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

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

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

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

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

The State of Homophobia, Biphobia & Transphobia-11

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

Media

Social Media

Politics

Religion

Public Space

None of the Above

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

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

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

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

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

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

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

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

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

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

LGBTIQ Status

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

  • Lesbian: Social media 91.4%; Politics 82.4%; Media 78.6%; Religion 77.7%; Public space 69.3% and None of the above 1.8%
  • Gay: Social media 85%; Religion 78.6%; Politics 78.2%; Media 72.8%; Public space 58.8% and None of the above 3.6%
  • Bisexual: Social media 89%; Politics 80.6%; Media 79.9%; Religion 76.6%; Public space 70% and None of the above 3.3%
  • Transgender: Social media 92.7%; Media 87%; Politics 85.4%; Religion 81.8%; Public space 75.5% and None of the above 1%
  • Intersex[iv]: Social media 75%; Religion 70%; Media & Public space both 65%; Politics 60% and None of the above 0%
  • Queer: Social media 90.4%; Politics 84.7%; Media 83.4%; Religion 79%; Public space 76.7% and None of the above 1.1%.

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

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

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

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

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

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

The answers to this question once again confirm two things:

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

Aboriginal and Torres Strait Islander People

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

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

Age

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

  • Aged 24 and under: Social media 91.5%; Politics 81.2%; Media 78.8%; Religion 78.1%; Public space 70.8% and None of the above 2.5%
  • 25 to 44: Social media 89%; Politics 85.7%; Religion 81.7%; Media 80.5%; Public space 67.3% and None of the above 2.5%
  • 45 to 64: Social media 85.8%; Religion 77.6%; Politics 75.8%; Media 71.9%; Public space 52% and None of the above 3.9%
  • Aged 65 and over[v]: Social media and Religion both 67.6%; Politics 59.4%; Media 54%; Public space 24.3% and None of the above 10.8%.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A sense of ‘hopelessness’ was also pervasive:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Or, even more pithily:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

These two comments probably best sum up this view:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This commenter raised particularly concerning issues with Facebook:

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

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

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

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

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

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

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

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

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

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

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

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

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Conclusion

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

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

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

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

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

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

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

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

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

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

Footnotes:

[i] The previous posts can be found here:

Part 1: Verbal Harassment and Abuse

Part 2: Physical Abuse or Violence

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

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

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

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

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

-Removing identifying information

-Removing potentially defamatory comments and

-Removing offensive (for example, transphobic) remarks.

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

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

Back to School, Back to Discrimination for LGBT Students and Teachers

Every year, millions of students, and hundreds of thousands of teachers and other staff, start at Australian schools excited by the possibilities of the following 12 months – of the opportunities to learn (or teach) about the world around them, and about themselves.

 

However, for far too many students – and teachers and other staff – in schools around the country it will be another year in which they have to worry about being discriminated against, lawfully, simply because of their sexual orientation or gender identity.

 

That’s because, under the anti-discrimination laws of five out of nine Australian jurisdictions, lesbian, gay, bisexual and transgender (LGBT) students can legally be treated adversely by religious schools[i]. Six jurisdictions allow discrimination against LGBT teachers and other staff – plus one state which has a ‘don’t ask, don’t tell’ approach.

 

To find out what the law is in your jurisdiction, see below. And to find out just how many students, teachers and other staff are potentially affected by these discriminatory provisions, please read to the end of the article.

 

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Commonwealth

 

While LGBT students, teachers and other staff are protected against discrimination under the Commonwealth Sex Discrimination Act 1984, these protections are fundamentally undermined by the inclusion of two excessively broad exceptions for religious organisations.

 

The first is contained in sub-section 37(1)(d), which states that:

 

“Nothing in Division 1 or 2 affects… any other act or practice of a body established for religious purposes, being an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion.”

 

It is highly likely that this provision allows religious schools to discriminate against LGBT students, teachers and staff. But, just in case there was any doubt, the Act includes an additional ‘right to discriminate’ just for religious schools:

 

“Section 38

Educational institutions established for religious purposes

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

 

Sub-section 38(2) establishes a similar ‘right to discriminate’ against contract workers, while sub-section 38(3) reiterates the ability of religious schools to discriminate against LGBT students.

 

In short, instead of protecting LGBT students and teachers at religious schools against discrimination, the Commonwealth Sex Discrimination Act 1984 authorises their mistreatment (a pattern that, as we shall below, is sadly replicated in most states and territories).

 

Can religious schools discriminate against LGBT students under Commonwealth law? Yes.

 

Can religious schools discriminate against LGBT teachers and other staff under Commonwealth law? Yes.

 

**********

 

New South Wales

 

As I have written elsewhere[ii], despite being the first Australian jurisdiction to introduce gay anti-discrimination laws, NSW now has perhaps the worst LGBT anti-discrimination legislation in the country. A key reason for that is the extremely generous exceptions provided to religious (and other non-government) schools.

 

As with the Commonwealth, it is likely NSW religious schools have the ‘right to discriminate’ against LGBT students, teachers and other staff[iii] as part of the general religious exception provided by sub-section 56(d):

 

“Nothing 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.”

 

And, just like the Commonwealth, there is also a specific exception applying only to schools – however, in what is a unique approach, the NSW Anti-Discrimination Act 1977 actually allows all non-government schools to discriminate against students on the grounds of homosexuality or transgender status, even where they are not religious:

 

“Section 49ZO Education

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

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

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

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

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

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

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

 

Section 38K establishes a similar right for NSW non-government schools (religious and not-religious alike) to discriminate against transgender students.

 

There are also equivalent sections regarding lesbian, gay and transgender teachers and other staff at non-government schools (religious and not-religious alike): section 49ZH and 38C respectively.

 

Therefore, all NSW non-government schools are able to fire (or not hire) LGT teachers and other staff under the Anti-Discrimination Act 1977, and to refuse to admit, treat adversely and even expel students merely for being lesbian, gay or transgender. That is, in a word, appalling.

 

Can religious schools discriminate against LGBT students under NSW law? Yes – and that includes non-government schools that are not religious, too.

 

Can religious schools discriminate against LGBT teachers and other staff under NSW law? Yes, including non-government schools that are not religious.

 

**********

 

Victoria

 

Victoria is another jurisdiction that has adopted the ‘two-fold’ approach to permitting discrimination by religious schools against LGBT students, teachers and other staff.

 

First up, sub-section 82(2) of the Victorian Equal Opportunity Act 2010 states that:

 

“Nothing in Part 4 applies to anything done on the basis of a person’s religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity by a religious body that-

(a) conforms with the doctrines, beliefs or principles of the religion; or

(b) is reasonably necessary to avoid injury to the religious sensitivities of adherents of the religion.”

 

This is then supplemented by section 83, which is entirely concerned with providing religious schools with an explicit ‘right to discriminate’:

 

Religious schools

(1) This section applies to a person or body, including a religious body, that establishes, directs, controls, administers or is an educational institution that is, or is to be, conducted in accordance with religious doctrines, beliefs or principles.

(2) Nothing in Part 4 applies to anything done on the basis of a person’s religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity by a person or body to which this section applies in the course of establishing, directing, controlling or administering the educational institution that-

(a) conforms with the doctrines, beliefs or principles of the religion; or

(b) is reasonably necessary to avoid injury to the religious sensitivities of adherents of the religion.”

 

In 2016, there were two attempts to limit the impact of these sections – the first, by the Andrews Labor Government, would have compelled religious schools (and other religious employers) to demonstrate that discrimination against LGBT employees was an ‘inherent requirement’ of the respective position[iv]. The second, by the Victorian Greens, would have prohibited discrimination against LGBT students.

 

Unfortunately, both Bills were voted down by the Upper House (and specifically by Liberal and National Party MLCs) leaving LGBT students, teachers and other staff in Victorian religious schools exposed to mistreatment solely because of who they are.

 

Can religious schools discriminate against LGBT students under Victorian law? Yes.

 

Can religious schools discriminate against LGBT teachers and other staff under Victorian law? Yes.

 

**********

 

Queensland

 

It may be surprising for some (especially given they only equalised the age of consent in 2016), but Queensland is one of four jurisdictions that does not provide carte blanche for religious schools to discriminate against LGBT students, teachers and other staff.

 

That is because they have adopted a more limited version of the broad general exception enacted elsewhere. Section 109 of the Queensland Anti-Discrimination Act 1991 provides:

 

Religious bodies

(1) The Act does not apply in relation to-

(d) unless section 90 (Accommodation with religious purposes) applies – an act by a body established for religious purposes if the act is –

(i) in accordance with the doctrine of the religion concerned; and

(ii) necessary to avoid offending the religious sensitivities of people of the religion.

(2) An exemption under subsection (1)(d) does not apply in the work or work-related area or in the education area (emphasis added).

 

LGBT students are protected from discrimination as a result of this provision.

 

Prima facie, it would appear that LGBT teachers and other staff should be too – after all, sub-section (2) says the religious exception does not apply to work.

 

However, there is an additional section of the Anti-Discrimination Act 1991 that does authorise discrimination against LGBT employees of religious schools in certain circumstances. Section 25 states:

 

“25 Genuine occupational requirements

(1) A person may impose genuine occupational requirements for a position.

Example 4- employing persons of a particular religion to teach in a school established for students of the particular religion

(2) Subsection (3) applies in relation to-

(a) work for an educational institution (an employer) under the direction or control of a body established for religious purposes…

(3) 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 to 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

Example for paragraph (a)- A staff member openly acts in a way contrary to a requirement imposed by the staff member’s employer in his or her contract of employment, that the staff member abstain from acting in a way openly contrary to the employer’s religious beliefs in the course of, or in connection with the staff member’s employment.

(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.

(4) Subsection (3) does not authorise the seeking of information contrary to section 124.

(5) For subsection (3), whether the discrimination is not unreasonable depends on all the circumstances of the case, including, for example, the following-

(a) whether the action taken or proposed to be taken by the employer is harsh or unjust or disproportionate to the person’s actions;

(b) the consequences for both the person and the employer should the discrimination happen or not happen.”

 

Summarising the above, religious schools in Queensland can discriminate against LGBT teachers and other staff if:

  • the employee acts in a way contrary to the employer’s religious beliefs during the selection process, at work or in connection with work, and
  • the employer can show it was a genuine occupational requirement that the employee act in accordance with those religious beliefs.

 

But, if the teacher or staff member does not act in such a way (which presumably includes the mere acknowledgement of having a same-sex partner, for example), they cannot be punished simply for being lesbian, gay, bisexual or transgender. Further, the religious school cannot ask whether the employee is LGBT.

 

In short, Queensland allows a ‘don’t ask, don’t tell’ approach to LGBT teachers and staff in religious schools – but they can still be fired for being ‘out’ at work. Of course, more than two decades of US military policy demonstrated the folly of DADT – and it says a lot about the terrible state of Australian LGBT anti-discrimination laws that the Anti-Discrimination Act 1991 remains the second-best law in this particular area.

