Tag Archives: Australian Human Rights Commission

Submission to Inquiry into Right Wing Extremist Movements in Australia

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Senate Legal and Constitution Affairs Committee

Submitted via email: legcon.sen@aph.gov.au

Friday 5 April 2024

To the Committee

Inquiry into Right Wing Extremist Movements in Australia

Thank you for the opportunity to provide this short submission in response to the Committee’s inquiry into right wing extremist movements in Australia.

I do so as a long-standing advocate for the rights of the lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) community, including in relation to anti-discrimination and vilification laws but also more broadly.

In this context, I express my genuine hope that the Committee, in its inquiry, looks at the role anti-LGBTIQ prejudice, and especially transphobia, has played in the rise of right wing extremism in Australia, in particular over the past 12 months.

The rise of homophobia, biphobia and transphobia since March 2023

There has been a disturbing rise in anti-LGBTIQ prejudice, including hate speech as well as threats of intimidation and violence, since early last year.

This has come from individuals and groups that can largely be described as being far-right in political ideology.

Some of the most notable events include:

  • The rally against trans rights held in Melbourne on 18 March 2023, to which neo-Nazi groups turned up, performing Nazi salutes on the steps of Victorian Parliament, and shouting at trans counter-protestors while holding a banner proclaiming ‘destroy paedo freaks’ (emphasising the explicit anti-trans views of these fascists),
  • The violent attack by so-called ‘Christian Lives Matter’-associated individuals on 21 March 2023 against a small group of LGBTIQ protestors, and NSW Police officers, in Belfield in Sydney, and
  • Disgusting and offensive homophobic comments on social media by then-One Nation MLC Mark Latham to Independent Member for Sydney Alex Greenwich MP (which I will decline to republish here), the following week.

All of the above occurred within a two-week period. Sadly, however, the rise of anti-LGBTIQ hate speech and extremism did not end there, but has continued and in some ways worsened.

The 12 months since March 2023 have seen a large number of LGBTIQ and related community events shut down amid credible threats of intimidation and violence by right wing extremists.

This includes Drag Story Times (which are nothing more than voluntary gatherings where people in costumes read books to parents and their children, promoting imagination and inclusivity) being cancelled at libraries and other community venues around the country, on the advice of police because the safety of attendees could not be guaranteed.

Most recently, this included deaths threats against ABC employees forcing the cancellation of a Drag Story Time that was to be held in the lead up to the 2024 Sydney Gay & Lesbian Mardi Gras, and a rally outside a Cumberland Council meeting in late February which was debating Drag Story Times (and which ultimately passed a motion banning them), with some protestors shouting offensively the word ‘trannies’.

It should obviously be noted that drag is not necessarily the same as LGBTIQ, although there is significant cross-over in the entertainers who perform in drag (with many being same-gender attracted and/or gender diverse) and importantly with the people who are against both conflating the two in any event (as seen clearly at the Cumberland Council protest).

The impact of these cumulative developments on the LGBTIQ community has been profound, with legitimate fears for our safety against this rising tide of extremism.

I write that as a privileged cisgender gay man, who has been out for more than 25 years and who has been advocating on LGBTIQ rights for almost as long – but who has felt less safe in public over the past year than at any point this century.

This feeling of vulnerability has been compounded by the sense the Commonwealth Government has effectively left us on our own in the face of these attacks.

The Commonwealth Government has been missing in action on anti-LGBTIQ extremism

Disappointingly, the Commonwealth Government’s response to the specific element of anti-LGBTIQ prejudice, and especially transphobia, in the overall rise of right wing extremism over the past 12 months has ranged from inadequate and incomplete, to completely absent.

Admittedly, there was widespread condemnation of Mr Latham’s tweets about Mr Greenwich, including the homophobic nature of his communications. Which was welcome, but that’s about as far as it goes.

The Commonwealth Government’s response, including its public comments, to the anti-trans neo-Nazi display on the steps of Victorian Parliament concentrated on the Nazi aspect of this activity (which obviously deserves condemnation) while largely ignoring the transphobia at its core (which is no less worthy of political denunciation).

This can be seen through its legislative response in Parliament, including in the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023, which focused on the public display of Nazi symbols, including people engaging in Nazi salutes, while not addressing hate speech against LGBTIQ people more generally.

My understanding of this legislation is that it would not capture a situation of a group of thugs dressed in black assembling on the steps of Victorian Parliament, shouting at trans people and waving a banner which says ‘destroy paedo freaks’, provided they did not also wear Nazi symbols or perform a Nazi salute.

For the trans people targeted, surely both situations are intimidating – but only one is now regulated.

The Commonwealth Government has also been missing in action in terms of addressing the right wing threats of intimidation and violence against LGBTIQ and related community events, including Drag Story Times, shutting down gatherings right around the country.

This is a national problem requiring a national response, and yet I cannot recall a single strong public condemnation from a senior Government Minister, from the Prime Minister down, to this phenomenon.

Nor has there been any kind of legislative response, or funding for LGBTIQ community organisations and/or Local Governments, to increase safety to allow these events to proceed.

Indeed, in the absence of clear Commonwealth Government action (and, it must be said, lack of State and Territory Government action too), it has been left up to the LGBTIQ community itself, through initiatives such as Rainbow Community Angels, to enable events like Drag Story Time go ahead in spite of right wing extremist threats.

The fact the Commonwealth Government has been missing in action on anti-LGBTIQ prejudice is reinforced by comparing its actions over the past 12 months to religious hate speech and threats of intimidation and violence against religious minorities.

There have been repeated strong public condemnation of anti-semitism from the Prime Minister, and multiple other senior Government Ministers including the Attorney-General.

There have been repeated promises to introduce Commonwealth laws to prohibit vilification on the basis of religious belief (with these laws expected to be introduced shortly despite the Government’s simultaneous refusal to implement its broader commitment to a Religious Discrimination Bill and Sex Discrimination Act amendments to protect LGBTQ students and teachers in religious schools in the absence of agreement from the Opposition).

The Commonwealth Government has also announced, and delivered, tens of millions of dollars to faith-based organisations to enhance their and their respective communities’ safety (with the Attorney-General announcing a $40 million grant round on 17 May 2023, coincidentally the International Day Against Homophobia, Biphobia and Transphobia, or IDAHOBIT).

The LGBTIQ community has not received the same commitments, or funding, from the Government despite facing similar challenges in terms of hate speech, threats, intimidation and violence.

What the Commonwealth Government should be doing to address anti-LGBTIQ extremism

There are a range of actions which, in my view, the Commonwealth Government should be undertaking to address increasing right wing anti-LGBTIQ extremism.

This includes measures which not only respond to the visible growth of this hatred over the past 12 months, but would also ideally help to prevent and reduce anti-LGBTIQ prejudice in the community generally, thereby removing what appears to be fertile ground for right wing extremists to recruit on and organise around.

These measures include:

  1. Clear public condemnation of right wing anti-LGBTIQ extremism

    The basic starting point should be clear and consistent public condemnation of the anti-LGBTIQ, and especially anti-trans, extremism which has gathered pace over the past 12 months.

    This should include statements from the Prime Minister, and other senior Government Ministers including the Attorney-General, and must leave no doubt that such extremism will not be tolerated.

    2. Fund a national strategy countering anti-LGBTIQ prejudice

    In the context of other recent domestic and international developments, the Commonwealth Government has sought to expedite a new national anti-racism strategy, in partnership with the Australian Human Rights Commission.

    Anti-LGBTIQ prejudice is no less serious a threat as racism, with substantial impacts on the lives of lesbian, gay, bisexual, transgender, intersex and queer Australians. It too warrants development of a funded national strategy to help combat it, including initiatives to prevent homophobia, biphobia, transphobia and anti-intersex bigotry.

    3. Introduce Commonwealth laws prohibiting anti-LGBTIQ vilification

    There is currently no Commonwealth protection against anti-LGBTIQ vilification under the Sex Discrimination Act 1984. Protections at state and territory level are a patchwork replete with many holes, with anti-LGBTIQ vilification prohibited in Tasmania, the ACT, Queensland and Northern Territory, while civil vilification provisions in NSW cover only gay men, lesbians and some transgender people (although Crimes Act prohibitions on inciting violence apply across the LGBTIQ community). There are no protections in Victoria, South Australia or Western Australia.

    The Albanese Government has an opportunity to address these gaps by introducing nation-wide prohibitions on vilification on the basis of sexual orientation, gender identity and sex characteristics, based on existing vilification provisions in section 18C of the Racial Discrimination Act 1975.

    This should be done at the same time as the Government implements its commitment to prohibit religious vilification, given there is little difference in the potential harm vilification causes these respective groups.

    4. Fund safety initiatives for LGBTIQ community organisations and Local Governments

    Similarly, the Commonwealth Government should be providing funding for initiatives to protect the safety of LGBTIQ Australians on an equivalent basis to the programs it has already delivered to faith groups.

    This should include a grants program for LGBTIQ community organisations to upgrade their safety infrastructure, as well as to provide safety training to members of the LGBTIQ community to help protect us against the growing threat of right wing extremism.

    The Government should also fund Local Governments to upgrade their own security settings, so that community events such as Drag Story Times can be held safely despite any threats of intimidation and violence emanating from far-right extremists.

    5. Create and appoint an LGBTIQ Commissioner at the Australian Human Rights Commission

    The above measures should be supported by institutional infrastructure to ensure they are delivered, and delivered in line with community expectations.

    One part of this infrastructure, currently absent, is a stand-alone, dedicated Commissioner for Sexual Orientation, Gender Identity and Sex Characteristics at the AHRC (with responsibility for these issues presently an ad hoc, part-time responsibility of the Sex Discrimination Commissioner).

    The creation and appointment of an LGBTIQ Commissioner would help to ensure that addressing homophobia, biphobia, transphobia and anti-intersex bigotry is given an appropriate emphasis both within the Commission and beyond.

    6. Create and appoint a Commonwealth Government LGBTIQ Advisory Committee

    Another current gap in federal institutional infrastructure is the absence of any Minister with dedicated responsibility for LGBTIQ issues, and/or specific office within a central agency with the onus for co-ordinating policy and service-delivery on LGBTIQ issues.

    Nor is there a national LGBTIQ Advisory Committee to help present views from the full diversity of LGBTIQ communities across the country.

    While all should, in my view, be created, perhaps the most important is the advisory committee – because perhaps, had the Commonwealth Government an existing consultative mechanism, they may have already taken action to address the rise of right wing anti-LGBTIQ extremism, rather than left us feeling like we’re on our own.

    Thank you in advance you your consideration of this submission. Please do not hesitate to contact me, at the details provided, if you require clarification or additional information.

    Sincerely

    Alastair Lawrie 

    Neo-Nazis turn up to an anti-trans rally on the steps of Victorian Parliament, March 2023.

    Commonwealth 2024-25 Pre-Budget Submission on LGBTIQ Priorities

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    Pre-Budget Submissions

    Treasury

    Langton Cres

    Parkes ACT 2600

    Submitted via email: PreBudgetSubmissions@treasury.gov.au

    Thursday 25 January 2024

    To whom it may concern

    Supporting the Equality and Human Rights of the LGBTIQ Community

    Thank you for the opportunity to provide this short submission to inform the Commonwealth Government’s development of its 2024-25 Budget.

    I do so as a long-standing advocate on behalf of the lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) community.

    In this capacity I submit the following four priorities for increased funding to support the realisation of equality and other fundamental human rights of LGBTIQ Australians.

    1. Commissioner for Sexual Orientation, Gender Identity and Sex Characteristics at the Australian Human Rights Commission (AHRC)

    The Commonwealth Government should fund the creation of a Commissioner for Sexual Orientation, Gender Identity and Sex Characteristics (SOGISC) within the AHRC.

    Currently, there are Commissioners for:

    • Race
    • Sex
    • Disability
    • Age
    • Aboriginal and Torres Strait Islander Social Justice
    • Children, and
    • Human Rights.

    However, when discrimination on the basis of sexual orientation, gender identity and intersex status was prohibited through passage of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, no equivalent position was established for our community.

    The consequence of this omission is that responsibility within the AHRC for advocating on discrimination affecting LGBTIQ people has floated variously between the President, Human Rights Commissioner and Sex Discrimination Commissioner – with no permanent home, and therefore no sustained focus on the realisation of LGBTIQ human rights.

    At the moment, responsibility for what is sometimes called the ‘LGBTIQ portfolio’ lies with Sex Discrimination Commissioner Anna Cody, who is somehow supposed to deal with the myriad issues affecting LGBTIQ Australians after they have addressed discrimination affecting women. They are supported in targeting LGBTIQ discrimination by just one dedicated full-time adviser, in contrast to the full team of advisers that support Commissioners on other topic areas.

