Did You Know? Most Australian Jurisdictions Don’t Prohibit Anti-LGBTI Vilification

Hate-speech against minority groups is inherently harmful, and most people accept it should be regulated in some way (even if there is debate about what such regulation should look like).

Indeed, almost a quarter of a century since racial vilification was prohibited under Commonwealth law – the Racial Hatred Act was passed by Parliament in August 1995 – many probably assume that vilification against minority groups, including against lesbian, gay, bisexual, transgender and intersex (LGBTI) people, is already outlawed.

Which means that some would likely be surprised to discover the majority of Australian jurisdictions do not prohibit vilification against LGBTI people, and that even among those states and territories that do, only two cover all parts of our community.

Tasmania

The first jurisdiction that prohibits vilification against all of lesbians, gay men, bisexuals, transgender and intersex people is Tasmania.

Section 19 of the Anti-Discrimination Act 1998 (Tas) outlaws ‘inciting hatred’:

‘A person, by a public act, must not incite hatred towards, serious contempt for, or severe ridicule of, a person or a group of persons on the ground of’ protected attributes including sexual orientation, gender identity and intersex variations of sex characteristics.’

Tasmania also has best practice protections under section 17(1), which further provides that:

‘A person must not engage in any conduct which offends, humiliates, intimidates, insults or ridicules another person… in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated, intimidated, insulted or ridiculed.’

Once again, the attributes covered include sexual orientation, gender identity and intersex variations of sex characteristics.

Australian Capital Territory

The ACT is the second jurisdiction that prohibits vilification against all of lesbians, gay men, bisexuals, transgender and intersex people.

Section 67A of the Discrimination Act 1991 (ACT) makes vilification unlawful:

‘It is unlawful for a person to incite hatred toward, revulsion of, serious contempt for, or severe ridicule of a person or group of people on the ground of any of the following, other than in private:

(b) gender identity

(d) intersex status

(g) sexuality.’

Although it should be noted that intersex advocates have called for discrimination and vilification protections on the basis of ‘intersex status’ to be replaced by the attribute of ‘sex characteristics’,[i] based on the definition in the Yogyakarta Principles plus 10.[ii]

Queensland

Queensland is one of two other jurisdictions that protect some, but not all, parts of the LGBTI community against vilification.

Section 124A of the Anti-Discrimination Act 1991 (Qld) provides that:

‘A person must not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race, religion, sexuality or gender identity of the person or members of the group.’[iii]

And it should be noted that the definition of gender identity in this Act only includes ‘binary’ transgender gender, not non-binary or other gender diverse people (‘gender identity, in relation to a person, means that the person… identifies, or has identified, as a member of the opposite sex by living or seeking to live as a member of that sex’).

Meaning that only LGB and some T Queenslanders are protected. Unfortunately, there is no indication the Queensland Government will update the definition of gender identity, and include sex characteristics as a protected attribute, before the upcoming state election, scheduled for 31 October 2020.

New South Wales

The situation in NSW is far more complex. The Anti-Discrimination Act 1977 (NSW) contains civil sanctions against vilification targeting binary transgender people, as well as lesbians and gay men.

Specifically, section 38S(1) prohibits anti-transgender vilification:

‘It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of-

(a) a person on the ground that the person is a transgender person, or

(b) a group of persons on the ground that the members of the group are transgender persons.’

However, this clause does not protect non-binary or other gender diverse people, because the definition in section 38A of the Act is out-dated:

‘A reference in this Part to a person being transgender or a transgender person is a reference to a person, whether or not the person is a recognised transgender person-

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

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

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

Section 49ZT(1) then prohibits vilification – meaning inciting hatred towards, serious contempt for, or severe ridicule – of ‘a person or group of persons on the ground of the homosexuality of the person or members of the group’.

Note that this only refers to homosexuality, meaning civil sanctions under the Anti-Discrimination Act 1977 (NSW) do not cover bisexual people.

On the other hand, amendments to the Crimes Act 1900 (NSW), introduced in 2018, created a criminal offence of ‘publicly threatening or inciting violence on grounds of race, religion, sexual orientation, gender identity or intersex or HIV/AIDS status’. Section 93Z(1) now provides that:

‘A person who, by a public act, intentionally or recklessly threatens or incites violence towards another person or a group of persons on any of the following grounds is guilty of an offence:

(c) the sexual orientation of the other person or one or more of the members of the group

(d) the gender identity of the other person or one or more of the members of the group

(e) that the other person is, or one or more of the members of the group are, of intersex status…’

The individual penalty for contravention of this provision is up to 100 penalty units or 3 years imprisonment (or both).

The next NSW state election is not due until 25 March 2023, meaning there is plenty of time available for the current Government to amend the Anti-Discrimination Act 1977 (NSW) to ensure its civil vilification prohibitions also cover bisexuals, non-binary or other gender diverse people and intersex people – as well as fixing some of the many, many other problems with Australia’s worst LGBTI anti-discrimination law.[iv]

*

Five other jurisdictions do not prohibit anti-LGBTI vilification, at all:

Commonwealth

There is currently no prohibition – civil or criminal – on anti-LGBTI vilification in Commonwealth law.

