Tag Archives: Australian Human Rights Commission

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.

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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.

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Discrimination Under the Cover of Corona

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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.

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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.

1200px-Intersex_flag.svg

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

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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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5 Years of Commonwealth LGBTI Anti-Discrimination Laws. 5 Suggestions for Reform.

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This post is part of a series looking at the unfinished business of LGBTI equality in Australia. You can see the rest of the posts here. 

 

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

 

Almost four decades after the Racial Discrimination Act 1975, and nearly three decades after the passage of the Sex Discrimination Act 1984, lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians finally received protection against discrimination under Commonwealth law.

 

While the SDA amendments were ground-breaking at the time, no piece of legislation is ever perfect. Five years into its operation, here are five areas in which I believe this Act can and should be improved.

 

  1. Update ‘intersex status’ to ‘sex characteristics’

 

With the passage of the 2013 amendments to the Sex Discrimination Act, Australia became one of the first jurisdictions in the world to explicitly protect people with intersex variations against discrimination.

 

This is because it added ‘intersex status’ as a stand-alone protected attribute, which was defined under section 4 as:

 

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

(a) neither wholly female nor wholly male; or

(b) a combination of female and male; or

(c) neither female nor male.’

 

However, since then intersex advocates have expressed concerns about this wording, including that it may not adequately protect all intersex people (for example, potentially conflating or confusing issues of biology and identity).

 

For these reasons, in the landmark March 2017 Darlington Statement, OII Australia (now Intersex Human Rights Australia) and other intersex representatives ‘call[ed] for effective legislative protection from discrimination and harmful practices on grounds of sex characteristics’ [emphasis added].

 

Sex characteristics was then defined in the Yogyakarta Plus 10 Principles ‘as each person’s physical features relating to sex, including genitalia and other sexual and reproductive anatomy, chromosomes, hormones, and secondary physical features emerging from puberty.’

 

Australia helped lead the world in including ‘intersex status’ in the Sex Discrimination Act. Five years later we should take action again by updating this attribute to refer to ‘sex characteristics’ instead.

 

  1. Protect LGBT students against discrimination

 

A positive feature of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 was the aged care ‘carve-out’ from the otherwise overly-generous (see below) exceptions provided to religious organisations.

 

Sub-section 37(2) of the amended Sex Discrimination Act provides that the general exception ‘does not apply to an act or practice of a body established for religious purposes if:

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

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

 

In effect, religious-operated aged care facilities that receive public funding are not permitted to discriminate against LGBT people accessing those services (although unfortunately they can still discriminate against LGBT employees).

 

Five years since this clause was passed, and there is exactly zero evidence that it has had any negative impact on the supposed ‘religious freedom’ of these institutions – and plenty of evidence that it has helped to protect older lesbian, gay, bisexual and transgender people from unjustifiable discrimination.

 

Now, it is time to ensure that an equivalent provision is introduced to protect people at the other end of the age spectrum from similar mistreatment: younger LGBT people who are students at government-funded religious schools and colleges.

 

These students are just as vulnerable as older LGBT people accessing aged care services, and just as with the ‘carve-out’ in sub-section 37(2), there is no reason why taxpayer money should be used to discriminate against them on the basis of their sexual orientation or gender identity.

 

It is time to amend the Sex Discrimination Act to remove the special privilege enjoyed by publicly-funded religious educational institutions to discriminate against LGBT students. This could be achieved by adding a similar carve-out in sub-section 37(2), and repealing sub-section 38(3), which also allows discrimination by religious schools against LGBT students.

 

  1. Limit overly-generous general religious exceptions

 

While I believe the exceptions allowing discrimination against LGBT students deserve special attention, it is also important to reform the broader religious exceptions contained in the Sex Discrimination Act.

 

Sub-section 37(1) currently provides that none of the Act’s LGBT discrimination protections apply to:

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

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

(c) the selection or appointment of persons to perform duties or functions for the purposes of or in connection with, or otherwise to participate in, any religious observance or practice; or

(d) any other act or practice of a body established for religious purposes, being an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion.’

 

[Section 38 provides a similarly-worded exception in relation to education, with sub-section 38(1) allowing religious schools to discriminate against teachers and other employees, and sub-section 38(2) permitting discrimination against contract workers.]

 

These clauses, and especially s37(1)(d), provide religious organisations with carte blanche to discriminate against LGBT Australians on the basis of their sexual orientation or gender identity. Such discrimination often has very little to do with sincerely-held religious beliefs, but is instead simply homophobia, biphobia or transphobia dressed up in a cloak of religious-sounding language.

 

I believe this discrimination has no place in 21st century Australia – and suspect most ordinary Australians agree (something that was confirmed in October in the wake of the leaking of the recommendations of the Ruddock Religious Freedom Review).

 

Fortunately, one Australian jurisdiction provides a much better precedent in this area, with legislation that still protects genuine religious freedom without endorsing broader anti-LGBT discrimination.

 

The Tasmanian Anti-Discrimination Act 1998 allows discrimination in certain circumstances in employment (section 51), admission as a student (section 51A) and participation in a religious observance (section 52), but only on the basis of religious belief or affiliation, and not because of sexual orientation or gender identity (or sex, pregnancy, relationship status or other attributes).

