Submission to the WA Law Reform Commission Review of the Equal Opportunity Act 1984

Law Reform Commission

GPO Box F317

Perth WA 6841

Via email: equalopportunityreview@justice.wa.gov.au

Friday 5 November 2021

To the Commission

Submission to Review of the Equal Opportunity Act 1984 (WA)

Thank you for the opportunity to provide this individual submission in response to the Commission’s Discussion Paper as part of this important and long-overdue review.

I do so as a long-standing advocate for the lesbian, gay, bisexual, transgender and intersex (LGBTI) community, and as a leading expert on LGBTI anti-discrimination law in Australia, as demonstrated by my personal website www.alastairlawrie.net

Based on this experience, I submit that the Equal Opportunity Act 1984 (WA) is one of the worst LGBTI anti-discrimination laws in Australia, failing to offer necessary protections to multiple sections of the LGBTI community, across multiple areas.[i]

In this submission, I will provide major comments in relation to three primary areas for reform:[ii]

  • Protected attributes
  • Religious exceptions, and
  • Anti-vilification coverage.

I will then provide some additional comments regarding a number of other issues raised in the Discussion Paper.

Protected Attributes

Gender identity

I welcome the Discussion Paper’s focus on the issue of ‘gender history discrimination and gender identity’ on pages 107 to 109 (although I also note the problematic aspects of this discussion in relation to sex characteristics, which I will address further below).

Western Australia’s anti-discrimination protections for trans and gender diverse people are the narrowest and therefore most limited in Australia.

It is the only jurisdiction to limit anti-discrimination coverage to people who have undergone surgical and/or hormonal gender affirmation treatment, and have also had that gender affirmation recognised by the State (in this case, under the Gender Reassignment Act 2000 (WA)).[iii]

This is because of the combination of three provisions: the definition of gender reassigned person in section 4:

‘gender reassigned person means a person who has been issued with a recognition certificate under the Gender Reassignment Act 2000 or a certificate which is an equivalent certificate for the purposes of that Act’;

the definition of ‘gender history’ in section 35AA:

(1) ‘For the purposes of this Part, a person has a gender history if the person identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex.

(2) In subsection (1)-

opposite sex means a sex of which the person was not a member at birth’;

and the test for discrimination on the protected attribute of ‘gender history’ in section 35AB (and subsequent sections):

(1) ‘For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against a gender reassigned person on gender history grounds if, on the ground of the gender reassigned person having a gender history, the discriminator treats the gender reassigned person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person not thought by the discriminator to have a gender history.’

In my view, there is no justification to limit protections for gender identity-related discrimination to the comparatively small group of people who have had their gender identity recognised by the State, while leaving the much larger group of other trans and gender diverse people without any protections whatsoever.

It is time for Western Australia to remove this limitation, and follow the lead of the Commonwealth Government, and all other states and territories, by removing any link between formal gender recognition and anti-discrimination protection.

A related problem is caused by the definition of ‘gender history’ in section 35AA, which limits protections to people who ‘identify as a member of the opposite sex’ – meaning a person who was assigned female at birth but whose gender identity is male, and vice versa.

Irrespective of the gender recognition restriction (above), this definition itself excludes a wide range of nonbinary and gender diverse people whose gender identities do not neatly fit within this supposed ‘gender binary’.

Unfortunately, in this respect, Western Australia has some company – anti-discrimination coverage in NSW, Queensland and the Northern Territory also excludes nonbinary and gender diverse people.

However, that means all other jurisdictions, including the Commonwealth, Victoria, South Australia, Tasmania and the ACT, have amended their laws to protect nonbinary and gender diverse people.

Once again, I can see no legitimate justification to allow discrimination against nonbinary and gender diverse people on the basis of their gender identity.

It is time for Western Australia to follow the best practice approach of other jurisdictions. The most recent, and not-coincidentally most inclusive, is the definition of gender identity which commenced in the Victoria Equal Opportunity Act 2010 on 26 October 2021:

‘gender identity means a person’s gender-related identity, which may or may not correspond with their designated sex at birth, and includes the personal sense of the body (whether this involves medical intervention or not) and other expressions of gender, including dress, speech, mannerisms, names and personal references’ (section 4).

Finally, I see no justification for why anti-discrimination protections for trans and gender diverse people should apply in fewer areas of public life compared to other protected attributes. The Act should be amended so that the prohibition on discrimination on the basis of gender identity applies in the same areas as race, sex and sexual orientation.

Recommendation 1:

Trans and gender diverse people in Western Australia should be protected against discrimination irrespective of whether their gender identity is formally recognised by the State, and irrespective of whether their gender identity is binary, nonbinary or gender diverse.

This should be achieved by replacing the protected attribute of ‘gender history’ with a protected attribute of ‘gender identity’, and adopting the best practice definition from the Victorian Equal Opportunity Act 2010:

‘gender identity means a person’s gender-related identity, which may or may not correspond with their designated sex at birth, and includes the personal sense of the body (whether this involves medical intervention or not) and other expressions of gender, including dress, speech, mannerisms, names and personal references’.

Prohibitions against discrimination on the basis of gender identity should also apply in the same areas of public life as existing core protected attributes, such as race, sex and sexual orientation.

Sex characteristics

As flagged earlier, perhaps the most disappointing aspect of the entire Discussion Paper is the conflation of the two distinct protected attributes of gender identity and sex characteristics.

In the section ‘Gender history discrimination / gender identity / intersex status’ on pages 107 to 109, it is unclear whether the Discussion Paper’s author(s) understand the differences between trans and gender diverse people, and people with innate variations of sex characteristics (intersex people).

Indeed, the questions posed on page 109 – ‘Should the protections in the Act be expanded beyond the currently defined gender reassigned persons (for example, persons identifying as another sex)? Should there be exceptions? What other legislation is relevant to this provision?’ – do not even ask directly about what attribute should be introduced to protect people with innate variations of sex characteristics against discrimination.

Obviously, I believe that intersex people in Western Australia do require protection against discrimination under the Equal Opportunity Act.

In my view, this should be achieved by introducing a new protected attribute of ‘sex characteristics’, as called for by intersex people and organisations in the March 2017 Darlington Statement, and as reflected in the Yogyakarta Principles plus 10

The terminology ‘sex characteristics’ is best practice, and has been recently introduced in both the ACT and Victoria (with ‘intersex variations of sex characteristics’ covered in Tasmania). Sex characteristics is also preferred compared to older attributes of ‘intersex status’, as protected in the Sex Discrimination Act 1984 (Cth), and in South Australia.

I endorse the definition of sex characteristics proposed by Intersex Human Rights Australia in their submission in response to the Discussion Paper:[iv]

‘sex characteristics means a person’s physical features relating to sex, and includes:

(a) the person’s genitalia and other sexual and reproductive parts of the person’s anatomy; and

(b) the person’s chromosomes; and

(c) the person’s hormones; and

(d) secondary features emerging as a result of puberty.’

Recommendation 2:

People with innate variations of sex characteristics (intersex people) in Western Australia should be protected against discrimination on the basis of who they are.

This should be achieved by introducing a protected attribute of ‘sex characteristics’, based on the wording used in the submission by Intersex Human Rights Australia:

‘sex characteristics means a person’s physical features relating to sex, and includes:

(a) the person’s genitalia and other sexual and reproductive parts of the person’s anatomy; and

(b) the person’s chromosomes; and

(c) the person’s hormones; and

(d) secondary features emerging as a result of puberty.’

Sexual orientation

One issue not addressed at all in the Discussion Paper is the need to update the definition of the protected attribute of sexual orientation.

Currently, section 4 of the Act defines sexual orientation as:

‘in relation to a person, means heterosexuality, homosexuality, lesbianism or bisexuality and includes heterosexuality, homosexuality, lesbianism or bisexuality imputed to the person.’

While this does include people who identify as lesbian, gay and bisexual, it does not expressly include other sexual orientations such as pansexuality. It has also fallen behind the best practice definitions of sexual orientation adopted elsewhere in Australia.

For example, recent amendments to the Victorian Equal Opportunity Act 2010, which commenced on 26 October 2021, define sexual orientation as:

‘means a person’s emotional, affectional and sexual attraction to, or intimate or sexual relations with, persons of a different gender or the same gender or more than one gender.’

The WA Equal Opportunity Act 1984 should be amended in a similar manner to ensure sexual orientations other than lesbian, gay and bisexual – including people identifying as pansexual – are explicitly protected.

Recommendation 3:

People with sexual orientations other than lesbian, gay and bisexual – such as pansexual people – in Western Australia should be protected against discrimination on the basis of who they are.

This should be achieved by modernising the definition of ‘sexual orientation’ in section 4 of the Act, with reference to the best practice definition in the Victorian Equal Opportunity Act 2010:

‘sexual orientation means a person’s emotional, affectional and sexual attraction to, or intimate or sexual relations with, persons of a different gender or the same gender or more than one gender.’

*****

Religious Exceptions

The religious exceptions contained in the Equal Opportunity Act 1984 (WA) are excessive, and do not reflect contemporary community standards. Nor do they respect the right of LGBT people in Western Australia to go about their daily lives, free from discrimination. In employment. In education. In health and community services. In all areas of public life.

For example, section 72 currently provides:

‘Nothing in this Act affects-

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

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

(c) the selection or appointment of persons to perform duties or functions for the purposes of or in connection with, or otherwise to participate in any religious observance or practice; or

(d) 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.’

While there may be some possible justification for sub-sections (a) through (c) (although I would argue (c) needs to be more narrowly drafted), in order to respect the ability of religious bodies to employ, train and appoint people to engage in religious ceremonies, there can be no possible justification for granting religious organisations an effective ‘blank cheque’ to discriminate against people in all areas of public life, and in relation to all protected attributes, including sexual orientation and gender identity.

In this respect, the Western Australian Equal Opportunity Act has fallen well behind best practice, and in particular the approach to religious exceptions adopted by Tasmania 23 years ago.

Under the Tasmania Anti-Discrimination Act 1998, the circumstances in which religious organisations may discriminate are more narrowly constrained. More importantly, such discrimination is only allowed on the ground of religious belief or activity or religious activity, and therefore not on other grounds such as sexual orientation, gender identity or intersex variations of sex characteristics.

Not only is this, in my view, a preferrable accommodation of the legitimate needs of religious organisations to form communities of faith, but it has also operated successfully for more than two decades, thereby setting an example I would strongly encourage Western Australia to follow.

The arguments against allowing religious organisations to discriminate against LGBT people generally are even stronger in relation to LGBT students, teachers and other staff in the context of religious schools.

Under section 73 of the Equal Opportunity Act, religious schools are permitted to discriminate against:

  • LGBT teachers (sub-section (a))
  • LGBT contract workers (sub-section (b)), and
  • LGBT students and/or families (sub-section (c)).

This is unacceptable. LGBT teachers should be free to impart their knowledge, and utilise their skills, in any environment without having to fear that their sexual orientation, gender identity or relationship status will be used to discipline them in, or even dismiss them from, their role. 

LGBT students should also be free to learn without fearing that their place of learning will discriminate against them. The parents of LGBT students, as well as rainbow families with children, should be able to feel confident in sending their children to any school in the knowledge they will not be mistreated because of who they, or their families, are.

Currently, Western Australia’s anti-discrimination laws fall well short of this ideal.

Instead, both in relation to religious exceptions broadly, and in relation to religious schools specifically, I submit that Western Australia should adopt similar provisions to those already successfully operating in the Tasmanian Anti-Discrimination Act 1998, namely:

51. Employment based on religion

(1) A person may discriminate against another person on the grounds of religious belief or affiliation or religious activity in relation to employment if the participation of the person in the teaching, 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 to be conducted in accordance with the tenets, belief, 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.

51A. 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 or the other person’s grandparents.

52. Participation in religious observance

A person may discriminate against another person on the ground of religious belief or affiliation or religious activity in relation to-

(a) the ordination or appointment of a priest; or

(b) the training and education of any person seeking ordination or appointment as a priest; or

(c) the selection or appointment of a person to participate in any religious observance or practice; or

(d) any other act that-

(i) is carried out in accordance with the doctrine of a particular religion; and

(ii) is necessary to avoid offending the religious sensitivities of any person of that religion.

There is obviously a lot of detail in these sections, but one particular point I would like to draw to the Commission’s attention is that it does allow religious schools to discriminate on the basis of religious belief or affiliation or religious activity against students, but only at admission or enrolment, and not post-enrolment.

Preferencing students of a particular religion is a concession to the ability of denominations to form communities of faith in which to educate children. However, the limitation – only allowing discrimination at enrolment and not beyond – is just as important, for two reasons.

