Did You Know? The NSW Anti-Discrimination Act Doesn’t Protect Bisexuals Against Discrimination

Posted on February 29, 2020 by Alastair Lawrie

The Sydney Gay & Lesbian Mardi Gras Parade is on tonight, and I am looking forward to attending the festivities in Taylor Square.

Although it will likely be in less noteworthy company than last year when, through an unlikely combination of circumstances, I ended up watching most of the parade standing next to NSW Premier Gladys Berejiklian.

Always the activist, and never one to waste an opportunity, I did manage to ask her an LGBTI rights question during the event. The question I chose:

Are you aware that NSW is the only jurisdiction in Australia that does not protect bisexuals against discrimination?

The Premier answered that ‘no, she wasn’t aware of that’ (or words to that effect) before turning back to talk to her companions.

In her defence, she would not have been alone in not knowing about this bizarre, and unacceptable, loophole in the NSW Anti-Discrimination Act 1977 (although she definitely cannot claim ignorance now).

It is a gap that has existed from the time discrimination on the basis of homosexuality was prohibited in late 1982 (a full 18 months before male homosexuality was even decriminalised in this state).

And one that wasn’t fixed when a definition of ‘homosexual’ was inserted in section 4 of the Anti-Discrimination Act in 1994: ‘homosexual means male or female homosexual’.

This is the definition that remains to this day. Which quite clearly excludes people whose sexual orientation is towards people of the same sex and people of different sexes. [Interestingly, it also prevents heterosexual people from enjoying protection under the Act].

As I stated in my question to Ms Berejiklian, NSW is alone in having such a narrow definition.

The Commonwealth prohibits discrimination on the basis of ‘sexual orientation’ in the Sex Discrimination Act 1984, with a definition that clearly covers lesbian, gay, bisexual and heterosexual people.

Victoria, Western Australia, South Australia and Tasmania all also prohibit discrimination on the basis of ‘sexual orientation’, while Queensland the Australian Capital Territory and the Northern Territory cover ‘sexuality’ [for more, see A Quick Guide to Australian LGBTI Anti-Discrimination Laws].

What does NSW’s exclusion of bisexuals mean in a practical sense?

Well, on the positive side, because bisexuals are still protected under the Commonwealth Sex Discrimination Act, discrimination against them in NSW remains prohibited in most (although not all) circumstances.

However, there are limits to this coverage – limits that do not apply to lesbians and gay men.

For example, section 13 of the Sex Discrimination Act provides that protections against discrimination in employment under that Act ‘do not apply in relation to employment by an instrumentality of a State.’

Instrumentalities are independent government agencies or corporations. In effect, bisexual employees of independent NSW Government agencies are not protected against discrimination during their employment.[i] Ironically, this means bisexual employees of Anti-Discrimination NSW itself are potentially not protected.

Another practical effect of the exclusion of bisexuals from the NSW Anti-Discrimination Act 1977 is that they are not covered by civil prohibitions on vilification, unlike their gay and lesbian counterparts.

For example, section 49ZT of the Act defines homosexual vilification as ‘to incite hatred towards, serious contempt for, or severe ridicule of, a person of group of persons on the ground of the homosexuality of the person of members of the group.’

Because there is also no prohibition against anti-LGBTI vilification at Commonwealth level, this means bisexual people cannot make a civil complaint of vilification in any circumstance.

Confusingly, bisexual people are protected by the 2018 amendments to the Crimes Act 1900 (NSW), with section 93Z(1)(c) criminalising:

‘a public act [that] intentionally or recklessly threatens or incites violence towards another person or a group of persons on [the ground of] the sexual orientation of the other person or one or more of the members of the group.’

Sexual orientation is then broadly defined in section 93Z(5) as:

‘a person’s sexual orientation towards:

(a) persons of the same sex, or

(b) persons of a different sex, or

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

Which is obviously welcome, but invites the logical question that, if the NSW Government was willing to include ‘sexual orientation’ in the Crimes Act, why hasn’t it also updated the NSW Anti-Discrimination Act along the same, inclusive, lines?

The third practical effect of the general exclusion of bisexuals from the NSW Anti-Discrimination Act is that it limits their options in terms of where to lodge complaints and/or file lawsuits.

Whereas lesbians and gay men discriminated against in NSW have the ability to complain to either Anti-Discrimination NSW or the Australian Human Rights Commission (AHRC) – and therefore of pursuing legal action in either the NSW Civil and Administrative Tribunal (NCAT) or multiple courts – bisexuals can only complain to the AHRC and can only file in court.

This has implications in terms of the timelines for lodging complaints, the allocation of costs and the potential award of damages.

Each of these practical effects should be sufficient in and of itself to convince the NSW Government to update the Anti-Discrimination Act 1977, and replace ‘homosexuality’ with ‘sexual orientation’.

But, as with most anti-discrimination laws, the symbolic effect is just as important. After all, what does it say about the place of bisexuals in our own community, and society more widely, that they continue to be excluded from the primary legislation in this state which is designed to ensure all people are treated equally?

Unfortunately, it is not just bisexuals who are excluded in this way either.

The NSW Anti-Discrimination Act 1977 also excludes non-binary people, because the definition of transgender in section 38A only covers someone who ‘identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex, or who has identified as a member of the opposite sex by living as a member of the opposite sex’.

Similarly, the Act also fails to provide discrimination protections to intersex people, because it does not include a protected attribute of either ‘sex characteristics’ (the terminology preferred by Intersex Human Rights Australia) or ‘intersex status’ (the protected attribute in the Commonwealth Sex Discrimination Act 1984).

Although, unlike for bisexuality, NSW is far from alone in these deficiencies:

NSW, Victoria, Queensland, Western Australia and the Northern Territory all fail to protect non-binary people, and
Those same jurisdictions (NSW, Victoria, Queensland, WA and the NT) also exclude intersex people from their discrimination frameworks.

There is a long, long way to go before Australian anti-discrimination laws adequately and appropriately protect LGBTI Australians against discrimination.

The NSW Anti-Discrimination Act 1977 arguably has the longest journey ahead.[ii] Let’s hope Premier Berejiklian hears that message loud and clear at tonight’s Mardi Gras – and every parade until this exclusionary and out-dated law is fixed.

Bi Pride

This article is part of a series. Find other ‘Did You Know?’ posts here.

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] To complicate matters, bisexual employees of NSW Government agencies are protected against unlawful termination, because section 772 of the Fair Work Act 2009 (Cth) applies. However, the adverse action protections in section 351 of that Act (which prohibit mistreatment during employment) don’t apply because they must also be prohibited by an equivalent Commonwealth, state and territory anti-discrimination law – which is not the case here.

[ii] For more problems see: What’s Wrong with the NSW Anti-Discrimination Act 1977?

Did You Know? South Australia Has Finally Abolished the Gay Panic Defence

Posted on February 2, 2020 by Alastair Lawrie

Updated 19 December 2020:

It is always enjoyable being able to update these articles when a long-standing goal of LGBTI law reform has been achieved. Which happened in South Australia on 1 December 2020, when it became the final Australian jurisdiction to abolish the gay panic defence.

I am proud of the small role I played in this, including by keeping this issue on the agenda earlier this year (and even having this article referred to in South Australian Parliamentary Hansard – see the end of the post, below), but obviously play tribute to the effective advocacy and leadership of South Australian Rainbow Advocacy Alliance for getting this done (give them a follow on Facebook, here).

**********

Original post (‘Did You Know? South Australia Still Hasn’t Abolished the Gay Panic Defence):

For those who are not aware, the ‘gay panic’ defence (sometimes referred to as the homosexual advance defence) was a partial defence to murder in Australia.

Part of the broader partial defence of provocation, the gay panic defence applied where a defendant killed another person but claimed it was because they lost control in response to an unwanted, non-violent sexual advance by the victim.

If successfully raised, the defendant would be convicted of manslaughter instead of murder, and generally a lower maximum sentence would be imposed.

If this sounds abhorrent, that’s because it was. Primarily used in circumstances where a heterosexual man killed a gay man, the gay panic defence was nothing short of legalised homophobia.

It told society that one of the most awful things that could happen to a heterosexual man was to be ‘hit on’ by a gay or bisexual man.

It told gay and bisexual men their lives were not as valuable as other members of the community.

Despite this, the gay panic defence was upheld as valid by a majority of the High Court of Australia in the infamous case of Green v The Queen [1997] HCA 50.

The injustice of this outcome was eloquently described by Justice Michael Kirby in his dissenting judgment to that decision:

“If every woman who was the subject of a ‘gentle’, ‘non-aggressive’ although persistent sexual advance… could respond with brutal violence rising to an intention to kill or inflict grievous bodily harm on the male importuning her, and then claim provocation after a homicide, the law of provocation would be sorely tested and undesirably extended…

Any unwanted sexual advance, heterosexual or homosexual, can be offensive. It may intrude on sexual integrity in an objectionable way. But this Court should not send the message that, in Australia today, such conduct is objectively capable of being found by a jury to be sufficient to provoke the intent to kill or inflict grievous bodily harm. Such a message unacceptably condones serious violence by people who take the law into their own hands.”

But that was exactly the message that Kirby’s High Court colleagues chose to send. And it sent a message to state and territory parliaments around the country: the only way to end the gay panic defence was for them to amend the partial defence of provocation.

As well as a third and final message to the LGBTI community – that we needed to engage in eight separate campaigns to remove the stain of the gay panic defence from the law books.

Seven of those campaigns have been successful. As with many LGBTI law reforms, Tasmania was the first to act, abolishing the partial defence of provocation entirely (therefore including the gay panic defence) in 2003.

Victoria, Western Australia and Queensland have also chosen to abolish provocation entirely, while New South Wales, the Australian Capital Territory and Northern Territory have instead legislated that non-violent sexual advances (including same-sex advances) are not a valid defence to murder.

Queensland was the last of these jurisdictions to take action – abolishing the gay panic defence in 2017.

Unfortunately, though, that leaves one jurisdiction that has so far failed to take action. It also means that the use of the past tense, in the introduction to this article, was incorrect.

That’s because today, 2 February 2020, the gay panic defence is still a partial defence to murder in South Australia.

That seems extraordinary – the first Australia jurisdiction to decriminalise homosexuality, in 1975, is the last to reform a law that says a heterosexual man killing a gay or bisexual man who makes an unwanted, non-violent sexual advance towards him is less culpable than other killers.

Of course, LGBTI rights advocates in South Australia have long called for the repeal of the gay panic defence.

The South Australian Law Reform Institute has also recommended this change, calling for the partial defence of provocation to be abolished in April 2018.

The current Liberal Government has even agreed. On 9 April 2019, South Australian Attorney-General Vickie Chapman issued a media release titled ‘State Government moves to abolish provocation defence’, including the following comments:

The Marshall Liberal Government will introduce legislation abolishing the defence of provocation by the end of the year, after announcing today a Bill will be drafted to go out for extensive consultation…

“The fact that an outdated legal position such as this is [sic] still exists is disappointing, to say the least,” Ms Chapman said…

“Cabinet has now approved the drafting of a Bill that reflects the Marshall Government’s response to the [South Australian Law Reform] Institute’s recommendations, and ensure our laws in this area are brought up to date.”

Ms Chapman said key stakeholders – such as the Director of Public Prosecutions, the Courts Administration Authority and victims’ rights groups – would be consulted on the draft legislation, with a view to bringing a Bill before the Parliament by the end of the year.

Unfortunately, the end of 2019 came and went, but legislation ending the gay panic defence in South Australia was nowhere to be seen.

