Submission re Tasmanian Law Reform Institute Sexual Orientation and Gender Identity Conversion Practices Issues Paper

via Law.Reform@utas.edu.au

28 January 2021

To whom it may concern

Thank you for the opportunity to make a submission on this important topic.

I do so as a long-term advocate for Australia’s lesbian, gay, bisexual, transgender and intersex (LGBTI) community, including through my website www.alastairlawrie.net

While my primary law reform focus is on improving LGBTI anti-discrimination and anti-vilification legislation, I have also previously made multiple submissions in relation to sexual orientation and gender identity conversion practices, including in New South Wales[i] and Victoria.[ii]

In this submission, I will attempt to answer most, although not all, of the answers posed in the Issues Paper.

However, I also wish to acknowledge that the most important voices in this debate are those of the survivors of these abhorrent practices, including survivors of sexual orientation and gender identity conversion practices in Tasmania.

Therefore, where my answers may diverge from the submissions made by survivors, both individuals and organisations, I urge you to prioritise their views as the experts on the wide scope of these practices, the serious harms they cause and the most effective way(s) in which to prohibit them.

Question 1: After considering the background and working definition, in your opinion, what are and are not ‘sexual orientation and gender identity conversion practices’?

In my view, the terminology ‘sexual orientation and gender identity conversion practices’ is appropriate, as it avoids the limitations of alternatives such as ‘ex-gay or ex-trans therapy’.

I defer to survivors on the matter of all of the possible acts that should be included in any definition. However, the scope of any definition must not be limited to only cover conversion practices which occur in health settings (a mistake made in the Queensland Health Legislation Amendment Act 2020).

On the other hand, it must cover conversion practices which occur in religious settings, both formal and informal, because that is where survivors tell us most of the harm is inflicted.

In terms of the possible definition, I think the TLRI working definition captures the core components of conversion practices:

(a) acts or statements;

(b) that are aimed at changing, suppressing, or eradicating the sexual orientation or gender identity of another person; and

(c) are based on a claim, assertion or notion that non-conforming sexual orientation or gender identity is a physical or psychological dysfunction that can be suppressed or changed.

My one concern in this definition is the use of the word ‘non-conforming’, implying that there are sexual orientations or gender identities which do conform, or are ‘the norm’.

I would suggest consideration of alternative phrasing, perhaps to words to the effect of ‘that a sexual orientation that is not heterosexuality or a gender identity that is not cisgender’.

This wording may also help to ensure that support services for same-sex attracted and gender diverse people exploring their identities, as well as assistance for people considering or undergoing a gender transition, are not captured in the definition (noting these have been expressly excluded in both the Queensland legislation, and the ACT Sexuality and Gender Identity Conversion Practices Act 2020).

Finally, I support the inclusion of removing a person from Tasmania for the purpose of sexual orientation and gender identity conversion practices conducted outside the state in any definition and/or offences, because the harm is still inflicted on Tasmanians.

Question 2: Should people be allowed to consent to SOGI conversion practices? If so, at what age, and under what conditions?

No, I do not believe it is possible to ‘consent’ to SOGI conversion practices, even for adults.

The ideology which underpins conversion practices – that people who are same-sex attracted or gender diverse are ‘broken’ and require ‘fixing’ – is dangerous and incredibly harmful. The ideology is also erroneous – LGBT people are beautiful, just as we are – meaning any consent derived from it is based on a falsehood.

In addition, people who have been indoctrinated with this abusive ideology, whether in familial, educational, health and/or religious settings, and therefore experience severe shame about who they are, are not in a position to provide genuine consent to what is simply further abuse.

As someone who attended a deeply homophobic religious boarding school in Queensland in the 1990s – where same-sex attraction was demonised from the school rules to the pulpit (with one pastor suggesting suicide was not the worst possible outcome for children struggling with their sexual orientation)[iii] – and consequently developed profound self-loathing, I may have even participated in more-formal conversion practices had they been offered, either at the school or afterwards.

I don’t believe that my ‘consent’ in such circumstances would have been any more real on the day I turned 18 than the day before.

The practices themselves are the problem, and they should be unlawful irrespective of who is being subjected to them.

On the other hand, I do support potential differentiation in penalty on the basis of who is being harmed. For example, while sexual orientation and gender identity conversion practices should be unlawful in all circumstances, I favour increased maximum sentences where the victim is a child or young adult under the age of 18 or a person with decision-making impairments (to use the terminology outlined in the Issues Paper).

Question 3: Have you been involved in or offered, or are you aware of, any forms of SOGI conversion practices in Tasmania? If so, what were the effects on you, or the person exposed to them?

Not applicable.

Question 4: Do you think that Tasmanian law should be changed to address SOGI conversion practices? If so, should this be through comprehensive reform, amendment or both (a hybrid)?

I do not believe current Tasmanian laws are sufficient to deal with the harms caused by sexual orientation and gender identity conversion practices. Nor do I believe they can be addressed simply by amendments to existing laws. Therefore, I support either comprehensive reform, or a hybrid approach.

This would, at a minimum, include creating criminal offences covering sexual orientation and gender identity conversion practices, as well as providing civil remedy options to ensure that survivors of these abuses have the ability to seek financial compensation.

As discussed in my answer to question 2, above, I believe these responses (criminal offences and civil remedies) should cover all people who are subjected to sexual orientation and gender identity conversion practices. However, the available penalties should be higher where the person subject to harm is a child or young adult under the age of 18 or a person with decision-making impairments.

Question 5: Should some or all forms of SOGI conversion practices be criminalised in Tasmania? If so, which, if any should be dealt with as serious (indictable) crimes and which, if any, should be dealt with as less serious (summary) offences?

Yes, sexual orientation and gender identity conversion practices should be criminalised.

Given the serious harms caused by these practices, I believe that at least some of these activities should constitute indictable offences.

As indicated in my answers to both questions 2 and 4, above, I also believe there should be higher maximum penalties where the person subject to harm is a child or young adult under the age of 18 or a person with decision-making impairments. This may involve the creation of separate offences, or the inclusion of age and decision-making capacity as aggravating factors in sentencing.

Again, given the seriousness of the harms inflicted by sexual orientation and gender identity conversion practices, I believe that imprisonment should be an option, particularly for the worst instances of abuse (although, being unfamiliar with sentences under Tasmanian criminal law, I am not in a position to recommend a maximum term of imprisonment).

Finally, as indicated in my response to question 1, I believe these offences must extend beyond just health practitioners to include religious settings, both formal and informal, because that is where survivors tell us most of the harm is inflicted, as well as other areas (for example, educational settings).

Question 6: Should some or all forms of SOGI conversion practices be made civil wrongs in Tasmania? If so, what sort of practices should people be liable for and how should those subject to such practices be compensated?

Yes, sexual orientation and gender identity conversion practices should be made civil wrongs in Tasmania, in addition to being subject to criminal sanctions. This is necessary to allow the people harmed by such abuses to seek financial compensation.

Given people who have been exposed to the harmful ideology which underpins conversion practices may not be aware for some time afterwards that what they experienced was, in fact, abuse, I am in favour of extending the limitation period beyond the ordinary three years, and potentially up to 12 years.

Question 7: Should any existing Tasmanian laws (besides criminal laws or the Civil Liability Act 2002 (Tas)) be amended to cover SOGI conversion practices? If so, which ones and in which ways?

Provided that sexual orientation and gender identity conversion practices are covered by both criminal penalties and civil remedies (including financial compensation), I am agnostic about the specific vehicle(s) to deliver the latter.

I note that inclusion within Tasmania’s best practice anti-discrimination framework, via the Anti-Discrimination Act 1998, may confer some benefits (including in terms of access to dispute resolution, potential lesser exposure to costs as well as possible greater variation in outcomes such as public apologies).

Inclusion in the Anti-Discrimination Act may also allow the Anti-Discrimination Commissioner to investigate conversion practices, even in the absence of a specific complaint from survivors. 

However, I defer to the views of survivors about their preferred regulatory approach.

Question 8: Are there any other models or approaches that are preferable to, or should complement, changing the law?

I also defer to survivors, both individuals and organisations, about the best ways to detect or report sexual orientation and gender identity conversion practices.

However, I agree with the view expressed in the Issues Paper that it may be difficult to enforce any law against these abuses.

This includes both the criminal law – where it may be difficult to establish proof beyond a reasonable doubt (although I nevertheless support the creation of criminal offences to send a strong public statement that such practices are contrary to community interests, are wrong, and are fundamentally harmful). 

And it will also be difficult to enforce under civil law because it will place the onus on people who have experienced psychological abuse (and potentially physical abuse, too) to bring actions and to therefore possibly be retraumatised through the litigation process.

As with most complex problems, legislation alone will never be sufficient on its own to combat the ills of sexual orientation and gender identity conversion practices.

This is especially true because eliminating such practices also means eradicating the harmful ideology which underpins it (that people who are same-sex attracted or gender diverse are ‘broken’ and require ‘fixing’). That will require the concerted and sustained efforts of government and non-government organisations, in partnership with survivors.

I obviously defer to survivor organisations about which support and other services require funding to accomplish this objective.

Question 9: Are there any other matters that you consider relevant to this Inquiry and would like to raise?