    This situation is simply not good enough. LGBTIQ equality and human rights deserve the same attention as other cohorts. This should be rectified by:

    • Funding the creation of a stand-alone Commissioner for Sexual Orientation, Gender Identity and Sex Characteristics within the AHRC
    • Supported by a team of advisers of the same size, and with the same resourcing, as existing Commissioners for Race, Disability and Age Discrimination.

    2. National Strategy Against Anti-LGBTIQ Prejudice

    The past 12 months have seen a dramatic escalation in anti-LGBTIQ violence and vilification across Australia, including:

    • The TERF and neo-Nazi rally against trans people in Melbourne in March 2023
    • The religious fundamentalist (‘Christian Lives Matter’) riot against queer protestors in Sydney in March 2023, and
    • Fascist and far-right attempts to intimidate and shut down queer and queer-related community events, including drag story times, around the country.

    As far as I am aware, there has been no formal, co-ordinated Commonwealth Government response to the rise of anti-LGBTIQ extremism during this time.

    This stands in contrast to the Government’s commitment to addressing racism, including through its funding for and support of the development of a National Anti-Racism Framework (with work being undertaken by the AHRC).

    Indeed, Commonwealth Minister for Multicultural Affairs Andrew Giles MP cited neo-Nazi incidents as a justification for the Anti-Racism Framework. As reported by the Guardian:[1]

    “There have been at least two neo-Nazi incidents on the streets of Melbourne in recent times, and that lends a sense of urgency.” It was “more important than ever to have a society that is anchored in a sense that we all deserve to be valued.”

    This overlooks the fact that, as noted above, one of, if not the most, prominent neo-Nazi event in 2023 was the TERF and neo-Nazi rally against trans rights on the steps of Victorian Parliament in March 2023.

    If that incident provides justification for an Anti-Racism Framework, surely it must also provide justification, and motivation, for the Commonwealth Government to fund and develop a National Strategy Against Anti-LGBTIQ Prejudice.

    After all, LGBTIQ Australians, and especially trans and gender diverse Australians, also ‘deserve to be valued’.

    3. Gender affirming healthcare

    Trans and gender diverse Australians should have the ability to live their authentic lives. For many, although not all, this involves accessing gender affirming healthcare, including (but not limited to) hormone treatments and gender affirmation surgical procedures.

    However, for far too many trans and gender diverse people, this health care is financially out of reach, with prohibitive out-of-pocket costs attached to hormones, surgeries and other services.

    This is a denial of the fundamental right to healthcare for people on the basis of who they are. It also carries significant consequences, with this lack of access contributing to higher rates of mental health issues, depression and even self-harm.

    Gender affirming healthcare can be life-saving – while its denial can have the opposite outcome. This healthcare is not elective, but essential, and should be funded as such.

    The Commonwealth Government should therefore use the 2024-25 Budget to remove out-of-pocket costs for gender affirming healthcare, including hormones, surgeries and other medical services which assist trans and gender diverse people live authentically.

    4. A National Intersex Community-Controlled Healthcare Service

    Finally, I am aware of a Pre-Budget Submission from Intersex Human Rights Australia (IHRA), which includes the following recommendation:

    That the government provides $2,100,000 in annual resourcing to develop and sustain an intersex community-controlled healthcare service, to support the provision of biopsychosocial health and medical services for people with innate variations of sex characteristics and families, and support provision of policy advice to government. The service will be developed and run by Intersex Human Rights Australia, which currently provides advocacy and pilot psychosocial support services [emphasis in original].

    I unreservedly endorse this call. The health needs of the intersex community are currently not being met by the Australian healthcare system, with manifestly inadequate resourcing undermining health outcomes for many intersex people.

    IHRA is well-placed to contribute to the process of addressing these shortcomings, with what is a modest sum of money. As noted in their Pre-Budget Submission:

    This proposal ensures that IHRA can support the currently unmet healthcare needs of children, parents and carers, prospective parents, and adults, across the lifespan, and beyond current funding arrangements. It incidentally seeks to ensure the sustainability of IHRA as an intersex community-controlled healthcare service provider…

    It is my sincere hope funding can be found for this initiative in the upcoming Budget.

    Please do not hesitate to content me, at the details provided, should you require additional information in relation to this submission.

    Thank you in advance to taking these priorities into consideration.

    Sincerely

    Alastair Lawrie

    Will Treasurer Jim Chalmers deliver on any of the above four priorities in Tuesday’s Budget?

    [1] ‘Labor to speed up new anti-racism strategy amid voice and Israel-Hamas war tension’, Guardian Australia, 20 October 2023: https://www.theguardian.com/australia-news/2023/oct/20/labor-to-speed-up-new-anti-racism-strategy-amid-voice-and-israel-hamas-war-tensions

    The Year the Commonwealth Government Went MIA on LGBTIQ Issues

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    [I wrote this piece about 10 days ago, in the lead-up to the anniversary of the horrific events at Victorian Parliament in March last year. Unfortunately, it wasn’t picked up by media outlets – but the past week has made these comments even more urgent, so I am publishing it here.]

    One year ago last Monday (on Saturday 18 March 2023), Australians witnessed the horrific sight of neo-Nazis turning up to an anti-trans rally on the steps of Victorian Parliament, holding a banner saying ‘destroy paedo freaks’ and performing Nazi salutes.

    It was a chilling reminder of the serious threat posed by right-wing extremism to LGBTIQ communities in general, and trans and gender diverse people in particular.

    Rather than being a one-off, that awful anti-LGBTIQ spectacle was just the first in a long line of rallies and related hate speech threatening our communities over the past 12 months.

    Within days, so-called ‘Christian Lives Matter’ members engaged in what can only be described as a riot against peaceful LGBTIQ protestors (and NSW Police) in the Sydney suburb of Belfield.

    April onwards saw a dramatic rise in threats of violence and intimidation by right-wing extremists across the country, directed to local councils and libraries holding Drag Story Times.

    Most recently, the ABC was forced to cancel a Drag Story Time that was to be held in conjunction with the Sydney Gay & Lesbian Mardi Gras following death threats against their employees.

    The attacks on our communities have been terrifying. They have been relentless. And they are part of a disturbing international trend of intolerance.

    But where has the Commonwealth Government been when we have needed their leadership? 

    They were quick to introduce legislation to ban the display of Nazi hate symbols, later amended to also prohibit the Nazi salute. This was welcome, but addresses only part of the problem.

    A group of thugs intimidating trans people with a banner saying ‘destroy paedo freaks’ is a serious issue irrespective of what clothes they wear, flags they fly or salutes they perform.

    Sadly, though, we have not seen the Albanese Government respond to the rise in anti-LGBTIQ right-wing extremism with the seriousness it deserves. 

    We have not seen or heard clear and consistent condemnation of growing homophobia, biphobia and transphobia, or even of the violent threats against community events.

    There has been no commitment to introduce much-needed Commonwealth laws prohibiting anti-LGBTIQ vilification.

    And no open engagement with LGBTIQ communities about the threats we face, or additional funds committed to help with our safety.

    Instead, it has been left to unfunded groups like Rainbow Community Angels, who attempt to make events like Drag Story Time a safe place for attendees, to stand up against the far-right, unassisted.

    It’s possible the Government would say that primary responsibility for these issues lies with states and territories, but these are problems that call for national leadership.

    By contrast, faith communities have been actively engaged and largely supported when they have raised concerns about intolerance. 

    Government representatives, from Prime Minister Albanese down, have spoken up in recent months against religious hate speech, particularly in the form of anti-semitism. The Government has made repeated promises to introduce religious vilification laws, expected to be tabled within weeks.

    [NB Since this piece was written, the Government has confirmed it is pushing ahead with these amendments, separate to the Religious Discrimination Bill and any Sex Discrimination Act changes, meaning it may be the only part of those overall reforms that actually pass.]

    And $40 million in Commonwealth funding for the safety of religious organisations was announced by Attorney-General Mark Dreyfus last May (on the International Day Against Homophobia, Biphobia and Transphobia no less).

    The LGBTIQ community can’t even convince the Government to create and appoint a stand-alone LGBTIQ+ Discrimination Commissioner at the Australian Human Rights Commission. LGBTIQ issues remain a part-time, ad hoc responsibility of the Sex Discrimination Commissioner.

    Promises to address anti-LGBTIQ vilification, and funding for LGBTIQ community safety, remain nowhere to be seen.

    I’m a 45-year old cis gay man. I grew up in Joh Bjelke-Petersen’s Queensland, and survived five years at a deeply homophobic religious boarding school. Coming out of, and coming out after, that environment was tough.

    But the rise in overt, targeted, public bigotry over the past 12 months has left me feeling less safe than at any time since the 1990s.

    What has made things worse is the silence and inaction of the Albanese Government. This has left me, and many others in our community, feeling forgotten too.

    Source: Herald Sun.

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    The Commonwealth Sex Discrimination Act has included LGBTI Australians for a decade. But it still fails to protect too many LGBTI people against mistreatment.

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    Commonwealth Parliament passed the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 ten years ago today.

    This was historic legislation, finally offering federal anti-discrimination protections to lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians.[i]

    And it was long overdue, more than 30 years after NSW became the first jurisdiction in Australia to prohibit discrimination on the basis of homosexuality, way back in 1982.

    But, even at the time of passage it was clear these Sex Discrimination Act amendments were incomplete, and their limitations have only become more apparent in the decade since.

    Here then are some[ii] of the key short-comings which need to be addressed in order for the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 to live up to its potential.

    1. Replace the protected attribute of intersex status with sex characteristics

    The 2013 amendments meant Australia became one of the first jurisdictions in the world to offer anti-discrimination protections to intersex people. It did so by the inclusion of ‘intersex status’ as a protected attribute, defined as:

    ‘the status of having physical, hormonal or genetic features that are:

    (a) neither wholly female nor wholly male; or

    (b) a combination of female and male; or

    (c) neither female nor male.’

    This terminology (intersex status) and associated definition are no longer considered best practice, with peak body Intersex Human Rights Australia advocating for its replacement with ‘sex characteristics’, which was recently defined in amendments to the Queensland Anti-Discrimination Act 1991 in the following way:

    ‘sex characteristics, of a person, means the person’s physical features and development related to the person’s sex, and includes-

    (a) genitalia, gonads and other sexual and reproductive parts of the person’s anatomy; and

    (b) the person’s chromosomes, genes and hormones that are related to the person’s sex; and

    (c) the person’s secondary physical features emerging as a result of puberty.’

    Fortunately, the Commonwealth Government has actually committed to making this change – Industrial Relations Minister Tony Burke promised to replace intersex status with sex characteristics in Parliament in November 2022.[iii]It’s time for the Albanese Government to follow through on this commitment.

    2. Protect LGBTQ students in religious schools against discrimination

    It is appalling that, in 2023, Commonwealth anti-discrimination laws – which are supposed to protect LGBTI Australians – instead continue to allow religious schools and colleges to discriminate against some of the most vulnerable among us.

    The special privileges permitting religious schools to mistreat LGBTQ young people in myriad ways (from refusing to enrol, through to suspension, expulsion and other forms of punishment, as well as an almost unlimited variety of differential treatment to their cis-het counterparts) were never justified. But they look especially archaic, and abhorrent, today.

    All students have the right to education, and must be allowed to exercise this right in safety. And because any student, in any school, can be LGBTQ, all schools must be LGBTI-inclusive.

    Once again, the Albanese Government has promised to protect LGBTQ students against discrimination. However, rather than simply following the precedents of multiple states and territories which have already legislated to protect LGBTQ kids – some for more than two decades – they chose to refer the issue of the exceptions enjoyed by religious schools to the Australian Law Reform Commission in November 2022 for a six-month inquiry.

    Disappointingly, in April 2023, Attorney-General Mark Dreyfus announced that this inquiry was being extended until 31 December 2023. As a result, LGBTQ Year 12 students in 2023 will not be protected against discrimination before they leave school (despite both major parties promising to do so since October 2018, when they were only in Year 7). And another class will likely start, in 2024, still not protected against discrimination on the basis of who they are.

    This simply isn’t good enough.

    3. Protect LGBTQ teachers in religious schools against discrimination

    Of course, LGBTQ students are not the only people in religious schools and colleges who deserve protection against mistreatment. So too do LGBTQ teachers and other workers.

    Teachers should be judged simply according to their ability to teach – not their sexual orientation and/or gender identity.

