Tag Archives: homophobia

Submission on Crimes Amendment (Provocation) Bill 2013 re Homosexual Advance (or ‘Gay Panic’) Defence

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I am writing to make a submission on the Exposure Draft Crimes Amendment (Provocation) Bill 2013, as released by the Attorney-General, the Hon Greg Smith MP, on 17 October 2013.

First, I would like to commend the Attorney-General, and the O’Farrell Government more broadly, for developing a Bill which, if passed, would finally abolish the homosexual advance (or ‘gay panic’) defence.

The homosexual advance defence has long been a stain on the fabric of our criminal justice system, resulting in the ‘downgrading’ of convictions from murder to manslaughter where it is not justified, and in doing so implying that the victim was in some way at fault, even to a small extent that they ‘deserved’ what happened to them.

Sadly, this has not been an abstract injustice, restricted to the statute books, but a defence that has been used, successfully, in multiple criminal trials over the past 20 years. This means that there is every chance that it could be used again, unless and until this Bill is passed.

Which brings me to my first recommendation: The Crimes Amendment (Provocation) Bill 2013 should be passed as soon as possible. This will help ensure that no future victim is disrespected by the fact their murderer escapes with a lesser conviction, and probable reduced sentence, simply because that murderer had a homophobic reaction to the victim’s non-violent sexual advance.

If, for whatever reason, the NSW Government is unable to progress this legislation with the urgency that it requires then, as a fall-back, I suggest that it consider amending clause 2 of the Bill to ensure that the Act has retrospective application.

Specifically, if the legislation is not passed by the end of the first sittings in 2014 (on Thursday March 27th), consideration should be given to back-dating the legislation to take effect from the date the Government formally confirmed its intention to introduce these reforms through the release of this Exposure Draft (ie on 17 October 2013).

I acknowledge that this would be a drastic step for any Parliament to take. No-one should casually amend the criminal law in such a way, especially where the offence involved carries significant penalties, without a compelling justification.

But I sincerely believe that a case for doing so could be made in these circumstances: that the injustice of our legal system effectively saying that a killing is less offensive, less contrary to community standards, less worthy of punishment than other killings, simply because the non-violent sexual advance involved was from one man to another, is so great that the question of retrospective application at least merits further debate.

Despite this, my overall preference would be for the Bill to be passed without including such provisions, and that this happen in the shortest possible timeframe, making retrospectivity less of a pressing concern.

My second recommendation deals with another potential issue which would remain unresolved even if the Exposure Draft Bill was passed, and that is: The new Crimes Act section 23, introduced by the Crimes Amendment (Provocation) Bill 2013, should specify that the ordinary person is not homophobic.

The Exposure Draft Bill includes multiple safeguards to help ensure that a non-violent sexual advance, whether same-sex or heterosexual, cannot be used as the basis of the partial defence of extreme provocation.

Specifically, proposed new sub-section 23(2)(b) requires that the conduct of the deceased was a “serious indictable offence”, which would clearly not include a non-violent sexual advance. Even more categorically, sub-section 23(3)(a) ensures that the partial defence cannot be raised in circumstances where “the conduct was only a non-violent sexual advance to the accused.” I strongly support the inclusion of both provisions.

However, in the event of a contested murder prosecution, there can be doubt about the boundary between what constitutes a non-violent sexual advance and a violent sexual advance. This doubt can, and often will, be exploited by a defendant, especially because the victim is not available to provide their version of events. It would be a potentially perverse, although perhaps unavoidable, consequence of the Government’s reforms that it would introduce an even greater incentive for a defendant to establish that the victim’s sexual advance was itself violent.

If the defendant is successful in establishing that the victim’s sexual advance was indeed violent (or that there is at least some evidence to support this: see proposed sub-section 23(7)), then proposed sub-section 23(2)(d) becomes relevant, and it maintains the existing ‘ordinary person’ test to assess whether the loss of self-control is accepted as the basis of this partial defence.

It is possible that, given hardening community attitudes against rape, any violent sexual advance, irrespective of the sexes or genders of the people involved, would now satisfy the ‘ordinary person’ test in terms of partially excusing that loss of self-control. If that is the case, then there would be no unjustified discrimination on the basis of sexual orientation, and the law would not require further amendment.

However, it is also possible that a male defendant could claim a violent sexual advance from another man is more egregious or offensive, and therefore more worthy of the application of the partial defence, than a violent sexual advance in other circumstances (eg a violent sexual advance from a woman to a man).

Based on the existing case-law (including Green v The Queen 1997), there is a possibility that this argument would be accepted – the consequence of which being that, once again, the killing of someone who makes a same-sex sexual advance would be treated as less serious than the killing of someone who makes a heterosexual sexual advance in the same circumstances (the only difference being that both would now be violent).

