15 LGBTI Priorities for ALP National Conference 2015

There are now less than 12 months left until the next Australian Labor Party National Conference. To be held in Melbourne next July 24 to 26, National Conference is still the supreme decision-making body of the (traditionally) centre-left major party of Australian politics. National Conference is therefore the main opportunity to secure ‘progressive’ change in ALP policies during this term of Parliament, including on those issues affecting the LGBTI community.

And the first National Conference held after a loss of Government, as this one will be, offers more chance than most to help ‘reset’ the direction of the Australian Labor Party, to reject some of the worst policies of the Rudd-Gillard-Rudd Government (including the processing and resettlement of LGBTI refugees in countries which criminalise homosexuality) and to propose new, better policies which promote the fundamental equality of LGBTI Australians.

Which means that now is the time for LGBTI activists and advocates to be considering what our priorities should be for next year’s National Conference, and to start the process of lobbying (whether from inside or outside the party) to help achieve them.

The following is my list of priorities for LGBTI reform to the Labor Party platform. It is not comprehensive – I’m sure other people will have slightly different priorities, and I welcome feedback, particularly on issues which I have (either consciously or unconsciously) excluded. But I thought I would share this list to ‘kick off’ the debate, and help ensure we start planning our actions towards ALP National Conference 2015.

1. Remove religious exemptions from the Sex Discrimination Act 1984

One of the most important reforms of the previous Labor Government was the introduction of LGBTI anti-discrimination protections under Commonwealth law for the first time. The passage of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, albeit some 38 years after the Racial Discrimination Act and 29 years since the passage of the original Sex Discrimination Act, was indeed a historic achievement.

However, it was also a fundamentally flawed one, because it included wide-ranging exemptions allowing religious organisations to discriminate against employees, and people accessing services, on the basis of sexual orientation and gender identity.

These exemptions are a blight on the Sex Discrimination Act and will undermine lesbian, gay, bisexual and transgender equality for as long as they exist. It is essential that ALP National Conference adopts a policy of removing religious exemptions from Commonwealth law, outside of the appointment of ministers of religion, and the conduct of religious ceremonies (ie those exemptions genuinely necessary for the exercise of religious freedom, not those which some religious organisations wish to use simply to discriminate against LGBT people across multiple areas of public life).

And while many may see this goal as unachievable, the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 itself showed that it is indeed possible. By rejecting religious exemptions with respect to intersex status, and simultaneously ensuring that religious exemptions do not apply to LGBT people accessing aged care services, the last Parliament demonstrated that religious exemptions are not inviolable. It’s time to persuade the majority of delegates to next year’s National Conference to agree.

For more on this subject, see The Last Major Battle for Gay & Lesbian Equality Won’t be About Marriage <https://alastairlawrie.net/2014/02/26/the-last-major-battle-for-gay-lesbian-legal-equality-in-australia-wont-be-about-marriage/

2. Introduce Commonwealth LGBTI anti-vilification protections

One of the major social policy debates in the 1st half of 2014 concerned Attorney-General George Brandis’ exposure draft Bill seeking to repeal section 18C of the Racial Discrimination Act, a move that would have essentially gutted racial anti-vilification protections under Commonwealth law.

Fortunately, unlike many other social and economic ‘reforms’ put forward by the Abbott regime in its first 12 months in office, this move was soundly rejected, with a significant public backlash, as well as a strong pushback by the Australian Labor Party.

Well, now that racial anti-vilification protections have been saved, it’s time for the ALP to support the introduction of Commonwealth anti-vilification protections for LGBTI Australians.

No-one can seriously argue that homophobia, biphobia, transphobia and intersexphobia aren’t real, and substantial, problems in modern public life. We, as LGBTI Australians, deserve the same protections from vilification as other groups receive from different kinds of abuse. Nothing more and nothing less.

For more on this subject, see Don’t Limit Racial Vilification Protections, Introduce Vilification Protections for LGBTI Australians Instead
<https://alastairlawrie.net/2014/04/24/dont-limit-racial-vilification-protections-introduce-vilification-protections-for-lgbti-australians-instead/

3. Implement the recommendations of the Senate Inquiry into the Involuntary or Coerced Sterilisation of Intersex People in Australia

Another key development during the last term of Parliament was the Senate’s inquiry into the involuntary or coerced sterilisation of intersex people (to see the full report, click here: <http://www.aph.gov.au/~/media/Committees/Senate/committee/clac_ctte/involuntary_sterilisation/second_report/report.ashx and to see my submission to that inquiry, click here: <https://alastairlawrie.net/2013/07/01/submission-to-involuntary-and-coerced-sterilisation-senate-inquiry/ ).

These practices, which shamefully continue today, are some of the most serious human rights violations, not just of LGBTI Australians, but of any person in contemporary Australia.

While the recommendations of the Senate inquiry are by no means comprehensive, their implementation would be a good start towards ensuring that intersex children are no longer subjected to unnecessary and unjustified ‘medical procedures’, and certainly not before they are in a position to either grant, or withhold, consent.

A related reform would be to support the removal of the exemption from policy frameworks on Female Genital Mutilation which permit such surgical interventions on intersex girls for rationales that include cultural issues such as marriage opportunities. A principle of non-discrimination should apply in all circumstances. For more information on this see OII Australia’s third submission to the Senate Inquiry, here: <http://oii.org.au/22613/third-submission-senate-inquiry-sterilisation/

4. Remove all out-of-pocket costs for trans* surgeries

The ability of people to access whatever medical support they require to affirm their gender identity isn’t just fundamental to their mental and physical health, it is a fundamental human right. As such, access to trans* surgeries and related medical procedures should not be restricted by the capacity to pay, but instead should be fully publicly subsidised through Medicare.

The Shorten Labor Opposition has been strong in standing up against the Abbott Government’s moves towards a US-style ‘user pays’ health system in Australia. They should be equally firm in asserting the right to full public funding of trans*-related medical expenses, including ensuring no out-of-pocket expenses for trans* surgeries.

5. Training for health professionals on trans*, gender diverse & intersex issues

The last two priorities – intersex sterilisation and trans* medical expenses – demonstrate the ongoing influence of health professionals in the lives of trans*, gender diverse and intersex people. That influence has the potential to be positive, but unfortunately in too many situations can and does directly lead to harm, often of a serious and/or permanent nature.

One of the key ways to overcome these negative impacts is to increase the basic knowledge of health professionals about trans*, gender diverse and intersex issues through introductory, and ongoing, training (which could also be used to increase knowledge about the health needs of lesbian, gay and bisexual people at the same time – although arguably, and leaving people like Dr David Van Gend and Philip Pocock aside, sexual orientation is treated marginally better than gender identity and intersex status by health professionals).

Hopefully by addressing the sometimes woeful level of (mis)understanding of trans*, gender diverse and intersex issues by health professionals we can go some way to changing some of the health indicators where trans*, gender diverse and intersex (and also lesbian, gay and bisexual) individuals ‘underperform’ compared to other Australians.

6. Introduce a genuinely-inclusive national Health & Physical Education curriculum

The draft national Health & Physical Education curriculum was developed by the Australian Curriculum, Assessment & Reporting Authority (ACARA) during 2012 and 2013, primarily while Peter Garrett was Education Minister – although briefly under the responsibility of then Minister Bill Shorten, too.

Unfortunately, even before the incoming Education Minister Christopher Pyne got his hands on it, the draft HPE curriculum was unambiguously a dud. It failed to be inclusive of LGBTI students and content – it doesn’t use the words lesbian, gay or bisexual once – and also failed to ensure that all schools would provide comprehensive sexual health education to students (scandalously, it doesn’t even refer to HIV or other blood borne viruses at all in the entire document).

And after Minister Pyne delegated the review of the overall national curriculum, including HPE, to noted homophobe Kevin Donnelly (alongside Ken Wiltshire), the version which will ultimately be adopted sometime later this term is likely to be even worse, especially in terms of its LGBTI-inclusiveness (or lack thereof).

This outcome will be a huge, and sadly bipartisan, missed opportunity, to improve the lives of thousands of lesbian, gay, bisexual, transgender and intersex young people around the country.

The Labor Party should accept its share of responsibility for this – and take action at the 2015 National Conference to remedy it, by including a commitment in the party’s platform to introduce a genuinely LGBTI-inclusive national Health & Physical Education curriculum.

To see my letter to Minister Pyne calling for Kevin Donnelly to be sacked from the Students First Review, click here: <https://alastairlawrie.net/2014/01/11/letter-to-minister-pyne-re-health-physical-education-curriculum-and-appointment-of-mr-kevin-donnelly/ and a copy of my submission to the review of the national curriculum can be found here: <https://alastairlawrie.net/2014/03/13/submission-to-national-curriculum-review-re-national-health-physical-education-curriculum/

Will Bill Shorten support full LGBTI equality at ALP National Conference 2015?

Will Bill Shorten support full LGBTI equality at ALP National Conference 2015?

7. Provide long-term commitment to support Safe Schools

On the other hand, one of the best things which the Labor Government did with respect to LGBTI students and young people in its last term in office was to provide a 3-year, $8 million grant to the Foundation for Young Australians to support the national roll-out of the Victorian Safe Schools Coalition program.
Perhaps surprisingly, this initiative has (so far) not been cut by the Abbott Government, and the NSW launch of Safe Schools was held at the end of July 2014, with other states to follow.

With the need for multiple programs to address the ongoing problems of homophobia, biphobia, transphobia and intersexphobia in our schools, which we know takes a terrible, and often tragic, toll in terms of poorer mental health outcomes, I would like to see a clear commitment in the ALP platform to support the Safe Schools program on an ongoing basis into the future.

8. Provide ongoing funding for LGBTI service delivery organisations

The last Labor Government also provided a range of other important grants supporting LGBTI service delivery, including funding for the National LGBTI Health Alliance with respect to developing the aged care and ageing strategy, and $3.3 million over 2 years to the QLife counselling service, commencing July 2013.

Obviously, these issues – LGBTI aged care and ageing requirements, and the need for dedicated LGBTI counselling services – are not going away anytime soon. As such, the national platform should explicitly support the provision of ongoing funding to LGBTI service delivery organisations, including the National LGBTI Health Alliance and also other peak trans*, intersex, lesbian, gay and bisexual service delivery organisations, to ensure these types of programs aren’t simply ad hoc, disappearing after two or three years, but become a permanent part of the health and community services sector.

9. Appoint a Spokesperson for Equality

The first Commonwealth (Minister or) Assistant Minister for Women was appointed by Prime Minister Malcolm Fraser in 1976, and it has been a permanent portfolio at federal level (in some shape or form) since it was reintroduced by Prime Minister Hawke in 1983.

However, there has never been a corresponding portfolio for lesbian, gay, bisexual, transgender and intersex people and issues – and I would argue it is long overdue. The Victorian Opposition Leader, Daniel Andrews, showed the way in May 2013 by appointing Martin Foley as the Victorian Shadow Parliamentary Secretary for Equality, the first position of its kind in the country.

It’s time that the federal Labor Party did the same – and, given Bill Shorten did not create an equality portfolio when he was elected leader late last year, there is no reason why the 2015 National Conference shouldn’t create one for him.

Of course, putting LGBTI policies on a sustainable footing takes more than simply appointing one spokesperson within caucus. If elected, the ALP should also introduce LGBTI ministerial advisory bodies, either reporting directly to the Equality Minister/Assistant Minister, or separate bodies advising key portfolios which affect the LGBTI community (including Health, Education and Attorney-General’s). This is essential to help ensure the voice of the LGBTI is heard, loud and clear, by the government.

10. Support anti-homophobia, -biphobia, -transphobia and -intersexphobia campaigns and initiatives

Law reforms aimed at combatting the suite of ‘phobias’, such as the removal of religious exceptions from the Sex Discrimination Act, and introducing LGBTI anti-vilification protections, are absolutely essential, but are not in and of themselves enough to address the problems of anti-LGBTI discrimination in society.