    This would not only benefit LGBTQ teachers, who would finally enjoy the same ability to apply for jobs, and promotions, across their industry as cis-het teachers, and would also be free to focus on teaching rather than having to hide in the closet and spend time and emotional energy worrying about whether they will be outed, and sacked as a result.

    But it would benefit students too, who would be taught by the best person for the job (not the best cis-het person), and learn from LGBTQ teachers not distracted by the ever-present threat of discrimination. For LGBTQ students, out teachers also offer the prospect of role modelling what a happy life might look like, reducing their potential isolation.

    The imperative to remove the ability of religious schools to discriminate against teachers on the basis of their sexual orientation and/or gender identity is only strengthened when we consider the massive sums of taxpayer money – ourmoney – given to these institutions.

    Yet again, the Albanese Government has promised to remove the special privileges which allow religious schools to discriminate against LGBTQ workers. But, as with LGBTQ students, the possible protection of LGBTQ teachers has been held up by the lengthy extension to the ALRC inquiry.

    LGBTQ teachers shouldn’t have to wait until 2024, or beyond, to enjoy protection against discrimination in the workplace. They should be allowed to focus on lesson plans and marking, not planning how to mask their sexual orientation or gender identity.

    4. Protect LGBTQ workers in Government-funded aged care services operated by religious organisations

    One of the best provisions of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (Cth) was new sub-section 37(2)(a) which states that the Act’s general religious exception (contained in sub-section 37(1)(d):

    ‘does not apply to an act or practice of a body established for religious purposes if… the act or practice is connected with the provision, by the body, of Commonwealth-funded aged care.’

    In effect, nearly all aged care services across Australia are now prohibited from discriminating against people accessing those services on the basis of their sexual orientation and/or gender identity. In other words, LGBTQ people in all Government-funded aged care services are legally protected against discrimination.

    The fact this provision has operated successfully, for a decade, demonstrates that special privileges allowing discrimination by religious organisations delivering what are essentially public services are unnecessary, and should be removed.

    We should start by repealing sub-section 37(2)(b),[iv] which still allows faith-based aged care services to discriminate against LGBTQ workers.

    All of the arguments which applied to LGBTQ teachers in religious schools, outlined above, also apply to LGBTQ aged care workers. This includes ensuring that the best person for the job is hired, not just the best cis-het person, allowing LGBTQ aged care workers to focus on the important task of delivering care to the elderly rather than worrying about being discovered, and allowing LGBTQ people accessing aged care to see openly-LGBTQ people looking after them.

    5. Remove the general religious exception in section 37(1)(d) of the Sex Discrimination Act entirely

    The same arguments which apply to LGBTQ students, teachers and aged care workers, also apply to LGBTQ people accessing services and employees across a broad range of other public services – such as disability, health, housing and other community services – which have been increasingly outsourced by state, territory and commonwealth governments over recent years.

    All people accessing these services should be free to do so without having to fear discrimination on the basis of their sexual orientation and/or gender identity.

    All workers in these industries should have the right to be judged on their ability to perform their role, not on who they are or how they identify. 

    Several Australian states and territories have already reformed their anti-discrimination laws to narrow their general religious exceptions along these lines, including Tasmania, Victoria, the ACT and NT, while Queensland and Western Australia have in-principle commitments to implement law reform recommendations achieving the same.[v] It’s time for Commonwealth Parliament to catch up.

    Importantly, even if the general religious exception in sub-section 37(1)(d) of the Sex Discrimination Act 1984 (Cth) were removed, religious organisations would continue to enjoy the right to religious freedom through sub-sections (a), (b) and (c), which cover the training and appointment of ministers of religion, and selection of other people to perform functions in connection with religious observances or practices.

    6. Prohibit vilification against LGBTI Australians

    One major gap which exists in the Sex Discrimination Act, and which unfortunately was not addressed by the historic 2013 amendments, is a lack of Commonwealth prohibition on vilification on the grounds of sexual orientation, gender identity and sex characteristics.

    The first half of 2023 has comprehensively demonstrated why such nation-wide prohibitions are essential, with TERFs and neo-Nazis rallying against trans rights on the steps of Victorian Parliament, the Christian Lives Matter riot against LGBTIQ protestors in Sydney, and growing threats of violence and intimidation against drag story time and other local LGBTIQ community events across several jurisdictions.

    Disappointingly, there has so far been no national response to the anti-LGBTI substance of these developments. 

    The Albanese Government has instead proposed legislation banning the display of Nazi symbols which, while obviously welcome, in the absence of LGBTI vilification laws raises the following question: is anti-LGBTI hate speech acceptable as long as the people engaging in it aren’t wearing Nazi uniforms?

    What has been happening so far this year is nothing short of a national crisis. What we need is a national response, including the introduction of Sex Discrimination Amendments prohibiting vilification against LGBTI Australians, equivalent to section 18C of the Racial Discrimination Act 1975 (Cth).

    7. Create and appoint a Commissioner for Sexual Orientation, Gender Identity and Sex Characteristics

    The dire situation confronting LGBTI Australians in 2023 has highlighted another structural weakness in our anti-discrimination framework – the lack of a stand-alone independent Commissioner for Sexual Orientation, Gender Identity and Sex Characteristics within the Australian Human Rights Commission.

    This absence puts LGBTI people at a distinct disadvantage compared to other groups for which dedicated Commissioners have been created, including:

    • Race
    • Sex
    • Disability
    • Age
    • Children
    • Aboriginal and Torres Strait Islander Social Justice, and
    • Human Rights.

    Responsibility for LGBTI issues has instead been seen as an ‘add-on’, with the portfolio at various times being held by the Human Rights Commissioner, Sex Discrimination Commissioner and even the President (where it currently sits, although it will likely revert to the Sex Discrimination Commissioner when a replacement for Kate Jenkins is appointed).

    But as an ‘add-on’, it never receives the same level of attention as other portfolios, nor the same amounts of funding and resources.

    This lower relative prioritisation of LGBTI rights can be seen in the Commission’s muted response to the disturbing developments in the first half of 2023 – as far as I can tell, there have been no media releases or other public policy contributions in response to the TERF and neo-Nazi rally, Christian Lives Matter riot, or escalating wave of anti-LGBTI threats around the country.

    Our community is under attack, and Australia’s national human rights institution does not appear to be coming to our defence.

    The most straight-forward way to remedy this would be to address the structural weakness which has contributed to it – and that is by creating, and urgently appointing, a stand-alone independent Commissioner for Sexual Orientation, Gender Identity and Sex Characteristics within the AHRC.

    NB This post is written in a personal capacity, and does not reflect the views of employers past or present, nor of any community organisations with which I am involved.

    Commonwealth Attorney-General Mark Dreyfus, who has responsibility for the Sex Discrimination Act 1984 (Cth), and who therefore has responsibility for amending it to better protect LGBTI Australians.

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

    Footnotes:

    [i] Although the Commonwealth Fair Work Act had offered limited protections to LGB workers, on the basis of ‘sexual preference’, from 2009.

    [ii] This is by no means an exhaustive list of the Act’s faults. Other issues which should be addressed include narrowing the exceptions applying to transgender and intersex people in sport, as well as removing the exceptions relating to data collection.

    [iii] During debate on legislation that finally included gender identity and intersex status as protected attributes in the Fair Work Act for the purposes of adverse action and unlawful termination provisions.

    [iv] Which clarifies that the protection of LGBTQ people in relation to aged care services operated by faith bodies only applies where ‘the act or practice is not connected with the employment of persons to provide that aged care.’

    [v] From the Queensland Human Rights Commission and WA Law Reform Commission respectively.

    The ALP has cut back on LGBTIQ policy commitments in its party platform. Again.

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    In 2015 and 2018, under then-Leader Bill Shorten, the Australian Labor Party adopted national party platforms with wide-ranging policy commitments on LGBTIQ issues. These helped to inform the promises taken to the federal elections in the following years, which were similarly-broad in scope.

    In 2021, the ALP, under Shorten’s replacement Anthony Albanese, adopted a much more narrowly-drafted party platform, which involved jettisoning some previously-held LGBTIQ policies (although a few of these were restored via conference resolutions from the floor). This was then reflected in an relatively narrow range of LGBTIQ promises at the May 2022 election.

    With the next ALP National Conference coming up in Brisbane on August 17-19 2023, this week the Party’s national policy forum released its draft Platform for public consultation.

    Unfortunately, the LGBTIQ policy commitments it contains have been pared back even further than the already-limited 2021 offerings, including in the following key areas:

    1. The draft platform axes previous support for LGBTIQ vilification protections

     The 2021 National ALP Platform includes a commitment that:

    ‘Labor will work closely with LGBTIQ Australians and advocates to develop policy that will…

    b. strengthen laws and expand initiatives against discrimination, vilification and harassment on the basis of sexual orientation, gender identity or sex characteristics.’ (p64).

    The 2023 draft Platform instead includes the general statement that: ‘Labor will work closely with LGBTIQ+ Australians and advocates to develop policy that meets the specific needs of the community to ensure equality with broader Australian society.’ (p56).

    This clause is so generic, and so bland, as to be almost meaningless.

    It is difficult to comprehend why previous ALP support for vilification protections has been axed in the current political climate, with TERFs and neo-Nazis rallying on the steps of Victorian Parliament, Christian Lives Matter rioting in Sydney, Mark Latham being Mark Latham, and escalating violent threats against local councils hosting Drag Story Time events (and LGBTIQ community events more broadly).

    What makes this axing even worse is that, just two pages later, under the heading ‘Freedom of thought, conscience and religion’, the 2023 draft Platform actually retains its previous commitment from the 2021 Platform for Commonwealth religious vilification laws:

    ‘Labor believes that people of faith deserve the same human rights, equality, respect and safety as every other Australian. No Australian should ever be vilified, discriminated against or subjected to violence or threats of violence because of that person’s religion or religious belief. Labor will work to ensure that Australia’s anti-vilification laws and discrimination framework are fit for purpose.’ (p58).

    Those are strong sentiments. I, and I’m sure many other LGBTIQ Australians, could perhaps suggest another community, currently under sustained attack from far-right extremists, who could perhaps do with a similar expression of support…

    But the piece de resistance of this shameful situation is that the draft Platform actually repeats the promise of religious vilification laws on the following page for a second time:

    ‘Labor believes that people of faith deserve the same human rights, equality, respect and safety as every other Australian. No Australian should ever be vilified, discriminated against or subjected to violence or threats of violence because of that person’s religion or religious belief. Labor will therefore ensure that Australia’s anti-vilification laws are fit for purpose.’ (p59).

    So, the draft 2023 ALP Platform axes support for LGBTIQ vilification protections, at a time when we need them more than ever, while promising it to people of faith. Twice.

    That’s the opposite of great.

    2. The draft platform axes previous support for affordable trans health care

    The 2015 and 2018 ALP National Platforms included commitments to, where possible, reducing out-of-pocket medical costs for gender-affirming health care.

    While this was cut from the official platform in 2021, a conference resolution was passed which included the following:

    ‘Labor acknowledges the needs and rights of transgender and gender diverse people to fair, equal and affordable access to health care services. For many, this many include accessing vital specialist health services and gender-affirming medical technologies. Labor commits to removing, wherever possible, barriers to accessing these services in consultation with medical experts and government.’ (p140).

    That statement appears to have been significantly cut back, reappearing in the following form in the 2023 draft:

    ‘Labor supports queer, transgender and gender diverse Australians and their families, and will work to support their agency in health decisions. Labor will provide access to the vital health and support services LGBTIQ+ Australians need.’ (p44).

    Worryingly, this redrafted clause removes any specific reference to the affordability of trans health care, which is really the point: far too many trans and gender diverse people are currently blocked from accessing the care they need because they simply cannot afford it.

    3. The draft platform axes most intersex-specific commitments

    Intersex Australians fare even worse than their trans and gender diverse counterparts in the draft 2023 Platform.

    The 2021 version included a commitment to: ‘support intersex-led organisations to provide support to intersex persons and their families, and advocate on intersex issues.’ (p64).

    The 2021 conference also passed multiple resolutions from the floor, including statements that:

    ‘Labor will recognise the bodily integrity of intersex persons, prohibiting modifications to the sex characteristics of people with innate variations of sex characteristics performed for social or cultural reasons, and ensuring respect for intersex persons right not to undergo sex normalisation treatment. Labor commits to supporting the development and implementation with community participation of human-rights affirming oversight and standards of care, including for accessing lifetime medical treatments and procedures.’ (p140).

    and

    ‘Labor will ensure that the actions of a Federal Labor Government are informed by the Yogyakarta Principles on the Application of International Human Rights Law in Relation to sexual orientation, gender identity, gender expression and sex characteristics and the Plus 10 Supplementary Principles. Further, Labor acknowledges the Darlington Statement as a guide to intersex policy responses within Australia.’ (p142).