This remains the case almost 25 years since the Racial Hatred Act 1995 (Cth) added section 18C to the Racial Discrimination Act 1975 (Cth) (‘the RDA’):

‘(1) It is unlawful for a person to do an act, otherwise than in private, if:

(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.’

Unfortunately, it seems far more likely the Morrison Liberal/National Government will wind back section 18C of the RDA (something former Attorney-General George Brandis attempted, but thankfully failed, to do), than to introduce an LGBTI equivalent before the next federal election, due in May 2022.

Indeed, current Attorney-General Christian Porter’s proposed Religious Discrimination Bill, if passed, would immediately undermine Tasmania’s existing prohibition on conduct which offends, humiliates, intimidates, insults or ridicules LGBTI people,[v] as well as leaving the door open to explicitly overriding all state and territory LGBTI anti-vilification laws, via simple regulation, in the future.[vi]

Victoria

Victoria is another jurisdiction that fails to protect LGBTI people against vilification.

The Equal Opportunity Act 2010 (Vic) contains no prohibitions against vilification, for anyone. While, as the name suggests, the Racial and Religious Tolerance Act 2001 (Vic) currently only prohibits racial and religious vilification.

On the positive side, and unlike the Commonwealth, there are at least signs of possible progress in Victoria, with Fiona Patten MLC having introduced a Racial and Religious Tolerance Bill 2019. Her Bill would add sexual orientation, gender identity and sex characteristics (among other categories) to the list of protected attributes in that Act.

The issue of anti-vilification protections is also being considered by a parliamentary committee, with that inquiry due to report by 1 September 2020.[vii] Which leaves sufficient time for the Victorian Government to take action to address this shortcoming before the next election, on 26 November 2022.

Western Australia

Another jurisdiction with disappointingly out-dated anti-discrimination legislation – perhaps the second-worst in the country behind only NSW – is Western Australia.

The Equal Opportunity Act 1984 (WA) does not contain any prohibitions on vilification, on any attribute. However, the Criminal Code Act 1913 (WA) does create a range of offences linked to racial vilification[viii] – although there are no equivalent offences for anti-LGBTI vilification.

The Western Australian Government has referred the Equal Opportunity Act 1984 (WA) to the Law Reform Commission of Western Australia for review. Encouragingly, one of the terms of reference for this inquiry is to consider ‘the inclusion of vilification, including racial, religious, sexual orientation and impairment vilification’.

However, the website for the inquiry has not been updated for more than 12 months (since 6 March 2019), and the next Western Australian election is due in less than 12 months (scheduled for 13 March 2021), making it highly unlikely for LGBTI anti-vilification protections to be passed this term.

South Australia

South Australia also has no anti-vilification coverage for the LGBTI community.

The Equal Opportunity Act 1984 (SA) does not include any vilification provisions, while, as the name suggests, the Racial Vilification Act 1996 (SA) only covers vilification based on race.

Unlike Victoria and Western Australia, though, I am not aware of any South Australian Government processes considering the issue of LGBTI anti-vilification laws prior to their next state election, to be held on 19 March 2022.

Northern Territory

The Northern Territory is unique, in that it is the only Australian jurisdiction without its own racial vilification provisions. However, section 18C of the RDA still applies, which means racial vilification is outlawed – there is no such luck for LGBTI Territorians.

The Northern Territory Attorney-General’s Department did conduct a public consultation about their Anti-Discrimination Act (NT) in January 2018, which included consideration of ‘introducing specific anti-vilification laws prohibiting offensive conduct on the basis of race, religious belief, disability, sexual orientation, gender identity and intersex status.’

Unfortunately, that inquiry’s website has not been updated since May 2019 – with that ‘radio silence’ making it extremely unlikely LGBTI anti-vilification laws will be passed before the Northern Territory election which is just over two months away (22 August 2020).

*

Vilification against members of the lesbian, gay, bisexual, transgender and intersex community can be incredibly damaging, especially for younger and/or vulnerable individuals. This was demonstrated, painfully and unequivocally, by the harm caused by the Turnbull Liberal/National Government’s wasteful and unnecessary same-sex marriage postal survey in 2017.

However, it is disturbing to realise that, in 2020, fewer than one million Australians – out of a population of more than 25 million – live in jurisdictions that prohibit vilification against all parts of the LGBTI community: Tasmania and the ACT.

As we have seen, another two states – Queensland and NSW – offer only partial coverage, while the Commonwealth, Victoria, Western Australia, South Australia and Northern Territory offer no legal protection at all.

Well. That. Is. Simply. Not. Good. Enough.

This winter, I will be regularly posting about these and other serious weaknesses of Australian LGBTI anti-discrimination laws.[ix] #WinterOfDiscriminationContent. To follow, you can:

  • Sign up to my blog (via the right-hand scroll bar on desktop, or near the bottom of the page on mobile)
  • Follow me on twitter, and/or
  • Like No Homophobia, No Exceptions on Facebook.

Anti-discrimination protections are essential to the full participation of lesbian, gay, bisexual, transgender and intersex people in Australian life. And we have allowed them to atrophy for far too long. So, as well as fighting against a Religious Discrimination Bill that undermines those rights we already have, we need to fight even harder to make sure LGBTI anti-discrimination and anti-vilification laws are made much, much better.

