforms to NSW’s anti-vilification laws which you have indicated you are considering will instead compound the differential treatment of racial vilification compared to homosexual or transgender vilification.

That is because these reforms appear to be based primarily on the recommendations of the 2013 Legislative Council Standing Committee on Law and Justice Inquiry into Racial Vilification Law in New South Wales.[vii]

This Inquiry made a number of recommendations to amend racial vilification laws, including to:

  • Include “quasi-public places, such as the lobby of a strata or company title apartment block” (Recommendation 1)
  • Clarify that “recklessness is sufficient to establish intention to incite” (Recommendation 3)
  • “[R]eview the adequacy of the maximum penalty units in section 20D of the Anti-Discrimination Act 1977, taking into account the maximum penalty units for comparable offences within the Crimes Act 1900 and other Australian jurisdictions” (Recommendation 6)
  • “[R]epeal the requirement for the Attorney-General’s consent to prosecutions of serious racial vilification” (Recommendation 7)
  • Extend the time limits for commencing prosecutions for racial vilification offences to 12 months, or alternatively to extend the timeframe for the President of the Anti-Discrimination Board to refer complaints to the Attorney-General (Recommendations 9, 10)
  • “[A]llow the President of the Anti-Discrimination Board of NSW to directly refer serious racial vilification complaints to the NSW Police Force” (Recommendation 11) and
  • Provide training to NSW Police Force members about the offence of serious racial vilification (Recommendation 14).[viii]

It is arguable that the inquiry itself was flawed from the beginning given it focused on only one out of the four existing grounds of vilification in the Act.

However, what is beyond doubt is that, were you to adopt the recommendations of this Inquiry as a whole, but only with respect to racial vilification, you and the Liberal-National Government would in effect be creating a discriminatory ‘hierarchy’ of vilification laws and procedures in NSW law.

The offences of racial and homosexual vilification are drafted in exactly the same way – the only difference being substitution of the word homosexuality for race.[ix]

In which case, there cannot be any justification for the introduction and passage of laws which would mean that only racial vilification applies in quasi-public places, or includes recklessness, or attracts higher penalties, or does not need Attorney-General approval to commence proceedings, or has longer timeframes for prosecution, or can be directly referred to Police, or for which NSW Police Force members are specifically trained.

Therefore, the implementation of these reforms, if applied exclusively to racial vilification, would be both discriminatory and unjustifiable.

However, what would make them repugnant is the fact that the Standing Committee on Law and Justice’s own rationale for at least one of its recommendations – to extend the time limits for commencing prosecution of vilification offences to 12 months – is in fact based on a case of alleged homosexual vilification. As discussed in Chapter 6 of the Committee Report:

“6.20 The Board referred to a recent case involving homosexual vilification, Simon Margan v Director of Public Prosecutions & Anor [2013] NSWSC 44, which illustrated the potential issues surrounding the timeframe for lodging vilification complaints. In that case, Mr Margan lodged a complaint with the Anti-Discrimination Board of NSW within the 12 month timeframe required under s89B of the Anti-Discrimination Act. However the Director of Prosecutions (DPP), and later the Supreme Court, dismissed the offence as statute barred as it was a summary offence and proceedings were required to be commenced within six months.

Committee comment

6.21 The Committee understands that there is a significant discrepancy between the timeframes for lodging complaints under s89B of the Anti-Discrimination Act (12 months of an incident occurring) and s179 of the Criminal Procedure Act 1986 (summary offences must commence within six months of an incident occurring). The case of Simon Margan v Director of Public Prosecutions & Anor highlighted the injurious impact that this discrepancy can have on vilification complaints.

6.22 It appears sensible to align the above timeframes. Therefore the Committee recommends that the NSW Government extend the time limit for prosecutions under section 179 of the Criminal Procedure Act to 12 months to be consistent with the time limit for lodging complaints under section 89B of the Anti-Discrimination Act.”[x]

And yet, despite noting the ‘injurious impact’ of the discrepancies in time limits on Mr Margan, whose complaint was based on homosexual vilification, the Committee’s recommendation was explicitly restricted to racial vilification:

Recommendation 9

That, for the purposes of racial vilification proceedings only [emphasis added], the NSW Government extend the time limit for commencing prosecutions under section 79 of the Criminal Procedure Act 1986 to 12 months to be consistent with the time limit for lodging complaints under section 89B of the Anti-Discrimination Act 1977.”[xi]

If you and the Liberal-National Government were to implement Recommendation 9 as it stands then you would only be adding insult to injury.

For all of the reasons outlined above, I urge you to ensure that any reforms which you make to the anti-vilification laws contained in the Anti-Discrimination Act treat vilification equally across all grounds, and do not unjustifiably, and above all unjustly, prioritise racial vilification offences and discriminate against homosexual, transgender and HIV vilification protections.

Finally, if you are serious about modernising the vilification provisions contained in the Act you should also expand the grounds covered to offer vilification protection to bisexual and intersex people for the first time (and indeed to provide them with anti-discrimination coverage too), and to remove the existing discrepancies in penalties between racial and HIV vilification offences on the one hand, and homosexual and transgender vilification offences on the other.

