Malcolm Turnbull, If you want to ‘strengthen’ anti-vilification laws, here’s something you can do

Update 29 April 2017:

In early April, I wrote to Prime Minister Malcolm Turnbull and Attorney-General George Brandis suggesting that, it they genuinely wanted to ‘strengthen’ Australia’s anti-vilification protections, they should introduce laws prohibiting vilification against lesbian, gay, bisexual, transgender and intersex (LGBTI) people.

In that letter, I included statistics from The State of Homophobia, Biphobia & Transphobia Survey Results, Part 1: Verbal Harassment and Abuse which found that 74% of LGBTIQ Australians experienced homophobic, biphobic, transphobic or intersexphobic verbal abuse at some point in their lives, with 48% reporting anti-LGBTIQ harassment in the past 12 months alone.

Unfortunately, it appears that the Australian Government isn’t particularly interested in doing anything to address this epidemic of anti-LGBTI abuse – there is no LGBTI equivalent to section 18C of the Racial Discrimination Act 1975, and, based on the response I received this week from the Attorney-General’s Department (see below), the Turnbull Government will not introduce one.

Perhaps the most bizarre part of the Government’s letter is the reference to ‘sexual harassment’ provisions within the Sex Discrimination Act 1984, as offering protections against anti-LGBTI vilification. The definition of sexual harassment under that legislation is as follows:

Section 28A

Meaning of sexual harassment

(1) For the purposes of this Division, a person sexually harasses another person (the person harassed) if:

(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or

(b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed…

(2) In this section:

‘conduct of a sexual nature’ includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.”

This definition, and its focus on ‘of a sexual nature’, means that while LGBTI people are protected against ‘sexual harassment’ under the Sex Discrimination Act 1984, only a small fraction of the anti-LGBTI verbal abuse that is experienced by LGBTI Australians would be covered by this provision – the vast majority of harassment and abuse, including nearly all of the comments reported in The State of Homophobia, Biphobia & Transphobia, would remain entirely legal.

Of course, given their ongoing refusal to pass marriage equality without a completely unnecessary, wasteful and divisive plebiscite, and the attacks on and dismantling of the Safe Schools program, it was always unlikely that the Turnbull Government would do anything substantive to tackle anti-LGBTIQ verbal harassment and abuse.

Still, now that they have been presented with the evidence, they can no longer claim that there is no problem with homophobia, biphobia, transphobia and intersexphobia in Australia. They know it exists – they are simply choosing to ignore it.

Here is the full response from the Attorney-General’s Department:

27 April 2017

Dear Mr Lawrie

Thank you for your correspondent of 3 April 2017 to the Prime Minister, the Hon Malcolm Turnbull MP, regarding Commonwealth anti-vilification laws. Your letter was referred to the Attorney-General, Senator the Hon George Brandis QC, as the matter falls within his portfolio. The Attorney-General has asked me to respond on his behalf.

The Australian Government believes that people are entitled to respect, dignity and the opportunity to participate in society and receive the protection of the law regardless of their sexual orientation, gender identity or intersex status. The Sex Discrimination Act 1984 (Cth) prohibits discrimination on these grounds in a range of areas of public life.

The Sex Discrimination Act also prohibits sexual harassment in a number of areas of public life. Under the definition of sexual harassment, the circumstances to be taken into account include, but are not limited to, the sex, sexual orientation, gender identity and intersex status of the person harassed.

Criminal laws in Australia generally prohibit conduct which threatens or results in harm to a person, regardless of the individual attributes of the victim.

The Australian Government considers these protections, in conjunction with other protections under Australian law, are appropriate in addressing the behaviour outlined in your letter.

Thank you for bringing your concerns to the attention of the Australian Government.

Yours sincerely

[Name withheld]

Director, Human Rights

Civil Law Unit

 

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Original Post:

 

The Hon Malcolm Turnbull MP

Prime Minister

PO Box 6022

House of Representatives

Parliament House

Canberra ACT 2600

Monday 3 April 2017

Dear Prime Minister

Commonwealth Anti-Vilification Laws

I am writing to you about a subject that has preoccupied your Government in recent weeks: Commonwealth anti-vilification laws.

However, I do not wish to re-litigate the debate over your proposed amendments to section 18C of the Racial Discrimination Act 1975, especially now that those changes have been comprehensively rejected by the Senate (happily from my perspective, presumably less so from yours).

Instead, I wish to discuss an area where it appears that, at least based on your public statements, you and I agree.

Specifically, during the course of the debate around 18C, two key principles emerged from media releases and speeches made both by yourself, and by the Attorney-General, Senator the Hon George Brandis.

First, your Government believes that there is a place for legal protections against vilification.

This is apparent not just from the fact that you chose to try to amend section 18C, rather than repeal it (therefore acknowledging the overall legitimacy of anti-vilification laws), but also through your comments at the joint Press Conference on 21 March, announcing the changes:

“We are defending the law by making it clearer. We are defending Australians against racial vilification.”

And from the Attorney-General’s Second Reading Speech:

“I have always believed that there is no inconsistency whatever between effective, appropriately-worded racial vilification laws, and the robust defence of freedom of speech.”

Second, your Government believes that such legal protections against vilification should be ‘strong’.

Indeed, both you and your Attorney-General repeatedly claimed that the Human Rights Legislation Amendment Bill 2017 would strengthen existing vilification protections.

At your joint Press Conference you stated that “[W]e are announcing changes to the Racial Discrimination Act and the Human Rights Commission legislation, which will strengthen the protection of Australians from racial vilification” and that it was time to “defend Australians with effective laws, clear laws, against racial vilification.”

The Attorney-General similarly claimed in his Second Reading Speech that the changes were being proposed “to strengthen its anti-vilification provisions.”

Taking you at your word(s) then, you both believe there is a place for anti-vilification laws, and that such laws should be strong and effective.

I agree with these two principles (even if we disagree on how they should be reflected in the Racial Discrimination Act).

Which is why, now that your changes to section 18C have been defeated, I write to suggest an additional way in which you can protect Australians against vilification: by introducing anti-vilification protections for lesbian, gay, bisexual, transgender and intersex (LGBTI) people.

As you would be aware, there is currently no Commonwealth protection against vilification on the basis of sexual orientation, gender identity or intersex status.

Nor are there LGBTI anti-vilification protections under the laws of Victoria, South Australia, Western Australia or the Northern Territory (meanwhile, the protections that exist under NSW law are overly-narrow, and fail to protect some parts of the community).

This leaves a significant proportion of Australia’s LGBTI communities without any legal protections against homophobic, biphobic, transphobic and intersexphobic vilification.

Unfortunately, such vilification remains all-too-common in Australia.

In a survey that I conducted at the start of 2017, 74% of LGBTIQ respondents reported being subject to anti-LGBTIQ verbal abuse or harassment at some point during their lives[i].

Disturbingly, 48% of respondents reported that at least one instance of such abuse or harassment occurred during the last 12 months.

These figures were even higher for some sections of the LGBTIQ community:

  • 68.2% of trans respondents
  • 65% of Aboriginal and/or Torres Strait Islander LGBTIQ respondents, and
  • 74.5% of LGBTIQ respondents aged 24 or under

reported verbal abuse or harassment in the past 12 months alone.

I hope that you agree these rates of homophobic, biphobic, transphobic and intersexphobic verbal abuse are simply unacceptable.

And if you are unconvinced by the raw numbers, then I suggest that you read the even rawer, and in some cases quite horrific, examples of anti-LGBTIQ harassment shared by the 1,672 people who took part in my survey (attached).

The challenge for you is that this abuse is happening on your watch.

If you genuinely believe there is a place for anti-vilification laws, and that such laws should be strong and effective, then I believe you should respond to this epidemic of anti-LGBTI verbal abuse and harassment with Commonwealth anti-vilification laws covering sexual orientation, gender identity and intersex status, on an equivalent basis to existing racial vilification protections.

After all, if racist vilification is considered so serious as to require legislative intervention, then there is no logical reason why homophobic, biphobic, transphobic and intersexphobic vilification should not be similarly prohibited.

If you do not take action to address this issue, then by implication you are suggesting that you and your Government find anti-LGBTIQ vilification to be less offensive, and arguably more ‘acceptable’, than racial vilification.

In conclusion, I will return to another comment made by you at the joint Press Conference on 21 March:

“Ensuring Australians are protected from racial vilification, likewise, is part of that mutual respect of which I often speak, which is the foundation of our success as the greatest and most successful multicultural society in the world.”

My question to you is: do you believe that lesbian, gay, bisexual, transgender and intersex Australians also deserve ‘mutual respect’?

If you do, then please take action to protect LGBTI Australians from the homophobic, biphobic, transphobic and intersexphobic vilification that far-too-frequently mars our own participation in the country you currently lead.

Sincerely

Alastair Lawrie

Cc Senator the Hon George Brandis

Attorney-General

PO Box 6100

Senate

Parliament House

Canberra ACT 2600

Malcolm Turnbull Hands

Whether LGBTI Australians receive anti-vilification protections under Commonwealth law is now in Malcolm Turnbull’s hands.