That requires a more co-ordinated and sustained effort, including support for public education campaigns, like the Victorian Government’s support for the No To Homophobia initiative. There is no reason why a similar, broad-based national campaign should not be funded.

It also means supporting the efforts of organisations like the Australian Human Rights Commission in addressing discrimination outside specific complaints (such as their work with sporting groups on lesbian, gay and bisexual discrimination and, hopefully sometime in the near future, on anti-trans* and -intersex prejudice on the playing field, too).

Speaking of the AHRC, it is simply unacceptable in 2014 for there not to be a dedicated, full-time LGBTI commissioner. The challenges presented by LGBTI discrimination are complex and unique, and should not be subsumed within another policy area – and certainly not be seen as a part-time job of the so-called ‘Freedom Commissioner’, who only last year was arguing the LGBTI people should not be protected from discrimination under the law, unless that discrimination was by Government. ALP National Conference 2015 should support a real, full-time LGBTI commissioner at the Human Rights Commission.

11. Make support for LGBTI human rights an explicit goal of Australia’s foreign policy

One of the more pleasing political developments in recent years has been the growth in bipartisan support for Australian engagement to support LGBTI human rights internationally.

Of course, with roughly 80 countries criminalising homosexuality – and more than half of those countries members of the Commonwealth – there is plenty of scope for Australia to do more, and specifically to support any and all moves towards decriminalisation, as well as broader legal and cultural acceptance of diversity in sexual orientation, gender identity and intersex status.

Given the scale of this challenge, I believe the ALP should adopt support for LGBTI human rights as an explicit priority of international engagement and foreign policy in the 2015 National Platform.

12. Introduce a binding vote for ALP MPs on marriage equality

This is the issue which will dominate discussion, at least from an LGBTI perspective (and possibly in terms of media coverage as well), ahead of next year’s national conference. I have listed it at number 12, not because I think it is any more or less important than the other issues included, but to highlight the fact that there are actually other important topics that require our attention prior to next July’s gathering.

Having said that, readers of my blog would be aware that this is something that I feel passionately about, having already written a lengthy post about why #ItsTimeToBind for Australian Labor on marriage equality (see: <https://alastairlawrie.net/2014/07/13/hey-australian-labor-its-time-to-bind-on-marriage-equality/ ).

In short, there is absolutely no justification whatsoever why a collectivist party, which binds on nearly all policy issues, should make an exception to allow some of its MPs to vote against the fundamental equality of all couples. That is simply legitimising prejudice on the basis of sexual orientation, gender identity and intersex status, it is wrong, and it must end.

13. Abolish the National School Chaplaincy Program

This issue, and the next, are not explicitly (or at least not exclusively) LGBTI policy issues. But they are issues which do have an impact, and a potentially disproportionate impact at that, on the LGBTI community.

In the case of the National School Chaplaincy Program, not only is it a gross waste of money (especially in a supposedly ‘tight’ fiscal environment), as well as a completely unjustified breach of the separation of church and state, it is also a program which potentially exposes thousands of young LGBTI students to the prejudices of religious fundamentalists who are keen to tell them that they are wrong for simply being who they are.

There have already been multiple reports of such abuse (including those outlined in one of Senator Louise Pratt’s final speeches in the Senate – see here for a transcript <http://thatsmyphilosophy.wordpress.com/2014/06/18/senator-louise-pratt-on-school-chaplaincy/ ) and it would be unsurprising, to say the least, if they were simply the tip of the iceberg, given the hate-driven ideology of some groups involved in religious programs and activities in schools around the country.

Overall, the main reasons to abolish the National School Chaplaincy Program aren’t necessarily LGBTI-related (see my post Dear Joe Hockey, $245million for Schools Chaplains? You Cannot Be Serious <https://alastairlawrie.net/2014/05/15/dear-joe-hockey-245-million-for-school-chaplains-you-cannot-be-serious/ ). But the LGBTI community still has an undeniable interest in supporting a platform change so that the ALP commits to abolishing the scheme, in its entirety, when it returns to office.

14. End the offshore processing & resettlement of refugees

As with chaplaincy, this is not an exclusively LGBTI policy issue – after all, the fact that Australia ‘exports’ asylum-seekers who arrive by boat, imprisoning them for several years in either Nauru or Papua New Guinea (tragically it seems at the risk of being killed, by violence or by criminal negligence), with the aim of ‘resettlement’ in those same countries despite their comparative lack of resources, is wrong no matter what the sexual orientation, gender identity or intersex status of the person(s) involved.

But the fact that LGBTI refugees are being placed at increased risk, given both Nauru and PNG retain colonial (including Australian colonial) era laws criminalising homosexuality, adds both an extra layer of oppression, as well as additional motivation for LGBTI advocates and activists to call for the end of offshore processing and resettlement – something that, depressingly, was reintroduced by the last Labor Government. It’s up to delegates at the 2015 National Conference to correct this appalling mistake.

For more on this issue, see my letter to Minister Scott Morrison, calling for an end to this situation (including his Department’s exceptionally disappointing response: <https://alastairlawrie.net/2014/02/02/letter-to-scott-morrison-about-treatment-of-lgbti-asylum-seekers-and-refugees-sent-to-manus-island-png/ ) as well as my piece 13 Highs & Lows of 2013: No 1. Australia sends LGBTI refugees to countries which criminalise homosexuality (<https://alastairlawrie.net/2013/12/27/no-1-australia-sends-lgbti-refugees-to-countries-which-criminalise-homosexuality/ ).

15. Support the pre-selection of openly-LGBTI candidates for winnable seats

This issue potentially can’t wait until National Conference 2015, with some jurisdictions having already commenced the pre-selection process for the next federal election, due in September 2016. However, if nothing is done on this between now and next July then I believe National Conference should step in.

As I have written previously, there has still never been an openly LGBTI MP in the Australian House of Representatives (see: <
https://alastairlawrie.net/2013/11/16/lgbti-voices-absent-from-the-chamber/ ), leaving us well behind our counterparts in the UK, Canada, New Zealand and even the US.

From an ALP point of view, while former Cabinet Minister Senator Penny Wong continues to blaze a trail (and is now Leader of the Opposition in the Senate), LGBTI-community representation has actually halved this year, with the homophobe Joe Bullock replacing Louise Pratt at April’s WA election re-run.

The issue of LGBTI under-representation in Parliament was actually identified as a priority to be addressed by Bill Shorten while he was campaigning for the Labor leadership in September and October 2013. While his possible solution was controversial (he suggested that quotas be considered, in a similar way to affirmative action rules for women), he was right to highlight the lack of diversity in caucus as a long-term problem to be overcome (noting of course that it also took until 2013 for Labor to elect an Aboriginal MP in either House).

Well, history shows he won that ballot, and it is now almost 12 months later, with pre-selections commencing – so it’s time for Opposition Leader Shorten to follow through on his interest in this issue and put forward his ideas on how the ALP can overcome any structural barriers that it has that has meant no openly LGBTI candidate has ever been pre-selected for a winnable seat.

If he does not, if the pre-selection process continues as normal with LGBTI candidates continuing to be excluded, and Mr Shorten does not put forward any concrete proposals for increasing LGBTI representation inside the ALP, then I think we should be actively considering quotas, or other potential ideas to increase LGBTI representation in the Commonwealth Parliament, as amendments to the Party’s Rules at next year’s conference.

So, there you have it, my list of 15 LGBTI policy priorities for next year’s ALP National Conference. As you can see, it’s not comprehensive by any stretch of the imagination. In particular, I have not included nationally-consistent, best practice birth certificate reforms (affecting both trans* and intersex individuals, in different ways), in part because, being honest, I do not fully understand the issues involved, and in part because some activists may prefer to pursue this at state level (which currently has constitutional power), rather than federally. But I very much welcome feedback on what possible platform amendments in that area would look like (hint: feel free to leave a comment below).

Of course, this list will nevertheless still be criticised by some within the ALP – either because they see it as somehow too radical, or because they would prefer to adopt a ‘small target’ strategy ahead of the next election. And of course it would attract negative comments from those opposed to any form of LGBTI equality.

But I make no apologies for the fact that we should be pursuing what these critics might attack as a ‘gay agenda’ – because there is nothing wrong with pursuing an agenda of inclusivity and equality. None of the reforms above are unnecessary, or unjustified. Each would improve the lives of LGBTI people.

And all of them should be adopted by a Party that, even if only occasionally, still likes to use the word progressive to describe itself. It’s up to us to make sure that as many of these policies are adopted as possible at next year’s National Conference. It’s time to make sure the ALP stands up for substantive LGBTI equality.

10 Things I Hate About Marriage Inequality. #7: Because Sometimes it Overshadows Other Important LGBTI Issues

In a similar way to reason #9 (“Because sometimes I feel guilty for having #firstworldproblems”), one of the things that frustrates me about marriage equality is that this issue has come to dominate domestic LGBTI politics to such an extent that it can, and has, overshadowed other important issues.

Now, that is not necessarily a criticism of marriage equality campaigners, including Australian Marriage Equality. They have done a fantastic job of promoting marriage equality and ensuring that, over the past 12 years, it has gone from what could be described as a ‘minority concern’, to one of widespread acceptance across the Australian population (even if our parliamentarians are taking far too long to catch up).

It is also not to dismiss the fact marriage equality is an important issue in and of itself – obviously, as someone who is engaged themself, I understand the emotional pull at the heart of this issue which compels so many people to take action (and any regular reader of this blog would note the high volume of posts which relate to the denial of this right, not just in Australia but around the world).

But, and this is a big but, I am not sure that this completely justifies the disproportionate attention, and in some cases, disproportionate energy, which has been given to the issue of marriage equality by our community, especially over the past four or five years.

That statement might be a little bit controversial, so allow me to provide some context before you make up your mind. Let’s compare, for example, the community response (both our own, and the broader Australian community) to marriage equality with that regarding three other important LGBTI issues.

In April 2012, the House of Representatives Standing Committee on Social Policy and Legal Affairs inquiry into two marriage equality bills conducted an online survey – to which 276,437 Australians responded (including more than 177,000 people in favour).

In subsequent months, the related Senate Standing Committee on Legal and Constitutional Affairs Inquiry received a record number of formal submissions – approximately 79,000, with roughly 46,400 people taking the time to write in support of a Marriage Act that does not discriminate on the basis of sexual orientation, gender identity and intersex status.

Around the same time, the Gillard Government was preparing legislation which would, for the first time ever, provide anti-discrimination protections under Commonwealth law on those exact same grounds.

These protections were contained, along with a range of other measures, in the Human Rights and Anti-Discrimination (HRAD) Bill 2012. The Exposure Draft of that legislation was considered by the same Senate Committee, and a still ‘healthy’ 3000 submissions were made (although, it has to be pointed out, many did not address the specific issue of LGBTI anti-discrimination but were in fact about other aspects of the Bill).

The HRAD Bill was eventually replaced by the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013, which, as the name suggests, focused exclusively on LGBTI protections. When it too was considered by the Senate Standing Committee on Legal and Constitutional Affairs, in June 2013, just 90 standalone submissions were made. Nine. Zero. Or about 0.11% of the total submissions on marriage equality, to the same Committee, just 12 months prior.

To choose another example – during 2012 and 2013 the Australian Curriculum, Assessment and Reporting Authority (ACARA) drafted the national Health & Physical Education curriculum, something which had the potential (or should have anyway) to help young lesbian, gay, bisexual, transgender and intersex students in classrooms around the country.

Except, as I have written previously, the first draft of that curriculum did not even mention the words lesbian, gay or bisexual, erroneously included trans* and intersex in the same definition (and even then only referred to them in the glossary!) and essentially ignored sexual health and HIV.

That draft was open for public consultation from December 2012 to April 2013. In four months, 279 online surveys were completed, as well as 99 formal written submissions. Removing submissions from organisations (mostly from non-LGBTI health and education groups), there were exactly 14 submissions from individuals to that public consultation. One. Four.