 

The Commonwealth Sex Discrimination Act should be amended to adopt the much-preferable Tasmanian approach to religious exceptions, thereby dramatically narrowing the special privileges allowing them to engage in discrimination that would otherwise be unlawful.

 

  1. Introduce protections against anti-LGBTI vilification

 

Currently, only four Australian jurisdictions have anti-vilification laws which protect members of the lesbian, gay, bisexual, transgender and intersex community: NSW, Queensland, Tasmania and the ACT. Of those, Queensland doesn’t cover intersex people, while NSW includes LGBTI people in the new criminal offence of ‘publicly threatening or inciting violence’ but only lesbians, gay men and trans people with binary gender identities can make civil complaints of vilification under the Anti-Discrimination Act 1977.

 

There are still no protections against anti-LGBTI vilification in Victoria, Western Australia, South Australia or the Northern Territory. And there is no LGBTI equivalent of section 18C of the Racial Discrimination Act 1975 under Commonwealth law either.

 

This is a situation that must change. Because homophobic, biphobic, transphobic and intersexphobic vilification is just as serious, and just as damaging, as racial vilification.

 

This was unequivocally demonstrated, and witnessed by the entire country, during last year’s same-sex marriage postal survey, with anti-LGBTI (and especially anti-trans) rhetoric in mainstream media and across society more generally. And while there were temporary, narrowly-defined prohibitions on vilification for the duration of that campaign (which have now expired), the hate-speech against our community that it stirred up continues unabated.

 

For all of these reasons, I believe it is beyond time for the Sex Discrimination Act to be amended to prohibit vilification on the basis of sexual orientation, gender identity and sex characteristics.

 

  1. Create an LGBTI Commissioner

 

From the Australian Human Rights Commission (AHRC) website:

 

‘The Commission has a President and seven Commissioners:

  • President Emeritus Professor Rosalind Croucher AM
  • Aboriginal and Torres Strait Islander Social Justice Commissioner Ms June Oscar AO
  • Age Discrimination Commissioner The Hon Dr Kay Patterson AO
  • Children’s Commissioner Ms Megan Mitchell
  • Disability Discrimination Commissioner Mr Alastair McEwin
  • Human Rights Commissioner Mr Edward Santow
  • Race Discrimination Commissioner Mr Chin Tan
  • Sex Discrimination Commissioner Ms Kate Jenkins.’

 

Notice who’s missing? Of the major groups protected against discrimination under legislation administered by the AHRC, only one does not have a stand-alone Commissioner of their own: the LGBTI community.

 

Responsibility for LGBTI issues has instead been allocated to the Human Rights Commissioner (both the current office-holder, and his predecessor, Tim Wilson) but it is merely one of a number of different, often competing priorities of their role – sometimes directly so, given their simultaneous responsibility for promoting religious freedom.

 

It is inevitable that, under this organisational structure, LGBTI issues will not be given the same level of attention as those of race, sex, disability and age. The best way to change this is to amend the Sex Discrimination Act to create a full-time Commissioner dedicated to addressing anti-LGBTI discrimination.

 

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The passage of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 was an important achievement in the long struggle for LGBTI equality in Australia, in my opinion just as significant as the recognition of same-sex de facto relationships in 2008, and the long overdue legalisation of same-sex marriage late last year.

 

But, just five years old, these historic reforms are already showing their inherent limitations. It’s time for Commonwealth parliament to take action to ensure that the Sex Discrimination Act is effective in addressing anti-LGBTI discrimination and vilification. The five reforms suggested above would be a good place to start.

 

julia

Former Prime Minister Julia Gillard passed the historic Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 in the dying days of her leadership.

 

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

 

What’s Wrong With the Commonwealth Sex Discrimination Act 1984?

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This post is part of a series examining anti-discrimination laws around the country, focusing on how well, or in many cases how poorly, they protect lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians against discrimination and vilification. The other posts can be found at the page LGBTI Anti-Discrimination[i] while the text of the Commonwealth Sex Discrimination Act 1984 (‘the Act’) can be found at the Federal Register of Legislation.[ii]

In this post I will be analysing the Act in terms of three main areas: protected attributes, religious exceptions and anti-vilification coverage. I will then briefly discuss any other key ways in which the protections offered by the Act could be improved or strengthened.

As we shall see, while the fact the Sex Discrimination Act includes all sections of the LGBTI community is to be welcomed, there are still some serious deficiencies that need to be remedied before it can be considered an effective anti-discrimination, and anti-vilification, framework.

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Protected Attributes

The Commonwealth Sex Discrimination Act 1984 is one of only four anti-discrimination laws in Australia that explicitly includes all of lesbians, gay men and bisexuals[iii], and transgender[iv] and intersex[v] people (with the other jurisdictions being Tasmania, the ACT and South Australia).

This high level of inclusivity is in large part a consequence of the fact the Commonwealth was the last jurisdiction in Australia to introduce any protections against anti-LGBTI discrimination.

The Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 was only passed in June 2013, taking effect on August 1st of that year – more than three decades after the NSW Anti-Discrimination Act 1977 first covered homosexual discrimination (way back in 1982).

It is perhaps logical then that the most recently passed anti-discrimination law in the country would use the most contemporary terminology. Nevertheless, the achievements of the Act, and the breadth of the protected attributes that are covered, should still be celebrated.