Footnotes:

[i] For full results, see The State of Homophobia, Biphobia & Transphobia, Survey Results Part 1: Verbal Harassment and Abuse

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The State of Homophobia, Biphobia & Transphobia Survey Results, Part 2: Physical Abuse or Violence

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

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

In this article, I will be focusing on their answers to three questions about experiences of anti-LGBTIQ physical abuse or violence, including publishing their personal stories of homophobic, biphobic, transphobic and intersexphobic violence.

It makes for particularly tough reading – not only are the reported rates of physical abuse, both over their lifetimes and specifically during the last 12 months, far too high, many of the examples of violence that were provided are, frankly, brutal reminders of the unacceptable state of homophobia, biphobia and transphobia in Australia today.

If the topics covered in this post raise any issues for you, contact details of relevant support services are provided at the end of the article.

the-state-of-homophobia-biphobia-transphobia-6

Question 1: Have you ever experienced physical abuse or violence because of your sexual orientation, gender identity or intersex status?

&

Question 2: Has one or more instances of this physical abuse or violence occurred in the past 12 months?

Overall, 26% of survey respondents – 431 people out of the 1,647 who answered question 1 – indicated they had experienced physical abuse or violence because of their LGBTIQ status at some point in their life.

128 people – or 30% of respondents who answered yes to question 1[ii] – then answered question 2 by stating that at least one instance of this anti-LGBTIQ physical abuse or violence had occurred during the last 12 months.

Including those who answered no to question 1, that means approximately 7.8% of all respondents reported experiencing physical abuse or violence in the past year alone.

It should be noted that these rates are significantly lower than the numbers who had previously reported receiving anti-LGBTIQ verbal harassment or abuse. Nevertheless, these findings confirm that homophobic, biphobic, transphobic and intersexphobic physical abuse or violence in Australia is unacceptably high:

  • 1 in 4 LGBTIQ people have been physically assaulted simply because of who they are, and
  • 1 in every 13 LGBTIQ respondents has experienced such abuse or violence in the last 12 months alone.

The following sections show the results to these two questions according to different demographic groupings, including LGBTIQ status, Aboriginal and Torres Strait Islander people, age, and residence by state and territory.

LGBTIQ Status

There were some potentially surprising results in reported rates of lifetime anti-LGBTIQ physical abuse or violence. However, the respective answers of different groups to question 2 were more predictable – and more depressing for that reason. The results for both questions were as follows:

Lesbian: 24.1% of respondents have ever experienced anti-LGBTIQ physical abuse, and of those 27.3% indicated at least one instance during the past 12 months[iii]

Gay: 34.4% ever, and of those 23.6% during the past 12 months[iv]

Bisexual: 14.6% ever, of those 44.2% in last 12 months[v]

Transgender: 33.6% ever, of those 47.2% in last 12 months[vi]

Intersex: 46.7% ever, of those 71.4% in last 12 months[vii], and

Queer: 27.1% ever, of those 44% in last 12 months[viii].

The rates for intersex respondents were clearly the highest – on both measures – although the small sample size (n=15) should be remembered at this point. Of the remaining LGBTQ groups, the category reporting the highest lifetime rates of physical abuse or violence were people identifying as gay, followed closely by transgender people.

There are a range of possible explanations for this, including physical bullying of gay students during school, and ‘historical’ incidents of anti-gay violence that may have happened many years ago (and there is some evidence for both factors in the personal stories of violence detailed below)

Sadly, the relatively high rates reported by transgender respondents were largely predictable. Disturbingly, they were higher again where a person indicated they were both transgender and gay – with 45.6% reporting lifetime physical abuse or violence. These numbers are obviously horrific [ix].

It is equally worrying to look at the proportion of each group overall who reported an instance of anti-LGBTIQ physical abuse or violence in the past 12 months:

  • Lesbian: 6.5%
  • Gay: 8.1%
  • Bisexual: 6.5%
  • Transgender: 15.6%
  • Intersex: 33.3%
  • Queer: 12%

On this measure, the proportion of gay respondents reporting physical abuse or violence is much lower, and is in fact similar to both lesbian and bisexual survey respondents.

However, this finding demonstrates the disproportionate impact of recent anti-LGBTIQ physical abuse and violence on transgender (including people who identified as both transgender and gay, where the figure was 24.6%, on 1 in 4 people reporting abuse in the last year alone), intersex and queer members of the community.

Therefore, while there have historically been high rates of homophobic (and specifically anti-gay), transphobic and intersexphobic violence in Australia, there appears to be comparatively far higher rates of transphobic, intersexphobic and anti-queer physical abuse during the last 12 months.

Aboriginal and Torres Strait Islander people

As with verbal harassment and abuse, Aboriginal and/or Torres Strait Islander LGBTIQ people reported higher rates of physical abuse or violence than their non-Indigenous LGBTIQ counterparts.

36.7% of Aboriginal and Torres Strait Islander respondents reported anti-LGBTIQ physical abuse at some point during their lifetime[x], which is higher than both gay and transgender people, discussed above. Of those, 40.9% indicated at least one instance of such violence had occurred in the past 12 months[xi].

Taken together, this means that 15% of Aboriginal and Torres Strait Islander LGBTIQ people reported homophobic, biphobic or transphobic physical abuse or violence during the past year – double the rate of non-Indigenous LGBTIQ Australians (7.5%).

Age

There were some significant differences in terms of experiences of homophobic, biphobic, transphobic or intersexphobic physical abuse or violence depending on the age cohort of the respondent:

24 and under: 18.7% of respondents have ever experienced anti-LGBTIQ physical abuse, and of those 47.6% indicated at least one instance during the past 12 months[xii]

25 to 44: 33.1% ever, and of those 27.2% in the last 12 months[xiii]

45 to 64: 39.9% ever, and of those 16.4% in the last 12 months[xiv], and

65 and over: 30.1% ever, and of those 9.1% in the last 12 months[xv].

Thankfully, the proportion of LGBTIQ people aged 24 or under reporting lifetime physical abuse or violence was lower than their counterparts in other age cohorts. Of course, this result should be expected given their lesser ‘life experience’ (ie fewer years in which abuse may have occurred), but that was not the case for verbal harassment or abuse which was reported at similar rates to older groups.

Rates of lifetime homophobic, biphobic and transphobic physical abuse or violence then increased for people aged 25 to 44, and again for people aged 45 to 64, before declining for people aged 65 and over.

One possible explanation for this is the age at which these groups ‘came of age’: people aged 65+ turned 18 before 1970, and lower visibility of LGBTIQ people (and especially some communities within this umbrella term) may have lessened their experiences of direct physical violence (while exacerbating other problems, including social exclusion and mental health issues).

On the other hand, people aged 45 to 64 generally turned 18 in the 1970s and 1980s, and likely bore the brunt of societal backlash to increased visibility of non-cisgender and/or non-heterosexual Australians, including via physical assaults.

It is however worrying that for those people who turned 18 in the supposedly more accepting 1990s and 2000s (who are now aged 25 to 44), the rates of physical abuse or violence remained relatively high – with 1 in 3 survey respondents in this demographic affected.

Turning to anti-LGBTIQ physical abuse in the past 12 months, the results were very different:

  • 8.8% of all respondents aged 24 or under reported abuse in the last year, compared to
  • 7.1% of people aged 25 to 44
  • 6.5% of people aged 45 to 64, and
  • 2.8% of people aged 65 and over.

Once again, we see that current homophobic, biphobic and transphobic physical abuse and violence is disproportionately affecting younger LGBTIQ Australians – who are 35.4% more likely to report such abuse than people aged 45 to 64.

Despite all of the progress that we have made, on so many fronts, the fact that 1 in 12 LGBTIQ people aged under 25 reported physical abuse or violence in the last year alone is a confronting, and in many ways, devastating, statistic.

State or Territory of Residence

The rates of homophobic, biphobic, transphobic or intersexphobic violence did not differ greatly between most states and territories:

NSW: 26% of respondents have ever experienced anti-LGBTIQ physical abuse, and of those 27.3% indicated at least one instance during the past 12 months[xvi]

Victoria: 29.5% ever, and of those 29% in the last 12 months[xvii]

Queensland: 26.4% ever, and of those 21.2% in the last 12 months[xviii]

Western Australia: 28.1% ever, and 45.2% in the last 12 months[xix]

South Australia: 25.2% ever, and of those 29.4% in the last 12 months[xx]

Tasmania: 19.8% ever, and of those 45.4% in the last 12 months[xxi]

ACT: 14.3% ever, and of those 37.5% in the last 12 months[xxii], and

Northern Territory: 23.8% ever, and of those 20% in the last 12 months[xxiii].

Despite the similarity between jurisdictions, there are three things here worth noting:

  • Western Australia had by far the highest overall proportion of LGBTIQ people reporting physical abuse or violence in the last year, at 12.4%[xxiv]
  • The ACT has reported significantly lower levels of physical abuse than the national average (5.4% in the past 12 months), and was also significantly lower in terms of verbal harassment or abuse, and
  • Despite having the second lowest lifetime rates of anti-LGBTIQ physical abuse, Tasmania actually reported the second highest rates in the past 12 months (9%), repeating a similar pattern for verbal abuse.

