Opening Statement to Victorian Inquiry into Anti-Vilification Protections

Posted on August 3, 2020 by Alastair Lawrie

On 25 June, I was invited to give evidence to the Victorian Parliamentary Inquiry into Anti-Vilification Protections. My opening statement, highlighting the need to introduce prohibitions on vilification on the basis of sexual orientation, gender identity and sex characteristics, is published below (the full transcript of my evidence, including answers to questions from members of the Legislative Assembly’s Legal and Social Issues Committee, can be found here).

This evidence builds on my submission to the inquiry in December 2019. The Committee’s original timeline requires them to report by 1 September 2020, although given current circumstances it would of course be understandable for this deadline to be extended. Hopefully, whenever the Committee reports, they recommend that LGBTI Victorians are finally provided with legal protections against vilification.

**********

“Thank you very much for the opportunity to appear today and give evidence on this important topic. I do so as an advocate for LGBTI anti-discrimination law reform for close to two decades. This includes previously serving as the chair of the policy working groups of both Victorian and New South Wales gay and lesbian rights lobbies, although I appear here in a personal capacity. In my comments I will focus on terms of reference 4, ‘comparisons in the operation of the Victorian Act with legislation in other jurisdictions’, and 8, ‘possible extension of protections or expansion of protection to classes of people not currently protected’.

Starting with the comparative approach, it is clear that Victoria has fallen behind the standards set by several other Australian jurisdictions. In my own state of New South Wales protections against vilification on the basis of homosexuality were first added to the Anti-Discrimination Act in 1993, just four years after racial vilification was first prohibited and before passage of the commonwealth Racial Hatred Act 1995. Transgender vilification protections were then added in 1996. While there are limitations to these protections, such as the exclusion of bisexual, non-binary and intersex people, many LG and T people here have enjoyed anti-vilification coverage for close to a quarter of a century.

LGBT people have also been protected against vilification in Queensland for almost 20 years following the inclusion of both sexuality and gender identity in their vilification provisions in 2002. The ACT Discrimination Act has included prohibitions on vilification on the basis of sexuality and transsexuality from 2004, with gender identity replacing transsexuality in 2010 and intersex added in 2016, meaning the ACT’s vilification provisions cover the entire LGBTI community, one of two such laws in the country.

The other jurisdiction to cover all of lesbians, gay men, bisexuals, transgender and intersex people is Tasmania, which has the most extensive anti-vilification laws in Australia. These protections have two parts. Section 19 of the Tasmanian Anti-Discrimination Act prohibits public acts that:

incite hatred towards, serious contempt for, or severe ridicule of, a person or a group of persons …

That section has included sexual orientation from its commencement in 1999, and it included transsexuality within sexual orientation from that time until 2014. Gender identity and intersex variations of sex characteristics were both added in May last year. Section 17 separately prohibits:

conduct which offends, humiliates, intimidates, insults or ridicules another person on the basis of an attribute …

Those provisions have covered sexual orientation, gender identity and intersex status, or intersex variations of sex characteristics, since 2014. From a comparative approach alone, it is disappointing the Victorian Racial and Religious Tolerance Act has not been extended beyond racial and religious vilification since it commenced in 2002.

Turning now to the second issue—the possible extension of protection to classes of people not currently protected—I think the preamble to the Act is quite instructive. Paragraph 3 in particular reads:

… some Victorians are vilified on the ground of their race or their religious belief or activity. Vilifying conduct is contrary to democratic values because of its effect on people of diverse ethnic, Indigenous and religious backgrounds. It diminishes their dignity, sense of self-worth and belonging to the community. It also reduces their ability to contribute to, or fully participate in, all social, political, economic and cultural aspects of society as equals, thus reducing the benefit that diversity brings to the community.

From an LGBTI advocate’s perspective, it seems obvious to me that the exact same description could be applied to my community. Some people are vilified on the ground of their sexual orientation, gender identity or sex characteristics. This conduct is contrary to democratic values because of its effect on us. Homophobia, biphobia, transphobia and intersex phobia diminish our dignity, sense of self-worth and belonging to the community. It also reduces our ability to contribute to or fully participate in all aspects of society as equals and reduces the benefits of diversity.

