4 July 2022
Member for Sydney
Via email: email@example.com
Dear Mr Greenwich
Submission re Equality Bill Consultation
Thank you for the opportunity to provide this personal submission as part of your consultation process on a proposed Equality Bill.
Thank you also for your leadership on the issue of lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) rights in NSW, something which has been neglected by too many for far too long.
As I have written previously, LGBTIQ rights in NSW are now the worst of any state or territory in the country – through decades of inaction on law reform by the NSW Government and Parliament, Sydney has become Australia’s capital of homophobia, biphobia and transphobia.
This includes the worst LGBTIQ anti-discrimination protections, and the equal worst birth certificate laws for trans and gender diverse people. As well as an ongoing failure to prohibit non-consenting surgeries and other medical interventions on children born with variations in sex characteristics (intersex children), and to ban sexual orientation and gender identity conversion practices.
If these issues are not addressed before next February, then Sydney’s hosting of World Pride 2023 will not be a cause for celebration, but instead the focus of global embarrassment about the incredibly poor state of legal rights for the LGBTIQ people who live here.
In this submission I will make recommendations for reform in the above-mentioned four areas, with a particular focus on LGBTI anti-discrimination law reform, as well as in relation to commercial surgery.
LGBTI reforms to the Anti-Discrimination Act 1977 (NSW)
The NSW Anti-Discrimination Act was once a leader – including becoming the first anti-discrimination law in Australia to prohibit discrimination on the basis of homosexuality in 1982 (before homosexuality was even decriminalised here, which did not happen until 1984).
However, it now compares incredibly poorly across a wide range of criteria, from protected attributes, special privileges for private schools and special privileges for religious organisations generally (for comparative analysis of how it fares overall, see A Quick Guide to Australian LGBTI Anti-Discrimination Laws).
While the Act itself is now so out-dated that it is impossible for it to become best practice without a comprehensive review followed by complete overhaul, there are some immediate, interim steps which could be taken to ensure LGBTI people are better protected against discrimination on the basis of who they are. This includes:
1. Replace homosexuality with sexual orientation
NSW is the only jurisdiction in Australia which does not prohibit discrimination against bisexual, bi+ and/or pansexual people. That is because the protected attribute in the Anti-Discrimination Act is ‘homosexuality’ rather than sexuality or sexual orientation.
This should be replaced with a protected attribute of ’sexual orientation’, with a definition drawing from s4(1) of the Equal Opportunity Act 2010 (Vic):
‘sexual orientation means a person’s emotional, affectional and sexual attraction to, or intimate or sexual relations with, persons of a different gender or the same gender or more than one gender.’
2. Replace transgender with gender identity
NSW also offers extremely narrow protection against discrimination for trans and gender diverse people, effectively excluding people with non-binary gender identities completely.
The protection attribute of ‘transgender’ should be replaced with ‘gender identity’, with a definition again drawing from the Equal Opportunity Act 2010 (Vic):
‘gender identity means a person’s gender-related identity, which may or may not correspond with their designated sex at birth, and includes the personal sense of the body (whether this involves medical intervention or not) and other expressions of gender, including dress, speech, mannerisms, names and personal references’.
The definition of ‘recognised transgender person’ in section 4 of the Anti-Discrimination Act 1977 (NSW) should be removed at the same time.
3. Add a new protected attribute of sex characteristics
Intersex people are also poorly-served by anti-discrimination laws in NSW, with the Act failing to include a stand-alone protected attribute to prohibit discrimination against them.
A new protected attribute of ‘sex characteristics’ should be added, once again drawing from the Equal Opportunity Act 2010 (Vic):
‘sex characteristics means a person’s physical features relating to sex, including-
(a) genitalia and other sexual and reproductive parts of the person’s anatomy; and
(b) the person’s chromosomes, genes, hormones, and secondary physical features that emerge as a result of puberty.’
4. Add new protected attributes of sex work, and genetic characteristics
I support-in-principle the inclusion of protected attributes of sex work, with a definition developed in consultation with sex worker organisations such as Scarlet Alliance, and genetic characteristics, developed in consultation with Intersex Human Rights Australia.