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Question 3: If you feel comfortable, please provide an example of this homophobic, biphobic, transphobic or intersexphobic physical abuse or violence [Optional]:

This question allowed respondents to provide an example of the physical abuse or violence they had experienced, irrespective of when it had occurred.

As anticipated, many of the stories that have been shared are both incredibly powerful, and profoundly upsetting.

At this point, I would recommend that you only read further if you are emotionally and mentally prepared to do so. To help you decide whether to continue, please be aware that some stories involve details of physical violence and injury, as well as sexual and child sexual assault.

A lightly-edited[xxv] version of the stories of homophobic, biphobic, transphobic and intersexphobic physical abuse or violence that were shared can be found at the following link:

question 3 physical abuse or violence comments

From my perspective, several consistent themes emerge from these stories, including:

The most common type of story shared involved anti-LGBTIQ abuse in the school environment (at least 38 respondents mentioned school). For example:

“Other kids would throw food at me at school and threaten to kill me. One time a group of bigger boys held me down and drew penises on my face at school. Teachers did nothing. People just laughed. I wanted to die.”

“During the HSC, the day of my last exam. A group of guys waited for me around the corner of the hall. They grabbed me by the neck and dragged me around the corner whilst beating me.”

“I was violently assaulted during high school. A boy at my school also stalked me and threatened to rape me to ‘make me straight.’”

A number of respondents explicitly indicated that the homophobic, biphobic or transphobic abuse occurred some time ago:

“Many years ago at high school. Managed to steer clear of physically violent homophobic behaviour since then.”[xxvi]

“I was bullied relentlessly when I was at school. It was a long time ago (in the 70s) and it included physical abuse. I’m one of the lucky ones, I survived. Many other young LGBTI Australian youth didn’t… and this is still continuing today, validated by politicians and religious ‘leaders’ who have no concern about the harm they are doing by imposing their hetero-normative agendas.”

“I have been punched in the street a few times in the 1990s and once had a bottle broken over my head and was stabbed in the face with the broken bottle (year 2000).”

Several stories involved anti-lesbian violence, including attempts of ‘corrective rape’ and sexual assault:

“I have been bashed in the street for holding my partner’s hand, I have been threatened with rape for dancing with another woman, I have had the police stand in my lounge room making threatening gestures when my partner and I reported a crime, refusing to do anything because ‘some people just don’t like dykes’ and we’d ‘just have to get used to that.’”

“Men grope me, stick their hands down my pants in public places and try to force me to kiss them. When I say I’m a lesbian it’s always either ‘that’s okay I don’t mind’, ‘I can change that’, ‘you’ve just never had a good fuck’.”

“When I lived in Queensland (not where I currently reside) I had strangers at parties come up to my girlfriend and I and forcibly try to dance with us and grope us and insist that we should have sex with them/have a threesome because we need ‘some real fucking’.”

Another common theme was anti-trans violence, such as the ‘policing’ of gender appearance or behaviour, and again including sexual assault:

“Was physically abused by a middle-aged woman who was confused by my gender presentation and took it upon herself to check + feel my chest for the presence of breast tissue (which was underneath my binder).”

“I’ve been sexually assaulted by partners because of my gender non-conforming behaviour, to try and ‘correct’ me into being femme.”

“When I wasn’t out about being a trans man, this bi girl that also knew I was bi thought it was ok and appropriate to sexually assault me and grab my vagina.”

“I was sexually assaulted when a group of young men found out I was transgender.”

A disturbing proportion of stories involved physical abuse and violence from parents, family members and partners in intimate relationships:

“My dad tried to beat the gay out of me a lot growing up.”

“As a child I was beaten at different times by both parents, one publicly, and being told to man up.”

“My mum hit/tried to strangle me when I came out to her as trans.”

“A boyfriend at the time – I told him I’m queer (pan, if you like) and he started grabbing me without my consent sexually in public.”

At least a dozen stories referred to homophobic, biphobic and transphobic violence in spaces and places that the LGBTIQ community call ‘home’:

“I got king-hit/coward-punched whilst walking down Oxford Street in Sydney during Mardi Gras.”

“I have been poofter bashed – just off Oxford St – and was once assaulted by police officers (which I took action about).”

“When I lived in Sydney in the mid-1990s I was bashed by a group of ‘skin-heads’ on Darlinghurst Rd as I walked home after work.”

“Physically assaulted and knocked unconscious by men loitering at a McDonalds on a popular gay night strip in Melbourne.”

“Several years ago I was assaulted in Malvern Rd Prahran by 5 guys yelling death to fags – luckily for me as the group kicked me as I lay helpless a driver stopped and they got scared off.”

And then there were some stories that defied easy ‘categorisation’, but which were so powerful that I felt compelled to reproduce here:

“I’ve been verbally abused, threatened by men, chased by youths with knives and survived an attempted rape and murder by a straight man who saw me come out of a gay pub.”

“Attacked during lgbt rally, egged until I got welts, physically attacked, had people bang on the windows of my room + house and yell they’d kill me etc.”

“Glass bottles thrown at my head and at my lesbian friends because we needed to “get back to the Valley with the freaks” and “needed them to show us dick” so we would stop being into women; guy holding up my girlfriend by her throat because we kissed in a pub; sexual assaults to me (several) partly because they knew I was bisexual so I was “automatically up for sex”. I wasn’t. There was no consent. I even said no and they said I was lying because I am bi.”

“I, my partner and her elderly father were all bashed by a bunch of teenage boys who chased us from the train station to our home kicking us, hitting us, spitting at us, throwing things at us and verbally abusing us. They then attacked my father-in-law when he attempted to come to our aid. He was in his mid-60s at the time of the attack.”

Some shorter comments were nevertheless shocking:

“Being beaten by 3 older men who had followed me home after I left my boyfriend on public transport. I was 16.”

“My partner and I were assaulted whilst kissing to say good bye.”

“My partner and I had glass beer bottles thrown at us walking down the street while holding hands.”

“I was last assaulted for my sexuality in early 2013, and dozens of times before that.”

Finally, and disturbingly, there were at least three stories in which the person who experienced anti-LGBTIQ physical abuse tried to downplay the extent of the violence:

“Bashed (not badly) numerous times by strangers, usually with onlookers. Extreme harassment and threats from police on several occasions.”

“Mild beatings by groups of boys in late high school.”

“Just being punched in the face.”

Describing homophobic, biphobic and transphobic violence in this way is likely part of a psychological coping strategy for these respondents – but, from this author’s perspective, there is no circumstance in which the word ‘just’ ought to appear in front of the phrase being punched in the face.

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Conclusion

The results of this survey suggest that 1 out of every 4 LGBTIQ Australians have experienced homophobic, biphobic, transphobic or intersexphobic physical abuse or violence at some point in their lives.

30% of that group – or 1 in 13 out of all survey respondents – reported anti-LGBTIQ physical violence in the past 12 months alone, confirming once again that 2016 was an awful year for lesbian, gay, bisexual, transgender, intersex and queer Australians.

These proportions were even higher for some sections within the community. While the overall rate was 7.8% reporting abuse in the last year, the equivalent figure was:

  • 15.6% of transgender people
  • 33% of intersex people
  • 12% of queer people
  • 15% of Aboriginal and/or Torres Strait Islander LGBTIQ people.

LGBTIQ respondents age 24 and under were also 35.4% more likely to report recent homophobic, biphobic, transphobic or intersexphobic physical abuse than people aged 45 to 64.

Some of our political leaders like to espouse the idea that Australia is an inclusive and tolerant country, welcoming of differences in sexual orientation, gender identity and intersex status. That may be the case for some people – but these figures reveal a different, harsher, reality for many LGBTIQ Australians.

And, if anyone doubts the impact of homophobic, biphobic, transphobic and intersexphobic physical abuse and violence in this nation, I encourage them to read the personal stories from survey respondents, detailed above. If they do, they will come away with a better understanding of what life is like for far too many people.

As noted at the beginning of this post, this has been the second in a series of six articles reporting the results of my ‘The State of Homophobia, Biphobia & Transphobia’ Survey.

The next four will be published over the remainder of March and April, with part 3 – which focuses on the places where prejudice occurs – to be published in a couple of weeks.

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

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

  • QLife, Australia’s national telephone and web counselling and referral service for LGBTI people. Freecall: 1800 184 527, Webchat: qlife.org.au (3pm to midnight every day)
  • Lifeline: 13 11 14, lifeline.org.au

Footnotes:

[i] The first was published two weeks ago: The State of Homophobia, Biphobia & Transphobia Survey Results, Part 1: Verbal Harassment and Abuse

[ii] Only people who answered yes to question 1 were provided with an opportunity to answer question 2, with 430 people completing the second question and 302 (70%) indicating they had not experienced physical abuse or violence because of their sexual orientation, gender identity or intersex status in the past 12 months.

[iii] Question 1: 78 yes/246 no. Question 2: 21 yes/56 no.

[iv] Question 1: 220 yes/419 no. Question 2: 52 yes/168 no.