Explaining this to you in a more structured or systematic way, I would submit (1) sexual orientation, gender identity and sex characteristics are fundamental or inherent human characteristics; (2) lesbian, gay, bisexual, transgender and intersex people are frequently subjected to vilification on the basis of who they are; and (3) that vilification can cause serious harm and should therefore be legally prohibited.

In 2020 the first point is obviously not up for serious debate. In terms of points 2 and 3, I would draw the committee’s attention to a community survey which I conducted at the end of 2016 with 1672 LGBTIQ respondents from around Australia, including 386 in Victoria [*see below]. One of the questions asked, ‘Have you ever experienced verbal harassment or abuse because of your sexual orientation, gender identity or intersex status?’. Overall 74 per cent of respondents answered yes, with 48 per cent of all respondents then reporting at least one instance of verbal harassment or abuse in the previous 12 months.

That is one in two LGBTIQ Australians indicating they were verbally abused in the year 2016 alone, which I should note was before the postal survey. Perhaps unsurprisingly but nevertheless disappointingly, these rates were even higher amongst transgender respondents: 68.3 per cent reported abuse in the previous 12 months. And intersex respondents, 82.2 per cent in the previous year. The rates in Victoria were average for the country, 74.1 per cent reporting abuse or harassment ever and 49.8 per cent in the previous 12 months.

Now I acknowledge that many—indeed, likely most—of these responses would fall short of the legal standard for vilification, but no doubt some would meet it. Taking just one respondent’s experience:

I have been referred to as a tranny and had both my sexuality and gender identity mocked and invalidated repeatedly. I have been told to kill myself an innumerable number of times, including being told to ‘get my teeth and gender straight or kill myself’, and that my gender is ‘cancer’. This is just a short list of the abuse I’ve suffered.

When asked for the location for anti-LGBTI comments in the previous 12 months, 92 per cent of respondents said social media, 83 per cent said politics, 81 per cent religion, 80 per cent media and 67 per cent in a public space. Finally, when asked to explain the impact that witnessing homophobic, bi-phobic, transphobic and intersex-phobic comments had on him, here are just two of the comments received:

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

And:

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

This brings me back to the preamble of the Racial and Religious Tolerance Act and the benefit that including sexual orientation, gender identity and sex characteristics as protected attributes would bring. In my view it would not only reflect Victoria’s democratic values but enhance the dignity, self-worth and belonging of a significant cohort of Victorians. That would be a positive outcome, and I hope the committee, and the Parliament ultimately, agrees. Thank you.”

*These figures, and quotes, are taken from my 2016 research survey ‘The State of Homophobia, Biphobia and Transphobia’.

No Homophobia No Exceptions (1)

For LGBTI people, if this post has raised issues for you, please contact QLife on 1800 184 527, or via webchat: https://qlife.org.au/ or contact Lifeline Australia on 13 11 14.

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The Right to Learn

Posted on June 10, 2019 by Alastair Lawrie

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.

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

A Quick Guide to Australian LGBTI Anti-Discrimination Laws

Posted on July 29, 2017 by Alastair Lawrie

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 21 March 2023]

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

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).

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 have traditionally only protected 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]Thankfully, a number of jurisdictions have moved from the latter, to the more-inclusive former, category in the past few years – or will soon do so.

	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	✓	✓

At this stage, six jurisdictions cover people with both binary and non-binary gender identities (with the most recent jurisdiction to adopt a more inclusive definition of gender identity being the Northern Territory, in 2022).

Of the other three:

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).[iv] Thankfully, the Western Australian Law Reform Commission review of the WA Equal Opportunity Act recommended changes to ensure all trans, non-binary and gender diverse people are covered, and the WA Government accepted this recommendation, with legislation expected at some point in 2023;
The Queensland Anti-Discrimination Act 1991 currently has a definition of gender identity which is limited to people with binary gender identities, however there is legislation currently before the Queensland Parliament which would also ensure trans, non-binary and gender diverse people are protected (the Births, Deaths and Marriages Registration Bill 2022 – and I look forward to updating this table again in coming months); and
The NSW Anti-Discrimination Act 1977 also currently only covers transgender people with binary gender identities. Unfortunately, and unlike WA and Queensland, neither the NSW Government nor Opposition have promised to amend this protected attribute in the lead-up to the 25 March 2023 State election, although the Opposition has at least promised to refer the entire Anti-Discrimination Act to the NSW Law Reform Commission for its own review.

