Did You Know? Most Australian Jurisdictions Don’t Prohibit Anti-LGBTI Vilification

Hate-speech against minority groups is inherently harmful, and most people accept it should be regulated in some way (even if there is debate about what such regulation should look like).

Indeed, almost a quarter of a century since racial vilification was prohibited under Commonwealth law – the Racial Hatred Act was passed by Parliament in August 1995 – many probably assume that vilification against minority groups, including against lesbian, gay, bisexual, transgender and intersex (LGBTI) people, is already outlawed.

Which means that some would likely be surprised to discover the majority of Australian jurisdictions do not prohibit vilification against LGBTI people, and that even among those states and territories that do, only two cover all parts of our community.

Tasmania

The first jurisdiction that prohibits vilification against all of lesbians, gay men, bisexuals, transgender and intersex people is Tasmania.

Section 19 of the Anti-Discrimination Act 1998 (Tas) outlaws ‘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’ protected attributes including sexual orientation, gender identity and intersex variations of sex characteristics.’

Tasmania also has best practice protections under section 17(1), which further provides that:

‘A person must not engage in any conduct which offends, humiliates, intimidates, insults or ridicules another person… 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.’

Once again, the attributes covered include sexual orientation, gender identity and intersex variations of sex characteristics.

Australian Capital Territory

The ACT is the second jurisdiction that prohibits vilification against all of lesbians, gay men, bisexuals, transgender and intersex people.

Section 67A of the Discrimination Act 1991 (ACT) makes vilification unlawful:

‘It is unlawful for a person to incite hatred toward, revulsion of, serious contempt for, or severe ridicule of a person or group of people on the ground of any of the following, other than in private:

(b) gender identity

(d) intersex status

(g) sexuality.’

Although it should be noted that intersex advocates have called for discrimination and vilification protections on the basis of ‘intersex status’ to be replaced by the attribute of ‘sex characteristics’,[i] based on the definition in the Yogyakarta Principles plus 10.[ii]

Queensland

Queensland is one of two other jurisdictions that protect some, but not all, parts of the LGBTI community against vilification.

Section 124A of the Anti-Discrimination Act 1991 (Qld) provides that:

‘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.’[iii]

And it should be noted that the definition of gender identity in this Act only includes ‘binary’ transgender gender, not non-binary or other gender diverse people (‘gender identity, in relation to a person, means that the person… identifies, or has identified, as a member of the opposite sex by living or seeking to live as a member of that sex’).

Meaning that only LGB and some T Queenslanders are protected. Unfortunately, there is no indication the Queensland Government will update the definition of gender identity, and include sex characteristics as a protected attribute, before the upcoming state election, scheduled for 31 October 2020.

New South Wales

The situation in NSW is far more complex. The Anti-Discrimination Act 1977 (NSW) contains civil sanctions against vilification targeting binary transgender people, as well as lesbians and gay men.

Specifically, section 38S(1) prohibits anti-transgender vilification:

‘It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of-

(a) a person on the ground that the person is a transgender person, or

(b) a group of persons on the ground that the members of the group are transgender persons.’

However, this clause does not protect non-binary or other gender diverse people, because the definition in section 38A of the Act is out-dated:

‘A reference in this Part to a person being transgender or a transgender person is a reference to a person, whether or not the person is a recognised transgender person-

(a) who identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex, or

(b) who has identified as a member of the opposite sex by living as a member of the opposite sex…

and includes a reference to the person being thought of as a transgender person, whether the person is, or was, in fact a transgender person.’

Section 49ZT(1) then prohibits vilification – meaning inciting hatred towards, serious contempt for, or severe ridicule – of ‘a person or group of persons on the ground of the homosexuality of the person or members of the group’.

Note that this only refers to homosexuality, meaning civil sanctions under the Anti-Discrimination Act 1977 (NSW) do not cover bisexual people.

