LGBTIQ Law Reform Priorities for 2021

ANU Gender Identity + Sexuality Law Moot Webinar Presentation

In October 2020, I was invited to be a judge for the round robin stage of the inaugural ANU Gender Identity + Sexuality Law Moot. In the lead-up to the moot itself, I participated in a webinar for participants about the state of LGBTIQ law reform in Australia, including being asked to address the following two questions:

What are, in your view, the most significant issues that need legal reform with respect to LGBTIQ rights and inclusion? and

How can we ensure that workplaces are inclusive and safe for people from all backgrounds but in particular for the LGBTIQ community?

While the panel ultimately adopted a more ‘free-wheeling’ approach to its discussion, I prepared the below, more detailed responses to these questions. Now that, at the end of a busy year, I’ve finally had the chance to tidy them up, I thought they might be worth sharing. I’m also keen to hear other people’s views, including on what you think the most significant issues that need legal reform are today – please leave your comments below.

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Question 1. What are, in your view, the most significant issues that need legal reform with respect to LGBTIQ rights and inclusion?

Despite what many people might assume – and what far too many members of our political and media classes seem to believe following the recognition of LGBTI marriage in 2017 – there remain a large number of outstanding legal reforms necessary for LGBTIQ rights and inclusion in 2020 [and I guess we can say 2021 now, too]. The following are my top three:

  1. Ending coercive medical interventions on children born with intersex variations of sex characteristics

Intersex people, and especially children born with intersex variations of sex characteristics, currently experience the worst human rights abuses of any group within the Australian LGBTIQ community.

Intersex people are born with physical sex characteristics that do not neatly fit medical norms for female or male bodies. Infants, children, adolescents and adults born with intersex variations risk or suffer forced and coercive medical interventions, designed to make their bodies more typically female or male. These interventions are not medically necessary, but instead rely on social or cultural rationales.[i]

The consequences of early and unnecessary deferrable interventions can include pain, trauma, shame, loss of sexual function and sensation, urinary incontinence and urgency, a need for ongoing medical treatment or repeat surgeries, experiences of violation and sexual assault, reinforcement of incorrect sex assignment and loss of choice.

These coercive medical interventions breach a large number of human rights principles, including the right to bodily integrity. They also adversely impact on rights to liberty, security, non-discrimination, privacy and freedom from torture, experimentation and harmful practices.

Unfortunately, coercive medical interventions on intersex people, and especially children born with intersex variations, have not been legally prohibited in any Australian jurisdiction. 

Instead, they are self-governed by clinical guidelines which support coercive interventions despite a lack of supporting medical evidence. And they are enabled by a legal system, including family law, which have permitted coercive interventions on the basis of (often poorly-informed) parental consent. The most infamous decision was the 2016 Family Court decision of Re: Carla, although it was merely one of a long line to contravene the human rights of intersex children.

In terms of law reform, there has been disappointingly little progress in this area. This month (October 2020) marks seven years since a bipartisan Senate Committee recommended new guidelines be developed that ‘should favour deferral of normalising treatment until the person can give fully informed consent, and seek to minimise surgical intervention on infants undertaken for primarily psychosocial reasons’ (among other recommendations).[ii]

Unfortunately, the Abbott, Turnbull and Morrison Governments have effectively done nothing to implement even these modest proposals.

More encouragingly, in June 2020 the Tasmanian Law Reform Institute released the final report of its inquiry into the legal recognition of sex and gender. It made a number of recommendations about intersex law reform, including:

Recommendation 7

The Criminal Code should be reformed to criminalise non-consensual medical interventions in the following terms:

178F Unnecessary medical intervention to change the sex characteristics of children.

(1) Any person who performs a surgical, hormonal or other medical intervention to alter or modify the sex characteristics of a child is guilty of a crime, unless:

(a) it is performed to address a clear danger to the life or health of the child and it cannot be deferred until the child is able to give informed consent; or

(b) it takes place with the informed consent of the child.

(2) Nothing in this Section is intended to apply to interventions involving a consenting transgender child seeking treatment to delay puberty or secondary sexual differentiation.

Charge: Performing unnecessary medical intervention to change the sex characteristics of a non-consenting child.

Recommendation 8 of that report also recommended that:

‘intersex people should be able to pursue claims for compensation for personal trespass and breach of professional duty against doctors where medical interventions to alter intersex variations of sex characteristics have resulted in physical or mental harm, irrespective of any parental consent to the intervention at the time it was performed.’

The Tasmanian Government is now considering these recommendations, meaning it is possible it will become the first Australian jurisdiction to criminalise coercive medical interventions on children born with intersex variations.

Before moving on, I should note the Australian Human Rights Commission has also been undertaking a long-running project on these issues.[iii] I understand it is (finally) nearing completion, and my personal hope is it recommends all Australian jurisdictions criminalise these human rights abuses.

2. Trans and gender diverse birth certificate reform

Trans and gender diverse people should have access to birth certificates, and other identity documentation, based solely on self-identification, and without medical approval (because gender identity is exactly that, identity, and not a ‘medical’ issue). Currently only one Australian jurisdiction has completely achieved this model: Tasmania, following its historic 2019 birth certificate reforms.

Victoria is a close second, also following changes in 2019, which removed the involvement of medical gatekeepers, although unfortunately it does not fully realise self-identification, because applications must be accompanied by a statement from someone who has known the applicant for at least 12 months and ‘supports’ the application.

Three other jurisdictions – South Australia, the ACT and the Northern Territory – have removed requirements for surgery or other physically invasive treatments. However, they still adopt a medical model, because they require engagement with psychologists or counsellors prior to approval. Ultimately, these laws will need to be updated.

However, the largest problems are in the other three states. NSW and Queensland still require surgery in order to access new identity documents, which is completely inappropriate not just because it unnecessarily medicalises gender identity, but also because not all trans and gender diverse people want surgery (or can afford it).[iv]

Western Australia’s legislation also requires surgery, although thanks to a favourable High Court decision, this has been interpreted to ‘only’ require some forms of physical treatment (such as hormone therapy).

Nevertheless, all three states – NSW, Queensland and Western Australia – must urgently amend their births, deaths and marriages laws to support self-identification for their trans and gender diverse residents [for more on this topic, see Did You Know? Trans People in NSW and Queensland Still Require Surgery to Update Their Birth Certificates].

3. LGBTIQ refugees in Papua New Guinea and Nauru

One LGBTIQ human rights abuse that is not technically in Australia, but is perpetrated by Australia, is the detention, processing and resettlement of LGBTIQ refugees and people seeking asylum in countries that criminalise them.

In particular, there remain LGBTIQ refugees and people seeking asylum who are trapped in Papua New Guinea – because the Australia Government put them there – a country which retains a maximum penalty of up to 14 years imprisonment for male same-sex activity.

And, even though Nauru decriminalised homosexuality in 2016, that does not necessarily translate into it being a safe environment for the LGBTIQ refugees and people seeking asylum which the Australian Government imprisoned there.

Of course, for anyone interested in international human rights law, all offshore detention, processing and resettlement is abhorrent, and should be ended for all refugees irrespective of their sexual orientation, gender identity or sex characteristics (or other attributes).

However, we must not overlook the fact Australia’s immigration framework has a particularly awful impact on people fleeing persecution on the basis of being lesbian, gay, bisexual, transgender, intersex or queer. They should be brought to Australia immediately.[v]

Anti-Discrimination Reform

While there is no individual LGBTI anti-discrimination law reform issue which is as important as the above three topics, I would argue that addressing our inadequate, incomplete and inconsistent LGBTI anti-discrimination and vilification framework overall must also be a high priority. Specifically, the majority of Commonwealth, state and territory anti-discrimination laws should be updated across three main areas:

Ensuring everyone is protected against discrimination. Most state and territory laws currently exclude at least some parts of our community. The NSW Anti-Discrimination Act 1977 is the worst – it doesn’t even protect bisexuals.[vi] While NSW, Victoria, Queensland, Western Australia and the Northern Territory don’t cover people with non-binary gender identities – and the same jurisdictions exclude intersex people as well.

Repealing the special privileges enjoyed by religious organisations. Loopholes allow faith bodies to discriminate against LGBT people, in employment and against people accessing services, even when they are delivering public services using public funding. Nearly all Australian anti-discrimination laws, including the Sex Discrimination Act 1984 (Cth), need to be reformed – although the Tasmanian Anti-Discrimination Act 1998 provides a template for how this can be done, by permitting religious organisations to preference people from their own faith (in limited circumstances), while not allowing discrimination on the basis of other attributes like sexual orientation or gender identity.[vii]

Obviously, the religious exceptions which have received the most public debate, at least in the past few years, are those allowing religious schools to discriminate against LGBT students, teachers and other staff. Positively, four jurisdictions (Tasmania, Queensland, the ACT and Northern Territory) have already legislated to cover LGBT students, although only two (Tasmania and the ACT) fully protect LGBT teachers and other staff. On the negative side, Scott Morrison’s Broken Promise to Protect LGBT Students is Now Two Years Old, and there’s little chance he will act on it for several years to come either.

Introducing prohibitions on anti-LGBTI vilification. There is currently no prohibition on anti-LGBTI vilification under Commonwealth law. Although they are by no means alone – currently Most Australian Jurisdictions Don’t Prohibit Anti-LGBTI Vilification. Of those that do (NSW, Queensland, Tasmania and the ACT), only Tasmania and the ACT protect all sections of the LGBTI community. Given homophobia, biphobia, transphobia and intersexphobia are just as damaging, and harmful, as racism, I firmly believe anti-LGBTI vilification should be prohibited on the same basis as racial vilification (equivalent to section 18C of the Racial Discrimination Act 1975 (Cth)). 

[For more on the overall state of LGBTI anti-discrimination and vilification law, see A Quick Guide to Australian LGBTI Anti-Discrimination Laws.]

Other LGBTIQ Law Reform Issues

There are a range of other LGBTIQ law reform issues which still need to be addressed, including:

  • Sexual orientation and gender identity conversion practices (sometimes called ex-gay or ex-trans therapy) should be outlawed across Australia. The Queensland Government recently introduced the first ban on these practices – although disappointingly it only applied in health care settings, and not in the religious environments where most anti-gay and anti-trans conversion practices occur. The ACT Government followed shortly thereafter, and their legislation has been welcomed by survivor groups because it covers both health care and religious settings. I understand that there are also moves to outlaw these practices in Victoria, Tasmania and South Australia – although sadly not in my adopted home state of NSW [NB Since the webinar, Victoria has introduced their own Bill to ban conversion practices, which appears to be stronger than both Queensland and the ACT, while the Tasmanian Law Reform Institute has released an Issues Paper on ‘Sexual Orientation and Gender Identity Conversion Practices’, with submissions due 7 January 2021].
  • South Australia still needs to abolish the gay panic defence (or homosexual advance defence). Thankfully, after much prompting, the South Australian Government has finally released draft legislation that does just that, for public consultation. Hopefully it is finally removed from the statute books later this year or in early 2021. [NB South Australian Parliament passed legislation finally abolishing the gay panic defence on 1 December 2020].
  • Expungement regimes – which allow for historical convictions for same-sex sexual activity to be expunged from a person’s criminal record – should also be strengthened. In particular, there is a serious limitation in the Queensland scheme, which does not allow gay, bisexual and other men who have sex with men who were convicted as a result of the unequal age of consent for anal intercourse between 1991 and 2016 to have their records expunged,[viii] and
  • The Marriage Act 1961 (Cth) needs to be amended to remove the unjustified special privileges that were introduced for existing civil celebrants, and religious organisations, as part of the Marriage Amendment (Definition and Religious Freedoms) Act 2017. Note that I usually do not refer to that legislation as providing ‘marriage equality’ as a result of these exceptions, because they mean LGBTI couples marrying now can be discriminated against in ways that divorced people remarrying before 2017 could not. We can get married, but it is still not equal.[ix]

Protecting Existing Rights

Some people take the quote ‘the arc of the moral universe is long, but it bends towards justice’ a little too literally, and consequently fail to appreciate LGBTIQ rights can go backwards. Something which has happened multiple times in the past decade, including the Newman LNP Government in Queensland winding back civil partnership laws passed by the Bligh Labor Government.

In the area of anti-discrimination, we should also remember the Baillieu Coalition Government in Victoria undid the introduction of a modest ‘inherent requirements’ test for religious exceptions passed by the Brumby Labor Government in 2010 – before they had even commenced. While the Hodgman Liberal Government tried multiple times to undermine vilification protections for LGBTI Tasmanians (and other groups) as long as that vilification was religiously-motivated (although thankfully those efforts failed).

There are currently three major efforts to undermine LGBTIQ rights:

The Commonwealth Government’s proposed Religious Discrimination Bill, of which we have seen two Exposure Drafts and was due to be introduced in March 2020 but has been delayed because of the coronavirus pandemic. This legislation would:

  • Make it easier to make comments that ‘offend, humiliate, intimidate, insult or ridicule’ LGBTI Australians
  • Make it easier for health practitioners to refuse to provide services to LGBTI patients
  • Make it easier for religious organisations to discriminate against others
  • Make it more difficult for big business to promote diversity and inclusion
  • Create a Religious Freedom Commissioner at the Australian Human Rights Commission (when we still don’t have a Commissioner for Sexual Orientation, Gender Identity and Sex Characteristics)
  • Entrench unjustified religious exceptions in the Marriage Act 1961 (Cth), and
  • Explicitly protect charities advocating against LGBTI relationship recognition in the Charities Act 2013 (Cth), despite it being completely unnecessary.

[For more, see The ‘Bad Faith’ Religious Discrimination Bill Must Be Blocked.] 