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, Victoria and, most recently, the Northern Territory, 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. The Northern Territory Parliament added ‘sex characteristics’ to their Anti-Discrimination Act 1992 in late 2022.

Of the other three jurisdictions, the Bill currently before Queensland Parliament would add sex characteristics to legislation there, while the WA Government is also expected to add sex characteristics as a protected attribute at some point in 2023. In contrast, there is no current proposal or process in NSW which would see sex characteristics added to the Anti-Discrimination 1977, meaning it is likely NSW will be the only jurisdiction without any protections against discrimination for intersex people by the end of this year.

Finally, it should be noted that, as part of debate surrounding its amendments to the Fair Work Act (see point 11, below) in late 2022, the Commonwealth Government has promised to update the terminology of ‘intersex status’ to ‘sex characteristics’ in both the Sex Discrimination Act and Fair Work Act.

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

As I have written extensively elsewhere, one of the key weaknesses of many 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	✓	✓	Partial*

There is only one LGBTI anti-discrimination law in Australia that offer 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 amendments passed 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 education. However, a Bill currently before ACT Parliament would narrow these exceptions, and only permit discrimination on the basis of religious belief rather than other attributes.

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.”

Fortunately, the Western Australian Law Reform Commission has recommended that their religious exceptions be narrowed, in line with the Victorian approach, and legislation expected to be passed during 2023.

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 (at least until the ACT Bill is passed). 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 2022 Queensland Human Rights Commission review of the Anti-Discrimination Act 1991 has also recommended a similar approach to Victoria – and once again, the Government there is expected to make these reforms at some point in 2023.

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 (and recent changes have seen LGBT teachers finally protected against discrimination there too).

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]

Thankfully, the WA Law Reform Commission has recommended, and the WA Government has agreed, to protect LGBT students in religious schools against discrimination with legislation expected in 2023. The Commonwealth Government has also referred the issue of religious exceptions and religious schools to the Australian Law Reform Commission for inquiry, reporting in April 2023. Which means NSW is the only jurisdiction where it is clear LGBT students are not protected, and which also has no process that would see this issue addressed.

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	✓

Four 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, the Victorian Equal Opportunity Act 2010 and, and, following recent amendments, the NT Anti-Discrimination Act 1992.

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). Fortunately, the Queensland Human Rights Commission review of the Anti-Discrimination Act has recommended that Don’t Ask, Don’t Tell be repealed, and replaced with genuine protections for LGBT teachers.

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 the other three Australian jurisdictions (the Commonwealth, NSW and Western Australia[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] And, once again, the WA Government has agreed to implement Law Reform Commission recommendations to protect LGBT teachers, while the Australian Law Reform Commission is also looking at this issue federally – making it likely the NSW Anti-Discrimination Act will soon be the only one which allows unrestricted special privileges to discriminate against LGBT teachers.

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 2018 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 Anti-Discrimination NSW.

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 previously investigated this issue while the WA Law Reform Commission has recommended LGBTI vilification provisions be introduced, and the WA Government is expected to introduce this reform this term. 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 – although the Births, Deaths and Marriages Registration Bill 2022, which is currently before Queensland Parliament, would remedy this.

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). Although Queensland will soon join this short list (assuming the Births, Deaths and Marriages Registration Bill 2022 is passed), and the WA Government expected to also prohibit vilification on the basis of sex characteristics in the near future.

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.

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.”

Thankfully, the Births, Deaths and Marriages Registration Bill 2022, currently before Queensland Parliament, would repeal this provision.

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	✓	✓	✓

Between the passage of the Sex Discrimination Act (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, and updates to the Fair Work Act 2009 passed late last year, it was unclear whether trans, gender diverse and intersex workers were covered under the latter – because it included sexual orientation but not gender identity or intersex status/sex characteristics as protected attributes for the purposes of adverse action (section 351) and unlawful termination (section 772) protections.