I agree with the view expressed in the Issues Paper that criminalisation may drive sexual orientation and gender identity conversion practices further underground.

However, I do not believe this risk is sufficient to justify not prohibiting practices which inflict severe harm on many of the community’s most vulnerable people, including LGBT children and young adults.

This risk can also be mitigated by ensuring that law enforcement is appropriately trained and resourced to address the serious problems caused by conversion practices, as well as empowering an independent authority to investigate systemic issues (for example, the Tasmanian Anti-Discrimination Commissioner, as discussed above in response to Question 7).

Finally, I understand that some groups may oppose any regulation in this area on the basis of ‘religious freedom’.

However, such opposition does not understand that freedom of religion is not absolute. As Article 18(3) of the International Covenant on Civil and Political Rights makes clear:

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

Laws which seek to protect people against sexual orientation and gender identity conversion practices – which, in my view, constitute psychological torture and can and in many cases do lead to adverse mental health outcomes including depression, self-harm and even suicide – would therefore be clearly justified under international human rights law.

Thank you in advance for your consideration of this submission. Please do not hesitate to contact me, at the details provided, should you require additional information.

Sincerely

Alastair Lawrie

Footnotes:


[i] Submission to NSW Parliament Inquiry into False or Misleading Health Practices re Ex-Gay Therapy and Intersex Sterilisation, 16 June 2014. Available at https://alastairlawrie.net/2014/06/16/submission-to-nsw-parliament-inquiry-into-false-or-misleading-health-practices-re-ex-gay-therapy-and-intersex-sterilisation/

[ii] Submission to Victorian Government Consultation on Banning Conversion Practices, 24 November 2019. Available at: https://alastairlawrie.net/2019/11/24/submission-to-victorian-government-consultation-on-banning-conversion-practices/

[iii] I have previously written about my experiences at that school, here: The longest five years.

Private Lives. Public Discrimination. Political Exacerbation.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What should happen from here?

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

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

  1. Improve LGBTI anti-discrimination laws

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

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

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

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

2. Introduce LGBTI anti-vilification protections

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

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

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

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

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

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

What is actually happening?

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

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

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

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

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

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

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

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

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

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

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

Footnotes:


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

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

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

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

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

Scott Morrison’s Broken Promise to Protect LGBT Students is Now Two Years Old

Two years ago today, Prime Minister Scott Morrison promised to protect lesbian, gay, bisexual and transgender (LGBT) students in religious schools against discrimination. He stated, unequivocally: ‘We do not think that children should be discriminated against.’ 

This promise was made following the leaking of the Ruddock Religious Freedom Review’s recommendations, which sought to clarify but not repeal the existing ability of religious schools to discriminate against LGBT kids just because of who they are, and the significant public backlash it received from people who did not realise these schools already enjoyed this extraordinary special privilege under the Commonwealth Sex Discrimination Act 1984.

Morrison further committed to introducing amendments to prevent religious schools mistreating LGBT students in this way before the end of 2018, saying: ‘I believe this view is shared across the Parliament and we should use the next fortnight to ensure this matter is addressed.’ 

Scott Morrison has reneged on his promise to protect LGBT students in religious schools against discrimination. Brazenly. Deliberately. And without any apparent consideration of the serious harms his broken promise will cause to a generation of LGBT kids.

Morrison’s Government never even bothered to introduce a Bill into Parliament to attempt to implement his commitment, let alone tried to have it passed.

When the Greens, with the Discrimination Free Schools Bill 2018, and then Labor, with the Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018, both sought to do so themselves, the Liberal/National Government referred these Bills to Senate inquiries rather than debating them.

Even after those inquiries, which took place in late 2018 and over the summer of 2018/19 respectively, handed down their reports, the Morrison Government failed to support those proposals and still did not propose a Bill of their own. Instead, they stalled and effectively counted down the clock until the 2019 Federal election. 

On the very last day before the writs were issued for that election, Attorney-General Christian Porter referred the issue of ‘religious exceptions’ generally to the Australian Law Reform Commission (ALRC) for a detailed, 12-month review. 

After the Morrison Government was re-elected on 18 May 2019, they returned to power with even less sense of urgency to give effect to his promise from October 2018. Instead, they gave priority to preparing two Exposure Drafts of the Religious Discrimination Bill, in late 2019 and early 2020, legislation that would

  • Make it easier to make comments that ‘offend, humiliate, intimidate, insult or ridicule’ minorities, including LGBTI people
  • Make it easier for health practitioners to refuse to provide services that benefit minorities, including LGBTI people
  • Make it easier for religious organisations to discriminate against others, and
  • Make it more difficult for big business to promote diversity and inclusion, including for LGBTI people.

On the other hand, they first delayed the ALRC’s reporting timeline until December 2020. And then, on 2 March 2020, the Attorney-General amended the ALRC’s reporting deadline to be ‘12 months from the date the Religious Discrimination Bill is passed by Parliament.’ 

That change alone is enough to guarantee Morrison’s promise – which, let’s remember, was to protect LGBT students before the end of 2018 – will not happen this term.

First, the Religious Discrimination Bill may not pass (and, in its current form, it most definitely should not). Second, even if it passes, it will not happen until the first half of 2021 at the earliest. At a minimum, that makes the ALRC’s new reporting deadline the first half of 2022, which is when the next federal election is due (by May 2022, although there is increasing speculation it will instead be held in late 2021).

Even after the ALRC ultimately delivers its report, it usually takes a Government at least six months to prepare a formal response, and six months again to introduce legislation based on its response. 

Which means, even if the Government still feels bound by Morrison’s original promise from October 2018, even if the Liberal/National Government is re-elected, even if Morrison remains Prime Minister, even if the ALRC recommends how to implement his commitment, even if the Government accepts the ALRC recommendation, even if the Government prepares and introduces legislation to make this change and even if Parliament passes it, that legislation will not happen until 2023, and will likely not take effect until 2024.

A student in Year 7 when Scott Morrison first promised to urgently protect LGBT kids in religious schools against discrimination will finish Year 12 before his Government gives effect to it – if they ever do.

This isn’t just any ordinary broken promise either. In raising hopes that some of the most vulnerable members of our community might finally be legally protected, and then comprehensively dashing them, Morrison has broken hearts, while leaving a trail of broken lives in his wake.

That’s because anti-discrimination exceptions allowing religious schools to mistreat LGBT students just because of who they are inflict serious, real-life harm on those kids.

Religious schools can harm LGBT kids through the hateful things they say to them. And they can harm LGBT kids by not saying anything positive at all, leaving children who are struggling to figure out who they are to suffer, alone, in the all-enveloping silence of the closet.

Religious schools can harm LGBT kids by expelling them because of their sexual orientation or gender identity. But, generally, they don’t need to – the threat alone is enough. Where a student does bravely decide to come out despite that school’s prejudiced views, the school can ‘encourage parents to find a more suitable environment for their child’ (and what parent would force a school to expel their child in such circumstances?).

Religious schools can harm LGBT kids in myriad ways that fall short of expulsion too, from special rules targeting same-sex attraction, and erasing gender diversity.

Above all, religious schools can harm LGBT kids by creating a toxic environment, where those students know they will not receive safety and protection if they need it – something other kids figure out all too quickly, and take advantage of with impunity. 

I know the above from bitter personal experience – barely surviving five years at a religious boarding school in Brisbane in the early 1990s.

When they weren’t saying hateful things about my sexual orientation (like the pastor who suggested that, for kids struggling with ‘confusion’, killing themselves was not the worst possible outcome), they said nothing at all, leaving a dangerous void in which homophobia can, and did, flourish.

Their explicit rules against same-sex attraction didn’t need to be enforced either – all students knew being ‘out and proud’ simply wasn’t an option. Worst of all, the school’s anti-LGBT stance meant other boarders were free to ‘police’ any students who displayed even the subtlest signs of difference: I was subjected to both verbal, and at times physical, abuse.

The most depressing part of all is the realisation that, in many parts of Australia, little has changed in the past 25 years. While, thankfully, Queensland, Tasmania, the ACT and Northern Territory have all legislated to remove the special privileges allowing religious schools to discriminate against LGBT kids, other jurisdictions have not. 

In 2020, it is appalling and infuriating that religious schools in NSW, Victoria, Western Australia and South Australia can still legally mistreat LGBT students simply because of who they are. 

And they still do, too. As Oliver Griffith wrote, in 2018, about his own, more-recent experiences at a religious school (in an article called Growing up gay in a Christian school had lasting effects on my life’):

‘Growing up gay in an environment like this is a challenge because you are faced with your realisation of your own identity and at the same time are taught by people you trust that you are a deviant, a danger to society, and otherwise should be shunned from the community… the open criticism of homosexuality meant that I was always aware that revealing who I was to the people around me could result in being ostracised from my friends and the teachers I had learnt to respect. Despite becoming aware of my sexuality at the age of 14, I never revealed this publicly until I was in my 20s.’

My, and Oliver’s, stories of survival are by no means unique. And, of course, there are the countless stories we will never get to hear, because those students took their own lives as a direct consequence of the homophobia, biphobia and transphobia of religious schools, all legally supported by our Commonwealth Government.

