No 10 The Federal Election on September 7

This would possibly have been higher on the list, were it not for the fact the outcome was pretty much inevitable, long before polling day (and certainly by the time I finished working at Parliament House in mid-2012).

But the September 7 election was still a significant moment, because it drew the final curtain on the Rudd & Gillard (& Rudd again) Labor Government that, in less than 6 years, achieved more for LGBTI rights than any other federal Government in history.

Perhaps we, as a community, took some of those achievements for granted. Perhaps, because many of those reforms were so long overdue (case in point: de facto relationship recognition) that they didn’t feel like achievements at all, instead they were simply the actions of a Parliament finally catching up to where the population already was.

More likely, for many of the LGBTI people of Australia, the achievements of the Labor Government were overshadowed by one major law reform which they didn’t implement. As someone who is engaged to be married myself, I understand that frustration (and I would add another couple of major policy failures as well – but more on them later in this countdown).

Nevertheless, the fact that the Rudd/Gillard/Rudd Government did not introduce marriage equality should not mean that we completely disregard their achievements in other areas. After all, they accomplished infinitely more in a little over 5 and a half years than the Howard Government did in twice that time (to be honest, the only positive Howard Government LGBTI achievement I can think of was allowing same-sex couples access to their partner’s superannuation, but even that wasn’t mandated, didn’t cover Commonwealth public sector employees, and was only passed as a trade-off when they introduced the marriage ban in 2004).

The positive list of Labor achievements between 2007 and 2013 includes:

  • De facto relationship recognition (and access to the Family Court on relationship breakdown)
  • The inclusion of sexual orientation, gender identity and intersex status in federal anti-discrimination legislation for the first time (again, more on that later in the countdown)
  • Another first, this time the first National LGBTI Ageing and Aged Care Strategy
  • Providing funding for the National LGBTI Health Alliance for mental health projects
  • Providing funding for QLife, the national network of LGBTI telephone counselling services, to allow a 1800 number to be operational across the country 7 nights a week (the importance of which really shouldn’t be underestimated)
  • Introducing trans* and intersex passport reform, with M, F and X categories (where X includes indeterminate/unspecified/intersex)
  • Permitting LGBTI inclusive couples to access Certificates of No Impediment, to at least allow them to be married overseas, if not at home
  • Providing Gardasil vaccinations to teenage boys, so that future generations of gay and bisexual men are protected from anal, penile and throat cancer
  • Introducing Australian Government Guidelines on the Recognition of Sex and Gender, and
  • Removing some gender requirements for PBS medicines, meaning easier access to some treatments for trans* and intersex people.

The above list (which I am sure is not exhaustive) is, all things considered, a pretty impressive one.

It is a shame that, through their own actions (or, more specifically, inaction), the Rudd and Gillard Government will, for many, be remembered more because of the failure to recognise the fundamental equality of love, than any of the things I have noted above. Because, in reality, they left the state of LGBTI affairs in Australia a far better place on 7 September 2013, than what they inherited on 24 November 2007.

Still, there is one way in which the outgoing Labor Government could be remembered more fondly over time – and that is if the actions of the newly-elected Abbott-led Liberal and National Government make them seem better in hindsight.

Already, that looks like a distinct possibility. The first LGBTI-related action of the Abbott Government was taking the ACT and their same-sex marriage laws to the High Court (thus seeing them overturned). And there are plenty of other tests to come over the next 12-24 months, including deciding whether to continue funding for some of the above-named initiatives. Not to mention the potential threat to anti-discrimination reforms, and in particular the possibility of Brandis & co reintroducing an exemption for religious aged care service providers.

So, while we (quite rightly) criticise the Rudd & Gillard Labor Government for what it didn’t do, perhaps every once in a while we should also reflect on the good things that it did accomplish.

Submission on Alex Greenwich’s Anti-Discrimination Amendment (Private Educational Authorities) Bill 2013

The following is my submission, lodged today, in response to a discussion paper and Bill released by the Member for Sydney, Mr Alex Greenwich. The Paper and Bill seek to remove exceptions which allow private educational authorities, including religious schools, the right to discriminate against lesbian, gay and transgender students. Unfortunately, I think that to achieve that goal, more amendments to the NSW Anti-Discrimination Act 1977 may need to be made. In any event, I believe that there are a range of other amendments which should also be made at the same time, including the removal of section 56 generally. Anyway, here it is:

Mr Alex Greenwich

Member for Sydney

Sydney@parliament.nsw.gov.au

Monday 30 September 2013

Dear Mr Greenwich

Submission on Anti-Discrimination Amendment (Private Educational Authorities) Bill 2013

Thank you for the opportunity to provide a submission in response to your discussion paper on anti-discrimination law reform, released in August 2013, and in particular in relation to your Anti-Discrimination Amendment (Private Educational Authorities) Bill 2013 (the Bill), which you introduced into NSW Parliament on 19 September 2013.