Thankfully, the Albanese Government has amended the Fair Work Act to explicitly include gender identity and intersex status as protected attributes. Even better, in doing so they publicly committed to updating both the Fair Work Act, and Sex Discrimination Act, to cover sex characteristics (which is the best practice terminology supported by Intersex Human Rights Australia) rather than intersex status in the future.

[As someone who was involved in campaigning for these changes to the Fair Work Act since at least mid-2018, this has been a very satisfying update to write.]

Of course, the extensive religious exceptions which appear in the Fair Work Act 2009, allowing religious organisations to discriminate against LGBTQ employees, should also be repealed.

**********

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

**********

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

[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] Repealed/footnote removed.

[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] Repealed/footnote removed.

[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.

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

Posted on October 10, 2016 by Alastair Lawrie

Update: 15 January 2017

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

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

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

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

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

Original Post:

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

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

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

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

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

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

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

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

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

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

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

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

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

Victorian Attorney-General Martin Pakula

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

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

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

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

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

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

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

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

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

**********

Monday 10 October 2016

Dear Member of the Victorian Legislative Council

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

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

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

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

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

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

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

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

Sincerely,

Alastair Lawrie

Footnotes:

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

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

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

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

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

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

Submission to Victorian Greens Equal Opportunity Amendment (LGBTI Equality) Bill 2016

Posted on February 12, 2016 by Alastair Lawrie

The Greens Member for Prahran in the Victorian Parliament, Sam Hibbins, is currently undertaking consultation on his exposure draft Bill to amend the Victorian Equal Opportunity Act 2010.

Full details of the consultation process can be found here. The following is my submission:

Mr Sam Hibbins MP

Member for Prahran

94 Chapel St

Windsor VIC 3181

sam.hibbins@parliament.vic.gov.au

Friday 12 February 2016

Dear Mr Hibbins

Consultation on Equal Opportunity Amendment (LGBTI Equality) Bill 2016

Thank you for the opportunity to provide a submission on your exposure draft Equal Opportunity Amendment Bill.

Thank you also for your commitment to improving the anti-discrimination protections that are provided to lesbian, gay, bisexual, transgender and bisexual (LGBTI) Victorians.

I agree with your statement, made as part of this consultation, that “The [Equal Opportunity] Act needs updating so that it better protects same-sex and gender diverse Victorians from discrimination at school, at work and in the community” (although I note that the phrase ‘same-sex and gender diverse’ does not include intersex people).

I believe that your exposure draft Bill addresses two of three major deficiencies in the current Act (and that I have written about previously – What’s Wrong With the Victorian Equal Opportunity Act 2010).

Specifically, the Bill would significantly improve the protected attributes that are included in the Act, by:

Introducing a new protected attribute of ‘intersex status’, consistent with the protections offered under the Commonwealth Sex Discrimination Act 1984, and
Updating the definition of ‘gender identity’ to be broader, and to remove any requirement to identify as either male or female in order to attract anti-discrimination coverage (and again in line with the 2013 Federal Labor Government reforms to the Sex Discrimination Act).

Both of these changes are overdue, and are welcome.

I also support the proposed amendments to reduce the current excessive and unjustified ‘exceptions’ that are offered to religious organisations and individuals allowing them to discriminate against LGBT Victorians in circumstances where it would otherwise be unlawful to do so.

The balance which the Bill strikes – removing religious exceptions in schools and other services, in employment and by individuals, while retaining exceptions for ‘core religious functions’, such as the appointment of ministers of religion and the conduct of religious ceremonies[i] – appears to be a reasonable one.

However, there is one major deficiency of Victorian anti-discrimination and vilification law that your exposure draft Equal Opportunity Amendment (LGBTI Equality) Bill 2016 does not address – and that is the absence of anti-vilification protections covering LGBTI people.

As I have written previously:

“There are… protections against both racial and religious vilification under Victoria’s Racial and Religious Tolerance Act 2001.

“With homophobic, biphobic, transphobic and intersexphobic vilification just as serious, and just as detrimental, as racial and religious vilification, there is no reason why LGBTI people should not have equivalent protections under Victorian law.”[ii]

In this context, the major suggestion I would make for improvement to your exposure draft Bill is for you to consider amendments to introduce protections against vilification on the basis of sexual orientation, gender identity and intersex status, equivalent to the current prohibitions on racial and religious vilification contained in the Racial and Religious Tolerance Act 2001.