 

Can religious schools discriminate against LGBT students under Queensland law? No.

 

Can religious schools discriminate against LGBT teachers and other staff under Queensland law? Yes, in some circumstances (including where it is a genuine occupational requirement, and the employee is ‘out’ at work). No, when the employee is not ‘out’ – and a ‘don’t ask, don’t tell’ policy applies.

 

**********

 

Western Australia

 

The Western Australian Equal Opportunity Act 1984 is far less complex – and far less positive – in terms of its approach to LGBT anti-discrimination protections for students, teachers and staff in religious schools.

 

Just like the Commonwealth, NSW and Victoria, Western Australia provides ‘dual’ exceptions to religious schools granting them the ‘right to discriminate’. Sub-section 72(d) notes:

 

Religious bodies

Nothing in this Act affects… any other act or practice of a body established for religious purposes, being an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion.”

 

Section 73 then sets out specific, additional exceptions with respect to teachers:

 

(1) “Nothing in this Act renders it unlawful for a person to discriminate against another person on any one or more of the grounds of discrimination referred to in this Act in connection with employment as a member of the staff of an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the first-mentioned person so discriminates in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed”

 

And students:

 

(3) “Nothing in this Act renders it unlawful for a person to discriminate against another person on any one or more of the grounds of discrimination referred to in this Act, other than the grounds of race, impairment or age, in connection with the provision of education or training by an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the first-mentioned person so discriminates in good faith in favour of adherents of that religion or creed generally, but not in a manner that discriminates against a particular class or group of persons who are not adherents of that religion or creed.”

 

Prima facie, that means Western Australian religious schools can only discriminate against students on the basis of their religion, not their sexual orientation or gender identity. However, unlike Queensland’s section 109(2), there is no equivalent limitation on the general religious exception in WA, meaning religious schools still (probably) retain the right to discriminate against LGBT students under section 72(d).

 

Overall, then, Western Australia provides multiple grounds for religious schools to discriminate against LGBT teachers and other staff, and likely one ground to discriminate against LGBT students.

 

Can religious schools discriminate against LGBT students under Western Australian law? Yes (probably).

 

Can religious schools discriminate against LGBT teachers and other staff under Western Australian law? Yes.

 

**********

 

South Australia

 

The Equal Opportunity Act 1984 makes it clear that religious schools in South Australia can discriminate against LGBT teachers and other staff, probably under the general religious exception in sub-sections 50(ba) and (c), and definitely as a result of specific exceptions in section 34.

 

However, the latter section imposes some strict procedural requirements if a religious school wishes to utilise such exceptions:

 

(3)         This Division does not apply to discrimination on the ground of sexual orientation, gender identity or intersex status 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.

 

The situation for LGBT students is slightly less clear-cut, with sub-sections 37(1) and (2) providing that:

 

Discrimination by educational authorities

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

(a) by refusing or failing to accept an application for admission as a student; or

(b) in the terms or conditions on which it offers to admit the person as a student.

(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.”[v]

 

These protections, for LGBT students, appear to be quite strong – however, it should be remembered that the general religious exceptions featured in section 50 still apply to this situation. And again, unlike Queensland’s section 109(2), there is no equivalent limitation on the Act’s general religious exceptions, meaning religious schools still (probably) retain the right to discriminate against LGBT students under sub-sections 50(ba) and (c).

 

This also appears to be the view of the Equal Opportunity Commission, as expressed in its submissions to the Law Reform Institute review of LGBTI laws in South Australia[vi].

 

Can religious schools discriminate against LGBT students under South Australian law? Yes (probably).

 

Can religious schools discriminate against LGBT teachers and other staff under South Australian law? Yes, although procedural requirements apply.

 

**********

 

Tasmania

 

Despite being the last Australian jurisdiction to decriminalise homosexuality, Tasmania was the first – and, to date, remains one of only two – states or territories to ensure that all LGBT students, teachers and staff cannot be discriminated against solely because of their sexual orientation or gender identity.

 

That is because the religious exceptions offered under the Anti-Discrimination Act 1998 are narrowly drafted. In terms of employment, section 51 states that:

 

Employment based on religion

(1) A person may discriminate against another person on the ground of religious belief or affiliation or religious activity in relation to employment if the participation of the person in the observance or practice of a particular religion is a genuine occupational qualification or requirement in relation to the employment.

(2) A person may discriminate against another person on the ground of religious belief or affiliation or religious activity in relation to employment in an educational institution that is or is to be conducted in accordance with the tenets, beliefs, teachings, principles or practices of a particular religion if the discrimination is in order to enable, or better enable, the educational institution to be conducted in accordance with those tenets, beliefs, teachings, principles or practices.”

 

In short, a Tasmanian religious school can discriminate against a teacher or staff member because of their religion – but there is no equivalent right to discriminate on the basis of their sexual orientation or gender identity.

 

The protection in relation to LGBT students is even more unambiguous. Section 51A provides:

 

Admission of person as student based on religion

(1) A person may discriminate against another person on the ground of religious belief or affiliation or religious activity in relation to admission of that other person as a student to an educational institution that is or is to be conducted in accordance with the tenets, beliefs, teachings, principles or practices of a particular religion.

(2) Subsection (1) does not apply to a person who is enrolled as a student at the educational institution referred to in that subsection.

(3) Subsection (1) does not permit discrimination on any grounds referred to in section 16 other than those specified in that subsection.

(4) A person may, on a ground specified in subsection (1), discriminate against another person in relation to the admission of the other person as a student to an educational institution, if the educational institution’s policy for the admission of students demonstrates that the criteria for admission relates to the religious belief or affiliation, or religious activity, of the other person, the other person’s parents of the other person’s grandparents.”

 

Not only does this section only apply to admission (and therefore does not authorise discrimination once a student is enrolled, including potential expulsion), it also only applies to the grounds of religious belief or affiliation, and religious activity.

 

Once again, a religious school can only discriminate against students on the basis of their (or their parents’/grandparents’) religion – they cannot legally mistreat students on the basis of their, or their family’s, sexual orientation or gender identity. In this way, the Tasmanian Anti-Discrimination Act 1998 provides a model to which other Australian jurisdictions should aspire (and which the ACT Government has recently emulated).

 

Can religious schools discriminate against LGBT students under Tasmanian law? No.

 

Can religious schools discriminate against LGBT teachers and other staff under Tasmanian law? No.

 

**********

 

Australian Capital Territory

 

The ACT Government recently passed the Discrimination Amendment Act 2018 which has successfully adopted the best-practice approach of Tasmania in this area.

 

The previous specific exceptions for religious schools (in section 33) were abolished, and the general religious exception (in section 32) has been limited, and now does not allow religious schools to discriminate against students, teachers and other staff on the basis of their sexual orientation, gender identity or intersex status.

 

Like Tasmania, they do allow schools to preference students and teachers in admission and employment, respectively – although have gone even further than Tasmania by requiring schools that want to discriminate in this way to publish their policies.

 

Can religious schools discriminate against LGBT students under ACT law? No.

 

Can religious schools discriminate against LGBT teachers and other staff under ACT law? No.

 

**********

 

Northern Territory

 

The Northern Territory allows discrimination by religious schools against LGBT teachers and other staff. Arguably, it does so only once (instead of providing two separate ‘rights to discriminate’, like the Commonwealth and some other states) – although once is still one time too many.

 

While the ‘general religious exception’ in the NT’s Anti-Discrimination Act is comparatively constrained (covering “an act by a body established for religious purposes if the act is done as part of any religious observance or practice”: sub-section 51(d)), there is an additional special ‘right to discriminate’ against LGBT teachers and staff. Section 37A provides that:

 

“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.”

 

However, there is no equivalent right to discriminate against LGBT students – indeed, like the current Tasmanian legislation, the NT only allows religious schools to discriminate on the basis of the student’s faith (sub-section 30(2) provides that “[a]n educational authority that operates, or proposes to operate, an educational institution in accordance with the doctrine of a particular religion may exclude applicants who are not of that religion.”)

 

Combined with the more limited general religious exception outlined above, that means NT religious schools probably cannot discriminate against LGBT students. Consequently, the Northern Territory actually has the fourth-best LGBT anti-discrimination laws in Australia on this issue.

 

Can religious schools discriminate against LGBT students under Northern Territory law? No.

 

Can religious schools discriminate against LGBT teachers and other staff under Northern Territory law? Yes.

 

**********

 

Summary

 

In conclusion, then, far too many LGBT students, teachers and other staff members will start the 2019 school year in a vulnerable position – they can be lawfully discriminated against simply because of who they are.

 

In terms of students, such discrimination is permitted in religious schools under the anti-discrimination laws of:

  • Commonwealth
  • New South Wales
  • Victoria
  • Western Australia (probably), and
  • South Australia (probably).

 

Only Queensland, Tasmania, the Australian Capital Territory and the Northern Territory have chosen to protect students in religious schools from homophobic, biphobic and transphobic discrimination.

 

As we have seen, the situation for teachers and other staff members is even worse – they can be legally mistreated under anti-discrimination legislation in:

  • Commonwealth
  • New South Wales
  • Victoria
  • Western Australia
  • South Australia (although procedural requirements apply), and
  • Northern Territory.

 

In Queensland, LGBT teachers at religious schools can be discriminated against if they are ‘out’ – otherwise a ‘don’t ask, don’t tell’ policy applies. Only Tasmania and the ACT refuse to provide religious schools with an explicit ‘right to discriminate’ against LGBT teachers and other staff.

 

Up to this point, this discussion has been very ‘legal’, and somewhat technical. But it is important to remember that the impact of these religious exceptions is significant in practical terms.

 

Based on data from the Australian Bureau of Statistics[vii], in 2015 there were more than 1 million students enrolled at Australian schools where lesbian, gay, bisexual and transgender students could be discriminated against simply because of who they are.

 

In fact, the exact number was 1,007,864[viii]. With the number of students in non-government schools rising by 1.4% per year, this has likely risen to above 1,040,000 at the start of 2019 (despite recent changes meaning LGBT students in Canberra are now protected).

 

The number of teachers and other staff that can be lawfully discriminated against is just as confronting.

 

In 2015, 110,073.8 Full Time Equivalent positions[ix] were at religious schools that could legally discriminate against teachers and other staff members who were lesbian, gay, bisexual or transgender.

 

An additional 28,944.1 FTE positions – employees at religious schools in Queensland – could be adversely treated if they were ‘out’ at work.

 

In fact, of the 141,806.1 FTE positions at religious schools nationally, only the 2,788.2 FTE positions in Tasmania were fully protected against discrimination on the basis of their sexual orientation or gender identity – or less than 2% of teachers and staff members at religious schools nationally. Although, from the 2019 school year, they will be joined by teachers and other staff at religious schools in the ACT (2,690.8 FTE positions in 2015).