LGBTI Vilification Australia June 2020

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

Footnotes:

[i] ‘Article 9. We call for effective legislative protection from discrimination and harmful practices on grounds of sex characteristics.’ Darlington Statement, 10 March 2017.

[ii] ‘Understanding ‘sex characteristics’ as each person’s physical features relating to sex, including genitalia and other sexual and reproductive anatomy, chromosomes, hormones, and secondary physical features emerging from puberty.’ The Yogyakarta Principles plus 10: Additional principles and state obligations on the application of international human rights law in relation to sexual orientation, gender identity, gender expression and sex characteristics to complement the Yogyakarta Principles, 10 November 2017.

[iii] Somewhat confusingly, section 124A is found in Chapter 4, Part 4 of the Anti-Discrimination Act 1991 (Qld), titled ‘Racial and religious vilification’, which may lead some people to erroneously assume LGBT vilification is not prohibited.

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

[v] Clause 42(1)(b) of the Second Exposure Draft Religious Discrimination Bill.

[vi] Clause 42(1)(c) of the Second Exposure Draft Religious Discrimination Bill. For more, see: The ‘Bad Faith’ Religious Discrimination Bill Must Be Blocked.

[vii] You can see my submission to that inquiry, here.

[viii] Including:

Section 77 Conduct intended to incite racial animosity or racist harassment

Section 78 Conduct likely to incite racial animosity or racist harassment

Section 79 Possession of material for dissemination with intent to incite racial animosity or racist harassment

Section 80 Possession of material for dissemination that is likely to incite racial animosity or racist harassment

Section 80A Conduct intended to racially harass

Section 80B Conduct likely to racially harass.

[ix] For a comparative analysis, see A Quick Guide to Australian LGBTI Anti-Discrimination Laws.

A Quick Guide to Australian LGBTI Anti-Discrimination Laws

Commonwealth_ Sex Discrimination Act 1984

I’ve written a lot about Australian LGBTI anti-discrimination and anti-vilification issues over the years, including specific articles on each relevant Commonwealth, State and Territory law (those posts can be found here).

This article seeks to take a broader approach, comparing who these laws cover, what religious exceptions they contain, and whether they provide protection against vilification, among other key questions. [Up to date at 7 June 2020]

 

  1. What is the relevant law?

Jurisdiction

Legislation

Commonwealth

Sex Discrimination Act 1984

New South Wales

Anti-Discrimination Act 1977
Victoria

Equal Opportunity Act 2010

Queensland

Anti-Discrimination Act 1991

Western Australia

Equal Opportunity Act 1984
South Australia

Equal Opportunity Act 1984

Tasmania

Anti-Discrimination Act 1998

Australian Capital Territory

Discrimination Act 1991

Northern Territory

Anti-Discrimination Act

 

  1. Are lesbians, gay men and bisexuals protected against discrimination?
                                 

Lesbians and gay men

Bisexuals

Commonwealth

New South Wales

Victoria

Queensland

Western Australia

South Australia

Tasmania

Australian Capital Territory

Northern Territory

As you can see, the NSW Anti-Discrimination Act 1977 is the only anti-discrimination law in Australia that does not cover bisexual people[i] (relatedly, it is also the only jurisdiction where heterosexuals have no protection under anti-discrimination law).

 

  1. Are transgender people protected against discrimination?

Different jurisdictions have adopted different approaches to transgender anti-discrimination protection, in large part due to when their respective laws were introduced. This means that while some cover gender identity broadly,[ii] others only protect trans people with binary gender identities (where a person identifies with the ‘opposite’ gender to that which they were assigned at birth – eg MTF and FTM trans people) and exclude people with non-binary or other gender diverse identities.[iii]

                                 

Trans people with binary gender identities

People with non-binary gender identities

Commonwealth

New South Wales

Victoria

Queensland

Western Australia

Some*
South Australia

Tasmania

Australian Capital Territory

Northern Territory

Some*

Disappointingly, only four jurisdictions cover people with both binary and non-binary gender identities. While seven laws at a minimum cover all people with binary gender identities, there are two jurisdictions that have adopted even narrower definitions:

  • The Western Australian Equal Opportunity Act 1984 only covers people who have been issued with a recognition certificate under the Gender Reassignment Act 2000 (meaning those people who have transitioned and where that transition has been recognised by the Government). This issue will hopefully be addressed through the current WA Law Reform Commission inquiry into the Equal Opportunity Act;[iv]
  • The Northern Territory Anti-Discrimination Act protects ‘transsexuality’ as part of the definition of ‘sexuality’ – some people who have binary gender identities (MTF or FTM) may not identify with this terminology. While the NT Government undertook a consultation to modernise the Anti-Discrimination Act in 2018, these has sadly been little movement since then (for more information, see their consultation paper here.)

 

  1. Are intersex people protected against discrimination?
 

Intersex

Commonwealth

New South Wales

Victoria

Queensland

Western Australia

South Australia

Tasmania

Australian Capital Territory

Northern Territory

When the Commonwealth Government passed the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, it became the first national parliament in the world to include ‘intersex status’ as a protected attribute.[v] Since then, Tasmania, the ACT and South Australia have all introduced amendments to protect intersex people against discrimination.