Given the significant step forward overall which would be achieved by the passage of this Bill, I do not wish to see it undermined by the ongoing possibility of such homophobic discrimination, which is why I propose that new section 23 include a provision that, at least for the purposes of this partial defence, the ordinary person is not homophobic, bi-phobic, trans-phobic or prejudiced towards intersex people (specifically, the ordinary person does not discriminate on the basis of sexual orientation, gender identity or intersex status).

As with  the suggestion about retrospectivity, discussed earlier, this would be an unusual step for a Parliament to take, and leaves open for consideration a range of other factors which may or may not need to be prescribed (for example, that the ordinary person is not racist or sexist). I make no comment here about those or other factors (other than noting that, whatever list may be deemed necessary include, it should be inclusive rather than exhaustive).

Nevertheless, given we are fully aware that the law has allowed homophobic discrimination within the partial defence of provocation in the past, I believe we should be actively considering how to prevent further such discrimination in the future within the new partial defence of extreme provocation. Even if the section itself is not amended, alternatives could include either or both the explanatory memorandum and second reading speech noting that it is not the Parliament’s intention that the new partial defence should operate in a homophobic manner.

Leaving aside these two recommendations, it is my firm belief that the passage of the Crimes Amendment (Provocation) Bill 2013 would be a significant, and long-overdue, achievement. This is something that the lesbian, gay, bisexual, transgender and intersex (LGBTI) community has been campaigning on for many years: it is my sincere hope that the homosexual advance (or gay panic’’) defence will finally be consigned to the dustbin of history in the very near future.

Submission on Alex Greenwich’s Anti-Discrimination Amendment (Private Educational Authorities) Bill 2013

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The following is my submission, lodged today, in response to a discussion paper and Bill released by the Member for Sydney, Mr Alex Greenwich. The Paper and Bill seek to remove exceptions which allow private educational authorities, including religious schools, the right to discriminate against lesbian, gay and transgender students. Unfortunately, I think that to achieve that goal, more amendments to the NSW Anti-Discrimination Act 1977 may need to be made. In any event, I believe that there are a range of other amendments which should also be made at the same time, including the removal of section 56 generally. Anyway, here it is:

Mr Alex Greenwich

Member for Sydney

Sydney@parliament.nsw.gov.au

Monday 30 September 2013

Dear Mr Greenwich

Submission on Anti-Discrimination Amendment (Private Educational Authorities) Bill 2013

Thank you for the opportunity to provide a submission in response to your discussion paper on anti-discrimination law reform, released in August 2013, and in particular in relation to your Anti-Discrimination Amendment (Private Educational Authorities) Bill 2013 (the Bill), which you introduced into NSW Parliament on 19 September 2013.

First of all, let me say that I welcome your strong commitment to removing the discrimination that can be experienced by lesbian, gay and transgender students in private educational institutions, including private schools. As has been demonstrated by the Writing Themselves In reports, and countless other research projects over the years, schools can be one of the major sources of homophobia and trans-phobia in the lives of young people.

It is vital that any ‘exceptions’ in the NSW Anti-Discrimination Act 1977 which may authorise schools to discriminate against lesbian, gay and transgender students are removed, and this must apply to all types of private schools, including religious schools. From what I have read, both in the Discussion Paper and associated media, as well as in your Second Reading Speech, I believe this is what your Bill is attempting to achieve.

However, I do have some concerns about the Anti-Discrimination (Private Educational Authorities) Bill 2013, in particular:

  • It is unclear whether the Bill, as drafted, will accomplish this aim
  • There are a range of other amendments which also need to be made to the Anti-Discrimination Act 1997 and
  • If the Bill is aimed at removing the right to discriminate from religious schools, thereby provoking an expected negative response from religious organisations, then I believe that the right of religious organisations to discriminate more broadly under s56 should be removed at the same time.

Turning first to the question of whether the Bill, if passed, would actually achieve the aim of removing the right to discriminate from all schools, including religious schools, I note that the Bill simply removes those provisions of the Anti-Discrimination Act 1997 which provide a specific right to discriminate (namely, sections 31A(3)(a), 38K(3), 46A(3), 49L(3)(a), 49ZO(3) and 49ZYL(3)(b)).

However, the Bill does not amend or seek to repeal the catch-all section which provides exceptions to religious organisations to discriminate – and that is found in section 56(d) which states: “Nothing in this Act affects: (d) any other act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.”

I am concerned that, by leaving this section unamended, the effect of your Bill would be to remove the right to discriminate from private educational authorities that are not religious, but that religious schools would retain the right to discriminate against lesbian, gay and transgender students on the basis of their ‘religious principles or beliefs’. The practical effect of the Bill would therefore have a positive outcome for a much, much smaller cohort of students than what is intended.