The serious harms caused by the special exceptions provided to religious schools is backed up by the evidence. As expert in this area, Dr Tiffany Jones, wrote in the conclusion of their submission to the 2018 Senate inquiry titled ‘The Wrong of ‘Discrimination Rights’:

The data outlined in this submission adds to the author’s past submissions on [Sex Discrimination Act] Drafts citing evidence showing that the majority of LGBT students who attended religious schools rated them as homophobic spaces and that many LGBT students in religious schools suffered attempts to be ‘converted to heterosexuality’ or were forced out of their schools (eg in 2012). This submission shows new evidence that this trend continues in Australian religious schools, especially for people on the trans-spectrum. This is despite the fact that conversion attempts are widely and strongly denounced by peak psychology bodies.

Past submissions from the author showed there are significantly fewer policy-based protections for LGBT students in religious schools, which is highly problematic as policy protections are associated with decreased risks of experiencing homophobic and transphobic violence and decreased risks of self-harm and suicide rates for the group. However, the 2018 data shows that anti-LGBT conversion approaches contribute to harm the wellbeing of not only LGBT students, but most people attending those schools – who are significantly more likely to consider self-harm and suicide, and attempt self-harm and suicide.

The 2018 data show ‘gay’ is still the top insult in Australian schools. Trans-spectrum people suffer from more staff targeting just attending school as legally enforced. If our nation requires youth to attend school, and insists on funding religious schools, then those schools must be safe. The small portion of extremist conservative religious schools of Australia (not all religious schools, but those taking advantage of the SDA’s exemptions which effectively endorse anti-LGBT approaches) provide an educational environment lacking in basic social competencies for entering a modern diverse Australia and following its laws outside of the unrealistic ‘bubble’ of these schools. We need to ensure safety and better citizenship education at these schools. Not only for LGBTs, but for all students experiencing the wellbeing and educational deficits of discrimination on gender identity, gender expression and sexual orientation. [emphasis in original]

Dr Jones is correct – if we compel students to attend school, then we must ensure that all school environments are safe for all students, including lesbian, gay, bisexual and transgender kids.

Currently, they are not. Religious schools are legally allowed to harm LGBT students, by what they say, and what they don’t say. By what they do (in enforcing anti-LGBT policies and rules), and what they don’t need to (because of the threat hanging over the heads of LGBT kids). And most of all, religious schools are legally permitted to harm LGBT students by creating toxic cultures in which homophobic, biphobic and transphobic bullying and violence can thrive.

Two years ago today, Prime Minister Scott Morrison promised to protect LGBT students in religious schools against discrimination. He has done nothing in the two years since to give effect to this commitment.

While Scott Morrison might be able to walk away from his words, he cannot walk away from his responsibility for the serious harm being inflicted, needlessly, on another generation of LGBT kids because of his inaction. Harm that will still be felt by too many long after his time as Prime Minister comes to an end.

**********

Update: 7 July 2021

It is now 1,000 days (and counting) since Scott Morrison first committed to protecting LGBT students against discrimination.

It is clear from the history of this issue that the PM is not going to take action just because it is the right thing to do. He will only make this change if we put enough pressure on him. On that basis, it’s up to all of us to tell Morrison that:

  • It’s time to honour your October 2018 promise to protect LGBT students in religious schools against discrimination on the basis of who they are
  • It’s time to help LGBT kids thrive no matter which school they attend, and
  • It’s time to stop delaying this much-needed reform and just get it done already.

There are a variety of ways you can let him know your thoughts:

Twitter: https://twitter.com/ScottMorrisonMP

Email webform: https://www.pm.gov.au/contact-your-pm

Mail: The Hon Scott Morrison MP Prime Minister Parliament House Canberra ACT 2600

Telephone (Parliament House Office): (02) 6277 7700

Most importantly, don’t forget to add a personal explanation of why this issue is important to you. Thanks!

**********

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

Scott Morrison’s broken promise to protect LGBT students in religious schools against discrimination turns two years old today (11 October 2020).

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

Opening Statement to Victorian Inquiry into Anti-Vilification Protections

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

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

**********

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

And:

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

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

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

No Homophobia No Exceptions (1)

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

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

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.

Discrimination Under the Cover of Corona

Coronavirus. SARS-CoV-2. COVID-19. Whatever you call it, it has been the biggest single story of this century (so far). Challenging health systems, governments, economies and communities – its dominance of the news cycle has overshadowed all other issues.

Of course, that does not mean those other challenges have gone away – especially climate change. Indeed, many existing problems have been exacerbated by, or exacerbated the negative impact of, coronavirus, including wealth inequality. Discrimination has sadly also been turbo-charged by the virus, with many disturbing examples of anti-Chinese and anti-Asian racism reported during the past few months.

But, as an LGBTI advocate, it is another type of mistreatment I want to focus on here: discrimination on the basis of sexual orientation and/or gender identity. While less prominent to date in comparison to racism, I am concerned about a potential outbreak of anti-LGBT discrimination under the cover of corona, in at least three ways:

  1. Discrimination in employment

Even with the Government’s temporary JobKeeper program, Australia’s unemployment numbers are expected to at least double between March and June 2020. We could see more than 1,000,000 people permanently lose their jobs in this period alone (not to mention many more who will have their hours, or pay – or often both – reduced).

While in many workplaces, the entire staff will be terminated, elsewhere employers will keep on some employees while dismissing others. With this process happening across so many businesses, small and large, and across so many sectors, simultaneously, it is inevitable some will (ab)use this opportunity to sack people for illegitimate reasons, including bosses firing LGBT workers simply because of who they are.

Even where homophobia, biphobia and transphobia are not ‘explicit’ in this way, some employers may take irrelevant factors into consideration in making their decisions – such as whether the employee has a partner, whether that partner is also employed, and whether they have children to support. Such discrimination, on the basis of marital or relationship status, or family responsibilities, is likely to disproportionately harm LGBT employees.[i]

For a variety of reasons, we will likely never know the full extent of anti-LGBT discrimination in employment during this crisis – although it should be noted the Sydney Morning Herald is already reporting that:

‘The number of workers raising issues with unfair dismissals has surged because of the coronavirus shutdown, with 65 per cent more employees bringing cases to the national industrial tribunal last month [April] than the same time last year.’ 

  1. Discrimination in service delivery

One serious problem highlighted by the coronavirus crisis has been the ‘hollowing out’ of governments, at all levels, and corresponding outsourcing of what should be public services to the private sector.

In particular, a disturbingly high proportion of essential social services in Australia are now delivered by religious organisations, despite usually using public monies. This includes housing and emergency accommodation, community support, food and even healthcare.

At a time when many Australians will be accessing these services for the first time, lesbian, gay, bisexual and transgender people will have the additional worry of whether such faith bodies will refuse to serve them, or treat them differently to cisgender heterosexual people in the same circumstances.

This is not to suggest that all or even most of these religious organisations will engage in homophobic, biphobic or transphobic discrimination – but some of these services inevitably will, to the detriment of LGBT Australians when they are at their most vulnerable.

  1. Anti-LGBT vilification

The third potential outbreak which concerns me is anti-LGBT vilification. That is, attacks on lesbian, gay, bisexual and transgender individuals – and the LGBT community more broadly – claiming that we are somehow responsible for promulgating the coronavirus, or deserving of infection because of our supposed ‘sinful lifestyles’.

This is not a hypothetical fear, either. At the start of April, Melbourne Jewish radio station J-AIR broadcast the following homophobic and transphobic comments from a Rabbi Kessin:

‘And basically he’s [god’s] 98% finished, that’s how close we are to redemption. Therefore god wants to do is bring the redemption. However, there are certain problems that must be addressed by god in order for the redemption to actually happen. And what we begin to see is that the pandemic is an exact designer drug, if you want to use that expression, that will remove these problems.

Ah, in other words, the plague itself is a vehicle, is an instrument, to accelerate the messianic process by removing these major problems. What are they? You see. So therefore what we see is the following.

The first major problem is that man has corrupted his nature. There is a tremendous amount of, ah, what’s called immorality in the world today. It’s widespread. There’s, in Hebrew it’s called “prichus”. We want, we could say it’s also in the form of homosexuality, and gays and so on and so forth, where all of a sudden the gender differentiation is, is tremendously blurred. So that is an incredible corruption of man’s nature.’

There are, obviously, strong echoes of the homophobic vilification endured by the gay and HIV-positive community as part of the HIV/AIDS epidemic. And we learnt from that experience that more bigots will emerge in the months ahead claiming that coronavirus is ‘divine punishment’ of the LGBT community for having the temerity to exist.

These three risks – anti-LGBT discrimination in employment, and service delivery, and anti-LGBT vilification – demonstrate the importance of robust anti-discrimination and vilification protections. Unfortunately, they also reveal serious weaknesses in Australia’s existing anti-discrimination and vilification framework, in at least four ways:

  1. Onus on complainants

Australia’s anti-discrimination laws are primarily complaint-based, which means responsibility falls on the victims of discrimination to pursue justice against their discriminator(s).

This is a problem at the best of times. That includes because of the usual significant power imbalances involved: between employee and employer; member and group; individual accessing services and service delivery organisation; customer and business; and more.