The Mark Latham/One Nation Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020 in NSW, which, similar to the Commonwealth Religious Discrimination Bill, seeks to privilege the rights of religious individuals and organisations over the rights of others, including the right of LGBTI people in NSW to be protected against discrimination [since the webinar, I had this opinion piece published in the Sydney Morning Herald, outlining just one of the many serious problems created by the NSW ‘Religious Freedoms’ Bill], and

The Mark Latham/One Nation Education Legislation Amendment (Parental Rights) Bill 2020, also in NSW. This legislation does (at least) three awful things:

  • Prohibiting the teaching of ‘gender fluidity’ – where teaching includes anything to do with a school (including counselling) by anyone connected to a school (including volunteers), and ‘gender fluidity’ means acknowledging that gender identity can be different to biological sex at birth. In effect, it will mean erasing trans and gender diverse students, as well as teachers, in schools across NSW
  • Introducing a UK section 28-style law against ‘promotion’ of ideological views about sexuality and gender identity – which, just like section 28 did there, will impose a silence on LGBT students struggling with invisibility at the most vulnerable point in their lives, and
  • Enacting an erroneous and stigmatising definition of intersex in NSW law for the first time (‘disorders of sexual differentiation’).

[For more, see I Stand with Trans Kids, and Against Mark Latham.]

Of course, ordinarily, we wouldn’t be too concerned about legislation being proposed by fringe extremists in the NSW Legislative Council. However, the NSW Government and Opposition have both supported both One Nation Bills being referred to Committee for inquiry – with the anti-trans kids inquiry chaired by Mark Latham himself. Which means we must resist the laws themselves, as well as fighting against toxic debate surrounding them which has the potential to harm vulnerable younger members of our community, and especially trans and gender diverse kids.

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Question 2. How can we ensure that workplaces are inclusive and safe for people from all backgrounds but in particular for the LGBTIQ community?

My answer to this will (thankfully) be significantly shorter than for the previous question, in part because we’ve already discussed some of the reforms that are needed, especially in terms of anti-discrimination law reform, such as repealing the special privileges that allow religious organisations to discriminate against LGBT employees.

This includes amending the Sex Discrimination Act 1984 (Cth) to protect LGBT teachers in religious schools, as well as reforms in the other jurisdictions where LGBT school staff are not fully protected (all states and territories bar Tasmania and the ACT).[x]

It also means ensuring LGBT employees in Government-funded aged care services operated by religious organisations are protected (where people accessing these services are currently covered under the SDA, but staff in those same facilities are not). There are several reasons for this, including because it is unfair on employees:

‘People should be hired, not hired or even fired, on the basis of how well they are able to provide care and support to the people accessing aged care services, not who they are attracted to or how they identify.’[xi]

It is also unfair on people accessing these services, who ‘have the right to expect the highest possible standard of care. That is not provided when an aged care service refuses to employ highly-qualified people simply because they are lesbian, gay, bisexual or transgender.’[xii]

The same reasons also apply in terms of fighting against the Commonwealth Government’s proposed Religious Discrimination Bill, especially in the era of coronavirus. That’s because the 2nd Exposure Draft Religious Discrimination Bill allows hospitals to hire the most religious, not the most qualified: 

‘Surely, that must have an impact on the standard of care that patients will receive. Imagine the worry if one of your loved ones is taken to the emergency department of a faith-based hospital and you can’t be certain whether the health practitioner is there because of what they believe, not what they can do.’

Likewise, the proposed Religious Discrimination Bill allows aged care facilities to hire the most religious, not the most qualified. As I wrote earlier this year: ‘As someone with a grandmother who turned 99 last Wednesday, and who is in a nursing home, I would hate to think she is being cared for by someone who is there because of their views and not their vocational skills’.

[Both quotes taken from my March 2020 article Coronavirus and the Religious Discrimination Bill which I think holds up pretty well, 9 months later, as a strong argument against the RDB when the Morrison Government inevitably brings it back it in the first half of 2021.] 

But repealing religious exceptions is not the only law reform needed to make workplaces inclusive and safe for people from all backgrounds, and in particular for the LGBTIQ community.

One specific reform that should be introduced as a matter of priority are amendments to the Fair Work Act 2009 (Cth) to ensure it treats trans, gender diverse and intersex employees exactly the same as lesbian, gay and bisexual ones.

Currently, the adverse action protections in section 351(1), and unlawful termination protections in section 772(1)(f), of that Act cover sexual orientation, but do not explicitly include gender identity or sex characteristics.[xiii]

Unfortunately, despite this issue being raised repeatedly with the Turnbull and Morrison Governments, they do not appear to be in any hurry to remedy this omission.

A broader structural reform to anti-discrimination law is ensuring it is able to deal with real-life people, who are complex and have multi-faceted characteristics (covering race, sex, age, disability, sexual orientation, gender identity, sex characteristics and more attributes besides).

Often, it is impossible for people to know whether they have been discriminated against because of a particular protected attribute, or a combination of attributes. Any definition of discrimination must be able to deal with this complexity, and uncertainty. In my perspective, one of the best approaches is found in section 8 of the ACT Discrimination Act 1991:

‘Meaning of discrimination

(1) For this Act, discrimination occurs when a person discriminates either directly, or indirectly, or both, against someone else.

(2) For this section, a person directly discriminates against someone else if the person treats, or proposes to treat, another person unfavourably because the other person has 1 or more protected attributes.

(3) For this section, a person indirectly discriminates against someone else if the person imposes, or proposes to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because the other person has 1 or more protected attributes.’

One final point that should be mentioned, if we are genuine about making workplaces inclusive and safe for people from all backgrounds, is that there is a gap in terms of anti-discrimination protections around religious belief, and lack of belief.

It is unacceptable that the Commonwealth, NSW and South Australian anti-discrimination regimes do not protect people of faith, and no faith, against discrimination – this is something that should be addressed.

But it must not be addressed in the way proposed by the Commonwealth Religious Discrimination Bill, or the Mark Latham/One Nation Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020 in NSW. Because they are just as unacceptable.

People of faith, and no faith, should be protected against discrimination on exactly the same terms as everyone else, including to the same standard as sexual orientation, gender identity and sex characteristics.

People of faith, and especially faith-run organisations, must not be given new special privileges to discriminate against others, including people of minority faiths or no faith, as well as women, LGBTIQ people, single parents, divorced people and people in de facto relationships, people with disability and plenty more.

Doing this one simple thing – protecting everyone against discrimination, equally – would help create an Australia where all people are accepted for who they are. And it would be a great leap forward for LGBTIQ people of faith too, many of whom experience discrimination on the basis of both sexual orientation/gender identity/sex characteristics and faith.

Footnotes:


[i] The information in this, and following, paragraph(s) is summarised from the website of Intersex Human Rights Australia. Please check them out here.

[ii] I made a submission to this inquiry way back in July 2013.

[iii] Please see my Submission to AHRC Consultation re Medical Interventions on People Born with Variations of Sex Characteristics.

[iv] This issue – financial barriers to trans healthcare – is something we don’t discuss enough. For more, see: Trans out-of-pocket medical costs.

[v] For more, see: Australia’s (Mis)Treatment of LGBTI Refugees.

[vi] For more, see: Did You Know? The NSW Anti-Discrimination Act Doesn’t Protect Bisexuals Against Discrimination.

[vii] For more, see: What’s Wrong With Tasmania’s Anti-Discrimination Act 1998? 

[viii] An issue I raised in my Submission re Queensland Criminal Law (Historical Homosexual Convictions Expungement) Bill 2017

[ix] For more, see: No, We Don’t Have Marriage Equality Yet.

[x] For more, see: Back to School, Back to Discrimination for LGBT Students and Teachers

[xi] From my Submission to [the] Royal Commission into Aged Care.

[xii] Ibid.

[xiii] For more, see: Unfairness in the Fair Work Act.

Private Lives. Public Discrimination. Political Exacerbation.

In November, La Trobe University’s Australian Research Centre in Sex, Health and Society (ARCSHS) released ‘Private Lives 3: The Health and Wellbeing of LGBTIQ People in Australia’. 

Building on reports in 2005 and 2011, Private Lives is Australia’s largest national survey of the health and wellbeing of lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) people.

Covering a diversity of topics, from households and relationships, to housing and homelessness, general health and wellbeing, mental health and wellbeing, alcohol, tobacco and other drug use, and intimate partner and family violence (among others), it makes for both fascinating reading and invaluable research. I strongly encourage you to download and read it.

However, as someone with a particular interest in all things LGBTIQ discrimination, it is their section on ‘Discrimination, harassment and feelings of acceptance’ I will focus on today.

The Private Lives 3 findings in this area are, frankly, disturbing.

Asked, ‘to what extent do you feel accepted in the following situations?’, just 60.7% of LGBTIQ Australians answered ‘a lot’ or ‘always’ in relation to work.

That figure dropped to 55.3% in educational institutions, and 43.4% when accessing a health or support service.

Only 30.5% of LGBTIQ people said they felt accepted a lot or always in public (eg in the street/park), and a perhaps unsurprising but still shockingly low figure of 10.5% at religious or faith-based events or services.

It is also unsurprising that cisgender members of the LGBTIQ community reported higher rates of acceptance than trans and non-binary people.

For example, while 68.5% of cisgender men and 61% of cisgender women felt accepted a lot or always at work, this fell to 50% for trans women, 48.8% for trans men and just 43% for non-binary people.[i]

There was a similar divergence in terms of acceptance by sexual orientation, with gay and, to a lesser extent, lesbian respondents reporting higher rates than bisexual, pansexual, queer and asexual people.

For example, while 69.6% of gay and 63.8% of lesbian people said they felt accepted at work always or a lot, just 53.6% of bisexual, 54.5% of pansexual, 54.5% or queer and 47.4% of asexual people said the same thing.[ii]

The responses to the question ‘In the past 12 months, to what extent do you feel you have been treated unfairly because of your sexual orientation or gender identity?’ are just as disturbing (if not more). As the authors (Hill, Bourne, McNair, Carman and Lyons) observe on page 40:

‘Almost six in ten participants reported that they had been treated unfairly to some degree (either a little, somewhat, a lot or always) because of their sexual orientation in the past 12 months, with 4.5% reporting a lot or always. Over three quarters (77.5%) of trans and gender diverse participants reported that they had been treated unfairly to some degree because of their gender identity in the past 12 months, with 19.8% reporting a lot or always.’

Even more shocking are the high reported rates of experiences of vilification – and worse – based on sexual orientation and/or gender identity. In the previous 12 months:[iii]

  • 34.6% of respondents reported experiencing verbal abuse (including hateful or obscene phone calls) due to their sexual orientation or gender identity
  • 23.6% experienced harassment such as being spat at and offensive gestures
  • 22.1% received written threats of abuse via emails or social media
  • 14.6% experienced threats of physical violence, physical attack or assault without a weapon
  • 11.8% experienced sexual assault
  • 11.4% received written threats of abuse in other ways
  • 10% experienced refusal of service
  • 9.9% experienced refusal of employment or being denied promotion
  • 5.3% received written threats of abuse via graffiti, and
  • 3.9% experienced physical attack or assault with a weapon (knife, bottle, stones).

‘Overall, trans and gender diverse participants reported higher levels of harassment and abuse than cisgender participants. For example, a greater proportion of trans women (51.6%), non-binary participants (49.4%) and trans men (45%) reported verbal abuse in the past 12 months due to their sexual orientation or gender identity compared to 28.7% of cisgender women and 32.7% of cisgender men.’

This is nothing short of an epidemic of discrimination, harassment, vilification and violence against LGBTQ Australians on the basis of their sexual orientation and, especially, gender identity. And it is getting worse, not better.

For example, reported rates of verbal abuse increased from 25.5% in Private Lives 2 (released in 2011) to 34.6% in Private Lives 3; harassment such as being spat at and offensive gestures rose from 15.5% in PL2 to 23.6% in PL3; physical attack or assault with a weapon doubled, from 1.8% to 3.9%; and sexual assault quadrupled, from 2.9% to 11.8%.

Let me think, what happened in the period between Private Lives 2, and the survey period for Private Lives 3 (from 24 July to 1 October 2019), which could have caused greater homophobia, biphobia and transphobia in the Australian community?

It seems undeniable that the Coalition Government’s proposed plebiscite on same-sex marriage, and actual postal survey – and the toxic public debate surrounding both – has directly contributed to increased anti-LGBTQ prejudice.

Nor should we underestimate the negative impact of the ‘religious freedom’ movement which they deliberately unleashed, with the Religious Freedom Review in 2018, and the Morrison Government’s First Exposure Draft Religious Discrimination Bill which was released right in the middle of the Private Lives 3 survey period, in August 2019.

What should happen from here?

The Private Lives 3 survey results show us the scale of the problem: appalling rates of discrimination, harassment, vilification and violence against LGBTQ Australians on the basis of their sexual orientation and, especially, gender identity. And we have a pretty good idea about who is to blame (at least for making the situation much, much worse than it already was). But what is the solution?

I would argue the following three actions would be a good place to start (although I’m sure readers of this blog could offer other useful suggestions, via the comments section below):

  1. Improve LGBTI anti-discrimination laws

The introduction of Commonwealth anti-discrimination protections for the LGBTI community, through the historic Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, was an important step, although by no means the end of the journey.

As I have written previously, these laws need to be strengthened, including by:

  • Updating ‘intersex status’ to ‘sex characteristics’
  • Protecting LGBT students, teachers and other staff in religious schools against discrimination
  • Limiting overly-generous religious exceptions that permit discrimination against LGBT people across many areas of public life, and
  • Appointing a Commissioner for Sexual Orientation, Gender Identity and Sex Characteristics at the Australian Human Rights Commission.