There does not appear to be any current Bill before the South Australian Parliament to end this abhorrent partial defence. Nor has there been any follow-up media release from Ms Chapman as far as I can ascertain.

Indeed, the only thing that comes up when searching for ‘gay panic’ or ‘provocation’ on the website of the South Australian Attorney-General’s Department is that initial April 2019 release promising reform before the end of last year.

This situation is obviously not good enough. In the third decade of the 21^st century, it is simply unacceptable that the law of an Australian jurisdiction still provides that killing a gay or bisexual man who makes an unwanted, non-violent sexual advance is in any way justifiable.

It’s time for the South Australian Government to live up to its promise to end the gay panic defence once and for all. With Parliament resuming this coming Wednesday, 5 February 2020, what better time to get started.

Take Action

You can write to the Premier, or Attorney-General (or both!), calling for them to implement their promise to abolish the gay panic defence as a matter of priority. Their contact details:

The Hon Steven Marshall MP

Premier of South Australia

GPO Box 2343

ADELAIDE SA 5001

premier@sa.gov.au

Twitter: https://twitter.com/marshall_steven

Facebook: https://www.facebook.com/StevenMarshallMP/

The Hon Vickie Chapman

Attorney-General of South Australia

GPO Box 464

ADELAIDE SA 5001

AttorneyGeneral@sa.gov.au

Twitter: https://twitter.com/VickieChapmanMP

Facebook: https://www.facebook.com/vickiechapmanMP/

My own email to the Attorney-General, and copied to the Premier:

Dear Ms Chapman,

I welcome your promise of 9 April 2019 to abolish the gay panic defence (media release: ‘State Government moves to abolish provocation defence’).

However, I note your commitment that this legislation would be introduced before the end of last year does not appear to have been met.

As we enter the third decade of the 21^st century, there is no room in the law for this partial defence, which tells society that one of the most awful things that can happen to a heterosexual man is to be ‘hit on’ by a gay or bisexual man.

More importantly, this law tells gay and bisexual men their lives are not as valuable as other members of the community.

With South Australian Parliament resuming on Wednesday 5 February, I look forward to the Government introducing legislation to abolish the gay panic defence as a matter of urgency.

Sincerely,

Alastair Lawrie

The following response was received from Attorney-General Vickie Chapman:

21 February 2020

Dear Mr Lawrie

Abolition of the ‘gay panic’ defence

I write in response to your email of 2 February 2020 to myself and the Premier, the Hon Steve Marshall MP, regarding the repeal of the so-called ‘gay panic’ defence.

I acknowledge your concerns that legislation to remove the gay panic defence is yet to be introduced in Parliament. As I have previously made clear, my views are that the gay panic defence is offensive and unacceptable, and I appreciate what the removal of this defence means to so many in the LGBTQI community.

To that end, I advise that officers in the Attorney-General’s Department are working on the Bill to make significant changes to this area of law, largely based on recommendations contained in the South Australian Law Reform Institute (SALRI) Report on The Provoking Operation of Provocation.

The defence of provocation is a complex area of sentencing law, and it is important that the legislation to remove the gay panic defence is properly considered. Accordingly, it has been necessary for me to seek expert advice regarding the abolition of the defence in murder cases as well as consider further reforms to sentencing and defences relating to family violence. The potential implications of the removal of the defence are significant and there are aspects of provocation laws that should remain in our sentencing regime, including for example, where domestic violence victims kill an abuser in self-defence.

The Bill will abolish the common law defences of provocation, necessity, duress and marital coercion and substitute statutory defences for necessity and duress. The partial defence of provocation (which has been, in some circumstances, used as a defence to unwanted same-sex advances) will be abolished.

The passage of this Bill remains a priority for the Government. It is my intention to progress the Bill to consultation in the first quarter of this year.

Thank you for your interest in this issue.

Yours sincerely

Vickie Chapman MP

Deputy Premier

Attorney-General

On Wednesday 3 June 2020, the South Australian Legislative Council debated a motion proposed by Greens MLC Tammy Franks calling on the SA Government to take action to finally abolish the gay panic defence.

Liberal Minister Lensink, representing the Attorney-General, reiterated the Government’s commitment to take action, stating “The passage of this bill remains a priority for the government. It is the Attorney’s intention to progress the bill to wider consultation in coming months.”

Which, as the above correspondence makes clear, we’ve frankly heard before. Hopefully this time they follow through, with the full urgency this issue deserves.

On the positive side, the motion, while amended, nevertheless passed and featured the following statement: “That this council condemns the continued existence of the so-called ‘gay panic’ provocation defence for murder.”

On a personal note, it was also pleasing to be cited during ALP MLC Irene Pnevmatikos’s speech in the debate, who referred to this article and the above response from Attorney-General Chapman to my correspondence from earlier this year. Sometimes old-fashioned advocacy can still make a difference.

An excerpt from Irene Pnevmatikos MLC’s speech during the debate on 3 June 2020.

South Australian Attorney-General Vicki Chapman.

23 LGBTI Issues for the 2019 NSW Election

Posted on February 16, 2019 by Alastair Lawrie

The 2019 NSW election will be held on Saturday March 23.

It will determine who holds Government until March 2023.

Therefore, with just over a month to go, here are 23 LGBTI issues that parties and candidates should address.

Provide anti-discrimination protection to bisexual people

The NSW Anti-Discrimination Act 1977 is the only LGBTI anti-discrimination law in Australia that does not cover bisexual people. This should be amended as a matter of urgency, by adopting the Sex Discrimination Act 1984 (Cth) definition of sexual orientation.[i]

Provide anti-discrimination protection to non-binary trans people

The NSW Anti-Discrimination Act 1977 also fails to protect non-binary trans people against mistreatment, because its definition of transgender is out-dated. This definition should be updated, possibly using the Sex Discrimination Act definition of gender identity, to ensure it covers all trans and gender diverse people.

Provide anti-discrimination protection to intersex people

The NSW Anti-Discrimination Act 1977 does not have a stand-alone protected attribute covering people born with intersex variations. It should be amended as a matter of urgency by adopting the Yogyakarta Principles Plus 10 definition of sex characteristics: ‘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.’

Remove the special privileges that allow private schools and colleges to discriminate against LG&T students and teachers

The NSW Anti-Discrimination Act 1977 is the only LGBTI anti-discrimination law in Australia that allows all privates schools and colleges, religious and non-religious alike, to discriminate on the basis of homosexuality and transgender status.[ii] These special privileges must be repealed, so that all LGBTI students, teachers and staff are protected against discrimination no matter which school or college they attend.

Remove the general exception that allows religious organisations to discriminate in employment and service delivery

Section 56(d) of the NSW Anti-Discrimination Act 1977 provides that its protections do not apply to any ‘act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avoid injury to the religions susceptibilities of the adherents of that religion.’ This incredibly broad exception allows wide-ranging discrimination against lesbian, gay and trans people. This provision should be replaced by the best-practice approach to religious exceptions in Tasmania’s Anti-Discrimination Act 1998.

Remove the special privilege that allows religious adoption agencies to discriminate against LG&T prospective parents

Section 59A of the NSW Anti-Discrimination Act 1977 allows religious adoption agencies to discriminate against prospective parents on the basis of homosexuality and transgender status. This special privilege should be repealed, because the ability of an individual or couple to provide a loving and nurturing environment for a child has nothing whatsoever to do with their sexual orientation or gender identity.

Reform commercial surrogacy laws

Under the NSW Surrogacy Act 2010, it is illegal to enter into commercial surrogacy arrangements, either within NSW or elsewhere (including overseas), punishable by up to two years’ imprisonment. Despite this prohibition, people in NSW (including many same-sex male couples) continue to enter into international surrogacy arrangements. It is clearly not in the best interests of children born through such arrangements for either or both of their parents to be subject to criminal penalties. NSW should either legalise and appropriately regulate commercial surrogacy domestically, or remove the prohibition on international surrogacy.[iii]

Recognise multi-parent families

Modern families continue to evolve, particularly in terms of the number of parents who may be involved in a child’s upbringing, and especially within rainbow families (for example, with male donors playing an increasingly active role in the lives of children born with female co-parents). This growing complexity should be recognised under the law, including the option of recording more than two parents on official documentation.

Modernise the relationships register

The NSW relationships register may have declined in salience, especially within the LGBTI community, following the passage of same-sex marriage in December 2017. However, it remains an important option for couples to legally prove their relationship, especially for those who do not wish to marry (for whatever reason). However, the NSW Relationships Register Act 2010 requires modernisation, including by amending the term ‘registered relationship’ to ‘civil partnership’, and by allowing couples to hold a ceremony if they so choose.[iv]

Remove surgical and medical requirements for trans access to identity documentation

Another law requiring modernisation is the NSW Births, Deaths and Marriages Registration Act 1995, which currently provides that, in order to record a change of sex, a person must first have undergone a sex affirmation procedure. This is completely inappropriate, especially because many trans and gender diverse people either do not want to, or cannot (often for financial reasons), undergo surgery. Gender identity should be based on exactly that, identity, with this law amended to allow documentation to be updated on the basis of statutory declaration only, without medical practitioners acting as gate-keepers.[v] The range of identities that are recorded should also be expanded, and this should be done in consultation with the trans and gender diverse community.

Ban unnecessary and involuntary medical treatment of intersex children

One of the worst human rights abuses perpetrated against any LGBTI community in Australia is the ongoing involuntary medical treatment of intersex children, which often includes unnecessary surgical modification to sex characteristics. Despite a 2013 Senate report recommending action to end these harmful practices, nothing has been done, including in NSW. With a new review being undertaken by the Australian Human Rights Commission,[vi] whoever is elected in March must take concrete steps to ban non-consensual, medically unnecessary modifications of sex characteristics as soon as possible. In doing so, they should consult with Intersex Human Rights Australia and other intersex organisations, and be guided by the Darlington Statement.

Ban gay and trans conversion therapy

Another abhorrent practice that should be banned immediately is gay or trans conversion therapy, which is not therapy but is psychological abuse. Thankfully, this problem has received increased attention over the past 12 months, including a focus on the need for multi-faceted strategies to address this issue. However, a key part of any response must be the criminalisation of medical practitioners or other organisations offering ‘ex-gay’ or ‘ex-trans’ therapy, with increased penalties where the victims of these practices are minors.[vii]

Establish a Royal Commission into gay and trans hate crimes

In late 2018, the NSW Parliament commenced an inquiry into hate crimes committed against the gay and trans communities between 1970 and 2010. This inquiry handed down an interim report in late February, recommending that it be re-established after the election. However, in my view a parliamentary inquiry is insufficient to properly investigate this issue, including both the extent of these crimes, and the failures of NSW Police to properly investigate them. Any new Government should establish a Royal Commission to thoroughly examine this issue.[viii]

Re-introduce Safe Schools

The Safe Schools program is an effective, evidence-based and age-appropriate initiative to help reduce bullying against lesbian, gay, bisexual, transgender and intersex students. Unfortunately, following a vitriolic homophobic and transphobic public campaign against it, the NSW Government axed Safe Schools in mid-2017. In its place is a generic anti-bullying program that does not adequately address the factors that contribute to anti-LGBTI bullying. The Safe Schools program should be re-introduced to ensure every student can learn and grow in a safe environment.[ix]

Include LGBTI content in the PDHPE Syllabus

The NSW Personal Development, Health and Physical Education (PDHPE) curriculum does not require schools to teach what lesbian, gay, bisexual, transgender or intersex mean, or even that they exist. The new K-10 Syllabus, gradually implemented from the beginning of 2019, excludes LGBTI students and content that is relevant to their needs. It is also manifestly inadequate in terms of sexual health education, with minimal information about sexually transmissible infections and HIV. The Syllabus requires an urgent redraft to ensure LGBTI content is adequately covered.[x]

Expand efforts to end HIV

NSW has made significant progress in recent years to reduce new HIV transmissions, with increased testing, greater access to pre-exposure prophylaxis (PrEP) and higher treatment rates. However, new HIV diagnoses among overseas-born men who have sex with men are increasing. The NSW Government should create an affordability access scheme for people who are Medicare-ineligible that covers PrEP and HIV treatments (including for foreign students). The introduction of mandatory testing of people whose bodily fluids come into contact with police (aka ‘spitting laws’)[xi] should also be opposed.[xii]

Appoint a Minister for Equality

Both the NSW Government and Opposition currently have spokespeople with responsibility for women, ageing and multiculturalism. However, neither side has allocated a portfolio for equality. Whoever is elected on 23 March should appoint a Minister for Equality so that LGBTI issues finally have a seat at the Cabinet table.[xiii]

Establish an LGBTI Commissioner

The Victorian Government does have a Minister for Equality (the Hon Martin Foley MP). They have also appointed a Gender and Sexuality Commissioner (Ro Allen) whose role it is to co-ordinate LGBTI initiatives at a bureaucratic level. A new Government in NSW should also appoint an LGBTI Commissioner here.