It should be noted however that intersex advocates have called for this terminology to be updated, with ‘intersex status’ replaced with the protected attribute of ‘sex characteristics’ (as part of the historic March 2017 Darlington Statement). The Tasmanian Parliament has so far come closest to achieving this goal, recently amending its Anti-Discrimination Act 1998 to cover ‘intersex variations of sex characteristics’.

 

  1. Are LGBT people protected against discrimination by religious organisations (general)?

As I have written extensively elsewhere, one of the key weaknesses of most LGBTI anti-discrimination laws in Australia is that they provide special rights for religious organisations to discriminate against lesbian, gay, bisexual and transgender people.[vi] We will first examine how these religious exceptions operate generally, before looking specifically at the issues of students in religious schools (question 6) and teachers and other staff in religious schools (question 7).

                                 

Do LGBT people have any protections against discrimination by religious organisations?

LGBT people have limited protections against religious discrimination

LGBT people have general protections against religious discrimination

Commonwealth

Aged care*
New South Wales

Victoria

Queensland

Western Australia

South Australia Teachers*

Tasmania

Australian Capital Territory

Northern Territory

There is only one LGBTI anti-discrimination law in Australia that offers general protections against discrimination by religious organisations: Tasmania’s Anti-Discrimination Act 1998. That is because the religious exceptions contained in that legislation only allow religious organisations to discriminate on the basis of people’s religious beliefs, and not on the basis of sexual orientation, gender identity or intersex variations of sex characteristics (or relationship status).

On the other hand, the religious exceptions contained in the anti-discrimination laws of New South Wales, Victoria and Western Australia provide religious organisations with carte blanche to discriminate against LGBT people. Section 56 of the NSW Anti-Discrimination Act 1977 is a typical example of the special rights given to these bodies:

“Nothing in this Act affects:

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

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

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

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

The other jurisdictions offer only limited protections against religious-based discrimination against LGBT people. Under the Commonwealth Sex Discrimination Act 1984, religious organisations can discriminate against LGBT people in all circumstances other than with respect to LGBT people accessing Commonwealth-funded aged care services[vii] (although they can still discriminate against LGBT employees in these facilities, using public monies).

The ACT Discrimination Act 1991 has recently been amended to ensure that religious schools cannot discriminate against LGBTI students, teachers and other staff – although other religious organisations continue to be able to discriminate against LGBTI employees and people accessing their services.

The Queensland Anti-Discrimination Act 1991 actually contains the third-best protections for LGBT people against discrimination by religious organisations. It does not allow discrimination against LGBT students in religious schools, and has limited protections for teachers, too (see questions 6 and 7 respectively). More broadly, it does not provide a general right for religious organisations to discriminate against LGBT employees, but instead limits this right to employees where acting, or not acting, in a particular way breaches the ‘genuine occupational requirements’ of that position.[viii]

The South Australian Equal Opportunity Act 1984 provides broad religious exceptions outside religious schools, where they are (probably, although not conclusively) able to discriminate against LGBT students, and have to satisfy procedural obligations in order to discriminate against LGBT teachers (see questions 6 and 7, below).

Finally, the religious exceptions contained in the Northern Territory Anti-Discrimination Act are narrower than in other jurisdictions because of the specific wording that is used:

“Section 51 This Act does not apply to or in relation to: …

(d) an act by a body established for religious purposes if the act is done as part of any religious observance or practice.”

This at least restricts the discrimination that is permissible to acts in relation to ‘religious observance or practice’ only (although there are specific exceptions in relation to employment in religious schools – see question 7 below).

 

  1. Are LGBT students protected against discrimination by religious schools?
 

LGBT students at religious schools

Commonwealth

New South Wales

Victoria

Queensland

Western Australia

Probably not*

South Australia

Probably not*
Tasmania

Australian Capital Territory

Northern Territory

There are only four jurisdictions in which LGBT students are clearly protected against discrimination by religious schools: Tasmania, Queensland, the Australian Capital Territory and the Northern Territory.

In two other jurisdictions, the level of protection is debatable. In South Australia section 37 of the Equal Opportunity Act 1984 provides quite broad protections against discrimination by educational authorities against students on the basis of sexual orientation or gender identity.[ix] However, it is likely these protections are still overridden by the broad religious exceptions contained in sub-section 50(1)(c).[x]

A similar situation exists in Western Australia, where the specific exceptions which apply to religious schools (section 73 of the Equal Opportunity Act 1984) may or may not allow discrimination against LGBT students, while the general religious exception in section 72 likely also still applies, allowing religious schools to discriminate in any event.

In all of the other jurisdictions, namely the Commonwealth, NSW, and Victoria, LGBT students do not have protection against discrimination by religious schools. Indeed, the exceptions contained in the NSW Anti-Discrimination Act 1977 go even further, allowing discrimination against lesbian, gay and transgender students by all private schools and colleges, even where those institutions are not religious.[xi]

For more on this subject, see Back to School, Back to Discrimination for LGBT Students and Teachers.