On the other hand, amendments to the Crimes Act 1900 (NSW), introduced in 2018, created a criminal offence of ‘publicly threatening or inciting violence on grounds of race, religion, sexual orientation, gender identity or intersex or HIV/AIDS status’. Section 93Z(1) now provides that:

‘A person who, by a public act, intentionally or recklessly threatens or incites violence towards another person or a group of persons on any of the following grounds is guilty of an offence:

(c) the sexual orientation of the other person or one or more of the members of the group

(d) the gender identity of the other person or one or more of the members of the group

(e) that the other person is, or one or more of the members of the group are, of intersex status…’

The individual penalty for contravention of this provision is up to 100 penalty units or 3 years imprisonment (or both).

The next NSW state election is not due until 25 March 2023, meaning there is plenty of time available for the current Government to amend the Anti-Discrimination Act 1977 (NSW) to ensure its civil vilification prohibitions also cover bisexuals, non-binary or other gender diverse people and intersex people – as well as fixing some of the many, many other problems with Australia’s worst LGBTI anti-discrimination law.[iv]

*

Five other jurisdictions do not prohibit anti-LGBTI vilification, at all:

Commonwealth

There is currently no prohibition – civil or criminal – on anti-LGBTI vilification in Commonwealth law.

This remains the case almost 25 years since the Racial Hatred Act 1995 (Cth) added section 18C to the Racial Discrimination Act 1975 (Cth) (‘the RDA’):

‘(1) It is unlawful for a person to do an act, otherwise than in private, if:

(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.’

Unfortunately, it seems far more likely the Morrison Liberal/National Government will wind back section 18C of the RDA (something former Attorney-General George Brandis attempted, but thankfully failed, to do), than to introduce an LGBTI equivalent before the next federal election, due in May 2022.

Indeed, current Attorney-General Christian Porter’s proposed Religious Discrimination Bill, if passed, would immediately undermine Tasmania’s existing prohibition on conduct which offends, humiliates, intimidates, insults or ridicules LGBTI people,[v] as well as leaving the door open to explicitly overriding all state and territory LGBTI anti-vilification laws, via simple regulation, in the future.[vi]

Victoria

Victoria is another jurisdiction that fails to protect LGBTI people against vilification.

The Equal Opportunity Act 2010 (Vic) contains no prohibitions against vilification, for anyone. While, as the name suggests, the Racial and Religious Tolerance Act 2001 (Vic) currently only prohibits racial and religious vilification.

On the positive side, and unlike the Commonwealth, there are at least signs of possible progress in Victoria, with Fiona Patten MLC having introduced a Racial and Religious Tolerance Bill 2019. Her Bill would add sexual orientation, gender identity and sex characteristics (among other categories) to the list of protected attributes in that Act.

The issue of anti-vilification protections is also being considered by a parliamentary committee, with that inquiry due to report by 1 September 2020.[vii] Which leaves sufficient time for the Victorian Government to take action to address this shortcoming before the next election, on 26 November 2022.

Western Australia

Another jurisdiction with disappointingly out-dated anti-discrimination legislation – perhaps the second-worst in the country behind only NSW – is Western Australia.

The Equal Opportunity Act 1984 (WA) does not contain any prohibitions on vilification, on any attribute. However, the Criminal Code Act 1913 (WA) does create a range of offences linked to racial vilification[viii] – although there are no equivalent offences for anti-LGBTI vilification.

The Western Australian Government has referred the Equal Opportunity Act 1984 (WA) to the Law Reform Commission of Western Australia for review. Encouragingly, one of the terms of reference for this inquiry is to consider ‘the inclusion of vilification, including racial, religious, sexual orientation and impairment vilification’.

However, the website for the inquiry has not been updated for more than 12 months (since 6 March 2019), and the next Western Australian election is due in less than 12 months (scheduled for 13 March 2021), making it highly unlikely for LGBTI anti-vilification protections to be passed this term.

South Australia

South Australia also has no anti-vilification coverage for the LGBTI community.

The Equal Opportunity Act 1984 (SA) does not include any vilification provisions, while, as the name suggests, the Racial Vilification Act 1996 (SA) only covers vilification based on race.

Unlike Victoria and Western Australia, though, I am not aware of any South Australian Government processes considering the issue of LGBTI anti-vilification laws prior to their next state election, to be held on 19 March 2022.