First, it allows the child to determine their own religious beliefs as they age. Schools should not be able to discriminate against students who, as they grow older, question the faith of the school, or particular elements of that faith, adopt a different faith, or decide to have no faith at all.

Second, prohibiting discrimination on the basis of religious belief beyond enrolment is a necessary safeguard against religious schools imposing discrimination on the basis of other attributes, including sexual orientation or gender identity, via alternative or indirect routes.

For example, were religious schools permitted to discriminate on the basis of religious belief throughout a student’s education, they could potentially ask students to sign codes of conduct which state that ‘homosexuality is intrinsically disordered’ or that ‘sex is binary and determined at birth’ (thereby erasing trans and gender diverse children).

The school in these circumstances could claim students who refused to sign such a document, and were subsequently punished, were not being discriminated against because of their sexual orientation or gender identity, but because of the specific tenets of the faith of the school. This discrimination would nevertheless inflict the same harmful outcome on LGBT students and should be prohibited.

Indeed, each of the four Australian jurisdictions which have already legislated to protect LGBT students in religious schools against discrimination (Queensland, the Northern Territory and the ACT, in addition to Tasmania) only allow religious schools to discriminate against students on the basis of religious belief, and only at the point of enrolment.

Finally, in relation to religious exceptions, I would like to highlight three alternative approaches to this issue which I would caution against being adopted in the Western Australian Equal Opportunity Act.

First, the Queensland Anti-Discrimination Act 1991, and specifically section 25, establishes what I describe as a ‘Don’t Ask, Don’t Tell’ scheme, whereby religious schools are not allowed to ask teachers about their sexual orientation or gender identity.

However, where LGBT teachers and other staff members are ‘out’, disclose anything about their orientation, identity or relationship status – or ‘openly act in a way that the person knows or ought reasonably to know is contrary to the employer’s religious beliefs’ (sub-section 25(3)(a)) – they can be fired.

Forcing LGBT teachers into the closet in order to teach is inhumane. Compelling them to continually watch over the shoulders, and be ever-vigilant in policing their own sexual orientation and/or gender identity, is intolerable.

Don’t Ask, Don’t Tell was a failed policy in the US military. It is an awful approach under the Queensland Anti-Discrimination Act. And it must not be replicated in Western Australia.

Second, the South Australian Equal Opportunity Act 1984, and specifically section 4, adopts what I consider to be an unsatisfactory approach in allowing discrimination by religious schools against LGBTI teachers, but only where the person discriminated against was provided with a publicly-available policy spelling out this discrimination.

Specifically, subsection 34(3) states:

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.

In my view, the publication of such a policy does not ameliorate the discrimination involved. It does not make discrimination against LGBTI teachers any more acceptable, only more public.

Indeed, attempting to justify such a policy on the basis of ‘transparency’ is akin to suggesting the White Australia Policy was something less than racist because it was written down. Anti-LGBTI prejudice is just as unacceptable when it is published.

Third, the Victorian Government recently proposed amendments to the religious exceptions in their Equal Opportunity Act 2010 (via the Equal Opportunity (Religious Exceptions) Amendment Bill 2021, currently awaiting debate).

While passage of this legislation would result in significant improvements to their anti-discrimination framework, including removing the ability of religious schools to discriminate against LGBT students, teachers and other staff, it also introduces a dichotomy into the Act, establishing different protections in some circumstances based on whether the services being delivered are government funded or not (proposed new section 82B).

Where those services are not government funded – even if they are in the public sphere (such as community services) – religious organisations would retain the ability to discriminate against people accessing those services on the basis of ‘religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity’ (existing section 82(2)).

In my view, the discrimination itself remains unacceptable irrespective of the source of the funds used in its execution. This is both a practical consideration – that the individuals who are discriminated against in this way would suffer adverse and unjustified impacts.

And a normative one. A primary function of anti-discrimination laws is to signal to society what types of discrimination are acceptable, and what types are not. Retaining provisions which explicitly state there will be certain situations in which it is acceptable to discriminate on the basis of sexual orientation or gender identity reinforces negative anti-LGBT attitudes. 

In this way, while a large step forward, the proposed Victorian amendments still fall short of the best practice Tasmanian approach.

Recommendation 4:

Lesbian, gay, bisexual and transgender people in Western Australia should be protected against discrimination by religious organisations, both in employment and in relation to access to services.

This should include protection for LGBT students and their families, and for teachers and other staff members, in relation to religious schools and other religious educational institutions.

Where discrimination by religious schools is allowed in relation to students, this must be limited to the ground of religious belief or activity, and must not be legally permitted beyond enrolment.

This should be achieved by using the best practice provisions of the Tasmanian Anti-Discrimination Act 1998 – and specifically sections 51, 51A and 52 – as a starting point.

*****

Anti-Vilification Protections

I welcome the Discussion Paper’s focus on the issue of anti-vilification protections, from page 150 onwards, including acknowledgement that in Western Australia, only racial harassment and some aspects of racial vilification are prohibited, and not general vilification on the basis of other protected attributes.

In my view, this is a significant weakness of the Equal Opportunity Act 1984 (WA), especially given the ongoing high levels of anti-LGBTI harassment and hate speech in the community.

It also means that, in yet another core area of anti-discrimination legislation, Western Australia has fallen behind the standard set by other jurisdictions.[v]

Specifically, Tasmania and the ACT both prohibit vilification against all parts of the lesbian, gay, bisexual, transgender and intersex community.

Meanwhile, Queensland prohibits vilification against lesbian, gay, bisexual and some transgender people (those with binary gender identities), but does not prohibit vilification against nonbinary people or people with innate variations of sex characteristics.

Finally, NSW provides different parts of the LGBTI community with different levels of protection – all LGBTI people are protected by the Crimes Act 1900 (NSW) offence of publicly threatening or inciting violence (section 93Z), but only lesbian, gay and some transgender people (those with binary gender identities) are able to access civil anti-vilification protections under the Anti-Discrimination Act 1977 (NSW).

Importantly, it should be noted that the Victorian Government recently committed to extending its own vilification protections to cover sexual orientation, gender identity and sex characteristics, meaning a clear majority of Australian jurisdictions have already, or will soon, cover the LGBTI community against vilification either in part or in full.

In my view, LGBTI people in Western Australia should also be protected against vilification by the introduction of explicit vilification protections in the Equal Opportunity Act 1984. These should cover the protected attributes of:

  • sexual orientation
  • gender identity, and
  • sex characteristics

as defined earlier in this submission.

Recommendation 5:

Lesbian, gay, bisexual, transgender and intersex (LGBTI) people in Western Australia should be protected against vilification.

This should be achieved by the inclusion of prohibitions on vilification within the Equal Opportunity Act 1984 which cover (at least):

  • sexual orientation
  • gender identity, and
  • sex characteristics.

In terms of what form these provisions should take, I believe the Tasmanian Anti-Discrimination Act 1998 demonstrates best practice in this area.

Specifically, Tasmania adopts a bifurcated approach. Section 17(1) provides that:

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

While section 19 states that:

‘A person, by a public act, must not incite hatred towards, serious contempt for, or severe ridicule of, a person or a group of persons on the ground of-

(a) the race of the person or any member of the group; or

(b) any disability of the person or any member of the group; or

(c) the sexual orientation or lawful sexual activity of the person or any member of the group; or

(d) the religious belief or affiliation or religious activity of the person or any member of the group; or

(e) the gender identity or intersex variations of sex characteristics of the person or any member of the group.’

This approach – a broad-based prohibition on conduct which offends, humiliates, intimidates, insults or ridicules, supplemented by a narrower prohibition on the even more serious acts of inciting hatred, serious contempt or severe ridicule – ensures that all types of behaviour which should be banned are in fact covered.

Recommendation 6:

LGBTI people in Western Australia should enjoy both broad-based protections against conduct which offends, humiliates, intimidates, insults or ridicules, as well as narrower protections against conduct which incites hatred, serious contempt or severe ridicule.

This should be achieved by adopting the bifurcated model of the Tasmanian Anti-Discrimination Act 1998, and specifically sections 17(1) and 19 of that legislation.

I note that the Discussion Paper asks the following questions on page 153:

Should or how may vilification provisions address concerns about the impact on other rights and exemptions under the Act?

and

Should or how may vilification provisions address concerns around the loss of freedom of speech?

In response, I would like to highlight that we are talking about harmful speech, objectively-determined (the test in section 17(1) of the Tasmanian Anti-Discrimination Act provides that it must be ‘in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated, intimidated, insulted or ridiculed’).

It is not a question of how the victim of such harmful speech feels, but about whether such harmful speech would be seen by others as causing offence, humiliation, intimidation, insult or ridicule.

Having said that, Tasmania, like all other jurisdictions which have adopted prohibitions on vilification, does provide an exception for speech which is for a public purpose. Section 55 of the Anti-Discrimination Act 1998 (Tas) states:

‘The provisions of section 17(1) and section 19 do not apply if the person’s conduct is-

(a) a fair report of a public act; or

(b) a communication or dissemination of a matter that is subject to a defence of absolute privilege in proceedings for defamation; or

(c) a public act done in good faith for-

(i) academic, artistic, scientific or research purposes; or

(ii) any purpose in the public interest.’

These carve-outs are relatively broad, especially sub-section 55(c)(ii), and would seem to provide adequate and appropriate balance in the interests of free speech where that speech is in good faith and for a public purpose.

I should note that some other jurisdictions go slightly further. For example, civil vilification prohibitions in NSW include the following carve-out (taken from section 49ZT(2)(c) of the Anti-Discrimination Act 1977, which deals with homosexual vilification):

‘a public act, done reasonably and in good faith, for academic, artistic, religious instruction, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.’

I do not support the express inclusion of ‘religious instruction’ in this context. There does not appear to be a legitimate reason why religious instruction should be elevated above other ‘public purposes’ in this way (noting that it is already exempt under the Tasmanian provisions where it is ‘done in good faith for any purpose in the public interest’). 

Indeed, there was an attempt in 2016 and 2017 to amend the Tasmanian Anti-Discrimination Act in a similar way, which was thankfully defeated by their Legislative Council.

In my view, section 55 of the Tasmanian Act remains the best attempt to ensure that harmful speech is prohibited while legitimate speech is allowed.

Recommendation 7:

In order to ensure legitimate speech continues to be allowed, there is a need to introduce a provision exempting conduct which is done in good faith and for a public interest purpose.

This should be achieved by adopting the best practice exemption found in section 55 of the Tasmanian Anti-Discrimination Act 1998:

‘The provisions of section 17(1) and section 19 do not apply if the person’s conduct is-

(a) a fair report of a public act; or

(b) a communication or dissemination of a matter that is subject to a defence of absolute privilege in proceedings for defamation; or

(c) a public act done in good faith for-

(i) academic, artistic, scientific or research purposes; or

(ii) any purpose in the public interest.’

*****

Other Issues

Removing Barriers to Identity Documentation for Trans and Gender Diverse People

The current restriction of anti-discrimination protections in the Act to ‘gender reassigned persons on gender history grounds’ inevitably raises the issue of lack of access to identity documentation, including birth certificates, for trans and gender diverse people.

Even if, as recommended earlier, a new protected attribute of gender identity replaces gender history, there is still an urgent need to remove barriers to this documentation.

Indeed, the terms of the Gender Reassignment Act 2000 (WA) make Western Australia the third worst jurisdiction in Australia for trans and gender diverse people to access birth certificates reflecting their gender identity.[vi]

The only reason it is not equal worst, with NSW and Queensland, is because the High Court decision in AB v Western Australia; AH v Western Australia [2011] HCA 42 removed the requirement for genital surgery – although there remains a requirement for physical treatment of some kind.

In this way, the approach to this issue in Western Australia falls a long way behind the best practice of other jurisdictions, a fact acknowledged by the WA Law Reform Commission previously in its ‘Review of Western Australian legislation in relation to the registration or change of a person’s sex and/or gender and status relating to sex characteristics’ (Project 108). The final report of that review recommended both that:

‘The Gender Reassignment Act 2000 (WA) and Gender Reassignment Regulations 2001 (WA) be repealed’ (Recommendation 10), and

‘The Births, Deaths and Marriages Registration Act 1998 (WA) be amended to provide an administrative process to change the gender classification on a Gender Identity Certificate’ (Recommendation 11).

From my perspective, legislation which provides trans and gender diverse people access to identity documents, including birth certificates, that reflect their gender identity, should meet at least the following three principles:[vii]

  1. Access to amended identity documentation must not depend on surgery or other medical treatments
  2. Access to amended identity documentation must not depend on approval by doctors or other medical professionals, and
  3. Access to amended identity documentation should be granted on the basis of self-identification, through a statutory declaration.