 

7. Are LGBT teachers protected against discrimination by religious schools?

 

LGBT teachers at religious schools

Commonwealth

New South Wales

Victoria

Queensland

Don’t Ask, Don’t Tell*
Western Australia

South Australia

Procedural requirements*
Tasmania

Australian Capital Territory

Northern Territory

Only two Australian LGBTI anti-discrimination laws fully protects lesbian, gay, bisexual and transgender teachers and other staff at religious schools against discrimination: Tasmania’s Anti-Discrimination Act 1998 and, following recent amendments, the ACT Discrimination Act 1991.

In Queensland, religious schools are allowed to discriminate against people who work for religious schools where “the person openly acts in a way that the person knows or ought reasonably to know is contrary to the employer’s religious beliefs, during a selection process; or in the course of the person’s work; or in doing something connected with the person’s work; and it is a genuine occupational requirement of the employer that the person… act in a way consistent with the employer’s religious beliefs.”[xii]

However, religious schools are not allowed to ‘seek information’ in relation to an employee’s sexual orientation or gender identity. In effect, LGBT teachers and other staff at religious schools in Queensland are subject to a ‘Don’t Ask’ Don’t Tell’ policy (which, as was seen in relation to the United States military, is nevertheless an unjust and unjustifiable imposition on a minority group).

In South Australia, religious schools are allowed to discriminate against LGBT teachers and other staff, however this ‘right’ is subject to procedural requirements, including that the school must have a written policy outlining its discriminatory policy which is provided to people interviewed for or offered employment. The policy must also be provided on request, free of charge, to employees, students and parents (and prospective employees, students and parents) as well as to general members of the public.[xiii]

In all other Australian jurisdictions (the Commonwealth, NSW, Victoria, WA and the Northern Territory[xiv]), religious schools are free to discriminate against LGBT teachers. Once again, in NSW this extends to all private schools and colleges, even where they are not religious.[xv]

For more on this subject, see Back to School, Back to Discrimination for LGBT Students and Teachers.

 

8. Are lesbians, gay men and bisexuals protected against vilification?

                                 

Lesbians and gay men

Bisexuals
Commonwealth

New South Wales

Partial
Victoria

Queensland

Western Australia

South Australia

Tasmania

Australian Capital Territory

Northern Territory

Only four Australian jurisdictions offer any anti-vilification protections for the LGBTI community: NSW, Queensland, Tasmania and the ACT.

In NSW, the situation has been complicated by recent amendments to both the Anti-Discrimination Act and the Crimes Act. In short, while lesbians, gay men and bisexuals are all covered by the new ‘inciting violence provisions’ in the Crimes Act, only lesbians and gay men can make civil vilification complaints to the Anti-Discrimination Board.

In contrast, the Commonwealth, Victoria, Western Australia and South Australia all have protections against racial vilification, but fail to offer equivalent protections against anti-LGBTI vilification. Although it should be noted that the Victorian Parliament is currently investigating this issue. The Northern Territory does not currently prohibit either racial or anti-LGBTI vilification.

For more on this subject, see Did You Know? Most Australian Jurisdictions Don’t Prohibit Anti-LGBTI Vilification.

 

9. Are trans and intersex people protected against vilification?

                                 

Trans people with binary gender identities

People with non-binary gender identities

Intersex

Commonwealth

New South Wales Partial

Partial

Victoria

Queensland

Western Australia

South Australia

Tasmania

Australian Capital Territory

Northern Territory

Four jurisdictions protect transgender people with binary gender identities against vilification (NSW, Queensland, Tasmania and the ACT). However, the Queensland Anti-Discrimination Act 1991 does not protect people with non-binary identities, while the situation in NSW is similar to that described above: trans, non-binary and intersex people are included in the Crimes Act incitement to violence provisions, but only trans people with binary identities can make civil vilification complaints under the Anti-Discrimination Act.

Only Tasmania and the ACT fully protect people with non-binary gender identities against vilification. Those same jurisdictions – Tasmania and the ACT – are also the only places in Australia to completely prohibit vilification on the basis of intersex status (which is ‘intersex variations of sex characteristics’ in Tasmania).

For more on this subject, see Did You Know? Most Australian Jurisdictions Don’t Prohibit Anti-LGBTI Vilification.

 

10. What other issues exist with Australian LGBTI anti-discrimination laws?

The above questions have examined three main areas of the LGBTI anti-discrimination laws across the Commonwealth, and the States and Territories:

  • Protected Attributes
  • Religious Exceptions, and
  • Anti-Vilification Coverage.

However, these are not the only areas where there are significant problems with the anti-discrimination laws that apply to lesbian, gay, bisexual, transgender and bisexual people in Australia. The following is a non-exhaustive list of some of the other issues I have come across:

Commonwealth: The Sex Discrimination Act 1984 does not establish a position of LGBTI Discrimination Commissioner (despite providing for a Sex Discrimination Commissioner). This leaves Australia’s LGBTI community at a significant disadvantage compared to other vulnerable groups, and should be rectified (for more on this issue, see: Why we need a full-time LGBTI Commissioner at the Australian Human Rights Commission).