Northern Territory

The Northern Territory is unique, in that it is the only Australian jurisdiction without its own racial vilification provisions. However, section 18C of the RDA still applies, which means racial vilification is outlawed – there is no such luck for LGBTI Territorians.

The Northern Territory Attorney-General’s Department did conduct a public consultation about their Anti-Discrimination Act (NT) in January 2018, which included consideration of ‘introducing specific anti-vilification laws prohibiting offensive conduct on the basis of race, religious belief, disability, sexual orientation, gender identity and intersex status.’

Unfortunately, that inquiry’s website has not been updated since May 2019 – with that ‘radio silence’ making it extremely unlikely LGBTI anti-vilification laws will be passed before the Northern Territory election which is just over two months away (22 August 2020).

*

Vilification against members of the lesbian, gay, bisexual, transgender and intersex community can be incredibly damaging, especially for younger and/or vulnerable individuals. This was demonstrated, painfully and unequivocally, by the harm caused by the Turnbull Liberal/National Government’s wasteful and unnecessary same-sex marriage postal survey in 2017.

However, it is disturbing to realise that, in 2020, fewer than one million Australians – out of a population of more than 25 million – live in jurisdictions that prohibit vilification against all parts of the LGBTI community: Tasmania and the ACT.

As we have seen, another two states – Queensland and NSW – offer only partial coverage, while the Commonwealth, Victoria, Western Australia, South Australia and Northern Territory offer no legal protection at all.

Well. That. Is. Simply. Not. Good. Enough.

This winter, I will be regularly posting about these and other serious weaknesses of Australian LGBTI anti-discrimination laws.[ix] #WinterOfDiscriminationContent. To follow, you can:

  • Sign up to my blog (via the right-hand scroll bar on desktop, or near the bottom of the page on mobile)
  • Follow me on twitter, and/or
  • Like No Homophobia, No Exceptions on Facebook.

Anti-discrimination protections are essential to the full participation of lesbian, gay, bisexual, transgender and intersex people in Australian life. And we have allowed them to atrophy for far too long. So, as well as fighting against a Religious Discrimination Bill that undermines those rights we already have, we need to fight even harder to make sure LGBTI anti-discrimination and anti-vilification laws are made much, much better.

LGBTI Vilification Australia June 2020

[This article is part of a series. Find other ‘Did You Know?’ posts here.]

Footnotes:

[i] ‘Article 9. We call for effective legislative protection from discrimination and harmful practices on grounds of sex characteristics.’ Darlington Statement, 10 March 2017.

[ii] ‘Understanding ‘sex characteristics’ as each person’s physical features relating to sex, including genitalia and other sexual and reproductive anatomy, chromosomes, hormones, and secondary physical features emerging from puberty.’ The Yogyakarta Principles plus 10: Additional principles and state obligations on the application of international human rights law in relation to sexual orientation, gender identity, gender expression and sex characteristics to complement the Yogyakarta Principles, 10 November 2017.

[iii] Somewhat confusingly, section 124A is found in Chapter 4, Part 4 of the Anti-Discrimination Act 1991 (Qld), titled ‘Racial and religious vilification’, which may lead some people to erroneously assume LGBT vilification is not prohibited.

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

[v] Clause 42(1)(b) of the Second Exposure Draft Religious Discrimination Bill.

[vi] Clause 42(1)(c) of the Second Exposure Draft Religious Discrimination Bill. For more, see: The ‘Bad Faith’ Religious Discrimination Bill Must Be Blocked.

[vii] You can see my submission to that inquiry, here.

[viii] Including:

Section 77 Conduct intended to incite racial animosity or racist harassment

Section 78 Conduct likely to incite racial animosity or racist harassment

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

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

Section 80A Conduct intended to racially harass

Section 80B Conduct likely to racially harass.

[ix] For a comparative analysis, see A Quick Guide to Australian LGBTI Anti-Discrimination Laws.

2016: Annus Homophobicus

 

In November 1992, the Queen of England (and, unfortunately, still the Queen of Australia too) gave a speech in which she described the previous 12 months as her ‘annus horribilis’.