Outside of these three main issues – protected attributes, religious exceptions and anti-vilification protections – the other reforms proposed by the exposure draft Bill, to “restore… the powers of the Victorian Equal Opportunity and Human Rights Commission to conduct public inquiries, enter into enforceable undertakings and to issue compliance notices” and to “restore… the power for the Commission to order someone to provide information and documents, and to order a witness… to attend and answer question” also appear reasonable.

Overall, then, I support the provisions contained in the exposure draft Equal Opportunity Amendment (LGBTI Equality) Bill 2016, but encourage you to consider adding provisions to provide protections against vilification on the basis of sexual orientation, gender identity and intersex status.

Beyond the content of the proposed Bill itself, however, I would like to make the additional point that, given the failure of the Victorian Legislative Council to support reforms in late 2015 to ensure that religious organisations could not discriminate against LGBTI people accessing adoption services, the passage of any of the above reforms would appear to be difficult, at least in the current term of Parliament.

In this context, I urge you and the Victorian Greens to work collaboratively with the state Labor Government, the Sex Party (who also supported last year’s reforms), and the Victorian LGBTI community, to persuade remaining cross-benchers, and indeed sympathetic Liberal and National MLCs, to support at least some of these reforms now – while retaining the option of passing the remainder following the 2018 election.

Thank you for taking this submission into consideration. If you would like any additional information, or to clarify any of the above, please contact me at the details provided below.

Sincerely

Alastair Lawrie

Member for Prahran, Sam Hibbins MP.

Update: 14 January 2017

The Greens introduced an amended version of this legislation into Victorian Parliament in mid-2016.

Renamed the Equal Opportunity Amendment (Equality for Students) Bill 2016, as the name suggests it focused specifically on ensuring religious schools could not discriminate against LGBT students.

Its major provision would have added the following new section to the Equal Opportunity Act 2010:

“84A Discrimination against school students not exempt

Sections 82(2), 83 and 84 do not permit discrimination by a person or body that establishes, directs, controls, administers or is an educational institution that is a school against a student on the basis of the student’s sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity.”

Unfortunately, despite the modest nature of this proposed reform, it was rejected by the Victorian Legislative Council on November 9 2016, by a margin of 32 to 6 (as reported by the Star Observer here).

Footnotes:

[i] The Bill would leave sub-section 82(1) of the Victorian Equal Opportunity Act 2010 in tact:

“Nothing in Part 4 applies to-

the ordination or appointment of priests, ministers of religions or members of a religious order; or
the training or education of people seeking ordination or appointment as priests, ministers of religion or members of a religious order; or
the selection or appointment of people to perform functions in relation to, or otherwise participate in, any religious observance or practice.”

[ii] What’s Wrong With the Victorian Equal Opportunity Act 2010

What’s Wrong With the Victorian Equal Opportunity Act 2010?

Posted on January 17, 2016 by Alastair Lawrie

This post is part of a series looking at Australia’s Commonwealth, state and territory anti-discrimination laws analysing how well – or in some cases, how poorly – they protect lesbian, gay, bisexual, transgender and intersex (LGBTI) people from discrimination and vilification (other posts in the series can be found here).

Each post examines that jurisdiction’s LGBTI anti-discrimination laws, focusing on three main areas:

Protected attributes
Religious exceptions, and
Anti-vilification coverage.

Unfortunately, as we shall see below, Victoria’s Equal Opportunity Act 2010 has serious deficiencies in two of these three categories. It is time for the Parliament to act to ensure LGBTI Victorians enjoy adequate protections against homophobic, biphobic, transphobic and intersexphobic discrimination and vilification, including by religious institutions.

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Protected Attributes

Protection against discrimination for LGBTI Victorians has developed across three distinct stages.

Victoria’s first anti-discrimination protections for lesbian, gay and bisexual people were introduced in 1995. However, rather than protecting people from discrimination on the basis of sexual orientation or homosexuality and bisexuality, the Act instead covered ‘lawful sexual activity’.

This protected attribute was defined as “engaging in, not engaging in or refusing to engage in a lawful sexual activity”[i] and, with its focus on behaviour rather than identity, it is questionable how effective these protections were in practice.

