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

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?

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

Questions for MPs and Candidates During Sydney Gay & Lesbian Mardi Gras

Today is the official launch of Sydney Gay & Lesbian Mardi Gras, with a large and diverse festival leading up to the 37th official Mardi Gras Parade on Saturday March 7th 2015.

In recent years, as mainstream acceptance of the lesbian, gay, bisexual, transgender and intersex (LGBTI) community has grown, so too has the tendency of politicians, and would-be politicians, to appear at Mardi Gras events as a way of engaging with, and directly appealing to, LGBTI voters.

This year, Sydney Gay & Lesbian Mardi Gras overlaps with the campaign for the NSW State Election, to be held on Saturday March 28th, meaning there will likely be more Members of Parliament and candidates around than ever, trying ever-so-hard to convince us to vote for them.

Which is our opportunity to make them work (or should that be ‘werk’) for it. If MPs and candidates are going to come to our festival, then they should be made to respond to our questions (and it is our responsibility to tell them if and when their answers just aren’t good enough).

Of course, there are lots of different topics we could raise, but one issue which I would like to hear about is what each candidate – and political party – is going to do to fix the NSW Anti-Discrimination Act 1977, which now holds the dubious ‘honour’ of being the worst LGBTI anti-discrimination law in the country.

To start with, it only offers anti-discrimination protections to three of the five letters of the rainbow alphabet: lesbian, gay and transgender people.

That’s right, despite featuring the first gay anti-discrimination protections enacted in Australia (passed in 1982, so early in fact that it preceded the decriminalisation of male homosexuality in NSW by two years), the Anti-Discrimination Act has never formally protected bisexual people from discrimination[1].

All other Australian states and territories, and the Commonwealth, protect bisexuals, either specifically, or as part of ‘sexual orientation’. This ongoing exclusion from the NSW anti-discrimination scheme is nothing short of appalling.

The exclusion of intersex people, while perhaps more understandable – given the first explicit intersex anti-discrimination protections in the world were introduced in the Commonwealth’s Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 less than two years ago (and only Tasmania has since followed suit) – is no less unacceptable.

The NSW Anti-Discrimination Act 1977 also has the broadest religious exceptions in the nation. Sub-section 56(d) effectively gives religious organisations carte blanche to actively discriminate against lesbian, gay and transgender people across most areas of public life.

Sub-section 56(d) states that “[n]othing in this Act affects… any other act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion”.

That protects pretty much any action that a religious healthcare provider, community service, or school, might wish to take against LG&T employees, or people accessing those services, in this state.

Not that religious schools even need to rely on sub-section 56(d). In two of the most offensive provisions in Australian law today (not just anti-discrimination law, but any law), under the Anti-Discrimination Act all private schools in NSW (yes, even the non-religious ones) can explicitly refuse to enrol, can enrol under different conditions, and can expel, students solely because they are lesbian, gay or transgender.

These provisions are so utterly awful that they bear quoting in full:

Section 49ZO Education

  • It is unlawful for an educational authority to discriminate against a person on the ground of homosexuality:
    1. By refusing or failing to accept the person’s application for admission as a student, or
    2. In the terms on which it is prepared to admit the person as a student.
  • It is unlawful for an educational authority to discriminate against a student on the ground of homosexuality:
    1. By denying the student access, or limiting the student’s access, to any benefit provided by the educational authority, or
    2. By expelling the student or subjecting the student to any other detriment
  • Nothing in this section applies to or in respect of a private educational authority.” [emphasis added]

AND

Section 38K Education

  • It is unlawful for an educational authority to discriminate against a person on transgender grounds:
    1. By refusing or failing to accept the person’s application for admission as a student, or
    2. In the terms on which it is prepared to admit the person as a student.
  • It is unlawful for an educational authority to discriminate against a student on transgender grounds:
    1. By denying the student access, or limiting the student’s access, to any benefit provided by the educational authority, or
    2. By expelling the student or subjecting the student to any other detriment.
  • Nothing in this section applies to or in respect of a private educational authority.” [emphasis added]

There is absolutely no justification for this type of sexual orientation and gender identity segregation in our schools, in any schools. And we should challenge any MP or candidate who comes along to Mardi Gras and attempts to defend it.

The anti-vilification protections of the NSW Anti-Discrimination Act 1977 are only slightly less bad. On the positive side, NSW is one of only four jurisdictions in the country to have some form of anti-vilification laws covering our community – and that is certainly better than the Commonwealth, which has section 18C of the Racial Discrimination Act 1975 for racial vilification, but no LGBTI equivalent.

On the negative side, as with anti-discrimination, NSW legislation only protects against lesbian, gay and transgender vilification, and does not extend to vilification against bisexuals or intersex people.

Meanwhile, on the you’ve-got-to-be-kidding side (or, less politely, the WTF?-side), did you know that the maximum fine which an individual can receive for the offences of homosexual[2] or transgender[3] vilification is actually only one-fifth of the maximum individual fine for racial[4] vilification?