Create an Office for Equality

While having leadership positions like a Minister for Equality and an LGBTI Commissioner are important, the work that is done by an Office for Equality within a central agency (like the Equality Branch within the Victorian Department of Premier and Cabinet) is essential to support LGBTI policies and programs across Government.

Convene LGBTI education, health and justice working groups

The NSW Government should establish formal consultative committees across (at least) these three policy areas to ensure that the voices of LGBTI communities are heard on a consistent, rather than ad hoc, basis.

Fund an LGBTI Pride Centre

Another initiative that is worth ‘borrowing’ from south of the NSW border is the creation of a Pride Centre, to house key LGBTI community organisations, potentially including a permanent LGBTI history museum. This centre would need to be developed in close partnership with LGBTI groups, with major decisions made by the community itself.

Provide funding for LGBTI community organisations

There is significant unmet need across NSW’s LGBTI communities, which should be addressed through increased funding for community advocacy, and service-delivery, organisations, with a focus on intersex, trans and bi groups, and Aboriginal and Torres Strait Islander LGBTI bodies. This should also include funding for LGBTI services focusing on youth, ageing, mental health, drug and alcohol, and family and partner violence issues, and to meet the needs of LGBTI people from culturally and linguistically diverse and refugee backgrounds.

Develop and implement an LGBTI Strategy

If, in reading this long list, it seems that NSW has a long way left to go on LGBTI issues, well that’s because it’s true. The birthplace of the Sydney Gay & Lesbian Mardi Gras parade has fallen behind other states and territories when it comes to LGBTI-specific policies and programs. We need a whole-of-government strategy, including clear goals and transparent reporting against them, to help drive LGBTI inclusion forward.

References:

[i] For a comparison of Australian anti-discrimination laws, see: A Quick Guide to Australian LGBTI Anti-Discrimination Laws.

[ii] Sections 38C, 38K, 49ZH and 49ZO. For more, see: What’s Wrong With the NSW Anti-Discrimination Act 1977.

[iii] For more, see: Submissions to Commonwealth Parliamentary Inquiry into Surrogacy.

[iv] For more, see: Submission to Review of NSW Relationships Register Act 2010.

[v] For more, see: Identity, not Surgery.

[vi] My submission to the AHRC Consultation re Medical Interventions on People Born with Variations of Sex Characteristics can be found here.

[vii] For more, see: Criminalising Ex-Gay Therapy.

[viii] For more, see: Submission to NSW Parliamentary Inquiry into Gay and Trans Hate Crimes.

[ix] For more, see: Saving Safe Schools.

[x] For more, see: Invisibility in the Curriculum.

[xi] For more, see: Submission re Mandatory BBV Testing Options Paper.

[xii] For more HIV-related policy priorities, see ACON, Positive Life NSW, SWOP and the NSW GLRL ‘2019 NSW State Elections Issues’ document.

[xiii] For more, see: Increasing LGBTI Representation.

Submission re Queensland Criminal Law (Historical Homosexual Convictions Expungement) Bill 2017

Posted on June 2, 2017 by Alastair Lawrie

Update

The Criminal Law (Historical Homosexual Convictions Expungement) Act 2017 was passed in Queensland Parliament on 10 October 2017, and took effect on 23 October.

This was a historic achievement, meaning the majority of people who have criminal convictions as a result of prohibitions on male homosexual conduct in that state can now apply to have those records expunged.

But it is only a partial victory – because people who were criminalised due to the unequal age of consent, which existed between 1991 and 2016, are not able to apply. That’s because section 18(2)(a) limits relevant offences to where:

“the other person who engaged, or allegedly engaged, in the act of omission constituting the offence –

(i) consented to the act or omission; and

(ii) was 18 years or more at the time the offence was committed or alleged to have been committed.”

This is an incredibly disappointing outcome, exposing men who would not have been convicted but for the homophobic unequal age of consent which operated for a quarter of a century, to many more years of living with unjust convictions on their criminal records. And it means the campaign to expand the expungement scheme must continue.

Update: 15 July 2017

Stop me if you’ve heard this one before.

The Queensland Parliament is considering the issue of the decriminalisation of homosexuality but, rather than treating LGBTI people the same as their cisgender heterosexual counterparts, it discriminates against gay and bisexual men, leaving them with criminal records that they would not have were it not for their sexual orientation.

No, we’re not talking about the Goss Labor Government’s fundamentally flawed decriminalisation Bill in 1990 which, while decriminalising sex between men over the age of 18, imposed an unequal age of consent for anal intercourse – an injustice that was only remedied in September last year.

Instead, we’re talking about 2017, as the Queensland Parliament, and the Palaszczuk Labor Government, appears intent on making the same mistake.

As I wrote in my submission to the Parliamentary Inquiry (see the full text at the bottom of this post), the Criminal Law (Historical Homosexual Convictions Expungement) Bill 2017 will only deliver justice for some gay and bisexual men affected by past homophobic criminal laws, not all.

For men punished because of the unequal age of consent between 1991 and 2016, and for those who were convicted before 1991 but would not have been had they engaged in penis/vagina intercourse, this legislation simply perpetuates the injustices they have already suffered, leaving them with inappropriate criminal records.

This problem was raised by several people in submissions to the Legal Affairs and Community Safety Committee as part of their inquiry into this Bill (myself included). Unfortunately, rather than listen to the community, Committee members have chosen to listen to the unconvincing arguments put forward by the Department of Justice and Attorney-General (see below for an analysis of their responses on this issue).

In their Report, tabled yesterday (14 July), the Committee recommended only that the legislation be passed; it did not make any recommendations to amend the Bill to ensure that all Queenslanders adversely affected by past criminalisation of homosexuality can apply to have their records expunged.

This Report means it is now highly unlikely the Queensland Parliament will fix the mess created by the provisions of the Bill, a mess that compounds past mistakes and once again means gay and bisexual men are treated worse because of who they are.

This discrimination is enough to invoke a bad case of déjà vu. The only question is, will it take Queensland Parliament another quarter of a century to realise the error of its ways and amend the expungements scheme, in the same way it finally amended the age of consent? Because that is too long to wait for justice, for men who have waited long enough already.

Update: 8 July 2017

Following publication of the 13 submissions received by this inquiry (including mine, reproduced in full below), the Queensland Department of Justice and Attorney-General responded to the issues that had been identified. Their letter can be found at the Inquiry website here.

Given my submission was the first received that raised serious concerns about the failure of the Bill to expunge the convictions of people prosecuted because of the unequal age of consent between 1991 and 2016, as well as the omission of people aged 16 and 17 prior to 1991, the Department addressed these issues in response to my submission (on pages 2-4).

Unfortunately, its response was underwhelming, and in some places seems to have completely missed the point of the expungement scheme.

First, the Department’s weakest argument against including people convicted due to the unequal age of consent between 1991 and 2016 was that “[t]he scheme would cease to be historical in nature and it may be considered inappropriate for such recent convictions to be expunged administratively…”

To which the obvious response is that it should not matter when an injustice occurred – whether it was 1978 or 2008 – it should be remedied.

Second, and of much greater concern, the Department argued that “[e]xtending the scheme to convictions for consensual anal intercourse with 16 and 17 year olds between 1991 and 2016 would mean that the scheme may extend to people who are currently serving sentences relevant to those convictions.”

The Department is effectively conceding that there may be people who are currently being punished for offences that would not have applied were it not for Queensland’s discriminatory treatment of anal intercourse for the past quarter of a century. That is not a justification not to extend the scheme – that is a reason to examine those convictions to determine whether they should be immediately overturned.

Third, the Department argued that including convictions between 1991 and 2016 due to the unequal age of consent “would require the decision maker to go behind the exercise of recent prosecutorial discretion”. To support this, the Department specifically cites the Director of Public Prosecution’s Guidelines as they existed at 30 August 2016.

There are two problems with this particular argument:

They are suggesting that people should rely on the ‘discretion’ not to prosecute, not just in recent years but also in the much less accepting (and more homophobic) 1990s. I am surely not the only person who harbours fears that at some point in the past 25 years this ‘discretion’ would have been exercised against gay and bisexual men;

Even the August 2016 guidelines are problematic. They state that “[a] child should not be prosecuted for sexual experimentation involving children of similar ages in consensual activity.” With all due respect, that is not the relevant criteria – the question is whether the people involved would have been convicted had it involved penis/vagina intercourse. Which means that an offence between a 16 or 17 year old and someone aged 18-plus that occurred between 1991 and 2016 should be included (even if that makes some parliamentarians feel uncomfortable).

Fourth, the Department argued that “if the scheme was extended to convictions for consensual anal intercourse with 16 and 17 year olds between 1991 and 2016, it would arguably be unfair to continue to restrict the scheme to convictions involving only homosexual activity.”

This is perhaps the only legitimate concern raised by the Department. Although it seems to me that, of the three possible options to deal with this issue, they have chosen the worst. These are:

To leave the scheme as is – which strands some gay and bisexual men without legal address, despite being punished because of laws that Minister for Health Cameron Dick conceded were “a source of discrimination against young people on the basis of their sexual orientation” (in his 2^nd Reading Speech for the legislation that finally repealed the unequal age of consent).

To extend the scheme to gay and bisexual men affected by the unequal age of consent between 1991 and 2016, but not to anal intercourse between men and women. This may be prima facie discriminatory, but it does recognise the disproportionate impact of these laws on same-sex attracted people (who also did not have other lawful options for penetrative intercourse).

To widen the scheme to include non-LGBTI people who were also punished due to the differential treatment of anal intercourse between 1991 and 2016. This may substantially extend the scope of the scheme, but I would argue that it would be preferable to include these offences than to leave some gay and bisexual men with unfair and inappropriate criminal records, for sex offences, for the rest of their lives.

Fifth, and finally, is the worst of the arguments proffered by the Department: “[t]he Department notes that any expansion of the scheme would likely to [sic] increase the cost of the scheme.” That is not a reason to perpetuate injustice against gay and bisexual people who have been persecuted because of their sexual orientation under fundamentally unjust laws – that is a reason to provide additional funding (which, based on the Department’s letter, would likely be relatively modest).