Currently, only one Australian jurisdiction’s birth certificate framework satisfies these criteria: the Tasmanian Births, Deaths and Marriages Registration Act 1999, which – following amendments in 2019 – now allows for complete self-identification of gender identity.[viii]

In modernising its approach to identity documentation, Western Australia should therefore follow the best practice example of Tasmania.

Recommendation 8:

Trans and gender diverse people in Western Australia should be able to access identity documents, including birth certificates, that reflect their gender identities, without the need for surgery or other medical treatments, and without doctors or other medical professionals playing the role of gate-keeper. Access to identity documents should be based on self-identification alone.

This should be achieved by adopting the best practice provisions of the Tasmanian Births, Deaths and Marriages Registration Act 1999.

Prohibiting Coercive Surgeries and Other Medical Treatments on People with Innate Variations of Sex Characteristics

Earlier in this submission, I called for the inclusion of a new protected attribute of sex characteristics, to ensure that people with innate variations of sex characteristics are protected against discrimination in all areas of public life.

While the introduction of this attribute would be an important step towards recognition of the human rights and dignity of intersex people, it is not nearly as important as ending what I consider to be the greatest violation of LGBTI rights in Australia: the ongoing performance of coercive surgeries and other involuntary medical treatments on people with innate variations of sex characteristics, and especially intersex children.

I therefore fully endorse the recommendation made by Intersex Human Rights Australia in its submission to the current consultation, that:[ix]

‘Protections from harmful practices in medical settings

In line with evolving best practice, as described in public commitments and action in the Australian Capital Territory and Victoria, and in line with recommendations of UN Treaty Bodies to Australia, we recommend that the Western Australian government enact separate protections from harmful practices in medical settings for people with innate variations of sex characteristics.’

Recommendation 9:

People with innate variations of sex characteristics in Western Australia should be legally protected from harmful practices in medical settings. Prohibitions on these practices should be developed in partnership with the intersex community and its representatives, including Intersex Human Rights Australia.

Prohibiting Conversion Practices

I welcome the Discussion Paper’s inclusion of a section on the prohibition of sexual orientation and gender identity conversion practices (on page 193).

In my view, such practices constitute psychological torture, and should be prohibited in all settings, including religious environments. This should apply irrespective of whether the person undergoing this torture is a minor or an adult (on the basis that it is not possible to give ‘informed consent’ to torture).

As to the question of whether Western Australia should adopt the models already in place in Queensland, the ACT, or Victoria, a combination of these approaches, or a new approach – and therefore whether this prohibition should be included in the Equal Opportunity Act or elsewhere – I defer to the views of survivors of conversion practices, and encourage the Commission to consult directly with the Brave Network and other survivor organisations.

Recommendation 10:

Lesbian, gay, bisexual and transgender people in Western Australia should be protected against sexual orientation and gender identity conversion practices. Prohibitions on these practices should be developed in partnership with survivors of these practices and their representatives, including the Brave Network.

Long Title and Objects Clause

Both the Long Title of the Act, and the Objects Clause (in section 3), should be updated to reflect improvements recommended above. This includes:

  • Replacing gender history with gender identity
  • Removing limitations in relation to gender identity (ie removing the qualifier ‘in certain cases’)
  • Adding sex characteristics, and
  • Updating sub-section 3(d) to provide that ‘to promote recognition and acceptance within the community of the equality of persons…’ applies to all protected attributes, including gender identity and sex characteristics.

This last change to the objects should also be reflected in the substantive provisions of the Act. For example, section 35ZD of the of Act currently provides an exemption covering ‘measures intended to achieve equality’ for people on the basis of sexual orientation:

‘Nothing in Division 2 or 3 renders it unlawful to do an act a purpose of which is-

(a) to ensure that persons of a particular sexual orientation have equal opportunities with other persons in circumstances in relation to which provisions is made by this Act; or

(b) to afford persons of a particular sexual orientation access to facilities, services or opportunities to meet their special needs in relation to employment, education, training or welfare.’

There is no equivalent provision in relation to gender identity – but there should be.

Interpretive Provision

I note the discussion of a possible interpretive provision on pages 104 to 106 of the Discussion Paper. This includes an interpretive provision proposed by Christian Schools Australia on page 105.

This interpretive provision appears to be taken directly from the One Nation Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020 in NSW – and it should be rejected for the same reasons it should be rejected in NSW, too.

This is best explained by looking at the Explanatory Memorandum for the One Nation Bill, and in particular the example of the Jewish employer of a publisher:

‘As for the remaining provisions of the Act, section 22L must be interpreted in accordance with new section 3 [the interpretive provision proposed by Christian Schools Australia], Principles of Act. In particular, the Siracusa Principles apply the requirement that limitations on religious manifestation must ‘pursue a legitimate aim and be proportionate to that aim’. The following example assists in clarifying this intended operation.

Example: A Satanist requests that a publisher prints material that promote the teachings of Satanism. A Jewish employee of the publisher requests that she not be required to facilitate the order. Having fundamental regard to the International Covenant on Civil and Political Rights and the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, it would not be necessary or proportionate, for the employer to require her involvement in the order where alternative employees who do not have a genuine religious objection are available to facilitate the order. Similarly, it would not be necessary or proportionate for the employer to require her involvement in the order where alternative publishers are reasonably available to facilitate the order. In both of these cases, for the employer to require her involvement in the order would use ‘more restrictive means than are required’. In addition, to require such conduct would not be compatible with the international instruments stated at section 3.’

As I wrote in the Sydney Morning Herald last October,[x] this outcome is perverse, and creates more rather than less discrimination:

‘[A]n employee can refuse to perform the core component of their role (in this case, publishing materials) solely on the basis of their personal religious beliefs, even if this means sending the customer’s business to a competitor.

This would give employees the right to veto the decisions of their employer, including what goods and services are offered and to whom.

And what of the customer? In this example, they are turned away by the publisher because their religious belief does not accord with that of the employee, which is surely the type of discrimination that should be prohibited under a genuine Religious Discrimination Bill.

It’s important also to get a sense of how far this would go. If this is how the bill is intended to operate, employees may refuse to provide goods or services to a wide range of people because of the employee’s religious beliefs: not just to people from different religions, or no religion, but to single parents, unmarried couples, women, people with disability and lesbian, gay, bisexual, transgender or intersex people, among others.

Importantly, from the customer’s perspective, there is no way of knowing in advance whether a particular business will refuse to serve them. Based on the scenario set out in the explanatory notes, any commercial busines could turn away any customer based on the religious beliefs of an individual worker. That is a recipe for chaos.

And it will leave employers around the state in an invidious position: either they compel their employee to perform the inherent requirements of their job and risk the employee claiming discrimination on the basis of religious belief, or they refuse to provide goods and services to customers on the basis of who they are and guarantee not just loss of income, but risk a discrimination complaint for the customer instead.

It’s an unholy mess.’

Western Australia must avoid making the same mistakes as the extreme and unprecedented Bill proposed by One Nation in NSW, where one human right (‘religious freedom’) is prioritised over and above other human rights, including what is the fundamental purpose of anti-discrimination laws: the right to live free from discrimination.

Interpretive provisions which single out ‘religious freedom’ must therefore be rejected.

Additional Protected Attributes

I would like to express my in-principle support for the inclusion of additional protected attributes within the Equal Opportunity Act, particularly where those attributes may be disproportionately relevant to the LGBTI community. These include:

  • Lawful sexual activity (discussed on page 123), and
  • Irrelevant medical record (discussed on page 121).

In terms of this latter attribute, I also endorse the recommendation made by Intersex Human Rights Australia in their submission to the current inquiry that:[xi]

‘In line with best practice international developments and recommendations for Australian jurisdictions, we recommend that the Western Australian government prohibit genetic discrimination in insurance and employment.’

Finally, I support the inclusion of a new protected attribute of ‘irrelevant criminal record’ (as discussed on page 120). I note the Discussion Paper’s acknowledgement there are already some protections for ‘expunged homosexual convictions’ in relation to work as created by the Historical Homosexual Convictions Expungement Act 2018 (WA).

While I believe expunged homosexual convictions would likely fall within irrelevant criminal record – and therefore be protected against discrimination in areas beyond work – this should include clarification that expunged homosexual convictions will always be ‘irrelevant’.

This is in recognition of the fact such convictions are solely the product of state-sponsored homophobia, biphobia and transphobia, and should never have constituted offences in the first place.

Definition of Religious or Political Conviction

I note the Discussion Paper considers whether to add a definition in relation to the existing protected attribute of ‘religious or political conviction’.

As part of this Discussion, an overly-expansive, and in my view, entirely-inappropriate definition for religion is provided by Christian Schools Australia (see page 122). In fact, this definition appears to be taken directly from the One Nation Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020 in NSW.

This would introduce an unnecessarily vague test for determining whether something constitutes religious belief or activity. It would be almost impossible to apply in practice, and should be rejected.

Instead, I submit that, should the Commission recommend the inclusion of definitions for political conviction and religious conviction, it should do so on the basis of the definitions in the ACT Discrimination Act 1991, namely:

‘political conviction includes-

(a) having a political conviction, belief, opinion or affiliation; and

(b) engaging in political activity; and

(c) not having a political conviction, belief, opinion or affiliation; and

(d) not engaging in political activity.’

‘religious conviction includes-

(a) having a religious conviction, belief, opinion or affiliation; and

(b) engaging in religious activity; and

(c) the cultural heritage and distinctive spiritual practices, observances, beliefs and teachings of Aboriginal and Torres Strait Islander people; and

(d) engaging in the cultural heritage and distinctive spiritual practices, observances, beliefs and teachings of Aboriginal and Torres Strait Islander peoples; and

(e) not having a religious conviction, belief, opinion or affiliation’ and

(f) not engaging in religious activity.’

Discrimination in Provision of Goods and Services Where Motivated by Religious Belief

While on the subject of religious belief, I would like to express my strong opposition to any proposal to allow individuals and businesses to refuse to provide goods and services, including on the basis of sexual orientation and gender identity, where that refusal is motivated by religious belief (as discussed on page 173).

Such a proposal would allow significant new discrimination against LGBT people individually, and LGBT couples. This discrimination would also be unpredictable in its operation – LGBT people going about their everyday life would know that any potential interaction could involve being lawfully discriminated against because of how they identity, or who they love.

The introduction of a new ‘exception’ of this kind would seriously undermine the purpose of having an anti-discrimination law in the first place, and should be categorically rejected.

*****

Thank you in advance for your consideration of this submission. Please do not hesitate to contact me, at the details supplied below, should you require additional information.

Sincerely

Alastair Lawrie


Footnotes:

[i] For a comparative analysis of LGBTI anti-discrimination laws across Australia, please see: ‘A Quick Guide to Australian LGBTI Anti-Discrimination Laws. https://alastairlawrie.net/2017/07/29/a-quick-guide-to-australian-lgbti-anti-discrimination-laws/

[ii] These three areas draw from my article about the WA legislation: ‘What’s Wrong With Western Australia’s Equal Opportunity Act 1984?’ https://alastairlawrie.net/2016/10/23/whats-wrong-with-western-australias-equal-opportunity-act-1984/

[iii] While the definition of ‘recognised transgender person’ in section 4 of the NSW Anti-Discrimination Act 1977 is similarly restrictive, the interpretive clause in section 38A makes it clear that NSW anti-discrimination protections apply to transgender people with binary gender identities irrespective of whether their gender identity has been recognised by the State.

[iv] Intersex Human Rights Australia, Submission to the WA Law Reform Commission on Anti-Discrimination Law Reform, 13 October 2021, available at: https://ihra.org.au/39075/walrc-anti-discrimination-2021/

[v] For a comparative analysis of LGBTI anti-vilification laws across Australia, please see: ‘Did You Know? Most Australian Jurisdictions Don’t Prohibit Anti-LGBTI Vilification’. https://alastairlawrie.net/2020/06/01/did-you-know-most-australian-jurisdictions-dont-prohibit-anti-lgbti-vilification/

[vi] For a comparative analysis of birth certificate legislation across Australia, please see: ‘Did You Know? Trans People in NSW and Queensland Still Require Surgery to Update Their Birth Certificates’. https://alastairlawrie.net/2020/05/02/did-you-know-trans-people-in-nsw-and-queensland-still-require-surgery-to-update-their-birth-certificates/

[vii] As articulated in this post from my website: ‘Identity, Not Surgery’. https://alastairlawrie.net/2018/07/17/identity-not-surgery/

[viii] The approach in Victoria, via the Births, Deaths and Marriages Registration Amendment Act 2019, comes close, including that it removes requirements for medical treatment, and removes medical gatekeepers to accessing new identity documents. However, it does not fully satisfy the criteria of self-determination, because under section 30A, an applicant must include a ‘supporting statement’ from another person who both ‘believes that the applicant makes the application to alter the record of the sex of the applicant in good faith, and supports the application.’