This reading of the Anti-Discrimination Act 1977, and in particular s56(d), appears to be supported by the main case in this area in recent years: OW & OV v Members of the Board of the Wesley Mission Council [2010] NSWADT 293. This case involved a service operated by the Wesley Mission, which sought to utilise the ‘protections’ offered in s56(d) to discriminate against gay male foster carers. The Wesley Mission was ultimately successful in its appeal.

While foster care is obviously not exactly the same as providing education in religious schools, I believe that it is potentially analogous in terms of indicating how broad the religious exceptions under s56(d) are in practice, and in particular in suggesting that they would operate to shield religious schools that discriminate against lesbian, gay and transgender students from the scope of the Anti-Discrimination Act 1977.

This also appears to be the opinion of the current Attorney-General of NSW, the Hon Greg Smith SC MP. In a speech titled Religious Vilification, Anti-Discrimination Law and Religious Freedom, which he gave on 24 August 2011, the Attorney-General discussed the operation of s56:

“116. Section 56 creates a general exemption from the ADA for religious bodies. Religious bodies are not required to comply with the ADA in relation to:

  1. The training, education, ordination or appointment of religious leaders [s56(a)&(b)];
  2. The appointment of any other person [s56(c)];
  3. Any other act or practice that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of thast religion [s56(d)].

117. Section 56 was included in the ADA when first enacted. While other jurisdictions have adopted a general exception from their anti-discrimination statutes for religious bodies, the exceptions are narrower than that under the ADA in the following ways:

a. While section 56(c) of the ADA exempts the appointment of persons ‘in any capacity’ by a religious body, other jurisdictions exempt only appointment of persons to perform functions related to religious practices;

b. Some other jurisdictions have provisions equivalent to s56(d) of the ADA, but others are narrower. Those that are narrower limit the exemption to acts done as part of a religious practice [NT], or don’t extend the exemption to discrimination in work or education [Qld], or limit the grounds of discrimination that are exempt.” [emphasis added]

The implication from this speech, and in particular from para 117(b) above, is that the Attorney-General believes that the protections offered by s56(d) would be available to a school or educational facility run by a religious organisation. This also appears to be the interpretation of s 56(d) by other organisations and advocacy groups which work in this area, including the Inner-City Legal Centre and Public Interest Advocacy Centre.

If that is the case – that either your Bill does not operate to limit the right of religious schools to discriminate against lesbian, gay and transgender students, or that there may be some ongoing uncertainty in this area – then might I suggest you seek additional legal advice on the scope of s56(d), and whether further amendments to your Bill might be necessary to guarantee the rights of lesbian, gay and transgender students in religious schools not to be discriminated against. Obviously, if the Bill is to be debated and ultimately voted upon in late 2013 or early 2014, it would be useful to have clarity about the exact protections to be offered by the Bill beforehand.

Moving on to my second concern about the Bill, which applies irrespective of whether students at religious schools are covered or not, specifically that there are a range of other serious problems with the NSW Anti-Discrimination Act 1977, and it is my belief that these issues should be considered at the same time by the Parliament.

For example, as well as protecting lesbian, gay and transgender students, anti-discrimination protections should also be offered to teachers and other employees at the same schools, irrespective of their sexual orientation or gender identity.

In fact, I believe that religious exceptions should be limited to only cover the appointment of ministers of religion, and the conduct of religious ceremonies. In short, religious organisations should no longer be sanctioned by the State to discriminate in employment and service delivery in places like hospitals or social services – and a reform to the existing law is a perfect opportunity to make such changes.

There are also a range of problems with the current scope of, and definitions included in, the NSW Anti-Discrimination Act 1977, including the fact that it protects homosexuals (in s49ZF) rather than people with different sexual orientations (with the effect that, while lesbians and gay men are covered, bisexuals are not).

The NSW Act also includes what I understand to be an out-dated definition of transgender (in s38A), rather than the preferred definition of gender identity as passed in the Commonwealth Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013. Indeed, the NSW Act does not even cover intersex status at all, unlike its Commonwealth counterpart. I hope that you, and other MPs involved in this area of public policy, are consulting with groups representing the transgender and intersex communities about whether, and how, to deal with these issues.

There are also other problems with the current Act, including what I find to be an objectionable difference in financial penalties for individual offenders found guilty of vilification; the maximum financial penalty for racial or HIV/AIDS vilification (set at 50 Penalty Units) is five times higher than that for homosexual or transgender vilification (set at 10 Penalty Units). There can be no justification for this discrepancy, which effectively creates a hierarchy of offensiveness, with some types of vilification considered more serious than others.

The above problems with the NSW Anti-Discrimination Act 1977 are simply those which I have identified from my own reading and research. I am sure that there are other issues which also need to be addressed. This to me suggests that there is sufficient impetus for a more comprehensive re-write of the Act. While the subject of protecting lesbian, gay and transgender students is an incredibly important one, I believe that the range of problems identified above should all be dealt with at the same time.