 

To be fair, it had been a rough year for Ms Windsor, with the separation of her eldest son from his wife, the divorce of her only daughter from her husband, frequent tabloid scandals (hello toe-sucking!) and even a fire in one of her (many) houses[i].

 

But, as bad as Elizabeth II’s year was back then, it’s frankly got nothing on how depressing, and frustrating, 2016 has been for lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians.

 

So, as the year draws to a close, and we look back on the (too few) highs and (far too many) lows, it feels apt to declare the past 12 months to be our very own ‘annus homophobicus’.

 

It started in January with the launch of a ferocious, and well co-ordinated, attack on the Safe Schools program by the Australian Christian Lobby, The Australian newspaper and extremists in the right-wing of the Liberal-National Government.

 

And, even after Prime Minister Malcolm Turnbull ‘gutted’ the program in early March, the campaign against what is a vital anti-bullying program designed to help LGBTI students has continued, as unyielding as it is lacking in compassion.

 

The year ended with the tragic death of 13-year-old Brisbane high school student, Tyrone Unsworth, in late November. Indigenous and gay, Tyrone had suffered relentless bullying because of his sexual orientation, until he ultimately took his own life.

 

A death that, understandably, shook many members of our community to the core, it was particularly hard for LGBTI Aboriginal and Torres Strait Islander people.[ii] It was a tragedy that demonstrated the very need for a program that homophobic bigots had spent the best part of a year trying to dismantle.

 

In between, 2016 was dominated by Turnbull’s proposed plebiscite on marriage equality – a policy that was completely unnecessary, fundamentally wasteful and, if held, would inevitably be harmful for countless young and vulnerable members of the LGBTI community, including the children of rainbow families.

 

It took the collective efforts of a variety of LGBTI groups, alongside the work of many individual activists, over several months, to finally defeat the planned plebiscite in early November. But that sustained campaign, against a proposal that had been put forward simply to delay or defeat rather than achieve equality, left a large number of people almost completely drained (myself included).

 

The past 12 months has also witnessed a rise in homophobic and transphobic hate-speech. It seems that anti-LGBTI rhetoric is both more common, and more ‘acceptable’, in Australia now than at any point over the past 10 to 15 years.

 

And it certainly does not help that the frequent abuse of LGBTI people coming from inside the Government, by the likes of Cory Bernardi and George Christensen, has gone without any obvious punishment from an allegedly-moderate Prime Minister too scared to stand up to his more-conservative colleagues.

 

Even worse than hate-speech, 2016 has seen plenty of horrific hate-based actions, both here and around the world.

 

This includes the almost unspeakable tragedy in Orlando on June 12th, with the mass murder of 49 people, and wounding of 53 others, at Pulse. With the popular gay nightclub holding a Latin night, most of the victims were young and Latinx. Six months later, it remains impossible not to cry when reading or watching tributes[iii] to the casualties of this terror attack.

 

pulse-tribute

Tributes to victims outside the Pulse nightclub in Orlando, Florida.

 

Acts of homophobic and transphobic violence were not limited to the United States, however. In Australia, too, there were countless assaults on LGBTI people.

 

The one that hit closest to home – both literally[iv] and figuratively – was the young Sydney man who was ‘gay-bashed’ twice in one night[v], the second time by a supposed ‘good Samaritan’ who had initially helped him after the first attack, only to assault the victim himself after learning he was gay.

 

This was a crime based on homophobia that could happen to anyone, anywhere, anytime, including my fiancé Steven and me.

 

**********

 

The net effect of these events, alongside other shocking outcomes of the past year (including Brexit and the election of Donald Trump), has been sufficient to undermine the belief that progress is somehow inevitable, that the future will always be better than the past.

 

But, as LGBTI Australians, we don’t need the fear-fuelled success of a xenophobic campaign against immigrants in the UK, or of a sexist and racist tyrant-in-training in the US, to remind us that political change is not inherently positive.

 

As many of you would know, the past few years have seen a number of areas where progress on LGBTI policy and law reform hasn’t just stalled, but been actively wound back.