How on earth did anyone ever think that such a distinction – for offences which otherwise have exactly the same wording – was appropriate? More importantly, isn’t anyone who defends such a distinction in effect saying that vilifying lesbian, gay and transgender people is less offensive (perhaps even only one-fifth as bad) than vilifying people on the basis of race?

As you can see, there are many things distinctly wrong with the Anti-Discrimination Act 1997. As a consequence, there are many questions to ask Members of Parliament and candidates who attend Mardi Gras events over the next fortnight-and-a-bit.

And we should be asking those questions, not just at the LGBTI State Election Forum on Wednesday February 25th (details here: http://www.acon.org.au/about-acon/Newsroom/Media-Releases/2014/130 and free tickets here: http://www.eventbrite.com.au/e/nsw-state-election-forum-2015-tickets-15400759085) but also at Mardi Gras Fair Day on Sunday February 22nd, at the Parade on Saturday March 7th (asking them in the Parade marshalling area is probably your best bet), and at any other event at which they hold out a leaflet or put up a corflute.

To assist, I have attempted to summarise the above criticisms of the NSW Anti-Discrimination Act 1977 in the following six questions. Please feel free to use them whenever an MP or candidate might raise their heads during Mardi Gras (or in the run-up to polling day itself):

  1. Will you amend the Anti-Discrimination Act 1977 to protect bisexual and intersex people from discrimination?

 

  1. Will you repeal sub-section 56(d) of the Anti-Discrimination 1977 which currently grants the broadest religious exceptions to anti-discrimination laws in the country?

 

  1. Will you repeal sections 49ZO and 38K of the Anti-Discrimination Act 1977 which allow all private schools and colleges the right to refuse enrolment of, impose special conditions on or expel lesbian, gay and transgender students?

 

  1. Will you amend the Anti-Discrimination Act 1977 to protect bisexual and intersex people from vilification?

 

  1. Will you amend the Anti-Discrimination Act 1977 to harmonise the penalties for vilification, rather than having a higher penalty for racial vilification than homosexual or transgender vilification? And

 

  1. If you are unable to make the above commitments, will you at least agree to conduct a review of the Anti-Discrimination Act 1977, which is now the most out-dated and worst LGBTI anti-discrimination law in Australia?

These are the questions which I would like answered during Sydney Gay & Lesbian Mardi Gras. I wonder which MPs and candidates are going to ‘come to the party’ (so to speak) by supporting better anti-discrimination laws for the entire LGBTI community.

"Religious exceptions are this wide." Actually, Premier Baird, they're a lot wider than that. Time to repeal sub-section 56(d) of the NSW Anti-Discrimination Act 1977.

“Religious exceptions are this wide.” Actually, Premier Baird, they’re a lot wider than that. Time to repeal sub-section 56(d) of the  Anti-Discrimination Act 1977.

After much contemplation, Opposition Leader Luke Foley this week finally joined the 21st century by supporting marriage equality. Will he also support a 21st century Anti-Discrimination Act?

After much contemplation, Opposition Leader Luke Foley this week finally joined the 21st century by supporting marriage equality. Will he also support a 21st century Anti-Discrimination Act?

Finally, if you manage to secure a response from MPs or candidates on these questions during Sydney Gay & Lesbian Mardi Gras, whether that response is negative or positive, please leave their answers in the comments section below.

And, if you want to raise them directly with some of the relevant decision-makers, here are some people you might wish to contact:

Liberals

Premier Mike Baird

Email https://www.nsw.gov.au/your-government/contact-premier-new-south-wales

Phone 02 8574 5000

Twitter https://twitter.com/mikebairdMP

Attorney-General Brad Hazzard

Email office@hazzard.minister.gov.au

Phone 02 8574 6000

Twitter https://twitter.com/BradHazzard

Labor

Opposition Leader Luke Foley

Email leader.opposition@parliament.nsw.gov.au

Phone 02 9230 2310

Twitter https://twitter.com/Luke_FoleyNSW

Shadow Attorney-General Paul Lynch

Email ElectorateOffice.Liverpool@parliament.nsw.gov.au

Phone 02 9602 0040

Greens

Attorney-General Portfolio Spokesperson David Shoebridge

Email david.shoebridge@parliament.nsw.gov.au

Phone 02 9230 3030

Twitter https://twitter.com/ShoebridgeMLC

[1] Section 49ZG refers to discrimination on the basis of ‘homosexuality’, with ‘homosexual’ defined in section 4 as ‘homosexual means male or female homosexual’.

[2] Section 49ZTA sets the maximum individual punishment for serious homosexual vilification at 10 penalty units, or imprisonment for 6 months, or both.

[3] Section 38T provides that the maximum individual punishment for serious transgender vilification is 10 penalty units, or imprisonment for 6 months, or both.

[4] Section 20D establishes the maximum individual punishment for serious racial vilification: 50 penalty units, or imprisonment for 6 months, or both.