Overall, then, I am extremely disappointed by the Department of Justice and Attorney-General’s response to my submission, which appears to be motivated more by staunchly defending the provisions of the current Bill than in grappling with the fact that, if passed, it would still leave some gay and bisexual men living with the consequences of past injustices.

Hopefully, the members of the Legal Affairs and Community Safety Committee are more persuaded by the submissions of myself, and others such as long-time campaigner John Frame that raised similar concerns, and propose amendments to address these outstanding issues. Their report is due by Friday 14 July, and I will provide a further update based on their recommendations.

Original Post

The Queensland Palaszczuk Labor Government has introduced legislation to establish a process whereby (some) people affected by the historical criminalisation of homosexuality in that state can apply to have those criminal records expunged.

This Bill is currently being considered by the Queensland Parliament Legal Affairs and Community Safety Committee. My submission to their inquiry is published below. For more details on the Bill, and the Committee’s examination of it, click here.

Acting Committee Secretary

Legal Affairs and Community Safety Committee

Parliament House

George Street

Brisbane QLD 4000

c/- lacsc@parliament.qld.gov.au

Friday 26 May 2017

Dear Committee

Submission re Criminal Law (Historical Homosexual Convictions Expungement) Bill 2017

Thank you for the opportunity to provide a submission in relation to the above-named Bill.

I support this legislation in principle, given it is aimed at redressing historical injustices experienced by members of the Queensland lesbian, gay, bisexual, transgender and intersex (LGBTI) community.

This Bill builds on the apology, delivered by Premier Annastacia Palaszczuk in Queensland Parliament on 11 May this year, in which she said:

“This Legislative Assembly offers its unreserved and sincere apology to all those persons who suffered from prejudice as a result of the discriminatory laws passed by this House, and we acknowledge that your pain and suffering continues.

“We acknowledge that shame, guilt and secrecy carried by too many for too long.

“Today, in this Legislative Assembly, we place on the record for future generations our deep regret and say to all those affected, we are sorry that the laws of this state, your State, let you down.

“To all those affected we say sorry.”

These noble sentiments were also reflected in the second reading speech for the Criminal Law (Historical Homosexual Convictions Expungement) Bill 2017 itself given by Attorney-General Yvette D’Ath:

“As this parliament apologises this afternoon, we should never forget that this abuse, this discrimination and this hatred was within our lifetime, and it was done in our name. We have seen important law reform since that time, over many years, in many stages. That includes significant reforms passed in the current Palaszczuk government, some with bipartisan support. Despite these important legislative changes, the pain and anguish caused by that earlier discrimination has never been removed for those affected Queenslanders. I am very proud to be a Labor Attorney-General finishing the important work that the Goss government started, and I am determined to get it right.”

Unfortunately, while I support both of these statements, on a practical level I cannot support the Criminal Law (Historical Homosexual Convictions Expungement) Bill 2017 in its current form.

That is because the Bill fails to address all relevant historical homosexual convictions, and instead only offers redress for one subset of the people affected by the criminalisation of homosexuality in Queensland.

This failure is based on two key flaws in the proposed expungement scheme.

The first flaw is that the Bill is limited to offences committed before 19 January 1991 – which is when the Criminal Code and Another Act Amendment Act 1990 came into effect.

As noted in the Explanatory Notes for the Bill, this is intended to “maintain the nexus between the proposed expungement scheme and decriminalisation.”

Such a ‘nexus’ would be appropriate if the legislation that implemented decriminalisation was itself non-discriminatory.

However, as current members of the Queensland Parliament are no doubt aware, the Criminal Code and Another Act Amendment Act 1990 was fundamentally unjust, in that it continued to subject anal intercourse to a higher age of consent (18 years) than other forms of sex (16 years).

This discriminatory approach primarily affected the gay and bisexual male community, and meant that for the following 25 years young same-sex attracted men in Queensland were disproportionately exposed to potential criminal sanctions for penetrative intercourse.

This discriminatory approach was only remedied in September last year, with the passage of the Health and Other Legislation Amendment Act 2016. In introducing that legislation, Minister for Health Cameron Dick stated:

“The Goss Labor government in 1990 decriminalised homosexuality, but that government introduced an anal intercourse law. The age of consent for consensual anal intercourse was set at 18 years.

“The expert panel of health experts asked to consider the implications of the current law advised me that the disparity in the age of consent for different sexual activity has adverse impacts on young people and recommended a consistent age of consent. Queensland cannot continue to discriminate between forms of sexual intercourse, particularly when we know that young people feel compelled to withhold information about their sexual history from health practitioners for fear of possible legal consequences, whether for themselves or their partner. This can have serious implications for their medical treatment, particularly as unprotected anal intercourse is the highest risk behaviour for transmission of HIV. It also has the effect of stigmatising same-sex relationships which in itself can be harmful for an individual’s wellbeing.”

Minister Dick concluded his speech by noting that:

“The Palaszczuk government is committed to improving sexual health outcomes for all Queenslanders regardless of their sexual orientation or preferences. The bill demonstrates this by standardising the age of consent for all forms of sexual intercourse, reflecting community expectations and removing a source of discrimination against young people on the basis of their sexual orientation…” [emphasis added].

The Palaszczuk Government was right to identify that an unequal age of consent specifically discriminated against young people on the basis of their homosexuality and bisexuality. They, and the Queensland Parliament more generally, were also right to remedy this injustice by passing the Health and Other Legislation Amendment Act 2016 to finally introduce an equal age of consent.

Which makes it all-the-more puzzling why they have made the wrong decision in limiting the operation of the historical homosexual convictions expungement scheme to offences that occurred before 19 January 1991.

By tying the Criminal Law (Historical Homosexual Convictions Expungement) Bill 2017 to the ‘act’ of decriminalisation, they have effectively tied the Queensland expungement scheme to legislation that itself was discriminatory.

In doing so, they have developed a scheme that would deliberately exclude people who were charged or convicted for offences between January 1991 and September 2016 who would not have been were it not for their sexual orientation.

Those charges and convictions were also unjust, and that injustice should be addressed through this expungement scheme. To do otherwise – to exclude people adversely affected by the unequal age of consent which existed for a quarter of a century – is simply to perpetuate this discrimination.

It would also leave Queensland out of step with other Australian jurisdictions – with the equivalent NSW scheme allowing people charged or convicted because of the unequal age of consent which operated there between 1984 and 2003 to apply for those records to be expunged. Queensland should follow suit.

Recommendation 1: The Criminal Law (Historical Homosexual Convictions Expungement) Bill 2017 should apply to charges and convictions that were caused by the unequal age of consent for anal intercourse between January 1991 and September 2016.

The second, related flaw of this legislation is that, even for criminal offences committed prior to 19 January 1991, the right to apply to have these records expunged is limited to acts in which both parties were aged 18 years or over.

The rationale for this decision was explained in Attorney-General Yvette D’Ath’s second reading speech in the following way:

“[T]he criteria for the expungement of a Criminal Code male homosexual offence in the bill has regard to the age of consent at the date of decriminalisation on 19 January 1991 – that is, 18 years. This retains the expungement scheme’s nexus with the decriminalisation of consensual adult homosexual activity and confirms that the scheme is only applicable to historical charges and convictions. It also ensures that there is no discrimination between people charged or convicted with offences between 1991 and 2016 or people charged before the age of consent for sexual activity other than anal intercourse was changed in Queensland in 1976 from 17 years to 16 years.”

The question of what to do about the relevant age of consent prior to 1991 goes to the heart of the purpose of the expungement scheme.

If the purpose is simply to address offences prior to January 1991 that were decriminalised following the passage of the Criminal Code and Another Act Amendment Act 1990, then the approach adopted in the legislation, which limits the relevant age of consent to 18 years for all offences, admittedly has some internal consistency.

However, if the purpose of the expungement scheme is instead to provide redress to people who were charged or convicted primarily because of their sexual orientation, then I would argue that it must go further.

On a practical level, if this legislation is aimed at removing the stain of homophobia and biphobia from past laws, and above all from the criminal records of those who bore their impact, then the relevant test should not be how those acts were treated in 26-year-old legislation that, as we have seen above, was itself inherently flawed.

Instead, I believe the test should be whether the relevant act would have been criminalised if it involved consensual intercourse between a man and a woman, and specifically penis/vagina sex. Such a test goes to the core issue, which is discrimination – that the law treated gay and bisexual men differently to heterosexual people.

If this principle is adopted, then the scheme would allow people to apply with respect to:

Charges and convictions where both parties were 17 and over prior to 1976 (when the age of consent for penis/vagina sex was reduced to 16) and
Charges and convictions where both parties were 16 and over from 1976 onwards.

In this way, the legislation would actually better reflect the view, expressed in the Explanatory Notes, that:

“It is also an acknowledgment that the age of consent has changed over the years in accordance with changing societal values and expectations…”

That is because it would be based on changing societal attitudes to the age of consent for heterosexual, non-anal, intercourse, and therefore removed from discriminatory attitudes towards anal intercourse, and especially intercourse between men.

Further, if this principle was adopted, it would also provide philosophical consistency between those offences before January 1991 and those between January 1991 and September 2016 – provided Recommendation 1 is also adopted, the relevant age of consent would be 16 years for both.

Finally, this approach would also be more consistent with the position adopted by other jurisdictions – with section 105G of Victoria’s Sentencing Act 1991 setting out the relevant test as:

“on the balance of probabilities, both of the following tests are satisfied in relation to the entitled person:

(i) the entitled person would not have been charged with the historical homosexual offence but for the fact that the entitled person was suspected of having engaged in the conduct constituting the offence for the purposes of, or in connection with, sexual activity of a homosexual nature;

(ii) that conduct, if engaged in by the entitled person at the time of the making of the application, would not constitute an offence under the law of Victoria.”

Queensland should similarly ensure that the primary purpose of its expungement scheme is to provide redress for gay and bisexual men who were charged or convicted for offences for penetrative intercourse that would not have applied to penis/vagina sex between men and women.

Therefore, the relevant age of consent should be the same as that which applied to heterosexual, non-anal, sex: 17 before 1976, and 16 from that point onwards.

Recommendation 2: The Criminal Law (Historical Homosexual Convictions Expungement) Bill 2017 should apply to charges and convictions for offences where both parties were 17 and over before 1976, and 16 and over from 1976 onwards.

As stated earlier, I support the stated intention of the Queensland Government in developing, and introducing, this legislation: to provide redress for past injustices against members of the LGBTI community.

However, as I have explained above, I believe this admirable objective is imperfectly realised in the Criminal Law (Historical Homosexual Convictions Expungement) Bill 2017 as currently drafted.

That is because it would only achieve justice for some of the people adversely impacted by the past criminalisation of male same-sex activity, and not all.

If the purpose of the expungement scheme is to provide redress for the homophobic and biphobic application of the criminal law – and I suggest that this is the most appropriate objective – then it should apply to:

Offences between January 1991 and September 2016 where both people were aged 16 and over
Offences between 1976 and 1991 where both people were aged 16 and over, and
Offences before 1976 where both people were aged 17 and over.

In my view, this would be the closest approximation of treating all people – LGBTI and non-LGBTI alike – equally.

It would also ensure that more people, who have been subject to discrimination on the basis of their sexual orientation, and who continue to experience the consequences of this mistreatment, have access to expungement.

As observed by Attorney-General Yvette D’Ath in her second reading speech:

“We know that this is a deeply hurtful and deeply personal issue for many Queenslanders forced to live with the impact of discriminatory laws for far too long. We know that past convictions have meant there are various circumstances in which convictions or charges for criminal offences have been required to be disclosed.