    As far as I can tell, not one of these commitments made it into the draft 2023 Platform. This is deeply troubling given the human rights abuses experienced by intersex Australians aren’t just the worst of those affecting the LGBTIQ community, they are some of the worst affecting any group in Australia.

    4. The draft platform fails to support an LGBTIQA+ Human Rights Commissioner at the Australian Human Rights Commission

    One area where the draft Platform hasn’t gone backwards from 2021 is on the question of a stand-alone, dedicated Commissioner for Sexual Orientation, Gender Identity and Sex Characteristics at the Australian Human Rights Commission (AHRC) – because neither version commits to creating this much-needed role.

    However, the 2015 and 2018 platforms did, with the Shorten Labor Opposition promising to introduce one at both the 2016 and 2019 federal elections.

    Recent events have, I believe, demonstrated the urgent need for such a position. Unfortunately, in the absence of an LGBTIQA+ Commissioner, the AHRC has not issued any media releases in response to the TERF and neo-Nazi rally, Christian Lives Matter riot, or escalating threats of violence against Drag Story Times.

    The LGBTIQ community is under attack, and it feels like nobody federally is on our side.

    Instead of seeking to rectify this situation, the draft 2023 Platform offers this acceptance of the unsatisfactory status quo: ‘Labor supports the Australian Human Rights Commission and its commissioners, including the important work they do to promote a more inclusive and respectful society.’ (p59).

    We need an LGBTIQA+ Commissioner, and we need it yesterday.

    Who knows, perhaps if there already was such an office-holder, the people responsible for drafting the consultation version of the 2023 national platform might have done a better job at understanding the need for more, and more-detailed, LGBTIQ policy commitments?

    *****

    If you haven’t guessed by now, I am genuinely disappointed (#understatement) by the draft national ALP platform released this week, and its omission of key policy commitments affecting the LGBTIQ community.

    Beyond that, I am perturbed by the thought process that must have gone into the decision to cut support for things like LGBTIQ vilification protections, at a time of growing threats of violent extremism against our community.

    The four issues outlined above are just those I have identified today. I am sure there will be others, affecting different parts of our community, which will become apparent in the coming days.

    But there is an urgency to this analysis, because the draft platform is only open for public consultation until 23 June (ie just over three weeks away).

    You can find the draft 2023 platform, and consultation form, at this link: https://alp.org.au/2023-draft-Platform

    You can find the 2021 Platform for comparison, including to see which previous LGBTIQ commitments have been axed, here: https://www.alp.org.au/about/national-platform/

    It’s time to get writing – and get lobbying – because what the ALP national policy forum has released this week is simply not good enough on LGBTIQ issues.

    Anthony Albanese at the 2021 ALP National Conference.

    LGBTIQ Law Reform Priorities for 2023

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    Yes, I acknowledge it’s early April (and a lot has already happened this year, including Better Together in Adelaide, Sydney World Pride, TERF tours, neo-Nazi rallies, Christian Lives Matter riots and Mark Latham being, well, Mark Latham ie a homophobic and transphobic bigot).

    But there’s still plenty of 2023 yet to come. I would therefore like to take this opportunity to set out what I think are, or should be, some of the law reform priorities for the lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) community in Australia.

    1. Ending non-consenting surgeries and other harmful medical interventions on children born with variations of sex characteristics

    The ongoing mistreatment of intersex kids, which includes egregious violations of the fundamental right to bodily autonomy, remains the worst human rights abuses against any part of the LGBTIQ community.

    Thankfully, on this issue we have started 2023 with good news – on 22 March, the Australian Capital Territory Government introduced the Variation in Sex Characteristics (Restricted Medical Treatment) Bill 2023.

    Once passed, the ACT will become the first jurisdiction in Australia to prohibit many of these non-consenting surgeries and other harmful medical interventions.

    This achievement obviously reflects the leadership of ACT Chief Minister Andrew Barr, and his Government. But above all, it is a tribute to the relentless advocacy of Intersex Human Rights Australia, its tireless Executive Director Morgan Carpenter, and the intersex community and movement more broadly.

    However, even after this historic legislation is implemented, there will remain seven other states and territories where children born with variations of sex characteristics are not protected.

    October 2023 will mark ten years since the Final Report of the Senate Inquiry into ‘Involuntary or coerced sterilisation of intersex people in Australia’, which first recommended such surgeries should end. At the current rate – of one jurisdiction legislating every ten years – it will take until 2093 before all intersex children are protected around the country.

    That is clearly not good enough. We need the Governments of New South Wales, Victoria, Queensland, Western Australia, South Australia, Tasmania and the Northern Territory to follow the lead of the ACT and urgently introduce their own Bills to outlaw these abhorrent practices.

    2. Reforming trans birth certificate laws in NSW, Queensland and WA

    It is appalling that, in 2023, trans and gender diverse people in NSW and Queensland are still required to undergo genital surgery in order to update identity documents, including birth certificates, to reflect their gender identity. WA is almost as bad – trans people there must demonstrate they have engaged in some form of physical treatment (which may include genital surgery, top surgery and/or hormone treatment), to do the same.

    As with the issue of intersex surgeries, on trans birth certificates we start 2023 with good news – in two of these three jurisdictions anyway.

    The Queensland Government has introduced the Births, Deaths and Marriages Registration Bill 2022 which, once passed, will remove all requirements for genital surgery, as well as other forms of medical treatment or approval from psychologists or counsellors. I urge the Queensland Parliament to pass this vital law as quickly as possible.

    The WA Government meanwhile has publicly committed to abolish their Gender Recognition Board, and remove the serious barriers which confront trans and gender diverse people who simply want identity documents to accurately reflect their identity. Hopefully, the WA reform Bill can be developed, introduced and passed before the end of this year.

    Which just leaves NSW – and, assuming both the above Bills do pass, will leave NSW as the only jurisdiction in Australia which mistreats its trans and gender diverse community in this way.

    While March saw a change of Government in NSW, the new Minns Labor Government has not made specific commitments to change the laws here. Their response to a question on this topic in the LGBTIQ pre-election community survey, led by ACON, only noted ‘Labor will review these provisions in consultation with the community and trans and gender diverse communities’.

    There is therefore a need for significant community pressure to be applied on the NSW Government to reform trans birth certificate laws as a matter of priority – and that pressure should come not just from the trans and gender diverse community, but also from cisgender allies who support trans human rights.

    For more on this subject, see: Did You Know? Trans People in NSW and Queensland Still Require Surgery to Update Their Birth Certificates.

    3. Banning conversion practices nation-wide

    As at April 2023, only two Australian jurisdictions have prohibited sexual orientation and gender identity conversion practices generally: Victoria and the ACT.

    A third, Queensland, has only done so in health settings, which means the places where conversion practices primarily occur – religious settings – are not covered.

    Therefore, we need 6 of 8 Australian states and territories to either introduce, or upgrade, bans on conversion practices.

    There are signs of movement in at least some of those jurisdictions:

    • The Western Australian Government promised in December 2022 that it would introduce legislation banning conversion practices (although some of the language used at the time suggested it may follow the flawed Queensland approach, rather than the more comprehensive Victorian and ACT models), and
    • The Tasmanian Government has also committed to implement the recommendations of a Tasmanian Law Reform Institute inquiry into conversion practices (although there have been some delays in the introduction of its legislation).

    Meanwhile, the newly elected Labor Government in NSW sent mixed signals on conversion practices during the recent state election campaign. After first promising to ban conversion practices outright, the now-Premier Chris Minns later indicated it may not apply to religious settings, telling faith leaders that:

    ‘Taking offence at the teachings of a religious leader will not be banned, expressing a religious belief through sermon will not be banned, and an individual, with their own consent, seeking guidance through prayer will not be banned either.’

    Advocates will need to spend considerable time explaining to Minns and his Cabinet colleagues why such a limited ban would be almost pointless in addressing the serious harms caused by conversion practices.

    At this stage, I am unaware of current proposals in either South Australia or the Northern Territory to prohibit conversion practices – if you know more, please add the details in the comments section, below.

    Let’s hope all six jurisdictions named (NSW, Queensland, WA, SA, Tasmania and the NT) take concrete steps this year to consign conversion practices to history (I was going to add ‘… where they belong’, but really, conversion practices have always been torture, and were never acceptable).

    4. Modernising LGBTIQ anti-discrimination laws

    2022 ended with two important developments in Australian LGBTIQ anti-discrimination legislation. The first saw the NT Parliament pass a major update to its Anti-Discrimination Act 1992, including covering non-binary and intersex people for the first time, and finally protecting LGBTQ teachers in religious schools against discrimination.

    The second was the Commonwealth Government amending the Fair Work Act 2009 to explicitly include gender identity and intersex status as protected attributes for the purposes of adverse action and unlawful termination protections (after more than four years of campaigning, by myself and others, including Intersex Human Rights Australia and Just.Equal Australia).

    Nevertheless, there remains a long way to go before the patchwork of our anti-discrimination laws finally ensure all LGBTIQ people, all around the country, can live our daily lives free from the threat of discrimination just because of who we are.

    In (the remainder of) 2023, some of the main areas of activity will include:

    Commonwealth

    At Commonwealth level, the primary focus is obviously the Australian Law Reform Commission inquiry into religious exceptions allowing discrimination against LGBTQ students and teachers at religious schools, which is currently due to report on 21 April. Demanding that any subsequent Bill passed protects students and teachers, without allowing discrimination via alternative means, is essential.

    But it is by no means sufficient. We also need to reform religious exceptions under the Sex Discrimination Act 1984more broadly, to ensure LGBTQ people accessing services, and LGBTQ workers, are not discriminated against by faith-based bodies across a range of public services, including health, housing, disability, welfare and other community services. As well as lobbying to include similar reforms to protect LGBTQ workers in the Fair Work Act(which also has incredibly broad religious exceptions), including via the Commonwealth Government’s Employment White Paper process.

    New South Wales

    Regular readers of this blog will be aware that the NSW Anti-Discrimination Act 1977 is the worst LGBTIQ anti-discrimination law in Australia. It fails to protect bisexual people. And non-binary people. And intersex people. It has the broadest exceptions allowing discrimination against LGBTQ students. And teachers. And the broadest religious exceptions generally. (For more background, see: What’s Wrong With the NSW Anti-Discrimination Act 1977?)

    While the previous Government effectively ignored these problems, the new NSW Government has at least agreed to refer the Act to the NSW Law Reform Commission for comprehensive review. This review needs to take place as quickly as possible, as does any legislation which emerges from it, to finally drag the NSW Anti-Discrimination Act into the 21st century.

    Queensland

    Queensland’s Anti-Discrimination Act 1991 is already much better than NSW’s – and, by the end of 2023, it’s LGBTIQ anti-discrimination laws should move even further ahead (and approach those of Tasmania, Victoria and the ACT which are now the best in the country). That’s because the Bill updating trans birth certificate requirements, described earlier, also modernises the definition of gender identity, to protect non-binary people, and introduces a new protected attribute of sex characteristics.

    Even more significantly, the Government has agreed in-principle to all of the recommendations of last year’s review of the Anti-Discrimination Act by the Queensland Human Rights Commission, and vowed to introduce a new Act by the end of this year. That Bill should finally remove the ‘Don’t Act, Don’t Tell’ regime which still applies to LGBTQ teachers in Queensland’s religious schools, and replace it with a system where teachers are judged on their ability, not their sexual orientation or gender identity.

    Western Australia

    Western Australia has much, much worse LGBTIQ anti-discrimination laws than Queensland – indeed, they are almost as bad as NSW’s – but they are on track to make a great leap forward this year. The WA Government has similarly accepted the recommendations of its own Law Reform Commission review of the Equal Opportunity Act 1984, including to ensure all trans and gender diverse people, as well as intersex people, are finally covered, and to modernise its approach to religious exceptions, including to protect LGBTQ students and teachers in religious schools. This legislation needs to be introduced and passed as a matter of priority – because LGBTIQ people in WA have waited for far too long already to enjoy effective anti-discrimination laws.

    South Australia

    The only Australian jurisdiction which does not already unequivocally protect LGBTQ students and teachers in religious schools against discrimination and which also does not have at least a process in place (or promised) that could lead to these exceptions being removed is South Australia. It’s time for the South Australian Government to take urgent steps to remedy this situation.

    For comparative analysis of LGBTIQ anti-discrimination laws around the country, see: A Quick Guide to Australian LGBTI Anti-Discrimination Laws.