Submission to Australian Human Rights Commission Sexual Orientation, Gender Identity and Intersex (SOGII) Rights Consultation

One of my favourite campaigns of recent times – It Gets Better – performs a valuable role, letting vulnerable LGBTI youth know that, while the homophobia, biphobia, transphobia and intersexphobia they may be experiencing is awful, for most of them, it will get better. I emphasise the word most here because we should always remember that it does not get better for everyone.

Meanwhile, as the LGBTI movement itself ‘ages’, many of us are increasingly celebrating the past, and reflecting on significant community milestones (such as last year’s 30th anniversary of the decriminalisation of male homosexuality in NSW, or the 40th anniversary of Sydney’s Gay & Lesbian Mardi Gras which is now only three years away). But, while absolutely necessary, looking backwards should never obscure the challenges that remain ahead.

This consultation, including an examination of legislation, policies and practices by government(s) that unduly restrict sexual orientation, gender identity and intersex rights, provides an opportunity to highlight some of the major obstacles which continue to prevent LGBTI Australians achieving full equality. In this submission, I will concentrate on six such areas:

  1. Involuntary or coerced sterilisation of intersex children

These unjustified practices – surgeries performed with the aim of ‘normalising’ intersex children according to the expectations of their parents, their doctors, and/or society at large, so that they conform to an exclusionary man/woman binary model of sex – are human rights abuses, plain and simple.

Obviously done without the child’s consent, such practices can involve sterilisation, as well as other ‘cosmetic’ (ie unnecessary), largely irreversible surgery on genitalia to make their bodies fit within the idea of what a man or woman ‘should’ be, ignoring the individual involved and their fundamental rights to bodily integrity, and personal autonomy.

That these practices continue in 2015 is abhorrent – and the fact the Commonwealth Government has yet to formally respond to the Senate’s 2013 Report into this issue (http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Community_Affairs/Involuntary_Sterilisation/Sec_Report/~/media/Committees/Senate/committee/clac_ctte/involuntary_sterilisation/second_report/report.ashx) is, or at least should be, a scandal.

  1. Restrictions on the rights of transgender people

Another group within the LGBTI community whose rights continue to trail those whose identities are based on sexual orientation (lesbian, gay and bisexual people) are transgender Australians.

This includes the fact there continue to be ‘out-of-pocket’, in many cases quite significant, expenses for medical support for trans* people simply to affirm their gender identity. This is a denial of their human rights – access to trans* surgeries and related medical services should not be restricted by the capacity to pay, but instead should be fully publicly-subsidised through Medicare.

The ongoing requirement that married transgender Australians must divorce their spouses in order for their gender identity to be legally recognised is also a fundamental breach of their rights, and must end.

  1. Processing and resettlement of LGBTI refugees in countries which criminalise homosexuality

Australian Governments, of both persuasions, are guilty of violating the human rights of LGBTI refugees. These are people who are (often) fleeing persecution on the basis of their sexual orientation, gender identity or intersex status, and seeking our protection.

Australia’s response? To detain them, indefinitely, in inhumane prison camps on Nauru and Manus Island. For many, while detained they are at risk of prosecution under the laws of Papua New Guinea and/or Nauru, both of which continue to criminalise male-male intercourse. Even after they are found to be refugees, they are then ‘resettled’ in these countries, in effect exposing people who have fled persecution to potentially more persecution.

While I believe the offshore processing and resettlement of all refugees is unjust, it should be recognised it has a disproportionately negative impact on LGBTI refugees.

  1. Denial of the right of LGBTI students to an inclusive education

It is encouraging that greater numbers of young LGBTI people feel comfortable in disclosing their status at an earlier age – and for some, that they attend genuinely inclusive schools. However, this inclusion is by no means universal.

For example, the recently developed national Health & Physical Education curriculum does not even include the words lesbian, gay or bisexual, and does not guarantee students will be taught comprehensive sexual health education (even omitting the term HIV). This is a massive failure to ensure all students learn vital information that is relevant to their health.

Similarly, while the national Safe Schools Program is a welcome initiative to counter homophobia and bullying, participation in the program is optional, with most schools (and even some entire jurisdictions) opting out. The right to attend school free of discrimination should not depend on a student’s geographic location, or their parent/s’ choice of school.

Finally, religious exceptions to anti-discrimination legislation (in all jurisdictions outside Tasmania), mean many LGBTI students are at risk of discrimination, by their school, simply for being who they are.

  1. Limitations on anti-discrimination protections

Students are not the only LGBTI individuals let down by Australia’s current anti-discrimination framework. These same religious exceptions mean that, in most jurisdictions, LGBTI people can be discriminated against in a wide range of areas of public life, both as employees and people accessing services, in education, health, community services and (as employees) in aged care.

The attributes which are protected under anti-discrimination law also vary widely, with intersex people only truly protected under Commonwealth and Tasmanian law, different definitions of transgender (including extremely narrow protections in Western Australian legislation), and NSW excluding bisexual people altogether.

Finally, only four jurisdictions have vilification protections for (some) members of the LGBTI community – with no Commonwealth LGBTI equivalent of section 18C of the Racial Discrimination Act.