Thank you in advance for taking my correspondence into consideration. Should you require additional information, or wish to clarify any of the above comments, please do not hesitate to contact me at the details provided below.

Sincerely

Alastair Lawrie

NSW Attorney-General the Hon Gabrielle Upton MP

NSW Attorney-General the Hon Gabrielle Upton MP

[i] Gabrielle Upton MP (@gabrielleupton), 8:55am – 18 Sep 2015: “.@shumba60 Racial vilification abhorrent. NSW Govt considering proposed changes to streamline/strengthen race hate laws @mikebairdMP #nswpol”

Gabrielle Upton MP (gabrielleupton), 3:39pm – 18 Sep 2015: “.@VicAlhadeff #NSWGovt wants inclusive, diverse comm. Considering changes to streamline/strengthen race hate laws @NSWJBD @ajnnews #nswpol”

[ii] “Taunts to Trigger Race-Hate Law Overhaul”, The Australian, September 23 2015: http://www.theaustralian.com.au/national-affairs/state-politics/taunts-to-trigger-race-hate-law-overhaul/story-e6frgczx-1227539272920?sv=64dde3a02ebcfb4c634183c907bbeacf

[iii] Sub-section 49ZT(1) Homosexual vilification unlawful “It is unlawful for a person, by a public act, to incite 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.”

[iv] Sub-section 38S(1) Transgender vilification unlawful “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.”

[v] S49ZTA(1)(b), s38T(1)(b)

[vi] S20D(1)(b), s49ZXC(1)(b)

[vii] “Racial Vilification Law in New South Wales – Final Report”, 3 December 2013: https://www.parliament.nsw.gov.au/prod/parlment/committee.nsf/0/E08D4387100A3C56CA257C35007FCC4D?open&refnavid=x

[viii] Ibid, pp xii-xiii.

[ix] S20D Offence of serious racial vilification (1) A person shall 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 of the person or members of the group by means which include: (a) threatening physical harm towards, or towards any property of, the person or group of persons, or (b) inciting others to threaten physical harm towards, or towards any property of, the person or group of persons.”

S49ZTA Offence of serious homosexual vilification (1) A person shall 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 homosexuality of the person or members of the group by means which include: (a) threatening physical harm towards, or towards any property of, the person or group of persons, or (b) inciting others to threaten physical harm towards, or towards any property of, the person or group of persons.”

[x] “Racial Vilification Law in New South Wales – Final Report”, 3 December 2013, pp84-85.

[xi] Ibid, p85.

Submission to Alex Greenwich Discussion Paper re Removing Surgical Requirement for Changes to Birth Certificate

Alex Greenwich MP

58 Oxford St

PADDINGTON NSW 2021

sydney@parliament.nsw.gov.au

Friday 21 August 2015

Dear Mr Greenwich

SUBMISSION ON DISCUSSION PAPER RE REMOVING SURGICAL REQUIREMENT FOR CHANGES TO BIRTH CERTIFICATE

Thank you for the opportunity to provide this short submission in response to the above-mentioned Discussion Paper, and for highlighting what is clearly an important issue for transgender people in NSW.

I should begin by noting that I am writing this from the perspective of a cisgender gay man and that, if this submission is contrary to the views expressed by trans* individuals and organisations, then those submissions should obviously be preferred.

Nevertheless, as a long-term advocate and activist within the lesbian, gay, bisexual, transgender and intersex (LGBTI) community, I find it hard to disagree with the premise of the Discussion Paper which is that trans* people should not be required to undergo irreversible sex affirmation surgical procedures before being able to apply to amend their birth certificate.

Similarly, I can see no valid reason why the approach which has been adopted by Ireland – and which is described in the Discussion Paper as ‘world’s best practice’ – should not be adopted here.

This approach – allowing transgender individuals to legally change their birth certificate through a statutory declaration process without any need for medical documentation – has a number of significant advantages.

These include:

  • Recognising the diversity of experience within the transgender community
  • Respecting the personal autonomy of people to identify themselves and
  • Removing the unnecessary ‘medicalisation’ of this process.

Above all, adopting the Irish approach would make it easier for trans* people to obtain documentation which reflects their gender identity, which is a positive outcome in and of itself.

I look forward to seeing the Final Report of this consultation later in 2015, and to the ongoing work of yourself and the NSW Cross-Party LGBTI Working Group on a wide range of other, related issues, including (but not limited to):

  • The abolition of incredibly unjust ‘forced trans* divorce’ laws
  • The removal of exceptions to the NSW Anti-Discrimination Act 1977 which allow private schools to discriminate against trans* students and teachers[i] and
  • The abolition of the unjustifiably broad exceptions granted to religious organisations in sub-section 56(d)[ii] of the same Act.

Thank you in advance for taking this submission into account. Please contact me at the details provided below if you would like clarification or further information about any aspect of this submission.

Sincerely,

Alastair Lawrie

[i] Section 38K of the NSW Anti-Discrimination Act 1977, which covers education, provides that “[n]othing in this section applies to or in respect of private educational authorities”.

[ii] “Nothing in this Act affects: … (d) any other act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.”

State Member for Sydney Alex Greenwich (source NSW Parliament website).

State Member for Sydney Alex Greenwich (source: NSW Parliament website).