[v] Question 1: 76 yes/445 no. Question 2: 34 yes/43 no.

[vi] Question 1: 125 yes/247 no. Question 2: 58 yes/65 no.

[vii] Question 1: 7 yes/8 no. Question 2: 5 yes/2 no. Note that, given the low number of respondents, the proportions re intersex status must be treated with caution. For this reason, intersex status is also omitted from some of the discussion/analysis throughout the article.

[viii] Question 1: 133 yes/358 no. Question 2: 59 yes/75 no.

[ix] Other figures for people who identified as both transgender and another category:

-Transgender and lesbian: 30.2% lifetime abuse, including 14% of all trans and lesbian respondents experiencing such abuse in the last 12 months alone

-Transgender and bisexual: 26.6% lifetime abuse, 15.3% in the last 12 months, and

-Transgender and queer: 33.5% lifetime abuse, 18.1% in the last 12 months.

[x] Question 1: 22 yes/38 no.

[xi] Question 2: 9 yes/13 no.

[xii] Question 1: 165 yes/719 no. Question 2: 78 yes/86 no.

[xiii] Question 1: 144 yes/291 no. Question 2: 31 yes/114 no.

[xiv] Question 1: 110 yes/166 no. Question 2: 18 yes/91 no.

[xv] Question 1: 11 yes/25 no. Question 2: 1 yes/10 no. Note that, given the low number of respondents, the proportions re people aged 65 and over must be treated with caution. For this reason, this group is also omitted from some of the discussion/analysis throughout the article.

[xvi] Question 1: 140 yes/399 no. Question 2: 38 yes/101 no.

[xvii] Question 1: 113 yes/270 no. Question 2: 33 yes/81 no.

[xviii] Question 1: 66 yes/184 no. Question 2: 14 yes/52 no.

[xix] Question 1: 43 yes/90 no. Question 2: 19 yes/23 no.

[xx] Question 1: 34 yes/101 no. Question 2: 10 yes/24 no.

[xxi] Question 1: 22 yes/89 no. Question 2: 10 yes/12 no.

[xxii] Question 1: 8 yes/48 no. Question 2: 3 yes/5 no.

[xxiii] Question 1: 5 yes/16 no. Question 2: 1 yes/4 no. Note that, given the low number of respondents, the proportions re the Northern Territory must be treated with caution. For this reason, the NT is also omitted from some of the discussion/analysis throughout the article.

[xxiv] Full results: NSW 7.1%, Victoria 8.6%, Queensland 5.6%, WA 12.4%, SA 7.4%, Tasmania 9%, ACT 5.4%, NT 4.8%.

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

-Removing identifying information, and

-Removing offensive (for example, racist) remarks.

I have also chosen to exclude a couple of stories where the connection between the physical abuse or violence experienced and anti-LGBTIQ motivation was not clear, and one longer story which could not be edited to retain key points without also potentially disclosing the identity of the person concerned.

[xxvi] It seems one of the lessons many learned at school was to hide or minimise visible displays of same-sex behaviour, to avoid future abuse or violence.

The State of Homophobia, Biphobia & Transphobia Survey Results, Part 1: Verbal Harassment and Abuse

With unrelenting attacks on the safe schools program, divisive debate about the proposed marriage equality plebiscite, the horrific mass murder at Pulse nightclub in Orlando and the tragic suicide of Indigenous gay youth Tyrone Unsworth, the past 12 months have undeniably been tough on members of Australia’s lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) communities.

Now we have empirical evidence to prove that last year was indeed an annus homophobicus.[i]

At the start of this year I conducted a survey of LGBTIQ Australians asking about their experiences of homophobia, biphobia, transphobia and intersexphobia in 2016, covering a range of topics including verbal harassment, physical violence, the places where prejudice occurs, and discrimination in education, employment and other areas.

Excluding responses from non-LGBTIQ people, and from LGBTIQ people outside Australia, a total of 1,672 people completed the survey in the four weeks between 26 December 2016 and 21 January 2017.

This post is the first in a series of six reporting the results of this survey, with a particular focus on three questions about the verbal harassment and abuse experienced by LGBTIQ Australians.

For many people, a number of the results will be unsurprising and yet still shocking – although, even for hardened campaigners such as myself, there are a few findings that are both depressing and disturbing, especially the varying impact of verbal harassment on different sections of the LGBTIQ community.

The State of Homophobia, Biphobia & Transphobia (4)

Question 1: Have you ever experienced verbal harassment or abuse because of your sexual orientation, gender identity or intersex status?

&

Question 2: Has one or more instances of this verbal harassment or abuse occurred in the past 12 months?

Overall, 74% of survey respondents – 1,226 people out of the 1,655 people who answered question 1 – indicated they had experienced verbal harassment or abuse because of their LGBTIQ status at some point in their life.

799 people – or 65% of respondents who answered yes to question 1[ii] – then answered question 2 by stating that at least one instance of this anti-LGBTIQ verbal harassment or abuse had occurred during the last 12 months.

Even including those who answered no to question 1, that still means 48% of all respondents reported experiencing verbal harassment or abuse in the past year alone.

These numbers might not be surprising to members of our community, but it is nevertheless shocking to confirm that 3 out of every 4 LGBTIQ Australians have been verbally harassed because of who they are, with almost half of all respondents reporting homophobic, biphobic, transphobic or intersexphobic verbal abuse in the last 12 months.

The following sections show the results to these two questions according to different demographic groupings, including LGBTIQ status, Aboriginal and Torres Strait Islander people, age, and residence by state and territory.

LGBTIQ Status

There were similarities, as well as some stark differences, in how lesbian, gay, bisexual, transgender, intersex and queer people experienced verbal harassment and abuse. Their respective answers to questions 1 and 2 are as follows:

Lesbian: 77.6% have ever experienced anti-LGBTIQ verbal harassment, and of those 68.7% indicated at least one instance during the past 12 months[iii]

Gay: 78% ever, and of those 56.5% during the past 12 months[iv]

Bisexual: 63.9% ever, of those 68.8% in last 12 months[v]

Transgender: 81% ever, of those 84.4% in last 12 months[vi]

Intersex: 88.2% ever, of those 93.3% in last 12 months[vii], and

Queer: 79.8% ever, of those 79.9% in last 12 months[viii].

Among lesbian, gay, transgender and queer respondents, the proportion that had experienced verbal harassment or abuse at some point in their lives was remarkably consistent – all falling somewhere between 77.6% and 81%. The proportion of bisexual people reporting lifetime abuse was somewhat lower, at 63.9%[ix].

However, there were much larger differences between groups in terms of experiences of anti-LGBTIQ verbal harassment and abuse over the past year.

While 43.4% of all gay respondents, and 44% of all bisexual respondents, reported verbal harassment or abuse during the last 12 months[x], this figure rose to 53.1% of all lesbian respondents (slightly above the overall average).

In terms of queer respondents the figure was higher still, at 63.9%, while for transgender people it rose again to 68.2%.

Think about that for a second: more than two-thirds of transgender people reported being verbally harassed or abused simply because of who they are in the past 12 months alone.

Further, while there is little difference between gay and transgender people in reporting lifetime verbal harassment (78% and 81% respectively), transgender people were 57% more likely to report verbal abuse over the past year.

Of course, all of these figures are far too high; no level of homophobia, biphobia or transphobia is acceptable. Nevertheless, we must not ignore the fact that, when it comes to verbal harassment and abuse over the last year, the burden has fallen much more heavily on transgender and queer Australians.

Aboriginal and Torres Strait Islander people

A total of 62 survey respondents indicated that they were Aboriginal and/or Torres Strait Islander (or 3.7% of the sample).

83.3% reported that they had ever reported verbal harassment or abuse because of their sexual orientation, gender identity or intersex status[xi]. Of those, 78% reported verbal harassment or abuse during the past 12 months[xii].

That means 65% of all Aboriginal and Torres Strait Islander LGBTIQ respondents reported homophobic, biphobic, transphobic or intersexphobic abuse during the last 12 months, significantly above the national average and placing them at similar risk to transgender and queer Australians.

Age

The survey asked respondents to nominate their respective cohort: 24 and under; 25 to 44; 45 to 64; or 65 and over. The answers provided by these different groups were relatively similar for question 1, although varied greatly for question 2.

Have you ever experienced verbal harassment or abuse because of your sexual orientation, gender identity or intersex status?

  • 24 and under: 70.6% yes[xiii]
  • 25 to 44: 78.2% yes[xiv]
  • 45 to 64: 79.5% yes[xv], and
  • 65 and over: 69.4% yes.[xvi]

Prima facie, the fact the figures for people aged under 25 are slightly lower than the two generations that preceded them might seem encouraging.

However, looked at in a different way, they are a cause for serious alarm: in 2017, a young LGBTIQ person is almost as likely to have experienced homophobic, biphobic, transphobic or intersexphobic verbal abuse at some point in their comparatively shorter life as someone with 20 or even 40 more years life experience.

This concern is borne out by the answers to the second question:

Has one of more instances of this verbal harassment or abuse occurred in the past 12 months?