Which brings me to my third concern with the draft Anti-Discrimination Amendment (Private Educational Authorities) Bill 2013, and that is a concern around tactics or strategy.

By attempting to limit the right of religious organisations to discriminate against lesbian, gay and transgender students in their schools, you are taking on something which many churches take to be an inalienable ‘right’ – the ability to indoctrinate young people with their religious teachings against homosexuality or transgender identity.

As a result, I would expect a significant backlash from those same religious organisations against your Bill. The size or scale of that backlash might only be slightly less than that which could be expected from an attempt to narrow the broader exceptions contained in section 56 (by limiting its coverage to the appointment of ministers and conduct of religious ceremonies).

In that case, it is my personal view that, as well as removing the specific provisions concerning private educational authorities (as featured in your Bill), any attempt to reform the NSW Anti-Discrimination Act 1977 should also contain provisions which significantly reduce the scope of s56. If people such as yourself are going to take on the right of religious organisations to discriminate, then why not do so more comprehensively, rather than in what could be described a piecemeal (or at the very least, narrowly-targeted) fashion?

Which is not to say that moves to protect lesbian, gay and transgender students from discrimination are not welcome – they obviously are. And I also wish to restate my support for the overall intention of the Bill; protecting young people who are lesbian, gay and transgender from homophobia and trans-phobia is an incredibly important objective.

However, any attempt to do so must ensure that the Bill captures all private schools, including religious schools. And, even if that drafting issue is resolved, it remains my personal view that reform to the NSW Anti-Discrimination Act 1977 should go much further, and address broader issues including but not limited to restricting the scope of section 56.

Thank you for considering this submission.

Yours sincerely,

Alastair Lawrie

Submission on Redrafted National Health & Physical Education Curriculum

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The Australian Curriculum, Assessment and Reporting Authority (ACARA) released a slightly redrafted version of the national Health & Physical Education curriculum for limited public consultation over the past 2 weeks. While there were some modest improvements from the original draft released in December 2012, there are still significant problems with what is proposed, especially as it fails to ensure that content is relevant for LGBTI students, and that every classroom is genuinely LGBTI inclusive.

This afternoon I provided my personal submission to the process, which included attachments covering my previous petition to the Commonwealth Education Minister, the Hon Peter Garrett MP, and the comments which people made on that (although not reproduced here because both are too large). Anyway, here is my submission (I understand that a range of groups, including the NSW Gay & Lesbian Rights Lobby and others, will be making submissions too, so hopefully there is more change before the final document is released later this year):

Submission on Redrafted National Health & Physical Education Curriculum

I am writing to provide a personal submission in response to the redrafted national Health & Physical Education (HPE) curriculum, as published on the Australian Curriculum, Assessment and Reporting Authority (ACARA) website in July 2013.

I also provided a submission in April 2013 in response to the original draft HPE curriculum as released by ACARA in December 2012. Please find a copy of that submission at Attachment A. In it, I outlined a range of substantive concerns with the draft curriculum, and in particular in relation to how it related to (or, more accurately, ignored) the needs of lesbian, gay, bisexual, transgender and intersex students.

These concerns included that:

  • The draft curriculum did not explicitly include LGBTI students by name, nor did it ensure that every classroom in every school included content that was relevant to LGBTI student needs
  • The draft curriculum also concentrated on ‘reproductive health’ meaning that it effectively excluded the sexual health needs of LGBTI students and
  • The draft curriculum did not even include the term HIV, let alone ensure that groups at higher risk of contracting HIV (including gay and bisexual men) receive appropriate education to help prevent new transmissions.

Following the lodgement of my submission, I also initiated a national petition to the Commonwealth Education Minister at the time, the Hon Peter Garrett MP, and his state and territory counterparts. I have since sent this petition to the new Commonwealth Education Minister, the Hon Bill Shorten MP, and the NSW Education Minister, the Hon Adrian Piccoli MP.

This petition, which called for the three issues listed above to be remedied as a matter of urgency, received an incredible level of community support, garnering more than 6,000 signatures in less than four weeks.

However, just as important as the number of signatures, the comments which people provided demonstrate the breadth and depth of community concern about the failure of the original HPE curriculum to address the issues of LGBTI inclusion, sexual health education and HIV.

These comments show that this is an issue which matters not just to LGBTI people themselves, but also to their family members and friends, as well as a broad cross-section of the community who understand that everyone has a right to inclusive, appropriate health education, irrespective of sexual orientation, gender identity or intersex status. I would strongly encourage you to read these comments, as many of them are far more articulate and passionate about why LGBTI students must be included than I could ever hope to be.

Having examined the redrafted HPE curriculum released on the ACARA website earlier this month, I would like to acknowledge that there have been some improvements made from the December 2012 version, including an attempt to include reproductive health and sexual health, rather than just reproductive health.