“Forcing the repeated disclosure of those convictions and charges to potential employers, public administrators and others has caused people inconvenience and embarrassment and, worst of all, has forced them to continually relive the trauma associated with their arrest, charge and conviction. This has inhibited people from pursuing employment opportunities, volunteering in their communities and fully participating in civic life right up until today. It hurt those individuals, affected their friends and family, and prevented their full involvement in, and contribution to, our community. In doing so, it not only impacted individuals; it lessened our community more broadly.”

I wholeheartedly agree. But I also humbly suggest that these statements don’t just apply to ‘adults’ charged or convicted for offences committed before 19 January 1991 – they also describe the injustice experienced by people who suffered because of the discriminatory age of consent between January 1991 and September 2016.

Similarly, these sentiments reflect the adverse treatment of gay and bisexual men charged or convicted for penetrative intercourse before January 1991 who would not have been had it involved penis/vagina sex.

Both of these groups deserve justice too. That can and should be delivered through these two amendments to the Criminal Law (Historical Homosexual Convictions Expungement) Bill 2017, changes that strive to fully remove the stain of homophobia and biphobia from Queensland’s laws, thereby lessening the awful impact of discrimination on generations of gay and bisexual men.

Thank you for taking this submission into consideration as part of this inquiry. If the Committee would like to clarify any of the above, or to request additional information, please contact me at the details provided.

Sincerely

Alastair Lawrie

Premier Palaszczuk’s apology was welcome, but the Bill which gives it practical effect should cover all people adversely affected by historical convictions, not just some.

The State of Homophobia, Biphobia & Transphobia Survey Results, Part 3: Where Discriminatory Comments Occur & Their Impact

Posted on April 25, 2017 by Alastair Lawrie

This post is the third in a series of six, reporting the results of The State of Homophobia, Biphobia & Transphobia survey I conducted at the start of 2017[i].

In all, 1,672 lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) Australians provided valid responses to that survey.

In this article, I will be focusing on their answers to two questions, which asked about the ‘location’ where they witnessed anti-LGBTIQ comments in 2016, and the impact that these comments had on them.

The results of the first may or may not be surprising (depending on whether you use social media or not), while the responses to the second are, as expected, often heartbreaking to read.

Question 1: Over the past 12 months, have you witnessed homophobic, biphobic, transphobic or intersexphobic comments in any of the following (select as many as appropriate):

Media

Social Media

Politics

Religion

Public Space

None of the Above

1,645 people answered this question, and this was the overall response (ranked from highest to lowest):

Social Media 92% (1,506 responses)
Politics 83% (1,367)
Religion 81% (1,330)
Media 80% (1,308)
Public Space 67% (1,109)
None of the Above 3% (50).

It is clear that, in 2016, more LGBTIQ Australians witnessed homophobic, biphobic, transphobic or intersexphobic comments on social media than in any other category – and by a considerable margin.

There is an important caveat to this finding, because a significant proportion of these anti-LGBTIQ comments may in fact be posts incorporating homophobia, biphobia, transphobia and intersexphobia from politics, religion or the media (for example, sharing media stories about the joint Liberal-National Government/fundamentalist christian campaign against Safe Schools).

Even if we accept that, it is nevertheless apparent that the primary medium through which we receive anti-LGBTIQ comments, of any kind, is via platforms such as Facebook, Twitter, YouTube and Instagram (or, for people younger than me, Snapchat and other apps I probably haven’t even heard of).

The next three highest-ranked answers – politics, religion and the media – were all very close together.

But, it should also be noted that a higher proportion of LGBTIQ people reported witnessing religious homophobia, biphobia, transphobia or intersexphobia than the proportion of Australians who identify as religious[ii]. That is a pretty impressive effort by the Australian Christian Lobby, Catholic Church and others.

Thankfully, the proportion of respondents who indicated they witnessed anti-LGBTIQ comments in a public space was lower than for other categories – although, at two-thirds of all respondents, it is still depressingly high.

However, the most depressing statistic of all is that just 3% of LGBTIQ people who answered this question – or 50 people in total – reported that they had not witnessed homophobia, biphobia, transphobia or intersexphobia via social media, politics, religion, media or in a public space during the past 12 months.

The next time a conservative politician – or NewsCorp columnist or Christian Lobby spokesperson for that matter – tries to claim that anti-LGBTIQ prejudice no longer exists, or isn’t a problem in contemporary Australia, simply show them these findings.

LGBTIQ Status

There was remarkable consistency across the lesbian, gay, bisexual, transgender, intersex and queer communities in their respective answers to this question[iii]:

Lesbian: Social media 91.4%; Politics 82.4%; Media 78.6%; Religion 77.7%; Public space 69.3% and None of the above 1.8%

Gay: Social media 85%; Religion 78.6%; Politics 78.2%; Media 72.8%; Public space 58.8% and None of the above 3.6%

Bisexual: Social media 89%; Politics 80.6%; Media 79.9%; Religion 76.6%; Public space 70% and None of the above 3.3%

Transgender: Social media 92.7%; Media 87%; Politics 85.4%; Religion 81.8%; Public space 75.5% and None of the above 1%

Intersex[iv]: Social media 75%; Religion 70%; Media & Public space both 65%; Politics 60% and None of the above 0%

Queer: Social media 90.4%; Politics 84.7%; Media 83.4%; Religion 79%; Public space 76.7% and None of the above 1.1%.

As can be seen, the highest-ranked response – for each category – was Social media, with percentages ranging from 75% to 92.7%, confirming the role of Facebook and other platforms as conduits for anti-LGBTIQ comments.

As with verbal harassment and abuse, analysed in Part 1, the figures reported by bisexual, and especially gay, respondents were significantly lower than for LTI or Q people.

This is particularly apparent in terms of the answer for ‘None of the Above’: 3.6% of gay people, and 3.3% of bisexuals, checked this answer, whereas the next highest rate for any group was lesbians at around half that (1.8%).

On the other hand, and again consistent with earlier figures for verbal harassment and abuse, transgender and to a slightly lesser extent queer respondents were most likely to witness homophobic, biphobic, transphobic and intersexphobic comments.

In fact, trans people reported the highest rates of anti-LGBTIQ comments in all of social media, politics, religion and media (which is perhaps not that surprising after 12 months of sustained attacks on safe schools and ‘gender fluidity’), while the highest rates for anti-LGBTIQ comments in public spaces were reported by queer people.

Meanwhile, only 1% of trans, and 1.1% of queer, respondents answered none of the above – just one-third of the rates for gay and bisexual people.

The answers to this question once again confirm two things:

Rates of homophobia, biphobia, transphobia and intersexphobia are unacceptably high in Australia, and
Anti-LGBTIQ prejudice disproportionately impacts trans, intersex and queer people.

Aboriginal and Torres Strait Islander People

In contrast to Parts 1 and 2 of the survey results, the figures for Aboriginal and/or Torres Strait Islander LGBTIQ people were not significantly higher than for their non-Indigenous counterparts – although nor were they significantly lower (except for perhaps in relation to politics):

Social Media 90.3%
Religion 79%
Media 75.8%
Politics 72.6%
Public Space 67.7%
None of the Above 1.6% (or just 1 out of 62 respondents).

Age

The responses in terms of different age groups threw up a couple of surprises:

Aged 24 and under: Social media 91.5%; Politics 81.2%; Media 78.8%; Religion 78.1%; Public space 70.8% and None of the above 2.5%

25 to 44: Social media 89%; Politics 85.7%; Religion 81.7%; Media 80.5%; Public space 67.3% and None of the above 2.5%

45 to 64: Social media 85.8%; Religion 77.6%; Politics 75.8%; Media 71.9%; Public space 52% and None of the above 3.9%

Aged 65 and over[v]: Social media and Religion both 67.6%; Politics 59.4%; Media 54%; Public space 24.3% and None of the above 10.8%.

As expected, people aged 24 and under were more likely to report witnessing anti-LGBTIQ comments in social media than any other cohort – although it was only slightly higher than for people aged 25-44, and social media remained the highest-ranked answer (either stand-alone, or equal) for all age groups.

Young people were also more likely to witness homophobic, biphobic, transphobic and intersexphobic comments in public spaces.

However, perhaps more surprisingly, it was their counterparts aged 25 to 44 who were actually most likely to witness anti-LGBTIQ comments in the contexts of politics, religion and the media.

Both groups also reported similar rates for ‘none of the above’: 2.5% or around 1 in every 40 people said they did not witness anti-LGBTIQ comments in these contexts in the last 12 months.

In short, people aged between 25 and 44 appear just as likely to have witnessed homophobic, biphobic, transphobic and intersexphobic comments in 2016 as their younger LGBTIQ equivalents (although people aged under 25 may nevertheless feel the impact more, particularly if they are yet to develop coping mechanisms to deal with encountering such prejudice).

Less surprisingly, the answers for the two older age cohorts show reduced exposure to anti-LGBTIQ comments, especially in public spaces (just 52% for people aged 45 to 64 and 24.3% for those aged 65 and over). The rates for none of the above also increased significantly for both groups.

[NB Unlike previous – and planned – posts, this article will not examine the different responses for each Australian state and territory because the results are not considered relevant.]

**********

Question 2: If you feel comfortable, please indicate the impact that these homophobic, biphobic, transphobic or intersexphobic comments had on you [Optional]

This question allowed respondents to describe, in their own words, the impact that witnessing anti-LGBTIQ comments during 2016 had on them – and the answers provided are, to put it frankly, depressing.

As with Part 2 of the survey results, at this point I would recommend that you only read further if you are emotionally prepared to do so.

To help you decide whether to continue, please be aware that comments include descriptions of mental health issues, depression and suicide (including suicide ideation). Relevant help numbers are provided at the end of the article.

A lightly-edited[vi] version of the answers to this question – outlining the personal impact of homophobic, biphobic, transphobic and intersexphobic comments – can be found at the following link:

question-2-the-impact-of-discriminatory-comments

From my perspective, a number of key themes emerge in these comments:

While a small number of respondents indicated that witnessing such comments had little or even no impact on them, the majority indicated that anti-LGBTIQ comments had caused major impacts, contributing to mental health issues, depression and even suicide ideation.

“Every day I consider suicide. My life looks normal on the surface, but why should I bother living when the majority hates me? I’m not wanted and seen as a freak. I just want to feel normal and safe, but straights will never allow that in my country (Australia). Homophobia makes me wish I was dead.”

“I feel like it raises the suicide rates and makes us feel less than human as [it] makes people feel homophobia is ok because we don’t have equality. In the last year I’ve had 4 friends commit suicide due to homophobia.”

“They make me feel worthless, like a freak, like I don’t deserve to live, like I don’t deserve anything, like I’ll be alone forever, like no one will love me, like I should just kill myself because it would be easier.”

The feeling of being ‘lesser’ than others was also common:

“It makes you feel separate. More like an oddity than a person. Like you’re… less”

“It just makes me feel like shit to be frank. Like I’m not a worthwhile human being. Like I’m a joke and not a living, breathing person with thoughts and feelings.”

“It hurts my self worth, makes me feel as though my identity is something negative and is something that I should be ashamed of.”

A sense of ‘hopelessness’ was also pervasive:

“It makes you feel that the world will never change & there is no place for you in it.”

“It is depressing to realise that, despite the progress that has been made on many fronts, just how widespread anti-LGBTI prejudice really is, including from our so-called political leaders.”