NSW: The Anti-Discrimination Act 1977 allows employers with five employees or less to discriminate against LGBT employees[xxi]. There are no such provisions allowing employers to discriminate on the basis of race.

Victoria: The Equal Opportunity Act 2010 doesn’t just allow religious organisations to discriminate against LGBT people, it also includes a special right for individuals to do the same[xxii] (a provision that does not seem to be replicated in any other jurisdiction).

Queensland: The Anti-Discrimination Act 1991 includes a particularly abhorrent section which allows discrimination against transgender people in relation to employment that involves children. Section 28 states:

“Work with children

(1) It is not unlawful to discriminate on the basis of lawful sexual activity or gender identity against a person with respect to a matter that is otherwise prohibited under subdivision 1 if-

(a) the work involves the care or instruction of minors; and

(b) the discrimination is reasonably necessary to protect the physical, psychological or emotional wellbeing of minors having regard to all the relevant circumstances of the case, including the person’s actions.”

Western Australia: While the Equal Opportunity Act 1984 allows for positive discrimination “to ensure that persons of a particular sexual orientation have equal opportunities with other persons”[xxiii] there are no equivalent provisions allowing for positive discrimination for transgender people.

South Australia: Disappointingly, the Equal Opportunity Act 1984 makes it lawful to discriminate “on the ground of gender identity in relation to employment or engagement if the discrimination is for the purposes of enforcing standards of appearance and dress reasonably required for the employment or engagement.”[xxiv]

 

11. Are LGBTI people protected against discrimination under the Commonwealth Fair Work Act 2009?

While most anti-discrimination protections are included in the nine Commonwealth, state and territory laws discussed above, there is also a key protection against discrimination located in the Fair Work Act 2009.

                                 

Are lesbians, gay men and bisexuals protected under the Fair Work Act?

Are transgender people protected? Are intersex people protected?
Commonwealth ?

?

Unfortunately, it is unclear whether the Commonwealth Fair Work Act 2009 protects all parts of the LGBTI community against discrimination. That is because section 351 currently provides that:

“(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.”

Given the inclusion of sexual orientation, it is clear that lesbians, gay men and bisexuals enjoy protection. However, the omission of gender identity and sex characteristics/intersex status means it is possible that trans, gender diverse and intersex people are not covered against adverse action or unlawful termination.[xxv]

There is a possibility that the Fair Work Commission will interpret ‘sex’ to include gender identity and potentially intersex, based on this information on their website. However, this is open to legal challenge, and may be overturned in the Federal Court. The only way to put workplace protection for trans, gender diverse and intersex people beyond doubt would be to add gender identity and sex characteristics to the Fair Work Act.

The extensive religious exceptions which appear in the Fair Work Act 2009, which allow religious organisations to discriminate against LGB employees, should also be repealed at the same time. For more on this subject, see Unfairness in the Fair Work Act.

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For more detailed analysis of the LGBTI anti-discrimination laws that operate in the Commonwealth, and each State and Territory, see:

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Footnotes:

[i] NSW protects only ‘homosexuality’, with the definition in section 4 of the Anti-Discrimination Act 1977 stating that ‘homosexual means male or female homosexual’. In contrast, other jurisdictions either include a protected attribute of ‘sexual orientation’, or specifically include both homosexuality and bisexuality.

[ii] For example, section 4 of the Commonwealth Sex Discrimination Act 1984 defines gender identity as ‘the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth.’

[iii] For example, section 38A of the NSW Anti-Discrimination Act 1977 states that ‘[a] reference in the Part to a person being transgender or a transgender person is a reference to a person… (i) who identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex, or (ii) who has identified as a member of the opposite sex by living as a member of the opposite sex…’

[iv] The Western Australian Equal Opportunity Act 1984 prohibits discrimination ‘against a gender reassigned person on gender history grounds’ (section 35AB), where section 4 defines a gender reassigned person as ‘a person who has been issued with a recognition certificate under the Gender Reassignment Act 2000’ while section 35AA states that ‘a person has a gender history if the person identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex.’

[v] With ‘intersex status’ defined in section 4 of the Commonwealth Sex Discrimination Act 1984 as ‘the status of having physical, hormonal or genetic features that are:

(a) neither wholly female nor wholly male; or

(b) a combination of female and male; or

(c) neither female nor male.’

[vi] In this section, I refer primarily to LGBT people, rather than LGBTI people, because it is generally understood that religious exceptions would not (or at the very least should not) be used against people with intersex variations.

[vii] Sub-section 37(2) of the Commonwealth Sex Discrimination Act 1984 limits the general religious exceptions contained in the Act by stating that they do “not apply to an act or practice of a body established for religious purposes if:

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

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

[viii] Sub-section 25(3) of the Queensland Anti-Discrimination Act 1991 provides that:

“It is not unlawful for an employer to discriminate with respect to a matter that is otherwise prohibited under section 14 or 15, in a way that is not unreasonable, against a person if-

(a) the person openly acts in a way that the person knows or ought reasonably know is contrary to the employer’s religious beliefs-

(i) during a selection process; or

(ii) in the course of the person’s work; or

(iii) in doing something connected with the person’s work; and

(b) it is a genuine occupational requirement of the employer that the person, in the course of, or in connection with, the person’s work, act in a way consistent with the employer’s religious beliefs.”