  1. Ongoing lack of marriage equality

I include this not because I consider it as important as the issues listed above, but simply as someone who has been engaged to be married for more than five years – and has no idea how much longer he will have to wait to exercise the same rights as cisgender heterosexual couples, with the only difference being who I love. Marriage discrimination is wrong, it is unjust, and it must go.

This submission is by no means comprehensive – there are a variety of other issues which I have excluded due to arbitrary word length restrictions (including mental health issues, anti-LGBTI violence, and discrimination against rainbow families – with my partner and I able to adopt in Sydney, but not Melbourne or Brisbane).

In conclusion, while it does get better, and over time, it most certainly has got better, there are still many ways in which the rights of LGBTI Australians continue to be denied – and about which we, as LGBTI advocates and activists, should remain angry, and most importantly, take action.

Human Rights Commissioner Tim Wilson, who is leading the consultation on SOGII Rights

Human Rights Commissioner Tim Wilson, who is leading the consultation on SOGII Rights

NB Public submissions to the AHRC SOGII Rights consultation close on Friday 6 February. For more details, head to: <https://www.humanrights.gov.au/sogii-rights

For more information on some of the topics listed above, see my previous posts on:

– Submission to Involuntary and Coerced Sterilisation of Intersex People Senate Inquiry <https://alastairlawrie.net/2013/07/01/submission-to-involuntary-and-coerced-sterilisation-senate-inquiry/

– Letter to Scott Morrison About Treatment of LGBTI Asylum-Seekers and Refugees Sent to Manus Island <https://alastairlawrie.net/2014/02/02/letter-to-scott-morrison-about-treatment-of-lgbti-asylum-seekers-and-refugees-sent-to-manus-island-png/

– Letter to Minister Pyne Calling for COAG to Reject Health & Physical Education Curriculum Due to Ongoing LGBTI Exclusion <https://alastairlawrie.net/2014/12/09/letter-to-minister-pyne-calling-for-coag-to-reject-health-physical-education-curriculum-due-to-ongoing-lgbti-exclusion/

– The Last Major Battle for Gay & Lesbian Legal Equality in Australia Won’t be about Marriage <https://alastairlawrie.net/2014/02/26/the-last-major-battle-for-gay-lesbian-legal-equality-in-australia-wont-be-about-marriage/  and

– Bill Shorten, Will you Lead on Marriage Equality? <https://alastairlawrie.net/2015/01/24/bill-shorten-will-you-lead-on-marriage-equality/

No Homophobia No Exceptions Facebook Page

As I have written previously, I strongly believe that, long after marriage equality has been won in Australia, we, the members of the LGBTI community, will still be fighting for the right not to be discriminated against, in public life, by religious organisations (see: https://alastairlawrie.net/2014/02/26/the-last-major-battle-for-gay-lesbian-legal-equality-in-australia-wont-be-about-marriage/).

The campaign to remove the special rights which are given to religious organisations to discriminate against us in health, education, community services and elsewhere will be a long one – and we will not win it unless we start taking action now.

As part of that much larger battle, today I have started my own small Facebook page, called No Homophobia No Exceptions, with the aim of drawing attention to this issue and, where possible, to campaign for an end to religious exceptions in Commonwealth, state and territory anti-discrimination laws.

If you support this campaign, I encourage you to like the page: https://www.facebook.com/lgbtiantidiscrimination I have also included below the short, and long, description of the page for your information.

NHNE profile pic

Short Description

Online campaign for the removal of religious exceptions to LGBTI anti-discrimination laws.

Long Description

No Homophobia No Exceptions is a page dedicated to fighting against homophobia, biphobia, transphobia and intersexphobia.

Its primary goal is the removal of exceptions to anti-discrimination laws, including the Commonwealth Sex Discrimination Act 1984 and NSW Anti-Discrimination Act 1977, which allow religious organisations to discriminate against members of the lesbian, gay, bisexual, transgender and intersex (LGBTI) community.

No Homophobia No Exceptions also supports broader law reform to ensure that all members of the LGBTI community have access to anti-discrimination protections (for example, intersex status is only covered federally and in Tasmania, Western Australian legislation only includes trans people who have had gender reassignment, and NSW law excludes bisexual people).

It also supports the introduction of comprehensive anti-vilification protections for the LGBTI community (currently, only four Australian jurisdictions include some form of LGBTI vilification laws, and most only apply to some sections of the community).

Finally, No Homophobia No Exceptions recognises that the fight against homophobia, biphobia, transphobia and intersexphobia will not be won with legislation alone. As a result, this page aims to shine a light on examples of discrimination against the LGBTI community, both to campaign for them to be redressed, and as part of the wider cultural movement for LGBTI equality and acceptance.

#NoHomophobiaNoExceptions

If you support this campaign, please like: https://www.facebook.com/lgbtiantidiscrimination Thanks, Alastair

Submission to NSW Parliament Inquiry into False or Misleading Health Practices re Ex-Gay Therapy and Intersex Sterilisation

Earlier this year, NSW Parliament’s Committee on the Health Care Complaints Commission called for submissions to an inquiry into the promotion of false or misleading health-related information or practices.