In particular, the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 was the first national anti-discrimination law in the world to explicitly include intersex status as a stand-alone protected attribute. Although, it should be noted that, in the March 2017 Darlington Statement, intersex activists called for this terminology to be replaced by the protected attribute ‘sex characteristics’ as being more accurate and more inclusive.

The definitions of the other protected attributes introduced – sexual orientation and gender identity – are progressive in that they do not reinforce a sex or gender ‘binary’.

Sexual orientation in the Act refers to attraction to “the same sex” or “a different sex” (rather than the opposite sex), while the definition of gender identity does not require a transgender person to identify as male or female (and does not impose any medical or surgical requirements to receive protection either).

Overall, then, the Sex Discrimination Act 1984 is strong in terms of the protected attributes that it covers. Unfortunately, it is mostly downhill from here.

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Religious Exceptions

While the Sex Discrimination Act 1984 is close to the best of any jurisdiction when it comes to protected attributes, in terms of religious exceptions it repeats the same mistakes of most state and territory anti-discrimination legislation.

Under sub-section 37(1), the Act provides religious organisations with extremely broad special rights to discriminate against LGBT[vi] Australians:

“37 Religious bodies

(1) Nothing in Division 1 or 2 affects:

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

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

(c) the selection or appointment of persons to perform duties or functions for the purposes of or in connection with, or otherwise to participate in, any religious observance or practice; or

(d) any other act or practice of a body established for religious purposes, being an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion.”

If religious exceptions are supposed to protect ‘religious freedom’, then the first three paragraphs above, (a)-(c), at least have the benefit of being targeted at activities that are essentially religious in nature (the appointment of religious office-holders, and the holding of religious ceremonies).

However, paragraph (d) appears to endorse discrimination against lesbian, gay, bisexual and transgender Australians across large swathes of public life, including in community, health and welfare services, provided the organisation that does the discriminating was established by a religious body.

This is overly generous, and completely unjustified – especially, although not solely, because the vast majority of these services receive public funding. After all, the sexual orientation or gender identity of a social worker or healthcare professional has absolutely zero bearing on their competence in their role.

The same provision also means that these services can turn away lesbian, gay, bisexual and transgender clients – irrespective of their personal circumstances and need – which is perhaps even more offensive than discriminating against LGBT employees.

Just in case there was any doubt whether religious schools were covered by sub-section 37(1)(d)[vii], the Act then includes an entire section which allows these schools to discriminate against LGBT teachers[viii], contract workers[ix] and students[x].

It appears some religious schools believe the capacity of a person to teach mathematics or science or English is somehow affected by their sexual orientation or gender identity. And it seems that the teachers employed by these schools are expected to impart the values of exclusion and intolerance to their students – what better way for young people to learn to discriminate against LGBT people, all endorsed by the Sex Discrimination Act.

There is however one area in which the Act refused to provide carte blanche to religious organisations to discriminate against LGBTI people, and that was through the inclusion of sub-section 37(2):

“Paragraph (1)(d) does not apply to an act or practice of a body established for religious purposes if:

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

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

In other words, religious organisations that operate Commonwealth-funded aged care services cannot discriminate against lesbian, gay, bisexual or transgender people accessing those services (although they can continue to fire, or refuse to hire, LGBT employees).

This ‘carve-out’ was passed despite opposition from some sections of the then Tony Abbott-led Liberal-National Opposition, including Shadow Attorney-General George Brandis[xii], as well as some particularly vocal and extreme religious organisations, with the provisions taking effect on August 1st 2013.

In practice, there has been no controversy about the operation of this carve-out[xiii] – basically, it works to protect LGBT people accessing aged care services, irrespective of who operate those services, while having no adverse impact on religious freedom.

It is now time that this approach – limiting the ability of religious organisations to discriminate against LGBT people in one area of public life – was expanded to protect LGBT employees in those same aged care services, as well protecting employees and clients across education, community, health and welfare services[xiv].

After all, the worthy objects of the Sex Discrimination Act 1984, including “to eliminate, so far as is possible, discrimination against persons on the ground of sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy or breastfeeding in the areas of work, accommodation, education, the provision of goods, facilities and services, the disposal of land, the activities of clubs and the administration of Commonwealth laws and programs”[xv] cannot be met if, in the same text it allows LGBT Australians to be discriminated against by a large number of organisations, and across a wide range of services.

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Anti-Vilification Coverage

This section will be the shortest of this post because, well, there isn’t any – the Sex Discrimination Act 1984 contains no coverage against vilification for lesbian, gay, bisexual, transgender and intersex Australians.

This stands in marked contrast to the situation for vilification based on race, which is prohibited by section 18C of the Racial Discrimination Act 1975 – a section that has operated effectively for more than two decades (just ask Andrew Bolt), and which has withstood multiple recent attempts at its severe curtailment.

Given homophobic, biphobic, transphobic and intersexphobic vilification are just as serious, and just as detrimental, as racial vilification, there is no reason why LGBTI Australians should not have equivalent protections under the Sex Discrimination Act 1984[xvi].

This would also bring the Commonwealth into line with the four Australian jurisdictions[xvii] that already prohibit vilification against at least some parts of the LGBTI community.