“Homophobia in media and everyday life is a constant reminder to the lgbtq community that they are and probably always will be seen as less than others.”

“It made me feel helpless, like nothing was ever going to change no matter how hard people work at being accepting.”

A number of commenters expressed despair at the level of anti-LGBTIQ prejudice in Australia, and associated alienation from their country:

“They made me feel as if my own country didn’t want me and that I wasn’t really a person.”

“I question whether Australian society is as accepting as I thought it was.”

“Disgust and shame at both myself and Australia. I feel marginalised, oppressed, fearful, frustrated and in some cases terrified of the country I live in.”

“If anything, these comments have disturbed me, and made me feel quite frightened for mine, my partner’s and Australia’s future moving forward…”

“These actions and comments make me feel like Australia is still leaving [sic] in the 1900s and I love my country and people, but sad that there a [sic] still so many closed minded people in this country.”

Or simply “Used to it. This is Australia after all.”

Another strong theme was modifying behaviour to avoid being subject to homophobia, biphobia, transphobia and intersexphobia:

“Witnessing or hearing discriminatory acts/language makes me feel unsafe. It makes me modify my behaviour in certain situations to avoid potential violence.”

“They make me feel like I have to adjust my behaviour to make straight people feel comfortable. My partner of 5 years and I don’t hold hands or kiss in public because of this. I hate being a different person in public from the one I am at home. On our train line, it would simply not be safe to hold hands or kiss.”

“It makes me feel unsafe to walk down the street ever since embracing my sexuality. I would certainly not feel comfortable walking down the street hand in hand with my partner and I am careful not to make too much eye contact if I’m wearing something that might indicate my sexuality.”

For some, this even extended to an increased fear of disclosure/’coming out’:

“Increased anxiety about people finding out I’m gay. Less likely to come out.”

“It’s made me scared to come out to some people including my mother.”

“Scares me into not coming out to the people closest to me and makes me feel ashamed for being myself.”

“I feel sad and I actively hide my sexuality.”

“They made me ashamed and want to hide myself further in the closet.”

Some indicated anti-LGBTIQ comments had little impact – but only because they were ‘used to it’, ‘numb to it’, or had developed ‘thick skins’:

“I’m fine, I’m all grown up and used to it now. But if we can stop it happening to others in the future, that should be our primary focus.”

“I’m a lot more thick-skinned now but it really affected me as a kid and teenager growing up and I spent a lot of puberty feeling very suicidal. These days it mostly just makes me angry.”

“I have quite a thick skin and don’t care what other people say, however I am disappointed that more of society have not moved on.”

Or, even more pithily:

“I’m used to it, kind of just get number over the years.”
“Very little, I have a thick skin.”
“I am very used to hearing phobic comments.”
“I’m so used to it I just switch off.”

However, even for those who claimed to have learnt to ‘live with it’, there was still significant concern about its impact, on themselves and others:

“I usually end up numbing myself to the full effect of these comments because to truly engage with my feelings about it would mean constant pain, anger and disillusionment in humanity and I wouldn’t get through the day. But when it takes over, it’s a horrible experience.”

“It bothers me, but I learn to live with it. If someone is rude to me or if I find something rude, I can’t waste my emotional energy getting caught up in it anymore. But it is a problem, because I know these statements have a much stronger impact on others who are lgbt, who have suffered a lot more because of their sexual orientation or gender identity.”

Some respondents ‘turned lemons into lemonade’, and used homophobic, biphobic, transphobic and intersexphobic comments as motivation:

“They make me annoyed or angry. They make me more determined to help pro-lgbt causes or keep active.”

“In general, abuse makes me feel both unwanted and even more determined to promote equality so that future generations of LGBTQI people do not have to endure the abuse and discrimination that some people have received.”

“The current attitude towards the LGBTIQ community makes me angry and ever more passionate to step up and attempt to make a change.”

“It gets me fired up! I can’t help it – I have to respond. I’ve been fighting this fight for over twenty years, so I can’t let it go unchecked… I stick it to them.”

“Makes me more determined to work against the hate.”

“Makes me stronger in my resolve to educate people about LGBTIQ issues – eg being gay is not a choice, it is not a disease that other people can catch from me, I am not sick, disordered or mentally unbalanced; I don’t need to be cured or changed, I am not any more a ‘sinner’ than any other human being etc. I am perfectly happy and content.”

One of the most common type of comment was an expression of care, and concern, for younger and/or more vulnerable members of the LGBTIQ community:

“I’m fairly resilient, so these things tend not to affect me. However, they do cause me great concern for those who may not be resilient, or the young in our community.”

“They don’t worry me now because I am fully accepting of myself but I hate to think of the effect they would have on younger people.”

“I feel angry about the impact it would have on younger people (I’m older now and I’m more concerned about protecting the younger ones).”

“Mostly it’s really deflating and makes me concerned for younger lgbtiq+ people who don’t have support networks.”

“Made me feel sad for the younger ones, still coming to terms with who they are, fighting depression.”

“It’s hurtful and worrying. I’m old enough now to not let it bother me but it concerns me to think about how this affects teenagers coming to terms with their sexuality. Hatred in the public sphere is only continuing this.”

“While I’m at a point in my life where I realise that the people who publicly express these negative points of view often in a negative way are ignorant and their negativity is their problem, not mine, I feel sad and angry thinking that less secure, particularly younger LGBTIQ+ individuals, may be impacted extremely detrimentally by these comments.”

“I fear for young LGBTQ people who don’t have the support or self awareness to know that there is nothing wrong with them and that they will find their place one day, if not today.”

“Made me feel unsafe and also made me feel sad for all the young kids who’s health would be more majorly impacted by this, almost every LGBT+ person I know has attempted suicide or suffered from trauma as a response to abuse and I feel this.”

“I have witnessed friends being vilified and the victims of homophobic rants. The psychological toll as a result of the constant barrage from all forms of media, politics, religion & the public confirms the reasoning behind the high mortality rate for young LGBTI members of our community.”

These two comments probably best sum up this view:

“It really distresses me that people still act this way. I worry for the younger youth who this could have a greater impact on. Whoever says homophobia doesn’t exist in today’s society is very wrong.”

“It upsets me that young LGBTIQ children are being constantly reminded that they are not treated the same as others in this society when they watch out-of-touch, backward-thinking politicians who do not see how hurtful their words against same-sex marriage and the safe schools program are. It is so upsetting that they cannot see the damage they are doing.”

The parents in rainbow families also expressed concern for the potential harm anti-LGBTIQ comments cause to their children:

“I don’t feel homophobia has an impact on me but I often wonder if it’s upsetting to my son. He tells me it bother him sometimes.”

“I feel confident in my personal relationship however when in public spaces with my children I worry about negative reactions to my lesbian relationship if I show any form of public affection towards my partner. It is better sometimes to ‘pass’ as a parent rather than show we are a family, purely because I do not want my children to observe homophobic reactions or hear homophobic comments about their parents or family.”

The care shown by LGBTIQ people for their children, and for younger members of the community, stands in marked contrast to the ‘christian’ values too-often on display by religious fundamentalists, with some respondents nominating religious intolerance as the source of homophobia, biphobia, transphobia and intersexphobia:

“Especially the comments from people representing my religion are really painful and I find myself often thinking if I can even be part of such a community that should be about mercy and love and is often just full of hate.”

“The Tasmanian Archbishop’s attempts to change the anti-discrimination act have resulted in me moving school despite having a supportive school I think it is no longer appropriate for me to attend a school that is overseen by someone who has openly proclaimed his dislike of homosexuals, and is attempting to change laws to discriminate against them.”

“I went to catholic school and the church felt it right to give a pamphlet to each child outlining what a marriage is and making sure to discourage anyone who was in the LGBTQI community.”

“It’s everywhere. Every time someone mentions gay marriage or trans health there is always a rebuttal speaker from some religious group.”

“all these churchie people… they preach and say we are sinning… Yet they are being the judgmental ones. I don’t know any LGBTIQ people that go around with fliers etc saying join our church etc. So why do they try [to] pressure us to change who we are?”

“Christian people on Facebook posting anti-gay marriage and safe schools program under the guise of love the sinner not the sin…”

That last comment was typical of many that raised homophobic, biphobic, transphobic and intersexphobic comments in the context of last year’s dual anti-LGBTIQ campaigns – against Safe Schools and for a plebiscite:

“well I hear all the hate-filled rhetoric from the religious alt right that sadly have too much of a voice in gov from groups like the christian lobby and other politicians. the whole gay marriage plebiscite seemed to give every anti-gay hate group a paid advertisement on social media…”

“Made me feel unsafe being out in my work space ie political discussions about safe schools and queer people corrupting children made me feel I might lose my job at a school.”

“The same sex marriage debate and the vilification of the safe schools program has allowed homophobia to run rife in politics and in the media leading to public aping of homophobic beliefs.”

“Particularly the discussion in the media regarding the plebiscite had a huge effect on my emotional well being. I found myself harbouring a lot of stress, feeling less safe, and often feeling emotional and being brought to tears.”

“plebiscite! The very idea that our government (the same one that is apparently working for the Australian people) can legislate hate speech (or an entire campaign) against a minority under the guise of politics disgusts me and makes me ashamed to call myself Australian.”

“A feeling of being lesser than anyone else. Worry for young people, especially when the plebiscite about equal marriage was being threatened. This also gave other homophobes permission to be expressive about their hatred.”

“The constant negativity and blatant homophobia present in the political and mainstream media spheres, especially over Safe Schools and on marriage equality, has left me emotionally wrung out and uneasy, including making me less likely to decide to announce, share or defend my position on these issues in places I feel comfortable in, including my workplace in a secondary school.”

A number of commenters also highlighted the Trump factor, and the fear of Australia importing US-style anti-trans bathroom laws:

“Trump supporters have also gotten on the anti-LGBTQ movement and all over social media if you tag anything with one of those, you are instantly trolled. Trump hired people to set up fake accounts and constantly go out and attack our community so a by-product of the US election was the LGBTQ community all around the world was attacked and criminalised and marginalised.”

“While I’m not trans, I have friends who are, and even in a relatively tolerant country like Australia they still encounter discrimination every day. We hear about the horrendous bathroom law debates raging in the US and think, there’s one more place we aren’t safe. The same intolerance exists in Australia; it’s just quieter.”

In fact, the existing high-levels of transphobic comments generally was raised by several respondents:

“I only recently began to take steps to transition socially, and it feels like every other day there’s a new reminder of how much hate and harassment still exist. The thought of coming out and having to face this regularly terrifies me.”

“I see constant transphobia in people’s reactions towards trans/non binary/queer people.”

“A trans* friend of mine died and majority of the comments were transphobic of nature and it hurt me to witness how my peers felt about individuals being transgender.”

“Lyle Shelton has made incredibly transphobic remarks that have had me on the verge of tears.”

(At least) 2 people highlighted the failure of Victorian birth certificate reform late last year as a particular source of transphobic comments:

“Shocking. I am significantly affected by the ongoing ceaseless abuse we experience at the hands of media and parliament. The recent comments in the Victorian parliament voiced by the opposition were appalling. The constant transphobia lends itself to a constant low level of depression only countered by actual interaction with mainstream people who seem to be much more accepting…”

“It’s a kick in the guts every time I see the media misrepresent trans people. In politics it’s worse though – that they didn’t change the law about birth certificates last year has made my life harder at a practical level.”

Perhaps unsurprisingly, given both its popularity and the high share of respondents indicating social media as a source of anti-LGBTIQ comments, at least a dozen respondents specifically cited prejudice on Facebook:

“Facebook is covered with homophobic comments and pictures that don’t get removed.”