[ix] SA Equal Opportunity Act 1984: “Section 37- Discrimination by educational authorities …

(2) It is unlawful for an educational authority to discriminate against a student on the ground of sex, sexual orientation or gender identity-

(a) in the terms or conditions on which it provides the student with training or education; or

(b) by denying or limiting access to a benefit provided by the authority; or

(c) by expelling the student; or

(d) by subjecting the student to other detriment.”

[x] SA Equal Opportunity Act 1984: “This Part does not render unlawful discrimination in relation to-

(c) any other practice of a body established for religious purposes that conforms with the precepts of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.”

[xi] Sections 38K(3) and 49ZO(3), NSW Anti-Discrimination Act 1977.

[xii] Sub-sections 25(2) and (3) of the Queensland Anti-Discrimination Act 1991.

[xiii] SA Equal Opportunity Act 1984: Sub-section 34(3):

“This Division does not apply to discrimination on the ground of sexual orientation or gender identity in relation to employment or engagement for the purposes of an educational institution if-

(a) the educational institution is administered in accordance with the precepts of a particular religion and the discrimination is founded on the precepts of that religion; and

(b) the educational authority administering the institution has a written policy stating its position in relation to the matter; and

(c) a copy of the policy is given to a person who is to be interviewed for or offered employment with the authority or a teacher who is to be offered engagement as a contractor by the authority; and

(d) a copy of the policy is provided on request, free of charge-

(i) to employees and contractors and prospective employees and contractors of the authority to whom it relates or may relate; and

(ii) to students, prospective students and parents and guardians of students and prospective students of the institution; and

(iii) to other members of the public.”

[xiv] Despite its relatively narrow religious exceptions, section 37A of the NT Anti-Discrimination Act provides an explicit right for religious schools to discriminate against LGBT teachers:

“An educational authority that operates or proposes to operate an educational institution in accordance with the doctrine of a particular religion may discriminate against a person in the area of work in the institution if the discrimination:

(a) is on the grounds of:

(i) religious belief or activity; or

(ii) sexuality; and

(b) is in good faith to avoid offending the religious sensitivities of people of the particular religion.”

[xv] Sub-sections 38C(3)(c) and 49ZH(3)(c), NSW Anti-Discrimination Act 1977.

[xvi] Footnote removed.

[xvii] Footnote removed.

[xviii] Footnote removed.

[xix] Footnote removed.

[xx] Footnote removed.

[xxi] Sub-sections 38C(3)(b) and 49ZO(3)(b), NSW Anti-Discrimination Act 1977.

[xxii] Section 84, Victorian Equal Opportunity Act 2010.

[xxiii] Section 35ZD, Western Australian Equal Opportunity Act 1984.

[xxiv] Sub-section 34(4), South Australian Equal Opportunity Act 1984.

[xxv] The inclusion of ‘marital status’ rather than ‘marital or relationship status’ is also out-dated.

What’s Wrong With the ACT Discrimination Act 1991?

This post is part of a series looking at Australia’s anti-discrimination laws, analysing them to determine how well, or in many cases how poorly, they protect lesbian, gay, bisexual, transgender and intersex (LGBTI) people from discrimination and vilification. The other articles in the series can be found here.

In each post, the laws of each jurisdiction are assessed in relation to the following three areas:

  • Protected Attributes
  • Religious Exceptions, and
  • Anti-Vilification Coverage.

Based on these criteria, the Australian Capital Territory Discrimination Act 1991 was already better than average in terms of its LGBTI anti-discrimination laws. The good news is that, as a result of the passage of the Discrimination Amendment Act 2016 and the Discrimination Amendment Act 2018, the ACT’s LGBTI protections have improved further.

However, while many of the previous issues with this Act have been remedied, this doesn’t mean the ACT’s law is without faults – chief among them the ongoing broad exceptions provided to religious organisations (other than schools) allowing them to discriminate against LGBTI people.

Nevertheless, let’s focus on the positives first:

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Protected Attributes

The ACT Discrimination Act 1991 includes sexuality as a protected attribute in section 7(1)(w), which is defined in the Act’s dictionary as ‘heterosexuality, homosexuality (including lesbianism) or bisexuality’. This includes all of LGB people, and is better than some jurisdictions (including NSW, which excludes bisexuals), but could be improved by adopting the more inclusive term ‘sexual orientation’.

As a result of the Discrimination Amendment Act 2016, the Act’s protected attribute of gender identity in section 7(1)(g) is now defined as:

the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person, with or without regard to the person’s designated sex at birth.

Note Gender identity includes the gender identity that the person has or has had in the past, or is thought to have or have had in the past.

This includes all trans and gender diverse people, including those with non-binary gender identities.

Finally, the 2016 amendments also added intersex status as a protected attribute in section 7(1)(k), defined as ‘status as an intersex person’ – although it should be noted that in the March 2017 Darlington Statement, intersex activists called for this terminology to be replaced by the clearer ‘sex characteristics’.