[ix] Intersex Human Rights Australia, Submission to the WA Law Reform Commission on Anti-Discrimination Law Reform, 13 October 2021, available at: https://ihra.org.au/39075/walrc-anti-discrimination-2021/

[x] Alastair Lawrie, ‘Religious discrimination bill will create an unholy mess’, Sydney Morning Herald, 26 October, 2020, available here: https://www.smh.com.au/national/nsw/religious-discrimination-bill-will-create-an-unholy-mess-20201022-p567jx.html

[xi] Intersex Human Rights Australia, Submission to the WA Law Reform Commission on Anti-Discrimination Law Reform, 13 October 2021, available at: https://ihra.org.au/39075/walrc-anti-discrimination-2021/

Letter to WA Political Parties re Anti-Discrimination and Birth Certificate Reform

The writs for the Western Australian state election will be issued at 6pm today (3 February 2021). The upcoming poll, on Saturday 13 March, is an opportunity to make long-overdue progress on a range of important policy issues affecting the lesbian, gay, bisexual, transgender and intersex (LGBTI) community.

As with elections last year in the Northern Territory, Australian Capital Territory and Queensland, I am writing to political parties contesting the WA election asking for their commitments on LGBTI law reform.

While there are a variety of different policy issues that must be addressed, my letter focuses on two areas where I have the most expertise:

  • Reform of the Equal Opportunity Act 1984 (WA),[i] and
  • Changes to identity documentation for trans and gender diverse people.[ii]

This letter has been sent to the leaders of the WA Labor Party, Liberal Party and National Party, as well as to all MLCs from other parties: The Greens; One Nation; Liberal Democrats; Shooters, Fishers and Farmers; and Western Australia Party. As with previous elections, I will post any responses I receive from these parties below.

*****

Given the upcoming Western Australian state election, I am writing to ask about your Party’s positions on two important issues for the lesbian, gay, bisexual, transgender and intersex (LGBTI) community.

I do so as a long-term advocate for the LGBTI community, including via my website www.alastairlawrie.net where I focus on anti-discrimination and anti-vilification law reform around Australia, among other topics.

The first issue I would like to ask about is reform of the Equal Opportunity Act 1984 (WA), which is necessary to address its serious shortcomings in relation to discrimination against and vilification of LGBTI people in Western Australia. Specifically:

  1. Will you protect intersex people against discrimination by introducing a new protected attribute of ‘sex characteristics’?
  2. Will you protect all trans and gender diverse people against discrimination by replacing the current inappropriate, ineffective and outdated protected attribute of discrimination against ‘a gender reassigned person on gender history grounds’ with a protected attribute of ‘gender identity’?
  3. Will you protect LGBT students, teachers and other staff at religious schools against discrimination by removing the special privileges which currently allow them to discriminate?
  4. Will you protect LGBT employees at, and people accessing services from, religious organisations in health, housing and other community services against discrimination by amending religious exceptions generally, based on the best practice approach in Tasmania’s Anti-Discrimination Act 1998?
  5. Will you protect LGBTI people against hate speech by introducing prohibitions on vilification on the basis of sexual orientation, gender identity and sex characteristics?

The second issue I would like to ask about is access to identity documentation, including birth certificates, for trans and gender diverse people, which is another area where Western Australia’s legislative approach has fallen far behind most other jurisdictions. Specifically:

  1. Will you allow trans and gender diverse people to update their birth certificates and other identity documents without requiring surgery, other medical treatments or counselling?
  2. Will you allow trans and gender diverse people to update their birth certificates and other identity documents based on self-identification alone?
  3. Will you allow trans and gender diverse people to update their birth certificates and other identity documents by identifying as male, female, non-binary or ‘other, please specify’, in line with recent reforms in both Tasmania and Victoria?

Thank you in advance for your prompt consideration of this request. Please note that any answers provided will be published via my website, to assist LGBTI people in Western Australia make an informed choice on Saturday 13 March.

Please do not hesitate to contact me, at the details provided, should you require clarification of the above.

Sincerely

Alastair Lawrie

*****

Update: 13 February 2021

During the week, I received the first formal Party response to the above correspondence, from the WA Greens. Their commitments are reproduced below:

Dear Alastair

Thank you for your email to WA Greens MPs.

I am pleased to advise that the Greens are committed to removing discrimination on the grounds of gender identity or sexuality from all federal and state laws. We want the process for legal recognition of gender in Western Australia to be simplified and for Western Australian birth certificates to have an X gender marker, in line with most of the rest of Australia.

The Greens (WA) will encourage and support legislation and actions that ensure that intersex and transgender people, without undertaking surgeries, are able to alter their sex on all official documents, consistent with how they live and identify, and irrespective of their marital status.

As the Member for the North Metropolitan Region and Greens (WA) spokesperson I have been a long term advocate in this space. In 2018 I introduced a Private Members Bill into the WA Legislative Council, the Equal Opportunity (LGBTIQ Anti-Discrimination) Amendment Bill 2018, seeking to end discrimination against LGBTIQ parents, students and staff by religious schools. Disappointingly, this bill has not received the support necessary from other political parties for it to be passed and to become law.

The Greens will continue to fight to remove all exceptions in the Equal Opportunity Act that permit discrimination against people on the basis of their gender identity and/or sexuality.

If you would like more information, the Greens (WA) Sexuality & LGBTQIA+ Issues and Gender Identity policies provide more information about our party’s commitments in these areas.

The Greens have also proposed a WA Charter of Rights to provide further protections against rights-based infringements including discrimination.

Thank you for your interest and advocacy in this important area.

Kind regards

Alison

Hon Alison Xamon MLC (BA, LLB, Cert IV HS, Cert Adv Arb)

Member for the North Metropolitan Region, Legislative Council, Parliament of Western Australia

*****

Update: 25 February 2021

On Tuesday (23 February 2021), I received the following reply from the Leader of the WA Nationals, Mia Davies, which, as you will see, does not give specific commitments on either LGBTI anti-discrimination law reform or improved access to birth certificates for trans and gender diverse people – other than that Nationals MPs would be granted conscience votes on both issues.

Dear Mr Lawrie

2021 STATE ELECTION: LGBTI LEGISLATIVE REFORM

Thank you for your correspondence dated 3 February 2021. I appreciate your advocacy in relation to LGBTI legislation and the need for reform.

One of the founding principles of The Nationals WA is that regional West Australians deserve access to relevant services and protections against discrimination, regardless of their postcode. As you would be aware the day-to-day issues faced by LGBTI people are often exacerbated by remoteness and isolation from services and support networks.

If legislation to resolve the issues raised was introduced to Parliament, voting on it would be a matter of conscience for Members of The Nationals WA team. I encourage you to send your questions to each local candidate in The Nationals WA team for their individual responses. Their details can be found on our website http://www.nationalswa.com/

Although not specific to LGBTI individuals and families, The Nationals WA have made the following election commitments to date which may be of interest:

-$15 million for an office of the State Rural Health Commissioner, to complement the work done at a national level. This office would be independent of Government, providing advice and reporting on rural and regional health concerns.

-$140 million for regional mental health services, including demographically targeted funding for regional community support hours.

Further details on these and other election commitments can be found on our website.

Yours sincerely

Hon Mia Davies MLA

LEADER

Footnotes:


[i] For example, see What’s wrong with Western Australia’s Equal Opportunity Act 1984?  and A Quick Guide to Australian LGBTI Anti-Discrimination Laws.

[ii] For example, see Identity, Not Surgery and Did You Know? Trans People in NSW and Queensland Still Require Surgery to Update Their Birth Certificates.

Submission re: South Australia’s Equal Opportunity (Religious Bodies) Amendment Bill 2020

22 November 2020

Attorney-General’s Department

Legislative Services

GPO Box 464

Adelaide SA 5001

Via email: LLPSubmissions@sa.gov.au

To whom it may concern

Submission re: Equal Opportunity (Religious Bodies) Amendment Bill 2020

Thank you for the opportunity to provide a submission on the draft Equal Opportunity (Religious Bodies) Amendment Bill 2020.

I do so as a long-term advocate for the rights of the lesbian, gay, bisexual, transgender and intersex (LGBTI) community, and as someone with particular expertise in anti-discrimination legislation, including comparative analysis of LGBTI anti-discrimination protections across Australia.[i]

First, I welcome the intention of the draft legislation, which is to narrow the scope of the excessive and extreme religious exceptions currently found in section 50 of the Equal Opportunity Act 1984 (SA). These exceptions allow religious organisations to discriminate against LGBTI South Australians in a wide range of everyday situations, causing direct and significant harm to a vulnerable population.

Second, I particularly welcome proposed section 50(1)(c)(ix), which would have the effect of protecting LGBTI students in religious schools against discrimination on the basis of who they are. This protection is long overdue, with change in South Australia made necessary because of the failure of the Morrison Government to deliver on his October 2018 promise to prohibit such discrimination under the Sex Discrimination Act 1984 (Cth).[ii]

However, while passage of this legislation would represent an improvement in terms of the rights of LGBTI South Australians to participate in public life without fear of discrimination, I would like to highlight three major problems with the Bill as drafted:

  1. The scope of areas where LGBTI people will be protected – or not

The draft Equal Opportunity (Religious Bodies) Amendment Bill 2020 effectively creates a ‘carve-out’ from the general religious exception found in section 50(c)[iii] of the Equal Opportunity Act 1984 (SA) so that it does not apply in relation to certain areas of public life.

This approach appears to be based on section 37(2) of the Sex Discrimination Act 1984 (Cth), which provides that the general religious exception in section 37(1) of that Act does not allow aged care services operated by religious organisations to discriminate against LGBT people accessing those services (although, disappointingly, it continues to allow religious aged care services to discriminate against LGBT employees).

It is encouraging that the draft South Australian Bill extends this carve-out to a wider range of areas of public life, including:

  • Children’s education
  • Health care and disability support
  • Aged care
  • Emergency accommodation
  • Public housing, and
  • Foster care placement.

In another welcome development, the carve-out also applies to employees in these areas (other than in relation to educational institutions, an issue which is discussed further below).

However, the carve-out approach has inherent limitations. In particular, the boundary between areas of public life where LGBTI people will be protected, and those where they will not, may appear arbitrary and difficult to justify.

For example, while proposed sections 50(1)(c)(ix) and 50(1)(c)(x) mean that religious pre-schools, primary schools and secondary schools will not be able to discriminate against LGBTI students, the absence of a similar carve-out for tertiary education means that religious universities will nevertheless still be able to discriminate against LGBTI students.

In an environment when many university-age students are exploring and ultimately affirming their sexual orientation and/or gender identity, I do not believe it is acceptable to allow religious universities to discriminate against those students simply because of who they are (and especially where religious universities use public funds to do so).

In a similar way, while it is pleasing that emergency accommodation services operated by religious organisations will not be able to turn away LGBTI people in need of their assistance, it seems arbitrary that other essential service providers (such as food services or other forms of welfare support)[iv] will be able to reject people on the basis of their sexual orientation, gender identity or intersex status.[v]

Finally, proposed section 50(1)(c)(i) would ensure that religious foster care agencies will not be able to discriminate against LGBTI people (including employees, potential foster carers and children being placed). However, the absence of a similar provision in relation to adoption agencies presumably means that religious organisations providing that particular service will be able to discriminate in this way.

This double-standard – where rainbow families are ‘good enough’ to be foster carers, but can still be rejected as adoptive parents just because of who they are – cannot be justified.

Therefore, if the carve-out approach is retained, in my view it should at a minimum be extended to include tertiary education, broader welfare services and adoption agencies.

Recommendation 1: If the ‘carve-out’ approach in section 50(1)(c) of the draft Bill is retained, the following areas of public life should be added:

  • Tertiary education
  • Welfare services generally, and
  • Adoption agencies.

2. The ongoing ability of religious organisations to discriminate on the basis of gender identity, sexual orientation and intersex status

I have framed the above recommendation in a qualified manner because I believe the ‘carve-out’ approach is itself problematic. That is because, in any area of public life that is not listed in section 50(1)(c), religious organisations will continue to be permitted to discriminate on the basis of gender identity, sexual orientation and intersex status, including in terms of who they employ and who they provide their services to.

This will obviously have a negative impact on LGBTI South Australians by restricting their ability to participate in public life without fear of discrimination. And it falls well below the best practice approach to religious exceptions, which has been adopted in the Anti-Discrimination Act 1998 (Tas), and in a more limited way the Discrimination Act 1991 (ACT).[vi]

The Tasmanian ‘gold standard’ allows religious organisations to discriminate – but only on the basis of religious belief or activity, and not on other grounds, such as sexual orientation, gender identity or intersex variations of sex characteristics.