Discrimination in employment, especially against trans and gender diverse employees as identified in Private Lives 3, also needs to be addressed by explicitly including gender identity and sex characteristics in adverse action and unlawful termination provisions of the Fair Work Act 2009 (Cth). 

2. Introduce LGBTI anti-vilification protections

One of the long-standing, missing pieces of LGBTI law reform, at least at Commonwealth level, is protection against anti-LGBTI vilification. The high rates of hate-speech reported through Private Lives 3 has merely confirmed the urgency of addressing this gap.

As I hav consistently advocated over many years,[iv] given homophobia, biphobia, transphobia and intersexphobia can be just as harmful as racism, the Sex Discrimination Act 1984 (Cth) should be amended to prohibit anti-LGBTI vilification on an equivalent basis to the prohibition of racial vilification in section 18C of the Racial Discrimination Act 1975 (Cth).

3. Publicly-fund programs against homophobia, biphobia, transphobia and intersexphobia

Being an advocate for LGBTI law reform, it is easy to forget that changing the law can only ever be one part of the solution – and often only a small part at that.

To address the ongoing, high levels of anti-LGBTQ discrimination in employment, healthcare, education and other areas of public life identified in Private Lives 3, we need well-funded, publicly-funded campaigns explicitly targeting homophobia, biphobia, transphobia and intersexphobia.

We also need our elected representatives to lead by example, by calling out prejudice on the basis of sexual orientation, gender identity and sex characteristics, and making sure anti-LGBTIQ comments are never acceptable in public debate.

What is actually happening?

Unfortunately, when we examine what is being done in relation to the three actions described above, the answer is not much. In fact, worse than just political inaction, the Coalition Government seems intent on exacerbating these problems rather than solving them.

For example, the proposed Religious Discrimination Bill – which Attorney-General Christian Porter recently confirmed remained part of the Government’s legislative agenda – would make it easier for religious individuals and organisations to discriminate against LGBTIQ Australians, including by refusing to provide healthcare services that benefit members of our communities (for more, see The ‘Bad Faith’ Religious Discrimination Bill Must Be Blocked).

That same legislation also calculatingly, and explicitly, undermines state and territory anti-vilification laws (where they exist), by making it easier for people to make comments that ‘offend, humiliate, intimidate, insult or ridicule’ LGBTI people as long as those comments are motivated by faith. This includes over-riding the ‘best practice’ Anti-Discrimination Act 1998 (Tas).

As for culture change, then-Prime Minister Malcolm Turnbull first ‘gutted’ then abolished entirely the national, evidence-based program targeting bullying against LGBT kids in schools (Safe Schools).

Meanwhile, current Prime Minister Scott Morrison has publicly attacked school counsellors who support trans and gender diverse children, deriding them as ‘gender whisperers’ in a now-infamous tweet. And he has taken more concrete action to remove trans-inclusive toilet door signs in the Department of Prime Minister & Cabinet, than he has to implement his 2018 promise to protect LGBT students in religious schools against discrimination (for more, see ‘Scott Morrison’s Broken Promise to Protect LGBT Students is Now Two Years Old).

The findings of Private Lives 3 reveal a bushfire of bigotry is burning in the Australian community – but far-too-often our elected representatives are the ones who are fanning the flames.

Of course, it isn’t just the Commonwealth Government who should be taking action to address discrimination, harassment, vilification and violence against LGBTQ Australians. Our state and territory governments, too, need to step up, including by modernising their own anti-discrimination laws.[v] The Anti-Discrimination Act 1977 (NSW), and Equal Opportunity Act 1984 (WA) in particular have fallen far, far below community standards.

Victoria, Western Australia, South Australia and the Northern Territory also need to introduce their own LGBTI anti-vilification laws (in addition to the Commonwealth), while it is probably fair to say all Governments could be doing more to combat homophobia, biphobia, transphobia and intersexphobia in their respective jurisdictions.

Nevertheless, I would argue that the sheer size of the challenge which confronts us, as so disturbingly revealed in the ‘Discrimination, harassment and feelings of acceptance’ pages of Private Lives 3, demonstrates a national approach is desperately needed.

That obviously means stopping those things which would simply make the problem worse – including by abandoning any Religious Discrimination Bill that would undermine the rights of LGBTIQ Australians. But it also requires positive steps to make things better.

We’ll find out in 2021 whether the Commonwealth Government, and Parliament more broadly, is willing to do that which is necessary – or allow anti-LGBTIQ prejudice to rage on.

Footnotes:


[i] The rates of acceptance at health services were even lower, showing a significant drop-off for cisgender women. Specially, while 55.5% of cisgender men felt accepted ‘a lot/always’, this fell to 42.4% for cisgender women, 46.5% for trans women, 30.1% for trans men and just one in five non-binary people (21.5%).

[ii] The rates of acceptance at health services were even lower. Only gay respondents felt accepted ‘a lot/always’ more often than not (54.8%), compared to just 40.1% of lesbian, 43.8% bisexual, 37.3% pansexual, 26.7% queer and 33.3% asexual respondents. 

[iii] Check out the full list on page 40 of the Private Lives 3 Report.

[iv] See also: ‘Did You Know? Most Australian Jurisdictions Don’t Prohibit Anti-LGBTI Vilification‘.

[v] For a comprehensive discussion of LGBTI anti-discrimination protections around the country, see: A Quick Guide to Australian LGBTI Anti-Discrimination Laws

Submission re 2020 ALP National Platform – Consultation Draft

30 November 2020

ALP National Policy Forum

Lodged online: https://www.alp.org.au/platform-consultation-draft/

To members of the ALP National Policy Forum

Submission re 2020 ALP National Platform – Consultation Draft

I am writing to provide my individual feedback on the 2020 ALP National Platform, as released for public consultation.

I do so as a long-term advocate for the rights of the lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) community, and as someone who was responsible for providing wording on multiple policy issues which were included in the 2015 National Platform (many of which were retained in the 2018 National Platform, although most have subsequently been excluded from the current version).

I acknowledge the intent of the Consultation Draft: ‘A Platform of this kind would be much more significant and carry much more weight. But it also needed to be much shorter’ [emphasis added]. This is reflected in the abbreviated document released this year: at 96 pages, it is just over one-third the length of the 2018 version (which was 268 pages, plus the Party’s constitution).

However, Labor’s LGBTIQ policy commitments have been reduced by much more than this ratio. Indeed, it would not be an exaggeration to say that the LGBTIQ content of the 2018 National Platform has been gutted in the 2020 Consultation Draft.

At a simplistic level, this can be seen in the decline in usage of the term LGBTIQ itself: from 45 times in the 2018 National Platform, to just six times in the 2020 consultation draft. This is a massively disproportionate reduction.

But this decline is much more than just the use of fewer words. This reduction represents large, and substantive, cuts to the ALP’s policy commitments to achieving LGBTIQ equality. The LGBTIQ community should be alert and alarmed about the potential for the Labor Party to walk away from its previous policies to improve the lives of LGBTIQ Australians.

In this submission, I will start by focusing on four particular, and particularly-important, issues (three where previous commitments have been abolished entirely, and one where the proposed commitments are seriously inadequate) before providing comments on the specific chapters of the Consultation Draft, as well as the statements in detail.

  1. Ending Coercive Medical Interventions on Intersex Children

In my view, the most egregious human rights abuses against LGBTIQ people in Australia are the ongoing coercive medical interventions, including surgical and hormonal interventions, to alter the sex characteristics of children born with intersex variations.[i]

For this reason, the inclusion of this commitment, on para 75 on page 144 of the 2018 National Platform, was welcome:

‘Parents of intersex children can be pressured to hormonally or surgically intervene on their children if they don’t receive medically correct advice, information or support about how to parent an intersex child. Labor will ensure deferral of non-necessary medical intervention on infants and children with intersex variations until such time as the person concerned can give their informed consent is supported. Labor commits to promote and support a human rights-based patient consent model for accessing lifetime medical treatments and procedures. Labor will prohibit modifications to sex characteristics undertaken for social rationales without informed consent and ensure intersex persons’ right not to undergo sex assignment treatment is respected.’

Conversely, the removal of this policy, and the total absence of any equivalent commitment to preventing involuntary medical treatments on intersex kids in the 2020 Consultation Draft, are deeply worrying.

I strongly urge the National Policy Forum, and ALP generally, to recommit to ending these abhorrent and harmful practices, by including the following statement (as proposed by leading intersex advocate Morgan Carpenter):

Recommendation 1.

‘Labor will recognise the bodily integrity of intersex persons, prohibiting modifications to the sex characteristics of people with innate variations of sex characteristics performed for social or cultural reasons, and ensuring respect for intersex persons’ right not to undergo sex ‘normalisation’ treatment. Labor commits to supporting the development and implementation with community participation of human rights-affirming oversight and standards of care, including for accessing lifetime medical treatments and procedures.’

2. Removing out-of-pocket costs for trans and gender diverse healthcare

Another significant issue for Australia’s LGBTIQ community where the 2020 Consultation Draft represents a backwards step compared to the 2018 National Platform is removing out-of-pocket costs for trans and gender diverse healthcare. Paragraph 74 on page 144 of the 2018 document previously provided that:

‘Labor acknowledges the right of all Australians, including transgender and gender diverse people, to live their gender identity. For many, this includes accessing specialist health services and for some people can involve gender affirming medical technologies. Costs should not be a barrier to accessing these services. Labor commits to removing, wherever possible, barriers to accessing these services and consulting with experts in government. This should materialise in a focus on creating fair, equal and affordable access to medical care and treatments relevant to trans and gender diverse Australians.’

Once again, there is no equivalent commitment in the 2020 Consultation Draft. Instead of axing this policy, I believe the Labor Party should be strengthening its commitment, by including a modified version of the above paragraph:

Recommendation 2.

‘Labor supports the rights of trans and gender diverse people to live their gender identity. For many, this includes accessing specialist health services and for some people can involve gender affirming treatment, including surgery. Costs should not be a barrier to accessing these services. Labor commits to overcoming these barriers by removing out-of-pocket costs for trans and gender diverse healthcare.’[ii]

3. Restate commitment to ending the HIV epidemic

Perhaps the most surprising omission in the 2020 Consultation Draft is the complete exclusion of any and all references to HIV, likely for the first time in decades. In the midst of the coronavirus pandemic, it seems strange to remove commitments to addressing the HIV epidemic, especially when lessons from our best practice approach to HIV are valuable in responding to COVID-19 – and, above all, when the HIV epidemic is ongoing.

I note that paragraphs 103 and 104 on page 150 of the 2018 National Platform included the following:

‘Labor has a proud record in HIV policy. Bipartisan national leadership in partnership with affected communities and other organisations, clinicians and researchers has prevented a generalised epidemic.

‘HIV notifications, however, remain too high. Labor is especially concerned that HIV notifications have steadily increased among Aboriginal and Torres Strait Islanders and are now double the rate of other Australians. Notwithstanding these challenges, Australia has an unprecedented opportunity to end HIV transmission. Labor commits to the United Nations Political Declaration on HIV and AIDS, which provides the global framework for action on HIV, including through the UNAIDS Fast-Track 95-95-95 targets to end the HIV epidemic. Labor’s commitment to making HIV history will include restoring the capacity that the Liberals have cut from HIV peak organisations; funding new efforts to promote HIV prevention, testing, and treatment in ‘hidden populations’; and ensuring affordable access to pre-exposure prophylaxis (PrEP) via the PBS.’

Recommendation 3.

The National Policy Forum should restate the ALP’s commitment to ending the HIV epidemic, and consult with the Australian Federation of AIDS Organisations (AFAO), National Association of People with HIV Australia (NAPWHA), and leading HIV advocates and experts, on what specific policy proposals are required to achieve this in the 2020s.

4. Improving LGBTI anti-discrimination protections

One area where the ALP’s commitments have not been completely removed (although some have nevertheless been excised) – but where the 2020 Consultation Draft remains highly deficient – is the issue of LGBTI anti-discrimination law reform.

Paragraph 30(b) on page 53 includes the following, general and very high-level statement: ‘Labor will work closely with LGBTIQ Australians to develop policy to… strengthen laws and expand programs against discrimination and harassment on the basis of sexual orientation, gender identity, sex characteristics and queer status.’

While obviously welcome, the lack of specificity in this paragraph means it is unclear what position a future Labor Government would take on a range of important measures that fall within this over-arching statement, including:

  • Protecting LGBT students, teachers and other staff against discrimination by religious schools, colleges and universities
  • Protecting LGBT employees and people accessing services in relation to other religious organisations delivering public services like healthcare, housing and accommodation, and other welfare services (including removing the ability of religious aged care services to discriminate against LGBT employees)
  • Updating terminology in anti-discrimination legislation, including replacing the protected attribute of intersex status with ‘sex characteristics’, as advocated by Intersex Human Rights Australia and in the March 2017 Darlington Statement
  • Introducing prohibitions on vilification on the basis of sexual orientation, gender identity and sex characteristics, on an equivalent basis to existing racial vilification prohibitions in the Racial Discrimination Act 1975 (Cth) (with the necessity of this reform highlighted by the homophobia, biphobia, transphobia and intersexphobia whipped up by the Liberal/National Government’s unnecessary, wasteful and harmful 2017 same-sex marriage postal survey),[iii] and
  • Appointing an LGBTIQ Commissioner within the Australian Human Rights Commission (noting that paragraph 90 on pages 213-214 of the 2018 National Platform included a commitment that: ‘Labor will… [e]stablish under the Australian Human Rights [Commission] Act 1986 a new Commissioner for Sexual Orientation, Gender Identity and Intersex Status issues, to work across government and the private sector to reduce discrimination’).[iv]

Another LGBTI discrimination-related issues which is not addressed in the 2020 Consultation Draft is the fact neither gender identity nor sex characteristics are explicitly included as protected attributes in the Fair Work Act 2009 (Cth), leaving trans, gender diverse and intersex employees with uncertain workplace rights, including unclear protections against adverse action and unlawful termination.[v]

Perhaps most concerningly, at least in the short term, the 2020 Consultation Draft does not express a position on the Commonwealth Government’s proposed Religious Discrimination Bill, legislation that would significantly undermine the rights of lesbian, gay, bisexual, transgender, intersex and queer Australians to engage in public life without fear of discrimination.