 

One of the first acts of the Campbell Newman-led Liberal-National Queensland Government in 2012 was to abolish ceremonies as part of the recently-passed civil partnership scheme in that state[vi].

 

In Victoria, the Baillieu Coalition Government repealed the ‘inherent requirement’ test from that state’s Equal Opportunity Act – which had required religious employers to demonstrate that discrimination against LGBT employees was an essential part of the role – before it had even commenced operation in 2011[vii].

 

The Tasmanian Liberal Government not only made discrimination by religious schools easier in 2015 (thereby undermining what has been the nation’s best anti-discrimination scheme), it is currently committed to reducing protections against vilification, including those enjoyed by LGBTI Tasmanians.

 

And we shouldn’t forget the decision by Prime Minister Turnbull to discontinue funding for the Safe Schools program (with Commonwealth money to cease from 2017), an initiative that his predecessor, Tony Abbott, had actually implemented less than three years earlier.

 

It is clear then, that progress on LGBTI issue is not inevitable. And it is almost enough to challenge the wisdom of one of Martin Luther King, Jr’s many note-worthy quotes, namely that “The arc of the moral universe is long, but it bends toward justice.”

 

Almost, but not quite.

 

As painful as the past 12 months have been for many, especially for members of Australia’s LGBTI communities, we nevertheless must see these events in their historical context, and recognise that – at least on a (much) longer time-scale – overall, things are still headed in a positive direction. And that remains the case even if there are twists and turns, even significant bumps, along the way.

 

But the most important lesson to remember is that, while the arc may ‘bend toward justice’, it only does so because good people come together to take action to make change happen.

 

Just as US cultural anthropologist Margaret Mead famously observed: “Never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it’s the only thing that ever has.”

 

One of the best examples of this maxim actually comes from one of the major LGBTI victories of 2016 – the long overdue equalisation of the age of consent for male homosexuality in Queensland.

 

While this was discriminatory legislation that affected many, its repeal was only a priority for a dedicated few[viii], including long-time LGBTI activist John Frame[ix] among others.

 

Through painstaking, and often thankless, campaigning over years and eventually decades, they chipped away at an unjust law until it was finally amended in September this year, almost 25 years since it was first introduced.

 

There were other wins this year too. The Palaszczuk Labor Government in Queensland also passed legislation to allow adoption by same-sex couples, while the Weatherill Labor Government in South Australia ended 2016 with a flurry of pro-LGBTI law reform, including relationship recognition, same-sex adoption and trans birth certificate changes[x].

 

And of course, there was the LGBTI community’s success in defeating the marriage equality plebiscite, a victory that was by no means guaranteed at this point last year[xi].

 

All of which is to show that, despite the increasingly toxic political environment that we appear to be operating in, and the significant losses cited above, positive change is still possible – if we keep our sights on the country, and world, that we want to create, and work towards it patiently, gradually, relentlessly.

 

**********

 

For my part, as I look ahead to 2017, I will be redoubling my efforts to improve Australia’s incomplete, inconsistent and in many cases inadequate system of LGBTI anti-discrimination and anti-vilification laws.

 

I know others will concentrate their energies on (finally) achieving marriage equality, as well as a myriad of other reforms, from ending the involuntary sterilisation of intersex infants, to further trans birth certificate changes, ending the inhumane detention of LGBTI refugees and reinvigorating the Safe Schools program.

 

So, let’s end 2016 by reflecting, relaxing and hopefully recuperating, so that when the new year rolls around we are ready to dust ourselves off, fight once more and bend that arc towards a more just country for LGBTI Australians.

 

**********

 

I have one final favour to ask. Could you please take 5-15 minutes to complete this short survey about your experiences of homophobic, biphobic, transphobic and intersexphobic discrimination, over the past 12 months, and previously?

 

The results of this research will be used to advocate for better protections against discrimination for LGBTI people across Australia, as well as to campaign for the introduction of LGBTI anti-vilification laws where they do not currently exist.

 

Please TAKE THE SURVEY NOW.

**********

 

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-midnight every day)
  • Lifeline: 13 11 14, lifeline.org.au

 

Footnotes:

[i] See The Guardian “How the Royal Family Bounced Back from its Annus Horribilis” 24 May 2012.