I wrote the following submission, looking at two practices in particular which negatively affect the lesbian, gay, bisexual, transgender and intersex (LGBTI) community: the practice of so-called ‘ex-gay therapy’ or conversion therapy, as well as the involuntary or coerced sterilisation of intersex people.

At this stage, while the Committee has chosen to publish 63 of the submissions it has received, it has not published mine, so I am reproducing it here. As always, I would be interested in your thoughts/feedback on the below.

Committee on the Health Care Complaints Commission

Parliament House

Macquarie St

SYDNEY NSW 2000

Friday 7 February 2014

Dear Committee

SUBMISSION TO INQUIRY INTO THE PROMOTION OF FALSE OR MISLEADING HEALTH-RELATED INFORMATION OR PRACTICES

In this submission, I would like to address two areas of ‘health-related practices’ which negatively affect the lesbian, gay, bisexual, trans* and intersex (LGBTI) communities.

Specifically, with respect to term of reference (c) “the promotion of health-related activities and/or provision of treatment that departs from accepted medical practice which may be harmful to individual or public health”, I believe the Committee should examine:

i)              ‘ex-gay’ or ‘reparative’ therapy, and

ii)             the involuntary or coerced sterilisation of intersex people.

Ex-gay or reparative therapy

I can think of few ‘health-related practices’ which so clearly fall within term of reference (c) of this inquiry than so-called ‘ex-gay’ or ‘reparative’ therapy.

This practice, which although more common in the United States is nevertheless still practiced in New South Wales, involves organisations, usually religious, offering ‘counselling’ to help transform people who are lesbian, gay or bisexual into being heterosexual, and in some cases to attempt to transform people who are trans* into being cisgender.

In short, ex-gay or reparative therapy involves attempting to change a person’s sexual orientation or gender identity, based on the belief that being lesbian, gay, bisexual or trans* is somehow ‘wrong’ or ‘unnatural’.

There are three main problems with ex-gay or reparative therapy.

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

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

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

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

Finally, while at this stage there is no evidence linking registered medical practitioners with these discredited practices in New South Wales, there is evidence overseas that some counsellors, psychologists, psychiatrists or other registered medical practitioners either practice ex-gay therapy themselves, or will refer patients to ex-gay organisations. The Committee should consider additional appropriate sanctions for any practitioners caught doing so in NSW, including potential de-registration and civil penalties.

Involuntary or coerced sterilisation of intersex people

In contrast to ex-gay therapy, which is largely performed by people who are not registered medical practitioners, some abuses perpetrated against intersex people in Australia are undertaken by the medical profession themselves.

As outlined by Organisation Intersex International Australia (OII Australia), in their submission to last year’s Senate Standing Committee on Community Affairs Inquiry into Involuntary or Coerced Sterilisation of People with Disabilities in Australia (dated 15 February 2013, pages 3-4):

“Every individual member of OII Australia has experienced some form of non-consensual medical intervention, including the following:

  • Pressure to conform to gender norms and to be a “real man” or “real woman”.
  • Involuntary gonadectomy (sterilisation) and clitorectomy (clitoris removal or reduction) as an infant, child or adolescent.
  • Medical and familial pressure to take hormone treatment.
  • Medical and familial pressure to undertake genital “normalisation” surgery.
  • Surgical intervention that went outside the terms of consent, including surgery that was normalising without consent.
  • Disclosure of non-relevant medical data to third parties without consent.”

While I understand that the terms of reference state that “[t]he inquiry will focus on individuals who are not recognised health practitioners, and organisations that are not registered health service providers”, given the significant levels of harm involved in these practices against intersex people, I would encourage the Committee to nevertheless examine this subject.

I would therefore recommend the Committee take into consideration the 2nd Report of the Senate Standing Committee on this topic, as well as OII Australia’s submissions to that Inquiry. I have also attached my own submission from that inquiry with this submission (link here: <https://alastairlawrie.net/2013/07/01/submission-to-involuntary-and-coerced-sterilisation-senate-inquiry/ ).

Thank you for considering my submission on these important topics.

Sincerely,

Alastair Lawrie

Submission to National Curriculum Review re Health & Physical Education Curriculum

The following is my submission to the review of the national curriculum, initiated by the Commonwealth Minister for Education, the Hon Christopher Pyne MP at the end of 2013. Given the appointment of Mr Kevin Donnelly to co-chair this review, I am not confident that all, or indeed, any of the concerns below will be listened to. But the inclusion of LGBTI students and content in our schools system is so important that I believe it is still worth a shot.

National Curriculum Review Submission

Thursday 13 March 2014

Thank you for the opportunity to make a submission on the development of the national school curriculum.