5. Remove special privileges for private educational authorities
The Anti-Discrimination Act is the only such law in the country which provides blanket exceptions to all private schools, colleges and universities, irrespective of whether they are religious or not, allowing them to engage in conduct that would otherwise be prohibited.
This includes special privileges to discriminate on the basis of homosexuality against students (s49ZO) and teachers and other staff (s49ZH), and on the basis of transgender status against students (s38K) and workers (s38C), too.
There can be no possible justification for these special rights to discriminate in 2022 – they must be repealed entirely.
In order to ensure LGBT students, teachers and other staff at religious schools are properly protected against discrimination, it is also necessary to introduce a limitation on the general religious exception in section 56 (discussed further below), so that it does not apply to religious educational institutions.[i]
6. Significantly narrow special privileges for religious organisations
In addition to specific exceptions for private schools, colleges and universities, s56 of the Anti-Discrimination Actprovides incredibly broad exceptions for religious organisations more generally.
While paras (a) and (b) of that provision (which permit discrimination in relation to the appointment, and training, of priests and ministers of religion) may be justifiable on the basis of religious freedom (because of their closeness to religious observance), the same justification does not apply to para (c), which allows discrimination by religious organisations in employment (including in the delivery of publicly-funded health, housing and welfare services) and (d), which effectively grants faith bodies a blank cheque to discriminate in service provision.
Both para s56(c) and 56(d) should be repealed entirely.[ii]
7. Remove special privileges for faith-based adoption services
Under s59A of the Anti-Discrimination Act, adoption agencies operated by religious organisations are permitted to discriminate against rainbow families.
This is frankly outrageous, not only discriminating against prospective parents on the basis of irrelevant factors such as their sexual orientation and/or gender identity, but also not being in the best interests of the child, given the exclusion of loving parents on these grounds.
S59A should be repealed entirely.
8. Remove the specific transgender exception in superannuation
Under s38Q of the Act, superannuation providers are given an exception to discriminate against transgender people, by ‘treat[ing] the transgender person as being of the opposite sex to the sex with which the transgender person identifies.’
This type of provision is not found in the equivalent Sex Discrimination Act 1984 (Cth).
Once again, there can be no possible justification for this special right to discriminate in 2022 – this provision must be repealed entirely.
9. Significantly narrow the specific transgender exception in sport
Under s38P of the Act, it is lawful to discriminate against transgender people in relation to a wide range of sporting activities, from elite level through to community sport.
This exception is much, much broader than equivalent exceptions elsewhere, including s42 of the Sex Discrimination Act 1984 (Cth), which includes qualifications that such discrimination is only permitted ‘in any competitive sporting activity in which the strength, stamina or physique of competitors is relevant’, and does not apply to children under 12.
At a minimum, these qualifications should also be introduced in NSW, with consideration of adopting the narrower approach found in s29 in the Anti-Discrimination Act 1998 (Tas), or the proposed changes in this area in the ACT Government’s recent Exposure Draft Discrimination Amendment Bill 2022.
Any reforms in this area should be made in close consultation with trans and gender diverse people, and organisations representing them, and intersex people and their representative bodies as well (given the impact of sporting exceptions on that community).
10. Prohibit civil vilification on the basis of sexual orientation, gender identity and sex characteristics
Assuming changes are made to replace the protected attributes of homosexuality with sexual orientation, and transgender with gender identity (1 and 2, above), equivalent changes to civil vilification provisions under the Anti-Discrimination Act should be made at the same time.
I also support introducing civil prohibitions against vilification on the basis of sex characteristics.
11. Ensure consistency between the Anti-Discrimination Act 1977 and the Crimes Act 1900 (NSW)
If the civil vilification provisions of the Anti-Discrimination Act are updated to cover sexual orientation, gender identity and sex characteristics, equivalent amendments should be made to s93Z of the Crimes Act 1900 (NSW),[iii] which makes it a criminal offence to ‘by a public act, intentionally or reckless threaten or incite violence towards another person or a group of persons’ on the basis of a range of attributes.