For example, section 51 allows religious organisations to discriminate in employment in the following way:

(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 teaching, observance or practice of a particular religious 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.

Section 51A then allows discrimination on the ground of religious belief or affiliation or religious activity in relation to enrolment at religious educational institutions (although not after the point of admission), while section 52 allows discrimination by religious organisations on the ground of religious belief or affiliation or religious activity in relation to ‘participation in religious observance’.[vii]

From my perspective, this is a fairer way in which to allow religious organisations to prioritise people from their own faith, while not infringing upon the rights of others – including LGBTI people – to live their lives free from discrimination.

I strongly urge the South Australian Government to improve the proposed Equal Opportunity (Religious Bodies) Amendment Bill 2020 by moving to a model where religious organisations are only allowed to discriminate on the basis of religious belief or activity, and not in relation to other protected attributes, including gender identity, sexual orientation and intersex status.

Recommendation 2: The South Australian Government should consider adopting the Tasmanian best practice approach to religious exceptions, allowing religious organisations to discriminate on the basis of religious belief and activity, but not in relation to other protected attributes including gender identity, sexual orientation and intersex status.

3. The ongoing ability of religious schools and universities to discriminate against LGBTI teachers, lecturers and other staff

The final, and arguably most important, problem with the Equal Opportunity (Religious Bodies) Amendment Bill 2020 is something it does not do – it does not remove the ability of religious education institutions (including schools and universities) to discriminate against LGBTI teachers, lecturers and other staff (which is currently permitted under section 34(3) of the Equal Opportunity Act 1984 (SA)).

In my view, this exception is unacceptable, for several reasons.

First, it is unfair on LGBTI teachers, lecturers and other staff. They may be the best qualified person for a job, but they can be denied employment (or, where they already work for a religious school or university, fired), on the basis of something which has no connection to their ability to perform the role. This is especially egregious given the large amounts of public funding provided to these institutions.

Second, it is unfair to students generally – who are denied being taught by the best possible teacher or lecturer for their class.

Third, it is unfair on LGBTI students in particular. Not only are they denied positive role models, they are also enrolled in an educational institution which has adopted a hostile attitude towards LGBTI teachers, lecturers and other staff, something which will inevitably influence the broader culture of the school or university.

Fourth, I do not believe the supposed ‘safeguard’ contained in sections 34(3)(b), (c) and (d) – which requires educational institutions wishing to rely on this exception to have a written policy stating its (discriminatory) position, that is provided to employees and potential employees, and on request to students, their families and members of the public – is sufficient.[viii]

Transparency doesn’t make prejudice any less real, or any more acceptable. LGBTI teachers, lecturers and other staff members can still be denied employment simply because of their gender identity, sexual orientation or intersex status – attributes which have absolutely nothing to do with their ability to perform the role.

Further, and even more damagingly, LGBTI students at these institutions who are aware of such policies will be acutely aware their presence there is only ‘tolerated’ because the institution is legally prohibited from discriminating against them (in other words, they would discriminate against these students if they could). They will know that they will never be truly accepted for who they are.

This last reason alone justifies removal of the exception for religious educational institutions in section 34(3) of the Equal Opportunity Act 1984 (SA) and instead prohibit all religious schools and universities from discriminating against LGBTI employees.

Recommendation 3: The exception allowing religious education institutions to discriminate against LGBTI teachers, lecturers and other staff in section 34(3) of the Equal Opportunity Act 1984 (SA) must be repealed, with these institutions prohibited from discriminating against employees on the basis of gender identity, sexual orientation and intersex status.

In conclusion, I should reiterate that, despite the problems identified above, the draft Equal Opportunity (Religious Bodies) Amendment Bill 2020 would, if passed in its current form, still significantly improve the rights of LGBTI people in South Australia to go about their lives free from discrimination.

In particular, I welcome the commitment of the South Australian Government to protect LGBTI students at religious schools against discrimination. This is much needed, and would have an immediate and appreciable benefit for vulnerable students across the state.

Nevertheless, I firmly believe the proposed legislation can be substantially strengthened, including by extending the scope of areas in which LGBTI people are protected to include tertiary education, welfare services and adoption agencies – or, even better, to adopt the best practice Tasmanian approach to religious exceptions (as discussed earlier).

Above all, I strongly encourage the South Australian Government to remove the ability of religious educational institutions to discriminate against LGBTI teachers, lecturers and other staff members, so that these places can become welcoming and inclusive places for all people seeking to learn, or impart knowledge, irrespective of their gender identity, sexual orientation or intersex status.

Thank you in advance for your consideration of this submission. Please contact me at the details provided should you wish to clarify any of the above, or for further information.

Sincerely,

Alastair Lawrie

Footnotes:


[i] See: A Quick Guide to Australian LGBTI Anti-Discrimination Laws.

[ii] For more information, see: Scott Morrison’s Broken Promise to Protect LGBT Students is Now Two Years Old

[iii] ‘This Part does not render unlawful discrimination in relation to- any other practice of a body established for religious purposes that conforms with the precepts of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.’

[iv] In many cases, these services will be using local, state and/or Commonwealth funding to do so. In nearly all cases, they will be relying on tax exemptions supporting them to carry out this work.

[v] Intersex status is the protected attribute currently included in the Equal Opportunity Act 1984 (SA). However, I support the replacement of intersex status with ‘sex characteristics’, as called for by Intersex Human Rights Australia, as well as intersex advocates in the March 2017 Darlington Statement.

[vi] The ACT has adopted the Tasmanian approach in relation to religious schools (only allowing discrimination on the basis of religious conviction, and not on the ground of sexuality, gender identity or sex characteristics), but not for other religious organisations.

[vii] Noting that section 52(d) of the Anti-Discrimination Act 1998 (Tas) is quite generous: ‘A person may discriminate against another person on the ground of religious belief or affiliation or religious activity in relation to- (d) any other act that- (i) is carried out in accordance with the doctrine of a particular religion; and (ii) is necessary to avoid offending the religious sensitivities of any person of that religion.’

[viii] Even if, in some circumstances, it may be useful in applying external pressure on religious educational institutions whose employment practices fall short of community standards.

The Right to Learn

The right to education is one of the most fundamental of all human rights.

 

This is both because education has incredible intrinsic value, and because of the significant consequences it can have on an individual’s life outcomes, from employment to health, housing and justice, as well as the ability to fully participate in society.

 

The community also has a collective interest in ensuring that all of its members are able to access the right to learn. Why then does Australia allow ongoing inequality in the enjoyment of this important right?

 

I could be talking here about the gross disparity in educational outcomes for Indigenous Australians compared to their non-Indigenous counterparts (with the latest Closing the Gap report showing that Governments are not on track to meet commitments for school attendance, and literacy and numeracy).

 

I could also be talking about the completely disproportionate levels of funding provided by the Commonwealth to private schools over public schools, with ACARA estimating that the Commonwealth Government allocated $8,053 for every private school student compared to just $2,645 per public school student in 2016-17. (Apparently some students are worth more than others.)

 

Instead, for the purposes of this article, I will focus on the fact that cisgender heterosexual students are better able to exercise their right to learn than lesbian, gay, bisexual and transgender (LGBT) students.

 

This is because cisgender heterosexual students in Australia are free to enjoy the right to education without fear of discrimination simply on the basis of these attributes. Unfortunately, the same is not true for far too many LGBT students around the country.

 

That is because the anti-discrimination laws of several Australian jurisdictions allow religious schools to lawfully discriminate against students on the basis of their sexual orientation and gender identity. This includes:

 

The Commonwealth Sex Discrimination Act 1984

 

The NSW Anti-Discrimination Act 1977 (which in fact allows all private schools and colleges to discriminate on the basis of homosexuality, and transgender, even where the school is not religious)

 

The Victorian Equal Opportunity Act 2010

 

The Western Australian Equality Opportunity Act 1984, and

 

The South Australian Equal Opportunity Act 1984 (although for South Australia the legal situation is not entirely certain).

 

On the other hand, LGBT students are legally protected against discrimination at religious schools in Queensland, Tasmania, the ACT and the Northern Territory [for a complete summary of the situation nationally see: Back to School, Back to Discrimination for LGBT Students and Teachers].

 

However, we should not allow this conversation to be dominated by dry legal analysis, when it is the discrimination these laws permit that we should highlight.

 

For example, these were just some of the responses to my 2017 survey looking at The State of Homophobia, Biphobia and Transphobia in Australia:

 

“I was given detention and threatened with suspension for revealing I was attracted to girls at a Christian high school. I was forced to endure hands-on prayer to rid me of the homosexual demons.”

 

“I was at a Christian private school in north Sydney, we had lessons in religion that focused on why being gay is wrong and how you can change.”

 

“My friend goes to a Catholic school and is bisexual. Her music teacher gives her shit about being bisexual and says that she is sinning and she will be going to hell.”

 

I also know from bitter personal experience just how toxic these environments can be, having (barely) survived five years at a religious boarding school in Queensland in the early 1990s.

 

As these accounts demonstrate, the discrimination LGBT students endure at the hands of religious schools concerns far more than simply admission, or expulsion – instead, it is more insidious, and effects every moment of every school day.

 

The fact this prejudice is legally allowed in several Australian jurisdictions is almost unbelievable – and totally unacceptable.

 

Students should be focused on studying for their exams, not studying how to conceal their sexual orientation or gender identity.

 

Students should be worrying about whether the person they ask to take to the formal says yes, not worrying that they will be suspended because their date is the same gender they are.

 

Students should be doing what most teenagers do – complaining about their school uniform – not fearing punishment for wearing the uniform that matches their gender identity.

 

Students should be learning what they need to stay safe in their health and physical education, and sex-ed, classes, not being made to feel invisible and forced to pick up bits and pieces from far less reliable sources.

 

Students who experience homophobic, biphobic or transphobic bullying should be able to have confidence that their school will be on their side, not wondering whether they will be the ones disciplined instead simply because they are LGBT.

 

Students should be thinking about what they would like to do after they finish their education, not contemplating whether they will even survive it.

 

Above all, students should be given the gift of curiosity about the world around them, not taught that the world hates them because of who they are.

 

These are just some of the ways in which lesbian, gay, bisexual and transgender students are currently denied the same right to learn that their cisgender heterosexual equivalents enjoy.

 

It is a situation that has been created by the actions of politicians – and has been allowed to persist because of their inaction.

 

That includes Prime Minister Scott Morrison’s broken promise, made in October last year, to protect LGBT students in religious schools against discrimination by amending the Sex Discrimination Act before the end of 2018.

 

Instead, we now have an Australian Law Reform Commission inquiry into religious exceptions that won’t report until April 2020, and a re-elected Liberal-National Government that likely won’t do anything until the second half of next year (at the earliest).

 

This is simply not good enough. We must remind them of that fact every single day until they act – because LGBT students will be discriminated against every single day until they do.

 

We must also pressure the state governments of NSW, Victoria, Western Australia and South Australia to fix their own broken laws. There is no possible excuse any of them could proffer that would justify allowing this mistreatment to continue.

 

Because reading is fundamental, as is writing, arithmetic, and all of the other essential skills that are imparted by teachers today. And all students deserve access to them, irrespective of who they are.

 

Education is a human right that must be provided to everyone equally, without discrimination on the basis of sexual orientation or gender identity. That currently isn’t the case in Australia. It’s something we must change for the sake of LGBT students now, and for the generations yet to come.

 

The right to learn

All students have an equal right to education, including LGBT students.

Submission to WA Law Reform Commission Inquiry into Recognition of a Person’s Sex, Change of Sex or Intersex Status

Update 5 March 2019:

 

The Law Reform Commission of Western Australia has handed down its final report of its Review of Western Australian legislation in relation to the registration or change of a person’s sex and/or gender and status relating to sex characteristics (a copy of the report is available here).

 

It is generally well-considered, and largely positive for the trans, gender diverse and (in parts at least) intersex communities.

 

This includes Recommendation 1 that “The Equal Opportunity Act 1984 (WA) be amended to include protections against discrimination based on gender identity and intersex status” (although the latter protected attribute should instead be ‘sex characteristics’ in line with the Yogyakarta Principles plus 10).

 

There are also a range of recommendations that clarify the difference between sex and gender (and which one should be recorded in different contexts).

 

The most controversial recommendations (albeit ones I support) are:

 

Recommendation 5

Sex classification be removed from birth certificates

 

Recommendation 6

The Births, Deaths and Marriages Registration Act 1998 (WA) and the Births, Deaths and Marriages Registration Regulations 1999 (WA) be amended to expressly prohibit the recording of sex or gender on birth certificates.