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Other Issues

There are several other areas in which the Sex Discrimination Act 1984 does not currently provide adequate protections for the LGBTI community, including:

The failure to create an LGBTI Commissioner

Part V of the Act creates the position of Sex Discrimination Commissioner within the Australian Human Rights Commission (AHRC). Other areas of discrimination also benefit from the appointment of stand-alone full-time Commissioners, whose primary purpose is to combat such discrimination (including the Race, Age and Disability Commissioners).

However, no equivalent position, addressing LGBTI discrimination, was created with the passage of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013.

This serious oversight meant that, for most of the last term of Parliament, LGBTI issues were handled on a part-time basis by the then ‘Freedom Commissioner’ (and now Liberal MP), Tim Wilson, whose primary role was to ‘defend’ traditional rights. Whenever those two areas of human rights were deemed to come into conflict, LGBTI issues seemed to come off second-best[xviii].

If LGBTI discrimination is to be treated seriously by the Commonwealth Government, it must provide the same level of resources to address it within the AHRC – and that means introducing an LGBTI Commissioner as a matter of priority.

Superannuation protections exclude transgender and intersex people

Section 14 of the Act prohibits discrimination in employment, with sub-section 14(4) focusing on superannuation. However, while it prohibits discrimination on the basis of sexual orientation, it excludes gender identity and intersex status from the list of relevant attributes[xix], apparently leaving transgender and intersex people without protection in this area.

Partnerships of five or less people can discriminate against LGBTI people

Section 17 of the Sex Discrimination Act 1984 prohibits discrimination in relation to ‘partnerships’, including who is invited to become a partner and the terms and conditions on which they are invited. However, these protections only apply to situations where there are six or more partners, meaning that LGBTI are not protected where there are five or less partners[xx].

Voluntary bodies have no restriction on their ability to discriminate

Section 39 of the Act provides a very broad ‘right’ for voluntary bodies to discriminate on a wide range of protected attributes, including sexual orientation, gender identity and intersex status, including in determining who may be admitted as members, and the benefits that members receive. While acknowledging the importance of the ‘freedom to associate’, it seems strange that there is no requirement that the discrimination be related to the purpose of the voluntary body, but is instead essentially unrestricted.

Discrimination by marriage celebrants

As part of the recent passage of LGBTI marriage by Commonwealth Parliament, the Sex Discrimination Act was amended so that, in addition to the existing ability of ministers of religion and military chaplains to decline to perform wedding ceremonies, the new category of ‘religious marriage celebrants’ will also be free to discriminate against LGBTI couples seeking to marry[xxi]. This is despite the fact this includes existing civil celebrants who have nominated to so discriminate based on nothing more than their personal religious beliefs.

Protections in sport exclude transgender and intersex people aged 12 and over

Section 42 of the Sex Discrimination Act 1984 limits the coverage of anti-discrimination protection in relation to sport, in particular by allowing discrimination against transgender and intersex people in “any competitive sporting activity in which the strength, stamina or physique of competitors is relevant” where the participants are aged 12 or over. As with the voluntary bodies provision, this exception appears unnecessarily broad.

Requesting information that does not allow options other than male or female is not prohibited

Finally, section 43A provides that “[t]he making of a request for information is not unlawful… merely because the request does not allow for a person to identify as being neither male nor female” and that “[n]othing… makes it unlawful to make or keep records in a way that does not provide for a person to be identified as being neither male nor female.” If we are to truly recognise diversity in sex and gender, it should be reflected in requests for information.

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Summary

Based on the above discussion, the LGBTI anti-discrimination protections that were introduced via the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 can be described as a good start (albeit one that was long overdue).

That it includes all sections of the LGBTI community is obviously welcome, and the ‘carve-out’ of aged care service provision from religious exceptions is important in and of itself, as well as demonstrating that those same kind of exceptions are both unnecessary and unjustified.

On the other hand, the fact the Act permits discrimination by religious aged care services against LGBT employees, as well as religious organisations providing education, community, health and welfare services – against employees and clients – is its biggest downfall.

Other major problems include the complete absence of anti-vilification coverage for the LGBTI community (unlike section 18C of the Racial Discrimination Act 1975), and the failure to create an LGBTI Commissioner within the Australian Human Rights Commission.

All of which means there is plenty of work left to do until the Sex Discrimination Act 1984 provides a comprehensive and effective anti-discrimination, and anti-vilification, framework for lesbian, gay, bisexual, transgender and intersex Australians.

Christian Porter

Commonwealth Attorney-General Christian Porter should spend a little more time fixing the serious problems of the Sex Discrimination Act 1984, and a little less trying to undermine it through his proposed Religious Discrimination Bill.

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] See LGBTI Anti-Discrimination

[ii] See the Federal Register of Legislation

[iii] Discrimination on the ground of sexual orientation is prohibited by section 5A, with sexual orientation defined by the Act in section 4 as “sexual orientation means a person’s orientation towards:

(a) persons of the same sex; or

(b) persons of a different sex; or

(c) persons of the same sex and persons of a different sex.”

[iv] Discrimination on the ground of gender identity is prohibited by section 5B, with gender identity defined by the Act in section 4 as “gender identity means the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth.”

[v] Discrimination on the ground of intersex status is prohibited by section 5C, with intersex status defined by the Act in section 4 as “intersex status means the status of having physical, hormonal or genetic features that are:

(a) neither wholly female nor wholly male; or

(b) a combination of female and male; or

(c) neither female nor male.”