I strongly urge the National Policy Forum to take a stand on this issue, and in particular to commit to only supporting anti-discrimination laws covering religious belief and activity where they do not undermine the rights of others, including women, LGBTIQ people, people with disability, single parents, divorced people and even people of minority faiths.[vi]

Recommendation 4.

‘Labor will work closely with LGBTIQ Australians to develop policy to strengthen laws and expand programs against discrimination, harassment and vilification on the basis of sexual orientation, gender identity, sex characteristics and queer status, including by:

Amending the Sex Discrimination Act 1984 (Cth), Australian Human Rights Commission Act 1986 (Cth) and related laws to:

  • Protect LGBT students, teachers and other staff against discrimination by religious schools, colleges and universities
  • Protect LGBT employees and people accessing services against discrimination by religious organisations delivering public services including healthcare, housing and accommodation and other welfare services (including removing the ability of religious aged care services to discriminate against LGBT employees)
  • Update the protected attribute of intersex status to sex characteristics
  • Introduce vilification protections on the basis of sexual orientation, gender identity and sex characteristics, and
  • Appoint a Commissioner for Sexual Orientation, Gender Identity and Sex Characteristics within the Australian Human Rights Commission.

Amending the Fair Work Act 2009 (Cth), to explicitly include gender identity and sex characteristics as protected attributes, including for the purposes of adverse action and unlawful termination provisions.

Only supporting the introduction of Commonwealth anti-discrimination legislation covering religious belief and activity where it does not undermine the rights of women, LGBTIQ people, people with disability, single parents, divorced people, people of minority faiths and others to live their lives free from discrimination.

**********

I will now provide specific comments in relation to the individual Chapters of the Consultation Draft (where relevant), as well as the Statements in Detail.

Chapter 1: Building Australia’s Prosperity

No comments.

Chapter 2: Developing Our People

On page 22, at paragraph 8, the sentence ‘Labor will continue to support policies that aim to remove remaining barriers, including those based on gender, age, race, ethnicity, sexuality or disability status’, should be amended to also include gender identity and sex characteristics.

On page 23, at paragraph 19, I note this would be an appropriate place to include the commitment to explicitly protect gender identity and sex characteristics in the Fair Work Act 2009 (Cth) (as outlined as part of recommendation 4, above).

I also suggest the National Policy Forum include a commitment here that the ALP will work with trans and gender diverse communities to introduce workplace entitlements to paid transition leave, to help support increased participation by trans and gender diverse Australians in the workforce.

On page 29, at paragraph 63, I note the detailed commitments around the national curriculum no longer include the following policy from page 150, paragraph 109 of the 2018 National Platform:

‘Labor will ensure sex education includes all sexualities and gender identities. Labor will ensure the sex education curriculum is kept up-to-date and reviewed regularly by both non-government organisations and experts working in LGBTI health.’

I urge the National Policy Forum to reinstate a commitment to ensuring the national curriculum, including the health and physical education curriculum, is inclusive of LGBTI students and has content relevant to their needs.

Chapter 3: Climate Change, Energy and the Environment

No comments.

Chapter 4: A Strong and Healthy Society

On page 42, after paragraph 21, I note this would be an appropriate place to include a restated commitment to ending the HIV epidemic, and associated policy proposals as agreed with AFAO, NAPWHA and others (as detailed at Recommendation 3, above).

Chapter 4 would also be an appropriate location for a strengthened policy to remove out-of-pocket costs for trans and gender diverse healthcare (as outlined at Recommendation 2).

Finally, I note the 2018 National Platform included a commitment to ‘develop a national LGBTIQ health plan, to [among other things] address the particular health needs of LGBTIQ people, working in partnership with these communities and LGBTI health bodies.’

I believe the National Policy Forum should reinstate this commitment, given ongoing health issues across the LGBTIQ community, including in relation to mental health. 

Chapter 5: An Equal and Inclusive Nation

I note the section ‘Equal rights for LGBTIQ Australians’ would be an appropriate place for the contents of Recommendation 4 described above to be included (and in particular replacing paragraph 30(b) on page 53).

I further note the LGBTIQ health-related commitments in paragraph 30(c) are not a substitute for a national LGBTIQ health plan (mentioned in relation to the previous chapter), while policies to support national intersex-led organisations in paragraph 30(d) do not obviate the need for specific policies to end involuntary medical interventions on intersex children (as called for in Recommendation 1 of this submission).

In terms of paragraph 30(e), and its commitments in relation to trans and gender diverse identity documentation, I note major problems still exist at state and territory level, and especially in NSW, Queensland and Western Australia.[vii]

The National Policy Forum should be urging Labor Governments in Queensland and Western Australia to urgently amend their respective births, deaths and marriages laws to allow trans and gender diverse people to update their identity documents on the basis of self-identification, without the need for surgery or other medical approval or ‘gate-keeping’.

Similarly, the NSW Labor Opposition should be encouraged to support equivalent reforms there – and, if the NSW Liberal/National Government does not progress these changes, for Labor to introduce them in the first 100 days of any incoming administration.

I have two particular concerns about paragraph 31 on page 53, which currently reads:

 ‘Labor will ensure schools are welcoming and supportive environments for all students and teachers, regardless of their gender identity and sexuality. We will support programs that promote understanding, tolerance and respect for every student.’

First, this commitment could be strengthened to provide absolute certainty that it applies to all schools: government, private and/or religious.

Second, the commitment in the second sentence is a significantly watered-down version of the position in the 2018 National Platform (paragraph 60 on page 119):

‘Schools must be safe environments for students to learn and for teachers to teach – including same sex attracted, intersex and gender diverse students and teachers. Labor will continue working with teachers, students and schools to stop bullying and discrimination, ensuring a safe place for LGBTI students to learn by properly resourcing inclusion and anti-bullying programs and resources for teachers. Labor will continue to support national programs to address homophobia, biphobia, transphobia and anti-intersex prejudice in schools. This includes ensuring gender diverse students are able to express the gender they identify with.’

I believe the 2020 version, and its absence of specific support for targeted programs addressing homophobia, biphobia, transphobia and intersexphobia, underestimates the prevalence of such discrimination, and the harms that continue to be caused to LGBTI students.

Recommendation 5.

Paragraph 31 on page 53 be replaced with the following:

‘Labor will ensure all schools are welcoming and supportive environments for all students, teachers and other staff, regardless of their sexual orientation, gender identity and sex characteristics. We will support programs that promote understanding, acceptance and respect for every student, including programs to specifically address homophobia, biphobia, transphobia and intersexphobia.’

In my view, paragraph 32 on page 54, is also deeply flawed, this time for three reasons. First, as survivors have consistently advocated, bans on ‘reparative’ or conversion practices must be exactly that – aimed at practices, rather than the much more limited, and potentially only health-related, ‘therapies’.

Second, it must capture both sexual orientation and gender identity conversion practices (rather than just ‘gay conversion’).

Third, I am concerned that the wording ‘will work with advocates to ensure people are not coerced into undergoing such therapies’ potentially misses the point – it is not just ‘coercion’ that is the problem, it is the practice itself. Policies in this area should be aimed at banning sexual orientation and gender identity-change practices broadly, not just ‘coercion’ into undergoing these practices.

Recommendation 6.

The National Policy Forum consult with survivors of conversion practices in relation to the commitments in paragraph 32 on page 54, and in particular to ensure that:

-It applies to conversion practices (and not just therapies)

-It includes both sexual orientation and gender identity conversion practices, and

-It bans the practices themselves, rather than preventing ‘coercion’ into undergoing such practices.

I am also concerned at the wording on paragraph 33 on page 54, which is an abbreviated form of the commitment at paragraph 105 on page 233 of the 2018 National Platform. In particular, in my view the abbreviation has omitted the more important part of that policy, namely:

‘Labor will work first with our Pacific neighbours, our Indo-Pacific region and the nations of the Commonwealth to encourage the repeal of discriminatory laws, especially criminal laws against homosexual sexual conduct and most urgently against such laws where they impose the death penalty, and will encourage steps to implement the actions required by the Yogyakarta Principles. Labor will work strategically to support and assist both local and international civil society organisations in promoting LGBTIQ human rights.’

I encourage the National Policy Forum to amend the abbreviated commitment in the Consultation Draft to capture these elements, and especially supporting the push for decriminalisation in the Pacific, Indo-Pacific and Commonwealth.

My final comment in relation to the section ‘Equal rights for LGBTIQ Australians’ on pages 53 and 54 is to highlight that it does not include support for any formal mechanisms to consult with, and represent the interests of, LGBTIQ communities. For example, the National Policy Forum should consider expressing support for both:

  • A Commonwealth Minister for Equality, and
  • An LGBTIQ Ministerial Advisory Committee, including sub-committees in relation to health, education, justice and other portfolios as required.

I have a further, important comment to make about the section ‘Freedom of thought, conscience and religion’ on page 55 of the 2020 Consultation Draft.

Specifically, paragraph 41 states:

‘Labor believes in and supports the right of all Australians to manifest their religion or beliefs, and the right of religious organisations to act in accordance with the doctrines, tenets, beliefs or teachings of their faith. Such rights should be protected by law. Labor recognises that the freedom to have or adopt a religion or belief, or not to have or adopt a religion or belief, is absolute.’

While elements of this commitment are appropriate, the way in which it is worded is dangerous. In particular, the right to manifest religion or beliefs must always be limited by the need to protect the fundamental human rights of others, including the right to be protected against discrimination.

As the International Covenant on Civil and Political Rights itself notes, at Article 18.3:

‘Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.’

This vital nuance is currently missing from paragraph 41. In its absence, people of faith and especially religious organisations would be given a blank cheque to discriminate against others, including LGBTIQ Australians.

Recommendation 7.

Paragraph 41 on page 55 be redrafted such that the right to manifest religion or beliefs is limited by the need to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, including the right to participate in public life free from discrimination.

Chapter 6: Strengthening Australian Democracy

No comments.

Chapter 7: Australia’s Place in the World

On page 68, at paragraph 41, I suggest the inclusion of an additional dot point, to the effect that ‘Labor will ensure Australian international development addresses… the empowerment of people with diverse sexual orientations, gender identities and sex characteristics.’

Statements in Detail

On page 82, under the hearing ‘Public sector industrial relations’, where it says ‘Labor will… [l]ead by example on addressing the ill effects of family and domestic violence by introducing public-sector wide standards of paid leave and other supporting entitlements for workers who are affected by family and domestic violence’, I suggest the inclusion of the following:

‘Labor will lead by example on addressing the disadvantage and exclusion experienced by trans and gender diverse people in the workforce by supporting public-sector wide entitlements to paid transition leave.’

Finally, I express my strong personal support for the retention of explicit commitments in the Statements in Detail in relation to LGBTIQ refugees and people seeking asylum. This includes paragraph 24 on page 93:

‘Labor will ensure asylum seekers who self-identify as lesbian, gay, bisexual, transgender, intersex and queer will be assessed by officers who have expertise and empathy with anti-discrimination principles and human rights law. Officers, translators and interpreters at all levels of the assessment process will have specific lesbian, gay, bisexual, transgender, intersex and queer cultural awareness training to ensure the discrimination asylum seekers face in their country of origin or transit are not replicated.’

And paragraph 13 on page 95:

‘Labor will not detain, process or resettle lesbian, gay, bisexual, transgender or intersex refugees or asylum seekers in countries which have criminal laws against any of these communities as it makes these places unsafe environments for all of them.’

**********

In conclusion, I acknowledge even this detailed submission is unable to substantively address all of the many LGBTIQ policy commitments that were included in the 2018 National Platform, but which have subsequently been excluded from the 2020 Consultation Draft.

Some of these now-omitted policies covered:

  • Providing LGBTIQ-inclusive aged care (paragraph 34 on page 110)[viii]
  • Addressing LGBTIQ housing and homelessness issues (paragraphs 166-167 on page 171,[ix] and paragraph 90, on page 214)
  • Ensuring LGBTIQ statistics are collected by the Australian Bureau of Statistics (paragraph 85 on page 213)[x]
  • Establishing a National Gender Centre ‘to provide support and advocacy for transgender Australians, which could have an education and training role to promote awareness about transgender issues to the wider public’ (paragraph 88 at page 213), and
  • Supporting programs to make sport inclusive for LGBTIQ participants (page 195).

To some extent, it is perhaps inevitable that, by choosing to reduce the length of the Platform from 268 pages to 96, the Australian Labor Party’s 2020 Consultation Draft would include fewer detailed commitments in support of LGBTIQ equality and human rights.

What is not inevitable, however, is that these commitments should be cut in such a disproportionate way, as I have demonstrated through this submission. Or that it now excludes important policies around ending coercive medical interventions on intersex children, removing out-of-pocket costs for trans and gender diverse healthcare, restating a commitment to ending the HIV epidemic, or making much-needed improvements to Commonwealth LGBTI anti-discrimination laws.