  • 24 and under: 74.5% yes[xvii]
  • 25 to 44: 58.9% yes[xviii]
  • 45 to 64: 46.1% yes[xix], and
  • 65 and over: 33.3% yes[xx].

The net effect of these two questions reveals that 54.6% of all respondents aged 24 or under have been verbally harassed or abused because of who they are in the last year, compared to 46.1% of respondents aged 25 to 44 and 36.3% of respondents aged 45 to 64.

To put it another way: young LGBTIQ Australians were 50% more likely to be subject to homophobic, biphobic, transphobic or intersexphobic verbal harassment and abuse in 2016 than LGBTIQ people aged 45 to 64.

This result simultaneously proves and undermines the ‘It Gets Better’ message – yes, it gets better for individuals as they grow older, but, on the basis of these findings, it does not seem it has gotten significantly better for young LGBTIQ people today.

Personally, I believe this result at least partially reflects the fallout of attacks on the safe schools program by religious fundamentalists and right-wing extremists, with a potentially devastating impact on young LGBTIQ people, many of whom are only beginning their journey toward self-understanding and self-acceptance, and consequently may be lacking the same resilience as their older counterparts.

State or Territory of Residence

In contrast to the significant differences in results based on age, the levels of anti-LGBTIQ verbal harassment and abuse reported in different jurisdictions around Australia were remarkably consistent. The respective answers to question 1 and 2 are as follows:

New South Wales: 74% have ever experienced anti-LGBTIQ verbal harassment, and of those 64.8% indicated at least one instance during the past 12 months[xxi]

Victoria: 74.1% ever, and of those 67.3% during the past 12 months[xxii]

Queensland: 76.2% ever, of those 63% in last 12 months[xxiii]

Western Australia: 76.3% ever, of those 65.5% in last 12 months[xxiv]

South Australia: 71.1% ever, of those 66% in last 12 months[xxv]

Tasmania: 70.3% ever, of those 77.9% in last 12 months[xxvi]

Australian Capital Territory: 73.2% ever, of those 51.2% in last 12 months[xxvii], and

Northern Territory: 76.2% ever, of those 56.3% in last 12 months[xxviii].

Including those who answered no to question 1, this means for most states and territories the proportion of LGBTIQ people reporting verbal harassment or abuse in the last 12 months was between 42.9% (NT) and 50% (WA)[xxix].

The jurisdiction with the lowest incidence of homophobic, biphobic, transphobic or intersexphobic verbal abuse in the last year was the ACT at 37.5%; the highest was Tasmania at 54.1% of all respondents.

Of course, while the rates of anti-LGBTIQ verbal harassment may be similar across Australia, the options available to victims of such abuse vary considerably.

Only four jurisdictions offer any legal protections against vilification to the LGBTI community (NSW, Queensland, Tasmania and the ACT[xxx]). With no equivalent to section 18C of the Racial Discrimination Act 1975 contained in the Sex Discrimination Act 1984, LGBTI people in Victoria, Western Australia, South Australia and the Northern Territory are not protected against vilification at any level[xxxi].

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Question 3: If you feel comfortable, please provide an example of this homophobic, biphobic, transphobic or intersexphobic verbal harassment or abuse [Optional]

This question allowed respondents to provide an example of the verbal harassment or abuse they had received, irrespective of when it had occurred.

A large number of LGBTIQ respondents took up this opportunity, and the results are sobering, and frequently heart-breaking, to read. A lightly-edited[xxxii] version of these comments can be found at the following link:

question-3-verbal-harassment-and-abuse-comments [PDF]

I encourage you to take the time to read the survey respondent’s very personal stories of homophobic, biphobic, transphobic and intersexphobic abuse, of them experiencing verbal harassment simply because of who they are.

Ideally, conservative and/or right-wing politicians, many of whom claim that anti-LGBTIQ prejudice either doesn’t exist, or is no longer a serious problem, would read them too. If they did, they would have their ‘relaxed and comfortable’ ideas shattered by the irrefutable evidence provided via these real-life stories.

From my perspective, some of the derogatory comments related to sexual orientation that stood out include:

“I was just coming out of a convenience store and walked past this man who was staring at me. Then suddenly he started screaming “Faggot, faggot!!” at me. No one around me said or did anything. I just tried to not react and get away as soon as I could.”

“I normally get something once a year. Walking down the street in Brisbane, my (now) husband and I were shouted at by a couple of blokes who started by saying: ‘you have got to be fucking kidding’ in reference to the fact we were holding hands.”

“I recently saw two young gay men, a couple, who were walking up Chapel Street holding hands. A group of 3 older men were harassing them, following them. I joined the 2 gay men and told them to cross the road and ignore the others. I was then also subjected to the same vitriol with comments such as ‘there’s another one’ and ‘look at the 3 poofters’. We walked into a crowded shop and they didn’t follow us. I was extremely upset by this as were the 2 other younger fellows.”

“I was in my Drs surgery last year & I was abused, & my children were abused, by another patient. My Dr had to drag him away. Some of the names I was called were pervert, deviant, faggot. My kids were called queer, sexually perverted and confused.”

“A co-worker was informed that I identify as bisexual. She berated me openly, saying that I was merely attention seeking and that my children would be very confused adults with such poor guidance in life. She then contacted my husband through social media and told him to take my children and leave because raising them with a mentally ill person was dangerous.”

Transphobic harassment, and verbal abuse on the basis of gender identity, was also disturbingly widespread:

“Public name calling outside a local pub, shouting to others that I don’t have a penis… Being deadnamed in public despite being asked not to, in dismissal of transition or gender status… All in the last 3 months.”

“I was harassed outside a disabled toilet, which I went to because I was uncomfortable in gendered toilets. I overheard someone talking about a ‘faggot’ and learned they were talking about me. I was called transsexual repeatedly against my will by someone. Constant misgendering, deadnaming and disrespect on a daily basis just for being me…”

“Without going into detail, I have been referred to as a tranny, and had both my sexuality and gender identity mocked and invalidated repeatedly. I have been told to kill myself an innumerable amount of times, including being told to ‘get my teeth and gender straight or kill myself’, and that my gender is ‘cancer’. This is just a short list of the abuse I’ve suffered.”

“Demeaning laughter. Hostile stares. Derogatory language (eg ‘faggot’, ‘it’), usually just spoken audibly to others in front of me occasionally yelled from cars. Deliberate misgendering. I’ve noticed increased hostility from authority figures (eg ticket inspectors) in response to me looking more identifiably trans also. When I was closeted, I used to find people making transphobic jokes in front of me a common and painful experience.”

“Because of my choice of clothing/hairstyle I get called shemale. Heshe. Thing. It. Freak. Pervert. Dyke. Faggot. And that’s just the shortlist, and the most common insults I deal with, especially when I go clothes shopping or use a public restroom.”

This story was worrying, both because of the source of the discriminatory comments, but also because of the lack of action by authorities:

“I’m a pre-service teacher (still in university completing a bachelor). While on one of my teaching placements I received verbal harassment intermittently from the year 6 classes. When I reported this I was underwhelmed by the response from the faculty, both at my teaching school and the university faculty. The underlying cause of transphobic slurs directed towards me was undermined by only addressing ‘disrespect’ and they refused to address anything extending from that. When I expressed my concern in not addressing homophobia and transphobia directly I was met with hostility from the faculty, which made my teaching the remaining 3 weeks very uncomfortable.”

The most common story shared in response to this question concerned homophobic, biphobic or transphobic abuse from people in passing cars: at least 78 different comments cited this type of harassment.

This is both an extraordinary total, and an extraordinary indictment of the kind of person who would engage in the behaviour of shouting anti-LGBTIQ abuse at strangers from the safety, comfort and anonymity of their vehicles.

A typical story related to this type of harassment: “Minding my own business at a train station waiting to be picked up and a car full of guys and girls were yelling out ‘faggot’ to me just because they didn’t like the look of me.”

Although perhaps my favourite comment (for reasons that will soon become obvious) was this: “I was on a date walking with the guy and a guy started yelling at us from his car while he was driving, he lost control of the car and crashed into a sign.” #karma

Another common story was homophobic, biphobic or transphobic harassment on public transport, including trains, buses, trams and even taxis: at least 34 comments reported this kind of abuse. This included:

“Frequent dirty looks in public. Once on a bus (my partner and I were holding hands and talking) a woman stood up from her seat [and] said loudly that ‘we didn’t need to rub our sexuality in everyone’s face’ and moved to a seat further away from us.”

“On a packed train going home and one man took offense to another man’s skin was touching him (we were crammed in together… everyone was touching everyone). He started screaming about how the next person doing ‘any more gay shit’ to him was going to cop it. And screamed at the poor man who tried to defend himself. Anyone who tried to get him to calm down was met with homophobic language and threats. It was very scary.”

“(I’m a trans man, my husband is a cis man – we married and had a daughter before I transitioned). Just last week my husband and I were boarding a bus to the local shopping centre with our 4 year old daughter in tow. The myki machine was taking a bit of time to read each card. A man behind us shouted ‘move it, faggots!’ at us several times. Our daughter became visibly upset. No one stepped in to help or say anything. The man spent the entire bus ride glaring at us and making snide comments to the person in front of him.”