Fortunately, as the name suggests, the Equal Opportunity (Gender Identity and Sexual Orientation) Act 2000 signalled a second stage of reform, by introducing ‘sexual orientation’ as a protected attribute, defined as “homosexuality (including lesbianism), bisexuality or heterosexuality.”[ii]

While the language used may not be the same that would be used today[iii], it is clear that lesbian, gay and bisexual Victorians are all covered from that point onwards.

The same amending legislation in 2000 also introduced anti-discrimination protections for transgender Victorians for the first time.

This is because it introduced ‘gender identity’ as a protected attribute, with the following definition:

“gender identity means-

(a) the identification on a bona fide basis by a person of one sex as a member of the other sex (whether or not the person is recognised as such)-

(i) by assuming characteristics of the other sex, whether by means of medical intervention, style of dressing or otherwise; or

(ii) by living, or seeking to live, as a member of the other sex; or

(b) the identification on a bona fide basis by a person of indeterminate sex as a member of a particular sex (whether or not the person is recognised as such)-

(i) by assuming characteristics of that sex, whether by means of medical intervention, style of dressing or otherwise; or

(ii) by living, or seeking to live, as a member of that sex.”[iv]

Paragraph (a) of this definition applied to transgender people, although, given its focus on ‘binary’ genders, it would appear it only covered those people whose sex was designated as male at birth, but subsequently identified as female (and vice versa). It did not appear to cover people with non-binary gender identities.

The definition in the Victorian Equal Opportunity Act 2010 was therefore no longer best practice, and a new, more inclusive definition of gender identity was needed[v] to ensure all transgender people benefitted from anti-discrimination protection.

Intersex Victorians were even worse off under the 2000 reforms. Paragraph (b) of the definition of gender identity, above, offered their only protection under Victorian law, and was problematic because:

It inappropriately conflated intersex status, which relates to physical sex characteristics, with gender identity, and
It only appeared to protect people with intersex variations where they identified as either male or female.

In order to remedy this situation, a stand-alone protected attribute of ‘sex characteristics’ was needed in the Act, based on the call by intersex activists in the March 2017 Darlington Statement[vi].

Fortunately, all of the above limitations appear to have been addressed in the third stage of LGBTI anti-discrimination protections, which were introduced as part of recent legislation prohibiting anti-gay and anti-trans conversion practices (as amendments in the Change or Suppression (Conversion) Practices Prohibition Act 2021).

This included:

Introducing a new definition of 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.’ This clearly protects lesbian, gay and bisexual people, as well as pansexuals and other sexual orientations.
Introducing a new definition of 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.’ This means gender identity is no longer described in binary terms, thus protecting non-binary people against discrimination.
Introducing a new protected attribute of ‘sex characteristics’, with the following definition: ‘means a person’s physical features relating to sex, including- (a) genitalia and other sexual and reproductive parts of the person’s anatomy; and (b) the person’s chromosomes, genes, hormones, and secondary physical features that emerge as a result of puberty.’ This means people with intersex variations of sex characteristics will finally be protected when these changes to the Equal Opportunity Act 2010 take effect (expected shortly).

Summary: It has taken longer than it should, but the Victorian Equal Opportunity Act 2010 will soon finally protect all groups within the LGBTI community against discrimination.

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Religious Exceptions

The religious exceptions contained in Victoria’s Equal Opportunity Act 2010, are, to put it bluntly, outrageous. They are so broad, and so generous, that they substantially, and substantively, undermine laws that are supposed to redress discrimination against LGBTI people (amongst other groups).

While the exceptions for religious bodies[vii] contained in subsection 82(1)[viii] appear largely innocuous, relating to the appointment or training of religious ministers and the selection of people to perform religious services, it is only downhill from there.

For example, subsection 82(2) states that:

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

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

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

Essentially, as long as a religious organisation can show that discriminating against LGBTI people is related to their religion, they have carte blanche to do so in areas where it would be otherwise unlawful.