I strongly urge the National Policy Forum to consider amending the draft Platform to strengthen the Party’s policy commitments in these four areas, and in other ways suggested in my comments on specific chapters and the statements in detail.

Nevertheless, irrespective of what happens in the redrafting process, or at the National Conference in early 2021, it seems highly likely that the Platform adopted next year will be the first in at least a decade, and perhaps the first in a generation, to include fewer commitments in support of LGBTIQ equality and human rights than its predecessor.

In which case, the onus will be on the Leader of the Opposition Anthony Albanese, Shadow Ministry and Federal Parliamentary Labor Party generally to work with the LGBTIQ community in the lead-up to the next election to make detailed policy commitments outside of the Platform so that urgent community needs are still addressed.

Thank you in advance for taking these comments into consideration. Please do not hesitate to contact me at the details provided should you require additional information.

Sincerely

Alastair Lawrie

Opposition Leader Anthony Albanese is highly likely to release the first ALP National Platform in a generation which contains fewer commitments in support of LGBTIQ equality and human rights than its predecessor.

Footnotes:


[i] For background on this issue, please see my Submission to AHRC Consultation re Medical Interventions on People Born with Variations of Sex Characteristics.

[ii] For more, see Trans Out-of-pocket Medical Costs

[iii] Noting that the 2018 National Platform included a commitment to provide effective sanctions against anti-LGBTIQ hate-speech (at paragraph 137, on page 218):

‘When prejudice against LGBTIQ people contributes to harassment by the written or spoken word, such harassment causes actual harm, not simply mere offence, to people who have suffered discrimination and prejudice, and causes particular harm to young same-sex attracted, gender-questioning or intersex people. Labor considers such harmful harassment is an unacceptable abuse of the responsibilities that come with freedom of speech and must be subject to effective sanctions. Labor will ensure that anti-discrimination law provides such effective sanctions.’

[iv] For more on these proposed reforms, see:

What’s Wrong With the Commonwealth Sex Discrimination Act 1984? and

5 Years of Commonwealth LGBTI Anti-Discrimination Law Reforms. 5 Suggestions for Reform.

[v] For more, see Unfairness in the Fair Work Act.

[vi] For more, see The ‘Bad Faith’ Religious Discrimination Bill Must Be Blocked

[vii] For more, see Did You Know? Trans People in NSW and Queensland Still Require Surgery to Update Their Birth Certificates

[viii] ‘As they age, LGBTIQ deserve care and support that reflects their diversity. Labor will ensure policies in relation to ageing take into account the needs of people with different sexual orientations, gender identities and sex characteristics by building on Labor’s previous LGBTIQ Ageing and Aged Care Strategy.’

[ix] ‘There is a significant connection between homelessness and people being subjected to discrimination and harassment for being same-sex attracted or transgender and specifically understands the discrimination and exclusion affecting transgender people seeking to access support. Accordingly, Labor will work with affected communities to enhance housing support for LGBTIQ Australians.’

‘Labor acknowledges that young lesbian, gay, bisexual and transgender people are at significantly higher risk of homelessness, and commits to support dedicated services aimed at addressing this issue.’

[x] An especially significant omission given the decision of the current Liberal/National Government to not include LGBTI questions as part of the 2021 Census. For more on this topic see Census 2021 – Count Me In.

Finally, the 2020 ALP National Platform – Consultation Draft:

And, for comparison, the 2018 ALP National Platform:

Australian trans, gender diverse and intersex employees need better protection, too

On Tuesday morning, Australian news sites and social media feeds alike trumpeted the US Supreme Court decision to protect lesbian, gay, bisexual and transgender (LGBT) employees against discrimination.

As with too many issues of social justice, however, it seems our ability to see discrimination clearly is much better from across the vast Pacific Ocean than it is at home.

I wonder how many of those who shared that welcome news are aware the Fair Work Act here does not protect trans, gender diverse and intersex employees against adverse action and unlawful termination?

That’s because the relevant provisions of our industrial law (sections 351 and 772 of the Fair Work Act 2009 (Cth)) cover ‘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’ – but not gender identity or sex characteristics (intersex status).

The consequence of this exclusion is that trans, gender diverse and intersex employees who are subjected to abuse at work, or even dismissed, on the basis of who they are cannot make a complaint to the Fair Work Commission.

This lack of protection is particularly harmful given these are populations that already experience low rates of employment.

A recent survey by Equality Australia found that, while the proportion of LGBTIQ+ people aged 25 to 64 years who were unemployed or looking for work increased from 6% pre COVID-19 to 10.8% post COVID-19, for trans and gender diverse people specifically it rose from an already-high 10.5% to a shocking 15.2% now.

That’s almost 1-in-6 trans and gender diverse adults unemployed today, with the potential to go much, much higher in coming months.

I raised the lack of protection for trans, gender diverse and intersex employees with the Turnbull Government in 2018, with then-Minister for Small and Family Business, the Workplace and Deregulation, Craig Laundy, rejecting calls to address this legislative gap, instead pointing to general discrimination protections in the Sex Discrimination Act 1984 (Cth) (SDA).

And it’s true that gender identity and intersex status are covered in the SDA – but this ignores the fact complaints to the Australian Human Rights Commission can take much longer to conciliate, and enforcing them may require action in the Federal Court or Federal Circuit Court, at the risk of significant costs orders against the complainant.

In contrast, arbitration by the Fair Work Commission can be much quicker, and it is generally a ‘no-costs’ jurisdiction.

That’s exactly why sex, sexual orientation, marital status, family responsibilities and pregnancy are covered under *both* the SDA and Fair Work Act, allowing parties to choose an expedited, low-cost resolution if it suits their circumstances.

Women, and even lesbians, gay men and bisexuals, discriminated against in the workplace can exercise that choice. As can employees discriminated against on the basis of race, disability and age, who are all protected by their respective federal discrimination Acts, as well having access to the Fair Work Commission.

That choice is denied to some of the most vulnerable members of our community. Trans, gender diverse and intersex employees are confronted by the possibility of longer wait times, and potentially higher costs, to address the same type of dispute.

Of course, a lot has happened in the two years since Minister Laundy refused to fix this problem. The economic crisis brought on by coronavirus means that the Government, business and unions are now involved in consultations on how to reform the industrial relations regime to get people back to work.

This is an ideal opportunity for Prime Minister Morrison, and Attorney-General Porter – who is also the Minister for Industrial Relations – to help trans, gender diverse and intersex Australians into employment, and to protect them against possible mistreatment once there.

This is obviously not the only employment-related discrimination provision that needs updating (hello LGBT teachers in religious schools outside Tasmania and the ACT, LGBT employees in religious aged care homes and other service delivery organisations outside Tasmania, bisexual employees in the NSW public service, and non-binary and intersex employees in the NSW, Victorian, Queensland, WA and NT public services, too – see A Quick Guide to Australian LGBTI Anti-Discrimination Laws).

Indeed, Australia’s LGBTI anti-discrimination regime could perhaps be described as a ‘patchwork’ – except it is still missing far too many patches and for too many of us it simply doesn’t work.

But it is possibly the problem that is most easily fixed. It would only take a couple of quick legislative stitches to ensure trans, gender diverse and intersex people finally enjoy the cover of the Fair Work Act.

Take Action

As indicated above, the Morrison Government is currently engaged in consultation with business and unions about its coronavirus-related industrial relations reforms. Which means now is the perfect time to ask for the Fair Work Act 2009(Cth) to be amended to cover gender identity and sex characteristics (intersex status). Why not start with the AG himself:

The Hon Christian Porter MP

Attorney-General and Minister for Industrial Relations

PO Box 6022

House of Representatives

Parliament House

Canberra ACT 2600

(02) 6277 7300

Online contact

Twitter: @cporterwa

Update 21 June 2020:

It has been brought to my attention that there is a possibility the Fair Work Commission would interpret ‘sex’ to include gender identity and potentially intersex status, based on this information on their website.

However, this interpretation is open to legal challenge, and may be overturned in the Federal Court. I remain of the view 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.

Untitled design-4

The US Supreme Court decision highlights the lack of Fair Work Act coverage of trans, gender diverse and intersex employees in Australia.

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Cooperative workplaces must be trans and intersex inclusive workplaces

The Commonwealth Attorney-General’s Department has issued a consultation paper titled: ‘Cooperative Workplaces – How can Australia capture productivity improvements from more harmonious workplace relations’.

 

Submissions are due by Friday 28 February 2020. The following is mine:

 

Attorney-General’s Department

via IRconsultation@ag.gov.au

 

Monday 24 February 2020

 

To whom it may concern

 

Cooperative workplaces must be trans and intersex inclusive workplaces

 

Thank you for the opportunity to provide this submission in response to the Cooperative Workplaces consultation paper.

 

I do so as a long-term advocate on behalf of the lesbian, gay, bisexual, transgender and intersex (LGBTI) community.

 

In this submission I will focus on the following questions posed in the paper:

2. To what extent do employees benefit from cooperative workplaces?

7. How does the Australian industrial relations system support and encourage cooperative workplaces?

10. What has been the experience with techniques and practices to foster cooperative workplaces including, but not limited to: …

e) Fair treatment policies and procedures.

 

From my perspective, the benefits of cooperative workplaces flow from all employees being treated fairly and with respect, and where all employees are protected against discrimination on the basis of who they are.

 

If employees are able to bring their full selves to work, without having to hide who they are or fear mistreatment and other forms of abuse, they are likely to be happier, healthier and consequently work better.

 

Unfortunately, this is not the situation for all employees in Australian workplaces today. That’s at least in part because some groups, including trans and gender diverse, and intersex, employees do not enjoy the same rights as other employees.

 

Specifically, while gender identity and intersex status are protected attributes under the Sex Discrimination Act 1984 (Cth), they are not included in equivalent protections in the Fair Work Act 2009 (Cth).

 

For example, the adverse action provisions in sub-section 351(1) cover:

  • Race
  • Colour
  • Sex
  • Sexual orientation
  • Age
  • Physical or mental disability
  • Marital status
  • Family or carer’s responsibilities
  • Pregnancy
  • Religion
  • Political opinion
  • National extraction, and
  • Social origin.

 

Note that this long list does not protect trans, gender diverse or intersex people.

 

The same list of attributes, with the same exclusions, is found in sub-section 772(1)(f), which protects employees against unlawful termination. Meaning that the Fair Work Act does not protect trans, gender diverse and intersex Australians from mistreatment or unfair dismissal based on who they are.

 

There are other exclusions too:

  • Section 153 provides that discriminatory terms must not be included in modern awards. The list of relevant attributes includes sexual orientation, but excludes gender identity and sex characteristics;
  • Section 195 includes a similar prohibition on discriminatory terms in enterprise agreements, and once again omits trans, gender diverse and intersex people;
  • Sub-section 578(c) provides that the Fair Work Commission must perform its functions taking into account ‘the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of 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.’

 

There is literally no requirement for the Fair Work Commission to help prevent or eliminate transphobic and intersexphobic workplace discrimination.

 

This leaves trans, gender diverse and intersex employees at a distinct disadvantage compared to other groups, including lesbian, gay and bisexual employees.

 

Indeed, even a certain infamous footballer was potentially covered against unfair dismissal on the basis of religious belief, whereas one of the main groups that he directed his offensive statements against – transgender Australians – is not.

 

I wrote to the former Prime Minister, Malcolm Turnbull, and the former Minister for Jobs and Innovation, Senator Michaelia Cash, raising this issue in May 2018, calling on them to amend the Fair Work Act to include gender identity and sex characteristics (being the terminology preferred by intersex advocate organisations including Intersex Human Rights Australia) as protected attributes.

 

I received a response to that letter from the then Minister for Small and Family Business, the Workplace and Deregulation, Craig Laundy, in July of that year, rejecting this call.

 

While he stated that ‘The Australian Government believes that discrimination in the workplace is unacceptable and all employees have the right to be free from discrimination at work”, he pointed to the SDA protections as being sufficient:

 

“The Sex Discrimination Act 1984 is the principal legislation providing protection against discrimination or harassment on the basis of sex and/or gender. It also covers discrimination and harassment in the workplace. The Sex Discrimination Act explicitly covers discrimination on the basis of gender identity and intersex status.”

 

Which, to be blunt, entirely misses the point.

 

First, other groups protected by the Fair Work Act, including those based on race, sex, age, disability and even sexual orientation, are covered by both that Act and an equivalent Commonwealth anti-discrimination law. If it is good enough for them, it is good enough for trans, gender diverse and intersex Australians.

 

Second, being included in the Fair Work Act gives people who are mistreated in the workplace, or unfairly dismissed, additional options in terms of making complaints, with potential implications for timing, jurisdiction, costs and compensation. Excluding gender identity and sex characteristics from one puts trans, gender diverse and intersex employees in an inferior legal position.

 

Third, there is a symbolic effect from the exclusion of gender identity and sex characteristics from the Fair Work Act, with many employers possibly viewing anti-trans and anti-intersex workplace discrimination as being less important than other types of workplace mistreatment.

 

Perhaps that is an inevitable outcome when the Government itself, as recently as 2018, was saying the same thing – loudly and clearly – by failing to address this obvious inconsistency, even after it was brought to their attention.

 

With a new Prime Minister, Scott Morrison, a new Attorney-General and Minister for Industrial Relations – both portfolios held by Christian Porter – as well as an apparent interest in ‘cooperative workplaces’, I believe it is essential for the Government to take action on this issue as a matter of urgency.

