Did You Know? The NSW Anti-Discrimination Act Doesn’t Protect Bisexuals Against Discrimination

The Sydney Gay & Lesbian Mardi Gras Parade is on tonight, and I am looking forward to attending the festivities in Taylor Square.

 

Although it will likely be in less noteworthy company than last year when, through an unlikely combination of circumstances, I ended up watching most of the parade standing next to NSW Premier Gladys Berejiklian.

 

Always the activist, and never one to waste an opportunity, I did manage to ask her an LGBTI rights question during the event. The question I chose:

 

Are you aware that NSW is the only jurisdiction in Australia that does not protect bisexuals against discrimination?

 

The Premier answered that ‘no, she wasn’t aware of that’ (or words to that effect) before turning back to talk to her companions.

 

In her defence, she would not have been alone in not knowing about this bizarre, and unacceptable, loophole in the NSW Anti-Discrimination Act 1977 (although she definitely cannot claim ignorance now).

 

It is a gap that has existed from the time discrimination on the basis of homosexuality was prohibited in late 1982 (a full 18 months before male homosexuality was even decriminalised in this state).

 

And one that wasn’t fixed when a definition of ‘homosexual’ was inserted in section 4 of the Anti-Discrimination Act in 1994: ‘homosexual means male or female homosexual’.

 

This is the definition that remains to this day. Which quite clearly excludes people whose sexual orientation is towards people of the same sex and people of different sexes. [Interestingly, it also prevents heterosexual people from enjoying protection under the Act].

 

As I stated in my question to Ms Berejiklian, NSW is alone in having such a narrow definition.

 

The Commonwealth prohibits discrimination on the basis of ‘sexual orientation’ in the Sex Discrimination Act 1984, with a definition that clearly covers lesbian, gay, bisexual and heterosexual people.

 

Victoria, Western Australia, South Australia and Tasmania all also prohibit discrimination on the basis of ‘sexual orientation’, while Queensland the Australian Capital Territory and the Northern Territory cover ‘sexuality’ [for more, see A Quick Guide to Australian LGBTI Anti-Discrimination Laws].

 

What does NSW’s exclusion of bisexuals mean in a practical sense?

 

Well, on the positive side, because bisexuals are still protected under the Commonwealth Sex Discrimination Act, discrimination against them in NSW remains prohibited in most (although not all) circumstances.

 

However, there are limits to this coverage – limits that do not apply to lesbians and gay men.

 

For example, section 13 of the Sex Discrimination Act provides that protections against discrimination in employment under that Act ‘do not apply in relation to employment by an instrumentality of a State.’

 

Instrumentalities are independent government agencies or corporations. In effect, bisexual employees of independent NSW Government agencies are not protected against discrimination during their employment.[i] Ironically, this means bisexual employees of Anti-Discrimination NSW itself are potentially not protected.

 

Another practical effect of the exclusion of bisexuals from the NSW Anti-Discrimination Act 1977 is that they are not covered by civil prohibitions on vilification, unlike their gay and lesbian counterparts.

 

For example, section 49ZT of the Act defines homosexual vilification as ‘to incite hatred towards, serious contempt for, or severe ridicule of, a person of group of persons on the ground of the homosexuality of the person of members of the group.’

 

Because there is also no prohibition against anti-LGBTI vilification at Commonwealth level, this means bisexual people cannot make a civil complaint of vilification in any circumstance.

 

Confusingly, bisexual people are protected by the 2018 amendments to the Crimes Act 1900 (NSW), with section 93Z(1)(c) criminalising:

‘a public act [that] intentionally or recklessly threatens or incites violence towards another person or a group of persons on [the ground of] the sexual orientation of the other person or one or more of the members of the group.’

 

Sexual orientation is then broadly defined in section 93Z(5) as:

‘a person’s sexual orientation towards:

(a) persons of the same sex, or

(b) persons of a different sex, or

(c) persons of the same sex and persons of a different sex.’

 

Which is obviously welcome, but invites the logical question that, if the NSW Government was willing to include ‘sexual orientation’ in the Crimes Act, why hasn’t it also updated the NSW Anti-Discrimination Act along the same, inclusive, lines?

 

The third practical effect of the general exclusion of bisexuals from the NSW Anti-Discrimination Act is that it limits their options in terms of where to lodge complaints and/or file lawsuits.

 

Whereas lesbians and gay men discriminated against in NSW have the ability to complain to either Anti-Discrimination NSW or the Australian Human Rights Commission (AHRC) – and therefore of pursuing legal action in either the NSW Civil and Administrative Tribunal (NCAT) or multiple courts – bisexuals can only complain to the AHRC and can only file in court.