 

This would then be replaced by an opt-in system of ‘Gender Identity Certificates’ for situations where gender may be relevant:

 

Recommendation 7

The Births, Deaths and Marriages Registration Act 1998 (WA) be amended to provide an application process for a person born in Western Australia to apply for a Gender Identity Certificate (with Recommendation 8 covering people born outside WA).

 

Importantly, under Recommendation 9, the gender markers included in these certificates would be expanded to include male, female and non-binary (although it does not include an ‘other’ category, as suggested in my submission to the Review, published below).

 

The WALRC further recommends that there no longer be any surgical or medical barriers for people to update their Gender Identity Certificate, instead proposing a simple administrative process, which, if introduced, would be best practice in Australia (for a comparison with existing laws around Australia, see Identity, not Surgery).

 

That phrase – if introduced – is key. Unfortunately, I understand that the WA Government has already shied away from the removal of sex and/or gender from birth certificates which, if true, would obviously be incredibly disappointing.

 

Trans, gender diverse and intersex people deserve better than to have a progressive Law Reform Commission of Western Australia report languish, unimplemented, on the shelves. Let’s hope the WA Government remembers why it commissioned this review in the first place.

 

Original submission:

Law Reform Commission of Western Australia

Level 23, David Malcolm Justice Centre

28 Barrack St

Perth WA 6000

lrcwa@justice.wa.gov.au

 

Friday 19 October 2018

 

To whom it may concern

 

Submission in relation to recognition of a person’s sex, change of sex or intersex status

 

Thank you for the opportunity to provide a submission to this important inquiry.

 

As noted in the Discussion Paper, Western Australia’s current legislation in relation to recognition of a person’s sex, change of sex (or gender) or intersex status is inadequate and out-dated, with negative consequences for trans, gender diverse and intersex individuals.

 

The model for reform proposed by the Commission would address a number of these short-comings, although I believe there could be further improvements as discussed below.

 

I write this submission as a cisgender gay member of the LGBTI community, and as an ally of the intersex, trans and gender diverse communities. Where there may be inconsistencies between this submission and the positions supported by those communities, I defer to their views.

 

Question 1. Will the Commission’s proposed model cause any difficulties if implemented?

 

I believe the Commission’s proposed model will remove some of the regulatory barriers currently experienced by trans and gender diverse people in having their gender identities recognised in Western Australia.

 

The removal of sex from birth certificates will also have particular benefits for people born with variations in sex characteristics, reducing pressure for involuntary and unnecessary medical treatments and/or surgeries to be performed.

 

However, as indicated above, I believe there could nevertheless be some improvements made to the model to ensure it better addresses the needs of these diverse communities.

 

Question 2. Is the ‘indeterminate’ category sufficient or should additional categories be added to the forms that are used for the First Report and the Second Report, which will then be used to record the sex of the child?

 

In principle, I do not object to the recording of ‘indeterminate’ sex in the First or Second Reports, provided other aspects of the model – and especially the removal of sex from birth certificates – are also implemented. This appears to ensure statistical data is collected while also reducing the stigmatisation of children born with intersex variations.

 

However, if the collection of ‘indeterminate’ sex is to continue through this process, it would be useful for the WA Government to indicate the numbers of births that have been recorded using this category – and also to actively monitor the number of children with intersex variations who undergo medical interventions to modify their sex characteristics each year (in an effort to reduce and ultimately eliminate human rights abuses in this area).

 

Question 3. Should sex classification be mandatory on birth certificates?

 

No.

 

I can see no proper purpose for recording sex classification in this way. In contrast, there are multiple benefits to be gained by removing this category from this form.

 

For trans and gender diverse people, and especially trans and gender diverse young people, it means they will be able to determine their own gender identity (which is much more relevant) when they are ready – and have that identity reflected in official documentation more easily (under other parts of the model),

 

For people born with variations of sex characteristics, it will help to reduce pressures for involuntary and unnecessary treatments and/or surgeries to alter their sex characteristics to conform to medical, parental and/or societal expectations.

 

The removal of sex and gender from birth certificates has also been called for in the March 2017 Darlington Statement of Australian and New Zealand intersex advocates and as part of the Yogyakarta Principles plus 10.

 

Question 4. Should alternative markers be available, such as ‘other/indeterminate’ or ‘not specified’, if sex classification is required on birth certificates?

 

I would defer to the views of intersex, trans and gender diverse organisations on this issue.

 

However, for the reasons outlined above, I would strongly urge the Commission – and the Western Australian Parliament – to ensure that sex classification be removed, avoiding the potential for adverse consequences in this area.

 

Question 5. Are there circumstances in which it will be necessary or desirable to prove sex through a birth certificate, where proof of gender by a Gender Identity Certificate or proof of sex by medical documentation is not appropriate or sufficient?

 

No. I can think of no circumstances in which proof of sex through birth certificate would be necessary, or preferable instead of proof of gender by Gender Identity Certificate.

 

Question 6. If yes for the above, would certification by the Registrar alleviate this issue?

 

Not applicable.

 

Other comments on the proposed model

 

There are other aspects of the Commission’s proposed model that are welcome, including the recommended abolition of the Gender Reassignment Board (with the simplified functions under the model performed by the Registrar instead).

 

I also welcome the proposed ability of minors to apply for a Gender Identity Certificate from the age of 12, with parental consent.

 

However, I question the age at which parental consent should no longer be required. Rather than the age of 18, which appears to be the position of the Discussion Paper, I believe consideration should be given to adopting an age of 16, as recommended by the February 2016 options paper from the Tasmanian Anti-Discrimination Commissioner.

 

In terms of which categories should be available on Gender Identity Certificates, I suggest that all of Male, Female, Non-Binary and Other (Please Specify) should be options, to recognise the complexity of gender identity, and that simply adding ‘non-binary’ may not accurately capture all of the possible identities of trans and gender diverse people.

 

However, as expressed earlier in the submission, if the consensus view of trans organisations and individuals is that Male, Female and Non-Binary are sufficient, I defer to those views.

 

On the issue of time limits, I do not agree with the proposal to make any change of gender identity beyond the third occasion subject to approval by an appropriate court or tribunal. I can see no reason why, if change of name is allowed annually, that application for change of gender identity should not also be allowed every 12 months (while noting that it is highly unlikely people will actually apply more than two or three times).

 

I also believe there may be some circumstances in which, even within a particular 12 month timeframe, there may be reasons to allow a person to apply to an appropriate court or tribunal for a change of gender identity to be revised (where, for example, a person is distressed following the issuing of a new gender identity certificate and making them wait to amend it has the potential to cause additional psychological distress).

 

An additional concern I have about the model is the comment on page 70 that “The Registrar may also request further evidence if required to prove the application [for a Gender Identity Certificate] is not sought for an improper or fraudulent purpose.”

 

This power seems to undermine the overall intention for the model to reflect self-identification as far as possible. There is also already a penalty for providing a false statutory declaration, making the necessity of such a power debatable.

 

In this situation, I suggest consideration of either removing this power entirely, or for ensuring additional safeguards on its exercise, to ensure it is only used sparingly, and in exceptional circumstances (rather than reintroducing onerous requirements for individuals to supply medical and other evidence through these administrative arrangements).

 

In addition, any decision by a Registrar to reject an application for a new Gender Identity Certificate (that is different to a previous certificate) on these grounds must be easily appealable, at low or no cost to the individual.

 

Finally, in relation to determining the appropriate place to hear appeals (both in relation to this issue, and also on other questions, such as applications for Gender Identity Certificates for minors where parents disagree, or where a person seeks a change in certificate prior to the expiry of any relevant time limits), I express reservations about the suggestion on page 75 that:

 

“The Commission considers the Family Court to be an appropriate decision-maker where the application is contested by one or more parent(s)/guardian(s), given the Family Court’s jurisdiction for approving medical procedures for intersex and trans and gender diverse minors in circumstances where a child is unable to give informed consent or where there is a disagreement between the parents or guardians about the medical procedure.”

 

Based on some harmful decisions in relation to intersex minors and involuntary medical treatments and/or surgeries by the Family Court of Australia, the Western Australian Family Court may not be seen as being best-placed to adopt the role of decision-maker under the Commission’s proposed model. I therefore suggest consideration be given to adopting a different decision-maker, including the possibility of a specialist tribunal within Western Australia.

 

Other issues

 

I welcome the comments by the Commission, on page 77, that:

 

“The [Equal Opportunity Act 1984] does not provide protections for intersex people, on the basis of their sex characteristics or intersex status, nor does it provide protections for people on the basis of their gender identity. The Commission considers a detailed review of the EO Act would be beneficial.”

 

However, while I support the view that this inadequate and out-dated legislation should be reviewed, I do not believe this should delay amendments to the protected attributes covered under the Act to ensure all members of the LGBTI community in Western Australia are protected against discrimination, as quickly as possible.

 

This could be achieved by adding the protected attribute of ‘gender identity’, potentially based on the definition used in the CommonwealthSex Discrimination Act 1984(with final wording agreed following consultation with the WA trans and gender diverse community).

 

However, I disagree with the Commission that consideration should be given to introducing a protected attribute of ‘intersex status’, again potentially based on the Sex Discrimination Actdefinition.

 

While that approach would ensure greater consistency between WA and Commonwealth law, it is not best practice. Instead, I support the introduction of a protected attribute of ‘sex characteristics’, as called for by Intersex Human Rights Australia, and in the Darlington Statement, potentially using the definition included in the Yogyakarta Principles plus 10:

 

‘each person’s physical features relating to sex, including genitalia and other sexual and reproductive anatomy, chromosomes, hormones, and secondary physical features emerging from puberty.’

 

Finally, I note that any consultation that addresses the issue of legal recognition of people with intersex variations will inevitably raise the issue of harmful, involuntary and unnecessary medical surgeries and/or treatments of children born with variations in sex characteristics.

 

The Discussion Paper indeed touches on this issue, including noting on page 28 that “The Commission understands that the current medical preference is to monitor, rather than intervene, for as long as is medically viable.”

 

My own understanding, based on views expressed by intersex organisations, is that this position may not be entirely accurate. I therefore call on the Commission to further investigate this issue, in consultation with intersex organisations.

 

Ultimately, I would like to see Principle 32 of the Yogyakarta Principles plus 10 reflected in the lived experience of all intersex people in Australia:

 

‘Everyone has the right to bodily integrity, autonomy and self-determination irrespective of sexual orientation, gender identity, gender expression or sex characteristics. Everyone has the right to be free from torture and cruel, inhuman and degrading treatment or punishment on the basis of sexual orientation, gender identity, gender expression and sex characteristics. No one shall be subjected to invasive or irreversible medical procedures that modify sex characteristics without their free, prior and informed consent, unless medically necessary to avoid serious, urgent and irreparable harm to the concerned person’ (emphasis added).

 

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

 

Sincerely

Alastair Lawrie

 

A Quick Guide to Australian LGBTI Anti-Discrimination Laws

Quick Guide Final

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

This article seeks to take a broader approach, comparing who these laws cover, what religious exceptions they contain, and whether they provide protection against vilification, among other key questions. [Up to date at 7 January 2022]

  1. What is the relevant law?

Jurisdiction

Legislation

Commonwealth

Sex Discrimination Act 1984

New South Wales

Anti-Discrimination Act 1977
Victoria

Equal Opportunity Act 2010

Queensland

Anti-Discrimination Act 1991

Western Australia

Equal Opportunity Act 1984
South Australia

Equal Opportunity Act 1984

Tasmania

Anti-Discrimination Act 1998

Australian Capital Territory

Discrimination Act 1991

Northern Territory

Anti-Discrimination Act

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

Lesbians and gay men

Bisexuals

Commonwealth

New South Wales

Victoria

Queensland

Western Australia

South Australia

Tasmania

Australian Capital Territory

Northern Territory

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

  1. Are transgender people protected against discrimination?

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

                                 

Trans people with binary gender identities

People with non-binary gender identities

Commonwealth

New South Wales

Victoria

Queensland

Western Australia

Some*
South Australia

Tasmania

Australian Capital Territory

Northern Territory

Some*

Disappointingly, only five jurisdictions cover people with both binary and non-binary gender identities (although the Victorian protections, introduced as part of recent legislation banning sexual orientation and gender identity conversion practices, have yet to legally come into force).

While seven laws at a minimum cover all people with binary gender identities, there are two jurisdictions that have adopted even narrower definitions:

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

Intersex

Commonwealth

New South Wales

Victoria

Queensland

Western Australia

South Australia

Tasmania

Australian Capital Territory

Northern Territory

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

It should be noted however that intersex advocates have called for this terminology to be updated, with ‘intersex status’ replaced with the protected attribute of ‘sex characteristics’ (as part of the historic March 2017 Darlington Statement).