 

The numbers of students, teachers and staff who can legally be discriminated against if they happen to be LGBT are almost too large to comprehend. They remain so even when broken down by jurisdiction.

 

For example, in my (adopted) home state of NSW, 409,728 students[x] attend, and 41,487.8 FTE[xi] teachers and other staff members are employed at, religious schools that can practice this (abhorrent) discrimination.

 

Of course, not all religious schools engage in the mistreatment of lesbian, gay, bisexual and transgender students, teachers and staff. I’m sure there are many that refuse to discriminate on the basis of sexual orientation and gender identity, and aspire to be genuinely inclusive learning environments.

 

But the fact remains that these schools retain the legal ability to exclude LGBT students and employees simply because of who they are – and, in my opinion at least, I do not believe they can be fully inclusive until this ‘right to discriminate’ is removed.

 

And so, with the school year commencing, and parliamentary sittings set to resume around the country shortly, I would argue that Commonwealth, state and territory MPs (outside Tasmania and the ACT) should educate themselves about this unacceptable discrimination.

 

If they do, they might finally take action to ensure that all students can learn in classrooms that are free from anti-LGBT discrimination – and are taught by the best teachers available, including LGBT teachers, and not just the best cisgender heterosexual teachers.

 

If they don’t – if Members of Parliament continue to allow more than 1 million students to attend, and more than 110,000 teachers and staff to be employed at, religious schools that can lawfully discriminate on the basis of sexual orientation and gender identity – then those MPs deserve to receive an ‘F’, in 2019, and for every year until this unacceptable situation is fixed.

 

theres-no-place-for-discrimination-in-the-classroom

And there’s no place for discrimination in the school staffroom, either.

 

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Footnotes:

[i] Intersex students (and teachers and other staff) are not included in this article because, irrespective of their jurisdiction, they should be protected by the Commonwealth Sex Discrimination Act 1984, and, according to major religious groupings during the development of that legislation, the religious exceptions contained therein do not apply to intersex status.

[ii] What’s Wrong With the NSW Anti-Discrimination Act 1977.

[iii] It should be noted that the NSW Anti-Discrimination Act does not prohibit discrimination on the basis of bisexuality, at all – it is included as part of the LGBT acronym here for the sake of consistency across the article.

[iv] For more, see Victoria’s Equal Opportunity Amendment (Religious Exceptions) Bill 2016.

[v] Note that these provisions only apply to students – there is no equivalent section for teachers and other staff.

[vi] This would also reflect judicial interpretation of the general religious exception in NSW (including in cases like OW & OV v Members of the Board of the Wesley Mission Council [2010] NSWADT 293 (10 December 2010)).

[vii] Australian Bureau of Statistics – 4221.0 Schools, Australia, 2015, released 04/02/2016

[viii] This calculation is based on the total number of students attending Catholic and Independent schools nationally (1,305,843) minus the number of similar students in those jurisdictions where they are protected from discrimination: Queensland (262,166); Tasmania (24,142) and Northern Territory (11,671). Unfortunately, the dataset provided does not identify Independent schools as religious versus non-religious, although the proportion that are non-religious is considered to be extremely small. Therefore, for the purposes of calculating this estimate, all Independent schools have been allocated as ‘religious’.

[ix] As with the previous calculation, this figure is based on the number of FTE positions at Catholic and Independent schools Australia-wide (141,806.1) minus the 28.944.1 in Queensland where the ‘don’t ask, don’t tell’ policy applies, and 2,788.2 in Tasmania, where LGBT teachers and staff are protected against anti-LGBT discrimination. Once again, the dataset provided does not identify Independent schools as religious versus non-religious, although the proportion that are non-religious is considered to be extremely small. Therefore, for the purposes of calculating this estimate, all Independent schools have been allocated as ‘religious’.

[x] Noting that the caveat that applies to national figures (about the treatment of religious versus non-religious Independent schools) does not apply here – all non-government schools in NSW can discriminate against LGBT students, including non-religious schools.

[xi] The caveat – about the treatment of religious versus non-religious schools – does apply here however, because non-religious Independent schools in NSW cannot discriminate against LGBT teachers and staff, only LGBT students.

Victoria’s Equal Opportunity Amendment (Religious Exceptions) Bill 2016

Update: 15 January 2017

 

Unfortunately, this legislation was voted down by the Victorian Legislative Council on 6 December 2016.

 

As reported by The Age here (‘Coalition and conservative crossbenchers unite to vote down equal rights bills’), the Liberal and National Parties rejected the Equal Opportunity Amendment (Religious Exceptions) Bill 2016, describing it as an attack on ‘religious freedom’.

 

Of course, it was nothing of the sort – instead it was a modest (some might argue too modest) reform that would have simply required religious schools and other religious bodies to demonstrate that any discrimination against LGBT employees was because of an ‘inherent requirement’ of the relevant job. Nothing less, and nothing more.

 

But even that was too much for Coalition MLCs, meaning lesbian, gay, bisexual and transgender teachers at religious schools, and LGBT employees at other religious organisations, can continue to be discriminated against for at least another two years, solely because of who they are and irrespective of the responsibilities of the actual role they are performing.

 

Hopefully, Victoria’s LGBTI community remembers this shameful sell-out by the Liberal and National Parties when they cast their ballots on 24 November 2018 – and that the next Parliament strengthens the state’s LGBTI anti-discrimination laws as a matter of priority in early 2019.

 

Original Post:

 

Ten days ago I wrote about the first of two LGBTI law reforms put forward by the Andrews Labor Government that are currently before the Victorian Parliament – the Births, Deaths and Marriages Registration Amendment Bill 2016.

This post will discuss the second – the Equal Opportunity Amendment (Religious Exceptions) Bill 2016.

As the title suggests, this Bill will amend the religious exceptions currently contained in the Equal Opportunity Act 2010, making it more difficult, in certain circumstances, for religious bodies and schools to discriminate against employees on the basis of their sexual orientation or gender identity[i].

It does this by reintroducing the ‘inherent requirements test’ for employment by religious bodies or schools, which was part of the Act as passed in 2010, but which was subsequently repealed by the Baillieu Liberal-National Government in 2011 before it commenced operation.

This test is set out in clauses 3 and 4 of the Bill, which would amend the current exceptions applying to religious bodies and religious schools featured in sections 82 and 83 respectively:

“(3) Nothing in Part 4 applies to anything done in relation to the employment of a person by a religious body where-

(a) conformity with the doctrines, beliefs or principles of the religion is an inherent requirement of the particular position; and

(b) the person’s religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity means that the person does not meet that inherent requirement.

(4) The nature of the religious body and the religious doctrines, beliefs or principles in accordance with which it is conducted must be taken into account in determining what is an inherent requirement for the purposes of subsection (3).”[ii]

As you can see from this proposed wording, these are very modest changes. All the Bill does is to remove the ‘blanket’ ability for religious bodies and schools to discriminate against all employees on the basis of these attributes, replacing it with a slightly narrower ability whereby, in order to discriminate, the body or school must show that such discrimination is required because of the particular position involved.

As described by Attorney-General Martin Pakula in his second reading speech:

“A large number of people are employed by or seek to be employed by religious bodies and schools in Victoria, in a range of different positions. In these circumstances, it is fair to ask these organisations to demonstrate the necessary connection between their religious beliefs and principles, and proposed discrimination in employment because of an individual’s personal attribute…

“What the test will do, and appropriately so, is require those organisations that do seek to discriminate in employment on religious grounds to demonstrate the necessary connection between their particular religious beliefs and the need to discriminate.”

pakulamartin58250

Victorian Attorney-General Martin Pakula

Despite the extremely modest nature of the Bill, it has nevertheless attracted strong opposition from the Australian Christian Lobby[iii] and the Liberal and National Opposition, meaning that, although it has cleared the Legislative Assembly where the Government has the numbers, it is unclear whether it will be passed in the Legislative Council where the Government does not, and where it is expected to be debated later this week (with Victorian Parliament sitting from Tuesday 11 October).

Given this, I have sent a short email to all members of the Victorian upper house, encouraging them to pass this Bill, with the text included at the end of this post.

Before we get to that, however, an important caveat. Regular readers of this blog would be aware that I am opposed to religious exceptions beyond those that are necessary for the appointment of religious office-holders, and for the observance of religious ceremonies.

Indeed, these views formed part of my criticisms of the Victorian anti-discrimination framework, expressed earlier this year in my post What’s Wrong With Victoria’s Equal Opportunity Act 2010?[iv]

On this basis, I would obviously support amendments to the religious exceptions contained in the Act that go beyond what has been proposed by the Andrews Labor Government. This would, at the very least, include extending the ‘inherent requirement test’ to protect those people accessing services, including education, from these religious bodies and schools, in addition to employees.

However, we have already seen an unsuccessful attempt by the Victorian Government, this term, to restrict the rights of religious bodies to discriminate against people accessing services – it sought to prevent discrimination against same-sex couples by religious adoption agencies as part of the broader introduction of adoption equality.

Those particular amendments to religious exceptions were defeated in the Victorian Legislative Council, while the overall reform passed.

In this context, it is difficult to see how any amendments to religious exceptions that go further than those currently proposed would be passed by the upper house[v]. Indeed, the fate of the narrow changes that are contained in the Equal Opportunity Amendment (Religious Exceptions) Bill 2016 still seems precarious.

As a result, I have chosen to send this short email calling for these reforms to be passed, as a minimum standard, and in the hope that more comprehensive changes may be able to be made by a subsequent parliament, one where (hopefully) the influence of the extreme right is less powerful[vi].

**********

Monday 10 October 2016

Dear Member of the Victorian Legislative Council

Please Support the Equal Opportunity Amendment (Religious Exceptions) Bill 2016

I am writing to call on you to support the Equal Opportunity Amendment (Religious Exceptions) Bill 2016 when it comes before the Legislative Council.

This Bill is an important reform that will better protect lesbian, gay, bisexual and transgender (LGBT) employees, and prospective employees, from discrimination that has absolutely nothing to do with their ability to do their jobs.

As noted by Attorney-General Martin Pakula in his second reading speech, these reforms simply ask religious bodies and schools to “demonstrate the necessary connection between their religious beliefs and principles, and proposed discrimination in employment because of an individual’s personal attribute.”

These are modest changes, and it is difficult to see how the introduction of an ‘inherent requirement test’ can be argued against.

In practice, voting against the reforms contained in the Equal Opportunity Amendment (Religious Exceptions) Bill 2016 is effectively saying that LGBT people can be discriminated against simply because of their sexual orientation or gender identity, even where there is absolutely no reason why they cannot perform a particular role.