However, it is also disappointing to note that many of the significant problems which existed in the original draft have not been resolved.  I will use the remainder of this submission to identify those areas which still require amendment in order to meet the needs of LGBTI students, including specific recommendations to make these much needed improvements.

Recommendation 1:  The national HPE curriculum must directly and explicitly include lesbian, gay and bisexual students, and content which is relevant to their needs

As with the original draft submission, I believe that it is irresponsible for a national HPE curriculum not to even include the words lesbian, gay or bisexual. These are the most common forms of sexual orientation for people who are not heterosexual. To deliberately exclude these terms from the curriculum contributes to the marginalisation of students who may grow up to identify with any one of these terms.

By excluding these terms/sexual orientations, I believe that the curriculum would inevitably lead to some schools ignoring the health needs of these students, and ultimately contribute to higher level of mental health issues across the lesbian, gay and bisexual communities, including higher rates of depression and youth suicide.

I must also highlight that including the term same-sex attracted (in the ‘aspirational’ paragraph on page 18 – more on that at recommendation 3, below – and in the Glossary) is insufficient in and of itself to ensure that lesbian, gay and bisexual students are included in both classrooms and content. While I acknowledge that it is an inclusive term, I do not understand how referring to the term ‘same-sex attracted’ twice (and only once in the body of the document, and even then not in the content description for any year), without providing more information, will help ensure that all students learn what being lesbian, gay and bisexual mean, in the same way that they would learn what being heterosexual means.

In fact, I find it impossible to see how excluding the words lesbian, gay and bisexual does anything other than ensure that students who happen to be lesbian, gay or bisexual are denied their right to an equal and fair health education, irrespective of which school they might attend.

Recommendation 2: The national HPE curriculum must directly and explicitly include transgender and intersex students, and content which is relevant to their needs, whilst noting that gender identity and intersex status are different things meaning that education about these issues must make this distinction

I acknowledge that the terms transgender and intersex are at least included in the redrafted national HPE curriculum. However, they are only included in the glossary on page 45, and unfortunately the curriculum incorrectly includes both as part of the definition of gender-diverse. Transgender may fall within this term, but intersex is a distinct characteristic as a biological sex status.

I am not an expert in this field, and expect that submissions from the National LGBTI Health Alliance as well as Organisation Intersex International (OII) Australia will provide recommendations to improve the curriculum in terms of transgender and intersex inclusion. I would encourage you to give full consideration to their suggestions in these areas.

Recommendation 3: The statement about LGBTI inclusion must explicitly refer to lesbian, gay, bisexual, transgender and intersex students, and ensure that all schools are inclusive of these students, irrespective of whether students have publicly identified their orientation, identity or status

I note that the ‘aspirational’ statement of inclusion on page 18 of the redrafted curriculum has been amended from the original December 2012 draft. In particular, I am concerned by the decision to omit the statement that ‘same sex attracted and gender diverse’ students exist in all schools. It is unclear why this statement of fact has been removed, given we know that people who are LGBTI have come from all school communities across the country.

This omission also presents some complications when read together with remainder of the paragraph as redrafted, which talks about “becoming increasingly visible”, “designed to allow flexibility” and “have a responsibility… to ensure teaching is inclusive and relevant to the lived experiences or all students”. One reading of this paragraph is that schools now only have a responsibility to be inclusive where they are aware that students are LGBT or I (ie where schools are aware of the lived experience of their students).

If this is the case, it is not acceptable. All students have a right to be included, and to have their health and physical education needs met, and most importantly should not have the onus placed on themselves to disclose their orientation, identity or status in order to receive this education (especially when such disclosure can risk discrimination from other students, teachers and sometimes from the school itself).

I strongly recommend that this paragraph be amended so that it:

  • Explicitly names LGBTI students (for example, same-sex attracted students, including lesbian, gay and bisexual students, and transgender and intersex students) and
  • States that all school communities must provide content and classrooms which are inclusive of LGBTI students, irrespective of whether they disclose their orientation, identity or status.

Recommendation 4: The statement about LGBTI inclusion must be supported by explicit references to LGBTI content in the year descriptions

While an ‘aspirational’ statement on page 18 is welcome, in order to be most effective it should be backed up by explicit references to issues of concern to LGBTI students at relevant points throughout the curriculum.

For example, the terms transgender and intersex should be introduced and explained from Foundation/Years 1-2, given these identities and statuses can be present from early childhood and/or birth.

Ideally, the orientations lesbian, gay and bisexual should be introduced and explained in Years 3-4, so that students who experience same-sex attraction in puberty (which can commence for some in these years) are aware that these attractions are normal. At the latest, all students should be aware of the concepts of heterosexuality, as well as homosexuality and bisexuality, by the end of Year 6.