Reforms to the Births, Deaths and Marriages Registration Act 1995 (NSW)
As noted above, NSW also has the equal worst birth certificate laws in the country. It is one of just two jurisdictions, alongside Queensland, which still requires transgender people to have genital surgery in order to access identity documentation reflecting their gender identity.
This situation is completely unacceptable. Gender identity is exactly that, a fundamental characteristic of personal identity, and exists irrespective of surgery, or other forms of medical or psychological treatment.
In my opinion, trans and gender diverse people should be able to update their identity documentation, including birth certificates, solely on the basis of self-identification.
That means imposing no restrictions based on whether the person has had surgery, whether they have had other forms of physical treatment (including hormones), or whether they have accessed counselling or psychological services. It also means not requiring an application to include supporting statements from medical or psychological ‘gate-keepers’.
There is only one Australian jurisdiction which currently meets this standard, the Tasmanian Births, Deaths and Marriages Registration Act 1999, with s28A(2)(b) simply requiring the applicant to make a ‘gender declaration’ in support of their application.
I therefore support-in-principle the introduction of birth certificate reforms in NSW drawing on the existing framework in Tasmania.
One other important element is ensuring children and young people have the right to update their identity documentation, irrespective of whether it makes some adults uncomfortable.
This, at a minimum, would involve allowing young people aged 16 and 17 to make applications for new birth certificates in their own right.
It also means ensuring there is a process to allow children under 16 to update their birth certificates where they have two or more parents or guardians and those parents/guardians disagree among themselves whether to support that application.
Finally, it means introducing a framework to allow children under 16 to apply in the absence of support from a parent or guardian, where a court or tribunal considers it to be in the best interests of the child and also assesses the child to be capable of consenting to the application (such as in s29J of the Births, Deaths and Marriages Registration Act 1996 (SA)).
However, as a cisgender member of the LGBTIQ community, I defer to the views of trans and gender diverse people, and the organisations representing them, on what the exact details of birth certificate reforms should include.
Ending non-consenting surgeries and other medical interventions on intersex children
The unnecessary, non-consenting and/or deferrable surgeries and other medical interventions which continue to be inflicted on children born with variations of sex characteristics (intersex children) aren’t just some of the biggest human rights abuses against the LGBTIQ community, but against any segment of the Australian community.
In this context, it is extremely frustrating that, approaching nine years from the historic 2013 Senate Inquiry into ‘Involuntary or coerced sterilisation of intersex people in Australia’, no Australian jurisdiction has legally prohibited these practices, including there being no signs of action in this area by the NSW Government.
Fortunately, the ACT Government has committed to ending these practices, and recently released their draft Variation in Sex Characteristics (Restricted Medical Treatment) Bill 2022 for public consultation.
On this issue, and whether the ACT legislation is best practice, I defer to the expertise of Intersex Human Rights Australia (IHRA). I note that in their submission to the current inquiry, they wrote:
‘The ACT government draft bill, published in May 2022, arises out of a commitment made in 2019, and deep engagement with community, clinicians, and human rights, bioethics and legal expertise. We commend this bill as a basis for reform in New South Wales.
‘The ACT government bill implements demands in the Darlington Statement of intersex community organisations and advocates in our region, and the Yogyakarta Principles plus 10… Action on this issue implements recommendations 1, 4, 7, 8 and 9 of the 2021 Australian Human Rights Commission report ‘Ensuring health and bodily integrity: towards a human rights approach for people born with variations in sex characteristics’. It also implements calls for reform by UN Treaty Bodies CEDAW, CRPD, CRC, HRC and CESCR, and addresses calls in 2021 position statements citing IHRA staff by the Australian Medical Association and the Public Health Association of Australia. It is consistent with a 2018 submission to the Australian Human Rights Commission by the Royal Australian and New Zealand College of Psychiatrists’ [emphasis added].
I therefore endorse IHRA’s view – that the ACT draft legislation be used as a basis for reform in NSW, with any necessary amendments developed in close consultation with IHRA.