In this submission I will limit my comments to the development of the national Health & Physical Education (HPE) curriculum. In particular, I will be commenting on whether the HPE curriculum as drafted addresses the needs of, and genuinely includes, lesbian, gay, bisexual, transgender and intersex (LGBTI) students.

I have previously made submissions on the initial public consultation draft of the HPE curriculum, released in December 2012 (a copy of my submission is provided at <https://alastairlawrie.net/2013/04/11/submission-on-national-health-physical-education-curriculum/ ), and on the revised draft released for limited public consultation in June and July 2013 (see <https://alastairlawrie.net/2013/07/30/submission-on-redrafted-national-health-physical-education-curriculum/ ).

In both of those submissions I was strongly critical of the fact that the draft HPE curriculums did not genuinely attempt to include LGBTI students (including omission of the words lesbian, gay or bisexual), did not provide adequate sexual health education, and did not provide adequate information regarding HIV and other Blood Borne Viruses (BBVs), including viral hepatitis.

A second revised draft of the curriculum was prepared by the Australian Curriculum, Assessment and Reporting Authority (ACARA) ahead of the meeting of Commonwealth, State and Territory Education Ministers in November 2013. It has been reported that Education Ministers did not agree to the second revised draft, but instead simply noted its development in anticipation of this review.

Nevertheless, the second revised draft HPE curriculum was published in February 2014 on the Australian Curriculum website (www.australiancurriculum.edu.au).

I have analysed the second revised draft, and sincerely hope that my comments below convey the seriousness of my concerns about the ongoing exclusion of LGBTI students and content, and the potential negative health impacts that this exclusion will have over the short, medium and long-term.

The current version of the national Health & Physical Education curriculum does nothing to put all ‘Students First’, which I understand to be the guiding principle of this review. In fact, by continuing to exclude some students, and marginalising content which is relevant to their needs, the draft HPE curriculum places lesbian, gay, bisexual, transgender and intersex students last.

If the HPE curriculum were to be implemented as it currently stands, it would actively contribute to, and reinforce, the disproportionate rates of mental health problems, depression and, most tragically, suicide, which continue to affect young LGBTI people.

By failing to include detailed BBV and sexual health education, the HPE curriculum would also leave young people, and gay and bisexual men and trans* people specifically, exposed to unnecessary risk of transmission of HIV and other infections.

And by not ensuring that all students are provided with information that is relevant to their own needs and personal circumstances, the HPE curriculum will undermine the fundamental human right to health of the next generation of young LGBTI people. This right must be respected, and not denied to people merely on the basis of other peoples’ attitudes towards their sexual orientation, gender identity or intersex status.

This review is an(other) opportunity to address some of the serious shortcomings of the draft HPE curriculum. Please seize this opportunity and recommend that the curriculum be amended to ensure LGBTI students are included, with content that is relevant and targeted to meet their needs, including around sexual health and BBV education.

The remainder of this submission will look at five key areas of the draft HPE curriculum. They are:

  • Terminology
  • Student Diversity
  • Bullying & Discrimination
  • Sexual Health, and
  • HIV and other BBVs.

Terminology

One significant problem that has consistently appeared through the initial draft, revised draft and now second revised draft of the Health & Physical Education curriculum is that of terminology. Specifically, the HPE curriculum has either completely excluded terms that are essential for young people to learn, or included terms or definitions that are not appropriate in the circumstances.

The biggest problem in terminology, featured in all three drafts, has been the failure to even include the words lesbian, gay or bisexual. Despite these being the most common forms of identification for people whose sexual orientation is ‘not heterosexual’, these terms have never appeared in any version of this document.

In fact, the ongoing refusal to name lesbians, gay men and bisexuals – despite the fact that students will have heard these terms regularly amongst their families and friends, in culture and in broader society, and that an increasing number of young people, including students, will be using these terms to describe themselves – is almost bizarre in its stubbornness to deny reality.

Even if there may be a reason for sometimes using the umbrella term same-sex attracted, to ensure that people who may be sexually attracted to people of their own sex but who do not use the terms lesbian, gay or bisexual to identify themselves are included, there is absolutely no justification for not naming lesbian, gay and bisexual identities within the HPE curriculum (for example, by using the description “same-sex attracted, including lesbian, gay and bisexual people”). The failure to do so contributes to the marginalisation of lesbian, gay and bisexual young people.

On a related issue, the HPE curriculum as drafted appears to use the incredibly broad, and arguably poorly-defined, term ‘sexuality’ at multiple points in the document when ‘sexual orientation’ would be more appropriate.

For example, the Glossary defines ‘sexuality’ as “[a] central aspect of being human throughout life. Sexuality encompasses sex, gender identities and roles, sexual orientation, pleasure, intimacy and reproduction and is influenced by the interaction of biological, psychological, social, economic, political, cultural, ethical, legal, historical, religious and spiritual factors”. The breadth of this definition makes some of the references to sexuality in the curriculum either too vague to be practicable, or even unintelligible.