The ACT is now one of only four Australian jurisdictions to provide coverage for lesbian, gay, bisexual, transgender and gender diverse and intersex people, the others being the Commonwealth, Tasmania and South Australia.

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Anti-Vilification Coverage

The ACT’s vilification protections also cover all parts of the LGBTI community, with prohibitions on vilification on the basis of sexuality, gender identity and intersex status (making it only the second jurisdiction, after Tasmania, to cover anti-intersex vilification – although again note the calls by intersex organisations for this term to be replaced by the protected attribute of sex characteristics).

In fact, the ACT’s LGBTI vilification protections are now the equal best in the country, given the offence of serious vilification, contained in section 750 of the Criminal Code 2002, applies to serious vilification on the basis of intersex status (the other jurisdiction with best practice anti-vilification laws is Tasmania).

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Religious Exceptions

On the basis of the above, it is clear the ACT now has close-to-best practice anti-discrimination laws in terms of their protected attributes (covering all parts of the LGBTI community) and anti-vilification coverage (again, protecting lesbian, gay, bisexual, transgender and intersex people).

Alas, the Discrimination Act 1991 falls down (from its pedestal) when it comes to religious exceptions, aka special provisions that allow religious organisations to discriminate against people on the basis of their sexual orientation, gender identity or intersex status.

The primary religious exceptions are outlined in section 32 Religious bodies, which states that:

“Part 3 [which contains the prohibitions of discrimination] does not apply in relation to-

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

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

(c) the selection or appointment of people to exercise functions for the purposes of, or in connection with, any religious observance or practice; or

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

As has been noted in previous posts, the first three sub-sections ((a), (b) and (c)), can potentially be justified on the basis that there is a direct connection with the appointment and training of religious office-holders, or the conduct of religious ceremonies.

However, sub-section 32(d) is effectively a blanket exception that allows any religious organisation – including religious-operated hospitals and community and social services – to discriminate against LGBTI employees, and LGBTI people accessing their services. This is clearly unacceptable.

Nevertheless, recent amendments passed by the ACT Parliament in the wake of the Ruddock Religious Freedom Review have at least ensured that these religious exceptions do not permit religious schools to discriminate against LGBTI students or teachers and other staff.

The Discrimination Amendment Act 2018 abolished the specific exception for ‘Educational institutions conducted for religious purposes’ which was previously found in section 33 (see footnotes*).

Importantly, it also amended the general religious exception in section 32(1)(d) so that it does not apply to ‘defined acts’, which section 32(2) defines as:

means an act or practice in relation to-

(a) the employment of contracting of a person by the body to work in an educational institution; or

(b) the admission, treatment or continued enrolment of a person as a student at an educational institution.

In short, religious schools now cannot discriminate against LGBTI students, teachers and other staff on the basis of their sexuality, gender identity or intersex status.

The ACT Government has instead adopted the best-practice Tasmanian approach where religious schools can discriminate in terms of the admission of students and employment of teachers on the grounds of the student or teacher’s respective religious belief (although they’ve gone further than Tasmania by requiring any school that wishes to discriminate in this way to publish its policies up-front – section new section 46(2)-(5)).

However, the ACT Government has left in place – at least for the moment – the special privileges that allow religious organisations other than schools, such as hospitals, community and social services, to discriminate against employees and people accessing those services on the basis of their sexuality, gender identity or intersex status.

There can be no justification for such wide-ranging discrimination. Hopefully, with the issue of discrimination by religious schools now addressed, the ACT Government can move on to limiting discrimination by these other bodies too – although time is running out before the next election, due on 17 October 2020.

andrewbarr

ACT Chief Minister Andrew Barr, who has successfully removed the right of religious schools to discriminate against LGBTI students and teachers, but still needs to address religious exceptions for other organisations.

Summary

As a result of amendments in both 2016 and 2018, the ACT Discrimination Act 1991 now protects all sections of the LGBTI community from discrimination. It also features the equal best anti-vilification coverage of any state, territory or federal framework in Australia, and has prohibited discrimination by religious schools against LGBTI students, teachers and other staff.

However, the ACT Government still needs to take action to limit the ability of other religious organisations, including hospitals, community and social services, to discriminate against employees and people accessing their services on the basis of sexuality, gender identity or intersex status.

 

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Footnotes:

NB Footnotes [i] to [iv] have been deleted as a result of editing.

*The Discrimination Amendment Act 2018 abolished section 33 of the Act, which previously provided:

“Educational institutions conducted for religious purposes

(1) Section 10 or 13 [which prohibit discrimination against applicants, employees and contract workers] does not make it unlawful for a person (the first person) to discriminate against someone else in relation to-

(a) employment as a member of the staff of an educational institution; or

(b) a position as a contract worker that involves doing work in an educational institution;

if the institution is conducted in accordance with the doctrines, tenets, beliefs or teachings or a particular religion or creed, and the first person so discriminates in good faith to avoid injury to the religious susceptibilities of adherents of that religion or creed.

(2) Section 18 [which prohibits discrimination in relation to education] does not make it unlawful for a person (the first person) to discriminate against someone else in relation to the provision of education or training by an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the first person so discriminates in good faith to avoid injury to the religious susceptibilities of adherents of that religion or creed.”