I do not believe such an extreme ideological position is sustainable in 2016. I sincerely hope you agree, and in doing so, vote for this Bill.

Please do not hesitate to contact me, at the details provided below, should you have any questions, or wish to clarify any of the above.

Sincerely,

Alastair Lawrie

Footnotes:

[i] Noting that intersex status is not a protected attribute under Victorian law.

[ii] The wording of the amendment in relation to religious schools is largely similar.

[iii] Media Release, Is this kind of Government interference really warranted?, 1 September 2016.

[iv] Also expressed through my Submission to Victorian Greens Equal Opportunity Amendment (LGBTI Equality) Bill 2016.

[v] Perhaps the only complementary change that stands some chance of success in the current political environment would be the introduction of a provision requiring religious bodies and schools seeking to use the ‘inherent requirement exception’ to advertise the fact it will discriminate against LGBT employees with respect to particular positions, rather than simply asserting this ability as part of any defence to discrimination proceedings. However, determining whether such an amendment would be passed is best left to Victorian LGBTI advocates.

[vi] In drafting this email I have been careful to avoid language that rules out the need for further reform, or that would contradict amendments to the Bill, such as those proposed by the Victorian Greens (which would limit the ability of religious bodies or schools to discriminate to a greater degree), even if it is my personal view that such amendments are unlikely to be successful at this time.

Germaine Greer, ABC’s #QandA & Transphobia

Updated 22 April 2017:

ABC’s #QandA producers have done it again, inviting notorious transphobe Germaine Greer to appear – yet again – on next Monday night’s episode.

In fact, Ms Greer’s appearance will be, at least, the third since the below post was written about the International Women’s Day episode in March 2015 (with other appearances in April 2016 and September 2016).

The frequent promotion by our national broadcaster of someone whose repugnant views about transgender people should be ignored rather than indulged is galling.

Importantly, Greer has already been given – and used – the opportunity of appearing on #QandA to ‘clarify’ her views on gender identity, but chose instead to continue her attacks on transgender people.

On the 11 April 2016 episode, Ms Greer deliberately mis-gendered Caitlyn Jenner, commenting that:

“I don’t believe that a man who has lived for 40 years as a man and had children with a woman and enjoyed the services, the unpaid services of a wife, which most women will never know, that he then decides that the whole time he’s been a woman, and at that point I’d like to say, “Hang on a minute, “you believed you were a woman, but you married another woman. “That wasn’t fair, was it?””

Here’s a hint Germaine – because you seem to be a bit slow on the uptake – Caitlyn Jenner is a woman, whether you like it or not (and it certainly appears to be the latter).

She even returned to the subject, later in the conversation, to take on a hypothetical middle-aged trans person, saying:

“If you’re a 50-year-old- truck driver who’s had four children with a wife and you decide that the whole time you’ve been a woman, I think you’re probably wrong.”

Imagine, for a second, that statement being made about another social group, say Aboriginal and Torres Strait Islander people, or Jewish people, or Muslim people – that, despite what you say you are, despite your fundamental identity, I will assert that your identity is incorrect. In effect, I will tell you that the person you say you are doesn’t exist.

This erasure wouldn’t be accepted – and it shouldn’t be accepted in relation to transgender and non-binary gender diverse people, either.

It’s time for Ms Greer to be taken off the speed dial list for ABC’s #QandA producers, and for her to be replaced by a feminist who is capable of accepting life in the 21st century. There is absolutely no shortage from which to choose.

**********

Original Post 8 March 2015 (previous title: My Question to Tony Jones, Annabelle Crabb, #QandA Producers, Mark Scott & The ABC):

On Monday March 9th 2015, the ABC’s Q&A program will hold its first ever all-female show, to align with International Women’s Day (which is today, Sunday March 8).

There have actually been Q&A’s with all-female guests before – although they still featured Tony Jones as host, whereas tomorrow night Annabel Crabb will be moderating the conversation.

This is of course a welcome development, especially given the ongoing under-representation of women in political life in Australia, nowhere more than around the federal Cabinet table (with one of the two women currently in Cabinet, the Hon Julie Bishop MP, also a guest tomorrow night).

It’s just such a shame that it is undermined by the inclusion of Germaine Greer as a panellist.

Don’t get me wrong, Ms Greer was one of the most influential Australians of the 20th century, and her academic and public work on feminism, and improving the situation of women around the world, should be, indeed must be, respected.

Unfortunately, her views on gender identity, and in particular surrounding issues of transgender identity, have steadfastly refused to enter the 21st century. She has been, and remains, a vocal and unapologetic transphobe.

And it is this transphobia which, I believe, makes her an unsuitable guest for Q&A. It is my firm view that the ABC more generally, and Q&A specifically, should not be giving a platform to someone whose opinions are so abhorrent.

Now, that might seem like an extreme statement. Until you recognise that her comments about transgender people, and trans-women in particular, are far more extreme.

For example, in her 1999 book, The Whole Woman, Ms Greer wrote:

“Governments that consist of very few women have hurried to recognise as women men who believe that they are women and have had themselves castrated to prove it, because they see women not as another sex but as a non-sex.”

“No so-called sex-change has ever begged for a uterus-and-ovaries transplant; if uterus-and-ovaries transplants were made mandatory for wannabe women they would disappear overnight. The insistence that man-made women be accepted as women is the institutional expression of the mistaken conviction that women are defective males.”

Proving that it is possible to learn nothing about a subject in 10 years, Ms Greer wrote the following for The Guardian in 2009:

“Nowadays we are all likely to meet people who think they are women, have women’s names, and feminine clothes and lots of eyeshadow, who seem to us to be some kind of ghastly parody, though it isn’t polite to say so. We pretend that all the people passing for female really are. Other delusions may be challenged, but not a man’s delusion that he is female.”

In 2015, another six years having passed, and yet Ms Greer still doesn’t seem to be any the wiser about transgender issues. Delivering a public lecture at Cambridge University in January, she returned to her discriminatory ways.

According to the Huffington Post, transphobia itself became a target of her speech:

“Women are 51% of the world’s population and [I’ve been told] I’ve got to worry about transphobia… I didn’t know there was such a thing [as transphobia]. Arachnophobia, yes. Transphobia, no.”

Perhaps in an effort to single-handedly demonstrate that transphobia does exist, Ms Greer also repeated her 2009 view that it was a ‘delusion’ to describe the wish of ‘men to become women’, and “suggested that trans women do not know what it is to “have a big, hairy, smelly vagina.””.

And “[s]he further argued that the surgical procedures and medical treatments associated with transitioning are “unethical” because they “remove healthy tissue and create lifelong dependence on medicine.””.

So there we have (at least) three examples, spread across 16 years, of someone who actively belittles and demeans one group within the community simply because of who they are.

Imagine for a second that she (or indeed any potential Q&A guest) made similar comments about Aboriginal and Torres Strait Islander people, or Jewish people. That they questioned these groups’ ‘authenticity’, called them ‘delusional’ or ‘ghastly parodies’, at the same time as suggesting that racism, or anti-Semitism, were not in fact all-too-real phenomena.

Would the ABC nevertheless go ahead and book them for this program, effectively providing them with a platform for their bigoted views? I expect (and sincerely hope) that they would not.

Which indicates, or at least strongly implies, that the ABC does not consider transphobia to be as serious an issue as racism, or anti-Semitism, or other forms of discrimination.

What makes the decision to invite Germaine Greer onto the program even worse is that she has already appeared, on multiple occasions (and on one of her previous appearances hardly covered herself in glory, in March 2012 disrespecting then Prime Minister, the Hon Julia Gillard MP, by telling her “Face it Julia, you have a fat arse…”)

Are the producers seriously suggesting that a panel of five guests (plus host Annabel Crabb) could not be filled with intelligent and talented women without having to invite a notorious transphobe back for a repeat performance?

The fact that they have done so is, I believe, a serious failure of judgment.

Of course, writing this as a cisgender gay man I am exposing myself to potential criticism, that somehow I am being anti-feminist (for daring to criticise the ‘right’ of someone like Ms Greer to appear).

But I am comfortable enough to know that a) that’s not true and b) that it is more important to stand up for the rights of all of the members of the lesbian, gay, bisexual, transgender and intersex (LGBTI) community.

And it is not as if I am alone in making such criticisms. Author Roxane Gay, who is herself appearing on Monday night’s Q&A, had the following to say in an interview with the Sydney Morning Herald:

“I think she’s [Germaine Greer’s] bigoted and full of hate. She doesn’t acknowledge transgender women as women. That’s not acceptable. I honestly don’t know why she’s being included. I think it’s going to be uncomfortable.”

I too don’t know why Germaine Greer is being included on tomorrow night’s show. So, in the long tradition of Q&A, I would like to submit the following question:

My question is to Tony Jones, Annabel Crabb, #QandA Producers, Mark Scott and the ABC: Why do you consider it acceptable to provide a public platform for a transphobe like Germaine Greer? Or, in other words, why do you believe transphobia is less offensive than racism or anti-Semitism?

I would love for them (rather than the other guests) to provide a response to this, although I have to say I am not holding my breath.

Transphobe Germaine Greer

Transphobe Germaine Greer

One final thing. As I noted at the beginning, while this is the first all-female show, it is not the first all-female panel. And there have been other panels looking at Aboriginal and Torres Strait Islander issues, and one program looking specifically at HIV (held during AIDS2014 in Melbourne).

Perhaps a future Q&A could be devoted to LGBTI issues. With five guests, that means there could be at least one lesbian, gay, bisexual, transgender and intersex person each appearing (noting of course individuals can be more than one of these).

Such a show would go some way towards demonstrating that the LGBTI community is about more than just marriage equality, and that there is also an incredible amount of diversity, both in experience and opinions, within our ranks.

There are a large number of opportunities for such a panel during the year, not only during the (just completed) Sydney Gay & Lesbian Mardi Gras, but possibly even later in 2015 to celebrate 40 years of the decriminalisation of homosexuality in South Australia (the first Australian state to do so). So, Q&A, how about it?

Update 22 April 2017: Later in 2015, #QandA producers actually did stage a program focusing on LGBTI issues. Hosted by gay comedian Tom Ballard, it followed a screening of the documentary Between a Frock and a Hard Place, looking back at the success of The Adventures of Priscilla, Queen of the Desert.

The panel for the ‘#QandGay’ included:

Gay rights activist and author Dennis Altman

Entertainer Paul Capsis

Broadcaster and journalist Julie McCrossin

Christian Democratic Party MP Fred Nile

Transgender woman Julia Doulman and

Student and queer activist Katherine Hudson.