Banning sexual orientation and gender identity conversion practices
The fourth major reform which should be included in the NSW Equality Bill is a prohibition on sexual orientation and/or gender identity (SOGI) conversion practices (sometimes referred to as gay/trans conversion therapy, or ex-gay/ex-trans therapy).
These are incredibly harmful practices which cause immense psychological, and sometimes physical, harm on LGBTQ people.
In my view, SOGI conversion practices should be banned, both through civil prohibitions, allowing for a range of legal responses, and criminal offences in serious cases (such as where it causes actual physical or psychological harm, and/or involves minors or other vulnerable persons).
Importantly, these prohibitions must apply across a broad range of circumstances, including religious settings (where much of the reported harm takes place), and not just in health settings (which means the existing Queensland approach to this issue cannot be supported).
My understanding is there are potential strengths to both the Victorian Change or Suppression (Conversion) Practices Act 2021 and ACT Sexuality and Gender Identity Conversion Practices Act 2020.
However, as with trans and gender diverse birth certificate reform and intersex surgeries, I defer to the views of survivors of sexual orientation and/or gender identity conversion practices, and the organisations representing them, on what the exact details of this legislation should contain.
Legalising commercial surrogacy in NSW
This reform is different from the previous four in that it is not exclusively or even primarily an issue for the LGBTIQ community, given individuals and couples seeking to employ commercial surrogacy services can be cisgender and heterosexual also.
However, rainbow families, and especially male same-gender couples, are disproportionately affected by the current legal approach to surrogacy in NSW, which is not only to prohibit commercial surrogacy domestically (s8 of the Surrogacy Act 2010 (NSW)), but also to capture individuals or couples who engage in commercial surrogacy elsewhere but are ‘ordinarily resident or domiciled in the State’ (s11).
The maximum penalty for this offence is high: up to 1,000 penalty units or imprisonment for 2 years, or both, for individuals.
More than a decade after this legislation was introduced, I don’t believe anyone in NSW genuinely believes that individuals and couples, including rainbow families, are not still engaging in commercial surrogacy arrangements in a wide range of international jurisdictions (and perhaps the only thing to even slow this process down has been since-eased pandemic-related travel restrictions, not domestic laws).
In this context, my personal view is that commercial surrogacy should be legalised in NSW.
There are two reasons for this. The first is based on harm reduction. Yes, I acknowledge that commercial surrogacy arrangements include a significant potential for exploitation, especially for women who are vulnerable or financially disadvantaged.
However, given commercial surrogacy is continuing (and will continue into the future, based on the strong desires of some members of the community to have children), the best way to minimise such exploitation is to permit commercial surrogacy within NSW, with careful and close oversight – in contrast to the current situation which sees people engage in surrogacy in jurisdictions potentially with minimal or no oversight, and with a legal incentive to avoid scrutiny of their activities.
The second reason for legalising commercial surrogacy in NSW is based on the best interests of the child. For the child being born into these families, it simply cannot be in their best interests for their parent(s) to be liable to up to 2 years imprisonment for the crime of the manner of their birth.
Thank you in advance for your consideration of this submission. Please do not hesitate to contact me, at the details provided, if you would like further information or to discuss its contents.
NB This post is written in a personal capacity, and does not reflect the views of employers past or present.
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[i] This approach applies in the absence of prohibitions against discrimination on the basis of religious belief in NSW. If religious belief is added as a stand-alone protected attribute to the Anti-Discrimination Act 1977 (NSW) in the future, it may be appropriate to allow discrimination by religious schools on the basis of religious belief only (and not other attributes), but only against students at the point of enrolment, and only against teachers and other staff where it is an inherent requirement of the role.
[ii] As with the previous footnote, this approach applies in the absence of a stand-alone protected attribute of religious belief under the Act. If such an attribute were to be introduced in future, it may be appropriate to permit some discrimination on the basis of religious belief only, in narrowly-restricted circumstances, informed by existing laws in Tasmania, and Victoria.
[iii] This includes potentially updating the existing definitions of sexual orientation and gender identity in s93Z of the Crimes Act, as well as replacing the attribute of intersex status with sex characteristics.