    5. Protecting LGBTIQ people against vilification

    The same NT laws which modernised their Anti-Discrimination Act 1992 also prohibited vilification there for the first time through the introduction of new section 20A, which provides:

    ‘A person must not do an act that (a) is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and (b) is done because of an attribute of the other person or of some or all of the people in the group.’

    Despite this positive development, there are still four Australian jurisdictions which do not prohibit anti-LGBTIQ vilification in any way: the Commonwealth, Victoria, Western Australia and South Australia.

    Of these, the WA Law Reform Commission review of the Equal Opportunity Act 1984 recommended that anti-LGBTIQ vilification should be prohibited, so hopefully this gap will be addressed this year.

    While the Victorian Government has a long-standing commitment to introducing anti-LGBTIQ vilification laws, a commitment which seems to have been revived following the recent TERF and neo-Nazi rally on the steps of Victorian Parliament.

    Indeed, the events of the past few months, including that TERF tour and neo-Nazi demonstration, as well as the Christian Lives Matter riot in Sydney and Mark Latham’s potentially vilifying, and definitely homophobic, tweets, have reiterated the need for vilification protections nation-wide, meaning the Commonwealth and South Australia Governments must address this menace too.

    For further analysis of LGBTIQ vilification laws around Australia, see: Did You Know? Most Australian Jurisdictions Don’t Prohibit Anti-LGBTI Vilification.

    6. Creating an LGBTIQA+ Commissioner at the Australian Human Rights Commission

    The disturbing events of the past few months have confirmed one of the other major holes in Australia’s LGBTIQ rights framework – the absence of a dedicated LGBTIQA+ Human Rights Commissioner at the Australian Human Rights Commission (AHRC).

    While there are existing Commissioners for Race, Sex, Disability, Age, Children, and Aboriginal and Torres Strait Islander Social Justice, there is no stand-alone, independent office-holder with primary responsibility for advocating on issues affecting the LGBTIQA+ community.

    This gap meant there were many missed opportunities for commenting on, educating about and generally advancing the rights of LGBTIQA+ Australians when those same rights came under sustained attack.

    In my view, it is simply not good enough to ask the Sex Discrimination Commissioner to take on additional responsibility for sexual orientation, gender identity and intersex human rights issues within the AHRC with whatever spare capacity they have left after addressing discrimination against women (hint: not much).

    Indeed, as far as I can tell, there have been exactly zero media releases and/or news items on the Commission’s website about the awful attacks on our community over the past month (while the LGBTI section of the website has not been updated since October 2021).

    Please note, this is not a criticism of the many good people who work at the Commission. It is simply an inevitable consequence of the severe structural weakness of a model where LGBTQA+ rights are only ever an add-on to someone else’s existing role.

    It is beyond time for this structural weakness to be remedied, by the creation and appointment of an LGBTIQA+ Commissioner at the AHRC.

    For more arguments about this topic, see: Where’s Our LGBTIQA+ Commissioner?

    7. Supporting LGBTIQ refugees and people seeking asylum

    This priority is both a law reform issue, and something where policies need to be improved and increased funding provided. Australia’s abhorrent refugee laws also obviously harm all people seeking asylum, rather than just LGBTIQ people. In that context, it should be stated that mandatory detention, and off-shore processing, must both be ended for all people seeking asylum.

    However, there are some issues which do have a particular impact on LGBTIQ people seeking asylum, including that Australia’s off-shore processing scheme could still involve sending LGBTIQ refugees to Papua New Guinea, a country where male homosexuality remains criminalised (and from which all refugees should be repatriated to Australia).

    Our processes for the intake of people seeking asylum are still not suitably tailored to deal with the needs of LGBTIQ people, and in my view we should be increasing the intake of LGBTIQ refugees from countries which are newly–criminalising same-gender sexual activity (including Uganda).

    Finally, Australia needs to better support the LGBTIQ refugees and people seeking asylum who are in Australia, including by funding dedicated LGBTIQ refugee support services and the LGBTIQ refugee peak body, Forcibly Displaced People Network (FDPN).

    8. Supporting the Voice to Parliament at the upcoming referendum

    Even after writing just that heading, I can already hear some people respond: ‘But that isn’t an LGBTIQ issue.’

    Except that all LGBTIQA+ people living in Australia are either First Nations LGBTIQA+ people, including brotherboys and sistergirls, or non-Indigenous LGBTIQA+ people living on Aboriginal land.

    Meaning all of us have an interest in supporting reconciliation and, in my personal view, the best chance we have of making progress on that in 2023 is by supporting the generous invitation extended by First Nations people through the Uluru Statement from the Heart, which includes commitments to the three inter-related pillars of Voice, Treaty and Truth.

    The first step in making that happen is by campaigning, and voting, for a constitutionally-enshrined Voice when it is the subject of a referendum later this year.

    LGBTIQA+ Australians, as the community most-recently subjected to a national public vote on our human rights, also have an intimate understanding of what it is like to be at the centre of this type of debate, including consistent attacks from extreme-right politicians and the Murdoch press.

    My sincere hope is that many non-Indigenous LGBTIQA+ Australians demonstrate solidarity with LGBTIQA+ First Nations people, and Indigenous people more broadly, by supporting the Voice as it too is attacked by the same people who attacked us. In other words, Vote Yes.

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

    Where’s Our LGBTIQA+ Commissioner?

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    This week saw the 100-day milestone for the new Albanese Labor Government, with lots of attention on issues like climate change, a federal Independent Commission Against Corruption, a referendum to create a constitutionally-enshrined Voice to Parliament, and of course the Jobs and Skills Summit (which I have written about here, and here).

    One issue that has received comparatively little focus, but which will be considered by the Senate next week (beginning 5 September), is the possible creation of a Commissioner for Lesbian, Gay, Bisexual, Transgender, Intersex, Queer and Asexual (LGBTIQA+) issues within the Australian Human Rights Commission (AHCR).

    I bring this to your attention because there is a strong chance the Government will reject amendments to establish this much-needed position, and this weekend is your last chance to take action to let Prime Minister Albanese and his ministerial colleagues know that you support an LGBTIQA+ Commissioner. But first, some background.

    Why an LGBTIQA+ Commissioner?

    The AHRC is our national anti-discrimination body, with responsibility for receiving and conciliating discrimination complaints under Commonwealth anti-discrimination laws, including the Racial Discrimination Act 1975, Sex Discrimination Act 1984, Disability Discrimination Act 1992 and Age Discrimination Act 2004.

    The AHRC also has a number of statutory office-holders, with responsibility for publicly advocating for equality and human rights generally, including the President and the Human Rights Commissioner, as well as positions dedicated to specific attributes or communities, including the:

    • Aboriginal and Torres Strait Islander Social Justice Commissioner
    • Age Discrimination Commissioner
    • Children’s Commissioner
    • Disability Discrimination Commissioner
    • Race Discrimination Commissioner, and
    • Sex Discrimination Commissioner.

    Notice who’s missing? That’s right, there’s no Commissioner with responsibility for LGBTIQA+ issues.

    That’s because the 2013 amendments to the Sex Discrimination Act which added sexual orientation, gender identity and intersex status as protected attributes in that law did not create such a position. These are now the only attributes in the four main Commonwealth anti-discrimination laws not to have a Commissioner attached to them.

    This omission has left LGBTIQA+ Australians at a distinct disadvantage over the past nine years, with no Commissioner with primary responsibility to speak on issues affecting our community, including during the marriage equality debate (while former Human Rights Commissioner Ed Santow did a good job, it was still only a small part of his overall role).

    With ongoing attacks on LGBTIQA+ rights, including the rise of transphobia in both politics and the media, I believe it is beyond time there was a Commissioner within the AHRC empowered to advocate on our behalf, without other competing responsibilities.

    The Australian Human Rights Commission Legislation Amendment (Selection and Appointment) Bill 2022

    The absence of an LGBTIQA+ Commissioner has become topical in the context of the Government’s Australian Human Rights Commission Legislation Amendment (Selection and Appointment) Bill 2022, one of the first laws introduced since the election.

    This is an important Bill, which seeks to enforce a transparent and merit-based appointment process for the statutory office-holders discussed above, both to prevent a repeat of the previous Government’s appointments which failed to meet these criteria, and to maintain the AHRC’s international accreditation as an ‘A-status’ national human rights institution (which is under threat because of those same non-transparent appointments). I support its passage.

    However, introducing legislation which focuses on the appointment of Commissioners under national anti-discrimination laws obviously draws attention to the lack of an LGBTIQA+ Commissioner under those same laws. 

    In this context, and responding to lobbying from LGBTIQA rights group Just.Equal Australia, new Greens MP for Brisbane Stephen Bates introduced the following amendment during the Bill’s Second Reading debate in the House of Representatives in early August:

    ‘whilst not declining to give the bill a second reading, the House calls on the Government to establish a Human Rights Commissioner for LGBTIQA+ people within the Australian Human Rights Commission.’

    In the words of Mr Bates:

    ‘The lack of such a commissioner is an obvious oversight that we can remedy here today. This remedy would send a strong and clear message to the LGBTIQA+ community that the era of the homophobia and transphobia from the previous government has come to an end, and signal a new approach in engaging with and protecting communities that have suffered systemic oppression for centuries. The community is not asking for anything unreasonable. There already exist commissioners for race discrimination, disability discrimination and so many others. It is vitally important that the LGBTIQA+ community have the same protection of our rights afforded to us.’

    This amendment was supported by a number of cross-bench MPs. This includes MP for Kooyong, Dr Monique Ryan, who said:

    ‘There is a clear and urgent need for a dedicated LGBTIQA+ human rights commissioner. The absence of such diminishes the reality of discrimination against this group of individuals. The absence of such means that no-one at the AHRC has the resources or experience to advocate for and articulate the concerns of the community in legislation, policy reform or public education.’

    And the MP for Goldstein Zoe Daniel, who noted:

    ‘Traditionally, the human rights of the LGBTQI+ community were part of the Human Rights Commissioner’s portfolio, but with that portfolio also holding religious freedom, in recent history I think there’s been a conflict between those two areas. We know that in the last parliament this led to a toxic debate that caused great distress to members of the LGBTQI+ community, particularly trans people, compounding mental health issues for children in this community particularly. For that reason, I think that direct representation is needed.’

    While the MP for Warringah Zali Steggall spoke of her front-row view of the transphobic campaign of her failed Liberal Opponent during the recent election:

    ‘it is clear that in Warringah during the election we had very inflammatory debates about members of our community and their opportunity for inclusion. I have to say that it did raise concerns for me. There was a lack of information in the public domain about the real status of the law when it came to transgender rights and issues within the LGBTQI community. I am concerned that issues that are specific to members of the LGBTQI community do at times get overlooked or submerged into the greater responsibilities of the Sex Discrimination Commissioner, so I think there is merit in there being a more specific mandate for addressing those issues.’

    Despite these, what I would describe as compelling, reasons, the Government chose to vote against the Bates amendment, ensuring its defeat.

    Attorney-General Mark Dreyfus made two main arguments against the amendment in his own speech:

    ‘The government will not support that second reading amendment. Let’s be clear about this: the effect of the second reading amendment, if it succeeds, would be to negate the bill, to stop these important measure that are contained in this bill from coming into effect…

    ‘While we of course understand the strong sentiment expressed by members of the community in support of a dedicated LGBTIQA+ commissioner, this bill is not the vehicle to create such a position. The government recognises that it is important to consider how best the commission can operate to promote and protect the human rights of all members of the Australian community, including LGBTIQA+ people. I acknowledge and commend the work that the commission already undertakes in relation to LGBTIQA+ rights, which is led by the Sex Discrimination Commissioner, Kate Jenkins. There will no doubt be further discussion on this proposal, as well as, I hope, discussion on other opportunities to strengthen the work of the commission in the future.’

    The first argument is a matter of debate around the wording of the Bates amendment, and may or may not be correct. It is also probably not relevant to the different, substantive amendments proposed by Greens Senator David Shoebridge and to be voted on in coming days (discussed in more detail below).

    However, the second argument is incredibly weak. Claiming LGBTIQA+ rights are already worked on by the Sex Discrimination Commissioner is simply not good enough, for at least two reasons. First, the Sex Discrimination Commissioner has a full-time role of their own, with plenty to focus on in terms of sexism, and sexual harassment – they, understandably, have limited capacity to simultaneously focus on anti-LGBTIQA+ discrimination. 