That’s right, not content on including notorious transphobe Germaine Greer on the International Women’s Day episode, #QandA producers apparently believed that a discussion about the progress of LGBTI rights in Australia required the input of notorious homophobe Fred Nile. I guess, based on that logic, the next panel to focus on issues about race will include a neo-Nazi. You know, for balance…

Submission to Senate Legal and Constitutional Affairs Legislation Committee Inquiry into the Recognition of Foreign Marriages Bill 2014

As I committed to in my previous post on the topic of the Recognition of Foreign Marriages Bill 2014 (see here: <https://alastairlawrie.net/2014/06/26/why-i-dont-support-the-recognition-of-foreign-marriages-bill-2014/ ), unless somebody was able to provide a satisfactory explanation as to why, as a strategy, the recognition of foreign marriages should be pursued separately to, and ahead of, equality for domestic marriages, I would lodge a submission to the Senate Inquiry into the Bill expressing my serious concerns about this proposed law.

In the absence of any such explanation, I lodged my submission at the end of July, making clear my personal opinion that the Recognition of Foreign Marriages Bill 2014 should be withdrawn, and replaced by genuine marriage equality legislation.

I understand that this position may be controversial with some people, and that my words may even be used against me by others (indeed my original post has been quoted, selectively, by the Catholic Archdiocese of Sydney in their own submission to the inquiry), but I absolutely believe that, as a movement, we should be fighting for real marriage equality, and that we should be pushing for it to be passed by the Parliament as quickly as possible – unfortunately, the Recognition of Foreign Marriages Bill 2014 is not such a law.

One final, more positive, point: it appears that, as a result of a range of submissions, and the evidence given to the Senate Inquiry by Tony Briffa, there is now a strong chance that the Bill will at least be amended to ensure that it is not discriminatory on the basis of gender identity and intersex status.

This is obviously a very welcome development, but it would nevertheless leave intact the Bill’s inherent discrimination on the basis of class and nationality. Which, at least from my perspective, remains sufficient justification to argue for the Recognition of Foreign Marriages Bill 2014 to be withdrawn.

The following is the text of my submission to the Senate Inquiry into this Bill, which has been published on the APH website, and is available at the following link: <http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/Recognition_of_Foreign_Marriages_Bill_2014/Submissions

For more than ten years, and especially since the lead-up to the passage of the ban on marriage equality by the Howard Liberal-National Government, supported by the Labor Opposition, in 2004, I have been a strong and consistent – and occasionally vocal – supporter of marriage equality.

I firmly believe that all couples deserve the right to marry, and have that marriage recognized under Commonwealth law, irrespective of their sexual orientation, gender identity or intersex status.

I do not accept that there is any valid reason for the Australian Government to continue to discriminate against lesbian, gay, bisexual, transgender and intersex (LGBTI) people, and to devalue their (our) relationships, by denying a fundamental right which is offered without question to cisgender heterosexual couples.

This is particularly true following the High Court decision in December 2013, which overturned the ACT’s same-sex marriage legislation but also established that there is no constitutional impediment to the Commonwealth Parliament passing a Bill which would finally affirm that our love is indeed truly equal.

I deliberately use the word finally because we have been waiting long enough. My fiancé and I have already been engaged for four and a half years – and it may be several more before we have the opportunity to have a legally recognised wedding, something that my sister and her husband, and my brother and his wife, simply took for granted.

I strongly urge the Commonwealth Parliament, including all Senators and Members of the House of Representatives, to pass a marriage equality Bill as a matter of priority, and thus bring to an end the sorry situation whereby LGBTI Australians are treated as second class citizens in their own country.

Unfortunately, the Recognition of Foreign Marriages Bill 2014 is not such a Bill. It will not end the second class treatment of all of our relationships, and I do not believe it should be brought before the Parliament for debate.

My problem with this proposed law is not necessarily about what is included (although there is an issue in its terminology which I will come to later). It almost goes without saying that I completely support the legal recognition of the marriages of same-sex couples that have been wed in other countries.

Instead, my problem concerns what is not included in the Bill – the recognition of domestic marriages – and the consequence of only recognising marriages conducted ‘outside’ Australia, and not those ‘inside’ at the same time.

If passed, such legislation would create a situation whereby there would be three main, distinct categories of same-sex couples who wish to be treated as married in Australia:

    • Couples who have the financial resources to take advantage of the opportunity to marry under the laws of another country;
    • Couples who have been or are able to marry under the laws of another country because of their current or former nationality (including where one partner has UK citizenship, and can therefore marry in a UK consulate in Australia, or where the couple has emigrated from a country with marriage equality); and
    • Couples who do not have the financial resources or nationality to be able to take advantage of marriage equality elsewhere. 
Under this Bill, only couples in the first two categories would be able to be considered legally married.

In effect, if the Recognition of Foreign Marriages Bill 2014 were to succeed, Australia would have a system which, far from implementing genuine ‘marriage equality’, would actually create new types of marriage inequality, only this time based on distinctions around class and nationality rather than sexual orientation. 
Put simply, I cannot advocate for the progression of a Bill which would provide the opportunity for a couple who can afford it to get married overseas and have that marriage legally recognised here, but which would tell an elderly couple barely surviving on the age pension that they cannot be married under Australian law solely because they do not have the money.

If we are genuinely interested in marriage equality, then both couples must have the same right to wed. To put it another way, I am only interested in advocating for the progression of a Bill which redresses the injustice perpetrated against both couples, not just the couple that can afford to marry.

The only argument which I can see for pursuing this legislation is that some people may view it as an incremental step towards full marriage equality. And I whole-heartedly agree that, in some cases, incremental reform may be necessary to achieve larger, longer-term change.

However, I believe that in this case the people proposing this route towards achieving full marriage equality have not understood the fact that incrementalism is only ever a strategy, and not a goal in and of itself.

In this instance, there is absolutely no need for an incrementalist approach. There is no difference in how the Recognition of Foreign Marriages Bill 2014 would be treated by Commonwealth Parliament and how a genuine Marriage Amendment Bill – one that provides for the recognition of both overseas and domestic marriages – would be received.

Both Bills would involve asking the same people, sitting in the same place, exercising the same powers, and almost inevitably using the same arguments, to vote yes (or no).

The only potential justification for proceeding with the Recognition of Foreign Marriages Bill and not a genuine Marriage Amendment Bill would be if there existed Senators and Members of the House of Representatives who would tell LGBTI-inclusive couples in Australia that they can only have their marriages recognised if they travel overseas, away from their family and friends, for the wedding.

I refuse to believe that, when it came time for the second reading debate on such a Bill in the Chamber, there is a single MP who would stand up and deliver that message. I do not accept that there would be MPs willing to tell LGBTI members of their community that yes, they can be married, but only on the proviso they go somewhere else for the ceremony. Instead, I sincerely believe the same people who would be willing to vote for the Recognition of Foreign Marriages Bill 2014 would also vote yes to full marriage equality.

In which case, there is no reason why the Commonwealth Parliament should not proceed directly to a genuine Marriage Amendment Bill, rather than consider something which falls far short of what could be considered fair, and is substantively less than what LGBTI Australians deserve.

I urge Senators who wish to pursue the Recognition of Foreign Marriages Bill 2014 to reconsider their approach. I submit that they should abandon this Bill in favour of legislation that would deliver the right to marry to all couples, not just those who can afford to take advantage of the opportunity to marry under the laws of another country first.

The next Bill to be debated in the Commonwealth Parliament should be, must be, legislation which provides for genuine marriage equality, irrespective of sexual orientation, gender identity or intersex status, and not one which would allow some same-sex couples to marry, but only those from certain classes or nationalities.

As I alluded to earlier, there is another problem with the Recognition of Foreign Marriages Bill 2014. And it is not a minor problem, either – although, as it concerns terminology, (hopefully) it is something which can be more readily resolved.

The Bill would leave intact the current definition of marriage in section 5 of the Marriage Act 1961 (“marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”). Instead, it replaces section 88EA with the following:

(1) Despite the definition of marriage in subsection 5(1), a union between:

(a) a man and another man; or

(b) a woman and another woman;

solemnised in a foreign country under local law as a marriage is recognised as a marriage in Australia.

(2) The parties to a union mentioned in subsection (1) have the same rights and obligations under this Act, or under any law of the Commonwealth, as the parties to a marriage between a man and a woman.

This is explicitly, and only, a same-sex marriage Bill. It is not genuinely inclusive of any marriages of people who may not be, or who may not identify as, a man or a woman. Some couples which include trans* or intersex individuals may not be able to utilise such laws or may not want to, because the language does not reflect who they are, and therefore denies the nature of their relationships.

The Recognition of Foreign Marriages Bill 2014 does not challenge the unnecessary inclusion of ‘man’ and ‘woman’ in section 5 of the Marriage Act, something which we should be moving away from – instead, it further entrenches these concepts, by replicating this language in additional subsections.

This is an issue which, I hope, is more about drafting than any deliberate intention to exclude people on the basis of gender identity or intersex status. As such, if, after this Senate Inquiry is concluded, the Recognition of Foreign Marriages Bill 2014 does proceed to Parliamentary debate, it should be amended to ensure all couples are included, not just ‘same-sex couples’.

Nevertheless, even if the Bill were amended to ensure that it did not discriminate against some trans* and intersex inclusive couples, my fundamental problem with it would remain – this legislation would not achieve genuine marriage equality, and therefore I believe it should be replaced by something that would.

The primary positive outcome to arise from this legislation, and the Senate Inquiry which it has precipitated, is that it has placed a spotlight on the injustice perpetrated on same-sex couples that have been married overseas (either Australian couples who have travelled elsewhere, or other couples who have emigrated here) and yet are told by the Australian Government that they are not considered legally married here.

Undoubtedly, this is a horrible, and heart-breaking, situation for any couple to be placed in. And it is yet another argument for the recognition of genuine marriage equality within Australia, and additional motivation for such a law to be passed as quickly as possible.

But it is not sufficient justification to proceed with legislation that addresses only this injustice. The discrimination against these couples, and the discrimination against other Australian couples who are waiting for the opportunity to be married here, is, in practice, the same discrimination. After all, we are all told that our relationships are not worthy of the same recognition as those of other Australians, simply because we are LGBTI.

These injustices can and should be remedied through the same Bill, rather than prioritising the needs of some couples over others without any clear or rational explanation why that should be the case.

One final point. I have tried to be clear in this submission that I do not support progress of the Recognition of Foreign Marriages Bill 2014 to second reading debate, and ultimately for vote on the floor of Parliament. Instead, I have consistently argued that this Bill should be replaced with genuine marriage equality legislation before it reaches that stage.

However, if the Recognition of Foreign Marriages Bill 2014 does proceed to a vote, there is no reason for Senators and Members of the House of Representatives to vote against it, and thereby vote against the potential expansion of marriage to include more couples than are currently allowed.

Nevertheless, it is still my preferred outcome that the next Parliamentary vote on marriage be on a genuine, and genuinely inclusive, marriage equality Bill – and therefore not on the Recognition of Foreign Marriages Bill 2014.