To date, the Tasmanian Parliament has amended its Anti-Discrimination Act 1998 to cover ‘intersex variations of sex characteristics’, while in August 2020 the ACT Legislative Assembly replaced intersex status with ‘sex characteristics’, with a definition supported by intersex organisations. In February 2021, the Victorian Parliament added ‘sex characteristics’ to the Equal Opportunity Act 2010, although as with protections for non-binary people discussed above, these provisions have yet to take effect.

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

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

                                 

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

LGBT people have limited protections against religious discrimination

LGBT people have general protections against religious discrimination

Commonwealth

Aged care*
New South Wales

Victoria

✓*
Queensland

Western Australia

South Australia Teachers*

Tasmania

Australian Capital Territory

Northern Territory

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

The recently passed amendments in Victoria (via the Equal Opportunity (Religious Exceptions) Amendment Act 2021) come close, only allowing discrimination on the basis of religious belief in religious schools (in relation to both students and teachers), in employment and in service provision by religious organisations that is Government funded. However, it continues to allow discrimination on the basis of sexual orientation and gender identity in service provision by religious organisations where it is not Government funded.

The Act Discrimination Act 1991 also provides protections in relation to religious schools (covered in more detail in the following questions), but continues to allow discrimination in both employment and service provision by religious organisations outside the field of education.

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

“Nothing in this Act affects:

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

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

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

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

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

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

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

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

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

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

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

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

LGBT students at religious schools

Commonwealth

New South Wales

Victoria

Queensland

Western Australia

South Australia

Probably not*
Tasmania

Australian Capital Territory

Northern Territory

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

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

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

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

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

 

LGBT teachers at religious schools

Commonwealth

New South Wales

Victoria

Queensland

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

South Australia

Procedural requirements*
Tasmania

Australian Capital Territory

Northern Territory

Only three Australian LGBTI anti-discrimination laws fully protects lesbian, gay, bisexual and transgender teachers and other staff at religious schools against discrimination: Tasmania’s Anti-Discrimination Act 1998, the ACT Discrimination Act 1991 and, following recent amendments, the Victorian Equal Opportunity Act 2010.

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

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

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

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

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

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

                                 

Lesbians and gay men

Bisexuals
Commonwealth

New South Wales

Partial
Victoria

Queensland

Western Australia

South Australia

Tasmania

Australian Capital Territory

Northern Territory

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

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

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

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

9. Are trans and intersex people protected against vilification?

                                 

Trans people with binary gender identities

People with non-binary gender identities

Intersex

Commonwealth

New South Wales Partial

Partial

Victoria

Queensland

Western Australia

South Australia

Tasmania

Australian Capital Territory

Northern Territory

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

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

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

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

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

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

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

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

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

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

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

“Work with children

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

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

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

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

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

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

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

                                 

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

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

?

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

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

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

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

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

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

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Footnotes:

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

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

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

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

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

(a) neither wholly female nor wholly male; or

(b) a combination of female and male; or

(c) neither female nor male.’

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

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

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

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

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

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

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

(i) during a selection process; or

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

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

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

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

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

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

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

(c) by expelling the student; or

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

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

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

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

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

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

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

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

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

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

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

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

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

(iii) to other members of the public.”

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

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

(a) is on the grounds of:

(i) religious belief or activity; or

(ii) sexuality; and

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

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

[xvi] Footnote removed.

[xvii] Footnote removed.

[xviii] Footnote removed.

[xix] Footnote removed.

[xx] Footnote removed.

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

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

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

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

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

What’s Wrong With South Australia’s Equal Opportunity Act 1984?

This post is part of a series looking at Australia’s anti-discrimination laws, and examining how well, or how poorly, they protect lesbian, gay, bisexual, transgender and intersex (LGBTI) people against discrimination. The other posts in the series can be found here.

In particular, they assess Commonwealth, State and Territory legislation in terms of the following three issues:

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

Unfortunately, while South Australia has expanded the range of people legally protected against discrimination, the Equal Opportunity Act 1984 remains grossly inadequate because of the breadth of religious exceptions it offers, and its failure to establish LGBTI vilification offences.

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Protected Attributes

Section 29 of the Equal Opportunity Act 1984 protects lesbian, gay, bisexual, transgender and intersex South Australians from discrimination.

Sub-section (2a) defines discrimination “on the ground of gender identity” to include (among other things):

  • “if the person treats another unfavourably because the other is or has been a person of a particular gender identity or because of the other’s past sex;
  • if the person treats another unfavourably on the basis of a characteristic that appertains generally to persons of a particular gender identity, or on the basis of a presumed characteristic that is generally imputed to persons of a particular gender identity… and
  • if the person requires a person of a particular gender identity to assume characteristics of a sex with which the person does not identify.”

Importantly, unlike some jurisdictions, South Australia protects all trans people against discrimination (and not just people with binary gender identities).

The protections against discrimination “on the ground of sexual orientation” contained in sub-section (3) are similarly broad, and would cover all lesbian, gay and bisexual South Australians.

The Relationships Register Act 2016 has expanded this coverage even further by introducing a new protected attribute of ‘intersex status’, with the addition of sub-section 29(4)[i].

With this change, South Australia has become only the fourth jurisdiction in Australia – after the Commonwealth, Tasmania and the Australian Capital Territory – to explicitly protect intersex people against discrimination. Although it should be noted that in the March 2017 Darlington Statement, intersex activists called for this terminology to be replaced by a protected attribute of ‘sex characteristics’.

Summary: The South Australian Equal Opportunity Act 1984 protects lesbian, gay, bisexual, transgender and intersex people against discrimination – with the 2017 inclusion of ‘intersex status’ making it only the fourth Australian jurisdiction, out of nine, to cover the entire LGBTI community.

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Religious Exceptions

Unfortunately, while the Equal Opportunity Act 1984 will soon be close to best practice on protected attributes, in terms of religious exceptions it is anything but.

Section 50 sets out an incredibly broad range of circumstances in which religious organisations are legally entitled to discriminate against LGBTI South Australians:

Religious bodies

(1) This Part does not render unlawful discrimination in relation to-

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

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

(ba) the administration of a body established for religious purposes in accordance with the precepts of that religion; or

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

While paragraphs (a) and (b) are at least directly related to religious appointments – and therefore somewhat defensible because of their connection to freedom of religion – paragraph (ba) and especially paragraph (c) effectively encourage discrimination by religious organisations in healthcare and other community services.

It is also unclear whether this general exception allows religious schools to discriminate against LGBTI students. That is because there is a separate section which provides exceptions for religious schools regarding students (section 37), and it does not allow discrimination on the basis of sexual orientation, gender identity or intersex status.

However, unlike the Queensland Anti-Discrimination Act 1991 which protects LGBT students, there is nothing in the general religious exception in section 50 of South Australia’s Equal Opportunity Act 1984 which states that it does not apply to religious schools.

This means that it is still possible the general religious exception in section 50 allows discrimination despite what section 37 says – a risk even the SA Equal Opportunity Commission expressed concern about in their submission to the South Australian Law Reform Institute’s review of Exceptions under the Equal Opportunity Act 1984 (p73). Indeed, the Law Reform Institute recommended:

“that section 50(1)(c) should be removed to make it clear that it does not apply to discrimination with respect to potential or current students of religious educational institutions” (pp83-84).

The situation is also complicated with respect to teachers in religious schools, with sub-section 34(3) setting out a separate, specific exception in that area:

“(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.”

Some may see this as a relatively positive approach, because at the very least it allows everyone to be informed about the policies any particular school adopts. And, admittedly, it is preferable to the carte blanche approach adopted in other states (and especially in New South Wales).

However, there are three important qualifications to this ‘benign’ assessment:

  • It still allows discrimination against teachers and other employees in religious schools. This discrimination – which has no connection whatsoever to the ability of LGBTI teachers and other staff to do their jobs – remains unacceptable, irrespective of the procedural steps a school must first negotiate,
  • It is (I believe) unique in Australia in that it specifically states that religious schools can discriminate on the basis of intersex status (despite there being no supporting evidence of doctrines, tenets or beliefs which discriminate against people born with intersex variations), and
  • The general religious exception in sub-section 50(c) may still apply, for the same reason that it may allow religious schools to discriminate against LGBT students – meaning it is possible that religious schools can ‘pick and choose’ the basis on which they discriminate against teachers and employees (and therefore potentially avoid these procedural hurdles altogether).

There is one final religious exception which allows discrimination against LGBTI South Australians – sub-section 35(2b) allows ‘associations’ to exclude and otherwise adversely treat people on the basis of their intersex status, gender identity or sexual orientation “if the association is administered in accordance with the precepts of a particular religion and the discrimination is founded on the precepts of that religion.”

Summary: The religious exceptions contained in the South Australian Equal Opportunity Act 1984 allow discrimination against LGBTI people in a wide range of circumstances, including healthcare, community services, associations and in education (although there is some uncertainty about how far the exceptions apply in that area).

[NB In late 2020, the South Australian Liberal Government released the Equal Opportunity (Religious Bodies) Amendment Bill 2020 for public consultation. This Bill would remove any ability for religious schools to discriminate against LGBT students (although not teachers) as well as limiting the special privileges of religious organisations to discriminate against both LGBT employees and people accessing their services in other nominated areas (such as housing, health and aged care).

However, this would still permit discrimination in other areas (such as university education). Therefore, while if passed this Bill would represent a significant improvement from the current provisions of the Equality Opportunity Act 1984 (SA), it would nevertheless fall well short of the best practice approach to religious exceptions in the Anti-Discrimination Act 1998 (Tas). For more information, please see my submission in response to the Equal Opportunity (Religious Bodies) Amendment Bill 2020.]

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Anti-Vilification Coverage

This section will be the shortest of this post – because there is none. Lesbian, gay, bisexual, transgender and intersex South Australians have no protection against anti-LGBTI vilification under the Equal Opportunity Act 1984[ii].

This is despite the fact that an entire stand-alone act exists with respect to racial vilification (the Racial Vilification Act 1996). Given homophobia, biphobia, transphobia and intersexphobia are just as damaging, and just as harmful, as racism, the lack of equivalent protections against anti-LGBTI vilification is, in my opinion, shameful.

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Other Issues

There are a few additional issues in the Equal Opportunity Act 1984 that it would be remiss not to at least mention.

On the negative side, there is a very broad ‘inherent requirement’ exception in relation to employment. Sub-section 34(2) provides that:

“This Division does not apply to discrimination on the ground of sex, sexual orientation, gender identity or intersex status in relation to employment or engagement for which it is a genuine occupational requirement that a person be of a particular sex, sexual orientation, gender identity or intersex status.”

It is difficult to think of many jobs in which it is an inherent requirement that someone be of a particular sexual orientation, gender identity or intersex status. It would be interesting to see on what possible basis the drafters attempted to justify this sub-section.

Similarly, sub-section 34(4) allows discrimination in employment against transgender people generally, and non-binary gender diverse people in particular, on the basis of their appearance, stating that:

“This Division does not apply to discrimination on the ground of gender identity in relation to employment or engagement if the discrimination is for the purposes of enforcing standards of appearance and dress reasonably required for the employment or engagement.”

Once again, it is hard to see how such discrimination can possibly be justified, and I would argue that both sub-sections (34(2) and (4)) should be repealed.

On the other hand, there are two exceptions that allow positive discrimination in favour of LGBTI people.

The first, in sub-section 35(2a), permits LGBT-specific associations to be created (for “persons of a particular gender identity”, for “persons of a particular sexual orientation (other than heterosexuality), or for “persons of intersex status”, noting that heterosexuality remains privileged within Australian society).

The second, in section 47, authorises actions designed to overcome discrimination against minority groups:

Measures intended to achieve equality

This Part does not render unlawful an act done for the purpose of carrying out a scheme or undertaking intended to ensure that persons of a particular sex, sexual orientation, gender identity or intersex status, have equal opportunities with, respectively, all other persons, in circumstances to which this Part applies.”

Nevertheless, while these final two provisions are welcome, they do not negate the harmful aspects of the Act, including its overly-generous religious exceptions, and the complete lack of anti-vilification coverage for LGBTI South Australians.

It remains to be seen whether the Liberal Government, under Premier Steven Marshall, will take any action to improve the South Australian Equal Opportunity Act 1984.

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Will Liberal Premier Steven Marshall amend South Australia’s out-dated Equal Opportunity Act 1984?