    Second, this arrangement does not seem to be working, especially when checking the LGBTI section of the AHRC website itself. Where not only are there no current projects on LGBTI issues – and haven’t been any since October 2021 – there are no news items from the past eleven months either. After all, it’s not like there are any substantive issues of LGBTIQA+ equality which still need to be addressed, or any major debates involving transphobia which have happened during that time… [sarcasm]

    What is perhaps most disappointing about the Attorney’s comments is that, irrespective of the Government’s position on the specific Bates amendment, he was unwilling to make a commitment to creating an LGBTIQA+ Commissioner at all, even at some point in the future.

    This disappointment was compounded two days later when the Government and Opposition united to defeat a Greens motion in the Senate to at least hold an inquiry into the Bill, to allow for consultation with the LGBTIQA+ community about the need to create a Commissioner within the AHRC.

    All hope is not lost

    While there is no denying those two votes were setbacks, there is still a third chance for this issue to be progressed.

    As mentioned above, Greens Senator for NSW David Shoebridge has introduced a more comprehensive set of amendments to the Bill, which would create an LGBTIQA+ Commissioner on exactly the same basis as the other attribute-based Commissioners. You can see the details of those amendments here. 

    I understand these amendments are likely to be voted on in the Senate this coming week, and potentially on Tuesday 6 September. Which means we have just days left to convince the Government, as well as cross-benchers like David Pocock, Jacqui Lambie and Tammy Tyrrell, to support these amendments.

    The easiest thing you can do, right now, is to sign and then share this petition from Just.Equal Australia calling on the Government to support an LGBTIQA+ Commissioner.

    If you have more time, you can also write to the Prime Minister, Attorney-General and/or other members of the Government (like your local MP or Senator), urging them to support the equal treatment of LGBTIQA+ people by establishing an AHRC Commissioner for our community.

    Below is the letter I have sent this morning to Attorney-General Dreyfus.

    *****

    3 September 2022

    The Hon Mark Dreyfus QC MP

    Attorney-General

    PO Box 6022

    House of Representatives

    Parliament House

    CANBERRA ACT 2600

    Dear Mr Dreyfus

    Please create an LGBTIQA+ Commissioner within the Australian Human Rights Commission

    I am writing to call on you to create a Commissioner for Lesbian, Gay, Bisexual, Transgender, Intersex, Queer and Asexual (LGBTIQA+) issues within the Australian Human Rights Commission (AHRC).

    The establishment of this position is long-overdue. While there are Commissioners at the AHRC for a number of other attributes within Commonwealth anti-discrimination law, there are none with specific responsibility for advocating for LGBTIQA+ equality and human rights.

    This has caused a distinct disadvantage for the LGBTIQA+ community when our rights are up for debate, including during the emergence of transphobic campaigns in politics and in the media over the past 12 months.

    The creation of an LGBTIQA+ Commissioner within the AHRC would also be consistent with the 2021 ALP National Platform, which was developed ahead of the election. This included commitments that:

    ‘Labor will work closely with LGBTIQ Australians and advocates to develop policy that will… strengthen laws and expand initiatives against discrimination, vilification and harassment on the basis of sexual orientation, gender identity or sex characteristics’ (page 64), and

    ‘All Australians should be able to go about their lives free from discrimination. Labor is the primary architect of the anti-discrimination law framework in Australia. We will continue to defend and enhance that framework to ensure that it is fit for purpose, accessible and promotes equality’ (page 66).

    I hope you would agree that creating an LGBTIQA+ Commissioner will ‘strengthen’ and ‘enhance’ initiatives against discrimination on the basis of sexual orientation, gender identity and sex characteristics, while ‘enhancing’ the Commonwealth anti-discrimination framework.

    I note that you, and therefore the Government, opposed a second reading amendment in the House of Representatives to your Australian Human Rights Commission Legislation Amendment (Selection and Appointment) Bill 2022 from the Greens which called on the Government to ‘establish a Human Rights Commissioner for LGBTIQA+ people’ within the AHRC.

    While one of your arguments was technical (which has hopefully been addressed by the revised, comprehensive amendments proposed by the Greens in the Senate), I am disappointed by another argument you raised, that this work is already being performed by the Sex Discrimination Commissioner.

    In my opinion, the Sex Discrimination Commissioner already has a (more than) full-time role in advocating on issues of sexism, and sexual harassment. They do not have the capacity to address LGBTIQA+ discrimination as well, nor should addressing LGBTIQA+ discrimination be treated as some kind of add-on to somebody else’s role, with the consequence that our community’s issues are inevitably ignored (noting, for example, that the AHRC has no current projects on LGBTI discrimination listed on its website, and have not posted even a news item since October 2021).

    Now that the Bill has progressed to the Senate, I urge you and the Albanese Labor Government to support Senator David Shoebridge’s amendments to create an LGBTIQA+ Commissioner with the same powers and responsibilities as existing office-holders within the AHRC.

    In the event you continue to oppose these specific amendments, for whatever reason, I call on you to:

    • Commit to the Government itself creating an LGBTIQA+ Commissioner within the AHRC, and
    • Provide a clear timeline for when this position will be established.

    Thank you in advance for considering the issues raised in this correspondence. Please do not hesitate to contact me at the details provided should you like to discuss the above.

    Sincerely

    Alastair Lawrie

    *****

    Update: I received the following reply from a Director in the Human Rights Branch of the Attorney-General’s Department:

    4 October 2022

    Dear Mr Lawrie

    Thank you for your email of 3 September 2022 to the Attorney-General, the Hon Mark Dreyfus KC MP, regarding the creation of a LGBTIQA+ Commissioner at the Australian Human Rights Commission (the Commission). The Attorney-General has requested that the Attorney-General’s Department respond to you on his behalf.

    The Government believes that all Australians are entitled to respect and dignity, the opportunity to participate in society, and receive the protection of the law regardless of their gender identity, sexual orientation and intersex status. The Sex Discrimination Act 1984 (Cth) prohibits discrimination on the grounds of gender identity, sexual orientation and intersex status in many areas of public life, including employment, education, in the provision of goods, services and facilities. The Government acknowledges the work that the Commission already undertakes in relation to LGBTIQA+ rights, led by the Sex Discrimination Commissioner, Kate Jenkins.

    The Government recognises that it is important to consider how best the Commission can operate to promote and protect human rights of all members of the Australian community, including LGBTIQA+ people. The Government understands the strong sentiment expressed by members of the community in support of a dedicated LGBTIQA+ Commissioner. There will no doubt be further discussion on this proposal, as well as other opportunities to strengthen the work of the Commission, in the future.

    Thank you for bringing your concerns to the Attorney-General’s attention.

    Yours sincerely

    [Details redacted]

    Commonwealth Attorney-General Mark Dreyfus QC MP.

    NB This post is written in a personal capacity, and does not reflect the views of employers past or present.

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

    Discrimination Under the Cover of Corona

    Posted on by

    Coronavirus. SARS-CoV-2. COVID-19. Whatever you call it, it has been the biggest single story of this century (so far). Challenging health systems, governments, economies and communities – its dominance of the news cycle has overshadowed all other issues.

    Of course, that does not mean those other challenges have gone away – especially climate change. Indeed, many existing problems have been exacerbated by, or exacerbated the negative impact of, coronavirus, including wealth inequality. Discrimination has sadly also been turbo-charged by the virus, with many disturbing examples of anti-Chinese and anti-Asian racism reported during the past few months.

    But, as an LGBTI advocate, it is another type of mistreatment I want to focus on here: discrimination on the basis of sexual orientation and/or gender identity. While less prominent to date in comparison to racism, I am concerned about a potential outbreak of anti-LGBT discrimination under the cover of corona, in at least three ways:

    1. Discrimination in employment

    Even with the Government’s temporary JobKeeper program, Australia’s unemployment numbers are expected to at least double between March and June 2020. We could see more than 1,000,000 people permanently lose their jobs in this period alone (not to mention many more who will have their hours, or pay – or often both – reduced).

    While in many workplaces, the entire staff will be terminated, elsewhere employers will keep on some employees while dismissing others. With this process happening across so many businesses, small and large, and across so many sectors, simultaneously, it is inevitable some will (ab)use this opportunity to sack people for illegitimate reasons, including bosses firing LGBT workers simply because of who they are.

    Even where homophobia, biphobia and transphobia are not ‘explicit’ in this way, some employers may take irrelevant factors into consideration in making their decisions – such as whether the employee has a partner, whether that partner is also employed, and whether they have children to support. Such discrimination, on the basis of marital or relationship status, or family responsibilities, is likely to disproportionately harm LGBT employees.[i]

    For a variety of reasons, we will likely never know the full extent of anti-LGBT discrimination in employment during this crisis – although it should be noted the Sydney Morning Herald is already reporting that:

    ‘The number of workers raising issues with unfair dismissals has surged because of the coronavirus shutdown, with 65 per cent more employees bringing cases to the national industrial tribunal last month [April] than the same time last year.’ 

    1. Discrimination in service delivery

    One serious problem highlighted by the coronavirus crisis has been the ‘hollowing out’ of governments, at all levels, and corresponding outsourcing of what should be public services to the private sector.

    In particular, a disturbingly high proportion of essential social services in Australia are now delivered by religious organisations, despite usually using public monies. This includes housing and emergency accommodation, community support, food and even healthcare.

    At a time when many Australians will be accessing these services for the first time, lesbian, gay, bisexual and transgender people will have the additional worry of whether such faith bodies will refuse to serve them, or treat them differently to cisgender heterosexual people in the same circumstances.

    This is not to suggest that all or even most of these religious organisations will engage in homophobic, biphobic or transphobic discrimination – but some of these services inevitably will, to the detriment of LGBT Australians when they are at their most vulnerable.

    1. Anti-LGBT vilification

    The third potential outbreak which concerns me is anti-LGBT vilification. That is, attacks on lesbian, gay, bisexual and transgender individuals – and the LGBT community more broadly – claiming that we are somehow responsible for promulgating the coronavirus, or deserving of infection because of our supposed ‘sinful lifestyles’.

    This is not a hypothetical fear, either. At the start of April, Melbourne Jewish radio station J-AIR broadcast the following homophobic and transphobic comments from a Rabbi Kessin:

    ‘And basically he’s [god’s] 98% finished, that’s how close we are to redemption. Therefore god wants to do is bring the redemption. However, there are certain problems that must be addressed by god in order for the redemption to actually happen. And what we begin to see is that the pandemic is an exact designer drug, if you want to use that expression, that will remove these problems.

    Ah, in other words, the plague itself is a vehicle, is an instrument, to accelerate the messianic process by removing these major problems. What are they? You see. So therefore what we see is the following.

    The first major problem is that man has corrupted his nature. There is a tremendous amount of, ah, what’s called immorality in the world today. It’s widespread. There’s, in Hebrew it’s called “prichus”. We want, we could say it’s also in the form of homosexuality, and gays and so on and so forth, where all of a sudden the gender differentiation is, is tremendously blurred. So that is an incredible corruption of man’s nature.’

    There are, obviously, strong echoes of the homophobic vilification endured by the gay and HIV-positive community as part of the HIV/AIDS epidemic. And we learnt from that experience that more bigots will emerge in the months ahead claiming that coronavirus is ‘divine punishment’ of the LGBT community for having the temerity to exist.

    These three risks – anti-LGBT discrimination in employment, and service delivery, and anti-LGBT vilification – demonstrate the importance of robust anti-discrimination and vilification protections. Unfortunately, they also reveal serious weaknesses in Australia’s existing anti-discrimination and vilification framework, in at least four ways:

    1. Onus on complainants

    Australia’s anti-discrimination laws are primarily complaint-based, which means responsibility falls on the victims of discrimination to pursue justice against their discriminator(s).

    This is a problem at the best of times. That includes because of the usual significant power imbalances involved: between employee and employer; member and group; individual accessing services and service delivery organisation; customer and business; and more.

    The burden of making a discrimination complaint should also not be underestimated, including the cost in both time and resources (such as obtaining legal advice, which can be costly), as well as the impact on mental health through stress. It is no surprise that many people who experience discrimination ultimately choose not to lodge a complaint.

    And of course the coronavirus crisis means now is far from the best of times. Power imbalances are exacerbated, financial and other stresses already heightened. Even where LGBT Australians experience unequivocal discrimination, the problems of a complaint-based system mean they may not exercise their legal rights but instead focus on more immediate concerns (like where they are going to live, and how they will pay for food, electricity and other essentials).

    Now more than ever our anti-discrimination laws should be improved by making it easier for organisations, such as trade unions, to make representative complaints on behalf of vulnerable individuals, as well as strengthening the powers of bodies like the Australian Human Rights Commission and its state and territory equivalents to investigate instances of discrimination even in the absence of individual complainants.