First of all, let me say that I welcome your strong commitment to removing the discrimination that can be experienced by lesbian, gay and transgender students in private educational institutions, including private schools. As has been demonstrated by the Writing Themselves In reports, and countless other research projects over the years, schools can be one of the major sources of homophobia and trans-phobia in the lives of young people.

It is vital that any ‘exceptions’ in the NSW Anti-Discrimination Act 1977 which may authorise schools to discriminate against lesbian, gay and transgender students are removed, and this must apply to all types of private schools, including religious schools. From what I have read, both in the Discussion Paper and associated media, as well as in your Second Reading Speech, I believe this is what your Bill is attempting to achieve.

However, I do have some concerns about the Anti-Discrimination (Private Educational Authorities) Bill 2013, in particular:

  • It is unclear whether the Bill, as drafted, will accomplish this aim
  • There are a range of other amendments which also need to be made to the Anti-Discrimination Act 1997 and
  • If the Bill is aimed at removing the right to discriminate from religious schools, thereby provoking an expected negative response from religious organisations, then I believe that the right of religious organisations to discriminate more broadly under s56 should be removed at the same time.

Turning first to the question of whether the Bill, if passed, would actually achieve the aim of removing the right to discriminate from all schools, including religious schools, I note that the Bill simply removes those provisions of the Anti-Discrimination Act 1997 which provide a specific right to discriminate (namely, sections 31A(3)(a), 38K(3), 46A(3), 49L(3)(a), 49ZO(3) and 49ZYL(3)(b)).

However, the Bill does not amend or seek to repeal the catch-all section which provides exceptions to religious organisations to discriminate – and that is found in section 56(d) which states: “Nothing in this Act affects: (d) any other act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.”

I am concerned that, by leaving this section unamended, the effect of your Bill would be to remove the right to discriminate from private educational authorities that are not religious, but that religious schools would retain the right to discriminate against lesbian, gay and transgender students on the basis of their ‘religious principles or beliefs’. The practical effect of the Bill would therefore have a positive outcome for a much, much smaller cohort of students than what is intended.

This reading of the Anti-Discrimination Act 1977, and in particular s56(d), appears to be supported by the main case in this area in recent years: OW & OV v Members of the Board of the Wesley Mission Council [2010] NSWADT 293. This case involved a service operated by the Wesley Mission, which sought to utilise the ‘protections’ offered in s56(d) to discriminate against gay male foster carers. The Wesley Mission was ultimately successful in its appeal.

While foster care is obviously not exactly the same as providing education in religious schools, I believe that it is potentially analogous in terms of indicating how broad the religious exceptions under s56(d) are in practice, and in particular in suggesting that they would operate to shield religious schools that discriminate against lesbian, gay and transgender students from the scope of the Anti-Discrimination Act 1977.

This also appears to be the opinion of the current Attorney-General of NSW, the Hon Greg Smith SC MP. In a speech titled Religious Vilification, Anti-Discrimination Law and Religious Freedom, which he gave on 24 August 2011, the Attorney-General discussed the operation of s56:

“116. Section 56 creates a general exemption from the ADA for religious bodies. Religious bodies are not required to comply with the ADA in relation to:

  1. The training, education, ordination or appointment of religious leaders [s56(a)&(b)];
  2. The appointment of any other person [s56(c)];
  3. Any other act or practice that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of thast religion [s56(d)].

117. Section 56 was included in the ADA when first enacted. While other jurisdictions have adopted a general exception from their anti-discrimination statutes for religious bodies, the exceptions are narrower than that under the ADA in the following ways:

a. While section 56(c) of the ADA exempts the appointment of persons ‘in any capacity’ by a religious body, other jurisdictions exempt only appointment of persons to perform functions related to religious practices;

b. Some other jurisdictions have provisions equivalent to s56(d) of the ADA, but others are narrower. Those that are narrower limit the exemption to acts done as part of a religious practice [NT], or don’t extend the exemption to discrimination in work or education [Qld], or limit the grounds of discrimination that are exempt.” [emphasis added]

The implication from this speech, and in particular from para 117(b) above, is that the Attorney-General believes that the protections offered by s56(d) would be available to a school or educational facility run by a religious organisation. This also appears to be the interpretation of s 56(d) by other organisations and advocacy groups which work in this area, including the Inner-City Legal Centre and Public Interest Advocacy Centre.