The burden of making a discrimination complaint should also not be underestimated, including the cost in both time and resources (such as obtaining legal advice, which can be costly), as well as the impact on mental health through stress. It is no surprise that many people who experience discrimination ultimately choose not to lodge a complaint.

And of course the coronavirus crisis means now is far from the best of times. Power imbalances are exacerbated, financial and other stresses already heightened. Even where LGBT Australians experience unequivocal discrimination, the problems of a complaint-based system mean they may not exercise their legal rights but instead focus on more immediate concerns (like where they are going to live, and how they will pay for food, electricity and other essentials).

Now more than ever our anti-discrimination laws should be improved by making it easier for organisations, such as trade unions, to make representative complaints on behalf of vulnerable individuals, as well as strengthening the powers of bodies like the Australian Human Rights Commission and its state and territory equivalents to investigate instances of discrimination even in the absence of individual complainants.

  1. Difficult to prove

Even where a victim of discrimination does choose to lodge a formal complaint, it can sometimes be difficult to prove, at least to the required legal standard.

This will not come as a surprise to most LGBT Australians – or indeed to members of other minority groups in the community. Almost all of us will have experienced multiple instances of mistreatment, where you know without a doubt that your sexual orientation, or gender identity, or sex, or race, or disability, or combination of these, is the motivation – while also knowing it would difficult to establish without an explicit admission by the perpetrator.

The coronavirus crisis, and the associated economic crisis, will only worsen this problem, with employers able to say they abandoned usual procedures because of the scale and speed of the challenge they were facing (and the potential they are given the benefit of the doubt in many circumstances, too). This doesn’t mean there was no discrimination – but it could make already high barriers even harder to overcome for the victims.

  1. Religious exceptions

Regular readers of this blog would be well aware of this major flaw in Australians LGBT anti-discrimination laws. Specifically, under the Commonwealth Sex Discrimination Act 1984, and Fair Work Act 2009 (Cth), and the anti-discrimination laws of most state and territories (other than Tasmania’s best practice Anti-Discrimination Act 1998), it is entirely lawful for religious organisations to discriminate against employees, and people accessing services, on the basis of sexual orientation and gender identity.[ii]

This means that it is legal for a faith-based homeless service in Sydney to deny shelter to someone because they are lesbian, or for a religious-run welfare service in Melbourne to reject a client because they are trans. It also means these organisations can refuse to hire, or even fire, employees because of their sexual orientation or gender identity – which is especially concerning when these bodies may be given more public funding to address the challenges of the next 12 to 18 months, making them one of the few places actually hiring.

In order for lesbian, gay, bisexual and transgender Australians to enjoy the same employment opportunities, and receive the same level of support, as everyone else, religious exceptions to anti-discrimination laws must be repealed.

  1. Gaps in vilification protections

The fourth serious weakness in our current legislative framework is the fact that only a minority of jurisdictions protect LGBT people against vilification. The biggest gap is obviously at Commonwealth level, where there remains no sexual orientation or gender identity equivalent of section 18C of the Racial Discrimination Act 1975.

But there is also no anti-LGBT vilification coverage in Victoria[iii] (meaning the earlier comments on a Melbourne Jewish radio station were likely lawful), or in Western Australia, South Australia or the Northern Territory.

Even where vilification protections exist, their coverage is sometimes incomplete. For example, civil prohibitions on vilification in the NSW Anti-Discrimination Act 1977 only protect lesbians and gay men, and binary transgender people.[iv] Bisexuals, non-binary and intersex people need not apply (or complain).

**********

These four problems, with Australia’s LGBTI anti-discrimination and anti-vilification laws, are obviously major. But they do not mean all such legal claims will be unsuccessful – merely that people should be aware of the potential pitfalls along the complaints journey that awaits them.

I should also be clear that this isn’t legal advice, either – after all, I am not currently a practising lawyer. However, if you are lesbian, gay, bisexual, transgender or intersex and do experience discrimination or vilification, and are considering your options, there are places where you can seek advice. These include:

The Inner-City Legal Centre in Sydney

The LGBTIQ Legal Service in Melbourne

The LGBTI Legal Service in Brisbane

The HIV/AIDS Legal Centre in Sydney

Or you could contact the local Community Legal Centre in your area. A searchable map is located on the Community Legal Centres Australia website.

Alternatively, you could try the Legal Aid services in your respective state or territory.

The above organisations may assist you in determining whether you wish to make a complaint – and where. They may also be able to provide you with legal representation if you do complain.

Nevertheless, it is not compulsory to obtain advice, or be represented, in order to make an anti-discrimination, or anti-vilification, claim. You could instead decide to go directly to the relevant human rights body. These include:

The Australian Human Rights Commission for discrimination complaints, including employment discrimination [remembering that there are no LGBTI vilification protections under Commonwealth law]

The Fair Work Commission if the complaint relates to employment discrimination only [noting that only lesbian, gay and bisexual people can apply – because the Fair Work Act 2009 (Cth) does not cover gender identity or intersex status/sex characteristics][v]

Anti-Discrimination NSW

The Victorian Equal Opportunity and Human Rights Commission

The Queensland Human Rights Commission

The WA Equal Opportunity Commission

The SA Equal Opportunity Commission

Equal Opportunity Tasmania

The ACT Human Rights Commission

The NT Anti-Discrimination Commission

A lot has been written in recent months about the coronavirus ‘not discriminating’. That SARS-CoV-2 is the ‘great leveller’. That in response to COVID-19 we are now all supposedly playing on the same team (namely ‘Team Australia’).

Of course, that simplistic slogan simply isn’t true. Just like life before the ‘rona, the rich will have fewer adverse outcomes than the poor. Aboriginal and Torres Strait Islander people will continue to experience extremely high rates of disadvantage.

Racial minorities, especially Chinese-Australians and other people from Asian backgrounds, will endure even greater levels of racism than before the pandemic. Prime Minister Scott Morrison is fond of telling Australians to ‘get out from under the doona’. He needs to also pay attention to the increased racist abuse which has sadly – but entirely predictably – emerged from under the covers.

As we have seen, lesbian, gay, bisexual and transgender Australians, as another vulnerable group, are at risk, too – of increased discrimination in employment, in service delivery, and through vilification.

If that happens to you, there may be legal remedies available, including under Commonwealth, state and territory discrimination laws, or the Fair Work Act. As discussed earlier, there may also be good reasons why you ultimately choose not to make a complaint under any of these processes.

But one reason homophobic, biphobic and transphobic bigots shouldn’t be allowed to get away with anti-LGBT discrimination or vilification is that you simply weren’t aware of the options available.

Christian Porter

Commonwealth Attorney-General should spend more time fixing problems with our existing anti-discrimination laws, and less time trying to introduce a Religious Discrimination Bill that would only exacerbate them.

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] Acknowledging of course that traditionally, and unfortunately still today, the most likely targets of discrimination on the basis marital or relationship status, or family responsibilities, are women.

[ii] For more on this subject, see A Quick Guide to Australian LGBTI Anti-Discrimination Laws.

[iii] Although there is currently a Victoria Parliament inquiry considering expansion of the Racial and Religious Tolerance Act 2001 (Vic) to cover sexual orientation, gender identity and intersex status. See my submission to that inquiry here.

[iv] Although the criminal offence of publicly threatening or inciting violence, added to the Crimes Act 1900 (NSW) in 2018, does cover all of sexual orientation, gender identity and intersex status. For more on the problems of LGBTI anti-discrimination law in NSW, see What’s Wrong With the NSW Anti-Discrimination Act 1977?

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

Submission to NSW Parliament Inquiry into Gay and Transgender Hate Crimes Between 1970 and 2010 – 57th Parliament

Standing Committee on Social Issues

NSW Legislative Council

via email: socialissues@parliament.nsw.gov.au

Thursday 30 April 2020

 

To the Committee

Submission re Gay and Transgender Hate Crimes Between 1970 and 2010

Thank you for the opportunity to provide this submission on the subject of ‘Gay and Transgender hate crimes between 1970 and 2010’ in NSW.

I do so further to my original submission to the inquiry into the same subject, held in the previous Parliament.

I welcome the decision by the NSW Legislative Council to re-establish an inquiry into this important topic, and continue this work, this term.

In this submission, I endorse the submissions already made to the re-established inquiry by organisations that represent the LGBT community in NSW. This includes the submission made by ACON.

Specifically, I endorse ACON’s comments relating to Recommendation 3 of the Interim Report (‘That the NSW Police Force ensure that all officers have the skills and knowledge to engage with lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) people respectfully and equally’), namely:[i]

The recommendation of the Interim Report relating to the responsibility of the New South Wales Police Force fails to recognise the historical context that this Inquiry examined. We would assert that the NSW Police Force also needs to consider the impact of their policing and its effect on our communities in the past. It is only in conjunction with ongoing reflection on these issues that skills and knowledge will have any effect on the relationship between our communities and the Police.