In 2014, the HPE curriculum, together with all other subject areas, were referred by the then Commonwealth Education Minister, the Hon Christopher Pyne MP, to homophobe Kevin Donnelly for yet another review. The grand total number of written submissions to that inquiry – of which only a small number would have focused on LGBTI exclusion from Health & Physical Education – was approximately 1,500.

One final example. Again, at the same time as the marriage equality parliamentary debates and the Sex Discrimination Act inquiry were going on, the Senate Standing Committee on Community Affairs was holding its own inquiry on the involuntary or coerced sterilisation of people with disabilities in Australia. One of the key issues examined by that inquiry – perhaps not to begin with, but certainly by the end, primarily as a result of the hard work of groups like OII Australia – was the involuntary or coerced sterilisation of intersex people.

Now, the intersex community might be small in number, even within our own community (see Notes) – but there is no denying this issue looms large in terms of all of the human rights abuses perpetrated against any member of the LGBTI community in Australia, at any point in our history. So, it was perhaps disappointing that the entire Senate inquiry – and not simply for the Report focusing on intersex issues – received just 91 standalone submissions.

But, as we have seen above, that is simply one part of a frustrating overall trend. The entire number of submissions to two LGBTI anti-discrimination inquiries, two reviews of the HPE curriculum, and an inquiry examining the coerced sterilisation of intersex people, is less than the number of submissions to one state-based same-sex marriage inquiry (NSW, in March 2013, received 7,586 submissions), let alone the 79,000 submissions to the 2012 Senate marriage inquiry.

Of course, simply counting submissions in this way doesn’t necessarily reflect other work undertaken, by a range of groups, with respect to anti-discrimination protections, the curriculum or intersex rights – much of which happens behind the scenes.

As indicated above, the high volume of submissions to marriage equality inquiries is also a testament to the hard work of groups like Australian Marriage Equality (and others, including GetUp!), in terms of mobilising the community.

There are also other advantages enjoyed by the issue of marriage equality (it is part of a clear, single-issue global movement, in recent years at least has emerged as part of the cultural zeitgeist, it is a much simpler yes/no policy question), not enjoyed by some of the other issues identified.

And it is much easier to report on – the images of brides and grooms either being denied legal equality, or enjoying newly-won rights, makes marriage equality a very ‘photogenic’ issue. The fact our opponents have given consistently outrageous comments also makes reporting on ‘conflict’ in this area much more straightforward for journalists.

It is even arguable that the disproportionate focus on marriage equality may actually be necessary in order to achieve such a significant and, until recently, almost unimaginable, social change.

And yet, when I reflect on the level of commitment which goes into marriage equality, compared to other important LGBTI issues, I find myself sometimes lamenting that we do not put the same level of energy, and dedicate the same level of time and resources, into the latter.

So, by all means I encourage you to support – or continue to support – the important work that Australian Marriage Equality does (to find out how to get involved, go here).

But, at the same time, it would be great if more people would also support some of the other organisations that, in addition to working on marriage equality, also advocate on a range of other LGBTI issues, which are no less important to the long-term health and well-being of our community. They include:

The NSW Gay & Lesbian Rights Lobby

The Victorian Gay & Lesbian Rights Lobby (<http://www.vglrl.org.au )

Transgender Victoria (<http://www.transgendervictoria.com ) and

OII Australia – Intersex Australia (<http://oii.org.au )

Those are four groups that I am or have been involved in, or have worked with – but there are a range of other LGBTI advocacy groups in states and territories around the country worthy of your support. Because, while marriage equality might be an important thing, it is not and never has been the only thing.

The national Health & Physical Education curriculum will have an impact on young LGBTI people for years, if not decades.

The national Health & Physical Education curriculum will have an impact on young LGBTI people for years, if not decades.

Notes

  • The reference to the comparative size of the intersex population is absolutely not meant to suggest that the issues it confronts does not count (as a member of another, albeit slightly larger, minority group, that is obviously not a rational position to hold), but it has been included here because it could partly explain why less people would have made a submission to this inquiry. Nevertheless, the scale of injustice involved in the sterilisation (and other unnecessary medical interventions) of intersex people without consent, in Australia, TODAY, means it is something we all should be concerned about.
  • It should also be noted that, when people were presented with a simple way of expressing their concern about the national Health & Physical Education curriculum – via a Change.org petition – at least 6000 people added their signature in less than a month. Obviously, people do care about other issues, including those listed above, so different groups also need to learn better how to engage on these issues, and translate that innate or latent support into concrete actions.

Submission to Australian Human Rights Commission’s Inquiry into Self-Harm and Suicidal Behaviour in Children

The National Children’s Commissioner at the Australian Human Rights Commission has initiated an inquiry into intentional self-harm and suicidal behaviour in children and young people.

Submissions are due on Monday 2 June: you can find more details here: <https://www.humanrights.gov.au/intentional-self-harm-and-suicidal-behaviour-children and send your submissions to nccsubmissions@humanrights.gov.au

As you would expect, my submission has focused on the particular issue of youth suicide amongst young lesbian, gay, bisexual, transgender and intersex people. As with other submissions, I would be interested in feedback about what I have written.

Thanks, Alastair

Ms Megan Mitchell

National Children’s Commissioner

Australian Human Rights Commission

Email: nccsubmissions@humanrights.gov.au

Sunday 1 June 2014

Dear Commissioner

SUBMISSION TO INQUIRY INTO INTENTIONAL SELF-HARM AND SUICIDAL BEHAVIOUR IN CHILDREN

Thank you for the opportunity to provide a submission to your inquiry into intentional self-harm and suicidal behaviour in children.

This is an incredibly important topic, and I congratulate you, as National Children’s Commissioner, for utilising your position to shine a spotlight on this national tragedy.

I write this submission as an individual, and not on behalf of any organisation. I also write this as a gay man, and someone who, as a teenager, experienced significant mental health issues, including depression and suicide ideation, because of the severe homophobia that I experienced, particularly in high school.

Given this perspective, in this submission I will focus on the over-representation of young lesbian, gay, bisexual, transgender and intersex (LGBTI) people in intentional self-harm and suicide.

I will also make five recommendations for how to help reduce this over-representation, although obviously this is not an exhaustive list of all the possible ways in which LGBTI youth suicide may be tackled.

Please find my submission attached. I am of course willing to be contacted to discuss anything contained in this submission, at the details below.

Sincerely

Alastair Lawrie

SUBMISSION TO INQUIRY INTO INTENTIONAL SELF-HARM AND SUICIDAL BEHAVIOUR IN CHILDREN

I welcome the acknowledgement, in the Call for Submissions released on 22 April, that self-harm and suicide is a particular issue for LGBTI children and young people.

In particular, the Call for Submissions cites the 2013 Growing Up Queer report, by the Young and Well Co-operative Research Centre, in finding that, of 1,032 children and young people aged 16 to 23, 41% of participants had thought about self-harm and/or suicide, 33% had harmed themselves and 16% had attempted suicide.

These are truly shocking figures – especially that 1 in 6 young lesbian, gay, bisexual, transgender and intersex Australians had attempted suicide. However, despite being shocking, they are not particularly surprising, especially as they replicate similar findings in a range of studies over the past 15-20 years.

The over-representation of self-harm and suicidal thoughts amongst same-sex attracted and gender diverse/questioning young people has been confirmed in all three Writing Themselves In reports, produced by the Australian Research Centre in Sex, Health & Society at La Trobe University in 1998, 2004 and 2010, respectively.

The over-representation of mental health issues within the broader LGBTI community, including among its young people, has also been confirmed by both the original Private Lives: A report on the health and wellbeing of GLBTI Australians study in 2005, and Private Lives 2, released in 2012 (also produced by the Australian Research Centre in Sex, Health & Society).

As well as knowing that intentional self-harm and suicidal behaviour disproportionately affects LGBTI children and young people, we also know the cause – the pervasive homophobia, biphobia, transphobia and anti-intersex prejudice which LGBTI youth experience, within their families, amongst their peers, in the media/culture, and especially in their schools.

As reported in Growing Up Queer, “[f]or many, rejection, alienation, bullying, and harassment often led to depression, suicidal ideation, and attempted suicide. Some participants spoke openly about multiple suicide attempts as a result of negotiating their sexual/gender orientation at school, at home, and in their broader communities” (page ix).

The Writing Themselves In 3 study also found a direct link between verbal abuse and physical abuse with thoughts of self-harm. As noted on page 51: “ [a]lmost double the number of young people who had been verbally abused (40%), in comparison to those who had experienced no abuse, had thought of self-harm (22%). Three times those who had been physically abused (62%), in comparison to those who reported no abuse, had thought of self-harm.”

Writing Themselves In 3 also confirmed that “[t]he most common place of abuse remained school with 80% of those who were abused naming school. This continues the trend of increased levels of reported homophobic violence in schools (69% in 1998; 74% in 2004)” (pix, emphasis added).

By knowing the problem – the over-representation of LGBTI children and young people in intentional self-harm and suicidal behaviour – and the cause – the pervasive homophobia, biphobia, transphobia and anti-intersex prejudice which confronts young people, including (but not limited to) at school – we must start to consider the solution.

What are the best ways to protect LGBTI children and young people from discrimination, bullying and abuse on the basis of their sexual orientation, gender identity or intersex status? And what are the best ways to actively promote positive views of, and self-esteem and mental health within, LGBTI children and young people (noting that these are not necessarily the same question)?

The following are five reforms which I believe, if adopted, would help to reduce the continued over-representation of lesbian, gay, bisexual, transgender and intersex young people in self-harm and suicide:

Recommendation 1: Remove anti-discrimination exemptions/exceptions which allow religious schools to discriminate against LGBT students

As indicated above, one of the key areas where LGBTI children and young people are discriminated against is in their schools. Unfortunately, in most states and territories in Australia, religious schools enjoy legal protections which allow them to actively discriminate against LGBT students (and, it should be remembered, to discriminate against LGBT teachers and even parents too).

NB I have excluded intersex students for the remainder of this particular discussion given I understand the two jurisdictions which have explicit intersex anti-discrimination protections – Tasmania and the Commonwealth – do not allow religious exceptions to these protections.

These exemptions allow religious schools to expel LGBT students, to tell same-sex attracted and gender-diverse/questioning students that they are somehow ‘wrong’, ‘unnatural’ or even ‘sinful’, to prohibit certain behaviours or actions on the basis of sexual orientation or gender identity, and to ignore the educational and emotional needs to young LGBT people in general.

An example of this discrimination was found in the ‘Statement of Faith’ by the Penrith Christian School, which stated that: “[w]e believe that homosexuality and specific acts of homosexuality are an abomination unto God, a perversion of the natural order and not to be entered into by His people” and “[w]e believe the practice of attempting to or changing ones gender through surgical and/or hormonal or artificial means is contrary to the natural order ordained by God.”

These statements came to light, and attracted significant public scrutiny, only after the then Opposition Leader, the Hon Tony Abbott MP, launched the Coalition’s education policy there during last year’s election campaign. But, it must be pointed out that there is absolutely nothing unlawful for this school, or others like it, to adopt these principles, or to enforce policies based upon them to the detriment of the LGBT students in its classrooms.

This is because in NSW, section 56(d) the Anti-Discrimination Act 1977 states that anti-discrimination coverage for lesbian, gay and trans* people does not protect them against “any… 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.”

In an absolutely extraordinary extension of these exceptions, the NSW Act also explicitly excludes all “private educational authorities” (including non-religious bodies) from having to comply with any obligation not to discriminate on the basis of homosexuality (section 49ZO(3)) and transgender status (section 39K(3)).

Sadly, despite only being introduced last year, Commonwealth anti-discrimination protections on the basis of sexual orientation and gender identity are also fundamentally undermined by the granting of wide-ranging exemptions to religious organisations.