If that is the case – that either your Bill does not operate to limit the right of religious schools to discriminate against lesbian, gay and transgender students, or that there may be some ongoing uncertainty in this area – then might I suggest you seek additional legal advice on the scope of s56(d), and whether further amendments to your Bill might be necessary to guarantee the rights of lesbian, gay and transgender students in religious schools not to be discriminated against. Obviously, if the Bill is to be debated and ultimately voted upon in late 2013 or early 2014, it would be useful to have clarity about the exact protections to be offered by the Bill beforehand.

Moving on to my second concern about the Bill, which applies irrespective of whether students at religious schools are covered or not, specifically that there are a range of other serious problems with the NSW Anti-Discrimination Act 1977, and it is my belief that these issues should be considered at the same time by the Parliament.

For example, as well as protecting lesbian, gay and transgender students, anti-discrimination protections should also be offered to teachers and other employees at the same schools, irrespective of their sexual orientation or gender identity.

In fact, I believe that religious exceptions should be limited to only cover the appointment of ministers of religion, and the conduct of religious ceremonies. In short, religious organisations should no longer be sanctioned by the State to discriminate in employment and service delivery in places like hospitals or social services – and a reform to the existing law is a perfect opportunity to make such changes.

There are also a range of problems with the current scope of, and definitions included in, the NSW Anti-Discrimination Act 1977, including the fact that it protects homosexuals (in s49ZF) rather than people with different sexual orientations (with the effect that, while lesbians and gay men are covered, bisexuals are not).

The NSW Act also includes what I understand to be an out-dated definition of transgender (in s38A), rather than the preferred definition of gender identity as passed in the Commonwealth Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013. Indeed, the NSW Act does not even cover intersex status at all, unlike its Commonwealth counterpart. I hope that you, and other MPs involved in this area of public policy, are consulting with groups representing the transgender and intersex communities about whether, and how, to deal with these issues.

There are also other problems with the current Act, including what I find to be an objectionable difference in financial penalties for individual offenders found guilty of vilification; the maximum financial penalty for racial or HIV/AIDS vilification (set at 50 Penalty Units) is five times higher than that for homosexual or transgender vilification (set at 10 Penalty Units). There can be no justification for this discrepancy, which effectively creates a hierarchy of offensiveness, with some types of vilification considered more serious than others.

The above problems with the NSW Anti-Discrimination Act 1977 are simply those which I have identified from my own reading and research. I am sure that there are other issues which also need to be addressed. This to me suggests that there is sufficient impetus for a more comprehensive re-write of the Act. While the subject of protecting lesbian, gay and transgender students is an incredibly important one, I believe that the range of problems identified above should all be dealt with at the same time.

Which brings me to my third concern with the draft Anti-Discrimination Amendment (Private Educational Authorities) Bill 2013, and that is a concern around tactics or strategy.

By attempting to limit the right of religious organisations to discriminate against lesbian, gay and transgender students in their schools, you are taking on something which many churches take to be an inalienable ‘right’ – the ability to indoctrinate young people with their religious teachings against homosexuality or transgender identity.

As a result, I would expect a significant backlash from those same religious organisations against your Bill. The size or scale of that backlash might only be slightly less than that which could be expected from an attempt to narrow the broader exceptions contained in section 56 (by limiting its coverage to the appointment of ministers and conduct of religious ceremonies).

In that case, it is my personal view that, as well as removing the specific provisions concerning private educational authorities (as featured in your Bill), any attempt to reform the NSW Anti-Discrimination Act 1977 should also contain provisions which significantly reduce the scope of s56. If people such as yourself are going to take on the right of religious organisations to discriminate, then why not do so more comprehensively, rather than in what could be described a piecemeal (or at the very least, narrowly-targeted) fashion?

Which is not to say that moves to protect lesbian, gay and transgender students from discrimination are not welcome – they obviously are. And I also wish to restate my support for the overall intention of the Bill; protecting young people who are lesbian, gay and transgender from homophobia and trans-phobia is an incredibly important objective.