[vi] Prima facie, it also appears to allow discrimination against intersex people, although the lengthy consultation process that preceded the legislation’s passage demonstrated that religious organisations did not propose to use this exception for that purpose. The Explanatory Memorandum for the Act also indicates these exceptions should not be used with respect to this protected attribute.

[vii] There isn’t really any doubt – sub-section 37(1)(d) clearly applies to religious schools, which means that, just like the NSW Anti-Discrimination Act 1977, religious schools can actually choose from between two different exceptions to defend their discrimination against LGBT teachers and students.

[viii] Section 38 Educational institutions established for religious purpose

(1) Nothing in paragraph 14(1)(a) or (b) or 14(2)(c) renders it unlawful for a person to discriminate against another person on the ground of the other person’s sex, sexual orientation, gender identity, marital or relationship status or pregnancy in connection with employment as a member of the staff of an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the first-mentioned person so discriminates in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.

[ix] Section 38(2) Nothing in paragraph 16(b) renders it unlawful for a person to discriminate against another person on the ground of the other person’s sex, sexual orientation, gender identity, martial or relationship status or pregnancy in connection with a position as a contract worker that involves the doing of work in an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the first-mentioned person so discriminates in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.

[x] Section 38(3) Nothing in section 21 renders it unlawful for a person to discriminate against another person on the ground of the other person’s sexual orientation, gender identity, marital or relationship status or pregnancy in connection with the provision of education or training by an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the first-mentioned person so discriminates in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.

[xi] This provision is reinforced by sub-section 23(3A) which states that religious organisations cannot discriminate against LGBT residents of Commonwealth-funded aged care facilities in terms of accommodation: “Paragraph 3(b) does not apply to accommodation provided by a religious body in connection with the provision, by the body of Commonwealth-funded aged care.”

[xii]See #QandA, Senator Brandis and LGBTI anti-discrimination reforms

[xiii] Given the wide range of scare campaigns run by the Australian Christian Lobby, and others, over recent years (calling for the abolition of the Safe Schools program, and their unsuccessful opposition to marriage equality) there is no doubt if there had been any practical problems with the aged care provisions they would have been splashed across the front page of The Australian by now.

[xiv] This would involve repealing sub-section 37(1)(d) entirely, as well as restricting related provisions (such as sub-section 23(3)(b) that allows religious bodies to discriminate in the provision of accommodation) so that they only apply with respect to the appointment and training of ministers of religion, and the holding of religious ceremonies.

[xv] Sub-section 3(b).

[xvi] For more on this issue – the contrast between section 18C of the RDA, and the lack of LGBTI anti-vilification protections federally – see Don’t Limit Racial Vilification Protections, Introduce Vilification Protections for LGBTI Australians Instead

[xvii] Queensland, NSW, the ACT and Tasmania.

[xviii] For more on this issue, see Why we need a full-time LGBTI Commissioner at the Australian Human Rights Commission

[xix] (4) Where a person exercises a discretion in relation to the payment of a superannuation benefit to or in respect of a member of a superannuation fund, it is unlawful for the person to discriminate, in the exercise of the discretion, against the member or another person on the ground, in either case, of the sex, sexual orientation or marital or relationship status of the member or that other person.

[xx] The same situation applies with respect to sex, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities.

[xxi Section 40 includes the following:

“(2A)  A minister of religion (as defined in subsection 5(1) of the Marriage Act 1961) may refuse to solemnise a marriage despite anything in Division 1 or 2, as applying by reference to section 5A, 5B, 5C or 6, if any of the circumstances mentioned in paragraph 47(3)(a), (b) or (c) of the Marriage Act 1961 apply.

(2AA)  A religious marriage celebrant (as defined in subsection 5(1) of the Marriage Act 1961) may refuse to solemnise a marriage despite anything in Division 1 or 2, as applying by reference to section 5A, 5B, 5C or 6, if:

(a)  the identification of the person as a religious marriage celebrant on the register of marriage celebrants has not been removed at the time the marriage is solemnised; and

(b)  the circumstances mentioned in subsection 47A(1) of the Marriage Act 1961apply.

(2AB)  A chaplain in the Defence Force may refuse to solemnise a marriage despite anything in Division 1 or 2, as applying by reference to section 5A, 5B, 5C or 6, if any of the circumstances mentioned in paragraph 81(2)(a), (b) or (c) of the Marriage Act 1961apply.

Note: Paragraph 37(1)(d) also provides that nothing in Division 1 or 2 affects any act or practice of a body established for religious purposes that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion.”

Response from Gillian Triggs re Responsibility for LGBTI Issues at the Australian Human Rights Commission

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In July, I wrote about the need for a full-time Commissioner for Sexual Orientation, Gender Identity and Intersex (SOGII) Issues at the Australian Human Rights Commission (AHRC)[i].

This was in part a response to the actions of Human Rights Commissioner, Tim Wilson, who, while serving as the AHRC spokesperson for SOGII issues, was arguing for the introduction of new rights to discriminate, including against LGBTI couples, as part of any reform to marriage laws[ii].

However, more broadly, it was a reflection of the overall need for the Commission to devote more resources to addressing issues of homophobia, biphobia, transphobia and intersexphobia across Australian society.