 

Recommendation 1

The Fair Work Act 2009 (Cth) should be amended to include gender identity as a protected attribute, with a definition based on the definition in the 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.’

 

Recommendation 2

The Fair Work Act 2009 (Cth) should be amended to include sex characteristics as a protected attribute, with a definition settled after consultation with Intersex Human Rights Australia and other intersex individuals and organisations, and based on the definition in the Yogyakarta Principles + 10:

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

 

If these recommendations are implemented, then trans, gender diverse and intersex employees around the country stand to benefit from being able to work with less fear from workplace mistreatment and abuse.

 

In doing so, the Australian industrial relations system will better support and encourage cooperative and harmonious workplaces where people are able to bring their full selves to work (if they so wish).

 

And all workplaces will be encouraged to adopt improved fair treatment policies and procedures, that don’t exclude trans, gender diverse and intersex employees, and don’t treat prohibitions on transphobic and intersexphobic discrimination as somehow less important than prohibitions relating to other protected attributes, including sexual orientation.

 

Overall, Australia would benefit from a significant minority of happier, healthier and yes more productive employees.

 

Thank you for taking this submission into consideration. Please contact me at the details provided should you require additional information.

 

Sincerely

Alastair Lawrie

 

Cooperative workplaces

 

For more, see Unfairness in the Fair Work Act.

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What ever happened to protecting LGBT students against discrimination? An explainer.

In the last 18 months, anti-discrimination law reform has been the subject of considerable public attention.

 

Following the Ruddock Religious Freedom Review, and including multiple Senate inquiries, hopes had been raised that lesbian, gay, bisexual and transgender (LGBT) students might finally be protected against discrimination by religious schools under Commonwealth law.

 

So far, those hopes have been dashed. Despite promising to do so, the Morrison Liberal-National Government failed to pass any changes to the Sex Discrimination Act 1984 (Cth) to repeal or limit the exceptions that allow religious schools to discriminate against LGBT kids prior to the election being called.

 

In this article, I will attempt to explain how we got here (including where things stand now), who is to blame and what will likely happen from here.

 

How did we get here?

 

In November 2017, then-Prime Minister Malcolm Turnbull referred the issue of whether Commonwealth law adequately protects religious freedom to a panel headed by former Liberal Attorney-General Philip Ruddock.

 

This was to appease conservatives within his Government who were seeking to amend Senator Dean Smith’s flawed Marriage Amendment (Definition and Religious Freedoms) Bill 2017 to include even more religious exceptions than it already did.

 

The Ruddock Review investigated a wide range of issues, including religious exceptions to LGBTI anti-discrimination laws, before handing its report to Turnbull in May 2018 – which the Liberal-National Government then sat on.

 

In October 2018, the Sydney Morning Herald published the leaked recommendations of the Review, focusing on proposals to clarify the existing right of religious schools to discriminate against, and expel, LGBT students.

 

This prompted significant public outcry, including from many parents who had no idea that religious schools, funded by enormous amounts of taxpayers’ money, could lawfully mistreat vulnerable kids in such an abhorrent and appalling way.

 

New Prime Minister Scott Morrison responded by saying his Government would amend the Sex Discrimination Act to prohibit discrimination against LGBT students before the end of the year (2018). It is probably also useful to remember he did this in the context of the lead-up to the Wentworth by-election, which the Government feared losing to a backlash from moderate voters (narrator: they did).

 

The Greens introduced their own Bill to the Senate – the Discrimination Free Schools Bill 2018 – that sought to protect both LGBT students and teachers in religious schools. That was then the catalyst for the first Senate inquiry, looking at ‘Legislative exemptions that allow faith-based educational institutions to discriminate against students, teachers and staff’.

 

That Committee reported in late November, recommending that “the Australian Government amend section 37 and remove subsection 38(3) of the Sex Discrimination Act 1984, and amend any other relevant legislative provisions, to prohibit discrimination against students on the grounds of the protected attributes in the Act” [Recommendation 3].

 

This report was immediately followed by Labor introducing their own Bill, the Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018. As the name suggests, its sole focus was on removing discrimination against students, in line with what Morrison had promised in October.

 

However, instead of passing it as he had committed, the Senate referred this Bill off to a second inquiry over the summer break – meaning LGBT students would not be protected for the start of the 2019 school year.

 

In the meantime, the Government finally released the Ruddock Religious Freedom Review in full, in December 2018 (after sitting on it for almost seven months).

 

Morrison and Attorney-General Christian Porter simultaneously provided the Government’s response, in which they abandoned the earlier, explicit promise to protect LGBT students at religious schools, instead committing to send the entire issue of religious exceptions in Commonwealth, state and territory anti-discrimination laws to the Australian Law Reform Commission (ALRC) for yet another review.

 

It was therefore unsurprising when, in February 2019, the Government-dominated Senate Committee inquiring into Labor’s Bill recommended that not only should Labor’s Bill not be passed, but that “the bill, circulated amendments and all relevant matters be referred to the Australian Law Reform Commission for full and proper consideration.”

 

Given the Liberal-National Government’s ongoing opposition to legislation addressing this issue, that meant no amendments to the Sex Discrimination Act 1984 were passed in February or March.

 

Instead, on Wednesday 10 April 2019 – less than 24 hours before the election was called – Attorney-General Porter announced he had referred the issue of religious exceptions to the ALRC for an inquiry lasting 12 months, not reporting back until 10 April 2020.

 

Where do things stand now?

 

Despite the flurry of activity on this issue over the past 18 months, and the past six months in particular, the legal situation now is unchanged:

 

Under the Sex Discrimination Act 1984 (Cth), religious schools are legally permitted to discriminate against, and expel, lesbian, gay, bisexual and transgender students on the basis of who they are.

 

They are also free to fire, and refuse to hire, LGBT teachers and other staff, despite the significant amount of taxpayers’ money used to pay their salaries.

 

This is obviously incredibly disappointing, especially given the supposed bipartisan commitments to address this issue made late last year. Which prompts the equally-obvious question:

 

Who is to blame?

 

While responsibility for major #auspol policy failures like this can usually be shared around, the blame for the lack of action in this particular area lies squarely at the feet of the Morrison Liberal-National Government.

 

The have failed to progress anti-discrimination law reform in four key ways:

 

  1. The Morrison Liberal-National Government refused to introduce its own Bill to protect LGBT students

 

Despite Prime Minister Morrison’s October 2018 commitment to introduce and pass amendments to the Sex Discrimination Act to protect LGBT students before the end of the year, his Government never actually introduced its own Bill to make these changes. Which, you’d have to admit, makes it extremely difficult to actually pass anything.

 

Indeed, if the Liberal-National Government was ‘fair dinkum’ about fulfilling its promise, it would have at least tried to move its own legislation on this issue. With a Prime Minister who is quite fond of saying ‘if you have a go, you get a go’, his Government didn’t bother to have a go at changing this law – meaning LGBT students don’t get a go at learning in a discrimination-free environment.

 

  1. The Morrison Liberal-National Government sought to introduce new powers to discriminate

 

As noted above, the Labor Opposition and Greens both introduced their own Bills to protect LGBT students, and LGBT students and teachers, respectively. The Labor Bill in particular was subject to Senate debate in late 2018, before being referred to the second Committee inquiry.

 

During this debate, the Liberal-National Government introduced amendments that would ensure that, even if religious schools lost their specific exception in section 38(3) of the Sex Discrimination Act, they would continue to be able to discriminate under the general religious exception in section 37(1)(d) [Government amendment KQ147].

 

They also sought to expand the reasonableness test for indirect discrimination to include consideration of whether any “condition, requirement or practice is imposed, or proposed to be imposed, in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed” [Government amendments KQ148, 150 and 151]. This would have effectively expanded rather than restricted the range of groups who could be discriminated against because of religious beliefs to include intersex students as well (among others).

 

Finally, the Government wanted to allow religious schools to discriminate against LGBTI students if it was part of teaching activity (broadly defined to capture “any kind of instruction of a student by a person employed or otherwise engaged by an educational institution”) as long as it was done “in good faith in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed” [Government amendment KQ149].

 

If any or all of the Morrison Government’s amendments had been passed, it would have meant religious schools could have continued to discriminate against LGBT students – it just would have been done under different sections of the Act.

 

  1. The Morrison Liberal-National Government tried to limit changes to preventing expulsion only

 

Another way in which the Government undermined anti-discrimination law reform was by narrowing its scope to preventing religious schools from expelling or refusing to enrol LGBT students, while continuing to allow them to discriminate against, and mistreat, vulnerable kids in other ways.

 

This approach formed part of Prime Minister Morrison’s early rhetoric following the leaking of the Ruddock Review Recommendations in October 2018, as he focused on expulsion: “I don’t think if someone’s at a school they should be kicked out because they have a different sexuality to what might be believed to be the appropriate thing by a particular religious group” [emphasis added].

 

While subsequent debate seemed to broaden to cover all forms of discrimination against LGBT students, in February 2019 Government Senators once again tried to limit the reforms to preventing expulsion only, with The Australian reporting Government members of the Senate Committee sought a deal with the Opposition on this issue (‘ALP stops bid to protect gay kids’, The Australian, 19 February 2019).

 

Thankfully, the Opposition rejected this narrow approach. This is important because there are many different ways in which religious schools can discriminate against LGBT kids, without necessarily expelling them, and they are all harmful (see, for example, my own story here: The longest five years’ ).

 

Only removing the power to expel, while allowing schools to mistreat students in myriad other ways, would have been completely inadequate and inappropriate.

 

  1. The Morrison Liberal-National Government has done everything in its power to delay reform

 

There is absolutely no reason why the Commonwealth Government, and Parliament, could not have passed reforms to the Sex Discrimination Act, protecting LGBT students, before the end of 2018.

 

How can I say that so confidently? Because the ACT Government did exactly that, passing it owns reforms – based on the best practice Tasmanian Anti-Discrimination Act 1998 – between the leaking of the Ruddock Review Recommendations in October and the end of the year. These reforms, which protect both LGBT students and teachers, will commence by 6 June 2019 at the latest.

 

Instead, at Commonwealth level, we have had Labor and Greens Bills, and two Senate inquiries, but no Government legislation and no change to the law.

 

Even worse, we now have a reference to the ALRC that won’t report on the issue until 10 April 2020, meaning any Bill arising from it will likely not be debated until the second half of next year. Consequently, any reforms to protect LGBT students wouldn’t take effect until the start of 2021 – at the earliest.

 

Christian Porter

Attorney-General Christian Porter

 

It is clear, from these four arguments, that the Morrison Liberal-National Government is responsible for the fact LGBT students are still not protected against discrimination as we start the federal election campaign.

 

What people may not be aware of is that they are also responsible for two major threats to LGBT anti-discrimination laws in the near future.

 

The first is the ALRC inquiry itself. Its terms of reference includes the following:

 

consideration of what reforms to relevant anti-discrimination laws, the Fair Work Act 2009 (Cth) and any other Australia law should be made in order to:

  • limit or remove altogether (if practicable) religious exemptions to prohibitions on discrimination, while also guaranteeing the right of religious institutions to conduct their affairs in a way consistent with their religious ethos; and
  • remove any legal impediments to the expression of a view of marriage as it was defined in the Marriage Act 1961 (Cth) before it was amended by the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth), whether such impediments are imposed by a provision analogous to section 18C of the Racial Discrimination Act 1975 (Cth) or otherwise.

 

Now, some people might see the first dot point, and specifically the reference to limiting or removing religious exemptions, as encouraging. And it could be – except that this is also what religious fundamentalist organisations, such as the Australian Christian Lobby, also want (for example, the ACL’s own submission to the Ruddock Review stated that ‘State and Commonwealth Anti-Discrimination laws establish an unhelpful and incomplete framework of religious exemptions which inadequately balance the right of religious freedom against the right to non-discrimination’ before recommending ‘that existing exemptions in anti-discrimination law re reframed as ‘general limitations clauses’).

 

The remainder of that clause – ‘while also guaranteeing the right of religious institutions to conduct their affairs in a way consistent with their religious ethos’ – is where the danger lies. Namely, religious exceptions may simply be replaced by the introduction of positively-framed rights to discriminate against LGBT people.

 

The second dot point is just as problematic. Despite the fact there is limited, or no, evidence that people expressing discriminatory views of marriage are suffering real-world adverse consequences, the ALRC is supposed to give significant attention to ‘protecting’ them.

 

This includes undermining the best practice LGBTI anti-vilification laws found in the Tasmanian Anti-Discrimination Act 1998 (which are equivalent to section 18C of the Racial Discrimination Act, and the primary reason why the RDA has been raised in this context) [For a comparison of LGBTI anti-discrimination and anti-vilification laws, click here].

 

The second threat comes from another part of the Morrison Liberal-National Government’s response to the Ruddock Religious Freedom Review: its commitment to introduce a Religious Discrimination Bill.

 

Once again, this should be a positive development. Most people interested in human rights, including myself, support the inclusion of religious belief or lack of belief as a protected attribute in anti-discrimination law in jurisdictions where it is not currently protected (specifically, the Commonwealth, New South Wales and South Australia). This will help ensure religious minorities are protected against discrimination in education, employment and service delivery.

 

On the other hand, a Religious Discrimination Bill could become a vehicle to include positively-framed rights for religious individuals and organisations to discriminate against others, becoming a stealth ‘Religious Freedom Bill’, in the same way that some Liberal-National MPs and Senators tried to turn a same-sex marriage bill into anti-LGBTI equality legislation.

 

The truth is we will not know which option, good or bad, the Government is pursuing until we see the text of the Bill itself. Which is why Attorney-General Porter’s announcement that the Religious Discrimination Bill would not be released until after the election is so worrying (‘Religious freedom bill fails to meet election deadline’, The Australian, 10 April 2019).