[ii] If you have a chance, please read Dameyon Bonson’s excellent op-ed “I am Indigenous. I am Gay. Unlike Tyrone Unsworth, I Survived” in The Guardian Australia, 28 November 2016.

[iii] For example, see Anderson Cooper’s emotional tribute on CNN in the days after the tragedy here.

[iv] The victim lived in our apartment complex, with the second attack happening just 50 meters from our building.

[v] The Daily Telegraph “Gay man bashed twice in Waterloo: I’ve never been so scared in my life, and thought I would die” 23 February 2016.

[vi] Thankfully, these ceremonies were reintroduced by the subsequently (and surprisingly) elected Palaszczuk Government.

[vii] The current Victorian Liberal-National Opposition, led by Matthew Guy, defeated Andrews Labor Government legislation to reinsert this test in November 2016.

[viii] With many focusing on more ‘popular’ issues like marriage equality.

[ix] See samesame.com.au “It’s time to update Queensland’s sex laws” 23 August 2015.

[x] For more on LGBTI successes of the past 12 months, see Lane Sainty’s summary in Buzzfeed “13 Times Australia’s LGBTI Community Had a Win in 2016” 16 December 2016.

[xi] For more, see Pride, Pressure & Perseverance.

You’re wrong Malcolm Turnbull, homophobia is legally acceptable in Australia

It is now one week since the tragic events in Orlando, where 49 people were murdered in a gay nightclub, simply because they were lesbian, gay, bisexual or transgender (or were there as their family or friends).

 

I haven’t written specifically about those events for a few reasons. First, because I guess I’m still somewhat in shock about it and, like others, it will take some time to process the sheer scale of horrific, homophobic violence involved.

 

Second, because I haven’t wanted to talk about Orlando in the context of other public debates and risk them being unduly conflated (although, for the record, I do think it is a warning, albeit an extreme one, of the risks of a plebiscite generating hatred and vitriol towards Australia’s LGBTI community).

 

Third, and perhaps most importantly, I haven’t written anything because what has been written, and said, by others has been so eloquent, and so passionate, that I haven’t really felt the need to add anything. In fact, the outpouring of words and actions (including the vigils for Orlando held in many parts of the world, including here in Sydney) by LGBTI people and our allies over the past seven days has been a beautiful, and in many ways reassuring, thing to behold.

 

Countless others have already said the things that needed to be said, far better than I could ever say them:

 

Focusing on the names of the people killed, rather than that of the killer (such as CNN reporter Anderson Cooper’s touching report about the victims).

 

Challenging any erasure of the fact this was explicitly a homophobic and transphobic hate-crime, including:

 

Reminding us that this was an attack on a minority within a minority – Latinx members of the LGBT community.

 

Rejecting any moves to respond to homophobia with Islamophobia, as well as respecting and actively being inclusive of another minority within a minority – LGBTI Muslims.

 

Last, but certainly not least, seeing the individual act of homophobic and transphobic violence in the broader frame of homophobia and transphobia across the United States – and sadly, Australia – which is perhaps summed up best by this widely-shared social media image:

 

You werent the gunman

 

*********

 

In this context, as someone who primarily writes about LGBTI law and public policy, I didn’t have much further to offer – that is, until Australia’s right-wing media, and Prime Minister Malcolm Turnbull, made it a policy, and political, issue.

 

During the week, The Australian newspaper decided to turn their focus on hate-speech by some Islamic preachers. Specifically, they campaigned for the visa of Farrokh Sekaleshfar to be revoked on the basis of a speech in 2013 where he supported the imposition of the death penalty for homosexuality in some circumstances:

 

“Death is the sentence. There’s nothing to be embarrassed about this. Death is the sentence. We have to have that compassion for people. With homosexuals, it’s the same. Out of compassion, let’s get rid of them now.” [Mr Sekaleshfar ultimately chose to leave the country before he was forced out].