As part of that post, I wrote to the President of the AHRC, Gillian Triggs, calling on her to reallocate responsibility for LGBTI issues to a Commissioner other than Mr Wilson. In September, I received the following response from Ms Triggs:

“21 September 2015

Dear Mr Lawrie

Thank you for your letter to me regarding the responsibility for Sexual Orientation, Gender Identity and Intersex (SOGII) Human Rights at the Commission.

The Australian Human Rights Commission comprises the President and 5 Commissioners. As President, I am responsible for all functions of the Commission. However, each Commissioner has a specific portfolio for which they are individually responsible.

I asked Tim Wilson to be the spokesperson on SOGII human rights. However, I and the other Commissioners also contribute public comment on the SOGII portfolio.

Under our statutory mandate at the Commission also has several functions that address the SOGII brief.

  1. We accept and try to resolve by conciliation individual complaints of discrimination and human rights under the four major pieces of legislation. No complaint under these acts can go to a court, unless and until the matter has been considered by the Commission.
  1. We intervene in court proceedings that involve human rights issues and we examine laws relating to certain rights and often propose improvements to those laws.
  1. We conduct national inquiries to bring special attention to issues of concern.
  1. We provide education about human rights to improve awareness, understanding and respect for rights in our community – in particular, the Commission is contributes to the inclusion of human rights education in the development of the National Schools Curriculum and works with the Safe Schools Coalition Australia.
  1. We conduct research and propose new policy and standards which promote the enjoyment of human rights.

The latest example of this is the Resilient individuals: sexual orientation, gender identity & Intersex rights national consultation report, a copy of which I have included in this letter.

The aim of the project was to consult stakeholders to identify key issues that can inform the Commission’s future work on SOGII issues. From June 2014 to January 2015 Cr Tim Wilson travelled nationally to consult lesbian, gay, bisexual and transgender stakeholders in face to face meetings. In addition, over 1550 people participated in an online survey, and over 30 written submissions were received.

While each Commissioner is free to adopt an individual approach to the SOGII portfolio, the Australian Human Right Commission maintains a unified policy in ensuring human rights apply equally to LGBTI stakeholders.

I hope that this description of the contribution to SOGII matters is helpful.

Best wishes,

Gillian Triggs

President”

[NB Typographical errors in original]

In my view, this letter is not exactly a ringing endorsement of Mr Wilson, or the job that he is doing on LGBTI issues. While it notes the Resilient individuals process and report, led by Mr Wilson, it also makes clear that “I [Gillian Triggs] and the other Commissioners also contribute public comment on the SOGII portfolio” and that “the Australian Human Rights Commission maintains a unified policy in ensuring human rights apply equally to LGBTI stakeholders.”

Unfortunately, that doesn’t answer the question of whether Ms Triggs and the AHRC are unified in support of the introduction of new rights to discriminate as part of the implementation of marriage equality, something that Mr Wilson advocated for, yet again, last week in the Sydney Morning Herald.[iii]

Nor does it overcome the problem of the AHRC spokesperson on SOGII human rights prioritising the expansion of religious freedoms, including through convening his ‘religious freedom roundtable’ (with the first meeting to be held next Thursday, 5 November 2015), something which usually results in the diminution of rights for lesbian, gay, bisexual, transgender and intersex people.[iv]

However, it appears that these issues aren’t going to be resolved any time soon and, in fact, they may only be conclusively resolved when either the Turnbull Liberal-National Government, or a subsequent Labor Government, finally creates and provides funding for a stand-alone LGBTI Commissioner within the AHRC. Based on the agenda currently being pursued by Mr Wilson, in my opinion that day can’t come soon enough.

President of the Australian Human Rights Commission, Professor Gillian Triggs

President of the Australian Human Rights Commission, Professor Gillian Triggs

[i] “Why we need a full-time LGBTI Commissioner at the Australian Human Rights Commission” July 12, 2015: https://alastairlawrie.net/2015/07/12/why-we-need-a-full-time-lgbti-commissioner-at-the-australian-human-rights-commission/

[ii] “Religious freedom and same-sex marriage need not be incompatible” The Australian, 6 July 2015 http://www.theaustralian.com.au/opinion/religious-freedom-and-same-sex-marriage-need-not-be-incompatible/story-e6frg6zo-1227429558684

[iii] “Religious freedom isn’t a trump card, but it does need to be a part of marriage equality debate” Sydney Morning Herald, 21 October, 2015 http://www.smh.com.au/comment/religious-freedom-isnt-a-trump-card-but-it-does-need-to-be-a-part-of-marriage-equality-debate-20151020-gkecyn.html

[iv] For more on this issue, see my “Submission on AHRC proposal to create a religious freedom roundtable” September 25, 2015: https://alastairlawrie.net/2015/09/25/submission-on-ahrc-proposal-to-create-a-religious-freedom-roundtable/

Submission on AHRC Proposal to Create a ‘Religious Freedom Roundtable’

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Mr Tim Wilson

Australian Human Rights Commissioner

C/- rights@humanrights.gov.au

Friday 25 September 2015

Dear Mr Wilson

Submission on Religious Freedom Roundtable Proposal

Thank you for the opportunity to provide comments on your proposal to establish a ‘Religious Freedom Roundtable’, including on its draft ‘Statement of purposes and Guiding principles.’

From the outset, I would like to express my scepticism of the need for, and purpose of, this Roundtable.