In conclusion, while the intentions of those who have drafted this legislation are most likely sound, the outcome that its passage would deliver is not. It is time to go back to the drawing board, and return with a Bill that delivers marriage equality, not just for some couples, but for all.

Alastair Lawrie

Thursday 31 July 2014

Letter to Minister Piccoli re Proud Schools

UPDATE (Saturday 8 February): Yesterday, I received a response from the NSW Government to my letter about Proud Schools (below). It was not from the Minister, but rather from the Executive Director, Learning and Engagement, in the Department of Education and Communities.

In short, it appears that the NSW Government has completed its review of Proud Schools and on that basis has decided to abandon the Proud Schools pilot/model. Unfortunately, it does not appear as if the review of the Proud Schools pilot is going to be released.

Equally concerning, while the response talks about a “Wellbeing Framework for Education”, there appears to be very little detail about what this might entail. Given the homophobia, biphobia, transphobia and anti-intersex discrimination which continues to affect LGBTI students (a fact reinforced by the Growing Up Queer report, released yesterday), there will need to be a lot more information provided about this framework before it could be supported.

As an aside, I find it curious that in a letter about Proud Schools, and replying to a letter about Proud Schools/the needs of LGBTI students, the response does not refer to LGBTI students specifically, instead making generic statements about ‘all students’. Hmmm…

The full text of the letter:

Dear Mr Lawrie

I write in response to your email of 12 January 2014 to the Hon Adrian Piccoli MP, Minister for Education regarding the Proud Schools pilot. The Minister has asked me to respond on his behalf.

The Department of Education and Communities is committed to providing safe and supportive learning environments that respect and value diversity and that are free from all forms of violence, bullying, discrimination, harassment and vilification.

We know that learning outcomes are better where students are happy, safe and supported at school. We also know that when school communities work together real improvements in promoting understanding and reducing discrimination can be made.

From the Proud Schools pilot it has emerged that a ‘one size fits all’ approach will not be appropriate for a systemic school system.

Significant work is currently underway on developing a Wellbeing Framework for Education. This framework will provide schools with guidance and evidence informed practice to support all students within the context of their school and in consultation with their school communities. The subsequent development of any wellbeing materials will need to carefully balance the wellbeing of all young people.

Thank you for your email.

Yours sincerely

[NAME WITHHELD]

Executive Director, Learning and Engagement

5 February 2014

ORIGINAL POST Today (Tuesday 28 January) is the first official day of the school year for teachers across NSW. Tomorrow, students return to school for the first time in 2014. And yet, with teachers and students coming back, it is still unclear whether something else is returning to NSW schools this year – the Proud Schools program.

A three-year pilot of Proud Schools – which is designed to help schools include LGBTI students, and protect them from bullying – was due to be completed at the end of 2013. The pilot project was also subject to a formal review last year, to help determine whether it should be expanded, and if so in what form.

But, as far as I can tell, this review has not yet been released, and no announcement appears to have been made about the future of the Proud Schools program. Is the Proud Schools pilot being extended? Is the program being rolled out beyond the initial very small number of schools in which is began? Has Proud Schools been axed? If so, has it been replaced with another program aimed at serving the needs of LGBTI students in NSW?

Concerned about the lack of information, I wrote to the NSW Minister for Education, the Hon Adrian Piccoli, about this subject two weeks ago. Below is my letter to him (dated 12 January). I have yet to receive a response to this, but will update this post if I do.

Dear Minister

PROUD SCHOOLS/PROGRAMS FOR LGBTI STUDENTS

I am writing regarding the Proud Schools program, which has been piloted across a small number of NSW schools over the past three years (2011-2013).

I understand that the Proud Schools pilot was the subject of a review by the NSW Government during 2013, and that, following this review, the NSW Government was to make a decision about the long-term future of Proud Schools.

Has this review been finalised? If so, has a decision been taken by the NSW Government concerning the future of the Proud Schools program? If so, when will this decision, and the review upon which it was based, be made public?

I write because there are only two weeks left until the 2014 school year commences, and believe that it is important for schools, teachers and LGBTI students to have some certainty about the future of this program.

Even if the NSW Government decides not to continue with the specific Proud Schools initiative, it is vital that a program which supports the needs of LGBTI students is rolled out across NSW schools, not just in the small number that were involved in Proud Schools, but across the entire state.

This is because LGBTI students are subject to increased levels of bullying and harassment based on homophobia, bi-phobia, trans*-phobia and anti-intersex prejudice, experience higher rates of mental illness as a result of this discrimination, and are at risk of not receiving education that is inclusive of their needs.

I seek your assurance that you are giving this issue priority, and will have a program in place in NSW schools from the beginning of the 2014 school year.

I look forward to your response to this letter.

Yours sincerely

Alastair Lawrie

Senate Submission on Marriage Equality

Earlier this year, I made a lengthy submission to the Senate Legal and Constitutional Affairs Committee Inquiry into the Marriage Equality Amendment Bill 2010. I – and 79,200 other Australians. The majority of these (approximately 46,400 submissions) were in favour of marriage equality, although we all know that our parliamentarians ultimately ignored them, and many other public policy arguments, as they voted to entrench discrimination against LGBTI Australians.

Unfortunately, given the volume of submissions received, the Committee chose to only publish 360 submissions in total, and mine was not one of the select few. As the year draws to a close I thought I might publish what I submitted to the Committee. On reflection, it does tend toward the ‘ranty’ at times, but I think this simply reflects the passion which I felt (and still feel) on the issue. Which also helps to explain the length. Fortunately, I will be able to reuse much of this submission as the NSW Parliament has its own inquiry into marriage equality in the first half of 2013.

Anyway, here is the full text of my submission:

Submission to the Senate Inquiry into Marriage Equality

Please note that this submission reflects my personal views only and does not reflect the views of any other person or organisation.

Introduction

I am writing to strongly support the urgent introduction of marriage equality, and to call for the federal parliament to remove one of the final major pieces of discrimination against lesbian, gay, bisexual, transgender and intersex Australians.

It is somewhat frustrating to have to go through this process in 2012. To have to, once again, ask for the rights which should be granted as a matter of course, to demand action to remove a form of discrimination which should have been erased from the law books long ago. Of course, this frustration has been shared in the past by campaigners for gender and racial equality, who were forced to continue to protest and take action to gain equality, long after it should have been introduced. But just because this frustration is shared, doesn’t mean it is any less disheartening.

And it is also disheartening to have to engage in the same debate, to have to listen to the same so-called arguments against marriage equality, which are generally based on either prejudice (on a bad day) or ignorance (on a good one). The arguments for equality, which include the recognition of love, the introduction of genuine equality irrespective of sexual orientation or gender identity, and the symbolism of acceptance, are so compelling that the debate on this issue has already been won, amongst the family and friends of LGBTI Australians, in the wider community, and in the public sphere. The majority of Australians have come to recognise that marriage equality is something that should have already happened.

In fact, the only place where support for marriage equality seems to be in the minority is in the federal parliament. Well, later this year, our 226 elected representatives have the opportunity to finally redress this injustice. Our federal parliamentarians have the chance to treat love equally, to show that all Australians should be treated fairly no matter who they are attracted to, in short, to bring Australia into the 21st century.

But it is more than simply a chance to do what is right, it is an obligation. Our 226 elected representatives have an obligation to represent all of their constituents, not just the heterosexual ones. They have a responsibility to respect the rights of a minority, even when other groups demand that the law be used as a weapon to discriminate against that minority. Our elected representatives should be striving to eliminate homophobia, in the same way that our society continues to strive to overcome sexism or racism.

I hope that, later this year, our federal parliamentarians will seize this historic opportunity, and fulfil their obligations, to support the passage of marriage equality.

The major arguments against same-sex marriage

To begin the substantive part of this submission, I would like to rebut the main arguments which our opponents use to deny marriage equality, namely, that marriage is about religion, that marriage is about children, and that marriage is about tradition. Each of these is fundamentally wrong, as I will explain:

i)                    Marriage is a religious institution which cannot accommodate same-sex couples

There are so many things wrong with this statement it is difficult to know where to start. It is completely inaccurate and inappropriate in contemporary Australia. There is no religious test for people who wish to get married – anyone is welcome (christian, muslim, jew, hindu, buddhist, atheist and agnostic alike). And it goes without saying that, despite historical restrictions on religious ‘intermarriage’, people can also marry outside their religious affiliation, so it therefore cannot be considered a sacrament to a particular god. Marriage ceremonies also do not need to be religious – indeed, the vast majority of ceremonies are performed civilly (65% in 2008). Above all, a marriage in modern Australia is more likely to be simply a celebration of the love between two people, shared by their family and friends, than a solemn vow in front of their god or gods.

More fundamentally, the federal Marriage Act, which defines marriage and from which its legal rights and obligations flow, is a secular law, passed by a secular parliament, within an entirely secular system of government. Or to put it another way, because of the separation of church and state, Australia is not legally or formally a christian country, and its laws are not the exclusive plaything of christians. This is the only fair approach in a modern society – surely it is unjust to impose religious laws on those who are not ‘believers’, or deny citizens equal rights on the basis of their religion, or their lack of religion.

The most extreme example of the ‘gay marriage should be banned because of religion argument’ is a convoluted one, which goes something like: for some people, marriage is religious, and they would not accept same-sex marriage, so the granting of same-sex marriages to others would somehow be an infringement of their religious freedom. This has absolutely no weight, confusing as it does the freedom of religion (for religious people to conduct a wedding in the manner of their choosing) with a supposed freedom to impose their religious views on others (and thereby infringing on the equally important freedom from religion).

It also conveniently ignores the fact that several religious organisations would themselves like the right to perform same-sex marriages, so a same-sex marriage ban would infringe on their freedom of religion. Finally, I believe that religious differences can easily be accommodated by the current exemptions within the Marriage Act, which mean that no religious celebrant can be compelled to officiate over any ceremony which they do not support. Nothing in any current proposal for marriage equality would compel a church to allow same-sex ceremonies where they do not wish.

All in all, there is absolutely no religious reason why marriage should remain exclusively between men and women.

ii)                   Marriage is about children and therefore gay men and lesbians need not apply

The regularly-raised Simpsons-esque ‘won’t somebody think of the children’ argument also has no substance whatsoever. Apparently, marriage is about children and only those opposite-sex couples who intend to have children, and indeed who are capable of having children, should get married. I say apparently, because it seems a lot of married couples didn’t get that memo. Think of the people who get married beyond their natural reproductive age. Or who get married and have absolutely no intention of having children. Or who get married and are incapable of having children.