I also endorse ACON’s comments about the disappointing response to the Interim Report provided by the Minister for Police, the Hon David Elliott:[ii]

ACON believes the response does not adequately take into consideration the overall content of the Committee’s Report on the Inquiry, focusing only on a singular recommendation. The work of the Committee in putting together the Report reflects, to a degree, the personal stories and experiences of community members and organisations. While the Report goes some way to frame these stories in the context of problems with policing and our communities, the response from Minister Elliott downplays these experiences. The brevity of the response, and its ignorance of the full subject matter of the Report, is disappointing…

The crimes that occurred in the past are abhorrent, and the police response to these crimes was negligent at best. These facts are known by our communities. ACON was extremely disappointed that no such acknowledgement was included in Minister Elliott’s response.

Finally, I endorse the call made by ACON for the Committee to seek evidence from NSW Police to assess the four measures that are proposed in the one-page response by Minister Elliott, including how they are being implemented in practice:[iii]

  1. Revised bias crime indicator assessment tools supported by appropriate training packages
  2. A review of internal policies ensuring open-mindedness regarding motive
  3. Ongoing internal ethical and cultural training to specifically include LGBTIQ experiences
  4. Ongoing improvements to ensure bias crimes are centrally captured for state-wide investigations.

I also endorse the submission to the re-established inquiry made by the NSW Gay & Lesbian Rights Lobby. This includes their comments that:[iv]

The trust to which our community can place in the NSW Police Force will continue to suffer as long as the Force continues to come to grips with its culture of homophobia. As per our previous submission, we want to see ongoing education modules relating to LGBTIQ people as a standard of employment for every employee of NSW Police Force, from the Commissioner down. It is no longer good enough to have a handful of ‘trained’ GLLOs, unevenly distributed across the state…

An individual living in any corner of this state should be able to deal with any NSW Police Officer or any other public service employee with confidence, knowing they will be treated equally and respectfully.

I also endorse the NSW Gay & Lesbian Rights Lobby’s submission on the need for anti-discrimination law reform to help address homophobia and transphobia in NSW:[v]

[T]he tacit approval of discrimination must be avoided. Anti-discrimination laws, and their exemptions, have been the subject of wide-spread consideration in recent years. The swift public backlash to exemptions which permit discrimination by religious schools against LGBTIQ people are heartening. However, as yet, the GLRL eagerly awaits the removal of these exemptions. The research and lived experiences … demonstrate how discrimination permitted by laws such as the Anti-Discrimination Act 1977 (NSW) contribute to a culture which sees hate crimes committed against LGBTIQ people.

Finally, I support the submission made by the Pride History Group (submission number 15), and draw the Committee’s attention to the personal accounts of homophobia and transphobia, including homophobic and transphobic violence, which it contains.

In terms of my own substantive comments, I have two criticisms of the Interim Report which I would like to make to the Committee.

The first concerns observations, both in the Chair’s foreword, and in evidence provided by Assistant Commissioner Anthony Crandell of the NSW Police Force, that appears to frame NSW Police as passively reflecting the homophobia and transphobia of NSW society, rather than being an active contributor to this discrimination and intolerance.

For example, the Hon Shayne Mallard MLC wrote on page vii that:

For many decades, pervasive prejudices against LGBTIQ people ran deeply in society. Even with legislative change following the decriminalisation of homosexuality in 1984, bias attitudes were still being perpetuated within the broader community with a legacy that is still keenly experienced today. The ensuing violence and crime against gay and transgender people, particularly in the 1970s, 1980s and 1990s, was shocking, abhorrent and all too common. Amidst this stood a NSW Police Force and a broader criminal justice system with a culture influenced by the social values of the time [emphasis added].

Similarly, on page 8, the Interim Report noted that:

While Assistant Commissioner Anthony Crandell, Police Education and Training, NSW Police Force acknowledged that the ‘police force reflected the community and was no different, with culture and values taking far longer to evolve.’

And again on page 45:

In evidence to the inquiry, Assistant Commissioner Crandell acknowledged that historically, the ‘NSW Police Force accepted a culture and society that marginalised people who happened to be sexually or gender diverse.’

He made further comments along the same lines on page 69:

Assistant Commissioner Crandell observed that at no stage had the NSW Police Force indicated that there was ‘no more homophobia, transphobia or that sort of sentiment’ within the force. Rather, he stated: ‘We reflect the community.’ He explained: ‘If we can say that about the community then perhaps I could say that about the police force, but you cannot say that about the community and I cannot say that about the police force…’

The overall impression of these comments is that NSW Police was only ever a ‘mirror’ reflecting society’s homophobia and transphobia back to itself, rather than an organisation with agency that itself generated homophobia and transphobia through its own culture, policies and operational decisions.

I would dispute this ‘mirror’ characterisation in at least two ways. First, the police force is a key shaper of societal attitudes. It plays a role in deciding those rules that are actively enforced, and those that are not (because there will always be far more ‘crimes’ committed than are investigated or prosecuted at any one time) – and this sends a signal to ordinary community members about what are serious breaches of the law versus minor infractions. In this way, the law enforcement actions of police carry a ‘normative’ value.

Indeed, this can be seen in prioritisation of anti-homosexual policing described on page 7 of the Interim Report:

Societal views and attitudes of the time were said to have been compounded by the leadership approach taken by senior policy officers. For example, during the 1950s, the then NSW Police Commissioner Colin Delaney voiced personal views regarding homosexuality that encouraged vigilant detecting and prosecution of homosexual acts and homosexual men by police. In 1958, Commissioner Delaney described homosexuality as “Australia’s greatest menace’; that homosexuals were a “cancer in the community”, who threatened to damage society’s “moral welfare.”

I submit it is impossible to argue that these comments, from the ‘top cop’ in the biggest jurisdiction in Australia, did not have an impact on societal homophobia – especially when it was reinforced by police entrapment and harassment of gay and bisexual men.

The second way in which NSW Police contributed to homophobia and transphobia in society (rather than the other way around), was by failing to properly investigate crimes against gay, bisexual and transgender victims of crime.

While I concede many people at the time may have considered LGBT people to be ‘lesser’ than other members of the community, the actions of NSW Police actually made them so under the law, and therefore actively encouraged others to treat them in the same way.

As noted by the Committee itself on page 35:

Throughout the inquiry the committee heard that police investigations into a number of suspected gay hate crimes during the 1980s and 1990s were inadequate, ineffective and in some cases absent almost entirely, with victims and loved ones never receiving adequate justice.

As described by Mr Larry Galbraith on page 32:

[E]fforts to encourage victims to report were often ‘undermined by the police themselves’, which in turn impacted on the willingness of victims to report crimes. Mr Galbraith recounted a sentiment expressed to him, that going to the police was like a ‘lucky dip – expect it was a lucky dip that too many gay men were not prepared to risk’. He explained: ‘For many gay men, it was sheer luck if the cop you saw took your matter seriously and was willing to do something about it.’

By failing to do their jobs and investigating crimes committed against anyone, irrespective of who they were, NSW Police sent a message to the community that crimes committed against gay and bisexual men, and transgender people, were less serious than crimes committed against cisgender and heterosexual people. That reflects the special role of police in law enforcement, and goes far beyond simply ‘mirroring’ intolerant attitudes.

For these reasons, it was incredibly disappointing to see on page 94 that key sections of the draft Interim Report were removed by Committee members prior to its publication.

This includes the [now deleted] observation that:

The committee accepts the view put forward by a number of inquiry participants that the homophobic culture within NSW Police during the time period examined has significantly obstructed the delivery of justice for members of the LGBTIQ community subjected to violence and hate crimes, in addition to further marginalising a community that already felt ‘rejected’ by many in society’.

Most disappointingly, it involved removing Finding 2:

That the NSW Police Force failed in its responsibility to properly investigate cases of historic hate crime and this has undermined the confidence of lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) communities in the NSW Police Force and the criminal justice system more broadly.

I strongly urge the committee to make this finding as part of the re-established inquiry.

My second substantive criticism of the Interim Report relates to how it dealt with the issue of the gay panic, or ‘homosexual advance’, defence – or, more accurately, how it failed to properly address this topic.

The terms of reference specifically included the following:

(b) in relation to LGBTIQ hate crimes more generally:

i. what role the so-called ‘Gay panic’ defence played in the culture of LGBTIQ hate crimes between 1970 and 2010,

ii. how the so-called ‘Gay panic’ defence impacted the delivery of justice and the treatment of Gay men during LGBTIQ hate crime investigations and court proceedings

However, despite this term of reference, and Chapter 4 of the Interim Report discussing this issue at some length, the Interim Report does not include any findings or recommendations on this subject.

Even worse, once again strong statements on this subject, including a proposed Recommendation, were removed by the Committee prior to the public of the Interim Report (as noted on page 99 of the Report). These deleted paras stated:

While the Crimes Act 1900 has been amended to finally reflect the recommendations of both the 1995 NSW Attorney-General’s Working Party on Homosexual Advance Defence and the parliamentary inquiry into the partial defence of provocation, the committee acknowledges that there is a ‘gay panic’ defence legacy.

The committee supports the NSW Government’s 2013 directive for the NSW Law Reform Commission to conduct a comprehensive review of the law of homicide and homicide defences, as initially recommended by the 2013 Legislative Council Select Committee on the Partial Defence of Provocation to ensure that recent legal reforms have effectively removed any potential for further injustice to occur. The committee therefore recommends that the NSW Attorney General issue a reference to the NSW Law Reform Commission to require it to undertake a comprehensive review of the law of homicide and homicide defences in New South Wales.