However, any attempt to do so must ensure that the Bill captures all private schools, including religious schools. And, even if that drafting issue is resolved, it remains my personal view that reform to the NSW Anti-Discrimination Act 1977 should go much further, and address broader issues including but not limited to restricting the scope of section 56.

Thank you for considering this submission.

Yours sincerely,

Alastair Lawrie

Liberal-National Policies on LGBTI Issues for Federal Election 2013

I was tempted to leave the content of this article completely blank, because that would be a reasonably accurate reflection of the LGBTI policies of the Liberal-National Parties for the election that is now only two days away. That is because, outside of two not very encouraging exceptions, the Coalition doesn’t appear to have any LGBTI policies for this year’s poll.

The Real Solutions booklet, which Tony Abbott and his team have been clutching tight for most of this year, makes no mention of LGBTI Australians. And, as far as I can tell, none of the policies which have been put up on the Liberal campaign website do so either (although I am happy to be corrected).

The two exceptions that I mention include Abbott’s signature Paid Parental Leave scheme (covered in my blog post earlier this week, a commitment which does not include references to same-sex couples in the formal policy document, but which Abbott, Hockey and O’Dwyer have subsequently been forced to confirm will include LGBTI parents).

And the second exception is marriage equality, which does not actually involve a policy commitment at all, only that the decision will be left to a post-election party-room to decide whether to have a conscience vote in the next term, rather than having a formal position against (although the Opposition Leader has made his own views – which remain strongly opposed to marriage equality – very clear).

This paucity of policies was confirmed through the 2013 LGBTI Federal Election Survey, which was recently conducted by the NSW Gay & Lesbian Rights Lobby, Victorian Gay & Lesbian Rights Lobby, Transgender Victoria and Organisation Intersex International Australia. This was a question and answer document, with 43 different questions spread over 12 distinct topics.

Unfortunately, while the ALP and Greens provided individual answers to all 43 questions, the Liberal-National Coalition did not provide individual answers, instead they provided a cover letter, and two-and-a-bit page attachment, which provided broad brushstrokes but very few details of what they will (and won’t) do.

The LGBTI groups I mentioned then analysed this response according to four different categories: Yes/Good Response, Qualified/Partial Response, No/Bad Response and Response does not answer the question. (For a copy of the survey documents, including the Liberal-National letter and the assessment made by the four groups, go to www.lgbti2013.org.au)

The result: for a full 29 of the 43 questions asked (ie two thirds of the total), the Liberal-National Parties’ response was deemed to not answer the question at all. In fact, in only 4 out of 43 responses (less than 10%) were the Liberal-Nationals deemed to give a positive response, with 8 qualifieds, and 2 outright nos. By way of comparison, the LGBTI groups deemed that the ALP did not answer 4 questions out of 43, and the Greens only 1 out of the 43 questions, and the clear majority of both responses were deemed to be Yes/Good.

Given that they answered less than a third of the questions asked, it is no surprise that there are entire policy areas which the Liberal-National Coalition have simply not taken a position on, and these touch a number of things which are very important to different sections of the LGBTI community.

Specifically, the Abbott Liberal-National Coalition failed to provide an answer on:

  • Whether they support the recent amendments to the Sex Discrimination Act which have prohibited discrimination against LGBT people by religious organisations in aged care services
  • Whether they oppose the introduction of civil unions before the passage of marriage equality
  • Whether they will continue to issue Certificates of No Impediment, which currently allow Australian couples to marry in other countries which have already legislated for marriage equality
  • Whether they will attempt to overrule States and Territories that introduce marriage equality (either through new legislation or High Court challenge)
  • Whether they will continue to fund dedicated LGBTI health initiatives, outside of HIV, and (possibly) some mental health initiatives
  • Whether they will retain the dedicated National LGBTI Ageing and Aged Care Strategy, and keep LGBTI as a special needs group in the Aged Care Act
  • Whether they will provide public funding for trans* surgeries
  • Whether they would help end ‘normalising’ surgery (including coerced sterilisation) on intersex infants
  • Whether they will use foreign policies resources to advocate specifically for decriminalisation of homosexuality around the world and
  • Whether they support the ‘resettlement’ of LGBTI refugees in countries that criminalise homosexuality (such as Papua New Guinea and Nauru).