The more widely-accepted term ‘sexual orientation’, which the curriculum does not define, and only appears to use once (in the definition of ‘sexuality’, reproduced above), would be more constructive, especially when references are made to differences or diversity in ‘sexuality’. Using the term sexual orientation would also more clearly include different orientations (including lesbian, gay and bisexual) than using the term sexuality alone.

On a positive note, there have been some improvements in references to, and definitions for, diversity in gender identity, including transgender people (which at least is included as part of the Glossary definition of ‘gender diverse’).

There have also been improvements in terms of the recognition of intersex people, who are now at least referenced in the statement on student diversity, and provided with a separate definition in the Glossary (where previously it had been erroneously included within the definition of gender diverse).

Nevertheless, defining a term in the Glossary and then using it once in the main text of the curriculum itself (and even then only as part of an ‘aspirational statement’ at the beginning of the document) is not sufficient to guarantee that the needs of transgender and intersex students are met.

In summary, the HPE curriculum needs to be significantly amended, such that it actually includes the terms lesbian, gay and bisexual, and that it adequately includes information about these sexual orientations, as well as transgender and intersex people, throughout the document.

Student Diversity

As discussed above, the HPE curriculum includes a statement on ‘Student Diversity’ at the beginning of the document, and this includes two paragraphs on ‘Same-sex attracted and gender-diverse students’.

I welcome some of the changes that have been made to this section between the revised draft and the second revised draft. In particular, these paragraphs now make a variety of positive statements (including that “it is crucial to acknowledge and affirm diversity in relation to sexuality and gender’” – noting my view, expressed earlier, that the use of ‘sexual orientation’ would be preferable here – while talking about “inclusive… programs” and the needs of “all students”).

Indeed, the last sentence of the section is particularly encouraging where it notes that being inclusive and relevant is “particularly important when teaching about reproduction and sexual health, to ensure that the needs of all students are met, including students who may be same-sex attracted, gender diverse or intersex”.

However, these positive developments continue to be undermined by the preceding statements that the HPE curriculum “is designed to allow schools flexibility to meet the learning needs of all young people, particularly in the health focus area of relationships and sexuality” (emphasis added) and that “[a]ll schools communities have a responsibility when implementing the HPE curriculum to ensure that teaching is inclusive and relevant to the lived experiences of all students” (emphasis added).

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

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

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

And, while this appears to be a somewhat negative and narrow interpretation of these paragraphs, it is a realistic one given that a statement which appeared in the initial consultation draft, which stated that “same-sex attracted and gender diverse students exist in all Australian schools” was abandoned in the revised draft, and, despite arguments put forward for its re-inclusion was not included in the second revised draft.

In my view, whether to include LGBTI students and content should not be an issue of ‘flexibility’ between different schools. Instead, there should be a minimum level of LGBTI education provided to every student in every school – and, after all, isn’t a national minimum standard what the curriculum should be aiming to achieve?

This would be further supported by the re-inclusion of a statement which notes that “lesbian, gay, bisexual, transgender and intersex students exists across all Australian schools, and all schools must provide LGBTI-specific content to each and every student”.

Bullying & Discrimination

One area where there has been significant improvement from the initial draft and revised draft to the second revised draft has been an increase in content that attempts to redress anti-LGBTI bullying and discrimination.

In particular, I welcome the commitment in the Glossary definition of ‘discrimination’ that “[t]he types of discrimination that students must learn about include racial, sex and gender discrimination, homophobia and transphobia” (emphasis added).

I also welcome the increased content in year band descriptions that explicitly includes learning about homophobia, in years 7/8 and 9/10.

However, there are still a range of improvements that could be made to ensure that the curriculum adequately informs students about the need to stamp out discrimination and bullying of LGBTI students.

First, it is important to note that ‘homophobia’ does not necessarily include all forms of discrimination or prejudice against LGBTI people. The inclusion of transphobia in the Glossary is valuable, however, it should also be included in the year band descriptions to ensure that it is not overlooked. Both the Glossary and year band descriptions should also include biphobia and anti-intersex discrimination, which should not automatically be subsumed within a catch-all category of ‘homophobia’.

Second, discussion of homophobia, biphobia, transphobia and anti-intersex discrimination should not be left until years 7/8 to be introduced into the HPE curriculum, but should be commenced in years 5/6 alongside education about racism.

This is vital not only because anti-LGBTI bullying and discrimination can occur from a young age (including all-too-common insults like “that’s so gay”), but also because some young lesbian, gay and bisexual students are coming out earlier and earlier (and deserve to be protected), while some trans* and intersex youth may have disclosed their status earlier still.

Third, in the year band description for years 9/10, heading “[c]ritique behaviours and contextual factors that influence health and wellbeing of their communities” instead of using the term “such as… homophobia” (emphasis added) the curriculum should say “including homophobia, biphobia, transphobia and anti-intersex prejudice” to ensure that schools cannot opt out of providing this content.

Fourth, I would highlight the inconsistency in providing information about homophobia and transphobia to students, which as I have indicated above is a positive development, with the ongoing exclusion of the words lesbian, gay and bisexual from the document in its entirety, and the exclusion of the words transgender and intersex from the year band descriptions (which provide the main content of the curriculum).