 

They then swung their attention towards the guests hosted by Turnbull at an Iftar dinner in Sydney, including the President of the Australian National Imams Council, Mr Shady Alsuleiman, again bringing up comments from 2013 where he reportedly said the following:

 

“What’s the most common disease these days? HIV, AIDS, that’s so common and there’s no cure to it. And when did it exist? Just decades ago, and more diseases are coming… [It’s] homosexuality that’s spreading all these diseases.”

 

Leaving aside the clear anti-Muslim bias of this newspaper – given it champions the voices of Christian advocates who condemn homosexuality rather than attacking them (hypocrisy that is perfectly skewered by the First Dog on the Moon in this cartoon, and especially the line “Christian homophobes against Islamic homophobia”) – there is a legitimate question about where the limits of ‘acceptable’ speech should be drawn, irrespective of the religion of the person saying them (Muslim, Christian, other or none).

 

The fact Mr Alsuleiman was a ‘dinner guest’ of the Prime Minister means it is entirely justifiable that he was asked for his view on those comments, and this was Mr Turnbull’s response:

 

“Homophobia is to be condemned everywhere, number one. We are a broad, diverse country and we must respect the right of gay Australians, we respect the right of the LGBTI community and the right for them to lead their lives and gather in peace and harmony. The massacre in Orlando, that shocking assault on the people in the gay nightclub is a shocking reminder, frankly, of how much hate and intolerance there is in the world, and how important it is for us to stand up for mutual respect that I spoke about earlier. That is the very foundation of our society. So I condemn, I deplore homophobia wherever it is to be found. It is not acceptable from a legal point of view in Australia, as you know, and I just – I’m sure that – well I know that [Mr Alsuleiman] has been encouraged to reflect very deeply on his remarks which were of some years ago, and it’s up to him how he restates or reconsiders his position.”

 

There are, of course, some fine sentiments expressed here, as well as some less-than-stellar interventions (as a public scolding, being “encouraged to reflect deeply on his remarks” is akin to Paul Keating’s description of John Hewson: “it was like being flogged with warm lettuce”).

 

But the thing that has stuck with me and, to be completely honest, has thoroughly pissed me off, is that the Prime Minister is fundamentally wrong. Specifically, his comment that “I deplore homophobia wherever it is to be found. It is not acceptable from a legal point of view in Australia, as you know…” IS. SIMPLY. NOT. TRUE.

 

Sorry, Malcolm, but you are very, very wrong: homophobia is indeed acceptable under Australian law, and in some places it is actively encouraged.

 

Here, I want to discuss briefly two such examples (although I’m sure readers of this blog could come up with several others):

 

First, as I have written previously[i], while the Racial Discrimination Act 1975 prohibits vilification on the basis of race, there are currently no prohibitions against the vilification of lesbian, gay, bisexual, transgender and intersex people under Commonwealth law. None. Zip. Zilch. Zero. Nada.

 

Which means that, while the Government could take action against Mr Sekaleshfar on the basis of his visa, they legally could not do anything against Mr Alsuleiman – because he would not have breached any Commonwealth laws.

 

Even at state and territory level, only four jurisdictions have legislated against LGBTI vilification (NSW, Queensland, Tasmania and the ACT), and in many cases those laws are incomplete or out of date too (for example, only offering protection to some members of the LGBTI community and not others[ii]).

 

So, while Mr Turnbull might like to say that homophobia “is not acceptable from a legal point of view in Australia, as you know”, that’s definitely not true – especially under Commonwealth law. And, based on the past term of the Abbott-Turnbull Coalition Government, with its initial attempt to wind back racial vilification, it’s a situation doesn’t look like changing any time soon either.

 

Second, while the historic Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 introduced LGBTI anti-discrimination protections in Commonwealth law for the first time, it also contained provisions that, at the same time, severely curtailed those protections[iii].

 

For example, the general religious exceptions under section 37, and the specific exceptions provided to religious schools under section 38, mean there is no obligation on religious bodies to treat LGBT people fairly, or with even a minimum of respect. Indeed, religious schools are free to fire, and refuse to hire, LGBT teachers, as well as expel or refuse to enrol LGBT students.