Perhaps most disappointing about the comments in response to question 3 was the fact approximately 20 people described homophobia, biphobia or transphobia from other members of the LGBTIQ community. This was particularly aimed at bisexual people, and to a slightly lesser degree transgender people[xxxiii]. For example:

“Told I’m greedy for being bi, that bisexuality is an excuse to hide that I’m ‘actually gay’, told that I’m a disgrace to the LGBT+ community for ‘not being able to decide’/’pick a side’…”

“Mostly it’s been lesbians telling me that bisexuals are just straight people trying to be trendy and undermining my identity…”

“There have been quite a few instances over the years where people have learned my sexuality and gone on a rant on how disgusting it is, and in some instances behaved threateningly while doing so. This comes from both non-LGBT+ and LGBT+ people.”

“Spat on in a gay bar for being transgender. Called a freak and told to kill myself. Been told I’m not a real man.”

If we are going to campaign for the elimination of homophobia, biphobia, transphobia and intersexphobia from society, then it is incumbent upon us to do better on these issues within our own communities, too.

One small positive from the responses to question 3: the old stereotype of gay man (or trans person) as ‘paedophile’ appears to be fading away, with only eight comments including this description as an element of the verbal harassment or abuse received. That particular form of abuse cannot die soon enough.

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Conclusion

The results of this survey suggest that 3 out of every 4 LGBTIQ Australians have experienced homophobic, biphobic, transphobic or intersexphobic verbal harassment or abuse at some point in their lives.

The survey also confirms that 2016 was a bad year for the LGBTIQ community, with 48% of people reporting that at least one instance of this anti-LGBTIQ verbal abuse occurred in the past 12 months.

These figures are unacceptably high to begin with, but we must also not overlook the fact these proportions are higher still for several groups within the LGBTIQ community who are particularly vulnerable:

  • Transgender individuals were 57% more likely to report verbal harassment and abuse in the past 12 months than gay people
  • Queer individuals were 47% more likely than gay people to experience recent verbal abuse
  • Almost two-thirds of Aboriginal and Torres Strait Islander respondents were subject to homophobic, biphobic or transphobic verbal harassment throughout the course of the past year, and
  • LGBTIQ people aged 24 or under were 50% more likely to have experienced recent verbal abuse than their counterparts aged 45 to 64.

These statistics show that the state of homophobia, biphobia and transphobia in Australia, in 2017, features far more anti-LGBTIQ verbal harassment than any of us would like. The stories shared in response to question 3, detailing personal accounts of this abuse, powerfully reinforces this fact.

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

The next five, which focus on physical abuse or violence, the places where prejudice occurs, and discrimination in education, employment and other areas, will be published during March and April.

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

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

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

Footnotes:

[i] See 2016: Annus Homophobicus.

[ii] Only people who answered yes to question 1 were provided with the opportunity to answer question 2, with 1,220 people completing the second question and 421 people (or 35%) indicting they had not experienced verbal harassment or abuse because of their sexual orientation, gender identity or intersex status in the past 12 months.

[iii] Question 1: 253 yes/73 no. Question 2: 173 yes/79 no.

[iv] Question 1: 501 yes/141 no. Question 2: 280 yes/216 no.

[v] Question 1: 333 yes/188 no. Question 2: 229 yes/104 no.

[vi] Question 1: 303 yes/71 no. Question 2: 255 yes/47 no. For those respondents who identified as both trans and bisexual, this figure was even higher – 86.3% reporting lifetime abuse. Queer trans respondents also reported higher rates (86.2% lifetime abuse).

[vii] Question 1: 15 yes/2 no. Question 2: 14 yes/1 no. Note that, given the low number of respondents, the proportions re intersex status must be treated with caution. For this reason, intersex status is also omitted from some of the discussion/analysis throughout the article.

[viii] Question 1: 394 yes/100 no. Question 2: 314 yes/79 no.

[ix] Without additional information, it is difficult to reach any firm conclusions about why this is the case, although one factor may be historically lesser visibility of bisexuality (which may reduce verbal harassment and abuse, but also exacerbates exclusion and isolation).

[x] Noting that this calculation includes the numbers of respondents who answered no to question 1.

[xi] Question 1: 50 yes/10 no.

[xii] Question 2: 39 yes/11 no.

[xiii] 627 yes/261 no.

[xiv] 341 yes/95 no.

[xv] 221 yes/57 no.

[xvi] 25 yes/11 no. Note that, given the low number of respondents, the proportions re people aged 65 and over must be treated with caution. For this reason, this group is also omitted from some of the discussion/analysis throughout the article.

[xvii] 485 yes/141 no.

[xviii] 201 yes/140 no.

[xix] 101 yes/118 no.

[xx] 8 yes/16 no.

[xxi] Question 1: 401 yes/141 no. Question 2: 259 yes/141 no.

[xxii] Question 1: 286 yes/100 no. Question 2: 191 yes/93 no.

[xxiii] Question 1: 192 yes/60 no. Question 2: 121 yes/71 no.

[xxiv] Question 1: 116 yes/36 no. Question 2: 76 yes/40 no.

[xxv] Question 1: 96 yes/39 no. Question 2: 62 yes/32 no.

[xxvi] Question 1: 78 yes, 33 no. Question 2: 60 yes/17 no.

[xxvii] Question 1: 41 yes/15 no. Question 2: 21 yes/20 no.

[xxviii] Question 1: 16 yes/5 no. Question 2: 9 yes/7 no. Note that, given the low number of respondents, the proportions re people in the Northern Territory must be treated with caution.

[xxix] Full results (reporting verbal harassment of abuse in the past 12 months, all respondents):

  • NSW 47.8%
  • Victoria 49.5%
  • Queensland 48%
  • WA 50%
  • SA 45.9%
  • Tasmania 54.1%
  • ACT 37.5%
  • NT 42.9%

[xxx] Although NSW does not include vilification protections for bisexual or intersex people, and Queensland does not protect intersex people.

[xxxi] Obviously, depending on the circumstances of the verbal harassment or abuse, only some of the responses given to the survey would fit the legal definition of vilification, irrespective of the ground on which it was based.

[xxxii] Comments were edited to, amongst other things:

-Remove identifying information

-Remove defamatory comments, and

-Remove offensive remarks (for example, deleting explicitly racist comments and/or unnecessary descriptions of a person’s race).

[xxxiii] Although I was particularly disturbed by a small number of respondents who included transphobic comments in their answers to question 3 itself, which were subsequently edited to remove the most offensive elements.

What’s Wrong With Tasmania’s Anti-Discrimination Act 1998?

 

This is part of a series of posts looking at Australia’s anti-discrimination laws and discussing how well, or how poorly, they protect lesbian, gay, bisexual, transgender and intersex people. The articles on other jurisdictions can be found here.

 

In these posts, I have analysed Commonwealth, state and territory legislation with respect to three main issues:

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

 

This post will be the shortest of the nine, because in all three areas Tasmania’s Anti-Discrimination Act 1998 is either best practice, or close to best practice, with only minor amendments needed to improve its anti-vilification provisions.

 

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Protected Attributes

 

Unlike some other schemes, Tasmania’s Anti-Discrimination Act 1998 protects all parts of the lesbian, gay, bisexual, transgender and intersex community against discrimination.

 

Section 16 sets out the protected attributes of the Act, and they include sexual orientation (sub-section c), gender identity (ea) and intersex (eb).

 

The definitions of these terms in section 3 are also inclusive:

sexual orientation includes-

(a) heterosexuality; and

(b) homosexuality; and

(c) bisexuality”

 

gender identity means the gender-related identity, appearance or mannerisms or other gender-related characteristics of an individual (whether by way of medical intervention or not), with or without regard to the individual’s designated sex at birth, and includes transsexualism and transgenderism” (noting that this does not require gender diverse people to adopt a binary identity in order to receive protection). NB There is currently a Bill before the Tasmania Legislative Council that would improve this definition further, by including gender expression – meaning ‘any personal physical expression, appearance (whether by way of medical intervention or not), speech, mannerisms, behaviourally patterns, names and personal references that manifest or express gender or gender identity’.

 

intersex means the status of having physical, hormonal or genetic features that are-

(a) neither wholly female nor wholly male; or

(b) a combination of female and male; or

(c) neither female nor male”

with Tasmania only the second jurisdiction, after the Commonwealth, to include intersex as a stand-alone protected attribute, although they have since been joined by the ACT and South Australia. It should be noted, however, that in the March 2017 Darlington Statement, intersex activists called for this terminology to be replaced by the protected attribute of ‘sex characteristics’. NB The same Bill currently before the Legislative Council would also amend the protected attribute to ‘intersex variations of sex characteristics’, removing the definition of intersex and adding a definition of sex characteristics – meaning ‘a person’s physical, hormonal or genetic features relating to sex, including genitalia and other sexual and reproductive anatomy, chromosomes, genes, hormones, and secondary sex characteristics.’

 

Overall, the Tasmanian Anti-Discrimination Act 1998 adopts close to best practice in terms of the protected attributes it includes, covering all LGBTI Tasmanians.