As you can see, that is a pretty impressive roll-call of issues which the Liberal-National Coalition failed to provide an answer on. In my personal opinion, I think that this is a pretty disappointing (*alert: possible understatement) level of detail from people who will likely be occupying the Government benches from next week.

One interpretation of this would be that, by not answering these questions, they are leaving open the possibility of doing any and all of them (which could include doing positive things which they have not answered, but could equally involve doing a range of negative things, including taking away rights for LGBTI people or funding for LGBTI initiatives).

Another interpretation would be that, by failing to outline any concrete negative plans – for example, by failing to state that they will bring back religious exemptions in aged care services in the Sex Discrimination Act – even after being specifically asked, they will not have a mandate to do these when in Government. After all, it is difficult to claim a mandate to roll back rights or strip funding when you keep those policies (if you have them) a secret. And that is an argument that I expect the LGBTI community will be using if the Abbott Government does adopt negative policies in these areas after the election.

Complaint re Reference to A.I.D.S on Form

My fiancé Steve and I went to Queensland last week on holiday. The main purpose was to attend my mother’s 65th birthday. However, we also decided to treat ourselves to a night in Noosa, and to a massage the following morning, so that we could both de-stress.

But our enjoyment of said massage was compromised somewhat by the ‘client form’ which asked a range of questions about health conditions which could be relevant (for example, whether you were suffering from a shoulder or leg injury etc). One part of this form read “Please circle if you have any of the following” and one of the options was “A.I.D.S”

I could not believe my eyes. First, I find it difficult to understand how a massage could involve any risk of HIV transmission (given there is no exchange of bodily fluids or other means of transmission).

Second, and much more offensively, I can’t recall the last time I saw someone use the phrase AIDS as shorthand to refer to someone who may be HIV-positive. In fact, it may be more than a decade since I saw the conflation of the two, especially on a document which has probably been distributed hundreds if not thousands of times.

I was too shocked to raise the issue at the time, but did take a copy of the form to use as the basis of a complaint to the company which provided the massage. I have written the below email to the company outlining my concern with the form. I have also copied this email to the Queensland Association for Healthy Communities for their information (and possible follow-up).

At this stage, I am giving the company the benefit of the doubt. I am hoping that it may be an ‘innocent mistake’, and that they do not understand how offensive this form is. As such, I am not naming the organisation on this post today.

Nevertheless, should they fail to respond positively to this complaint, or fail to respond at all, I will of course name the company involved so that other fair-minded people can avoid them when they go on holiday and want to relax. After all relaxing is far more enjoyable without an added dose of unjust discrimination.

Dear ,

I am writing today to raise an issue which occurred during my massage at your premises in Noosa last Friday October 12th 2012. In particular, I am referring to your Client Form, which I was required to fill in before having my massage.

This form included a section headed “Please circle if you have any of the following” and one of the options listed was “A.I.D.S”. I find this inclusion to be incorrect and offensive.

First, I imagine that this question was seeking to establish whether a client potentially has a blood borne virus (in this case HIV, not AIDS). I also imagine that this question is at least intending to ensure the massager is able to take appropriate precautions regarding this blood borne virus – although I am having trouble working out what precautions would be necessary given massages do not involve an exchange of bodily fluids and I cannot think of another way of possible transmission that is relevant in this situation.

Could you please enlighten me what the response would have been by your company if someone had circled the response “A.I.D.S”? Is this response supported by scientific evidence and/or advice from the Queensland Department of Health?

Second, and much more importantly, I would like to point out that there is a difference between someone being HIV positive, and someone who is currently experiencing AIDS. While you must be HIV positive to experience AIDS, there are many, many people who are HIV positive who do not experience Acquired Immune Deficiency Syndrome.

Conflating the two conditions, or using “A.I.D.S” as shorthand for all people who may be HIV positive, is extremely offensive and unnecessary. It reflects thinking from the 1980s and not 2012.

Ironically, if you seeking to protect your employees, the way that you are asking this question may not achieve what you want in any event – if someone is HIV positive but does not have AIDS, then their correct/factual answer would be to leave “A.I.D.S” un-circled.

To rectify this situation, I would ask that you please consult with the Queensland Association for Healthy Communities about both your responsibilities in this area, and, if you must ask people whether they have a blood borne virus, how that information should be sought from the client. I have copied this email to them for their information and follow-up.

I look forward to your reply to this email, including the actions that you have taken to amend this form.

Sincerely,

Alastair Lawrie