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Footnotes:

[i] “(4) For the purposes of this Act, a person discriminates on the ground of intersex status-

(a) if the person treats another unfavourably because of the other’s intersex status or past intersex status; or

(b) if the person treats another unfavourably because the other does not comply, or is not able to comply, with a particular requirement and-

(i) the nature of the requirement is such that a substantially higher proportion of persons who are not of intersex status complies, or is able to comply, with the requirement than of those of intersex status; and

(ii) the requirement is not reasonable in the circumstances of the case; or

(c) if the person treats another unfavourably on the basis of a characteristic that appertains generally to persons of intersex status, or presumed intersex status, or on the basis of a presumed characteristic that is generally imputed to persons of intersex status; or

(d) if the person treats another unfavourably because of an attribute of or a circumstance affecting a relative or associate of the other, being an attribute or circumstances described in the preceding paragraphs.”

[ii] Although South Australia is not alone in this regard – there are also no LGBTI vilification protections in Commonwealth law, and in Victoria, Western Australia and the Northern Territory.

What’s Wrong With Western Australia’s Equal Opportunity Act 1984?

This post is part of a series examining the anti-discrimination laws that exist in each Australian jurisdiction and analysing how well, or how poorly, they protect lesbian, gay, bisexual, transgender and intersex (LGBTI) people from discrimination. Other articles in the series can be found here.

Specifically, each post considers three main aspects of LGBTI anti-discrimination legislation:

  • Protected attributes
  • Religious exceptions, and
  • Anti-Vilification Coverage.

Unfortunately, as we shall see below, the Western Australian Equal Opportunity Act 1984 (‘the Act’) has significant problems in terms of all three elements, making it serious competition to the NSW Anti-Discrimination Act 1977 for the (unwanted) title of worst LGBTI anti-discrimination law in the country.

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Protected Attributes

As with most Australian anti-discrimination laws (other than those in the Commonwealth, South Australia, Tasmania and the ACT), the Equal Opportunity Act 1984 only protects some parts of the LGBTI community from discrimination, but not others.

On the positive side, it does include all lesbian, gay and bisexual members of the community – with ‘sexual orientation’ defined in section 4 as:

“in relation to a person, means heterosexuality, homosexuality, lesbianism or bisexuality and includes heterosexuality, homosexuality, lesbianism or bisexuality imputed to the person.”[i]

On the negative side, however, it completely excludes intersex people from anti-discrimination protection, an omission that should be rectified immediately.

On the negative and downright bizarre side, the Western Australian Act adopts a completely unique approach that results in only transgender people whose gender identity as been officially recognised by the State Government benefiting from anti-discrimination coverage.

Specifically, rather than prohibiting discrimination on the basis of gender identity (which would be best practice), the Act only prohibits discrimination against “a gender reassigned person on gender history grounds”.[ii]

Section 4 of the Act states that “gender reassigned person means a person who has been issued with a recognition certificate under the Gender Reassignment Act 2000 or a certificate which is an equivalent certificate for the purposes of that Act”, while section 35AA prescribes that “[f]or the purposes of this Part, a person has a gender history if the person identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex.”

Prima facie, the combination of these two definitions mean that only people who have transitioned from male to female, or vice versa, and had that transition recognised by the Government via the Gender Reassignment Act are protected from discrimination. People who have yet to transition, or any trans person who is non-binary, are not covered by these clauses. This is a serious flaw, and one that must be corrected by the WA State Government.

Conclusion: While lesbian, gay and bisexual Western Australians are included in the protected attributes of the Equal Opportunity Act 1984, intersex people are completely excluded, as are a large number of trans people (either because their gender identity has not been formally recognised under the Gender Reassignment Act, or because their gender identity is non-binary).

Both flaws should be rectified as a matter of priority, with the adoption of the protected attribute of ‘gender identity’ as found in the Commonwealth Sex Discrimination Act 1984, and the inclusion of ‘sex characteristics’ as called for by intersex activists in the March 2017 Darlington Statement.

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Religious Exceptions

While it’s approach to trans anti-discrimination regulation is unique, the Equal Opportunity Act’s provisions surrounding the rights of religious organisations to discriminate against LGBT people are pretty standard for a state and territory (or even Commonwealth) law[iii]. Unfortunately, that ‘standard’ allows homophobic, biphobic and transphobic discrimination in an incredibly wide range of circumstances.

Section 72 of the Act states:

Religious bodies

Nothing in this Act affects-

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

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

(c) the selection or appointment of persons to perform duties or functions for the purposes of or in connection with, or otherwise to participate in any religious observance or practice; or

(d) 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.”

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

However, sub-section 72(d) is effectively a blanket exception that allows any religious organisation – including religious-operated schools, hospitals and community services – to discriminate against LGBT employees, and LGBT people accessing their services. This is clearly unacceptable.

Religious schools don’t even need to rely on this broad exception. That’s because they have additional, specific protections in section 73, which allow them to discriminate against teachers and other employees (sub-section (1)), contract workers (sub-section (2)), and even students (sub-section (3)).

Sub-section (1) is incredibly generous (with sub-section (2) adopting similar wording):

“(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.”

Even though the wording used in relation to students is slightly narrower, it nevertheless envisages discrimination against students on the basis of sexual orientation or against gender reassigned persons on the basis of their gender history:

“(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.”[iv]

Given education is conducted in the public sphere, it is, in nearly all circumstances, at least partially paid for by taxpayers, and above all it is the right of students to receive a comprehensive and inclusive education free from discrimination, there can be no justification for the continued existence of the exceptions for religious schools outlined in section 73. Just like sub-section 72(d), they should be repealed as a matter of priority.

Conclusion: The religious exceptions contained in the WA Equal Opportunity Act are, sadly, similar to those that exist in most Australian jurisdictions, in that they provide religious organisations generally, and religious schools in particular, extremely generous rights to discriminate against lesbian, gay, bisexual and trans employees and people accessing services. These religious exceptions must be curtailed to better protect LGBT Western Australians against discrimination.

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Anti-Vilification Coverage

This will be the shortest section of this post because, well, there isn’t any: there is currently no prohibition on vilification of LGBTI people under the Equal Opportunity Act 1984. This lack of protection is similar to the Commonwealth, Victoria, South Australia and the Northern Territory.

Interestingly, the Act also excludes racial vilification. Instead, Western Australia has chosen to outlaw racial vilification via the Criminal Code 1913, which creates a total of eight related offences, including:

Section 77. Conduct intended to incite racial animosity or racist harassment

Any person who engages in any conduct, otherwise than in private, by which the person intends to create, promote or increase animosity towards, or harassment of a racial group, or a person as a member of a racial group, is guilty of a crime and is liable to imprisonment for 14 years” and

Section 78. Conduct likely to incite racial animosity or racist harassment

Any person who engages in any conduct, otherwise than in private, that is likely to create, promote or increase animosity towards, or harassment of, a racial group, or a person as a member of a racial group, is guilty of a crime and is liable to imprisonment for 5 years.”[v]

However, there are exactly zero offences outlawing vilification of LGBTI people in the Code. This disparity is completely unjustified, especially given the real and damaging impact of homophobia, biphobia, transphobia and intersexphobia on people’s lives (similar to the detrimental impact of racism).

If vilification offences are to be retained, as I believe they should (even if some right-wing Commonwealth MPs and Senators may disagree), then they should be expanded to cover vilification against members of the LGBTI community.

Conclusion: Neither the Equal Opportunity Act nor the Criminal Code prohibit LGBTI vilification, despite the latter creating a number of offences against racial vilification. Similar offences should also be established against the vilification of lesbian, gay, bisexual, transgender and intersex Western Australians.

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Other Issues

We have already seen, under ‘Protected Attributes’ above, that the Equal Opportunity Act offers only limited anti-discrimination protections to Western Australia’s trans and gender diverse community.

Unfortunately, this ‘anti-trans’ approach is replicated in a number of other sections of the Act, and is even featured in the Long Title: “An Act to promote equality of opportunity in Western Australia and to provide remedies in respect of discrimination on the grounds of sex, marital status, pregnancy, sexual orientation, family responsibility or family status, race, religious or political conviction, impairment, age, or publication of details on the Fines Enforcement Registrar’s website, or involving sexual or racial harassment or, in certain cases, on gender history grounds” [emphasis added].

Note that, not only does ‘gender history’ come last, it is also the only ground which features the qualifier ‘in certain cases’.

The objects of the Act are also exclusionary with respect to trans people. While object (a) in section 3 the Act seeks to ‘eliminate, so far as possible’ discrimination on grounds including sexual orientation and “in certain cases, gender history”, object (d) excludes trans people altogether:

“to promote recognition and acceptance within the community of the equality of persons of all races and of all persons regardless of their sexual orientation, religious or political convictions or their impairments or ages.”

Apparently, promoting recognition and acceptance of transgender people is not a priority.

This approach is also reflected in substantive parts of the Bill. Whereas section 35ZD allows discrimination in favour of people on the basis of their sexual orientation “to ensure that persons of a particular sexual orientation have equal opportunities with other persons” and “to afford persons of a particular sexual orientation access to facilities, services or opportunities to meet their special needs” (ie positive discrimination), there is no equivalent section for transgender people (or gender reassigned people with a gender history).

There is even a sub-section (74(3a)) that ensures an aged care service cannot discriminate solely in favour of transgender people (even though other aged care services can discriminate on the basis of ‘class, type, sex, race, age or religious or political conviction’[vi]).

Even the way some sections of Part IX, which aims to provide ‘Equal opportunity in public employment’, are drafted indicate that transgender discrimination is to be considered separately. For example, section 140 states:

“The objects of this Part are-

(a) to eliminate and ensure the absence of discrimination in employment on the ground of sex, marital status, pregnancy, family responsibility or family status, sexual orientation, race, religious or political conviction, impairment, age or the publication of relevant details on the Fines Enforcement Registrar’s website; and

(aa) to eliminate and ensure the absence of discrimination in employment against gender reassigned persons on gender history grounds; and

(b) to promote equal employment opportunity for all persons.”[vii]

It is bizarre that even the protected attribute of ‘publication of relevant details on the Fines Enforcement Registrar’s website’ is included with sex, race and sexual orientation (among others), while gender reassigned persons are included in a separate sub-section.

Whenever the Western Australian Equal Opportunity Act 1984 is finally updated to ensure all transgender and gender diverse people are protected from discrimination, these additional sections will need to be updated to ensure that, as a protected attribute, gender identity is finally treated equally to other attributes.

Update:

In October 2018, the Western Australian Attorney-General John Quigley announced that the Equal Opportunity Act would be referred to the Law Reform Commission of Western Australia for a comprehensive review. This was in the wake of the leaking of the recommendations from the Ruddock Religious Freedom Review, and publicity about the issue of discrimination against LGBT students and teachers in religious schools.

In March 2019, the Law Reform Commission of Western Australia confirmed the details of this review (which can be found here).

Importantly, from an LGBTI perspective, this includes consideration of:

a. the objects of the Act and other preliminary provisions;

b. the grounds of discrimination including (but not limited to) introducing grounds of gender identity and intersex status;

e. the inclusion of vilification, including racial, religious, sexual orientation and impairment vilification;

g. exceptions to grounds of discrimination including (but not limited to) those for religious institutions;

l. interaction with the Commonwealth Marriage Amendment (Definition and Religious Freedoms) Act 2017 and with other relevant Commonwealth laws or proposed laws.

It will be essential for LGBTI advocates within WA, and with support nationally, to engage with the Law Reform Commission process, and then to pressure the McGowan Government to bring the Equal Opportunity Act 1984 into the 21st century.

Update 11 July 2020:

Unfortunately, while the Law Reform Commission process was commenced in early 2019, as of mid-2020 there have been no official consultations or publications arising from this Review. The website for the inquiry has not even been updated since 6 March 2019. With the next State election due on 13 March 2021, it is now highly unlikely the Review will be completed this term.

Mark McGowan

Will WA Labor Premier Mark McGowan, elected in March 2017, update the out-dated Equal Opportunity Act 1984?

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Footnotes:

[i] With discrimination on the basis of sexual orientation then prohibited under Part IIB of the Act.

[ii] Section 35AB.

[iii] Other than Tasmania’s exceptions, which are significantly narrower and, to a lesser extent, Queensland’s and the Northern Territory’s.

[iv] Interestingly, the phrase “other than the grounds of race, impairment or age” is omitted from the exceptions relating to teachers and contract workers – presumably religious schools can discriminate on these attributes then too.

[v] Other related offences include:

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

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

80A Conduct intended to racially harass

80B Conduct likely to racially harass

80C Possession of material for display with intent to racially harass

80D Possession of material for display that is likely to racially harass

[vi] Sub-section 74(2)(a).

[vii] Section 146 includes a similar delineation.