While your call for submissions[i] at least briefly acknowledges the biggest problem in this area (“how to balance religious freedom with other human rights”), the remainder instead appears to focus on the ‘expansion’ of religious freedom, with the explicit goal of developing a body of policy work “that is designed to enlarge respect for religious freedom and proper consideration of its importance in future policy development and law reform.”[ii]

This is despite the fact that no clear need is articulated for such ‘enlargement’.

Indeed, as suggested by the Australian Law Reform Commission (ALRC) in its recent Interim Report as part of its own Freedoms Inquiry:

“[g]enerally speaking, Australians enjoy significant religious freedom, particularly by comparison to other jurisdictions. Australians enjoy the freedom to worship and practise religion, as well as the freedom not to worship or engage in religious practices.”[iii]

The ALRC went on to comment that:

“[t]here are few Commonwealth laws that can be said to interfere with freedom of religion. The Law Council of Australia advised that ‘it has not identified any laws imposing any specific restriction on the freedom of religion’ and ‘that any specific encroachment is likely to arise in balancing religious freedom with other protected freedoms, such as freedom of speech’.”[iv]

Indeed, it is difficult to think of many areas where religious freedoms are genuinely encroached upon, with the exception of the mistreatment of muslim Australians, by both Governments and other Australians, in the 14 years post September 11 (and it is difficult to see how this Roundtable would help address that issue), or the ongoing abuse of refugees fleeing religious persecution who are detained, processed and resettled on Nauru and Manus Island (although sadly there is nothing unique about this mistreatment, with all refugees who arrive by boat abused by Governments, of both persuasions, in this way).

On the other hand, it is easy to identify ways in which ‘religious freedom’ is currently exercised to discriminate against other Australians, and in this way cause significant harm to them and their rights.

The most obvious, and egregious, example of this is the extremely broad exceptions under most Commonwealth, state and territory anti-discrimination laws that permit religious organisations to discriminate against lesbian, gay, bisexual and transgender (LGBT) Australians.

In the Commonwealth Sex Discrimination Act 1984, these exceptions are contained in sections 23(3)(b), 37 and 38, with sub-section 37(1)(d) revealing exactly how broad this special right to discriminate is in practice:

“[n]othing in Division 1 or 2 affects… any other act or practice of a body established for religious purposes, being an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion.”

In practice, this means that the Commonwealth Government tacitly endorses discrimination by religious organisations against gay teachers, lesbian students, bisexual people accessing health of community services and transgender aged care employees, among many others.

There are also a wide variety of more indirect ways in which ‘religious freedom’ has been used, and continues to be used, to oppress lesbian, gay, bisexual transgender and intersex (LGBTI) Australians.

This obviously includes ongoing advocacy by a number of mainstream christian churches, as well as by homophobic groups like the Australian Christian Lobby, to seek continued discrimination on the basis of sexual orientation, gender identity and intersex status through the secular Marriage Act 1961.

But it also includes things like campaigning to ensure the National Health & Physical Education Curriculum does not include content that is genuinely-inclusive of LGBTI students (thus denying their right to health information), or calling on Governments to abolish the national Safe Schools Coalition, a program with the explicit goal of reducing homophobic, biphobic, transphobic and intersexphobic bullying.

For all of the above reasons, I call on you to reconsider the need to establish a ‘Religious Freedom Roundtable’ and that, if you do, to amend the scope of such a Roundtable to ensure that its primary focus is on addressing the many ways in which ‘religious freedom’ is currently used as a weapon, by some elements within society, to legitimise homophobic, biphobic, transphobic and intersexphobic discrimination that is, and should be considered, unacceptable.

Before I turn to the ‘Statement of purposes and Guiding principles’ I would like to make two additional points about the information contained in the call for submissions.

First, in relation to the dot point “[p]reserving religious freedom when an organisation receives taxpayer’s money to provide a public service”, I would note that nearly all religious organisations receive taxpayer’s money through the generous exemptions from taxation law which they currently enjoy.

I would also note that this dot point appears to relate to the ‘carve-out’ to existing exceptions contained in the Sex Discrimination Act 1984, which has the effect of prohibiting discrimination by religious-operated aged care services against LGBT people accessing their services, where that service receives Commonwealth funding.[v]

In my view, this carve-out is not wide enough – there is no justification for these services to be legally permitted to discriminate against LGBT employees, either.

But, most importantly, from my perspective it is not the involvement of Government funding that means such discrimination should be prohibited – it is the fact that, employment and service provision in the public sphere, which includes the operation of aged care services, should be free from discrimination on the basis of sexual orientation, gender identity and intersex status. Full stop.

Second, in relation to the dot point “[b]alancing the right to religious freedom and equality before the law – what are the areas of shared agreement?” I note that the right not to be discriminated against (or ‘freedom from discrimination’), is in fact much broader than just ‘equality before the law’, which could be narrowly-construed as meaning equality under legislation and/or before the courts, rather than, say, equal access to employment or service provision.

Specific Comments Regarding the Draft Statement of purpose and Guiding principles[vi]

The ‘Statement of purpose’ describes the Religious Freedom Roundtable as a forum “for representatives of religious and spiritual communities to have ongoing engagement and dialogue about freedom of religion, conscience and belief (‘religious freedom’) and its interaction with public policy in 21st century Australia.”