 

The vast majority of state and territory anti-discrimination schemes[iv] include similar exceptions, with NSW’s Anti-Discrimination Act 1977 featuring the broadest (a school doesn’t even need to be religious, just ‘private’, in NSW to enjoy the privilege to discriminate against LGBT teachers and students).

 

All of which means that, were Mr Alsuleiman, or even Mr Sekaleshfar, to make similar comments, not on YouTube but instead in the classrooms or mosques (or churches) of a religious school, I cannot see the Commonwealth Government being able to do anything much about it under the law as it stands.

 

One aspect of this situation that sticks in the craw of many people is that all taxpayers, including LGBTI taxpayers, are effectively paying for this discrimination against LGBTI young people – because those same schools, which do not have to abide by the community standards against homophobia and transphobia that Mr Turnbull tried to articulate on Friday, still put their hands out for Commonwealth (and state and territory) funding.

 

But we should never forget that it is the LGBTI young people themselves, stuck in schools their parents have chosen, and potentially exposed to homophobia, biphobia, transphobia and intersexphobia from their principals and teachers, effectively condoned by governments of all levels, are the ones who ‘pay’ the highest price.

 

There are, of course, other aspects of Malcolm Turnbull’s comments that are offensive, not the least of which is the fact he chose to speak out against the homophobia of an Islamic preacher, because he invited him to dinner, but has so far steadfastly refused to condemn the homophobia from MPs and Senators who form part of his Government, even, for example, when they compare a program against the bullying of LGBTI young people to ‘sexual grooming’.

 

Here too though, rather than trying to explain this double-standard, I will quote another person who neatly summed up the glaring disparity via twitter:

 

Lane Sainty (@lanesainty 17 June 2016):

 

“I have So Many Complicated Thoughts about the two Islamic leaders criticised in the Australian press for their anti-gay comments.

 

I’ve seen people slamming comparisons Australian Christians – saying it’s not the same to oppose Safe Schools and to want gay people to die.

 

Given the suicide rates of trans kids, there’s actually an argument to be made there. But even if you accept the distinction, it’s still…

 

…not being an apologist for Muslim anti-LGBTI views to point out the hypocrisy of how we address queerphobia depending on religion.

 

Turnbull’s failure to condemn comments linking paedophilia and Safe Schools was deeply hurtful to LGBTI people. I cannot overstate this.

 

Yet look at his speed to denounce the sheik. Why condemn someone he shared a meal with, but not the anti-LGBTI folk on his own backbench?

 

Here’s the political message this sends: Islamic queerphobia = unacceptable, but Christian queerphobia = acceptable.

 

Actually, none of is acceptable. As long as you’re not actively calling for gays to die, you’re fine? No. That’s not how it works.

 

Anyway, many Muslims have written about combating homophobia within their community since Orlando. Read their words.

 

Just don’t forget that queerphobia doesn’t start with calling for actual violence against LGBTI people. It finishes there, if anything.”

 

Lane then followed that with an excellent article on Buzzfeed, with the rather self-explanatory title “7 Other Times People were Homophobic and the PM didn’t Condemn it”.

 

So, if Prime Minister Malcolm Turnbull genuinely “deplore[s] homophobia wherever it is to be found”, then there are some serious examples of it very close to his political home – will George Christensen, Cory Bernardi and others be similarly told to ‘reconsider their positions’?

 

And, if he wants to make sure homophobia “is not acceptable from a legal point of view in Australia”, then I know two places where he can start: introducing LGBTI anti-vilification protections in Commonwealth law, and removing religious exceptions from the Sex Discrimination Act 1984. If he doesn’t, then all his ‘condemnations’ of homophobia will start to sound a little hollow to me.

 

Footnotes:

[i] Don’t limit racial vilification protections, introduce vilification protections for LGBTI Australians instead.

[ii] In NSW, while homosexual and transgender vilification is outlawed, bisexual and intersex vilification is lawful: see What’s wrong with the NSW Anti-Discrimination Act 1977?

[iii] See What’s wrong with the Commonwealth Sex Discrimination Act 1984?

[iv] With the exception of Tasmania and, to a lesser extent, Queensland.