This would then leave room from comprehensive and inclusive sexual health education (and not just reproductive health) in Years 5-6 (more on this at recommendation 5, below), or Years 7-8 at the absolute latest.

I note with particular concern the sub-strand Being healthy, safe and active, on page 27 of the redrafted curriculum, which includes the following points under Years 7-8:

  • Examining the impact of physical changes on gender, cultural and sexual identities and
  • Exploring sexual identities and investigating how changing feelings and attractions are part of getting older.

This is both far too old (covering students who are turning 13 and 14 across most states, beyond the age which many people have first realised that they are same-sex attracted, including myself) and far too vague, to be genuinely inclusive of LGBTI students and their needs.

LGBTI issues should also be explicitly mentioned in the outline of the Relationships and sexuality learning area on page 9 of the document, which is reproduced in the Glossary on pages 47 and 48. For example, the dot point “changing identities and the factors that influence them” could be redrafted to include “developing sexual orientations, include heterosexual, lesbian, gay and bisexual, and the factors that influence them” while transgender and intersex should be included in in this Area of learning in Foundation to Year 2 (as indicated above).

Recommendation 5: The term sexual health should be preferred to reproductive health throughout

I welcome the amendment from the original draft of the HPE curriculum, with the addition of sexual health to the redrafted curriculum. However, I am confused by the inclusion of both reproductive health and sexual health, and the definitions of both which are provided in the Glossary on pages 48 and 49 respectively.

In particular, the definition of reproductive health seems to try to ‘cover the field’ for the physical aspects of sexual health, even though for many people their sexual anatomy/systems are not primarily related to ‘reproduction’. This is especially apparent when considering the definition of sexual health, which uses the shorter World Health Organisation definition of sexual health, but not the 2006 longer and more inclusive definition which begins:  “…a state of physical, emotional, mental and social well-being in relation to sexuality; it is not merely the absence of disease, dysfunction or infirmity” [emphasis added].

This longer definition makes it clear that sexual health includes the physical health aspects of sex education. As a result, I believe that the much more inclusive term sexual health should be used throughout the document, and if explicit references to reproduction are considered necessary, then the term should be ‘sexual health, including reproductive health’. This would help to ensure that the needs of all students are considered and not just those of heterosexual students.

Recommendation 6: The topic of sexual health should include more detailed information on safer sex, including condom usage, and Sexually Transmitted Infections (STIs)

While it is welcome that sexual health has been added as a term to the redrafted HPE curriculum, it is unclear where it is intended that detailed sexual health education, including STI information and prevention, is included in the content for specific years.

As indicated above, I believe that comprehensive sexual health education should be included in Years 5-6 (and by 7-8 at the absolutely latest). In order to meet the needs of all students, whether LGBTI or otherwise, it must include specific references to safer sex, and condom usage, as well as ensuring that students learn about STIs and how they can best be prevented (and where relevant treated). I cannot locate this information in the redrafted document.

I believe it would be irresponsible for a HPE curriculum not to ensure that students learn this information prior to the age at which they become sexually active.

Recommendation 7: The national HPE must include Blood Borne Viruses, and in particular HIV

Building on the inclusion of sexual health, and comprehensive sexual health education, including STIs (recommendations 5 and 6 respectively), I believe that it is vital for the national HPE curriculum to explicitly refer to Blood Borne Viruses, including HIV.

As a gay man who has just turned 35, I find it almost incomprehensible that HIV, including information about how it can be prevented, has been omitted from the HPE curriculum, both in the original draft and in the redraft. While HIV is no longer a ‘death sentence’, diagnoses with HIV is still a serious thing, and we should be maintaining our efforts to minimise new transmissions. This is particularly important for younger gay and bisexual men, with male same-sex intercourse remaining the primary means of HIV transmission within Australia.

The importance of this message is reinforced by recent figures which show that the number of HIV notifications in NSW rose by 24% in 2012, including 19% among men who have sex with men. The HIV epidemic is not over, and it is essential that a national Health & Physical Education curriculum provides relevant information for young people to help them avoid future HIV transmissions.

Recommendation 8: The national HPE curriculum should ensure that all students learn about homophobia, bi-phobia, trans-phobia and anti-intersex prejudice, and the damage caused by each

One of the pleasing aspects of the original HPE curriculum, released in December 2012, was that it explicitly named ‘homophobia’ as something that students should be taught about (and implicit in this, was the assumption that students would learn the damage caused by discrimination on the basis of sexual orientation). In my original submission, I argued that this should be amended to include bi-phobia, trans-phobia and anti-intersex prejudice as well, as these encompass similarly destructive beliefs and behaviours.

Unfortunately, it appears that the reference to homophobia has now been deleted, and replaced by a much more generic statement on page 34: “examining values and beliefs about cultural and social issues, such as gender, race, sexuality and disability” and “researching how stereotypes and prejudice are challenged in local, national and global contexts.”