It also seems to have escaped the marriage vows ‘industry’. I can’t recall anyone getting married and promising to have the other person’s children. Instead, marriage vows, quite understandably, seem to focus on the love between two people. In fact, the book of common prayer vows state “to be my lawful wedded wife/husband, to have and to hold from this day forward, for better or for worse, for richer or poorer, in sickness and in health, to love and to cherish, til death us do part, according to God’s holy ordinance; and thereto I plight thee my troth.” There is no mention of children, and after all, wouldn’t it be included here if bearing children were so central to the rite of marriage?

The next variation of ‘won’t somebody think of the children’, claims that the best way to raise children is within heterosexual married families, as only opposite sex couples can reproduce naturally and only marriage provides a stable family environment. Once again, this proposition is full of holes. It ignores the reality that many gay and lesbian couples are having children, whether through surrogacy, artificial insemination or adoption. These rainbow families are real, and they are increasing. They are also good parents – independent studies by reputable psychologists have found that children raised by rainbow families are doing fine. In 2007, the Australian Psychological Society found that “parenting practices and children’s outcomes in families parented by lesbian and gay parents are likely to be at least as favourable as those in families of heterosexual parents, despite the reality that considerable legal discrimination and inequity remain significant challenges for these families.” If people genuinely cared about the children of these families, surely we should be arguing for the right of their parents to get married, if they so desire.

The ‘straight married families are best’ argument is also incredibly disrespectful to the diverse range of families in contemporary Australia. There are many wonderful married opposite sex parents, just as there are awful married opposite sex ones. That split applies equally to unmarried opposite couples too. There are amazing single parents, just as there are terrible ones. There are couples who stay together for the sake of their children, but probably shouldn’t. And there are all kinds of families who do the best they can for their child or children, no matter what the situation. In short, family structure does not guarantee anything, but the love of a good parent or parents counts for so much more.

So, that leaves just one of the most commonly used troika of arguments against equal marriage to rebut.

iii)                 Marriage is about tradition and it should remain ‘just the way it is’

This is the weakest argument of the three. Tradition as an argument only works where it meets one necessary pre-condition: that the tradition involved is an inherently good one. This is because tradition alone is never enough to justify the retention of a fundamentally flawed institution. Australia, and indeed the western world, has done away with many social policies over time that were once deemed traditional: slavery was traditional, terra nullius was a long-held custom, and yet both have been quite rightly swept away because they were abhorrent.

To argue against changing something, solely because of tradition, to unquestioningly state that what is now, is what automatically should be, forever more, is quite plainly a ridiculous position to adopt.

Many of the features of modern Australia would not exist if our predecessors had blindly worshipped at the altar of tradition – women would not have the right to vote, let alone be Prime Minister, and indigenous Australians would still be third class citizens. Many of Australia’s major social reforms were achievements because they removed outdated and inappropriate social traditions, and not in spite of this.

In terms of marriage, it is a well-respected tradition within the community (at least in concept, if not reflected in divorce rates), and one that arguably can perform a valuable social function in terms of organising social relationships. However, one must be careful to distinguish between the feature that gives it value – that marriage is the union of two people in a loving relationship – and other traditions which are associated with it, but not a core element. That is why the essential meaning of marriage has survived, despite the significant changes that have been made to the institution over time. For example, marriage is now seen as the union of two equals, rather than simply a man taking possession of a woman. As we have seen, marriage has gone from most being performed religiously, to most being civil. Marriage between races was once prohibited, now miscegenation laws are (thankfully) a distant memory. The introduction of divorce laws, in the first instance, and then later of no-fault divorce, have both been welcome improvements to the operation of marriage, but have not fundamentally altered its underlying meaning.

That is why, although marriage itself may be traditional, and the exclusion of same-sex couples from marriage has a long history, support for the former does not mean hanging desperately onto the latter. The exclusion of lesbians and gay men from marriage is not an inherently good tradition, worthy of continuation, especially when we have finally reached a point as a society where we understand that all citizens should be treated equally, irrespective of sexual orientation or gender identity. At least a dozen other countries have shown that you can amend marriage laws, removing the homophobic exclusion of same-sex couples, and yet retain its core meaning (of recognising the love between two people). The tradition of marriage does not mean that it cannot or should not ever change. To the contrary, the tradition of social progress within Australia means that we must change the marriage law to be inclusive, to reflect the 21st century. That act will not weaken the institution of marriage, it will instead make it more relevant to a new generation of Australians.

Other arguments against same-sex marriage

There are a range of other arguments which are occasionally raised in ‘defending’ the institution of marriage from the homosexual invaders. They range from the ridiculous, to what are essentially distractions, to the downright homophobic, so I will only touch on them rather than delve into too much detail.

i)                    Same-sex marriage will devalue the marriages of opposite sex couples who are already married.

This argument goes something like: marriage has a particular meaning for some people, which appears to derive value from excluding same-sex couples, and so they will feel their relationship is lessened or cheapened if same-sex couples have access to it. It is hard to engage with people who hold this view. If your marriage relies on other people being discriminated against for it to survive, then you need to focus on your relationship more and what other people do less. After all, what will it matter if Sue and Sandra down the road get married? And where do you have room in your heart for the love of your spouse, when it is already full of intolerance for people who are different to you? Your marriage will not change if my fiancé and I get married. If you want to prefer to think of marriage as being between a man and a woman, then you are free to do so in the comfort of your own relationship. But don’t deny other people their rights because of your insecurity.

The apotheosis of this argument was recently put forward, in its most ridiculous form, by Frank Brennan. He stated that “[t]he Commonwealth Parliament should not legislate to change the paradigm of marriage unless and until the majority of persons living that paradigm seek a change.” This is a novel point of view. I would love to know whether this means women should have waited for the majority of men to eventually figure out that the sexes were equal before they demanded change, or for indigenous people to be satisfied with their second-class status while white folk decided whether they were good enough or not. All citizens have the right to hold an opinion about a law, and not just those people who currently have access to a particular institution. To say otherwise denies the democratic process, and the agency of people who are discriminated against to advocate for reform.

ii)                   There will be unintended, unspecified consequences of allowing equal marriage

This argument is always vague, because its proponents can never spell out what any of these consequences might be. Because they are scared of this particular change, they suspect that the sky might fall in. In practice, the only negative consequence of gay people getting married will be gay people eventually getting divorced – in just the same way as heterosexual couples already do. No one else would be affected.

iii)                 Other issues are more important that equal marriage

It is incredibly difficult to argue against this proposition because it is basically true. There are indeed many other more important issues in the world. But, this argument ignores the fact that as a society and as a parliament we are capable of concentrating on multiple issues at the same time. And it also underestimates how easy it would be to fix this particular problem – all it would take is one bill, amending the Marriage Act and instantly, equality achieved. It is difficult to say that about many other social issues (and, in a best case scenario, could be done by the middle of the year). It is incorrect to say same-sex marriage is a distraction if it is one so readily resolved.

iv)                 The slippery slope argument

This argument starts our descent into the territory of outright homophobia. It was the one raised recently by fundamentalist christians in the Great Hall of Parliament House, when they hysterically asserted that equal marriage for LGBTI citizens will lead to men marrying children or humans marrying animals (or even inanimate objects). Not only does it raise the utterly grotesque and offensive stereotype of ‘gay men as paedophile’ (when we know that most child sexual abuse happens within the heterosexual family unit), it also completely devalues the institution of marriage itself, as the union of two equals, based on love and consent. Those conditions cannot exist in the ridiculous examples listed. The people involved in making such arguments should be laughed at when they spout such nonsense.

v)                  Equal marriage will ‘promote’ homosexuality

This argument is often followed by ‘and will lead to homosexuality being taught in schools’. Again, this argument is fundamentally based on homophobia. Apparently, if we treat lesbians, gay men, bisexuals, transgender and intersex people as equal citizens, then this will result in other, ‘normal’ people catching one of these infectious letters of the alphabet, much like catching the flu. Leaving aside the fact that being any one of these things is a perfectly natural thing (in the same way that being heterosexual is natural), it also does not reflect the reality of my experience, or anyone else I know from the LGBTI community. Saying that being gay is normal, or teaching kids that society is incredibly diverse and includes people with different sexual orientations and genders, will not mean people ‘catch’ gay or transgender. But it might just mean that a kid who is questioning his or her sexuality or gender identity will find acceptance rather than bullying, and might ultimately be spared from becoming one of the sad statistics in our epidemic of sexuality-related youth suicide.

vi)                 Gay people are not equal and do not deserve equal rights

In one sense, the people who make this argument should be respected for at least being honest, and not trying to dress their homophobia up as defending religion, children or tradition. On the other hand, if you are alive in 2012 and genuinely believe that you deserve more rights than me because you are attracted to someone of the opposite sex and I am attracted to someone of the same sex, then I feel sorry for you – the modern world must be a truly scary place to live in when you hold those bigoted views. But guess what, it is only going to get worse for you from here on – society will keep on marching towards equality, and your views will look worse and worse as time goes by.

In summary, we have seen that there are no strong arguments against the recognition of equal marriage – in fact, there are no substantive arguments at all. And even more importantly, the introduction of equality will cause no harm whatsoever. The churches will not be harmed because they will be free to not celebrate same-sex weddings. It will not make any difference to couples who are already married, or opposite-sex couples who plan to get married (well, other than some more competition for wedding venues). It will not harm children to know that there are gay people in the world – indeed, it will help some as they themselves will be same-sex attracted and it may make their coming out much easier.

The only groups who claim they will be ‘harmed’ are bigots and homophobes, as if the granting of legal rights to others compromises their own rights. This is of course not true – they are free to continue to disagree with same-sex marriage, but they should not be free to impose their prejudice on others, nor abuse the legal system in order to do so.

Arguments in favour of same sex marriage

Of course, logically, the absence of a negative does not mean a positive. While there is no reason to oppose same-sex marriage, there needs to be a positive reason for the parliament to adopt a legislative change. From my perspective, there are four main reasons: love, equality, symbolism and health benefits.

i)                    Recognition of love

The main argument for the recognition of same-sex marriage is the same reason why we have marriage at all – to celebrate the love between two people. I have attended the weddings of my sister, of my brother, of other relatives and of friends. Each ceremony has been wonderful (well, with the exception of the mandatory ‘Ruddock clause’, where the current definition of opposite sex marriage is read out, presumably to rub in the noses of gays and lesbians in attendance – this offensive piece of hateful propaganda is unnecessary in a ceremony which is essentially about love). Each ceremony also involves the warm embrace of the couple, both literally and figuratively, by their family and friends.

The love between gay couples is no different to the love between opposite sex couples, and deserves to be recognised in exactly the same way. On a more personal level, I see no reason why the love which I share with my wonderful fiancé Steve, should not be celebrated by my family and friends too. Or why we cannot stand in front of our 100 nearest and dearest and say ‘I do’. In fact, I am conscious of the fact that my parents have already reached their mid-60s. If marriage equality is lost this year, then we may have lost the opportunity for reform for 10 or 15 years.