Given the discussion above, and the fact that LGBTI Australians are the people most negatively affected by the exercise of ‘religious freedom’ in Australia, it seems odd to establish a roundtable to look at these issues and yet not have LGBTI organisations at the table.

This omission could be seen as indicating that the Religious Freedom Roundtable is in fact concerned with prioritising or ‘privileging’ the rights of religious organisations over and above the rights of other people, including those of LGBTI Australians.

Under the heading ‘Mutual respect’, in the first paragraph, you note that “[religious freedom] interacts with other fundamental freedoms including freedoms of thought, conscience, speech and association, as well as property rights.”

In response, I reiterate the position from my submission to last year’s Rights and Responsibilities Consultation that highlighting these rights, simply because they are ‘traditional’ or even just older, but omitting other rights such as the right to non-discrimination which in practice is just as important, is unjustified.[vii]

In short, “prioritising certain rights above others potentially neglects and devalues the importance of those other rights which are no less essential to ensuring all Australians are able to fully participate in modern society.”[viii]

Finally, I would like to make the following points in relation to specific ‘Guiding principles’:

Principle 1: Religious freedom is fundamental to the Australian way of life, and should be treated equally to all other human rights and freedoms.

and

Principle 2: Religious freedom is a fundamental human right that should be respected and not limited unless it infringes on the rights of others.

I agree with these statements, and particularly the observations that religious freedom should be ‘treated equally to all other human rights and freedoms’ and respected ‘unless it infringes on the rights of others’.

In practice, this should mean that the right to non-discrimination should be ‘treated equally’ to the right to religious freedom.

More importantly, it means that, given exceptions to anti-discrimination law allowing religious organisations to discriminate against LGBT Australians in health, education, community services and aged care are clearly an infringement on the right to non-discrimination in public life, and that they cause significant harm to these people, such exceptions should be abolished.

Principle 3: Religious freedom has an essential and important role in our public life or civic affairs to contribute to the moral and spiritual guidance of our nation; and faith is as legitimate basis for participation in public life and civic affairs as any other.

I disagree with this statement for two reasons. First, as an atheist, and noting that Australia is a secular state, I reject the notion that ‘our nation’ as a whole necessarily requires ‘moral and spiritual guidance’ from organised religion.

Second, while people should not be prohibited from participation in public life on the basis of their religious beliefs, I do not believe it is appropriate for religious individuals and/or organisations to seek to impose ‘religious laws’ on their fellow citizens.

An example of this is the ongoing campaign by christian fundamentalists to impose a narrow religious interpretation of marriage on their fellow citizens through the secular Marriage Act 1961, in this way denying the human rights of those who do not share the same faith – and even of other christians who do not subscribe to their particular homophobic definition of this institution.

Thus, while participation in public life and civic affairs should be open, such participation should not be abused by using religion as a tool to oppress others.

Principle 6: No Australians should be unnecessarily excluded from participation in public life or civic affairs because of their faith, age, disability, gender, race, sexual orientation, or other irrelevant personal attribute.

While I agree with the underlying sentiment of this principle, I find it disappointing that, as both the ‘Freedom Commissioner’ and also the Commissioner with responsibility for LGBTI issues, you have not explicitly mentioned gender identity or intersex status as part of this principle. These two protected attributes from the Sex Discrimination Act 1984 should be included.

Principle 8: When considering issues that affect the rights of others, it is necessary to provide equal opportunities to enlarge and consider their perspectives with the objective of accommodating and enlarging the human rights of all.

This principle appears to contradict the Statement of purpose, described above – specifically, given most contentious issues surrounding religious freedom in fact concern its intersection with the right to non-discrimination of LGBTI Australians, it is objectionable that LGBTI people and organisations are not included in this roundtable from the beginning.

Principle 10: Individuals and communities of faith will continue to constructively work with government and other public agencies to uphold the law and improve Australia’s moral and spiritual guidance.

As with principle 3, above, as an atheist I reject the implication that Australia, as a secular nation, necessarily requires ‘moral and spiritual guidance’ from organised religion.

Thank you again for the opportunity to provide comments on your proposal to establish a ‘Religious Freedom Roundtable’, including on its draft ‘Statement of purposes and Guiding principles.’

If you would like to clarify any of the above, or require further information, please contact me at the details below.

Sincerely,

Alastair Lawrie

[i] https://www.humanrights.gov.au/our-work/rights-and-freedoms/projects/religious-freedom-roundtable-call-submissions

[ii] Ibid.

[iii] ALRC, “Freedoms Inquiry Interim Report”, August 2015, para 4.1, page 97. See http://www.alrc.gov.au/publications/alrc127

[iv] Ibid, para 4.39, page 104.

[v] Sub-section 37(2): Paragraph (1)(d) does not apply to an act or practice of a body established for religious purposes if: (a) the act or practice is connected with the provision, by the body, of Commonwealth-funded aged care; and (b) the act or practice is not connected with the employment of persons to provide that aged care.

[vi] https://www.humanrights.gov.au/sites/default/files/DRAFT_ReligiousFreedomRoundtable_2015_AHRC_1.pdf

[vii] See my full submission here: https://alastairlawrie.net/2014/10/27/submission-to-rights-responsibilities-2014-consultation/

[viii] Ibid.