“Homophobic/transphobic comments from people on posts on Facebook…”

“I follow a large amount of people on social media where I almost daily see harassment to multitudes of people in the queer community.”

“Found them rather disturbing particularly on Facebook where posters ‘go for it’ with their opinions from the safety of a keyboard. I found it scary and rather confronting the amount of homophobia in the community in Australia, and doubly scary in other parts of the world. I think if a person is secure in their sexuality then they don’t feel the need to hate whereas (in my experience) if a person has issues, either consciously or unconsciously then they ‘project’ this through homophobia onto GLBT people.”

This commenter raised particularly concerning issues with Facebook:

“I don’t feel mentally capable of reading comments on social media posts about LGBTQI issues for fear of harassment and homophobic/transphobic comments. I don’t comment at all because I’m harassed. Someone reported my name on Facebook and I was forced to provide legal identification and change my account to my birth name or my account would be shut down. I now cannot change my name on Facebook until I legally pay (220$) to have my name changed. Seeing my birthname daily causes me huge amounts of distress and dysphoria.”

Given the prevalence of anti-LGBTIQ comments on social media, it is unsurprising some survey respondents are resorting to ‘switching off’:

“Frankly, makes me not want to live, but I don’t tell anyone that because I think that’s what these people actually want. They want me to hate myself and take care of ‘the issue’ (ie me) for them. So I’ve unplugged from it for the most part and focus on loving myself.”

“Lesbians have copped it a bit this year and it’s made me more stressed than usual. Thinking of cutting myself off from media outlets.”

“I had to block people on social media. I choose what I read in the media and its source.”

“I considered seeking counselling to deal with my mental health regarding [anti-LGBTIQ comments] specifically, as well as removing myself from social media and avoiding news articles.”

“I found them disturbing, misleading & hurtful. I was closely following the plebiscite debate and also had clients at my work being affected by the comments in the media. After a while of hearing the same negativity about LGBTIQ people it starts to get to me. I have to take a break from reading things because they are saying ignorant and nasty things about me and my family. I have found it quite stressful and depressing.”

“I am lucky enough to be in a position where I can use my experiences to hopefully discourage this kind of behaviour. It still makes me livid to hear or read LGBTI-phobic comments because they touch on the very essence of who I am and the people I love. I have also noticed that particularly political LGBTI-phobia has a real impact on my mental health. In the interest of my own sanity I often choose to disengage, which then subsequently makes me feel guilty because surely someone has to speak up to change people’s minds.”

Overall, these responses highlight the profound impact that homophobic, biphobic, transphobic and intersexphobic comments – in social media, politics, religion, media and public spaces – had on LGBTIQ Australians over the past 12 months.

The following two quotes, for me, summarise just how important it is to push back against this rising, and hurtful, wave of prejudice:

“This behaviour creates a cage for all members of the LGBTAQI+ community. Any negative act towards someone from this community pushes us back into the cage of fear we’re all trying so hard to destroy.”

“I feel like there is a war on gender and sexuality and everywhere is a battleground of some sort and I’m a civilian trying to just live and explore myself but it’s not ‘safe’. Having friends who are accepting and part of the community helps but it still feels like a war…”

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Conclusion

The results of these two questions have confirmed not only that homophobic, biphobic, transphobic and intersexphobic comments are rife in Australia, but also that they are having a terrible impact on many – too many – lesbian, gay, bisexual, transgender, intersex and queer people.

These comments are being observed in a wide range of areas, including politics, religion and the media – but are especially prevalent on social media, with 92% of respondents witnessing anti-LGBTIQ comments in this medium in 2016.

In fact, social media was the highest-ranked (or equal highest), for all categories of LGBTI and Q, for Aboriginal and Torres Strait Islander LGBTIQ respondents and irrespective of age cohort.

On the other hand, just 3% of survey respondents – or about 1 in every 33 people – had not witnessed homophobia, biphobia, transphobia or intersexphobia on media, social media, politics, religion or public space in the past 12 months.

This is nothing less than shocking, as were the quotes highlighted above (and in the linked document) where people explained in their own words the impact that witnessing anti-LGBTIQ comments has had on their lives. If you are mentally prepared, I encourage you to read them at length.

As noted at the beginning of this post, this has been the third in my series of six articles reporting the results of my ‘The State of Homophobia, Biphobia and Transphobia’ survey.

The remaining three articles, which will focus on discrimination in education, employment and health and other areas, will be published during May[vii].

If you would like to receive updates of these results, please sign up to this blog: on mobile, at the bottom of this page, or on desktop at the top right-hand corner of the screen.

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If this post has raised any issues for you, you can contact:

QLife, Australia’s national telephone and web counselling and referral service for LGBTI people. Freecall: 1800 184 527, Webchat: qlife.org.au (3pm to midnight every day)

Lifeline: 13 11 14, lifeline.org.au

Footnotes:

[i] The previous posts can be found here:

Part 1: Verbal Harassment and Abuse

Part 2: Physical Abuse or Violence

[ii] According to the ABS, 22% of respondents to the 2011 census indicated they had ‘no religion’, although this figure is expected to rise dramatically in the 2016 census following a change in how this question was asked.

[iii] Note that the percentages for each of these groups will be reduced compared to the overall rates described above, because they are calculated based on the total number of people from that group completing the survey rather than the (lesser) number of people from that group who answered this question.

[iv] Noting that there was a small sample size for intersex respondents (n=20) meaning these percentages should be treated with some caution.

[v] Noting that there was a small sample size for respondents aged 65 and over (n=37) meaning these percentages should be treated with some caution.

[vi] In this context, lightly-edited includes:

-Removing identifying information

-Removing potentially defamatory comments and

-Removing offensive (for example, transphobic) remarks.

I have also corrected some spelling/grammatical mistakes for ease of reading.

[vii] These posts were originally scheduled for April, but have been delayed due to unforeseen circumstances.

An LGBTI Agenda for NSW

Posted on March 23, 2017 by Alastair Lawrie

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

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

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

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

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

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

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

Include bisexual people in anti-discrimination laws

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

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

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

Include intersex people in anti-discrimination laws

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

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

Remove excessive and unjustified religious exceptions

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

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

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

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

Reform anti-vilification offences

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

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

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

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

Reform access to identity documentation for trans people

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

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

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

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

Ban involuntary sterilisation of intersex infants

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

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

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

Ban gay conversion therapy

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

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

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

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

Improve the Relationship Register

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

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

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

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

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

Expand the Safe Schools program

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

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

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

Ensure the PDHPE curriculum includes LGBTI content

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

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

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

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

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

Appoint an LGBTI Commissioner

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

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

Create a Pride Centre

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

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

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

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

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

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

Footnotes:

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

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

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

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

Submission re Queensland Bill to (Finally) Equalise the Age of Consent

Posted on July 29, 2016 by Alastair Lawrie

Updated 19 January 2017:

The Queensland Parliament voted to equalise the age of consent on Thursday 15 September 2016 (as reported by the Guardian Australia here: ‘Queensland votes to equalise age of consent for all sexual acts’).

This reform, which means the age of consent for anal sex is lowered to 16, to match the age of consent for other forms of sexual intercourse, removes a provision that had a disproportionate impact on young gay, bisexual and same-sex attracted men for a quarter of a century (myself included).

Queensland was the last jurisdiction in Australia to equalise its age of consent, coming years, and in most cases decades, after other states and territories.

Original Post:

The Queensland Government has introduced a Bill to, amongst other things, finally equalise the age of consent for anal intercourse.

This legislation – the Health and Other Legislation Amendment Bill 2016 – was referred to the Legal Affairs and Community Safety Committee for detailed consideration. The details of their inquiry can be found here.

The following is my submission:

Legal Affairs and Community Safety Committee

lacsc@parliament.qld.gov.au

Friday 22 July 2016

To the Committee

Submission re the Health and Other Legislation Amendment Bill 2016

Thank you for the opportunity to provide a submission about the Health and Other Legislation Amendment Bill 2016 (‘the Bill’).

In this submission, I will focus on Part 2 of the Bill, namely those provisions seeking to amend the Queensland Criminal Code.

Specifically, I write to support the long overdue equalisation of the age of consent for anal intercourse in Queensland.

I do so as a gay man who was born in Queensland in 1978, and who lived there until 1996, although now lives in Sydney.

The above dates mean that, for the first 12 years of my life, homosexual acts were criminalised I my home state – and I recall being vaguely aware of this fact, that ‘gay = criminal’, as I grew up in Central Queensland.

I am also old enough to remember, in slightly more detail, the historic passage of legislation in 1990 that decriminalised sex between men.

Indeed, it was only a couple of months later, when I first arrived at the religious boarding school in Brisbane that would be my home for the following five years, that I first started to realise that I was gay myself.

What I didn’t fully comprehend for another couple of years – but had certainly figured out by the time I turned 16 – was that the Goss Labor Government, and Queensland Parliament more generally, had left the important job of decriminalisation only half-done.

While they decriminalised sex between adult gay and bisexual men, they had also introduced a new form of discrimination – with the age of consent set at 18 for anal intercourse (which they referred to as ‘sodomy’), and 16 for everything else.

Admittedly, this new law technically applied to anal intercourse between anyone – meaning that 16 or 17 year old cisgender heterosexual people engaging in this form of sex were also criminalised – but it is clear they were not the real ‘targets’.

The Parliament knew it. The media knew it. The LGBTI community knew it. And this (then) teenage gay boy, even though he was still deeply entrenched in the closet, knew it too. This law was primarily concerned with prohibiting same-sex activity among teenage males.

For the years 1994 to 1996, while I was aged 16 and 17 and still living in Queensland, I was fully aware that the law treated me differently simply because of my sexual orientation.

For whatever reason – whether it was blatant homophobia, personal distaste or ‘squeamishness’ about anal intercourse, misguided beliefs about health risks or malicious stereotypes about homosexual ‘recruitment’ – my state’s lawmakers had decided to single me, and people like me, out as being lesser than our peers.

It was just one more reminder of the societal homophobia surrounding me, everywhere I looked, and one more factor that made it extremely difficult to come out to my family and friends.

I also believe it contributed to the lack of any LGBTI sexual health education during my time at high school (although obviously the religious nature of the school played a part too), something that was actually a health risk (especially given these were the peak years of deaths from AIDS-related illness in Australia, before the advent of life-saving treatments).

Of course, my story is by no means unique – there have literally been tens of thousands of young gay and bisexual men who have grown up in Queensland since the passage of the unequal age of consent in 1990. And, just like me, many of them have experienced adverse consequences due to these discriminatory laws.

Indeed, the explanatory memorandum of the Bill notes that “[s]ome in the community have identified the inconsistent age of consent for anal sex in the Criminal Code as a barrier to young people accessing safe sex education regarding anal intercourse, with gay and bisexual youth being denied peer acceptance and community support.”

It further observes that “[t]he panel [convened to consider this issue] noted that young people in same sex relationships may feel compelled to withhold information about their sexual history from their health practitioner for fear of the possible legal consequences, whether for themselves or their partner. This may have implications in terms of the young person’s access to appropriate medical treatment and also has the impact of stigmatising their relationship.”

Finally, “[t]he expert panel considered that using the term sodomy may stigmatise this form of intercourse, and homosexual relationships in particular.”

In my view, these are all compelling reasons to equalise the age of consent between anal intercourse and other forms of intercourse, and to update the language that is used in the Criminal Code to be more accurate and inclusive.