As well as an equivalent clause to NSW’s section 56(d) – section 38(1)(d) of the Sex Discrimination Act 1984 exempts “any… act or practice of a body established for religious purposes, being an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion” (although not in relation to aged care) – the Commonwealth Act also includes the following in section 38(3):

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

In practice, both Commonwealth and NSW law gives effective carte blanche to religious schools to discriminate against, and ignore the genuine needs of, LGBT children and young people. If we are genuinely interested in the mental health and welfare of young lesbian, gay, bisexual and transgender Australians, then these exceptions must be removed.

Those who would argue against such a proposition cite ‘freedom of religion’ as somehow trumping the right of LGBT people to live their lives free from discrimination. Indeed, the then shadow, and now Commonwealth, Attorney-General, Senator the Hon George Brandis, made exactly that argument on the ABC’s QandA program in June 2013.

As I have written on numerous occasions, I strongly disagree with that argument – I do not believe that religious exemptions should extend beyond the appointment of religious office-holders or the conduct of religious ceremonies. I certainly do not believe there should exist a broad right for religious organisations to discriminate against LGBT people in public life.

However, even if some form of religious exemption or exception were to continue in the public sphere, it is incredibly difficult for anyone to make the case that the ‘freedom’ of a religious school to discriminate should override the ability of a young lesbian, gay, bisexual or transgender student to receive their education free from such discrimination – something which is and should be recognised as a fundamental right.

These are vulnerable young people, who, in the vast majority of cases, are in the process of discovering or accepting their sexual orientation and/or gender identity. In nearly all cases, they do not decide which school they attend, including whether it is religious or not (a decision which is normally made for them by their parents, often without specific knowledge of their child’s sexual orientation or gender identity). In many cases, they are also not open about their sexual orientation or gender identity at school, meaning that they are not even in a position to advocate on their own behalf when they encounter such prejudice.

In short, I think it is simply untenable to argue that the freedom of a religious school to discriminate trumps the right of LGBT students not to be discriminated against, especially when the consequence of this discrimination includes an increased risk of mental health issues, including depression, self-harm and most tragically suicide. This not a contest of equal rights, no balancing act is required – the rights of the students should always win.

In the past week, there has been discussion in the United States about trying to ‘balance’ two other supposedly competing rights – the Second Amendment ‘right to bear arms’, with the right to personal safety of others. As part of that discussion, Samuel Wurzelbacher (aka Joe the Plumber) wrote to the parent of one of the young people murdered in the Santa Barbara mass shooting and said:

“I am sorry you lost your child. I myself have a son and daughter and the one thing I never want to go through, is what you are going through now. But: As harsh as this sounds – your dead kids don’t trump my Constitutional rights.”

 

Mr Wurzelbacher’s comments have, quite understandably, attracted heavy criticism in the US, as well as around the world. From an Australian perspective, where more restrictive gun control laws have existed since the Port Arthur massacre in 1996, it is tempting to adopt a certain smugness, and look down upon the level of public debate in the US that such a comment is even possible.

But, in some respects at least, we are prepared to strike a similar bargain here when it comes to the deaths of LGBTI children and young people. We know that they are significantly over-represented in suicide numbers, and we know that the discrimination that LGBTI students experience in school is a major contributing factor to these suicides.

Yet, as a society, we are willing to turn a blind eye to this, and say that religious freedom, and specifically the ‘freedom’ of religious schools to discriminate on the basis of sexual orientation and gender identity, is more important than the lost lives of these young people. In effect, our current anti-discrimination law says that ‘dead LGBT kids don’t trump the rights of religious schools.’

It is time we recognised, and remedied, this situation. It is time we removed anti-discrimination exemptions and exceptions which allow religious schools to discriminate against LGBT people.

Recommendation 2: Amend the National Health & Physical Education Curriculum to be genuinely LGBTI-inclusive

One of the key issues to emerge from both the Growing Up Queer, and Writing Themselves In 3 reports, is the absence, or comparative lack of, a genuinely LGBTI inclusive curriculum, especially with respect to Health & Physical Education.

For example, Growing Up Queer reported that “[p]articipants indicated that sex education at school was heteronormative and focused on reproductive sex only. It was perceived as irrelevant to their needs.” Further, “[p]articipants noted that whilst they received no education about queer sexualities their identities were often ‘sexualised’, with teachers and peers making assumptions about their sexuality and treating them differently on the basis of these assumptions” (pix).

Writing Themselves In 3 confirms this comparative lack of attention: “[s]exuality education was not provided at all to 10% of participants, and when it was, only 15% found it useful. It was clear that quite conservative messages emphasizing heterosexual sex and danger are the norm in most Australian schools with a far smaller number providing messages inclusive of SSAGQ youth” (pxi).

Of course, LGBTI people and content should be visible across multiple parts of the school curriculum (including, for example, history and politics), rather than arbitrarily confined to Health & Physical Education (HPE). Nevertheless, if LGBTI students and issues are excluded from, and made invisible in, the HPE curriculum, it is difficult to imagine them being included elsewhere.

I also agree with the statement in Growing Up Queer that “[y]oung people’s access to comprehensive sexuality education in primary and secondary schooling is a right, and is central to sexual citizenship and the fostering of health and wellbeing in all young people” (pix).

Over the past two years, a new National HPE curriculum has been developed by the Australian Curriculum, Assessment & Reporting Authority (ACARA). Unfortunately, all three versions of the HPE curriculum – the original consultation draft released in December 2012, the revised consultation draft in mid-2013, and the version that was noted but not yet endorsed by COAG Ministers in December 2013 – have comprehensively failed to deliver a genuinely LGBTI-inclusive document.

For example, in none of the three versions of the HPE curriculum have the words lesbian, gay or bisexual even appeared (although, on a slightly more positive note, the most recent version of the HPE curriculum does at least include the words transgender and intersex, and, unlike an earlier version, actually distinguishes between the two).

Despite lesbian, gay and bisexual being the most common forms of identification for people whose sexual orientation is ‘not heterosexual’, these terms have never appeared in any version of this document. This is an appalling exclusion, making young people with diverse sexual orientations even more invisible in the school environment than they already are.

The aspirational ‘student diversity’ statement at the beginning of the document, which attempts to highlight the needs of ‘same-sex attracted, gender diverse or intersex’ students, is also undermined by the inclusion of a sentence noting that it “is designed to allow schools flexibility to meet the learning needs of all young people, particularly in the health focus area of relationships and sexuality” (emphasis added) and another that “[a]ll schools communities have a responsibility when implementing the HPE curriculum to ensure that teaching is inclusive and relevant to the lived experiences of all students” (emphasis added).

Both of these statements appear to leave the decision whether, and in what way, schools will include LGBTI students and content up to the schools themselves. In the first instance, whether LGBTI students and content are included at all is too important to be left to the ‘flexibility’ of the school itself.

Second, and far more importantly, the reference to ‘lived experiences’ could be argued to leave a loophole for schools to assert that, unless students first identify themselves or disclose their status as LGBTI, they do not exist in the eyes of the school and therefore the school does not have a responsibility to include them or content relevant to their needs.

This approach – apparently leaving it up to students to ‘come out’ before they are entitled to receive vital health information, despite the fact that doing so can, in many Australian jurisdictions, lead to the potential expulsion of that student, let alone other personal consequences for the student with their family or friends – fundamentally undermines the concept of health, and health education, as a universal human right.

There are multiple other problems in the draft National Health Physical Education Curriculum – including a lack of comprehensive sexual health education, and the complete absence of any references to Sexually Transmissible Infections (STIs) and Blood Borne Viruses (BBVs) such as HIV or viral hepatitis.

For more detail on the problems of the national HPE curriculum, and its exclusion of LGBTI students and relevant content, please see my submission to the ‘Students First’ review of the National Curriculum, provided at Attachment A (link here: <https://alastairlawrie.net/2014/03/13/submission-to-national-curriculum-review-re-national-health-physical-education-curriculum/ ).

This review, initiated at the request of the Commonwealth Education Minister, the Hon Christopher Pyne MP, is not due to report to him until 31 July, 2013. It will then be considered by Commonwealth and State and Territory Education Ministers at their next COAG meeting, scheduled for 12 December 2014.

That means there is still time to argue for a genuinely LGBTI-inclusive Health & Physical Education curriculum. There remains an opportunity for individuals and organisations, including the Australian Human Rights Commission, to call for a document that does not simply entrench the existing exclusion and invisibility of LGBTI students in classrooms around the country, but actively tries to provide for the needs of all students, including those with diverse sexual orientations, gender identities and those who are intersex.

I urge you, as National Children’s Commissioner, to intervene in this process, and call on the people undertaking the Students First Review, as well as Commonwealth, State and Territory Education Ministers, to amend the national Health & Physical Education curriculum to serve the needs of all students.

Such amendments are vital to help include lesbian, gay, bisexual, transgender and intersex students, and content relevant to their needs. Doing this would help reduce the isolation experienced by LGBTI children and young people, and therefore contribute to lower mental health issues overall, including reduced intentional self-harm and suicidal behaviour.

Recommendation 3: Ensure all schools & school systems adopt pro-active programs against homophobia, biphobia, transphobia and anti-intersex prejudice

Combatting the homophobia, biphobia, transphobia and anti-intersex prejudice which LGBTI children and young people experience in schools, and which causes mental health issues such as self-harm and suicide, is not just about anti-discrimination laws (which in some cases can be reactive, rather than pro-active), or implementing an inclusive curriculum, but it also includes ensuring the entire school environment is ‘safe’ for these students, because often what happens outside the classroom is more important than what happens inside.

This can be achieved through the implementation of comprehensive programs tackling homophobia, biphobia, transphobia and anti-intersex prejudice in as many schools as possible, in as many states and territories as possible, and in as many different types of schools (government, private and religious) as possible.

An example of such a program is the Safe Schools Coalition of Victoria, an initiative that has already achieved 131 member schools, trained 4,555 staff, and reached 20,557 students (data from www.safeschoolscoalitionvictoria.org.au)

From the Safe Schools Coalition Victoria (SSCV) website:

“Safe Schools Coalition Victoria (SSCV) is a coalition of schools and individuals dedicated to creating safer educational environments where every family can belong, every teacher can teach, and every student can learn.

 

“Working in partnership with the Victorian Department of Education and the Department of Health, Safe Schools Coalition Victoria (SSCV), is a ground breaking program that aims to make all schools safe and supportive places for same sex attracted, intersex and gender diverse (SSAIGD) students, teachers and families.

 

“The first initiative of its kind in Australia, SSCV was founded as part of Gay and Lesbian Health Victoria within the Australian Research Centre in Sex, Health & Society at La Trobe University in 2010. We work together with an active network of member schools across all age groups in the government, independent and faith-based sectors.

 

“This coalition model allows us to reach thousands of teachers and school staff to raise awareness and build the skills and confidence needed to actively support gender and sexual diversity in the classrooms, corridors and schoolyards of Victoria…”

 

The SSCV model supports member schools in a variety of ways including staff and student audits, professional learning, resources and consultations.

Unfortunately, a small-scale pilot project, targeting homophobia in NSW government schools from 2011 to 2013 – called ‘Proud Schools’ – was abandoned, seemingly without explanation, at the beginning of 2014 by the State Education Minister, the Hon Adrian Piccoli MP. At this stage, I am not aware of any specific initiative which has replaced it, leaving a significant gap this year where an anti-homophobia program should be.

However, I am aware that the Foundation for Young Australians will be launching a national version of the Victorian model – the Safe Schools Coalition Australia – at a national symposium in Melbourne on Friday 13 June 2014 (details here: https://www.etouches.com/ehome/87262).

It is unclear which State and Territory Governments are supportive of this new national initiative, which is being funded by the Commonwealth Department of Education (announced by the previous Government ahead of last year’s election). It is my sincere hope that all State and Territory Governments support the rollout of the Safe Schools Coalition Australia, and that as many schools as possible join.

This includes government, private and religious schools, as well as geographically diverse (metro, regional and rural/remote) schools, because it should not matter what school an LGBTI child or young person attends, or where they live, they have a fundamental right to an inclusive and supportive education.