 

This has implications in terms of the timelines for lodging complaints, the allocation of costs and the potential award of damages.

 

Each of these practical effects should be sufficient in and of itself to convince the NSW Government to update the Anti-Discrimination Act 1977, and replace ‘homosexuality’ with ‘sexual orientation’.

 

But, as with most anti-discrimination laws, the symbolic effect is just as important. After all, what does it say about the place of bisexuals in our own community, and society more widely, that they continue to be excluded from the primary legislation in this state which is designed to ensure all people are treated equally?

 

Unfortunately, it is not just bisexuals who are excluded in this way either.

 

The NSW Anti-Discrimination Act 1977 also excludes non-binary people, because the definition of transgender in section 38A only covers someone who ‘identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex, or who has identified as a member of the opposite sex by living as a member of the opposite sex’.

 

Similarly, the Act also fails to provide discrimination protections to intersex people, because it does not include a protected attribute of either ‘sex characteristics’ (the terminology preferred by Intersex Human Rights Australia) or ‘intersex status’ (the protected attribute in the Commonwealth Sex Discrimination Act 1984).

 

Although, unlike for bisexuality, NSW is far from alone in these deficiencies:

  • NSW, Victoria, Queensland, Western Australia and the Northern Territory all fail to protect non-binary people, and
  • Those same jurisdictions (NSW, Victoria, Queensland, WA and the NT) also exclude intersex people from their discrimination frameworks.

 

There is a long, long way to go before Australian anti-discrimination laws adequately and appropriately protect LGBTI Australians against discrimination.

 

The NSW Anti-Discrimination Act 1977 arguably has the longest journey ahead.[ii] Let’s hope Premier Berejiklian hears that message loud and clear at tonight’s Mardi Gras – and every parade until this exclusionary and out-dated law is fixed.

 

Bi Pride

 

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Footnotes:

[i] To complicate matters, bisexual employees of NSW Government agencies are protected against unlawful termination, because section 772 of the Fair Work Act 2009 (Cth) applies. However, the adverse action protections in section 351 of that Act (which prohibit mistreatment during employment) don’t apply because they must also be prohibited by an equivalent Commonwealth, state and territory anti-discrimination law – which is not the case here.

[ii] For more problems see: What’s Wrong with the NSW Anti-Discrimination Act 1977?

An LGBTI Agenda for NSW

Today marks exactly two years until the next NSW State election (scheduled for Saturday 23 March, 2019).

 

Despite the fact we are half-way through it, there has been a distinct lack of progress on policy and law reform issues that affect NSW’s lesbian, gay, bisexual, transgender and intersex (LGBTI) communities during the current term of Parliament.

 

This is in marked contrast to the previous term – which saw the abolition of the homosexual advance defence (or ‘gay panic’ defence), as well as the establishment of a framework to expunge historical convictions for gay sex offences.

 

The parliamentary term before that was even more productive, with a suite of measures for rainbow families (including the recognition of lesbian co-parents, equal access to assisted reproductive technology and altruistic surrogacy, and the introduction of same-sex adoption) as well as the establishment of the registered relationships scheme.

 

With a (relatively) new Premier in Gladys Berejiklian, now is the time for the Liberal-National Government specifically, and the NSW Parliament generally, to take action to remedy their disappointing recent lack of activity.

 

Here are 12 issues, in no particular order, which I believe need to be addressed as a matter of priority – and if Premier Berejiklian won’t fix them in the next 24 months, then they must be on the agenda of whoever forms government in March 2019.

 

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The first four issues relate to the state’s fundamentally broken anti-discrimination laws, with the Anti-Discrimination Act 1977 now one of, if not, the worst LGBTI anti-discrimination regime in the country[i].

 

  1. Include bisexual people in anti-discrimination laws

 

NSW was actually the first jurisdiction in Australia to introduce anti-discrimination protections on the basis of homosexuality, in 1982.

 

However, 35 years later and these laws still do not cover bisexuality – meaning bisexual people do not have legal protection against discrimination under state law (although, since 2013, they have enjoyed some protections under the Commonwealth Sex Discrimination Act 1984).

 

NSW is the only state or territory where bisexuality is excluded. This is a gross omission, and one that the NSW Parliament must rectify urgently.

 

  1. Include intersex people in anti-discrimination laws

 

The historic 2013 reforms to the Commonwealth Sex Discrimination Act 1984 also meant that Australia was one of the first jurisdictions in the world to provide explicit anti-discrimination protection to people with intersex traits.

 

Since then, Tasmania, the ACT and more recently South Australia have all included intersex people in their respective anti-discrimination laws. It is time for other jurisdictions to catch up, and that includes NSW.