Recommendation 10

That the NSW Attorney General issue a reference to the NSW Law Reform Commission to require that it undertake a comprehensive review of the law of homicide and homicide defences in New South Wales to ensure that recent legal reforms have effectively removed any potential for injustice to occur.

I believe that these paras, and the proposed Recommendation 10, were justified on the basis of evidence provided to the inquiry by ACON, Mr Larry Galbraith,[vi] and Mr Nathan Johnstone,[vii] among others.

I strongly urge the Committee to incorporate these comments, and to make a similar recommendation to the deleted Recommendation 10, in its Final Report.

This would highlight the deleterious impact of the gay panic defence, not just on the individual victims whose lives were treated as somehow being less worthy by the criminal justice system, but also the entire LGBT community because crimes against them were seen as less serious than crimes committed against others.

My final comment in relation to the Interim Report is to express my support for the position of the NSW Young Lawyers Human Rights Committee, as summarised on page 50:

The NSW Young Lawyers Human Rights Committee argued that there are limitations to the current GLLO program that need to be addressed. These include:

  • the name of the program creates barriers to access for bisexual, transgender, intersex and queer people
  • there are significant gaps in when and where GLLOs are available; and
  • there is limited evaluation of the performance of GLLOs in their role.

Given the perceived limitations of the GLLO program, the NSW Young Lawyers Human Rights Committee put forward three recommendations to improve its accessibility and effectiveness. These were:

  • Changing the name of the program to the LGBTIQ Liaison Officer program
  • Increasing the number of LGBTIQ liaison officers particularly in areas where gaps exist
  • Regularly evaluating the performance of LGBTIQ liaison officers and ensuring adequate support is provided for such officers to perform effectively in their roles.

I urge the Committee to adopt these suggestions in its Final Report. In this way, and provided they are subsequently adopted by NSW Police, it would help to strengthen this program – and, most importantly, to prevent some of the historical injustices heard by the Committee from being repeated in the future.

Thank you for taking this submission into consideration as part of this important inquiry. Please do not hesitate to contact me, at the details provided, should you require additional information.

Sincerely

Alastair Lawrie

w1-truthandjustice

ACON’s In Pursuit of Truth and Justice Report, which documents gay and transgender prejudice killings in NSW in the late 20th century, can be found here.

Footnotes:

[i]  Submission Number 12, ACON, page 11.

[ii] Submission Number 12, ACON, pages 12-13.

[iii] Submission Number 12, ACON, pages 14-15.

[iv] Submission Number 14, NSW Gay & Lesbian Rights Lobby, page 6.

[v] Submission Number 14, NSW Gay & Lesbian Rights Lobby, page 8.

[vi] From page 61 of the Interim Report:

Mr Galbraith was of the view that the ‘gay panic’ defence ‘helped perpetuate the idea that… somehow the crime was lesser and therefore… should not be treated as seriously’. He added it was likely that the ‘gay panic’ defence fed ‘into a culture where other crimes against gay men should not be treated as seriously.’

[vii] Noting that the following para, describing Mr Johnstone’s evidence, was also removed from the final report:

Mr Nathan Johnstone, Committee member, NSW Gay and Lesbian Rights Lobby summarised for the committee the legacy of the “gay panic” defence:

I certainly think that it feeds into the level of distrust or the damage to the relationship between perhaps our community and not just police but perhaps the whole criminal justice system. You have got at least, I think it was, 13 people in about a three- or five-year period… who successfully used this before it was abolished. This is remarkable… That will still breed that culture and fuel that culture of distrust.

Coronavirus and the Religious Discrimination Bill

2020 is still less than ten weeks old. A lot has already happened in that time.

Obviously, the year started with the climate change-driven bushfires that devastated large swathes of South-Eastern Australia.

Around the same time, the first reports were emerging about a respiratory illness, caused by a novel coronavirus and which is now called COVID-19, wreaking havoc in Wuhan, China.

On a personal level, both at work and outside, most of my time has been spent trying to stop the Morrison Government’s proposed Religious Discrimination Bill, which will inflict its own serious harm on the Australian community.

At first glance, there may not appear to be much to connect these three developments. But dig a little deeper and there is a clear interaction between the Religious Discrimination Bill and the first two crises, at least in terms of how Australia responds to them.

For example, in relation to the bushfires in January, Prime Minister Scott Morrison encouraged Australians to give freely to charities, and then specifically named three: the Salvation Army, the Red Cross and St Vincent de Paul.

While the Red Cross is secular in ethos, the ‘Salvos’ and St Vincent de Paul are faith-based charities, which means that under clause 11 of the Religious Discrimination Bill they would legally be able to:

  • discriminate in terms of who they provide assistance to, including by ‘preferencing’ people who are Christian and consequently neglecting people who are Jewish, Muslim, Buddhist, Hindu, atheist or agnostic, and
  • discriminate in terms of who they employ, including by not hiring the most qualified person for the job, but instead the most religious.

To date, St Vincent de Paul has largely rejected these new special privileges, but as far as I understand, the Salvation Army has not (at least not Australia-wide). I wonder how many people would give so generously in the future if they were aware their money is funding religious discrimination and not emergency relief?

Nevertheless, it is the second major crisis – the coronavirus – and the Religious Discrimination Bill that I want to primarily focus on today.

Once again, despite superficially seeming unrelated, the Government’s proposed legislation could have a major influence on how our country responds to this grave threat. Indeed, I would argue that COVID-19 provides (at least) five reasons why the Religious Discrimination Bill must be abandoned.

  1. The Religious Discrimination Bill allows hospitals to hire the most religious, not the most qualified

In the coming months, we are going to be relying on our health care system more than ever before. From GPs to pharmacists, health information lines to hospitals – both public and religious. All parts of the system must be high quality – and that means all must hire the best-qualified person for each and every position.

Unfortunately, the Religious Discrimination Bill subverts that entirely reasonable expectation. Under clauses 32(8) and (10), religious hospitals would be permitted to discriminate in employment on the ground of religious belief.

That means a religious hospital would be legally able to hire a doctor, or nurse, or pharmacist, or other essential employee, because of their religious beliefs and instead of a better-qualified alternative candidate.

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

The fact that religious hospitals receive public funding to deliver these services makes this proposal even more sickening.

If the Australian Government wants us to have confidence in all parts of the health system as it responds to coronavirus, then it must abandon legislation that inevitably damages that confidence.

  1. The Religious Discrimination Bill allows aged care facilities to hire the most religious, not the most qualified

Another area that has an important role in dealing with COVID-19 is our aged care sector. This is because the death rates from coronavirus are much higher among people aged over 70, and especially 80, and where they have existing medical conditions – exactly the demographic profile of aged care facilities.

Because of these particular vulnerabilities, we will be relying on our aged care workers to limit the spread of infection and keep our elderly as safe as possible – as well as to respond appropriately where transmission does occur.

Unfortunately, the same provisions of the Religious Discrimination Bill named above – clauses 32(8) and (10) – also allow religious aged-care services to discriminate in employment of the ground of religious belief.

Once again, that means aged care services operated by faith-based organisations will be permitted to hire someone because of their religious beliefs rather than their qualifications. Once again, the services will be able to discriminate in this way even where they are government-funded.[i]

As someone with a grandmother who turned 99 last Wednesday, and who is in a nursing home, I would hate to think she is being cared for by someone who is there because of their views and not their vocational skills.

Older Australians must be looked after by the people most likely to keep them safe, irrespective of their religious beliefs. This is especially important during the coronavirus pandemic. The Religious Discrimination Bill directly contradicts this principle, and is another reason why it must be abandoned.

  1. The Religious Discrimination Bill will already make it more difficult for women, LGBTI people and other vulnerable groups to access essential health care. Coronavirus will exacerbate this problem

Of course, while COVID-19 will likely receive the lion’s share of health care system resources in the weeks and months ahead, people will continue to get sick in other ways, and to rely on health practitioners to keep them well.

Unfortunately, as has been highlighted previously,[ii] clauses 8(6) and (7) of the Religious Discrimination Bill would make it easier for doctors, nurses, pharmacists, psychologists and midwives to refuse to participate in particular health services.

As Attorney-General Christian Porter has himself conceded, these provisions would allow doctors and pharmacists to:

  • refuse to provide reproductive health services, even where this has a disproportionate impact on women
  • refuse to provide access to hormone therapy, including puberty blockers, even where this has a disproportionate impact on trans and gender diverse people, and
  • refuse to provide PEP and/or PrEP, even where this disproportionately exposes gay and bisexual men to the risk of HIV transmission.

Where patients are denied this essential health care, they are supposed to find another health practitioner who is willing and able to do so (although the refusing practitioner likely does not have any obligation to make a referral).

As has been pointed out, this may be practically difficult, both for time-critical services (such as PEP, or the ‘morning after’ pill), as well as for people in regional, rural and remote parts of Australia.

Well, the impact of the novel coronavirus could make this situation much worse. For example, say you are a trans youth living in a regional centre, and rely on a certain doctor and/or pharmacist to provide access to puberty blockers.