    1. Difficult to prove

    Even where a victim of discrimination does choose to lodge a formal complaint, it can sometimes be difficult to prove, at least to the required legal standard.

    This will not come as a surprise to most LGBT Australians – or indeed to members of other minority groups in the community. Almost all of us will have experienced multiple instances of mistreatment, where you know without a doubt that your sexual orientation, or gender identity, or sex, or race, or disability, or combination of these, is the motivation – while also knowing it would difficult to establish without an explicit admission by the perpetrator.

    The coronavirus crisis, and the associated economic crisis, will only worsen this problem, with employers able to say they abandoned usual procedures because of the scale and speed of the challenge they were facing (and the potential they are given the benefit of the doubt in many circumstances, too). This doesn’t mean there was no discrimination – but it could make already high barriers even harder to overcome for the victims.

    1. Religious exceptions

    Regular readers of this blog would be well aware of this major flaw in Australians LGBT anti-discrimination laws. Specifically, under the Commonwealth Sex Discrimination Act 1984, and Fair Work Act 2009 (Cth), and the anti-discrimination laws of most state and territories (other than Tasmania’s best practice Anti-Discrimination Act 1998), it is entirely lawful for religious organisations to discriminate against employees, and people accessing services, on the basis of sexual orientation and gender identity.[ii]

    This means that it is legal for a faith-based homeless service in Sydney to deny shelter to someone because they are lesbian, or for a religious-run welfare service in Melbourne to reject a client because they are trans. It also means these organisations can refuse to hire, or even fire, employees because of their sexual orientation or gender identity – which is especially concerning when these bodies may be given more public funding to address the challenges of the next 12 to 18 months, making them one of the few places actually hiring.

    In order for lesbian, gay, bisexual and transgender Australians to enjoy the same employment opportunities, and receive the same level of support, as everyone else, religious exceptions to anti-discrimination laws must be repealed.

    1. Gaps in vilification protections

    The fourth serious weakness in our current legislative framework is the fact that only a minority of jurisdictions protect LGBT people against vilification. The biggest gap is obviously at Commonwealth level, where there remains no sexual orientation or gender identity equivalent of section 18C of the Racial Discrimination Act 1975.

    But there is also no anti-LGBT vilification coverage in Victoria[iii] (meaning the earlier comments on a Melbourne Jewish radio station were likely lawful), or in Western Australia, South Australia or the Northern Territory.

    Even where vilification protections exist, their coverage is sometimes incomplete. For example, civil prohibitions on vilification in the NSW Anti-Discrimination Act 1977 only protect lesbians and gay men, and binary transgender people.[iv] Bisexuals, non-binary and intersex people need not apply (or complain).

    **********

    These four problems, with Australia’s LGBTI anti-discrimination and anti-vilification laws, are obviously major. But they do not mean all such legal claims will be unsuccessful – merely that people should be aware of the potential pitfalls along the complaints journey that awaits them.

    I should also be clear that this isn’t legal advice, either – after all, I am not currently a practising lawyer. However, if you are lesbian, gay, bisexual, transgender or intersex and do experience discrimination or vilification, and are considering your options, there are places where you can seek advice. These include:

    The Inner-City Legal Centre in Sydney

    The LGBTIQ Legal Service in Melbourne

    The LGBTI Legal Service in Brisbane

    The HIV/AIDS Legal Centre in Sydney

    Or you could contact the local Community Legal Centre in your area. A searchable map is located on the Community Legal Centres Australia website.

    Alternatively, you could try the Legal Aid services in your respective state or territory.

    The above organisations may assist you in determining whether you wish to make a complaint – and where. They may also be able to provide you with legal representation if you do complain.

    Nevertheless, it is not compulsory to obtain advice, or be represented, in order to make an anti-discrimination, or anti-vilification, claim. You could instead decide to go directly to the relevant human rights body. These include:

    The Australian Human Rights Commission for discrimination complaints, including employment discrimination [remembering that there are no LGBTI vilification protections under Commonwealth law]

    The Fair Work Commission if the complaint relates to employment discrimination only [noting that only lesbian, gay and bisexual people can apply – because the Fair Work Act 2009 (Cth) does not cover gender identity or intersex status/sex characteristics][v]

    Anti-Discrimination NSW

    The Victorian Equal Opportunity and Human Rights Commission

    The Queensland Human Rights Commission

    The WA Equal Opportunity Commission

    The SA Equal Opportunity Commission

    Equal Opportunity Tasmania

    The ACT Human Rights Commission

    The NT Anti-Discrimination Commission

    A lot has been written in recent months about the coronavirus ‘not discriminating’. That SARS-CoV-2 is the ‘great leveller’. That in response to COVID-19 we are now all supposedly playing on the same team (namely ‘Team Australia’).

    Of course, that simplistic slogan simply isn’t true. Just like life before the ‘rona, the rich will have fewer adverse outcomes than the poor. Aboriginal and Torres Strait Islander people will continue to experience extremely high rates of disadvantage.

    Racial minorities, especially Chinese-Australians and other people from Asian backgrounds, will endure even greater levels of racism than before the pandemic. Prime Minister Scott Morrison is fond of telling Australians to ‘get out from under the doona’. He needs to also pay attention to the increased racist abuse which has sadly – but entirely predictably – emerged from under the covers.

    As we have seen, lesbian, gay, bisexual and transgender Australians, as another vulnerable group, are at risk, too – of increased discrimination in employment, in service delivery, and through vilification.

    If that happens to you, there may be legal remedies available, including under Commonwealth, state and territory discrimination laws, or the Fair Work Act. As discussed earlier, there may also be good reasons why you ultimately choose not to make a complaint under any of these processes.

    But one reason homophobic, biphobic and transphobic bigots shouldn’t be allowed to get away with anti-LGBT discrimination or vilification is that you simply weren’t aware of the options available.

    Christian Porter

    Commonwealth Attorney-General should spend more time fixing problems with our existing anti-discrimination laws, and less time trying to introduce a Religious Discrimination Bill that would only exacerbate them.

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

    Footnotes:

    [i] Acknowledging of course that traditionally, and unfortunately still today, the most likely targets of discrimination on the basis marital or relationship status, or family responsibilities, are women.

    [ii] For more on this subject, see A Quick Guide to Australian LGBTI Anti-Discrimination Laws.

    [iii] Although there is currently a Victoria Parliament inquiry considering expansion of the Racial and Religious Tolerance Act 2001 (Vic) to cover sexual orientation, gender identity and intersex status. See my submission to that inquiry here.

    [iv] Although the criminal offence of publicly threatening or inciting violence, added to the Crimes Act 1900 (NSW) in 2018, does cover all of sexual orientation, gender identity and intersex status. For more on the problems of LGBTI anti-discrimination law in NSW, see What’s Wrong With the NSW Anti-Discrimination Act 1977?

    [v] For more, see Unfairness in the Fair Work Act.

    Submission to Tasmanian Law Reform Institute Inquiry into Legal Recognition of Sex and Gender

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    Update: In June 2020, the Tasmanian Law Reform Institute published its final report from this inquiry. You can find a copy here.

    In terms of its review of the Tasmanian Parliament’s ground-breaking 2019 birth certificate reforms, it found that:

    “The Final Report concludes that the changes made by the Justice and Related Legislation (Marriage and Gender Amendments) Act 2019 (Tas) achieve the objective of reducing discrimination and trauma experienced by intersex and gender diverse Tasmanians by making it easier to obtain identification documents that accords with their gender identity… The Final Report further concludes that the new laws are generally consistent with best practice international human rights approaches and approaches being considered in other Australian jurisdictions.”

    That is both a welcome finding by itself, and confirmation other states and territories should be looking to the Tasmanian legislation as a ‘best practice’ approach on which to base their own laws.

    In terms of medical interventions on children born with intersex variations of sex characteristics, the “Report makes a number of recommendations intended to eliminate the practice of non- consensual surgical interventions and to enshrine existing legal principles regarding the capacity of children to consent, or not consent, to medical treatment.”

    Recommendation 7 in particular stated that:

    The Criminal Code should be reformed to criminalise non- consensual medical interventions in the following terms:

    178F Unnecessary medical intervention to change the sex characteristics of children.

    (1) Any person who performs a surgical, hormonal, or other medical intervention to alter or modify the sex characteristics of a child is guilty of a crime, unless:

    (a)  it is performed to address a clear danger to the life or health of the child and it cannot be deferred until the child is able to give informed consent; or

    (b)  it takes place with the informed consent of the child.

    (2) Nothing in this Section is intended to apply to interventions involving a consenting transgender child seeking treatment to delay puberty or secondary sexual differentiation.

    Charge: Performing unnecessary medical intervention to change the sex characteristics of a non-consenting child.

    Once again this is a welcome development. It is now up to the Tasmanian Government to implement these reforms as quickly as possible (although obviously in consultation with intersex advocates and organisations like Intersex Human Rights Australia) and hopefully start the process of ending this significant human rights abuse.

    **********

    Original post: The Tasmanian Law Reform Institute is currently conducting an inquiry into matters arising from the passage of trans and gender diverse birth certificate reforms earlier this year, as well as issues relating to coercive surgeries and other medical treatments on children born with variations of sex characteristics.

    The following is my personal submission, focusing on the latter topic. Submissions are due Tuesday 20 August, and you can find more details here.

    **********

    Submission to Tasmanian Law Reform Institute Inquiry into Legal Recognition of Sex and Gender

    Tasmanian law Reform Institute

    Private Bag 89

    Hobart, TAS 7001

    via Law.Reform@utas.edu.au

    Wednesday 14 August 2019

    To whom it may concern

    Submission re Inquiry into Legal Recognition of Sex and Gender

    Thank you for the opportunity to provide a submission to this important inquiry.

    I make this submission as a long-term advocate for the lesbian, gay, bisexual, transgender and intersex (LGBTI) community and, particularly for the purposes of this inquiry, as an ally to intersex Australians.

    In this submission I will respond, generally, to those questions (5 through 9) that are focussed on the question of coercive surgeries and other medical treatments on children born with variations of sex characteristics.
    These invasive and involuntary medical interventions, which continue in Australia today, are one of the biggest human rights violations against any members of the LGBTI community.

    Indeed, given the serious, lifelong consequences of these human rights violations, I believe addressing coercive surgeries and medical treatments on intersex children is one of the most important human rights issues in Australia. Period.

    Which is why it is so disappointing that so little action has been taken since the ground-breaking 2013 Senate Inquiry into Involuntary or Coerced Sterilisation of Intersex People in Australia.[i]

    Specifically, in the past six years, the Commonwealth Liberal-National Government has failed to make any progress whatsoever in ending these unjustified and unacceptable practices.

    In this context, I obviously welcome the additional focus on this issue by the Tasmanian Law Reform Institute.

    This includes asking relevant questions in terms of what should be done to address this problem, especially in question 5 (which includes consideration of court approvals, legislative prohibitions with possible criminal penalties, independent advocates, independent counselling and advice, and specialist tribunals).

    However, I also note that the same issues are being considered, at the moment, by the Australian Human Rights Commission (AHRC) as part of its own investigation of this topic. [ii]

    This has included a public consultation process from July to September 2018,[iii] and ongoing involvement of and consultation with intersex people.

    I understand that this investigation is expected to conclude by the end of 2019, with a report and recommendations for how these human rights violations should be addressed nation-wide.

    The AHRC is relevant to this submission in three main ways.

    First, I reiterate the five recommendations made to that investigation, including:

    Recommendation 1. Australian Governments must introduce legislation to prohibit deferrable medical interventions, including surgical and medical interventions, that alter the sex characteristics of infants and children without personal consent, including penalties for breaching such laws.

    Recommendation 2. Individuals who are asked to provide consent to necessary, non-deferrable medical interventions must have access to counselling and peer support, including from intersex people and intersex-led community organisations.

    Recommendation 3. Australian governments must explicitly prohibit the ability of parents and guardians to provide consent to modifications to the sex characteristics of children born with variations of sex characteristics on the basis of social or cultural rationales.

    Recommendation 4. That a new independent oversight body be created to review necessary, non-deferrable, therapeutic medical interventions on children born with variations of sex characteristics, comprising clinicians, human rights experts, child advocates and intersex-led community organisations.

    Recommendation 5. That Commonwealth, state and territory governments provide ongoing funding to intersex-led community organisations, for the purposes of:

    • Peer support of individuals and families to inform decision-making about medical interventions
    • Serving on the new independent oversight body that reviews medical interventions
    • Broader peer support for all members of the intersex community, and
    • Systemic advocacy for all people with variations of sex characteristics.