I would also expect the Australian Human Rights Commission, and you as National Children’s Commissioner, to be supportive of different schools and school systems adopting pro-active programs against homophobia, biphobia, transphobia and anti-intersex prejudice, as another way to improve the mental health of young LGBTI people around Australia, and thereby help to reduce the over-representation of LGBTI youth in self-harm and suicide statistics.

Recommendation 4: Ban ex-gay or reparative therapy

The practice of ‘ex-gay’ or ‘reparative’ therapy involves organisations, usually religious, offering so-called ‘counselling’ to help transform people who are lesbian, gay or bisexual into being heterosexual, and in some cases to attempt to transform people who are trans* into being cisgender. NB I am unaware of the use of reparative therapy with respect to intersex people, and so have omitted intersex from this discussion.

Ex-gay or reparative therapy attempts to change a person’s sexual orientation or gender identity because of the belief that being lesbian, gay, bisexual or trans* is somehow ‘wrong’, ‘unnatural’ or ‘sinful’. There are three main problems with ex-gay or reparative therapy.

First, there is absolutely nothing wrong, unnatural or sinful with being lesbian, gay, bisexual or trans*. Differences in sexual orientations and gender identities are entirely natural, and this diversity should be accepted and celebrated. Any attempts to prevent people from being LGBT simply demonstrate the homophobia, biphobia and transphobia of the people running ex-gay organisations.

Second, there is absolutely no scientific evidence to support these practices. Sexual orientation and gender identity cannot be ‘changed’ through these interventions. Indeed, the Australian Psychological Society, Royal Australian and New Zealand College of Psychiatrists and Pan American Health Organisation all note that reparative therapy does not work, and recommend against its practice.

Third, and most importantly, not only is ex-gay therapy based on homophobia, biphobia and transphobia, as well as discredited ‘pseudo-science’, but it is also fundamentally dangerous. Reparative therapy takes people who are already vulnerable, tells them that they are inherently wrong, and asks them to change something about themselves that cannot be changed. Inevitably, it leads to significant mental health problems, including self-hatred, depression and tragically, in some cases, suicide.

The people that run ex-gay organisations are guilty of inflicting psychological and sometimes physical damage on others. When it involves children and young people, it is nothing short of child abuse.

Fortunately, the practice of ex-gay or reparative therapy is far less common in Australia than it is in the United States. In recent years, the number of organisations which provide this ‘counselling’ here has also declined. Nevertheless, ex-gay or reparative therapy still exists in Australia, it still damages and breaks people, and it still requires an appropriate policy response.

Given the level of harm that is perpetrated by these people, I believe Australian jurisdictions should introduce legislative bans on ex-gay or reparative therapy. This should include the creation of a criminal offence for running ex-gay therapy, with an aggravated offence for running ex-gay therapy for people under the age of 18. This is necessary to send a signal that these homophobic, biphobic and transphobic practices are no longer tolerated in contemporary society, and especially in the case of minors.

Finally, while at this stage I am not aware of evidence linking registered medical practitioners with these discredited practices, there is evidence overseas that some counsellors, psychologists, psychiatrists or other registered medical practitioners either practice ex-gay therapy themselves, or will refer patients to ex-gay organisations. Any medical practitioners found to be engaging in these practices in Australia should also receive additional sanctions, including potential deregistration and civil penalties.

 

 

Recommendation 5: Fund a national media and social media campaign against homophobia, biphobia, transphobia and anti-intersex prejudice

 

The first three of the recommendations above specifically target schools, not only because research has shown that schools are a major source of the discrimination and prejudice which LGBTI children and young people experience, but also because schools provide an opportunity to exert significant influence in terms of improving social attitudes and directly reducing homophobia, biphobia, transphobia and anti-intersex prejudice.

However, it should be remembered that a) not all discrimination and prejudice originates in schools and b) it is also unfair to expect that schools themselves, acting alone and somehow magically separated from the rest of society, can overcome these serious ills on their own.

It is also important to note that, while 80% of young people in Writing Themselves In 3 identified school as a site for physical or verbal abuse, significant numbers of young LGBTI people also nominated other places in their lives where they are subjected to discrimination and prejudice.

For example, more than 40% cited a social occasion as a place of abuse in 2010 (and like schools, this was an increase from the 1998 and 2004 surveys), and almost 40% indicated they had been abused on the street (although this was down on previous surveys). Meanwhile, approximately a quarter indicated they had been verbally or physically abused at home on the basis of their sexual orientation or gender identity.

It is also not hard to find numerous examples, in the media and culture more generally, of the everyday homophobia, biphobia, transphobia and anti-intersex prejudice, which all LGBTI people are subjected to, but which have a particular impact on LGBTI children and young people.

For example, just in the last month, we have witnessed an NRL player describe another player as a “f—ing gay c—t”, which was subsequently defended by a prominent national columnist, in an article titled “NRL bosses are totally gay”, as somehow not being homophobic. We have had a TV host rant about NFL footballer Michael Sam simply kissing his male partner live on air (describing it as “annoyingly gratuitous”), a Senator-elect tweet that being gay as a ‘lifestyle’ and link it with promiscuity, as well as a State MP indicate his belief that same-sex parenting would hurt that couple’s children.

That is just a small sample of the ‘slings and arrows’ of homophobia, biphobia, transphobia and anti-intersex prejudice which LGBTI Australians are exposed to all too frequently. For many of us, while such comments are offensive, and sometimes hurt, they do not necessarily lead us to self-harm, or cause significant emotional and mental anguish.

Nevertheless, for those who are already vulnerable, including some adults, but especially for young people who may still be coming to terms with being LGBTI, hearing such messages can directly cause harm, and contribute to or worsen existing mental health concerns. This harm is exacerbated if these negative statements are all that the young person hears with respect to being lesbian, gay, bisexual, transgender or intersex, and are not balanced or countered with equivalent positive messages.

Which is why I believe there would be utility in the Commonwealth Government directly funding a large national media, including social media, campaign against homophobia, biphobia, transphobia and anti-intersex prejudice. But rather than simply tackling the ‘negative’, I think such a campaign should also express a positive message about diversity of sexual orientations, gender identities and intersex status – sending the message that being LGBTI is natural, and that heterosexual, cisgender and LGBTI young people all deserve equality, and equal dignity in all aspects of life.

While there have been some great initiatives at state government level in this regard, as well as some excellent work by relevant not-for-profits/NGOs and even individuals (with campaigns like Victoria’s No to Homophobia, and the Beyond ‘That’s So Gay’ work of Daniel Witthaus), the involvement of the Commonwealth could bring benefit, both in terms of scale of resources, and by reaching LGBTI children and young people across Australia.

Of course, any such campaign would need to be co-ordinated with LGBTI organisations, as well as organisations that work in the mental health sector. But most important would be the involvement of young LGBTI people themselves.

The media and social media campaign would need to be designed so as to be relevant to young people, not just those that are LGBTI, but also to their non-LGBTI peers, in order to increase their own understanding and lessen any bullying or harassment of their friends and classmates. Young LGBTI people (and certainly people much younger than myself) would be best placed to advise on how to make such a campaign work.

I would also point out that I have made this particular recommendation in response to term of reference number eight in the Call for Submissions (namely “[t]he feasibility and effectiveness of conducting public education campaigns aimed at reducing the number of children who engage in intentional self-harm and suicidal behaviour”).

I acknowledge there are particular sensitivities in designing campaigns which specifically target those already at risk of self-harm and suicide, with the possibility that the campaign itself triggers particular negative responses. I am not an expert in this area and so am not in position to suggest whether, and if so how, an appropriate campaign could be designed that focused directly on LGBTI children and young people and that explicitly discussed self-harm or suicide – I am sure other individuals and organisations who are experts in this area will be doing so much more effectively in their own submissions.

But I do believe that an overarching campaign, which addresses the root cause of much of those problems – the homophobia, biphobia, transphobia and anti-intersex prejudice which young LGBTI people experience everyday – would provide its own additional benefits in terms of long-term mental health improvement.

Those are the five key recommendations that I would like the Australian Human Rights Commission, and you as the National Children’s Commissioner, to focus on in terms of examining how to reduce the disproportionate effects of self-harm and suicide on LGBTI children and young people.

Obviously, that is not an exhaustive list. There are other areas which are worthy of examination, including considering whether LGBTI people should be protected against vilification in the same way that Commonwealth law currently protects against racial vilification (through section 18C of the Racial Discrimination Act 1975).

I believe there would also be benefit in considering how best to fund, on a secure and ongoing basis, LGBTI community organisations to deliver services to young LGBTI people at risk, as well as how to ensure that mainstream mental health and general health services are inclusive of, and respond to the needs of, LGBTI children and young people. But once again, I would expect that other individuals and organisations will be much better placed to make submissions with respect to those topics.

In conclusion, I would like to express my thanks to the Australian Human Rights Commission, and to you as National Children’s Commissioner, for choosing to initiate an inquiry into intentional self-harm and suicidal behaviour in children and young people.

The rate of youth self-harm and suicide amongst all of Australia’s youth, including but not limited to young lesbian, gay, bisexual, transgender and intersex youth, is truly a national tragedy.

I appreciate the opportunity to make a submission to this inquiry, and look forward to seeing the Final Report in the Commissioner’s 2014 Statutory Report to Commonwealth Parliament.

Alastair Lawrie

Sunday 1 June 2014

NB Given the issues raised in this submission, I include below the same contact details for help included on the Commission’s call for submissions:

National Help and Counselling Services
Lifeline – 24 hour crisis support and suicide prevention

Kids Helpline – counselling service for children and young people aged 5 to 25 years

Headspace – counselling and referral service for young people aged 12 to 25 years

ReachOut.com – online youth mental health service

Letter to Prime Minister Abbott re Intercountry Adoption by Same-Sex Couples Part 2

In early March I wrote to Prime Minister Abbott about the review, then being undertaken by his department, of Australia’s inter-country adoption arrangements. Specifically, I asked that same-sex couples be included in any potential reforms to be considered at the Council of Australian Governments (COAG) meeting scheduled for Friday 2 May (see original letter here: <https://alastairlawrie.net/2014/03/08/letter-to-prime-minister-abbott-re-inter-country-adoption-by-same-sex-couples/ )

I did not receive a response to my letter until after the COAG meeting (on Monday 5 May), although it was dated 1 May. The reply stated:

 

Dear Mr Lawrie

 

Thank you for your letter of 8 March 2014 to the Prime Minister regarding overseas adoption. I have been asked to reply on the Prime Minister’s behalf. I apologise for the delay in replying.

 

This is an issue that could benefit from attention at the highest levels of government. That’s what it will be getting between now and the next meeting of the Council of Australian Governments.

 

As you note, at present there is no consistency across Australia on whether same-sex couples can adopt a child. The requirements of foreign countries are also relevant, with most of Australia’s current partner countries not allowing adoption by same-sex couples.

 

The Commonwealth Government is committed to working with our state and territory colleagues and stakeholders in this area, including the non-government sector, to deliver reform.

 

Thank you for letting the Government know your views on this issue.

 

Yours sincerely

 

Name Withheld

Assistant Secretary

Which, it has said to be said, was a pretty underwhelming response, especially given the paucity of firm details or commitments. I also cracked a wry smile at the statement that the issue would be getting attention between now (ie the time of writing) and the next COAG meeting – which was held the following day.

In any event, the issue of inter-country adoption was discussed at COAG on Friday 2 May. The Prime Minister, and State Premiers and Territory Chief Ministers, agreed to the following in the official Communique:

Intercountry adoption of children

 

Adopting a child from overseas is an emotional and complex undertaking. Different requirements across Australia can create even more difficulty for families wanting to adopt a child from overseas.

 

COAG supports adoption conducted in the best interests of the child and consistent with the safeguards of the Hague Conventions.

 

COAG agreed in principle to the Commonwealth’s proposal to provide a new national intercountry adoption service for all Australians wanting to adopt a child from overseas.