And then that doctor or pharmacist is required to self-isolate for a minimum of two weeks because of potential exposure to COVID-19. Note that this is already happening in Sydney and Melbourne, with individual health practitioners ordered to stay away from work at extremely short notice.

What exactly is the trans young person meant to do in these circumstances, especially where other doctors and pharmacists in town have the ‘right’ to turn them away?

With the impending massive strain of coronavirus on our health care system, all effort should be made to ensure it operates effectively and efficiently for all people who need health care – all types of health care. The Religious Discrimination instead erects barriers to some of the most vulnerable members of our community. It must be abandoned.

  1. The Religious Discrimination Bill will divide Australia at a time it needs unity

It is only early days in terms of the impact of COVID-19 on Australia, with the total number of people diagnosed remaining at fewer than 100 (at the time of writing).

However, the impact on our social cohesion is already quite large. This includes countless reported incidents of racism directed at Chinese-Australians, and Asian-Australians more generally.

And of course just this week we witnessed the run on the nation’s toilet paper supply – with panic buying leading to physical altercations in a number of supermarkets around the country.

As the situation worsens, and more and more people are infected, this pandemic will likely test the ties that bind us together, often in unexpected ways.

This is exactly the wrong time for our Government to introduce legislation that divides the community into ever-smaller groups of ‘us’ and ‘them’.

It is the wrong time to allow schools, and universities, and charities, and accommodation providers, and hospitals, and aged care services, and conference venues, and camp sites, to discriminate on the ground of religious belief in terms of who they offer services to, and/or employ.

It is the wrong time for our Government to pursue a Bill that encourages religious individuals to make degrading and demeaning ‘statements of belief’ against women, LGBTI people, people with disability, single parents, people in de facto relationships, divorced people and even people from minority faiths, in all areas of public life.[iii]

While I haven’t seen many examples yet, I’m sure there will soon be a deluge of extremists seeking to exploit coronavirus, blaming it on women exercising reproductive choice, gay men having sex, LGBTI people getting married – all with the possible tick of approval from the Religious Discrimination Bill.

If the Government wants to lead on COVID-19, and bring the community together to deal with a common threat, it must abandon legislation that makes nearly everybody an enemy of somebody else.

  1. The Religious Discrimination Bill is a distraction for a Government that should be focused on more important things

The fifth and final reason why the Government must abandon the Religious Discrimination Bill is arguably the most important – and that is because it is an unnecessary distraction from much more important issues that warrant their urgent attention.

Like responding to the immediate health challenges presented by coronavirus, particularly as the illness begins its inevitable spread across the community.

And dealing with the significant economic fallout, with Australia now facing our first economic recession in almost three decades.

There is an entire generation of people (including myself and my partner) who have grown up not knowing what a recession looks like, but it seems we are soon to find out. And it won’t be pretty.

Surely the Government should be focused on taking action to stop the economy grinding to a halt, and preventing rising unemployment in education, tourism, retail, construction and pretty much every other industry in the country.

Oh, and then there’s the equally urgent need to make structural changes to reduce our carbon emissions, to minimise the chances of the other disaster that heralded the start of 2020 (the bushfires) from happening again.

Instead, the Morrison Government is wasting its time on proposed legislation that almost nobody actually wants, except religious fundamentalists who demand it so they can use it as a weapon against non-believers.

In pushing forward with the Religious Discrimination Bill, the Government is wasting our time, too – because we must continue to expend our time, energy and resources to stop this abhorrent and appalling legislation.

If it sounds like I’m sick and tired, that’s only because I am. Sick and tired of having to defend my community against the constant attacks against it, from a Government that can’t find the time to protect LGBT students in religious schools against discrimination, but has miraculously created the time to progress two exposure drafts (and counting) of this law.

And if it sounds like I’m anxious about coronavirus, well I am that too. If we’re being honest, most of us are right now. That anxiety might turn out to be unfounded. Or it could be an entirely rational response to what confronts us. It could even be we aren’t worried enough.

We don’t really know – only the weeks and months ahead will truly tell.

Here’s what we do know. As of this morning, a third Australian has tragically died from COVID-19, out of more than 3,500 deaths – and 105,000 cases – worldwide. Each of those numbers will continue to grow.

But there’s one death that would not be mourned – if the Morrison Government finally did the right thing and abandoned its Religious Discrimination Bill. That would be a mercy killing, and it would be met with relief from most members of the Australian community.

 

Coronavirus

 

For more on this subject, see The Religious Discrimination Bill: What you should know.

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Footnotes:

[i] I should highlight here that government-funded aged care facilities operated by religious bodies are already entitled to discriminate in employment in relation to sexual orientation and gender identity, under section 37 of the Sex Discrimination Act 1984 (Cth). As I have argued previously this provision already jeopardises the standard of care provided to people accessing aged care services and it must be removed. See Submission to Royal Commission into Aged Care.

[ii] See The ‘Bad Faith’ Religious Discrimination Bill Must be Blocked.

[iii] Under clause 42 of the Bill, which effectively exempts ‘statements of belief’ from all Commonwealth, state and territory anti-discrimination laws, unless they meet the high bar of being malicious, harassing, threatening, seriously intimidating, vilifying (meaning inciting hatred or violence) or promoting the commission of a serious criminal offence.

Don’t Rain on Our Parade

It’s reached that point in late February where, every day at 4:20pm, I visit the Bureau of Meteorology website to check the forecast for Saturday night’s Sydney Gay & Lesbian Mardi Gras Parade.

 

But, irrespective of whether the BoM says it will rain, hail, (smoke) or shine, there’s a much larger cloud hanging over Australia’s LGBTI community: the Morrison Government’s proposed Religious Discrimination Bill.

 

This legislation has the potential to adversely affect nearly every aspect of our existence.

 

From health-care, where it will allow doctors and pharmacists to deny hormone therapy, including puberty blockers, to trans and gender diverse people. And to refuse to provide access to PEP, and PrEP, exposing gay and bisexual men to greater risk of HIV transmission.

 

To the workplace, where employers and colleagues will be able to make comments that offend, humiliate, intimidate, insult or ridicule us, as long as those statements are based on religious belief.

 

A manager could tell a staff member that gay sex is sinful, and same-sex relationships are intrinsically disordered.

 

An interviewer may inform a trans applicant that gender is binary, and therefore their gender identity is not real.

 

A colleague could respond to a lesbian co-worker showing pictures of her family in the lunch-room that she has deliberately denied her children of a father, and will be condemned by god for her ‘lifestyle’ choices.

 

These are all entirely plausible scenarios. And all would be legally permitted under the Religious Discrimination Bill, because statements of belief are effectively exempt from all Commonwealth, state and territory anti-discrimination laws.

 

Indeed, statements of belief would be protected across all areas of public life, not just employment.

 

If this legislation passes, international tourists visiting Sydney this time next year could be subjected to degrading and demeaning comments anywhere and everywhere, at the airport, in the taxi or uber, on buses, trains and ferries, at the hotel or B&B, at tourist attractions, in cafes and restaurants, at shops and on the streets.

 

That sounds more like hate-song than ‘matesong’.

 

Except, once the party is over tourists will be able to leave these homophobic, biphobic, transphobic and intersexphobic comments behind, while LGBTI Australians will be stuck with them, like unshakeable glitter, invading every nook and cranny for years to come.

 

As a certain bank tried to remind us last week – and was then itself reminded by the community – ‘words do hurt’. It is unacceptable that our own Government is so focussed on ensuring we are all exposed to more hurtful words in our lives.

 

The Bill also further entrenches the special privileges granted to religious schools and other faith-based organisations to discriminate against teachers, other employees, students and, in some cases, people accessing their services, on the grounds of religious belief or lack of belief. Even where these services are being delivered using public funding.

 

It doesn’t explicitly grant new powers to religious schools to discriminate against LGBT teachers and students. But then it doesn’t need to, either – because those powers already exist under the Sex Discrimination Act and, despite promising to protect LGBT students before the end of 2018, the Morrison Government has so far failed to shield some of the most vulnerable members of our community.

 

The theme for this year’s Mardi Gras is ‘What Matters’. In pushing ahead with the Religious Discrimination Bill, despite criticism from LGBTI organisations and a wide range of other civil society bodies, while failing to protect students in religious schools, it is clear the right to be a bigot matters much more to them than the safety of LGBT kids.

 

Perhaps the most frustrating part of the current debate is that, from an LGBTI advocate’s perspective, it is a purely reactive one – defending existing rights under what are already-flawed anti-discrimination laws, rather than trying to make those laws better (for example, including bisexual, non-binary and intersex people in NSW’s out-dated Anti-Discrimination Act).

 

It takes attention away from other urgent law and policy reform, too.

 

We shouldn’t forget that this Saturday’s march takes place in a state where trans people still need to have surgery – which is both expensive, and for some people, unwanted – before being able to update their identity documentation.

 

And in a country where children born with variations in sex characteristics continue to suffer massive human rights violations, including coercive, intrusive and irreversible surgery and other medical treatments.

 

The Religious Discrimination Bill will take LGBTI rights in Australia backwards, when there is still so much progress left to be made, on these and many other issues.