 

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Religious Exceptions

 

The Anti-Discrimination Act 1998 is best practice when it comes to religious exceptions – in fact, Tasmania is better, far better, than any other Australian jurisdiction in this area.

 

There are three provisions outlining relevant religious exceptions in the Act:

 

Section 51 “Employment based on religion

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

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

 

Section 51A “Admission of person as student based on religion

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

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

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

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

 

Section 52. “Participation in religious observance

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

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

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

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

(d) any other act that-

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

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

 

At first glance these exceptions appear extensive in their application. However, the most important point to observe is that discrimination by religious bodies, including religious schools, is only allowed on the basis of the person being discriminated against’s religion – for example, a christian school offering preferential enrolment to students that are christian.

 

It specifically does not allow discrimination on the basis of other attributes, such as the person being discriminated against’s sexual orientation, gender identity or intersex status.

 

In this way, the Tasmanian Anti-Discrimination Act 1998 is clearly superior to other state and territory LGBTI discrimination laws, as well as the Commonwealth Sex Discrimination Act 1984 (which not only provides a general religious exception allowing discrimination against LGBT people in a wide range of circumstances, but also a specific one with respect to religious schools that permits discrimination against LGBT students and teachers).

 

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Anti-Vilification Coverage

 

The anti-vilification protections afforded LGBTI Tasmanians under the Anti-Discrimination Act 1998 are also strong – although, as we shall see below, there is one area of possible improvement.

 

There are actually two provisions that prohibit vilification under the Act:

 

Section 17 “Prohibition of certain conduct and sexual harassment

(1) A person must not engage in any conduct which offends, humiliates, insults or ridicules another person on the basis of an attribute referred to in section 16(e), (a), (b), (c), (d), (ea), (eb) and (k), (fa), (g), (h), (i) or (j) in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated, intimidated, insulted or ridiculed…”

 

Section 19 “Inciting hatred

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

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

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

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

(d) the religious belief or activity of the person or any member of the group.”

 

As we saw earlier, sub-sections 16(c), (ea) and (eb) cover sexual orientation, gender identity and intersex, consequently all LGBTI Tasmanians have recourse to the general anti-vilification protection found in section 17(1).

 

Interestingly, however, only sexual orientation is deemed worthy of inclusion in the more serious ‘inciting hatred’ prohibition of section 19. Which leads me to suggest one of the few possible improvements to this legislation: an amendment to sub-section 19(c) to include gender identity and intersex (or sex characteristics) which are both equally deserving of this protection. NB The Justice and Related Legislation (Marriage Amendments) Bill 2018, which is currently before the Tasmanian Legislative Council, would make exactly this change. Hopefully it is passed early in 2019.

 

Nevertheless, the anti-vilification protections contained in the Anti-Discrimination Act 1998 are at least the equal of any other state or territory – noting of course that only NSW, Queensland and the ACT have introduced similar protections (with no LGBTI anti-vilification coverage under Commonwealth law, or in Victoria, Western Australia, South Australia or the Northern Territory).

 

It should be noted that the current Tasmanian Liberal Government has attempted to undermine these anti-vilification protections. It sought to introduce amendments that would have permitted vilification for public acts done in good faith for ‘religious purposes’ (where “religious purpose includes, but is not limited to, conveying, teaching or proselytising a religious belief”).

 

This would have inevitably resulted in increased vilification of lesbian, gay, bisexual and transgender Tasmanians. Thankfully, while the Bill was passed by the Liberal-majority Legislative Assembly, it was rejected by the Independent-majority Legislative Council in August 2017.

 

 

will-hodgman

Tasmania Premier Will Hodgman sought to undermine existing anti-vilification protections, and has also opposed the Bill which would add gender identity and intersex variations of sex characteristics to inciting hatred provisions (although it passed the Legislative Assembly with Opposition and Greens support).

 

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

 

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

 

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

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

 

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

 

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Protected Attributes

 

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

 

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

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

 

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

 

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

 

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

 

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

 

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

 

 

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Religious Exceptions

 

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

 

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

Religious bodies

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

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

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

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

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

 

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

 

It also allows discrimination in relation to education in religious schools, and therefore likely overrides the general protections offered to students under section 37, which ostensibly prohibits discrimination with respect to admission as a student, the education or training offered to that student, and expelling or otherwise punishing the student.

 

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

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

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

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

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

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

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

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

(iii) to other members of the public.”

 

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

 

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

  • It still allows discrimination against teachers and other employees in religious schools solely on the basis of their gender identity or sexual orientation. This discrimination – which has no connection whatsoever to the ability of LGBT teachers and other staff to do their jobs – remains unacceptable, irrespective of the procedural steps a school must first negotiate, and
  • The general religious exception in sub-section 50(c) nevertheless applies (because it covers all sections in the Part, including those applying to employment). Depending on how the interaction between these two provisions has been interpreted by the judiciary, it is possible that religious schools can ‘pick and choose’ the basis on which they discriminate against teachers and employees (and therefore potentially avoid these procedural hurdles altogether).

 

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

 

Summary: The religious exceptions contained in the South Australian Equal Opportunity Act 1984 allow discrimination against LGBT people in a wide range of circumstances, including healthcare, community services, associations and in education (at least in relation to students).

 

LGBT teachers and other staff in religious schools can also be discriminated against simply because of who they are, although whether or not the school must have transparent policies in place to allow such discrimination would depend on judicial interpretation.

 

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Anti-Vilification Coverage

 

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

 

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

 

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Other Issues

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

 

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

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

 

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

 

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

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

 

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

 

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

 

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

 

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

Measures intended to achieve equality

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

 

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

 

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

 

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

 

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

 

Footnotes:

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

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

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

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

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

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

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

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

What’s Wrong With the Queensland Anti-Discrimination Act 1991?

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

 

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

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

 

Contrary to what some might expect, Queensland’s laws are at least ‘average’, and in some cases, particularly in relation to anti-vilification laws, ‘better than average’, across these three areas. Unfortunately, that says more about the major flaws that exist across most anti-discrimination laws in Australia than it necessarily does about the Anti-Discrimination Act 1991 (‘the Act’) itself.

 

There are still significant problems that must be addressed with this legislation, beginning with the issue of who is – and isn’t – covered.

 

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Protected Attributes

 

Like most of its counterparts in other states, Queensland’s Anti-Discrimination Act does not protect all parts of the LGBTI community from discrimination.

 

On the positive side, it does cover all lesbian, gay and bisexual people – with discrimination on the basis of ‘sexuality’ prohibited in section 7 of the Act (defined as “sexuality means heterosexuality, homosexuality or bisexuality” in the Dictionary found in the Schedule).

 

On the less positive side, it only covers some transgender people, and not others. That is because, while section 7 also includes ‘gender identity’, the Act’s definition of this term is out-dated:

“gender identity, in relation to a person, means that the person-

(a) identifies, or has identified, as a member of the opposite sex by living or seeking to live as a member of that sex; or

(b) is of indeterminate sex and seeks to live as a member of a particular sex.”

 

While this does protect transgender people who were previously identified as male but now identify as female (and vice-versa), it does not include non-binary trans people. In order to rectify this situation, the Act’s definition of gender identity should be updated to reflect the definition used in the Commonwealth Sex Discrimination Act 1984[i].

 

Even worse off than transgender Queenslanders, however, are people with intersex traits – while part (b) of the definition of ‘gender identity’ may apply to some intersex people in limited circumstances, there is no stand-alone protected attribute for intersex people and therefore no clear-cut protection against discrimination for them.

 

Again, this could be rectified with the introduction of ‘sex characteristics’ as a protected attribute in the legislation[ii].

 

Overall: While the Queensland Anti-Discrimination Act 1991 does protect lesbian, gay and bisexual people, and some transgender people, from discrimination, it leaves other trans people (especially those whose identity is non-binary) and most intersex people out in the cold. This should be fixed as a matter of priority, by updating the definition of gender identity, and adding sex characteristics as a protected attribute.

 

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Religious Exceptions

 

Queensland has adopted a unique approach to religious exceptions through the Anti-Discrimination Act 1991, in which case I will spend more time than normal discussing this element.

 

The primary religious exception is found in section 109:

“Religious bodies

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

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

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

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

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

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

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

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

 

The first three sub-sections ((a), (b) and (c)) are at least concerned with the appointment of ministers of religion, or the conduct of religious celebrations, and are therefore more likely to be excusable on the basis of protecting ‘religious freedom’.

 

Unfortunately, the wording used in sub-section (d) – “in accordance with the doctrine of the religion concerned and necessary to avoid offending the religious sensitivities of people of the religion” – is incredibly broad, and permits discrimination against a wide range of people in terms of service delivery.

 

However, sub-section (2) is unusual and, as far as I can tell, not replicated in any other state or territory legislation. In essence, it provides that religious bodies cannot discriminate against employees unless their role is directly connected with ‘religious observance or practice’. It also means religious schools cannot discriminate against students on the basis of their sexuality or gender identity[iii].

 

If section 109 was the only source of religious exceptions in the legislation, Queensland’s Act would almost be assessed as positive. However, there are other sections that complicate this assessment.