 

Under the new service, the Commonwealth will fund either a new accredited non-government organisation or organisations, or a Commonwealth agency, to provide services for intercountry adoption by early 2015.

 

The Commonwealth and the States and Territories will work closely together to make sure there is a smooth transition to the new system.

So, some more detail (albeit only a little bit), but also some unanswered questions (including whether same-sex couples are to be included), as well as some new questions (if a non-government organisation contracted to provide inter-country adoption services was religious, could they refuse to provide those services to same-sex couples – but more on that particular issue later).

On the following Monday, 5 May, Prime Minister Abbott issued a Media Release, which revealed a little bit more:

REFORM AND ACTION ON INTERCOUNTRY ADOPTION

 

The Commonwealth Government is committed to adoption reform to enable more people to find families.

 

A new report has identified significant barriers facing Australian families wanting to adopt from overseas.  Inconsistent rules, costs and the lengthy wait to adopt currently deter many people from even starting the adoption process.

 

Last Friday, COAG agreed to a national system for intercountry adoption. The Commonwealth will work vigorously with the States and Territories to have a new system operating by early 2015.

 

The report into intercountry adoption also recommended establishing new country programmes to help more Australian families to adopt.  A new intercountry adoption programme between Australia and South Africa is now in place.

 

South Africa has a strong commitment to finding families within its borders to care for children in need. Where, for whatever reason, a South African family cannot be found, Australian families will be able to help provide permanent loving homes to South African children.  Many of these children will have health needs, and would benefit from the caring environment that Australian families can provide.

 

The Government will introduce amendments to the Australian Citizenship Act so that obtaining Australian citizenship can happen in a child’s country of origin. As well, we will fix the problems associated with the visa system. It is too complicated at the moment and processing times are too long.

 

For too long children who legitimately need a safe and loving home and Australians who dream of providing this home have been hindered by red tape and confusion. The Government is pleased to be able to undertake real action to bring families together.

The accompanying Report of the Interdepartmental Committee on Intercountry Adoption provided some additional information (see link to report here: <http://www.dpmc.gov.au/publications/docs/idc_report_intercountry_adoption.pdf ), although undoubtedly would have provided more had pages 41 onwards, which contained Options for Reform and Recommendations to Government, not been deliberately withheld from the public.

The table on page 30 of the section of the Report that was released at least acknowledged that in four Australian jurisdictions – NSW, Western Australia, Tasmania and the ACT – adoption by same-sex couples is already legal.

On page 32, Table 11: Country of Origin Requirements then spelled out all the different countries where agreements exist, but which deem same-sex couples to be ineligible. Sadly, none of the countries listed currently permit inter-country adoption that does not discriminate on the basis of sexual orientation.

The discussion on page 31 helpfully (or should I say rather unhelpfully), noted that “[r]estrictions on same-sex couples adopting was raised by several submissions as a problem… [But] It seems that changes to these criteria would probably have limited impact on intercountry adoption given the country of origins’ criteria.”

Which is absolutely correct. But still does not answer the question of what would happen if Australia were to sign an inter-country agreement which did allow same-sex adoption (or even, as I suggested in my original letter, if Australia were to actively seek to include non-discrimination as a key clause in all of our inter-country agreements)?

And the media release, and accompanying IDC report, didn’t even address the most obvious question of all – given South Africa already allows same-sex couple adoption, and Prime Minister Abbott announced a new inter-country adoption program with South Africa, would Australian same-sex couples be able to adopt under that program?

The mainstream media didn’t appear to follow up on this question – although fortunately, Benjamin Riley of the Star Observer newspaper stepped into the breach to report the following:

SAME-SEX COUPLES INCLUDED IN OVERSEAS ADOPTION AGREEMENT FOR THE FIRST TIME

 

BEJAMIN RILEY – May 5, 2014

 

SAME-sex couples are included in Australia’s new agreement with South Africa on overseas adoption announced today by Prime Minister Tony Abbott, after being excluded from every previous intercountry adoption agreement between Australia and another country.

A spokesperson for the Department of Prime Minister and Cabinet told the Star Observer the agreement with South Africa is the first such arrangement with a country that allows same-sex couples to adopt children.

 

Although there is currently inconsistency across Australian states and territories around same-sex adoption, same-sex couples can legally adopt in NSW, ACT, Tasmania and Western Australia. However, until now this has been irrelevant due to the explicit exclusion of same-sex couples from Australia’s intercountry adoption agreements.

 

The Prime Minister announced the agreement with South Africa today along with a range of reforms to streamline the overseas adoption process, allowing children to obtain Australian citizenship in their country of origin, and simplify visa processes. These reforms have come out of a new report by the Interdepartmental Committee on Intercountry Adoption.

 

The Prime Minister’s office confirmed the eligibility of same-sex couples to adopt under the new agreement with South Africa, and told the Star Observer these reforms will consider inconsistencies between the states and territories on same-sex couples adopting.

 

“Current eligibility requirements vary across Australia via states and territory requirements. We will most be certainly considering this issue — together with other eligibility criteria — as we finalise the new national approach to intercountry adoption,” press secretary Sally Branson said.

 

“This just isn’t an issue for the home country of the adoptive parents — the requirements of overseas countries are also relevant. The South Africa agreement will allow for same sex couples to adopt.”

 

A Council of Australian Governments (COAG) meeting on Friday also flagged the development of a new national service for intercountry adoption by early-2105. The service would be either a funded non-government organisation or a Commonwealth agency.

 

The announcement prompted calls by the NSW Gay and Lesbian Rights lobby to ensure a new national framework would operate with equality for LGBTI people looking to adopt, and said the same should be true for any organisations assisting in the adoption process.

 

The Prime Minister’s office told the Star Observer there is no detail yet around how the national service would operate, but said the Federal Government would “ensure non-discriminatory service is provided to all stakeholders, and work with all stakeholders in a the same manner”.

 

Rodney Chiang-Cruise from Gay Dads Australia said the streamlined citizenship and visa processes wouldn’t change a great deal for Australian same-sex couples looking to adopt from overseas, but was glad the issue was being discussed.

 

“The Federal Government has not done anything on overseas adoption for decades… It sounds like a positive move, and hopefully it’s an indication of further moves in regards to what is a complex and difficult area,” Chiang-Cruise told the Star Observer [emphasis added, abridged]. Link to original article here: <http://www.starobserver.com.au/news/local-news/same-sex-couples-included-in-overseas-adoption-agreement-for-the-first-time/122370

As the article reports, this is a potentially significant breakthrough in terms of LGBTI equality – provided this agreement is implemented in line with state and territory requirements, for the first time ever, same-sex couples in NSW, WA, Tasmania and ACT will be treated equally in terms of overseas adoption.

However, the notes of caution expressed by Mr Chiang-Cruise also seem to be appropriate. After all, that still leaves LGBTI-inclusive couples in four Australian jurisdictions (Victoria, Queensland, South Australia and the Northern Territory) out in the cold.

And, as described earlier, there is genuine concern that, should a religious organisation be awarded the contract to deliver inter-country adoption services, they might discriminate against same-sex couples and then use the (incredibly broad) religious exemptions offered under the Sex Discrimination Act 1984 to essentially ‘get away with’ such discrimination.

Which means, while some questions have been resolved – and the South African agreement is indeed a big step forward for same-sex couple adoption in Australia – there are still plenty of issues to be worked through in coming months. It also means there was certainly plenty of material to write a follow-up letter to Prime Minister Abbott on this subject. As always, I will post any reply that I receive.

The Hon Tony Abbott MP

Prime Minister

PO Box 6022

House of Representatives

Parliament House

CANBERRA ACT 2600

Thursday 29 May 2014

Dear Prime Minister

INTER-COUNTRY ADOPTION BY SAME-SEX COUPLES

Thank you for the reply, from your Department, to my letter of 8 March, concerning the issue of inter-country adoption by same-sex couples.

Unfortunately, some of the issues raised in my letter were not answered. Additional issues have also arisen from the Communique of the COAG meeting on Friday 2 May, and from your media release on Monday 5 May, which was accompanied by the release of some sections of the Report of the Interdepartmental Committee on Intercountry Adoption.

First of all, however, I wish to congratulate you on your commitment, as expressed by your office to the Star Observer newspaper on Monday 5 May, that same-sex couples will be eligible to adopt under the newly-finalised agreement with South Africa. This is a major step forward for the equal treatment of lesbian, gay, bisexual, transgender and intersex-inclusive families.

Nevertheless, as highlighted in my original letter, and confirmed in the Report of the Interdepartmental Committee, it is highly unlikely that, due to differing legislation, same-sex couples in Victoria, Queensland, South Australia and the Northern Territory will be able to take advantage of this new agreement.

This is obviously an unsatisfactory outcome – that arrangements entered into by the Commonwealth will only provide benefit to couples in Sydney, not Melbourne, Perth not Brisbane, and Hobart but not Adelaide.

I therefore reiterate my call that you should use the process of establishing new inter-country arrangements over the coming year to urge those states and territories that have not yet made adoption non-discriminatory on the basis of sexual orientation, gender identity or intersex status to finally do so.

Second, I wish to ask you about the proposal being considered that a non-government organisation may be funded to provide inter-country adoption services on behalf of the Commonwealth and states and territories. Specifically, if this organisation is itself, or is run by, a religious body, will you guarantee that they will not be able to deny these services to same-sex couples?

Again, it would be a deeply unsatisfactory outcome if, despite the successful inclusion of same-sex couples in formal arrangements between Australia and South Africa, these were undermined in practice because of the exemptions offered to religious organisations under the Sex Discrimination Act 1984.

Please ensure that whichever non-government organisation is funded to provide inter-country adoptions services on behalf of the Australian Government, and therefore the Australian people, they are legally bound not to discriminate on the basis of sexual orientation, gender identity or intersex status.

Third, and finally, I return to a point made in my initial correspondence and that is that I believe the Australian Government should be actively seeking to include non-discrimination clauses in all future inter-country adoption agreements. This stance should apply irrespective of whether the country is like South Africa, and itself already recognises same-sex adoption, or another country that does not.

I acknowledge that it may not be possible to secure the inclusion of such a clause in every single signed agreement – because it is dependent on the response of the other country – but I can see no reason why Australia should not be directly and firmly putting forward the principle that all couples are able to be loving and nurturing parents, irrespective of their sexual orientation, gender identity or intersex status.

Congratulations again on the inclusion of same-sex couples in the inter-country adoption agreement with South Africa.

I look forward to your response to the other matters raised in this correspondence.

Sincerely

Alastair Lawrie

Submission on NHMRC Review of Ethical Guidelines for Assisted Reproductive Technology

The Australian National Health and Medical Research Council is currently reviewing Part B of the Ethical Guidelines for the Use of Assisted Reproductive Technology in Clinical Practice and Research, 2007.

These Guidelines provide advice on a wide range of matters, including whether and if so in what circumstances someone can refuse to provide an ART procedure, and whether someone can direct that their gametes or embryos may only be used (or not used) by particular ethnic or social groups. They also currently include a prohibition on commercial surrogacy.

I have made a submission to the inquiry – which I reproduce below – which, as you can tell, largely argues for LGBTI equality, but also adopts a position on commercial surrogacy which I know some might find controversial (and if people do disagree with me I encourage you to leave a comment below).

I believe as many people as possible should make a submission to the review, because it should be informed by voices from across the community, including the LGBTI community (and that includes people who disagree with me on commercial surrogacy too). The details for the review, and how to make a submission, can be found at the following link: <http://consultations.nhmrc.gov.au/public_consultations/assisted_reproductive The closing date is Wednesday 30 April (ie ten days away), so time to get cracking.

Thanks for reading, and as always, let me know what you think.

Project Officer – Assisted Reproductive Technology

Health & Research Ethics Section

National Health and Medical Research Council

GPO Box 1421

CANBERRA ACT 2601

ethics@nhmrc.gov.au

Dear Project Officer, 

Review of Part B of the Ethical Guidelines for the Use of Assisted Reproductive Technology in Clinical Practice and Research, 2007

Thank you for the opportunity to make a submission on the review of Part B of the Ethical Guidelines for the Use of Assisted Reproductive Technology in Clinical Practice and Research, 2007.