 

  1. Remove excessive and unjustified religious exceptions

 

The NSW Anti-Discrimination Act 1977 also has the broadest ‘religious exceptions’ in the country. These legal loopholes allow religious organisations to discriminate against lesbian, gay and trans people in a wide variety of circumstances, and even where the organisation itself is in receipt of state or Commonwealth money.

 

The most egregious of these loopholes allow all ‘private educational authorities’, including non-religious schools and colleges, to discriminate against lesbian, gay and trans teachers and students.

 

There is absolutely no justification for a school – any school, religious and non-religious alike – to be able to fire a teacher, or expel a student, on the basis of their sexual orientation or gender identity.

 

All religious exceptions, including those exceptions applying to ‘private educational authorities’, should be abolished beyond those which allow a religious body to appoint ministers of religion or conduct religious ceremonies.

 

  1. Reform anti-vilification offences

 

NSW is one of only four Australian jurisdictions that provide anti-vilification protections to any part of the LGBTI community. But the relevant provisions of the Anti-Discrimination Act 1977 are flawed in two key ways:

 

  • As with anti-discrimination (described above), they do not cover bisexual or intersex people, and
  • The maximum fine for a first time offence of homosexual or transgender vilification is lower than the maximum fine for racial or HIV/AIDS vilification.

 

There is no legitimate reason why racial vilification should be considered more serious than anti-LGBTI vilification so, at the same time as adding bisexuality and intersex status to these provisions, the penalties that apply must also be harmonised.

 

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The following are four equally important law reform and policy issues for the state:

 

  1. Reform access to identity documentation for trans people

 

The current process for transgender people to access new identity documentation in NSW – which requires them to first undergo irreversible sex affirmation surgical procedures – is inappropriate for a number of reasons.

 

This includes the fact it is overly-onerous (including imposing financial and other barriers), and makes an issue that should be one of personal identification into a medical one. It also excludes trans people who do not wish to undergo surgical interventions, and does not provide a process to recognise the identities of non-binary gender diverse people.

 

As suggested in the Member for Sydney Alex Greenwich’s Discussion Paper on this subject[ii], the process should be a simple one, whereby individuals can change their birth certificates and other documentation via statutory declaration, without the need for medical interference.

 

At the same time, the requirement for married persons to divorce prior to obtaining new identity documentation (ie ‘forced trans divorce’) should also be abolished.

 

  1. Ban involuntary sterilisation of intersex infants

 

One of the major human rights abuses occurring in Australia today – not just within the LGBTI community, but across all communities – is the ongoing practice of involuntary, and unnecessary, surgical interventions on intersex children.

 

Usually performed for entirely ‘cosmetic’ reasons – to impose a binary sex on a non-binary body – this is nothing short of child abuse. People born with intersex characteristics should be able to make relevant medical decisions for themselves, rather than have procedures, and agendas, imposed upon them.

 

The NSW Government has a role to play in helping to end this practice within state borders, although ultimately the involuntary sterilisation of intersex infants must also be banned nation-wide.

 

  1. Ban gay conversion therapy

 

Another harmful practice that needs to be stamped out is ‘gay conversion therapy’ (sometimes described as ‘ex-gay therapy’).

 

While thankfully less common that it used to be, this practice – which preys on young and other vulnerable LGBT people who are struggling with their sexual orientation or gender identity, and uses pseudo-science and coercion in an attempt to make them ‘straight’/cisgender – continues today.

 

There is absolutely no evidence that it works, and plenty of evidence that it constitutes extreme psychological abuse, often causing or exacerbating mental health issues such as depression.

 

There are multiple policy options to address this problem; my own preference would be to make both the advertising, and provision, of ‘conversion therapy’ criminal offences. Where this targets people aged under 18, the offence would be aggravated, attracting a higher penalty (and possible imprisonment)[iii].

 

  1. Improve the Relationship Register

 

As Prime Minister Malcolm Turnbull and his Liberal-National Government continue to dither on marriage equality (despite it being both the right thing to do, and overwhelmingly popular), in NSW the primary means to formalise a same-sex relationship remains the relationships register.

 

However, there are two main problems with the ‘register’ as it currently stands:

 

  • Nomenclature: The term ‘registered relationship’ is unappealing, and fails to reflect the fundamental nature of the relationship that it purports to describe. I believe it should be replaced with Queensland’s adopted term: civil partnership.
  • Lack of ceremony. The NSW relationship register also does not provide the option to create a registered relationship/civil partnership via a formally-recognised ceremony. This should also be rectified.