    Second, I express my support for the submission made by Intersex Human Rights Australia (IHRA) to the AHRC investigation[iv] (a submission that was also endorsed by the AIS Support Group Australia, Disabled People’s Organisations Australia, LGBTI Legal Service, and People with Disability Australia).

    I note in particular that on page 66 of their submission, in response to the question ‘Should all non-emergency and/or deferrable medical interventions that alter a child’s sex characteristics, where the child does not have legal capacity to consent, be prohibited by law? If so, should this prohibition be civil or criminal?’ IHRA responded that:

    We support the Darlington Statement’s call for criminal prohibitions of all non-deferrable medical interventions that alter a child’s sex characteristics [emphasis added].

    I encourage the Tasmanian Law Reform Institute to adopt the IHRA submission as the primary foundation of its approach to these issues (and, wherever there are conflicts between my own recommendations and the position of IHRA, I defer to them on the basis that intersex people should have the right to self-determination as well as the right to bodily autonomy).

    Third, given the ongoing AHRC investigation – covering largely the same issues as those featured in questions 5 through 9 of this inquiry – I encourage the Tasmanian Law Reform Institute to consider how it can work together with the Australian Human Rights Commission, and contribute to its efforts. This would potentially avoid any duplication in work (including duplication in the calls on intersex people to make multiple submissions on the same subject matter).

    As indicated earlier, I welcome the focus provided by the Tasmanian Law Reform Institute to the issue of ongoing human rights violations against children born with variations of sex characteristics.

    It is my sincere hope that the AHRC process, possibly with input from the Tasmanian Law Reform Institute, can make a series of practical recommendations to end coercive surgeries and other involuntary medical treatments on intersex children.

    And that ultimately, the Commonwealth Government, and all State and Territory Governments, work together to implement these recommendations as quickly as possible so that these human rights violations end once and for all.

    Thank you for taking this submission into consideration. Please do not hesitate to contact me, at the details below, should you require further information.

    Sincerely

    Alastair Lawrie

    Footnotes:

    [i] See the Final Report of that Senate Inquiry here and my personal submission to that inquiry here.

    [ii] See the Australian Human Rights Commission website.

    [iii] See my submission to that consultation here.

    [iv] The IHRA submission to the AHRC investigation can be found here, and is attached with this submission.

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    Submission to AHRC Consultation re Medical Interventions on People Born with Variations of Sex Characteristics

    Posted on by

    This is my personal submission in response to the Australian Human Rights Commission’s July 2018 Consultation Paper ‘Protecting the Human Rights of People Born with Variations in Sex Characteristics in the context of Medical Interventions’.

    This issue – involuntary medical interventions, including surgical and hormonal interventions, that alter the sex characteristics of intersex infants and children – is also the sixth post in a series looking at the unfinished business of LGBTI equality in Australia.

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    Australian Human Rights Commission

    c/- sogii@humanrights.gov.au

    Sunday 30 September 2018

     

    Submission in response to the Protecting the Human Rights of People Born with Variations in Sex Characteristics in the context of Medical Interventions Consultation Paper

     

    Thank you for the opportunity to provide a submission as part of this important consultation process.

     

    I do so not as a person with variations in sex characteristics, but as a member of the broader LGBTI community and as an ally of the intersex community.

     

    This includes explicitly supporting the goals of intersex people as expressed in the Darlington Statement: Joint consensus statement from the intersex community retreat in Darlington, March 2017.[i]

     

    This submission is informed by that document, as well as The Yogyakarta Principles plus 10: Additional principles and state obligations on the application of international human rights law in relation to sexual orientation, gender identity, gender expression and sex characteristics to complement the Yogyakarta Principles.[ii]

     

    As someone who is not an intersex person, I do not propose to answer the specific questions set out in the consultation paper. On these, I defer to the lived experience of people with variations in sex characteristics, as well as the expertise of organisations like Intersex Human Rights Australia and AIS Support Group Australia.

     

    Instead, I will comment on the overall human rights challenges faced by the intersex community, and the main actions required to address these issues.

     

    The biggest challenge is the ongoing practice of deferrable medical interventions, including surgical and hormonal interventions, that alter the sex characteristics of infants and children without personal consent.

     

    Indeed, I would classify these acts as one of the two worst human rights abuses currently affecting the Australian LGBTI community (the other being the continuing mistreatment of LGBTI refugees, including their indefinite detention and proposed resettlement in countries that criminalise homosexuality).

     

    Consequently, it is very welcome that the Australian Human Rights Commission is providing renewed attention to these human rights abuses through this consultation process.

     

    However, this is only necessary because of the five years of inaction, by Commonwealth, state and territory governments, following the release of the seminal October 2013 Report of the Senate Standing Committee on Community Affairs: Involuntary or Coerced Sterilisation of Intersex People in Australia.[iii]

     

    Among other recommendations, that Committee recommended that:

     

    ‘all medical treatment of intersex people take place under guidelines that ensure treatment is managed by multidisciplinary teams within a human rights framework. The guidelines should favour deferral of normalising treatment until the person can give fully informed consent, and seek to minimise surgical intervention on infants undertaken for primarily psychosocial reasons’ (Recommendation 3).

     

    It is shameful that even this modest recommendation has not been implemented by Australian governments. In the absence of such intervention, the human rights violations of intersex infants have continued unabated. By some estimates, hundreds of these surgeries occur each year.[iv]

     

    The time for a primarily guidelines-based approach is now over. What is needed is an explicit legislative prohibition on the performance of unnecessary and involuntary medical interventions (including both surgical and hormonal interventions).

     

    This has been recommended by the UN Committee on the Elimination of all forms of Discrimination Against Women, which has stated that Australia should:

     

    ‘Adopt clear legislative provisions explicitly prohibiting the performance of unnecessary surgical or other medical treatment on intersex children before they reach the legal age of consent’.[v]

     

    A similar call features in the Darlington Statement:

     

    ‘7. We call for the immediate prohibition as a criminal act of deferrable medical interventions, including surgical and hormonal interventions, that alter the sex characteristics of infants and children without personal consent. We call for freely-given and fully informed consent by individuals…’ (emphasis in original).

     

    Importantly, these prohibitions must include sanctions for people who are found to breach these laws, including medical professionals.

     

    Recommendation 1. Australian governments must introduce legislation to prohibit deferrable medical interventions, including surgical and hormonal interventions, that alter the sex characteristics of infants and children without personal consent, including penalties for breaching such laws.

     

    It is important to recognise that this prohibition will not end all medical interventions on intersex children, including those that are considered both necessary and not deferrable. However, determining what falls within this definition is likely to be highly contested.

     

    In order to ensure children who have the capacity to provide consent are appropriately informed and therefore in the best position to make such decisions, they must have access not just to medical opinions (which have traditionally favoured interventions) but also to independent counselling and support.

     

    This was recommended by the UN Committee on the Elimination of all forms of Discrimination Against Women (that Australia should ‘provide families with intersex children with adequate counselling and support’), as well as in the Darlington Statement (that ‘individuals and families hav[e] mandatory independent access to funded counselling and peer support’).

     

    Those last two words – ‘peer support’ – are perhaps the most important. Individuals, and especially intersex children who have the capacity to provide consent, should have access to the advice, information and support of intersex people and intersex-led community organisations.

     

    Recommendation 2. Individuals who are asked to provide consent to necessary, non-deferrable medical interventions must have access to counselling and peer support, including from intersex people and intersex-led community organisations.

     

    The advice, information and support of intersex people and organisations is also vital to assist parents and guardians who are asked to provide consent for necessary and non-deferrable medical interventions on behalf of children who are not in a position to provide their own consent.

     

    In particular, this advice is essential to help prevent them from providing consent on the basis of social or cultural reasons. These rationales can involve a number of elements, including gender stereotypes and social norms.

     

    On this point, it should be acknowledged that parents and guardians of intersex infants are likely to be subject to significant pressure from others that their children to conform to societal expectations (that they, and their bodies, are easily classifiable by others as either male or female).

     

    This pressure can be, and has been, exploited by clinicians offering medical ‘solutions’ to what is not actually a problem in the first place, but rather simply the natural diversity of sex characteristics.

     

    There is no valid social or cultural reason to modify the sex characteristics of children born with these variations, and certainly no social or cultural justification to override those children’s rights to bodily autonomy and physical integrity.

     

    As part of their overall prohibition on modifications to the sex characteristics of minors in 2015, Malta explicitly prohibited such modifications due to social and cultural rationales. Given ongoing social and cultural pressures on the parents and guardians of intersex children here, Australian governments should introduce a similar prohibition.

     

    Recommendation 3. Australian governments must explicitly prohibit the ability of parents and guardians to provide consent to modifications to the sex characteristics of children born with variations of sex characteristics on the basis of social or cultural rationales.

     

    Even with the overall prohibition on deferrable medical interventions, the specific prohibition on parental consent based on social or cultural rationales, and the provision of peer support from intersex people and organisations, there will likely continue to be some medically necessary, non-deferrable, ‘therapeutic’ procedures performed on intersex infants and children into the future.

     

    As I am not an expert in this area, I am not in a position to offer an opinion of what might constitute definitions of medical necessity or therapeutic (and alternatively, non-therapeutic) treatments. As a result, I defer to the expertise of organisations like Intersex Human Rights Australia and AIS Support Group Australia on these issues.

     

    However, I do wish to make a comment on the process that should be adopted to ensure these procedures are indeed necessary, non-deferrable and therapeutic. I strongly support the creation of a new independent oversight body to review these decisions.

     

    This body should not, indeed must not, be comprised solely of clinicians – particularly because it is clinicians who have been, and continue to be, the perpetrators of human rights violations on intersex infants and children. Instead, the body should include human rights experts, child advocates, and intersex-led community organisations as well as clinicians.

     

    The role of the independent body would be to ventilate and consider the pros and cons of proposed medical interventions. This must include consideration of the lifelong health, legal, ethical, sexual and human rights implications of such procedures.

     

    Consent or authorisation for treatment must be premised on provision of all available medical evidence on necessity, timing and evaluation of outcomes of medical interventions, including noting where there is either no evidence, or no clinical consensus, on outcomes.

     

    Recommendation 4. That a new independent oversight body be created to review necessary, non-deferrable, therapeutic medical interventions on children born with variations of sex characteristics, comprising clinicians, human rights experts, child advocates and intersex-led community organisations.

     

    The recommendations in this submission envisage a significant increase in the functions and responsibilities of intersex-led community organisations.

     

    This includes being able to provide advice, information and support to intersex children, and their families, to inform their decision-making about medical interventions, as well as contributing to the new independent oversight body reviewing the pros and cons of medical interventions (alongside other groups).

     

    It should be noted however that intersex-led community organisations, including Intersex Human Rights Australia and AIS Support Group Australia, are primarily run on a volunteer basis, with limited resources, financial or otherwise.

     

    Therefore, in order to support them to perform these expanded roles efficiently and effectively, governments at both Commonwealth and state and territory level should provide ongoing funding to intersex community groups.

     

    Personally, I believe this funding should go beyond the functions nominated in this submission, to incorporate broader peer support to all intersex people, including older intersex people adversely affected by human rights violations earlier in life.

     

    Given the significant human rights challenges still faced by members of the intersex community, this funding should also support systemic policy advocacy by intersex-led community organisations (instead of funding to umbrella LGBTI organisations that may not have the same level of expertise or give the same level of priority to these issues).

     

    Recommendation 5. That Commonwealth, state and territory governments provide ongoing funding to intersex-led community organisations, for the purposes of:

    • Peer support of individuals and families to inform decision-making about medical interventions
    • Serving on the new independent oversight body that reviews medical interventions
    • Broader peer support for all members of the intersex community, and
    • Systemic advocacy for all people with variations of sex characteristics.

     

    Please do not hesitate to contact me, at the details provided, should you wish to clarify any of the above, or for additional information.

    Sincerely,

    Alastair Lawrie

     

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    Footnotes:

    [i] From the Intersex Human Rights Australia website: https://ihra.org.au/darlington-statement/

    [ii] As adopted on 10 November 2017, via: https://yogyakartaprinciples.org/principles-en/yp10/

    [iii] Available here: https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Community_Affairs/Involuntary_Sterilisation/Sec_Report/index

    [iv] Intersex Human Rights Australia, ‘Submission to the Australian Law Reform Commission on the Review of the Family Law System – Issues Paper’, 7 May 2018.

    [v] Committee on the Elimination of all forms of Discrimination against Women, ‘Concluding Observations on the Eighth Periodic Report of Australia’, 20 July 2018.

     

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