 

Chief among them is section 25:

“Genuine occupational requirements

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

Examples of genuine requirements for a position-

…Example 4-

Employing persons of a particular religion to teach in a school established for students of the particular religion

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

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

(b) any other work for a body established for religious purposes (also an employer) if the work genuinely and necessarily involves adhering to and communicating the body’s religious beliefs.

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

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

(i) during a selection process; or

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

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

Example for paragraph (a)

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

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

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

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

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

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

(6) Subsection (3) does not apply to discrimination on the basis of age, race or impairment.

(7) To remove any doubt, it is declared that subsection (3) does not affect a provision of an agreement with respect to work to which subsection (3) applies, under which the employer agrees not to discriminate in a particular way.

(8) In this section-

religion includes religious affiliation, beliefs and activities.”

 

That is obviously a lot to take in. So here are my three key observations:

  • This section expands the religious exceptions offered under section 109, so that religious bodies can discriminate on the basis of sexuality and gender identity against teachers and other staff in schools generally, but against employees in other religious organisations only “if the work genuinely and necessarily involves adhering to and communicating the body’s religious beliefs”.
  • In both cases this is limited by a potentially vague ‘reasonableness test’ (determining “whether the action taken or proposed to be taken by the employer is harsh or unjust or disproportionate to the person’s actions”), and
  • In both cases it is also limited by a ‘Don’t Ask, Don’t Tell’ clause – discrimination is only permitted where “the person openly acts in a way that the person knows or ought reasonably to know is contrary to the employer’s religious beliefs” and the religious school or body cannot ask about sexuality or gender identity. This would therefore protect teachers or other staff who did not discuss their sexual orientation at their school or workplace[v].

 

Of course, as even the US Government and Military has eventually been forced to concede, ‘Don’t Ask, Don’t Tell’ is a terrible policy, ‘invisibilising’ LGBT people in the workplace, forcing them to deny who they are and silencing them in everyday conversations (for example, gay teachers would not be able to openly acknowledge their partners at all in the classroom or even in the staffroom). It also exposes LGBT employees to potential harassment and bullying.

 

‘Don’t Ask, Don’t Tell’ is also a terrible policy with respect to LGBT students, because it denies them visible role models to look up to, or from whom to seek relevant information.

 

But, and here is the extraordinary part, these exceptions – allowing religious schools and other bodies to discriminate against ‘out’ lesbian, gay, bisexual and transgender employees – are actually the third-best religious exceptions in Australia (behind only Tasmania and recently-passed ACT laws), because they don’t allow these organisations to explicitly deny employment solely on the basis of sexuality or gender identity.

 

The other, much more unambiguously positive part of the Act’s religious exceptions is that section 25 does not apply to students – which means that, while a religious school can reject students who are not from a particular religion, they cannot reject students on the basis of their sexuality or gender identity.

 

Overall: Queensland’s approach to religious exceptions is unique, and its protection of LGBT students against discrimination is to be welcomed. However, other parts of the Anti-Discrimination Act 1991 provide overly-generous rights to religious schools and other bodies to discriminate against LGBT employees, and people accessing services, and these should be significantly curtailed.

 

Specifically, subsection 109(1)(d), which allows discrimination on the basis of sexuality and gender identity in relation to service-provision, should be repealed.

 

And, while the limitations on discrimination in relation to employment (including a ‘reasonableness test’ and a ‘Don’t Ask, Don’t Tell’ clause) might mean Queensland’s legislation is better than most, permitting discrimination in such circumstances is still unacceptable in the 21st century, meaning section 25 should ultimately also be abolished.

 

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Anti-Vilification Coverage

 

Queensland is one of only four Australian jurisdictions to provide anti-vilification protections to LGBT people – the others being NSW, the ACT and Tasmania (noting that Commonwealth anti-vilification law only applies to race).

 

Unlike NSW, the Queensland Anti-Discrimination Act treats all types of prohibited vilification exactly the same – establishing vilification on the basis of race, religion, sexuality and gender identity in the same section (124A)[vi], and creating the offence of serious racial, religious, sexuality or gender identity vilification in another (section 131A).

 

This also means that the same procedures are used, and that the same penalties apply (“for an individual – 70 penalty units or 6 months imprisonment; or for a corporation – 350 penalty units”), which are positive features.

 

Of course, given the out-dated definition of gender identity used, and the Act’s exclusion of sex characteristics, not all parts of Queensland’s LGBTI community are currently protected against vilification – although this could be rectified at the same time as the protected attributes, described earlier.

 

One other, relatively minor, fault that should also be corrected is that, while the offences themselves cover sexuality and gender identity alongside race and religion, the titles of the relevant Parts or Chapters do not (“Part 4 Racial and religious vilification” and “Chapter 5A Serious racial and religious vilification”).

 

This obviously does not impact on the substantive rights involved. However, it may be misleading to a casual reader of the legislation, and in some cases may cause people to mistakenly believe that they are not protected against vilification. As a result, it would be preferable if these titles were renamed to be genuinely inclusive.

 

Overall: Queensland’s anti-vilification protections are comparatively strong, but could be further strengthened by updating the definition of gender identity, adding sex characteristics, and ensuring that the titles of relevant Parts/Chapters are inclusive and not potentially misleading.

 

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Other Issues

 

There are two additional serious problems with the Anti-Discrimination Act 1991, and it would be negligent to conclude this analysis without addressing them.

 

The first is the truly awful subsection 28(1), which states:

“Work with children

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

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

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

 

This is genuinely appalling – the very law that is supposed to protect transgender people against discrimination implies that trans employees may be unsuitable to work with children, and could even be a threat to the ‘physical, psychological or emotional wellbeing of minors’.

 

There was never a time that such a prejudiced subsection would have been acceptable, and it most definitely is not today – there is no excuse for the Palaszczuk Labor Government to leave this provision in place today.

 

The second additional flaw is found in section 45A, which states that the protection against discrimination in goods and services, located in section 46, “does not apply to the provision of assisted reproductive technology services if the discrimination is on the basis of relationship status or sexuality.”

 

Again, there can be no justification for such discrimination against lesbian, gay and bisexual people in terms of their access to in-vitro fertilisation, artificial insemination or gamete, zygote or embryo transfer. This section must also be repealed as part of the overall much-needed updating of the Queensland Anti-Discrimination Act 1991.

 

Palaszczuk

With the recent re-election of the Palaszczuk Government – now with a majority – there is no excuse for it not to update the Anti-Discrimination Act 1991.

 

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

 

Footnotes:

[i] Defined in section 4 of that Act as “gender identity means the gender-related identity, appearance or mannerism 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.”

[ii] In March 2017, intersex activists issued the Darlington Statement, which called for this terminology (sex characteristics) to be used instead of the protected attribute of ‘intersex status’, which is found in the Commonwealth Sex Discrimination Act 1984.

[iii] Although section 42 does allow religious schools to discriminate against “applicants who are not of the particular sex or religion”. A similar provision allows religious boarding schools to discriminate on the basis of sex or religion as well (section 89).

[iv] “124 Unnecessary information

(1) A person must not ask another person, either orally or in writing, to supply information on which unlawful discrimination might be based.”

[v] Without looking at relevant case law, it is unclear how well, or poorly, the ‘Don’t Ask, Don’t Tell’ approach serves transgender people in the workplace.

[vi] “Section 124A Vilification on grounds of race, religion, sexuality or gender identity unlawful

(1) A person must not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race, religion, sexuality or gender identity of the person or members of the group.

(2) Section (1) does not make unlawful-

(a) the publication of a fair report of a public act mentioned in subsection (1); or

(b) the publication of material in circumstances in which the publication would be subject to a defence of absolute privilege in proceedings for defamation; or

(c) a public act, done reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including public discussion or debate about, and expositions of, any act or matter.”

[vii] The Act defines lawful sexual activity as “means a person’s status as a lawfully employed sex worker, whether or not self-employed”.

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

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

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

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

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

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Protected Attributes

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

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

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

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

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

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

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

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

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

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

 

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Religious Exceptions

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

Section 72 of the Act states:

Religious bodies

Nothing in this Act affects-

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

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

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

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

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

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

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

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

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

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

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

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

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

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Anti-Vilification Coverage

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

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

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

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

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

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

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

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

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

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Other Issues

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

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

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

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

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

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

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

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

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

“The objects of this Part are-

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

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

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

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

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

Update:

In October 2018, the Western Australian Attorney-General John Quigley announced that the Equal Opportunity Act would be referred to the Law Reform Commission of Western Australia for a comprehensive review. This was in the wake of the leaking of the recommendations from the Ruddock Religious Freedom Review, and ongoing publicity about the issue of discrimination against LGBT students and teachers in religious schools. Although note at the time of writing (late December) nothing has yet appeared on the LRCWA website.

Mark McGowan

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

 

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Footnotes:

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

[ii] Section 35AB.

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

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

[v] Other related offences include:

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

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

80A Conduct intended to racially harass

80B Conduct likely to racially harass

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

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

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

[vii] Section 146 includes a similar delineation.