To me, these statements do not ensure that students learn that homophobia, bi-phobia, trans-phobia and anti-intersex prejudice are entirely negative phenomena, which can cause immense hurt amongst members of these groups (indeed, the first statement makes no value judgment at all about different ‘values and beliefs’ in relation to sexuality, and leaves it open to some schools teaching that discrimination on the basis of sexual orientation, gender identity and intersex status is acceptable behaviour).

I would strongly urge you to reconsider the drafting of these dot points, and to include homophobia, bi-phobia, trans-phobia and anti-intersex prejudice as subjects about which students should learn, including being taught about the damage caused by these types of discrimination.

Conclusion

Thank you for reading my detailed submission, and attachments. I acknowledge that much of what I have written is strongly worded, but it is only done so out of genuine concern that, if the redrafted national HPE curriculum was implemented without further amendment, it would fail to meet the needs of our LGBTI students, and fail to provide them with the sexual health and HIV prevention education that they have a right to.

Research has shown that younger LGBTI people are amongst the most disadvantaged students across the country, with high rates of bullying and harassment, and consequently of mental health issues including depression and youth suicide.

I believe that the development of a national Health & Physical Education curriculum is an ideal opportunity to remedy some of the active discrimination which exists against lesbian, gay, bisexual, transgender and intersex students, through the introduction of LGBTI-inclusive content, and hopefully leading to LGBTI students being genuinely included in classrooms across the country. I hope that the final version of the HPE curriculum will implement as many of the above recommendations as possible, to help make this a reality.

Sincerely,

Alastair Lawrie

5 Quick Thoughts on the 2013 GLORIAs

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On Wednesday night (May 8), Steve and I attended this year’s GLORIAs Awards at NSW Parliament House. The GLORIAs literally stand for the Gay & Lesbian Outrageous, Ridiculous and Ignorant comments Awards, and are an opportunity for the LGBTI community to get one back on the bigots who say offensive things about us throughout the year, but to do so in a humorous way. The winners of this year’s awards are reproduced at the end of this post. But before we get to that that I thought I might share my five quick observations about the GLORIAs.

1. I think that this is a great event. NSW Upper House Labor MP, Penny Sharpe – who is also one of Australia’s small (but slowly growing) number of out parliamentarians – ‘borrowed’ the idea from the already established Ernies, which themselves ‘celebrate’ sexist and misogynist public comments. It makes for a fun night for those who attend, while also reinforcing the serious point that homophobia, bi-phobia, trans-phobia and anti-intersex prejudice remain ongoing issues, requiring our continuing attention. This is especially important to remember when so much effort can go into legal reforms, like marriage equality, which won’t in and of themselves permanently remove the blight of discrimination from our society.

2. David Marr really is a very funny host. His dry wit certainly adds to the occasion, as does the relish which he brings to announcing the well-deserving recipients of each award. This year, I nominated the winner in one of the categories – Andrew Bolt for his absolutely ridiculous comments about marriage equality (which leads me to wonder what he thinks about his lesbian sister’s own marriage?). Somehow I suspect David took a fair bit of delight in reading that one out. I also had the chance to have a chat with David during the evening – he seems raring to go for the Guardian Australia as they launch ahead of this year’s Federal Election.

3. The courage of Ian Roberts in coming out while at the height of his rugby league career, back in 1995, should not be under-estimated. Ian Roberts was, maybe surprisingly, at this year’s GLORIAs, and this was the first time I had ever had the opportunity to meet him. We chatted about Jason Collins and the impact which his recent coming out will have on other players in the NBA, and indeed other major US codes. Hopefully Collins’ announcement will inspire other people to follow in his footsteps – but then again, that is something many people said after Roberts’ came out EIGHTEEN whole years ago (and no other male Australian football player has done so since). The fact that he did that way back then deserves nothing but respect. [I was also a little bit of a ‘fanboy’ and let him know that him coming out meant a lot to this particular writer, especially given I was a 17 year old closeted student at a religious boarding school at the time – but I don’t think that sentiment would be uncommon amongst gay guys who grew up in Australia in the 1990s.]

4. Duncan Gay has good media advisers. After winning this year’s Golden GLORIA, for the completely unjustifiable decision to rip up the Rainbow Crossing at Taylor Square earlier this year, the Roads Minister mitigated the damage somewhat by coming down from his Ministerial offices to collect the award in person. This led to him receiving a certain level of begrudging respect from some people in the crowd (for being able to face those who had given him the gong), as well as some not unfavourable media coverage afterwards http://www.starobserver.com.au/news/local-news/new-south-wales-news/2013/05/09/glorias-get-gay/103590 . All in all, it was very well-handled by the ironically-named Minister.