 

Fortunately, the five-year review of the NSW Relationships Register Act 2010 was conducted at the start of last year[iv], meaning this issue should already be on the Government’s radar. Unfortunately, more than 12 months later no progress appears to have been made.

 

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The following two issues relate to the need to ensure education is LGBTI-inclusive:

 

  1. Expand the Safe Schools program

 

Despite the controversy, stirred up by the homophobic troika of the Australian Christian Lobby, The Australian newspaper and right-wing extremists within the Commonwealth Government, Safe Schools remains at its core an essential anti-bullying program designed to protect vulnerable LGBTI students from harassment and abuse.

 

Whereas the Victorian Government has decided to fund the program itself, and aims to roll it out to all government secondary schools, in NSW the implementation of Safe Schools has been patchy at best, with limited take-up, and future funding in extreme doubt.

 

Whatever the program is called – Safe Schools, Proud Schools (which was a previous NSW initiative) or something else – there is an ongoing need for an anti-bullying program to specifically promote the inclusion of LGBTI students in all NSW schools, and not just those schools who put their hands up to participate.

 

  1. Ensure the PDHPE curriculum includes LGBTI content

 

Contrary to what Lyle Shelton et al might believe, the LGBTI agenda for schools goes far beyond just Safe Schools. There is also a need to ensure the curriculum includes content that is relevant for lesbian, gay, bisexual, transgender and intersex students.

 

One of the key documents that should include this information is the Personal Development, Health and Physical Education (PDHPE) curriculum.

 

The NSW Education Standards Authority is currently preparing a new K-10 PDHPE curriculum. Unfortunately, it does not appear to be genuinely-inclusive of LGBTI students, with only one reference to LGBTI issues (conveniently, all in the same paragraph, on the same page), and inadequate definitions of sexuality/sexual orientation.

 

Fortunately, there is an opportunity to make a submission to the consultation process: full details here. But, irrespective of what the Education Standards Authority recommends, if the PDHPE curriculum does not appropriately include LGBTI students and content, then the Parliament has a responsibility to step in to ensure it is fixed.

 

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The final two issues do not involve policy or law reform, but do feature ‘borrowing’ ideas from our colleagues south of the Murray River:

 

  1. Appoint an LGBTI Commissioner

 

The appointment of Rowena Allen as Victorian Commissioner for Gender and Sexuality appears to have been a major success, bringing together LGBTI policy oversight in a central point whilst also ensuring that LGBTI inclusion is made a priority across all Government departments and agencies.

 

I believe NSW should adopt a similar model, appointing an LGBTI Commissioner (possibly within the NSW Department of Premier and Cabinet), supported by an equality policy unit, and facilitating LGBTI community representative panels on (at a minimum) health, education and law/justice.

 

  1. Create a Pride Centre

 

Another promising Victorian initiative has been the decision to fund and establish a ‘Pride Centre’, as a focal point for the LGBTI community, and future home for several LGBTI community organisations (with the announcement, just last week, that it will be located in St Kilda).

 

If it acted quickly, the NSW Government could acquire the T2 Building in Taylor Square – just metres from where the 1st Sydney Gay Mardi Gras Parade started in June 1978 – before it is sold off by the City of Sydney. This is an opportunity to use this historic site for purposes that benefit the LGBTI community, and including the possible housing of an LGBTI Museum and/or exhibition space.

 

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This is obviously not an exhaustive list. I’m sure there are issues I have forgotten (sorry), and I’m equally sure that readers of this blog will be able to suggest plenty of additional items (please leave your ideas in the comments below).

 

But the most important point is that, if we are going to achieve LGBTI policy and law reform in the remaining two years of this parliamentary term, we need to be articulating what that agenda looks like.

 

And, just as importantly, if we want to achieve our remaining policy goals in the subsequent term – from 2019 to 2023 – then, with only two years left until the next election, we must be putting forward our demands now.

 

Gladys Berejiklian at Mardi Gras

NSW Premier Gladys Berejiklian at the recent Sydney Gay & Lesbian Mardi Gras Parade. It’s time to back up this symbolic display of support with progress on policies and law reform.

 

Footnotes:

[i] For more, see What’s Wrong With the NSW Anti-Discrimination Act 1977.

[ii] See my submission to that consultation, here: Submission to Alex Greenwich Discussion Paper re Removing Surgical Requirement for Changes to Birth Certificate.

[iii] For more on both of the last two topics – intersex sterilization, and gay conversion therapy – see my Submission to NSW Parliament Inquiry into False or Misleading Health Practices re Ex-Gay Therapy and Intersex Sterilisation.

[iv] See my submission to that review, here: Submission to Review of NSW Relationships Register Act 2010.