I do so as an ordinary member of the public, without any special qualification or expertise in assisted reproductive technology (ART), but with a strong interest and passionate commitment to the legal and substantive equality of lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians.

I do not propose to answer all 60 of the questions contained in the public consultation document on the NHMRC website, but will instead focus my comments on those issues which are most relevant to LGBTI equality, as well as to the issue of commercial surrogacy.

In particular, I would like to make comments about the following five areas:

  1. Conscientious Objections
  2. Transmissible Infections
  3. Unknown but Directed Donations
  4. Selection for Particular Characteristics
  5. Commercial Surrogacy
  1. Conscientious Objections

My first concern is about the breadth of the description of conscientious objections in paragraph 5.9 (page 12 of the consultation document). Specifically, this paragraph provides that “[i]f any member of staff or student expresses a conscientious objection to the treatment of any individual patient or to any ART procedures conducted by the clinic, the clinic must allow him or her to withdraw from involvement in the procedure or program to which he or she objects.”

While I note that the provision of ART services may, for some staff members of students, raise ethical concerns, I believe that the drafting of this provision is far too broad, and allows for conscientious objections even when such objections are themselves unethical.

For example, the provision as drafted would allow an individual member of staff to refuse to provide ART services to a person on the basis of that person’s sexual orientation, gender identity or intersex status (if that person believed that ART services should not be provided to such persons) or on the basis of relationship status (if the person believed that only ‘opposite-sex’ married persons should have access to ART).

With the increasing acceptance of LGBTI Australians (as evidenced by the long-overdue introduction of federal anti-discrimination protections in 2013) and of different relationship statuses (including the 2008 reforms to federal de facto relationship recognition), none of these objections – while potentially genuinely held by the individual – should be allowed as the basis for refusing to provide ART services. Nor should conscientious objections on the basis of any of sexual orientation, gender identity, intersex status or relationship status be recognized as acceptable or ‘ethical’ in the context of these Guidelines.

If paragraph 5.9 is to be retained in the Ethical Guidelines, I recommend that it be amended to specifically note that conscientious objections do not apply, and are not accepted, with respect to the sexual orientation, gender identity, intersex status or relationship status of the intended recipient of the ART procedure or service.

  1. Transmissible Infections

My second concern also relates to the breadth of provisions contained in the Guidelines, in this case paragraph 6.4 (titled Minimise risk of infection, on page 19 of the consultation document). Specifically, sub-paragraph of this section provides that “[c]linics should not accept donations from people at an increased risk of transmissible infections”.

While I acknowledge the importance of reducing the risk of transmission of communicable diseases, I believe that the wording of this sub-paragraph allows for potential misinterpretation or misapplication to prohibit donations from all people from a particular demographic group who may be over-represented in notifications for a transmissible infection (for example, men who have sex with men, who are currently disproportionately represented in HIV notifications in Australia).

This level of prohibition – at demographic group level – would ignore the particular behaviours or characteristics of the individual, which in practice make that individual more or less susceptible to transmission.

My concern is this area is founded on the ongoing exclusion of all men who engage in same-sex sexual intercourse from donating blood, irrespective of their particular behaviours or characteristics and therefore actual risk.

It is my view that any risk assessment, if deemed necessary at all, should be performed at individual level, rather than demographic group, and that the Guidelines should make this differentiation explicit in this section.

I would also note that the requirement contained in sub-paragraph 6.4.2 (that “[a]ll donors of gametes should undergo appropriate infection control surveillance”) is possibly all that is necessary to be included in this section in any event. If the individual concerned is being tested for relevant infections, and appropriate monitoring is being undertaken, then sub-paragraph 6.4.1 may in fact already be redundant.

  1. Unknown but directed donations

This concern relates to the paragraphs addressing ‘unknown but directed donation’ of both gametes (paragraph 6.9, at page 20 of the consultation document) and embryos (paragraph 7.6, at page 29).

I am strongly opposed to the recognition, even under Ethical Guidelines, of any ability of donors to restrict the use of their gametes or embryos to “certain individuals, such as those from a particular ethnic or social group.”

This creates the possibility of donors restricting the use of their gametes or embryos to people of a particular sexual orientation or gender identity (for example, to cisgender heterosexual people), and therefore to excluding other people on the basis of their sexual orientation, gender identity or intersex status. It also appears that this would allow for similar distinctions to be made on the basis of relationship status.

I note that paragraph 6.9 highlights that “[t]his type of directed donation is illegal in some jurisdictions.” I believe that it should be made illegal in all jurisdictions. The principle of non-discrimination, including non-discrimination against LGBTI people, should trump any ability of potential donors to discriminate against people on the basis of sexual orientation, gender identity, intersex status of relationship status.

Even where ‘unknown but directed donations’ are not made illegal under law, the placing of such restrictions on the donation of gametes or embryos should not be respected through these Guidelines (as they currently are in both paragraphs 6.9 and 7.6, which conclude by saying “[i]n the remaining states and territories, clinics must not use the gametes/embryos in a way that is contrary to the wishes of the donor.”)

At this point I note that there are two options to implement such a recommendation – and that is to either override any expressed discriminatory preference of the donor and provide the gametes/embryos to others irrespective of whatever qualification was sought, or to reject all such donations and ensure that their gametes/embryos are not used. I am comfortable with either outcome, as they both satisfy the principles of equality/non-discrimination, although I highlight the fact that the former would allow more gametes/embryos to be used by individuals or couples who may require them.

  1. Selection for Particular Characteristics

Paragraph 11.1 of the Ethical Guidelines (headed Do not select sex for non-medical purposes, on page 48 of the consultation document) states that “sex selection (by whatever means) must not be undertaken except to reduce the risk of transmission of a serious genetic condition”. I support the inclusion of this principle in the Guidelines.

However, I note that, in future, there exists the potential that research may create the possibility of determining the likely (or at least increased predisposition towards a specific) sexual orientation or gender identity of a child born as a result of assisted reproductive technology. I also note that, for certain groups within the umbrella term intersex (such as congenital adrenal hyperplasia, and androgen insensitivity syndrome) these diagnostic tests are already a possibility, while additional groups within intersex may be able to be determined in the future.

Given that the incredible diversity of sexual orientation (including heterosexuality, homosexuality and bisexuality), gender identity (recognizing those who are cisgender and those who are transgender) and sex (including intersex status) of human life is natural, and that all people, including LGBTI people, are equal, and should be treated as such, I believe the Guidelines should also include a prohibition on the selection of reproductive material on the basis of (likely or prospective) sexual orientation, gender identity or intersex status.

While for sexual orientation and gender identity, this scenario – the screening of embryos for such characteristics – may ultimately prove to be some years or even decades into the future, I believe that it is vital to lay down this signpost, that such discrimination will not be tolerated, now, thereby setting a precedent for if and when it is ever required. In the case of intersex status, such guidelines are necessary now, to support and recognize sex diversity.

  1. Commercial Surrogacy

Finally, I note that paragraph 13.1 of the Ethical Guidelines (on page 52 of the consultation document) states that “[i]t is ethically unacceptable to undertake or facilitate surrogate pregnancy for commercial purposes.”

While I agree that commercial surrogacy raises a variety of complex ethical issues, I do not necessarily agree with such a broad-sweeping and all-encompassing statement against commercial surrogacy. I do not believe there is sufficient evidence to assert that in every single situation commercial surrogacy is ‘unethical’ or ‘wrong’.

Of course, I am, like most people, sensitive to the very real potential for commercial surrogacy to result in the exploitation of women for their reproductive capabilities. This has to be a major, if not the major, consideration in determining whether to allow commercial surrogacy and if so what form of regulation might be appropriate.

However, I am also aware that the current legal situation – where commercial surrogacy in Australia is banned, and as a direct result of these laws an increasing number of Australian individuals and couples are engaging in commercial surrogacy arrangements overseas – may in fact cause a far greater degree of exploitation of women, especially in developing countries and/or countries which do not closely regulate surrogacy arrangements.

It may be that a domestic ban on commercial surrogacy has, contrary to the intended outcome of those who introduced it, in fact resulted in greater exploitation of women when considered as a whole. It may also be that, creating a domestic commercial surrogacy scheme, which would allow for direct oversight by Commonwealth (or State and Territory) authorities, could lead to a significant reduction in the potential for such exploitation.

I do not expect the review process considering these Guidelines to come to a conclusion about these difficult matters. Nor am I willing, or in a position, to even attempt to suggest what a domestic commercial surrogacy scheme would look like.

However, I do believe that this is an issue that requires further investigation, and could be the subject of a comprehensive review by the Australian Law Reform Commission, or their State and Territory equivalents.

The ALRC could be asked not to review whether such a scheme should be adopted but to determine, if commercial surrogacy was to be allowed in Australia, what the best possible scheme (with the least potential for the exploitation of women) would look like. The Parliament, and the wider community, could then discuss and debate the option that was put forward and make an informed choice about whether such a model was preferable to the ongoing domestic ban on commercial surrogacy (and the corresponding trend to overseas surrogacy arrangements).

I believe that such a debate, informed not just by a practical proposal but also by the real-world consequences of the current ban, is vital before we can truly come to grips with and possibly resolve whether a permanent ban on commercial surrogacy is ethical or otherwise.

Thank you for taking my submission into consideration.

Sincerely,

Alastair Lawrie

20 April 2014

The last major battle for gay & lesbian legal equality in Australia won’t be about marriage

[Updated March 4th 2015]

This Saturday, the 37th annual Sydney Gay & Lesbian Mardi Gras Parade will work its way up Oxford St with its now traditional mix of politics, colour and movement, and above all, pride. Pride in who we are, pride in our community, and pride in what we have managed to achieve.

Because life is unarguably better for the vast majority of Australia’s lesbian, gay, bisexual, transgender and intersex (LGBTI) population in 2015 than it has ever been before. And that indeed is something to be proud about.

Following the first Mardi Gras on 24 June 1978, many of the barriers to legal equality have been removed. NSW passed anti-discrimination laws in 1982, followed by the decriminalisation of gay sex in 1984. Same-sex couples have since achieved de facto relationship recognition, and there is now equal access to assisted reproductive technology and adoption in most Australian jurisdictions.

It is likely that one area where legal rights have yet to be achieved will, once again, be the dominant theme of many of the more politically-oriented floats in this year’s parade – the Australian Parliament’s ongoing refusal to recognise marriage equality between all couples.

As someone who is engaged to be married, and who has been for more than four years but is currently prohibited from doing so, I understand why marriage equality is an issue which arouses such intense passion, and an admirable level of commitment from many activists around Australia.

But marriage equality is also something which most of us know is probably, some might say almost inevitably, going to be achieved at some point in the next five, at most 10, years.

When that day comes, when the first couples legally married under federal law have shared their vows and celebrated their commitments to each other in front of their families and friends, there will still be a major outstanding issue of legal inequality confronting lesbian, gay, bisexual and transgender (LGBT) Australians.

It appears just as inevitable that, long after those couples dance their waltzes and cut their wedding cakes, the anti-discrimination protections which are offered to LGBT Australians under most state and federal laws will continue to be seriously undermined by the wide-ranging exceptions which are offered to religious organisations (NB Intersex is not included here because religious exemptions under the Commonwealth Sex Discrimination Act 1984 do not apply on those grounds).

These exceptions allow religious schools to actively discriminate against LGBT teachers and students. Religious hospitals and community welfare organisations can utilise these loopholes to discriminate against LGBT employees, as well as patients and clients. And, while the historic federal reforms passed via the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 do not allow religious-operated aged care facilities to discriminate against LGBT people accessing their services, LGBT people can still be denied employment in those facilities simply because of who they are.