 

Despite saying in December at the release of the Ruddock Religious Freedom Review that “the Religious Discrimination Bill, which we are well-advanced on the drafting of and which we would have out early next year, so that people can see it”, LGBTI Australians will now be kept in the dark on a key new law that could have a significant impact on our rights (although it is probably safe to assume major religious organisations have been consulted on its drafting).

 

Not only has the Morrison Liberal-National Government stopped laws to protect LGBT students against discrimination from passing during the 45th Parliament, they have already started two processes (the ALRC Inquiry, and the Religious Discrimination Bill) that could see LGBT rights go backwards in the 46th.

 

What about the other parties?

 

The Labor Party has largely been supportive of LGBTI rights throughout this (sometimes convoluted, but consistently frustrating) process.

 

As discussed earlier, they introduced the Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018 that does just what it says on the box. They have been very clear they will protect LGBT students in religious schools against discrimination if they are elected next month.

 

However, the ALP has been somewhat less clear in terms of their plans for teachers. While committing to remove the exceptions that allow religious schools to fire, and refuse to hire, LGBT teachers and other staff, they have also made vague comments about introducing amendments to ensure religious schools can continue to impose their ‘ethos and values’. Bill Shorten and the Labor Party need to outline exactly what they intend to do on this issue, before the election.

 

[Update 11 May 2019: While Labor have reiterated their intention to protect LGBT teachers and other staff, they have still not clarified the scope of any amendments to protect the ‘ethos and values’ of the school. More concerningly, they have indicated they will wait for the ALRC to conduct its inquiry into religious exceptions before protecting LGBT students or teachers. This is unacceptable – students deserve to be protected as quickly as possible, and there is a Bill ready and waiting to be reintroduced. It should be one of the first items of business of a new parliament.]

 

The Greens are obviously supportive of removing exceptions that allow discrimination against both LGBT students and teachers. They have also indicated that religious exceptions should be removed in other areas (including health and community services), as well as in the Fair Work Act 2009 (Cth).

 

In terms of the minor parties, the right-wing fringe groups (including Pauline Hanson’s One Nation, Cory Bernardi’s Australian Conservatives and the racist Senator who shall not be named) are exactly as homophobic and transphobic as you would expect, and don’t deserve our attention.

 

However, one minor party earns a special mention – although not for reasons they would appreciate. That is because the Centre Alliance (the renamed Nick Xenophon Team) supported some of the Government’s amendments that, in practice, would have permitted religious schools to discriminate against LGBT students. In fact, the position of the Centre Alliance is the reason that Labor’s Sex Discrimination Amendment (Removing Discrimination Against Students) Bill could not at least pass the Senate in late 2018.

 

What happens next?

 

The outcome of the federal election on Saturday 18 May will determine what happens next in terms of anti-discrimination law reform.

 

If the Morrison Government is returned, it is unclear whether LGBT students will be protected, and if so what that change would look like. Even if they remove the specific religious exceptions in the Sex Discrimination Act, it is highly likely they will simply replace them with new, positively-framed rights for religious organisations to discriminate against LGBT people, including in education.

 

Any reforms under a re-elected Liberal-National Government will also be delayed until at least the second half of 2020 (after the ALRC has completed its inquiry), meaning LGBT students in religious schools will be exposed to discrimination until at least 2021.

 

And, as discussed above, both the ALRC inquiry itself, and the imminent (although still secret) Religious Discrimination Bill, could see LGBTI rights actually go backwards under a 2nd term Morrison Government.

 

If the Labor Party is elected, on the other hand, it is highly likely that LGBT students will be protected against discrimination as a matter of priority. It is also probable that LGBT teachers and other staff will be protected in some form – although it will be up to LGBTI organisations to push them to make sure any such changes are as straight-forward as possible, and not undermined by ‘ethos and values’-style amendments (an increased Greens presence in the Senate would also assist in this respect).

 

Nevertheless, we must remember that the only thing in this area that is guaranteed to happen, every school day of this election campaign – and for months, and possibly years, afterwards – is that too many LGBT students will attend a school where they can be lawfully discriminated against.

 

And the primary reason is that Prime Minister Scott Morrison broke his promise, made just six months ago, to do something about it.

 

**********

 

Disclaimer: As with all posts, this article reflects my own views and not those of any employer, past or present.

 

If you have enjoyed reading this article, please consider subscribing to receive future posts, via the right-hand scroll bar on the desktop version of this blog or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus

 

Protecting LGBT Students and Teachers Against Discrimination

Update 23 February 2019:

 

The Senate Legal and Constitutional Affairs Committee handed down its report on the Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018 on Thursday 14 February 2019.

 

Although it is perhaps more accurate to say it handed down three reports. The majority report, by Government Senators, recommended that the Bill – which, as the name suggests, would protect LGBT students in religious schools against discrimination – not be passed. This is a broken promise, after Prime Minister Scott Morrison’s commitment to protect these students in October last year.

 

Even worse, Coalition members of the Committee recommended that the issue of religious exceptions be referred to the Australian Law Reform Commission for another review. For context, we have already had the Ruddock Religious Freedom Review, a Senate inquiry into the issue of discrimination against LGBT students and teachers last November, and this most recent Senate review.

 

We don’t need another inquiry, review or report. We just need a Government to take action to protect LGBT students and teachers. Nothing more. Nothing less.

 

The Labor members of the Committee provided a dissenting report, which (unsurprisingly) called for their Bill to be passed. Importantly, they also rejected all five of the Government’s amendments that would allow discrimination against LGBT students to continue, contrary to the purpose of the legislation (for more, see my original submission to the inquiry below).

 

On the other hand, Labor Senators also rejected the proposed Greens’ amendment that would remove the Sex Discrimination Act 1984 exception allowing religious schools to discriminate against LGBT teachers. They did restate the ALP’s commitment to protect LGBT teachers in the future, although it is unclear what form this would take.

 

We will need to keep pressure on Bill Shorten, and the ALP, to protect LGBT teachers and to ensure these protections are not undermined by provisions allowing religious schools to discriminate on ‘ethos and values’.

 

Finally, the Greens also provided a dissenting report, supporting the ALP Bill, rejecting the Government’s amendments (for the same reasons as Labor) and calling for their own amendment protecting LGBT teachers to be passed.

 

The Greens have also recommended an urgent review of provisions in the Fair Work Act 2009 (Cth) that allow religious schools to discriminate on the basis of sexual orientation and gender identity.

 

Overall, then, this was a disappointing Committee Report, with the Government’s proposed referral of the issue to the Australian Law Reform Commission nothing more than a delaying tactic.

 

It’s important to remember there was always going to be resistance to this change. There will always be some religious schools that want to discriminate against LGBT students and teachers. And there will always be some politicians who want to let them.

 

It is up to us to continue with this campaign until all schools are safe and nurturing environments for all students, irrespective of their sexual orientation and gender identity. Because our kids are counting on us.

 

Original submission:

 

there's no place for discrimination in the classroom-10

 

Start the new year right, by writing to support the right of LGBT students, teachers and other staff at religious schools to be free from discrimination.

 

The Senate Standing Committee on Legal and Constitutional Affairs is currently holding an inquiry into Labor’s Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018, and proposed amendments to it.

 

Full details of this inquiry can be found here.

 

The most important details are that:

 

  • This is our opportunity to call for all schools to be made free from discrimination on the basis of sexual orientation and gender identity
  • Submissions close on Monday 21 January 2019 (ie two weeks away) and
  • Once you’ve written yours, it can be uploaded here or emailed to sen@aph.gov.au

 

**********

 

If you are looking for some ‘inspiration’ about what to write, here are my suggestions:

 

  1. Personal stories

 

If you are, or have been, a student, a family member of a student, or a teacher or other staff member at a religious educational institution (including schools and universities), please share what that experience was like.

 

This is especially important if you are a lesbian, gay, bisexual, transgender or intersex person, or member of a rainbow family, who has encountered homophobia, biphobia or transphobia at a religious school.

 

Remember, these examples can range from overt or outright discrimination (such as a student being disciplined, or a teacher being fired or not hired, simply for being LGBT) through to more subtle or insidious forms of mistreatment (being made to feel invisible, having LGBTI content excluded from subjects like health and physical education, or feeling unable to disclose your sexual orientation or gender identity, or information about your partner, to others).

 

The more stories that we share, the louder our collective voice for change will be.

 

Importantly, if your submission is deeply personal, you can ask the committee to keep your submission private. From the aph website:

 

If you do not want your name published on the internet, or if you want your submission to be kept confidential, you should:

  • Include the word confidential clearly on the front of your submission and provide a reason for your request.
  • Make sure that your name and contact details are on a separate page and not in the main part of your submission.

Confidential submissions are only read by members of the committee and the secretariat.

Confidential information may be placed in an attachment to the main part of your submission, with a request for the committee to keep the attachment confidential.

The committee will consider your request but you need to know that the committee has the authority to publish any submission.

The committee will contact you if the committee wants to publish something you have asked to be kept confidential.

If you are considering making a confidential submission, you should contact the committee secretariat to discuss this before you send us your submission.

 

  1. Call for LGBT students to be protected against discrimination

 

Whether you have attended or worked at a religious school or not, everyone should call for the ability of religious schools to discriminate against lesbian, gay, bisexual and transgender students to be abolished.

 

Labor’s Bill achieves this outcome, because it would remove both of the existing exceptions in the Commonwealth Sex Discrimination Act 1984 which allow religious schools to do exactly that.[i]

 

In your submission, you should ask for the Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018 to be passed urgently, so that all students can learn in a safe and inclusive environment.

 

  1. Call for LGBT teachers to be protected against discrimination

 

One thing Labor’s Bill does not do is remove the exceptions in the Sex Discrimination Act which allow religious schools to discriminate against LGBT teachers and other staff.

 

This discrimination is also wrong. Teachers should be judged according to the ability to do their jobs, not whether they are heterosexual and cisgender. The billions of dollars of taxpayers’ money that is provided to religious schools each year should not be used to reject teachers and other staff simply for being LGBT.

 

Most importantly, in order for the classroom to be a truly safe environment for LGBT children, it must be an inclusive one for LGBT adults too.

 

Employing LGBT teachers means potentially having role models for kids discovering their own sexual orientations or gender identities. On the other hand, if children see teachers being discriminated against just for being lesbian, gay, bisexual or transgender, they will learn the lesson that their school thinks LGBT people are somehow less worthy than other people.

 

In your submission, you should ask for the Greens amendments to the Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018 to be supported. These amendments would remove the exceptions in the Sex Discrimination Act that allow religious schools to discriminate against LGBT teachers and other staff.[ii]

 

However, you should call for the Parliament to make similar amendments to the Commonwealth Fair Work Act 2009 as well, because that legislation also allows religious schools to adversely treat,[iii] or unfairly dismiss,[iv] teachers because of their sexual orientation.

 

Finally, you could ask the Parliament to take this opportunity to amend the Fair Work Act to protect transgender and intersex people against adverse treatment and unfair dismissal, because they are currently excluded entirely from these provisions.[v]

 

  1. Call for the Parliament to reject the Government’s proposed amendments

 

The Morrison Liberal-National Government has released its own proposed amendments to the Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018.

 

These amendments would allow religious schools to continue to discriminate against LGBT students in three distinct ways.

 

First, the Government’s amendments would reinstate one of the two current exceptions that allow religious schools to expel or otherwise mistreat students because of their sexual orientation or gender identity.[vi]

 

Second, the Government’s amendments would insert an entirely new provision allowing religious schools to discriminate against LGBT students as long as it formed part of ‘teaching activity’ – where teaching activity is incredibly broadly defined as ‘any kind of instruction of a student by a person employed or otherwise engaged by an educational institution.’[vii]

 

Third, the Government’s amendments would change the test for whether indirect discrimination is lawful in three differently-worded alternative ways,[viii] but with all three adding consideration of whether a ‘condition, requirement or practice… imposed, or proposed to be imposed [by a religious school is] in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.’

 

The Government’s changes are unnecessary, and would introduce unnecessary complexity into the Sex Discrimination Act. None of the four Australian jurisdictions that already protect LGBT students against discrimination (Queensland, Tasmania, the ACT and the Northern Territory)[ix] include similar provisions in their anti-discrimination laws.

 

Most importantly, the Morrison Liberal-National Government’s proposed amendments fundamentally undermine the purpose of the legislation, by allowing religious schools to continue to discriminate against LGBT students just under a different name.

 

You should call for the Parliament to reject all of the Government’s proposed amendments to the Bill.

 

**********

 

Every student should be able to learn in a safe and inclusive environment, free from discrimination on the basis of their sexual orientation or gender identity.

 

Every teacher and staff member should be judged on their ability to perform their role, not according to who they love or how they identify.

 

Parliament has the opportunity to make both a reality in 2019. But, as with so many law reforms before, they won’t act unless we make them.

 

So, it’s time to get writing.

 

there's no place for discrimination in the classroom-9

 

Footnotes:

[i] The Bill repeals subsection 38(3) of the Sex Discrimination Act which specifically allows religious schools to discriminate against LGBT students, as well as limiting the general religious exception in subsection 37(1)(d) by adding a new subsection 37(3):

‘Paragraph (1)(d) does 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 education; and

(b) the act or practice is not connected with the employment of persons to provide that education.’

[ii] The Greens amendments repeal subsections 38(1) and 38(2) of the Sex Discrimination Act that specifically allow religious schools to discriminate against LGBT teachers and other staff, and contractors, respectively.