And, lest there be any doubt that these provisions cover religious schools – allowing them to discriminate against LGBTI teachers and students – section 83 reinforces the ‘right’ to discriminate on these grounds:

“83 Religious schools

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

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

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

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

The Victorian Equal Opportunity Act 2010 even includes a somewhat unusual, ‘special right’ for individuals to discriminate against other individuals:

“84 Religious beliefs or principles

Nothing in Part 4 applies to discrimination by a person against another person on the basis of that person’s religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity if the discrimination is reasonably necessary for the first person to comply with the doctrines, beliefs or principles of their religion.”[ix]

Tasmania is the only other jurisdiction to include a similar ‘individual’ right to discriminate, although it only allows discrimination on the basis of religion – and not on the basis of sexual orientation, gender identity or intersex status.

Perhaps the most disappointing aspect of these exceptions is that the most recent changes in this area took the law backwards.

In 2010, the then Labor Government introduced amendments to both the general religious exception, and the specific religious schools exception, so that, in order to discriminate in employment the religious body or school would first need to show that:

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

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

However, before this ‘inherent requirement’ test could even take effect, the newly-elected Liberal-National Government repealed these provisions in 2011, effectively restoring the previous broad and generous exceptions.

Not only are groups like the Australian Christian Lobby, Christian Schools Australia and the Catholic Education Office all (predictably and) vehemently opposed to limiting what is in practice an almost unfettered right to discriminate against LGBTI employees[xi], the history of recent adoption equality legislation also shows just how committed the Liberal and National parties are to protecting this so-called ‘right’.

For those who may be unaware, as part of the long overdue introduction of equal adoption rights for same-sex couples in Victoria[xii], the Andrews Labor Government proposed that religious agencies providing adoption services should not be allowed to discriminate against LGBT people. The amendment sought to add a new subsection (3) to section 82 of the Act:

“Despite subsection (2), Part 4 applies to anything done by a religious body that is an approved agency within the meaning of the Adoption Act 1984 in relation to its exercise of any power or performance of any function or duty under that Act for or with respect to adoption, whether or not the power, function or duty relates to a service for a child within the meaning of that Act or for any other purpose.”

Unfortunately, the Liberal and National parties combined with some cross-bench MPs to defeat this amendment, meaning that, while the right of same-sex couples to adopt has now finally been passed, adoption services operated by religious organisations will continue to have the ‘right’ to turn those same couples away.

Undeterred by this setback, in the second half of 2016 the Andrews Labor Government attempted to implement its election commitment by reintroducing the inherent requirements test for anti-LGBT discrimination in employment via the Equal Opportunity Amendment (Religious Exceptions) Bill 2016.

Yet again, however, the Liberal and National parties used their numbers in the Legislative Council to block this modest reform, meaning LGBT teachers at religious schools, and employees at other religious organisations, can still be discriminated against simply because of who they are, and even where this discrimination has nothing whatsoever to do with the actual role they are performing.

With the Andrews Labor Government re-elected on 24 November 2018, and a potentially more supportive Legislative Council, it is now up to Minister for Equality Martin Foley MP and his Government to push for broader reforms than simply re-instating the ‘inherent requirement’ test for employment to considering how best to prohibit discrimination against LGBTI people accessing services.

Ultimately, of course, there is a need to remove all religious exceptions outside those required for the training and appointment of religious ministers, and for the conduct of religious ceremonies.

Summary: The religious exceptions contained in the Victorian Equal Opportunity Act 2010 are overly broad, too generous, and – frankly – outrageous. Current provisions give religious bodies and religious schools wide powers to discriminate both against LGBTI employees and against LGBTI people accessing their services.

The Labor Government is to be commended for attempting to reinstate the ‘inherent requirement’ test for discrimination in employment, and to remove exceptions for religious adoption agencies – but now, following their re-election, they must go further and, at the very least, remove exceptions which allow religious schools to discriminate against LGBT students, teachers and other staff.

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Anti-Vilification Coverage

This section will be the shortest of the post – because, unlike NSW, Queensland, Tasmania and the ACT, there are no anti-vilification laws covering any parts of the LGBTI community.

Given the similar absence of LGBTI anti-vilifications provisions under Commonwealth law, this means Victoria’s lesbian, gay, bisexual, transgender and intersex community do not have any recourse to legislative anti-vilification protection.