All of these services – education and health, community welfare and aged care – are located firmly and squarely in the public sphere, and address some of the most fundamental human needs in life. It is these same characteristics, that they are public services meeting public needs, that are used to justify the substantial amounts of public funding which subsidise the religious organisations running them, money which comes from all taxpayers, religious and non-religious, LGBTI and non-LGBTI alike.

Yet, despite operating in the public sphere, almost always using public money, these organisations are granted exceptions from the same legal obligations that are imposed on any other group, namely the responsibility not to discriminate on the basis of sexual orientation and gender identity.

The justification for these ‘special rights’? Basically, that the ability to discriminate against lesbian, gay, bisexual and transgender people is so fundamental to the exercise of religious freedom that it cannot be limited.

Note that we are not here talking about who is appointed as office-holders, including ministers, within a religion itself, what a particular religion may or may not believe in terms of morality, how religious ceremonies are undertaken, or even who can attend a religious ceremony. These are things that are central to religious freedom, and most people would not advocate the imposition of limits on the ability of religious organisations to discriminate in these areas.

Instead, some religious organisations (and we must say some, because not all groups hold these views) believe that they should have the right to fire a gay teacher, to expel a bisexual school student, to refuse to employ a lesbian aged care worker, or to deny services to someone who is transgender, even when all of the above is clearly done in the public sphere.

This is a much more substantive denial of rights than simply being denied access to marriage rites. Religious exceptions to anti-discrimination laws can affect LGBT people in multiple areas of their lives, including times and places when they are at their most vulnerable. In practical terms, I believe it is religious exceptions and not marriage inequality that is the biggest battle left to be won for full gay and lesbian legal equality.

It is also a battle that looks set to be fought more ferociously than that over marriage equality. Some of the largest religious organisations in the country don’t just support these exceptions, they are prepared to wage cultural war to defend them.

The Wesley Mission recently spent eight years, and went all the way to the NSW Court of Appeal, defending their right to deny allowing a male same-sex couple to become foster carers to children in need. Wesley did so 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” (OW & OV v Members of the Board of the Wesley Mission Council [2010] NSWADT 293 (10 December 2010).

Further, they submitted that: “Wesley Mission’s tradition views a monogamous heterosexual partnership in marriage as the ideal family role model for the vulnerable and sometimes damaged children we foster. Other understandings fall short of that norm.” And finally that “[t]he proposition that we should provide a framework for children to be cared for and nurtured within the context of a homosexual lifestyle is fundamentally unacceptable to our evangelical teaching and practice.”

The irony, some might say hypocrisy, of these statements is that, in the same case, Wesley Mission admitted that single people could themselves become foster carers through their service. Apparently they believed that two dads or two mums had less to offer foster children than one.

The net effect of the Wesley Mission case was to provide judicial confirmation of the breadth of the religious exceptions offered under section 56(d) of the NSW Anti-Discrimination Act 1977. That section reads: “[n]othing in this Act affects: 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.”

In short, if you are lesbian, gay, bisexual or transgender, then you have no legal right or expectation to be treated fairly and without discrimination by a religious employer, or religious-operated service, in NSW.

It is no surprise then that, when the Federal Parliament was considering the Exposure Draft Human Rights and Anti-Discrimination (HRAD) Bill 2012, the precursor of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, key NSW religious organisations would argue for religious exceptions to be established in Commonwealth law, too.

What is perhaps surprising is that some churches made submissions to the Senate inquiry considering the HRAD Bill that these exceptions do not go far enough.

The Standing Committee of the Synod of the Anglican Church Diocese of Sydney, and the Catholic Archdiocese of Sydney (including the Diocese of Parramatta and the Catholic Education Commission of NSW), both argued that the concept of exceptions was problematic, and that the right to discriminate against LGBT people should instead be re-contextualised as a positive right.

From the Anglican submission: “[w]hile exceptions are necessary, casting the protection of these rights in a wholly negative manner, in the form of ‘exceptions’, does not do justice to their importance. It suggests they are merely to be tolerated rather than positively recognised and upheld as legitimate and important in themselves.”

Meanwhile, in a ‘Diedre Chambers’ style coincidence, the Catholic submission also wrote: “the terminology of “exceptions” is problematic and fails to acknowledge that the right of freedom of religion is a fundamental human right, which the Commonwealth government is obliged to protect under international law. In our view, the terminology of “exceptions” should be replaced with the terminology of “protections”. Using the terminology of “protections” would recognise that conduct which is deemed not to be unlawful because it is covered by an exception related to religion is in fact lawful because it accords with the fundamental human right of freedom of religion” [emphasis in original].

Both submissions also go further than concerns surrounding terminology to argue that the exceptions which are offered to religious organisations should also be available to individuals – that is, that their personal beliefs should allow them to discriminate, even in their professional lives and when not working for a religious organisation.

For example, the Anglican submission recommended that “[a]n employee should not be required by their employer to undertake particular tasks or provide services in a particular context that are contrary to the employee’s genuinely held religious convictions where this is reasonable.”

Thankfully, that style of exception, which is located somewhere on the bottom half of the slippery slope down to the abhorrent type of laws currently attracting controversy in several US states, was not included in the final Commonwealth legislation. But in making that submission, the Anglican Church of Sydney has made clear the direction it wants anti-discrimination, or more accurately, pro-discrimination, laws to head [As an aside, if it had been passed then, when marriage equality does eventually become a reality, such provisions would have allowed individual employees to refuse to sell wedding cakes, or serve as wedding photographers, merely because of the sexual orientation and/or gender identities of the couples involved].

And they will fight equally hard to ensure that the current framework of exceptions applies in as many contexts as possible. The eventual removal of these exceptions in terms of people accessing aged care services was strongly resisted from some religious bodies, even if their arguments for doing so were quite weak (the Anglican submission on the HRAD Bill suggested that “[i]t may be unsettling to these communities to have residents who do not share their beliefs, values and ethos facility on matters of sexual practice”).

They have been more successful in fighting against recent proposed changes to NSW law that were simply attempting to remove the right of religious and other private schools to discriminate against gay, lesbian and transgender students (NB Bisexuality is shamefully still not a protected attribute in the NSW Anti-Discrimination Act 1977). Alex Greenwich’s amendments are currently on hold, at least in part because of the influence of the two major churches in the Parliament.

As we have seen, some religious organisations have demonstrated over the past 10 years that they are prepared to fight, by whatever means necessary (through the courts, in parliamentary inquiries, by lobbying parliamentarians directly and in public debate) to maintain and even extend the reach of these exceptions.

While this may seem to some like a theoretical (or even theological) debate, they are not doing so because they want the law to recognise abstract rights – they are engaged in this battle because they want the retain the ability to actively discriminate against LGBT people in real life.

Sadly, there are too many stories of this happening, of religious exceptions causing real-world harm to LGBT people. In the lead-up to Mr Greenwich’s Bill being introduced, several lesbian and gay students came forward with stories of being sent to the counsellor’s office for being “sick” (that is, for being gay), of being called disgusting and a disgrace – by a teacher no less – and threatened with exclusion from senior school, and of being told not to talk about their sexuality in addition to being excluded from school events (source: “Discrimination has no place in schools” Alex Greenwich, Sydney Morning Herald, 19 September, 2013).

Not forgetting the recent incident where the Sacred Heart Primary School at Broken Hill, which falls within the Wilcannia-Forbes Catholic Diocese, rejected a young girl’s kindergarten application simply because her parents were two women (source: “Same-sex enrolment row prompts call for law change”, ABC News Online, 15 December 2011).

Of course, these are just some of the stories that we are aware about. Most people who are discriminated against by religious organisations, either directly or indirectly, do not speak up, because they are aware that the discriminatory actions of those bodies are entirely lawful, or because they fear retribution from those organisations if they do so.

Which brings me back to the Mardi Gras Parade. While for many of us the decision to participate on Saturday is an easy one, choosing to celebrate pride in who we are and as part of our community, for others the decision whether to be visible or not in this manner can be significantly more complicated.

For people already engaged with religious organisations in different ways, or whose profession may involve applying for jobs with them (for example, more than a third of schools in Australia are religious, an even higher proportion amongst secondary schools), choosing to be ‘out’ through Mardi Gras can have serious repercussions.

Some people can and do have a legitimate fear that being identified as lesbian, gay, bisexual or transgender could result in them being fired, or being refused employment in the first place, in being expelled from school (or seriously mistreated while there), or being denied necessary services. Neither state nor federal anti-discrimination law would currently protect them in these circumstances.

In this respect, despite all of the progress in law reform since the first Mardi Gras parade was held back in 1978, there is still an incredibly long way to go. That is one of the reasons why we must ensure that Mardi Gras, as well as being a celebration of pride, also continues to serve its role as a political protest.

It is also why me must continue to campaign for equality, and to fight for our rights, including the right not to be discriminated against. Given the scale of the challenge involved in removing these unjust religious exceptions, and how hard (some) religious organisations will struggle to retain them (and therefore to maintain their position of privilege in society), we should be aware that it is not a fight that we will win in months. It will take several years, at least – if not decades.

But it is a battle we must wage nonetheless. Because, if LGBT Australians are ever to be truly equal under the law, then the special exceptions granted to religious organisations under Commonwealth, state and territory laws must end.

Explanatory notes: I have attempted to be clear in this post about when I am speaking about gay and lesbian, or LGBT, or LGBTI, because sometimes the law affects these groups in different ways (and please accept my apologies if I have made some errors in this respect). For example, removing religious exceptions cannot be the last major battle for bisexual legal equality – especially if they are not included in the NSW Anti-Discrimination Act in the first place.

Equally, I am not in a position to argue that religious exceptions are the biggest legal issue confronting transgender Australians when uniform positive recognition of gender identity is not yet a reality. And, while intersex people are not subject to religious exceptions under the Sex Discrimination Act, I also wouldn’t describe this issue as more important than banning involuntary medical sterilisation, something I have written about previously (see link: https://alastairlawrie.net/2013/12/25/no-3-senate-report-on-involuntary-or-coerced-sterilisation-of-intersex-people-in-australia/).

Finally, while I wrote in the second paragraph that, for the vast majority of LGBTI Australians, life is unarguably better than it has ever been before, I do not wish to underestimate the ongoing problems of mental illness, depression and suicide which affect many young LGBTI people, or indeed the plight of LGBTI asylum-seekers, who Australia continues to send to Nauru and Manus Island, PNG, for ‘processing and resettlement’.

One (more) final thing: if you liked this post, please consider sharing. Thanks, Alastair

No Homophobia, No Exceptions

During the week, the NSW Gay & Lesbian Rights Lobby (which I am involved in as the Policy Working Group Chair), launched its No Homophobia, No Exceptions campaign, calling for the removal of religious exceptions to LGBTI anti-discrimination protections contained in the Commonwealth Sex Discrimination Act 1984 and the NSW Anti-Discrimination Act 1977.

This is an incredibly important campaign, given these exceptions will possibly be the last barriers to full LGBTI equality in Australia to fall, and a campaign which I am very proud to be involved in.

Now, while this blog, and the posts which I put up here, only ever reflect my personal views on things (ie in this blog I do not speak on behalf of the GLRL, or any other organisation), I would like to take the opportunity to put up a link to two other pages which form key parts of the No Homophobia, No Exceptions campaign.

The first is an op-ed I wrote for the Star Observer newspaper, outlining the reasons for the campaign, and calling for the LGBTI community to get involved. Link here: <http://www.starobserver.com.au/opinion/soapbox-opinion/no-homophobia-no-exceptions/117476

The second link is to a Change.org petition which asks people to support the campaign, by calling on Commonwealth Attorney-General, Senator the Hon George Brandis, and NSW Attorney-General, The Hon Greg Smith MP, to repeal these provisions.

If you support the campaign, and the principle that all people deserve to be treated equally in all areas of public life, irrespective of sexual orientation, gender identity or intersex status, then I strongly encourage you to sign. Link here: http://www.change.org/en-AU/petitions/senator-hon-george-brandis-remove-religious-exceptions-from-anti-discrimination-laws

Thanks.