It also amends the proposed new subsection 37(3) so that it removes the ability of religious schools to discriminate both in terms of service provision (ie students) and employment.

[iii] Subsection 351(2) of the Fair Work Act 2009 (Cth).

[iv] Subsection 772(2) of the Fair Work Act 2009 (Cth).

[v] For more on this subject, see Unfairness in the Fair Work Act.

[vi] The Government’s amendments remove proposed new subsection 37(3) of the Sex Discrimination Act 1984 (Cth) in Labor’s Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018 that limits the operation of the general religious exception in section 37(1)(d) of that Act. Therefore, even if subsection 38(3) is repealed, religious schools would still be able to rely on subsection 37(1)(d) to discriminate against LGBT students.

[vii] The proposed amendment reads as follows:

‘7F Educational institutions established for religious purposes

(1) Nothing in this Act renders it unlawful to engage in teaching activity if that activity:

(a) is in good faith in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed; and

(b) is done by, or with the authority of, an educational institution that is conducted in accordance with those doctrines, tenets, beliefs or teachings.

(2) In this section:

Teaching activity means any kind of instruction of a student by a person employed or otherwise engaged by an educational institution.’

[viii] See amendments KQ 148, KQ 150 and KQ 151, here.

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

Unfairness in the Fair Work Act

This post is part of a series looking at the unfinished business of LGBTI equality in Australia. You can see the rest of the posts here

The first item of ‘unfinished business’ that I have chosen to write about is the discrimination that remains in the Commonwealth Fair Work Act 2009.

This unfairness includes two distinct issues, one relatively well-known (and which exists in other legislation, such as the Commonwealth Sex Discrimination Act 1984), the other much less so.

Starting with the sometimes-overlooked problem first: did you know that the Fair Work Act 2009 does not protect trans, gender diverse and intersex people against workplace discrimination?

While this legislation prohibits adverse treatment on the basis of sexual orientation – thereby protecting lesbians, gay men and bisexuals (at least to some extent: see the second discussion below) – it does not include equivalent protections for trans, gender diverse and intersex people.

For example, sub-section 351(1) provides that ‘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.’

Note that this list excludes both gender identity (which would cover trans and gender diverse people) and intersex status (the term used in the Sex Discrimination Act 1984 to protect intersex people, although the intersex community has since advocated for this to be updated to ‘sex characteristics’; see the Darlington Statement).

The same list of attributes, with the same exclusions, is found in sub-section 772(1)(f) which protects employees against unlawful termination.

In short, the Fair Work Act 2009 (Cth) does not protect trans, gender diverse and intersex Australians from mistreatment or unfair dismissal based on who they are. This is either a gross oversight, or a deliberate choice to treat transphobic and intersexphobic workplace discrimination less seriously than other forms of mistreatment.

Nor are these the only sections of the Fair Work Act to omit trans, gender diverse and intersex people:

  • Section 153 provides that discriminatory terms must not be included in modern awards. The list of relevant attributes includes sexual orientation, but excludes gender identity and sex characteristics;
  • Section 195 includes a similar prohibition on discriminatory terms in enterprise agreements, and once again omits trans, gender diverse and intersex people; and
  • Sub-section 578(c) provides that the Fair Work Commission must perform its functions taking into account ‘the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of 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.’

There is literally no requirement in the Act for the Fair Work Commission to help prevent or eliminate transphobic and intersexphobic workplace discrimination.

There can be no justification for these omissions. Nor can there be any excuse for the Government, or Parliament more broadly, not to pass urgent amendments to ensure trans, gender diverse and intersex Australians are finally included in the Commonwealth Fair Work Act 2009.

Here are my letters to the Prime Minister, and the Minister for Jobs and Innovation, asking them to do exactly that:

**********

The Hon Malcolm Turnbull MP

Prime Minister of Australia

PO Box 6022

House of Representatives

Parliament House

Canberra ACT 2600

27 May 2018

 

Dear Prime Minister

Please include trans, gender diverse and intersex people in the Fair Work Act

On 15 November last year, in your press conference following the announcement of the 61.6% Yes vote in the same-sex marriage postal survey, you said that: ‘we are a fair nation. There is nothing more Australian than a fair go. There is nothing more Australian than equality and mutual respect.’

A little later in that same press conference you added: ‘we are a nation of a fair go and mutual respect and we treat people equally. We don’t discriminate against people because of their gender of their sexual orientation, their religion or race or the colour of their skin.’

Unfortunately, trans, gender diverse and intersex Australians are still a long way from receiving a ‘fair go’, and that includes being treated unfairly within the Commonwealth Fair Work Act 2009.

Section 351 of this legislation includes protections against adverse treatment on the basis of a wide range of attributes, including sexual orientation. However, it excludes both gender identity and sex characteristics (the latter being the term preferred by intersex advocates, as articulated in the Darlington Statement, replacing ‘intersex status’ as used in the Sex Discrimination Act 1984).

Similarly, section 772 of the Fair Work Act prohibits unfair dismissal on the same grounds as 351, once again leaving trans, gender diverse and intersex Australians without equivalent protection.

Meanwhile, sections 153 and 195 do not prohibit the use of discriminatory terms against trans, gender diverse and intersex people in modern awards and enterprise agreements, respectively.

Finally, while section 578 of the Fair Work Act mandates that, in performing its functions, the Fair Work Commission must take into account ‘the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination’, this does not cover either transphobic or intersexphobic discrimination.

I am writing to ask that you, and your Government, introduce amendments to the Fair Work Act 2009 to rectify these gross oversights as a matter of priority.

Trans, gender diverse and intersex people deserve to be protected against workplace discrimination in exactly the same way as other employees, including lesbians, gay men and bisexuals.

If you fail to do so, you will be continuing to deny a ‘fair go’ to trans, gender diverse and intersex Australians, and your words of 15 November last year will ring hollow.

Sincerely,

Alastair Lawrie

**********

Senator the Hon Michaelia Cash

Minister for Jobs and Innovation

PO Box 6100

Senate

Parliament House

Canberra ACT 2600

via minister.cash@jobs.gov.au

27 May 2018

 

Dear Minister Cash

Please include trans, gender diverse and intersex people in the Fair Work Act

I am writing to you about the Commonwealth Fair Work Act 2009, which you administer, and specifically its failure to adequately protect trans, gender diverse and intersex employees against workplace discrimination.

Section 351 of this legislation includes protections against adverse treatment on the basis of a wide range of attributes, including sexual orientation. However, it excludes both gender identity and sex characteristics (the latter being the term preferred by intersex advocates, as articulated in the Darlington Statement, replacing ‘intersex status’ as used in the Sex Discrimination Act 1984).

Similarly, section 772 of the Fair Work Act prohibits unfair dismissal on the same grounds as 351, once again leaving trans, gender diverse and intersex Australians without equivalent protection.

Meanwhile, sections 153 and 195 do not prohibit the use of discriminatory terms against trans, gender diverse and intersex people in modern awards and enterprise agreements, respectively.

Finally, while section 578 of the Fair Work Act mandates that, in performing its functions, the Fair Work Commission must take into account ‘the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination’, this does not cover either transphobic or intersexphobic discrimination.

I am writing to ask that you, and the Liberal-National Government, introduce amendments to the Fair Work Act 2009 to rectify these gross oversights as a matter of priority.

Trans, gender diverse and intersex people deserve to be protected against workplace discrimination in exactly the same way as other employees, including lesbians, gay men and bisexuals.

If you fail to do so, you will be failing to ensure trans, gender diverse and intersex Australians receive a ‘fair go’ in their jobs.

Sincerely,

Alastair Lawrie

**********

The second, much better-known, issue of unfairness in the Fair Work Act 2009 is its inclusion of extensive ‘religious exceptions’. These are loopholes that allow religious organisations to discriminate against employees on the basis of their sexual orientation (and would likely allow discrimination on the basis of gender identity were it to be included as a protected attribute in the Act in future).

The Fair Work Act entrenches these loopholes in two ways.

First, the prohibition on adverse treatment in section 351 (described above) does not apply to any action that is ‘not unlawful under any anti-discrimination law in force in the place where the action is taken’ (sub-section (2)(a)).

This means that the Fair Work Act reinforces the religious exceptions that already exist in the Commonwealth Sex Discrimination Act 1984, and its state and territory equivalents (other than the Tasmanian Anti-Discrimination Act 1998),[i] which permit anti-LGBT discrimination.

However, the Fair Work Act then includes its own ‘religious exceptions’ in sub-section 351(2)(c), allowing adverse treatment ‘if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed – taken:

(i) in good faith; and

(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.’

In effect, the Act provides two different avenues for religious organisations to justify mistreating employees simply because of their sexual orientation.

The protection against unfair dismissal in section 772 also includes its own ‘religious exception’, while even the terms of modern awards (section 153) and enterprise agreements (section 195) are allowed to be explicitly discriminatory on the basis of sexual orientation where it relates to employment by a religious institution.

There is, however, one important difference between the religious exceptions in this Act and those that are contained in the Sex Discrimination Act 1984: the Fair Work Act religious exceptions technically apply across all protected attributes.

This means that, theoretically at least, a religious organisation could claim its beliefs required it to discriminate on the basis of race, or even physical or mental disability – and that it would therefore be protected from any adverse consequences under the Act.

Of course, in practice we all know that religious exceptions are most likely to be used to justify discrimination against women (including unmarried and/or pregnant women) and LGBT people.

Unfortunately, the Ruddock Religious Freedom Review recently handed to Prime Minister Malcolm Turnbull (although not yet publicly released) is likely to recommend that these loopholes are expanded, rather than drastically reduced. That is a subject I am sure I will be writing about further in coming months.

Nevertheless, in the meantime we should continue to highlight the injustice of religious exceptions, including those found in the Fair Work Act and elsewhere, and campaign for their removal.

One such campaign, called ‘Change the Rules on Workplace Discrimination’, is currently being run by the Victorian Gay & Lesbian Rights Lobby. I encourage you to sign their petition, here.

Ultimately, we need to collectively work towards a Fair Work Act that covers all parts of the LGBTI community – and that doesn’t feature extensive ‘religious exceptions’ allowing discrimination against us.

**********

Update 24 October 2018:

Earlier this year, the (then) Minister for Small and Family Business, the Workplace and Deregulation, the Hon Craig Laundy MP, replied to my letter. As you can see below, it is an extremely disappointing response.

He, and the Liberal-National Government, either don’t understand that the Fair Work Act excludes trans, gender diverse and intersex Australians (leaving them at a disadvantage compared to other groups, including lesbian, gay and bisexual people). Or they simply don’t care. I think we all know which is the likelier explanation.

This issue has taken on added importance in the context of the current debate around the Ruddock Review, and removing religious exceptions that allow discrimination against LGBT students and teachers.

That is because, even if those exceptions are repealed (from both the Sex Discrimination Act and the Fair Work Act), if the protected attributes of gender identity and sex characteristics/intersex status are not also added to the Fair Work Act, there will still be a two-tiered system for LGBTI teachers.

In short, lesbian, gay and bisexual teachers will be able to complain to both the Fair Work Ombudsman and the Australian Human Rights Commission, while trans, gender diverse and intersex teachers will only be able to complain to the latter.

Unfortunately, the otherwise positive Discrimination Free Schools Bill 2018 from the Australian Greens makes this fundamental mistake. We are also still waiting to see whether the now Morrison Government will introduce any reforms in this area at all, as well as what a Shorten Labor Opposition Bill (or amendments) might look like.

But, irrespective of whose Bill it is, and whatever other amendments it contains, if it doesn’t add gender identity and sex characteristics/intersex status to the Fair Work Act, it will be incomplete.

**********

16 July 2018

Dear Alastair

Thank you for your email of 27 May 2018 to Senator the Hon Michaelia Cash, Minister for Jobs and Innovation, about protection from discrimination against trans, gender diverse and intersex employees under the Fair Work Act 2009. As the issues raised fall within my portfolio responsibilities as Minister for Small and Family Business, the Workplace and Deregulation, your email was referred to me for reply.

The Australian Government believes that discrimination in the workplace is unacceptable and all employees have the right to be free from discrimination at work.

The Sex Discrimination Act 1984 (the Sex Discrimination Act) is the principle legislation providing protection against discrimination or harassment on the basis of sex and/or gender. It also covers discrimination and harassment in the workplace. The Sex Discrimination Act explicitly covers discrimination on the basis of gender identity and intersex status.

The Human Rights Commission Act 1986 provides remedies for workers who have been discriminated against, harassed or dismissed on the basis of gender identity or intersex status, including in the workplace. The Australian Human Rights Commission (AHRC) is responsible for responding to complaints about harassment or discrimination on the basis of gender identity or intersex status.

Any person who has been discriminated against, harassed or dismissed on the basis of gender identity or sex characteristics should contact the AHRC for information and advice. The AHRC has the power to investigate and conciliate the complaints of discrimination and breaches of human rights. Information on what is required to make a complaint is available at www.humanrights.gov.au under the complaints tab on that page. There is also a National Information Service line on 1300 656 419.

Yours sincerely

Craig Laundy

(then) Minister for Small and Family Business, the Workplace and Deregulation

Update 21 June 2020:

It has been brought to my attention that there is a possibility the Fair Work Commission would interpret ‘sex’ to include gender identity and potentially intersex status, based on this information on their website.

However, this interpretation is open to legal challenge, and may be overturned in the Federal Court. I remain of the view 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.

Morrison

Will Scott Morrison’s Government continue to exclude trans, gender diverse and intersex employees from the Fair Work Act?

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Footnotes:

[i] For more information on the differences in these laws, see A quick guide to Australian LGBTI anti-discrimination laws.