 

It’s time the Morrison Government abandoned this legislative attack on our community, and instead worked with us to achieve positive change – maybe then we can finally celebrate under clear skies.

 

Mardi Gras flag

 

For more on this subject, see The Religious Discrimination Bill: What you should know.

 

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

A Potential Warning to LGBTI Tourists to Australia

Today is one of my favourite days of the LGBTI calendar: Sydney Gay & Lesbian Mardi Gras Fair Day. Tens of thousands of people will gather in Victoria Park in a beautiful celebration of our community.

 

That includes visitors from interstate and from overseas, especially from the Asia-Pacific region, whose numbers will swell over the next fortnight in the lead-up to the Mardi Gras Parade and Party, to be held on Saturday 29 February.

 

It creates a real buzz around the city. I can only imagine how much louder Sydney will hum in 2023 as we host World Pride, the first city in the Southern Hemisphere to do so.

 

However, there is a looming threat to LGBTI tourism to Australia, one that has the potential to dampen our celebrations more than even literal rain on our parade: the Government’s proposed Religious Discrimination Bill.

 

If passed, this legislation could have a negative impact on nearly every aspect of the visitor experience. So much so, it is easy to envisage the following warnings being handed out to lesbian, gay, bisexual, transgender and intersex tourists to Australia in the future:

 

  1. Don’t get sick

 

Not only because our health care system can be expensive for people who are not citizens or permanent residents. But also because the Religious Discrimination Act allows doctors, pharmacists and some other health practitioners to refuse to provide health services, even where this has a disproportionate impact on vulnerable groups. For example, doctors and pharmacists can:

  • refuse to provide hormone treatments, even where this adversely affects trans and gender diverse people[i]
  • refuse to provide PEP/PrEP, even where this has a detrimental impact on gay and bisexual men (and others at increased risk of HIV transmission), and
  • refuse to provide reproductive health services (such as the morning after pill), irrespective of the effect on people with uteruses.

 

If possible, make sure you bring all of your medications with you, and be careful not to lose them during your stay.

 

  1. Be prepared to ‘shop around’ for doctors, pharmacists and other health practitioners

 

If you do get sick, or lose your medication, while in Australia, you should be prepared for the possibility any individual doctor or pharmacist may refuse to provide a specific health service or treatment. You may need to see several of each in order to obtain access to the medications you need. Unfortunately, it is also likely you will be charged for appointments even where the health practitioner refuses to provide a service.

 

Importantly, whether a doctor or pharmacist will refuse to provide a specific health service or treatment may not be apparent before you see them. Individual doctors or pharmacists at public hospitals are also entitled to refuse service: if this happens, try asking for a new practitioner until you receive treatment.

 

  1. Be prepared for doctors, pharmacists and other health practitioners to express abhorrent views about you, to you

 

Even if a doctor, pharmacist or other health practitioner provides you with the health service or treatment that you need, they are also free to express offensive, humiliating, ‘moderately’ intimidating, insulting or ridiculing views about your sexual orientation, gender identity or sex characteristics while doing so. For example, they may be able to:

  • tell trans and gender diverse people that gender is binary and that their gender identity is an abomination[ii]
  • tell lesbian, gay and bisexual people that same-sex relationships are intrinsically disordered and sinful, and
  • tell intersex people that sex should be male or female and that their sex characteristics are a mistake that must be corrected.

 

Doctors, pharmacists and other health practitioners will be able to express these abhorrent views to you as long as they are based on their religious beliefs.

 

  1. Be prepared for people to express abhorrent views about you, to you, in all areas of public life

 

In fact, people will be to express such views about you, to you, in all areas of public life: on the plane or boat you arrive on; at the airport; in taxis, ubers, buses, ferries, trains and other forms of transport; at hotels, motels and B&Bs; at galleries, museums and other tourist attractions; at cafes and restaurants; at shops. Everywhere you go while you are in Australia.

 

That’s because the Religious Discrimination Act exempts ‘statements of belief’ from constituting discrimination under all other Commonwealth, state and territory anti-discrimination laws, as long as those statements are based on that person’s religious beliefs and fall short of harassment, threats, serious intimidation or incitement to hatred or violence.

 

  1. If you are subjected to abhorrent views and wish to make a complaint, try to find out whether the person expressing them is religious

 

Because abhorrent views are protected where they are based on religious beliefs, you may be able to complain about homophobic, biphobic, transphobic and intersexphobic comments that are not motivated by religion.[iii] Therefore, if you wish to make a complaint about such mistreatment, you will first need to work out whether the person making the statement is religious.

 

In practice, it may be difficult to determine whether someone is religious and/or whether their anti-LGBTI prejudice is based on their religious beliefs. It may also be physically unsafe to do so. In these circumstances, it may be wiser not to make a complaint and instead try to avoid the person(s) expressing such views (if possible).[iv]

 

  1. If you need emergency food or shelter during your stay, consider pretending to be Christian

 

In Australia, the Government outsources a wide range of health, education and other community services to religious organisations. This includes some homelessness shelters, as well as food vans and other welfare services.

 

Under the Religious Discrimination Act, religious charities are able to discriminate on the basis of religious belief in terms of who they provide these services to, even where they are providing them with public funding.

 

Given the vast majority of faith-based charities in Australia are Christian, if you experience financial difficulties during your stay and need emergency food or shelter, you should consider pretending to be Christian. You may even need to pretend to be from the specific Christian denomination providing that service (eg Catholic or Anglican).

 

**********

 

The above warnings might sound absurd, but if the Government’s Religious Discrimination Bill becomes law in its current form, then they will be all too real.

 

And we will have a responsibility to provide these warnings to all LGBTI tourists to Australia, not just during Mardi Gras and World Pride, Midsumma, Feast and other pride festivals around the country, but all year round, each and every year.

 

Of course, it won’t just be tourists who will be adversely affected by this legislation either. In fact, all of the warnings I have included will also apply to LGBTI Australians.

 

Doctors, pharmacists and other health practitioners will be able to refuse to provide specific health services and treatments to us, and we won’t necessarily know before we make an appointment.

 

Everyone in public life (including health practitioners, as well as people providing education, accommodation, transportation, food and other goods and services) will be able to express abhorrent views about us, and to us, as long as those views are religiously-motivated.

 

And if we fall on hard times, our religion (or lack of religion) may determine whether we are able to access some publicly-funded essential services.

 

The only glimmer of hope is that this post is a potential warning, rather than an actual one. It is only a Religious Discrimination Bill at this stage, not an Act. This disturbing vision of the future can still be prevented from becoming a reality – but only if we take action now.

 

Please speak up in the coming days and weeks. If you see a federal politician at Fair Day, or at the Mardi Gras Parade, ask them whether they will vote against a Religious Discrimination Bill that takes rights away from the LGBTI community. If they post about it on twitter, facebook or other socials, ask them the same thing.

 

You should also write to:

  • ALP MPs and Senators
  • Greens MP and Senators
  • Centre Alliance Senators (if you’re in South Australia)
  • Senator Jacqui Lambie (if you’re in Tasmania), and
  • Liberate moderate/gay and lesbian MPs (including Trent Zimmerman, Trevor Evans, Tim Wilson, Angie Bell, Warren Entsch, Senator Dean Smith)

because they will help determine whether this legislation becomes a waking nightmare, or just a temporary bad dream.

 

PFLAG Australia has made this process easy, using the website Equality, Not Discrimination. Equality Australia has a similar helpful platform, here. Make your voice heard, because this legislation will affect LGBTI tourists, and LGBTI Australians, alike.

 

Rainbow Bridge

 

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Footnotes:

[i] Attorney-General Christian Porter confirmed that trans and gender diverse patients could be denied treatment on the day he released the Second Exposure Draft Religious Discrimination Bill:

“Mr Porter used the example of a GP who did not want to ‘engage in hormone therapies’ for a trans person. ‘That’s fine, but you have to exercise that in a consistent way, so you don’t engage in the procedure at all’.”

‘Rules for doctors, pharmacists tightened in new religious discrimination bill’, 10 December 2019, Sydney Morning Herald.

[ii] The explanatory notes to the Second Exposure Draft Religious Discrimination Bill confirm this. At para 549, on page 66:

‘For example, a statement by a doctor to a transgender patient of their religious belief that God made men and women in his image and that gender is therefore binary may be a statement of belief, provided it is made in good faith. However, a refusal by that doctor to provide medical services to a transgender person because of their religious belief that gender was binary would not constitute a statement of belief as the refusal to provide services constitutes an action beyond simply stating a belief, and therefore may constitute discrimination on the basis of gender identity.’

[iii] This also depends on the jurisdiction the tourist finds themselves in. Anti-LGBTI vilification is not prohibited under Commonwealth law, or in Victoria, Western Australia, South Australia or the Northern Territory. Anti-LGBTI vilification is prohibited in both Tasmania and the ACT, anti-LGBT vilification is prohibited in Queensland, while NSW has different coverage for inciting or threatening violence (LGBTI), or civil vilification (only lesbian, gay and binary transgender). For more see: A Quick Guide to Australian LGBTI Anti-Discrimination Laws.

[iv] Indeed, this seems to be the Government’s intention – to discourage people who experience discriminatory conduct from bringing complaints.