What is disappointing, even distressing, is that it has taken successive Queensland Governments more than 25 years to agree with this position and to finally take steps to remedy this injustice.

That’s a quarter of a century of prejudiced provisions, in the state’s criminal law, applying to young gay and bisexual men.

A quarter of a century sending a message to people that they are not equal simply because of who they are.

A quarter of a century limiting the sexual health education provided to young gay and bisexual mean.

A quarter of a century undermining the ability of tens of thousands of people, just like me, from accessing health services without fear of discriminatory treatment.

A quarter of a century of the Queensland Government and Parliament telling the LGBTI community, in yet another way, that is was not worthy of their respect.

And so, while I congratulate the decision by the Palaszczuk Labor Government to introduce this Bill to belatedly equalise the age of consent, and look forward to it being implemented later this year, I cannot help but take this moment to also reflect on, and condemn, the failure of previous Governments – from the Goss Labor Government, to the Borbidge Coalition, Beattie and Bligh Labor and Newman Liberal-National Governments – to remove these abhorrent provisions from the Queensland Criminal Code.

Their inaction on this issue has undeniably been to the detriment of generations of young gay and bisexual men, and it should not be forgotten.

Sincerely

Alastair Lawrie

Former Queensland Premier Wayne Goss, whose election victory in 1989 led to the decriminalisation of homosexuality 12 months later. But, for 16 and 17 year old gay and bisexual men, full decriminalisation has taken another quarter of a century.

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

Posted on February 25, 2016 by Alastair Lawrie

UPDATED 11 March 2023:

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

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

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

Protected Attributes

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

There was one positive clarification in 1994 that “homosexual means male or female homosexual”[ii] (to overcome any erroneous assumption that homosexuality only referred to gay men). However, the only significant expansion in the past 41 years was the introduction of transgender as a protected attribute in 1996:

“Section 38A Interpretation

A reference in this Part to a person being transgender or a transgender person is a reference to a person, whether or not the person is a recognised transgender person[iii]:

(a) who identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex, or

(b) who has identified as a member of the opposite sex by living as a member of the opposite sex, or

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

and includes a reference to the person being thought of as a transgender person, whether the person is, or was, in fact a transgender person.”

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

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

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

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

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

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

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

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

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

**********

Religious Exceptions

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

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

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

“Section 56 Religious bodies

Nothing in this Act affects:

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

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

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

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

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

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

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

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

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

“Section 59A Adoption services

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

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

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

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

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

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

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

**********

Anti-Vilification Coverage

There is one area where anti-discrimination law in NSW has improved recently, and that is anti-vilification coverage, with the passage of the Crimes Amendment (Publicly Threatening and Inciting Violence) Act 2018.

However, because this was a piecemeal change, rather than part of a comprehensive reform package, it means NSW is left with a two-tier, fundamentally inconsistent anti-vilification regime.

On one hand, the civil prohibitions against vilification contained in the Anti-Discrimination Act 1977 only apply to homosexuality [xiv] and, as explained above, narrowly-defined transgender [xv] .

This means that bisexuals, non-binary people and people with innate variations of sex characteristics are not able to make complaints of vilification to Anti-Discrimination NSW.

On the other hand, the new Crimes Act 1900 offence of ‘publicly threatening or inciting violence’ in section 93Z applies to all of:

Sexual orientation
Gender identity, and
Intersex status.

All three are defined in section 93Z(5) [xvi] using the broadly-inclusive definitions of the Commonwealth Sex Discrimination Act 1984, and mean that bisexuals, non-binary people and people with innate variations of sex characteristics are protected in NSW anti-discrimination laws for the first time (although note that, once again, intersex advocates have called for intersex status to be replaced by the protected attribute of sex characteristics). [xvii]

The penalty for this offence is also relatively high: up to three years imprisonment for individuals, and up to 500 penalty units for corporations.

Summary: The 2018 anti-vilification reforms are welcome, both for bringing anti-LGBTI vilification provisions into closer alignment with other forms of vilification, and also for including bisexual, non-binary and intersex people for the first time. However, if anything, these changes have underscored just how out of date the other anti-vilification provisions of the Anti-Discrimination Act itself are, given it still covers only lesbian, gay and some trans people. This remains an area in desperate need of reform.

**********

Other Issues

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

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

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

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

**********

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

NSW was the first Australian jurisdiction to introduce anti-discrimination laws covering any part of the LGBTI community – but 41 years later still doesn’t protect bisexual, non-binary or intersex people.

Footnotes:

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

[ii] Section 4 Definitions.

[iii] From section 4: “recognised transgender person means a person the record of whose sex is altered under Part 5A of the Births, Deaths and Marriages Registration Act 1995 or under the corresponding provisions of a law of another Australian jurisdiction.”

[iv] Potentially modelled on the definition adopted by the Commonwealth Sex Discrimination Act 1984: “gender identity means the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth” [Although obviously exact wording should be agreed with NSW’s trans and gender diverse community.]

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

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

(a) neither wholly female nor wholly male; or

(b) a combination of female and male; or

[vi] Section 4 of the Sex Discrimination Act 1984 states ““sexual orientation” means a person’s sexual orientation towards:

(a) persons of the same sex; or

(b) persons of a different sex; or

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

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

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

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

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

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

[xi] “Section 38K Education

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

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

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

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

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

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

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

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

[xiii] “Section 49ZO Education

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

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

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

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

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

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

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

[xiv] Section 49ZT

[xv] Section 39S

[xvi] Gender identity means the gender related identity, appearances 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.

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

neither wholly female nor wholly male,
a combination of female and male, or
neither female nor male.

Sexual orientation means a person’s orientation towards:

persons of the same sex, or
persons of a different sex, or
persons of the same sex and persons of a different sex.

[xvii] Interestingly, it also means heterosexual people are covered by the publicly threatening or inciting violence offence in the Crimes Act 1900, although they still don’t have any coverage under the Anti-Discrimination Act 1977 itself (for discrimination, or civil complaints of vilification).

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

[xix] Section 38Q.

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

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

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

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

Posted on October 16, 2015 by Alastair Lawrie

Post Update #3: 12 January 2017

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

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

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

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

Post Update #2: 23 December 2015

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

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

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

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

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

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

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

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

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

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

Yours faithfully

Director
Community Relations Unit
NSW Department of Justice”

Post Update #1: 1 November 2015

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

According to the Sydney Morning Herald[i]:

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

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

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

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

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

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

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

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

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

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

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

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

Original Post: 16 October 2015

The Hon Gabrielle Upton MP

Attorney-General

GPO Box 5341

Sydney NSW 2001

office@upton.minister.nsw.gov.au

Friday 16 October 2015

Dear Attorney-General

REFORMS TO NSW ANTI-VILIFICATION LAWS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Committee comment

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

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

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

“Recommendation 9

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

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

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

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

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

Sincerely

Alastair Lawrie

NSW Attorney-General the Hon Gabrielle Upton MP

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

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

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

[iii] Sub-section 49ZT(1) Homosexual vilification unlawful “It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group.”

[iv] Sub-section 38S(1) Transgender vilification unlawful “It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of: (a) a person on the ground that the person is a transgender person, or (b) a group of persons on the ground that the members of the group are transgender persons.”

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

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

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

[viii] Ibid, pp xii-xiii.

[ix] S20D Offence of serious racial vilification (1) A person shall not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group by means which include: (a) threatening physical harm towards, or towards any property of, the person or group of persons, or (b) inciting others to threaten physical harm towards, or towards any property of, the person or group of persons.”

S49ZTA Offence of serious homosexual vilification (1) A person shall not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group by means which include: (a) threatening physical harm towards, or towards any property of, the person or group of persons, or (b) inciting others to threaten physical harm towards, or towards any property of, the person or group of persons.”

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

[xi] Ibid, p85.

Letter to Bruce Notley-Smith re Baird Liberal-National Government Commitments on NSW Anti-Discrimination Act 1977

Posted on March 1, 2015 by Alastair Lawrie

Mr Bruce Notley-Smith MP

80 Bronte Road

Bondi Junction NSW 2022

coogee@parliament.nsw.gov.au

Sunday 1 March 2015

Dear Mr Notley-Smith

REVIEW OF NSW ANTI-DISCRIMINATION ACT 1977

I am writing as an attendee at the recent #rainbowvotes forum, where five Members of Parliament from across the political spectrum, including yourself, outlined their respective approaches to lesbian, gay, bisexual, transgender and intersex (LGBTI) issues ahead of the upcoming NSW State Election.

Specifically, I am seeking clarification of your answers concerning the NSW Anti-Discrimination Act 1977 and what action you, and the Liberal-National Government, will take if you are re-elected.

At the forum, the representative attending on behalf of the NSW Labor Opposition, Ms Penny Sharpe MLC, gave a clear commitment that, if elected, a Foley Labor Government would undertake a formal review of the Anti-Discrimination Act 1977.

Following that clear commitment, you made several comments that appeared to indicate your personal support for such an approach.

However, later during the same forum, you indicated that you were appearing at the forum in your capacity as an individual MP only, and not as a spokesperson for the current Baird Liberal-National Government.

As a result, I sought clarification from you, via twitter, whether it is indeed NSW Liberal policy to support a formal review of the Anti-Discrimination Act 1977.

Given I have not received a response via social media, I am now writing to you more formally, with essentially the same question: is the Baird Liberal-National Government committed to reviewing the Anti-Discrimination Act 1977 if it is re-elected on Saturday 28 March 2015?

As I have written previously (see: https://alastairlawrie.net/2015/02/20/questions-for-mps-and-candidates-during-sydney-gay-lesbian-mardi-gras/ ), I believe the NSW Anti-Discrimination Act 1977 is now the worst LGBTI anti-discrimination legislation in Australia.

This is because:

It fails for protect bisexual people from discrimination (the only jurisdiction in the country to do so)
It fails to protect intersex people from discrimination
The religious exceptions in sub-section 56(d) are the broadest in Australia
The exceptions allowing all private schools to discriminate against lesbian, gay and transgender students are abhorrent
It fails to protect both bisexuals and intersex people from vilification and
The maximum individual fine for lesbian, gay and transgender vilification is only one-fifth of the maximum fine for racial vilification.

For all of these reasons, I believe that the Anti-Discrimination Act 1977 should be amended as a matter of priority.

However, if you are unable to give a clear commitment that a re-elected Baird Liberal-National Government would make changes to these provisions, I submit that, at the bare minimum you, and the Government, should be able to commit to holding a formal review of this narrow and out-dated legislation.

Given there are now less than four weeks left until polling day, I would appreciate a response to this letter, outlining what commitments (if any) the Liberal-National Government is prepared to make in this area, at your earliest convenience.

I have also copied the Premier, the Hon Mike Baird MP, and the Attorney-General, the Hon Brad Hazzard MP, into this correspondence.

Thank you in advance for you consideration of the issues raised in this letter.

Sincerely,

Alastair Lawrie

cc: The Hon Mike Baird MP, NSW Premier

GPO Box 5341

Sydney NSW 2001

The Hon Brad Hazzard MP, NSW Attorney-General

GPO Box 5341

Sydney NSW 2001

office@hazzard.minister.nsw.gov.au

Will Liberal Member for Coogee, Bruce Notley-Smith, be able to provide a clear commitment to review the Anti-Discrimination Act 1977?

alastairlawrie

lgbti advocate & activist, writing about anti-discrimination and vilification law reform, equality and human rights

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Letter to Bruce Notley-Smith re Baird Liberal-National Government Commitments on NSW Anti-Discrimination Act 1977