I would be absolutely devastated if either one of my parents were not able to be here to celebrate my legal marriage simply because some people within the federal parliament now are hard of heart and mean of spirit, and want to perpetuate the ongoing discrimination against same-sex couples within our marriage law. I know that Steve feels exactly the same way – he would be gutted if either of his parents, or his grandma, were not alive when we finally had the legal right to get married in our own country. I do not understand the mentality of any parliamentarian who believes they have the right to deny that to us.

ii)                   Equality

The second argument in favour of same-sex marriage is an even simpler one. That is, people should not be treated differently on the basis of sexual orientation or gender identity; straight, gay, lesbian, bisexual, intersex and transgender people all deserve the same human rights. We have reached the point in public debate when even most of the opponents of same-sex marriage (except the truly homophobic) concede that same-sex relationships deserve all the same ‘legal rights’ as opposite sex couples. They then go into complete logic meltdown when they try and justify why they actually mean ‘all the same legal rights – except marriage’ because there is no justification to restrict the fundamental principle of equality from applying to this right as well. If gay and straight are truly equal, then same-sex marriage is not only inevitable it is also essential.

iii)                 Symbolism

No-one should underestimate the strength of this argument. It is why the gay and lesbian community is arguing so passionately, and it is also why our homophobic opponents are so upset at the possibility. If as a society we say gay people can get married, then we are saying once and for all that ‘gay is okay’. Full stop. No exceptions. Our current level of acceptance of gay people is inherently qualified – you are okay but, you are equal except, you have most of the same rights, just not all. It has led to many LGBTI Australians, myself included, feeling permanently like second-class citizens. It is also one of the reasons why I believe the internet ‘It Gets Better’ project has been so powerful and so popular. Because our parliament refuses to tell young gay and lesbian people that they are full citizens, just as worthy as their straight counterparts, it has been up to private citizens to communicate that message to their younger counterparts. I can imagine a large and incredibly diverse range of the LGBTI community collectively shedding a tear when the federal parliament delivers equal marriage, a legislative equivalent of ‘It Gets Better’, to its citizens.

iv)                 Health benefits

I touched on this earlier, in responding to those who say same-sex marriage will promote homosexuality. I suspect they mean it will ‘convert’ people or make people ‘catch gay’ (which is patently ludicrous). But, if they mean it in the sense it will encourage people who are actually lesbian, gay, bisexual, transgender or intersex to accept themselves and live a happier life, then I say “Damn right!”

As most people would know, LGBTI youth are far more likely to suffer from depression, to attempt suicide or most tragically to take their own life. And as most people would know, many of these mental health problems stem from their lack of acceptance by friends, family and society at large. Being denied full equality is surely a part of this. As eloquently put by psychologist Paul Martin in the GetUp! ad on 19 November, “until we end institutionalised discrimination, same-sex attracted young people in particular will continue to suffer as a result of the message [of inequality] we are sending them”.

From personal experience, I know the pain of living in an environment which does not accept you. Growing up gay on a farm outside a small town in Queensland, with very conservative parents, and then attending a religious boarding school which made no secret of its disdain for homosexuals, I almost became one of the statistics – it is only through a combination of luck and strong will that I did not take my own life, where so many others have and sadly continue to do so. So I know that, while it would not change the world completely, introducing same-sex marriage would make things just that little bit brighter for young gays and lesbians around the country. And that can only be a positive thing.

You will note that I have excluded some of the other arguments which are commonly employed by some people. For example, I do not have a lot of time for the argument that introducing same-sex marriage will lead to an economic bonanza (that a pink wave of weddings will lead to a boom in related industries) because I think that this trivialises what is fundamentally a question of human rights.

I also do not include the growing acceptance of gay marriage, as evidenced through opinion polls, as a stand-alone justification for its introduction. I think the arguments for the introduction of same-sex marriage described above are so powerful, and the arguments against so weak, that it should be introduced irrespective of its level of community support, whether that be 20, 50 or even 80%. Human rights are human rights, and remain rights even if there is popular opposition to them.

So, we have seen that there are no substantive arguments against equal marriage, and strong arguments for its urgent introduction. Which means that the result should be straight-forward, shouldn’t it?

Civil unions are not the answer and would only be a distraction

I am growing concerned that, later this year, some parliamentarians may try and take the focus away from genuine marriage equality, and instead aim for ‘civil unions’. This worry derives from the fact that civil unions are a red herring which can easily distract otherwise sensible people from the goal of full equality. Superficially, the argument that some people have concerns about the term marriage, so why don’t we give same-sex relationships the same legal rights but call it something else (ie civil unions), is attractive. Everyone wins, right?

Wrong. Civil unions are a compromise that would satisfy no-one. Setting up an entirely new system of relationship recognition for LGBTI Australians would not end discrimination, instead it would perpetuate and entrench it. If we are trying to overcome the treatment of people as second-class citizens we would not give them a second-class relationship category. The principle of ‘separate but equal’ has been comprehensively debunked from Brown v Board of Education of Topeka 1954 onwards. Separate but equal can never be equal.

Civil unions would also only ever be a half-way house. Even in countries which have introduced civil unions as an attempted compromise, the movement for full marriage equality continues – and will likely ultimately succeed. Therefore, the introduction of civil unions here should not be countenanced, whether by people who see it is a useful stepping stone or others who see it as a useful tool to suppress or delay equality. I cannot put it any more bluntly than this – in 2012 nothing short of full equality will do. Other groups do not accept separate but equal status, and lesbian, gay, bisexual, transgender and intersex Australians will not accept second-class status either.

Conclusion

So, as has become clear through-out this submission, there are no strong public policy arguments against equal marriage, and several strong arguments in favour. No-one would be harmed by its introduction, and there are no other valid options except for full equality. So now is the time for our 226 elected representatives to live up to their collective responsibility and just get it done already.

One of the best aspects of this issue is just how easy it is to redress. It would take just one Act of parliament to achieve. There would be no cost involved to the government, and none to the citizen – with the exception of those couples who could then chose to enter into a marriage (a choice which should be theirs alone and not the choice of their parliamentarians to make on their behalf). There are very few times when parliament can do such a purely positive thing, to immeasurably increase the human happiness of their constituents, without any negative or cost. I implore you to take advantage of this opportunity now and not let it wait another 10 or 15 years.

I ask you that, because, on a personal level, I am engaged to a wonderful man and would dearly love to be able to get married in my own country, and to have as many of my family and friends to be there as possible. I met my fiancé Steve 2 weeks after my 30th birthday. I had begun to doubt that I might ever meet the one, and then suddenly there he was, right in front of me. He is the most wonderful partner I could ever imagine, and I love him with all my heart. We have been together for almost four amazing years, through thick and thin, and I hope that other couples, same-sex and opposite sex, have relationships as good as ours.

Steve and I got engaged over two years ago. At some point in the next year or two, we will have our wedding. Obviously, we are both looking forward to the celebration that entails. We have delayed naming the date in the hope that we might be able to do so in Australia, depending on what happens in federal parliament later this year. If marriage equality is passed, then we will be able to have around 100 of our nearest and dearest present with us for our special day.

But, in the event the legislation fails, then we do not see any way that it will be passed in the next five years (at least – and more likely 10). We would obviously not wait for the next Bill, and be engaged for potentially close to a decade, if not longer, but would be forced instead to go overseas and get married in a different country. While some people may think that this is romantic or an adventure, I think that it is profoundly disappointing.

It would mean that many of our friends, and at least some of our family members, will not be able to be there with us (whether that be because they have small children, it costs too much, they cannot take time off work, it is too far etc). Because Steve and I are a ‘normal’ engaged couple – in the sense that we both plan on only having one wedding in our lifetimes – this means that parliamentarians who vote no on marriage equality this year are effectively taking those people away from our ceremony, limiting the amount of people who can be there for our wedding day. I am acutely aware that those lost memories will never, ever be given back.

I hope that this is something which parliamentarians who are considering voting no think about before they cast their vote later this year. In fact, I would welcome the opportunity to be able to discuss the issue of marriage equality, face to face, because I am confident in the power of the arguments for, and in the weakness of the arguments against. However, given I will likely not be able to speak directly with those parliamentarians before the Bill, I would like to conclude my submission with a personal message, and a series of questions, just to them.

A message to the parliamentarians considering voting against marriage equality

To those MPs and Senators who are considering voting against legislation which would introduce marriage equality, I would like to make the following points:

  • Of all the bills which you will vote on in your entire parliamentary career, there will always be a group of people in the community who will judge you according to this particular vote, and whether you stood up for equality and love, or for discrimination and prejudice.
  • If you do not appreciate the characterisation of the issue in that way, then I am sorry, but you are going to have to get used to it. This vote is that simple – either you vote for equality or against, either you believe that lesbian, gay, bisexual, transgender and intersex Australians are first-class citizens, or you think they are inherently second-class.
  • Further, if you vote no on marriage equality, then please do not ever again say that you stand up for lesbian, gay, bisexual, transgender and intersex Australians, or believe that they deserve equal rights. If you do so, we will rightly point out your hypocrisy.
  • Down the track, if your views change and you come to regret your vote, then please do not say that you did not understand what you were doing at the time – the arguments have all been made, and you must be aware by now of the consequences of your actions.

And finally, I would like to leave you with the following questions to contemplate before you vote no:

  1. Have you told all of your gay and lesbian colleagues, staff, friends and family members that you think they are second-class citizens and deserve less legal rights than you?
  2. Have you considered how you are likely to reflect upon this vote in 20 years’ time – will you be proud of your actions in parliament, or will you try and disown them?
  3. Are you comfortable being remembered as someone who stood against the tide of progress, in the same way that we now consider someone who supported apartheid, or who supports discrimination against women or indigenous people?
  4. Will party allegiance or political considerations be enough to make you feel better for having voted against the human rights of your fellow citizens?
  5. Given we all know that marriage equality will eventually be achieved, at some point in the next two decades, what will voting against it this year actually achieve, other than simply delaying the inevitable?
  6. What would you say to an elderly lesbian, whose partner dies between now and when equal marriage is ultimately legalised, but who was never able to legally marry the person they love, at least in part because of your actions?
  7. How would you explain your vote to a mother or father, who simply wants to celebrate their gay son’s wedding, in exactly the same way they have celebrated the wedding of their heterosexual son and/or daughter?
  8. What message do you want to send to a same-sex attracted youth , growing up in a country town and having trouble accepting their sexuality in a society which does not value them as much as their straight peers?
  9. How will you feel, waking up the day after the vote, knowing that your actions have helped to break gay and lesbian hearts rights across the country?
  10. Finally, and most importantly, if you had a gay child or grandchild (or your best friend had a gay child or grandchild) could you honestly explain to them why you thought you were better than them, and that you deserved to have a legal right that they did not, just because you were straight and they were not?