There are, however, protections against both racial and religious vilification under Victoria’s Racial and Religious Tolerance Act 2001.[xiii]

With homophobic, biphobic, transphobic and intersexphobic vilification just as serious, and just as detrimental, as racial and religious vilification, there is no reason why LGBTI people should not have equivalent protections under Victorian law.

Summary: There is currently no anti-vilification coverage for LGBTI people under Victorian law. However, given there are existing protections against racial and religious vilification, LGBTI anti-vilification laws should be introduced, too.

Significantly, in 2019, Fiona Patten MLC of the Reason Party introduced a Bill to amend the Racial and Religious Tolerance Act to include sexual orientation, gender identity and sex characteristics as protected attributes (alongside gender and disability). This prompted a parliamentary inquiry into anti-vilification protections – see my submission to that inquiry here.

This inquiry is expected to report in March 2021. Hopefully, this Bill and inquiry prompts the Victorian Government and Parliament to pass this long-overdue, and much-needed, reform.

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In conclusion, while the Equal Opportunity Act 2010 covers all groups within the Victorian LGBTI community against discrimination (or at least will soon, when the amendments introduced as part of the ban on conversion practices take effect), it is clear there is still plenty of work to do, including reforming the overly-generous religious exceptions contained in the Act, and ensuring LGBTI Victorians have equivalent access to anti-vilification protections as those based on race and religion.

It’s time for Victorian Premier Daniel Andrews to make sure all Victorians are protected against discrimination, including LGBT students and teachers in religious schools, and introducing prohibitions on anti-LGBTI vilification.

Footnotes:

[i] This definition remains in subsection 4(1) of the Equal Opportunity Act 2010.

[ii] Subsection 4(1), Equal Opportunity Act 2010.

[iii] For example, the Commonwealth Sex Discrimination Act 1984, which was amended in 2013, defines ‘sexual orientation’ as “a person’s sexual orientation towards:

(a) persons of the same sex; or

(b) persons of a different sex; or

[iv] Subsection 4(1), Equal Opportunity Act 2010.

[v] Potentially modelled on the definition adopted by the Commonwealth Sex Discrimination Act 1984: “gender identity means 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.” [Although obviously exact wording should be agreed with Victoria’s transgender community.]

[vi] While the inclusion of ‘intersex status’ in the Commonwealth Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 was seen as world leading at the time, intersex activists now prefer the terminology ‘sex characteristics’ be used as a protected attribute.

[Again, the final wording of the new definition would need to be agreed in consultation with Victoria’s intersex community.]

[vii] Defined in section 81 as “(a) a body established for a religious purpose; or (b) an entity that establishes, or directs, controls or administers, an educational or other charitable entity that is intended to be, and is, conducted in accordance with religious doctrines, beliefs or principles.”

[viii] Subsection (82)(1) “Nothing in Part 4 applies to-

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

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

(c) the selection or appointment of people to perform functions in relation to, or otherwise participate in, any religious observance or practice.”

[ix] Not only is it unclear why this section is necessary (given the protections contained in Part 4 only apply in specific areas of public life, such as employment, education, the provision of goods and services and accommodation, rather than establishing a general right to non-discrimination), it is also concerning that this ‘special right’ extends to unincorporated associations (because ‘person’ is defined in subsection 4(1) of the Equal Opportunity Act as “person includes an unincorporated association and, in relation to a natural person, means a person of any age.”)

[x] The same wording was used in both subsections 82(3) and 83(3) of the then Equal Opportunity Act 2010.

[xi] “Religious groups hit out at Labor’s move to rewrite state’s equal opportunity laws”, The Age, 8 December 2014.

[xii] As passed in the Adoption Amendment (Adoption by Same-Sex Couples) Act 2015.

[xiii] Section 7 prohibits racial vilification while section 8 prohibits religious vilification: Racial and Religious Tolerance Act 2001.

alastairlawrie

lgbti advocate & activist, writing about anti-discrimination and vilification law reform, equality and human rights

Tag Archives: Equal Opportunity Act 2010

Opening Statement to Victorian Inquiry into Anti-Vilification Protections

The Right to Learn

A Quick Guide to Australian LGBTI Anti-Discrimination Laws

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

Submission to Victorian Greens Equal Opportunity Amendment (LGBTI Equality) Bill 2016

What’s Wrong With the Victorian Equal Opportunity Act 2010?