It would seem nigh on impossible to appropriately teach students about the negatives of homophobia and transphobia (together with biphobia and anti-intersex discrimination, which should be added) at the same time that lesbian, gay, bisexual, transgender and intersex students are either not explicitly mentioned in the year band descriptions, or not even mentioned at all in the entire curriculum.

Sexual health

One of the key aspects of any Health & Physical Education curriculum must be the provision of comprehensive, inclusive and up-to-date education around sexual health.

Unfortunately, none of the three drafts of the HPE curriculum released to date have provided even a bare minimum of information about the best practices to support sexual health, not just for LGBTI people, but also for cisgender heterosexual students.

While the Glossary does at least provide a definition of ‘sexual health’ (“[a] state of physical, mental and social wellbeing in relation to sexuality. It requires a positive and respectful approach to sexuality and sexual relationships, as well as the possibility of having pleasurable and safe sexual experiences, free of coercion, discrimination and violence”), there is either limited or no support to implement this in practice in the year band descriptions.

In the year bands 5/6 and 7/8, which represent key ages for sexual health education, there is some discussion of physical changes surrounding puberty, and even changing feelings and attractions, but there does not appear to be any unit or module where students are taught the ‘nitty-gritty’ of sexual health, including discussion of different sexual practices, sexually transmitted infections (STIs) and the best ways to reduce the risks of STI transmission (including but not limited to condom usage).

I continue to find it extraordinary that the national minimum standard for Health & Physical Education to students does not even refer to STIs or condoms.

One of the arguments that has been mounted in defence of this omission is that this level of detail is not necessary in the curriculum, and that it will be covered as different jurisdictions and school systems implement their own syllabus.

I completely disagree. Given how fundamental sexual health is to the health and wellbeing of young people, surely the national HPE curriculum is the perfect place to guarantee that all students, rights across the country and irrespective of whether they attend government or non-government schools, receive the best possible information.

In addition, the reticence to provide any real detail around sexual health in the curriculum, on the basis that ‘specifics’ are not required, looks more like evasion when compared with some of the other sections of the curriculum which are, in fact, quite detailed (for example, in the year 5/6 band description it suggests “experimenting with different music genres such as Indian Bhangra music when performing creative dances”).

If something as specific as Indian Bhangra music can be named in the HPE document, then there must also be space for detailed discussion of the importance of sexual health, different sexual practices, STIs and condoms.

HIV and other BBVs

My fifth and final concern is related to the fourth, and that is the complete exclusion of HIV, and other BBVs like viral hepatitis, from the curriculum.

As I have written previously, I simply cannot understand that a national Health & Physical Education curriculum, developed and written in the years 2012 and 2013, does not even refer to HIV, hepatitis B and hepatitis C, which together directly affect almost half a million Australians.

It is vital that students learn about these BBVs, and most importantly how to reduce the risks of their transmission (for example, condom usage, hepatitis B vaccination, not sharing injecting equipment and safe tattooing and body art practices). If we do not provide this information, at the age that young people need it most, then we are failing in our duty of care towards the next generation.

The ongoing exclusion of HIV in particular looks odd (or, to be less charitable, short-sighted and ill-conceived). More than 30 years into the HIV epidemic in Australia, and with Melbourne hosting the 20th International AIDS Conference in July 2014, the proposed national minimum standard for Health & Physical Education curriculum does not even bother to mention it.

This is far from the ‘best practice’ approach that Australia adopted to the HIV epidemic in the 1980s. A best practice approach to the HPE curriculum now would, as a minimum, ensure that all students learn about HIV, hepatitis B and hepatitis C, and the best ways to reduce the risks of transmission.

 

Conclusion

 

As I have outlined above, I have serious concerns about the second revised draft Health & Physical Education curriculum, including its continued exclusion of LGBTI students and content relevant to their needs, as well as minimal or non-existent education regarding sexual health and HIV and other BBVs.

As reviewers of the national curriculum, I believe it is your responsibility to remedy these significant shortcomings, and ensure that the final HPE curriculum adopted is one that provides for the best possible health education and outcomes for all students, including lesbian, gay, bisexual, transgender and intersex students.

That is my definition of Students First.

Sincerely,

Alastair Lawrie

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

[Updated March 4th 2015]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Wesley Mission recently spent eight years, and went all the way to the NSW Court of Appeal, defending their right to deny allowing a male same-sex couple to become foster carers to children in need. Wesley did so on the basis that: “[t]he biblical teaching on human sexuality makes it clear that monogamous heterosexual partnership within marriage is both the norm and ideal” (OW & OV v Members of the Board of the Wesley Mission Council [2010] NSWADT 293 (10 December 2010).

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

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

The net effect of the Wesley Mission case was to provide judicial confirmation of the breadth of the religious exceptions offered under section 56(d) of the NSW Anti-Discrimination Act 1977. That section reads: “[n]othing in this Act affects: any other act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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