5. Tim Campbell, on the other hand, needs some media advice. In ‘defending the honour’ of his partner, Anthony Callea, who won the Silliest comment from someone within the LGBTI community award, Tim took to twitter to make some comments about the ‘sensational’ and ‘biased’ article from which the quotes came. What wasn’t disputed was that the quotes were actually made in the first place. [The relevant tweets: So @TheGLORIAs read a sensational and biased article and decided they can define Callea’s integrity. A shameful and pathetic game you play. Anthony does more to further GLBTI issues in the wider community than your narrow minded group will ever do. @TheGLORIAs]. There was also a now-apparently-deleted tweet direct to Penny Sharpe on the topic. What Tim should have realised is that, in these situations, it is best to ignore and move on, rather than taking umbrage and potentially making a bigger issue out of something that it would otherwise have been. I might be forgetting a lot about what I learnt in politics, but that lesson will stay with me for a long time [PS I am not disputing the content of Tim’s tweets – Anthony may well do a lot for the LGBTI community – just that with something like this, it is always best to be the bigger person.]

And so here they are, the ‘winners’ for 2013…

Golden GLORIA: Duncan Gay, the NSW Roads Minister, won this year’s golden gong for tearing up the Rainbow Crossing at Taylor Square. As is tradition, this was decided by a ‘boo-off’ by attendees at this year’s event.

Category Winners:
Politics / Law
Tess Corbett, Katter’s Australia Party Candidate who said in interview with The Hamilton Spectator that considered gay people to be in the same category as paedophiles: “Paedophiles will be next in line to be recognised in the same way as gays and lesbians and get rights,” she said.

International
John Sullivan, a councillor candidate for the United Kingdom Independence Party (UKIP) for a series of Facebook posts that said gay activists were like termites; claimed homosexuality could be prevented by regular exercise in schools; congratulated Russia for banning gay pride; and said that although feminism was evil, being gay was even worse.

Media
Andrew Bolt: “But same-sex activists don’t want marriage equality — because they already have it. A gay man is as free as a straight man to marry a woman. A lesbian is as free as any other woman to marry a man. That’s equality…. And if we are to change what marriage means, we have a duty to consider not just the good such a huge change to such a critical social bond could bring, but the evil, too.”

Religion
Southern Baptist Convention President Rev. Fred Luter thinks that support of same-sex marriage and gay rights could be linked to North Korea’s most recent threats against the United States: “I’m not that strong in prophecy but I would not be surprised that there’s not a connection there simply because of the fact we’ve seen it happen in scripture before. I would not be surprised that at the time when we are debating same-sex marriage, at a time when we are debating whether or not we should have gays leading the Boy Scout movement, I don’t think it’s just a coincidence that we have a mad man in Asia who is saying some of the things that he’s saying.”

Sport
Former Major League Baseball player Mark Knudson writing about gay players in team sports: “No one has said that gays should not be allowed to play in the NFL. What has been said is that having a gay teammate would make some players uncomfortable… Nothing that infringes on the cohesiveness of the locker room can be tolerated. If a player who is not an irreplaceable superstar becomes any sort of distraction, he’s going to get released… That’s why it remains the best option for any homosexual athlete in a team sport to keep his orientation private. He’s doing what’s best for himself by doing what’s best for the team.”

Silliest GLBTI comment from within the GLBTI community
Anthony Callea says he’s not interested in activism “I have a great relationship, I live in normal house, I have a dog, I live a normal lifestyle, it’s just part of who I am – it’s not who I am. My friends and family don’t treat us like that either. I think if you make something an issue, then it becomes an issue [in] society.”

The organiser of the GLORIAs, Penny Sharpe, and my beautiful fiance.

The organiser of the GLORIAs, Penny Sharpe, and my beautiful fiance.

Submission on National Health & Physical Education Curriculum

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Below is the text of my submission to ACARA about the draft national Health & Physcial Education curriculum (due tomorrow 12 April). I think that my concern with the consultation draft, as released, shows through. I find it particularly worrying that the curriculum does not use the words lesbian, gay, bisexual, transgender or intersex.

But it is even more worrying that it omits the terms or phrases condoms, safe sex and HIV/AIDS – that, to me, is negligently putting the lives of young people, and young gay and bisexual men in particular, at risk. Here’s hoping that ACARA listens to this submission, and to others from people writing about this issue.

Curriculum Photo

Submission on Draft National Health and Physical Education Curriculum: Foundation to Year 10

Thursday 11 April 2013

I am writing this submission as an ordinary member of the community. But I am also writing this submission as a gay man, and someone who was profoundly let down by my school education with respect to both inclusivity, and sexual health education.

In my opinion, both of these things – being genuinely inclusive of diverse sexual orientations, gender identities and of intersex people, and providing comprehensive and detailed sexual health education, including HIV prevention – are absolutely essential in any Health and Physical Education (HPE) curriculum.

Inclusivity is necessary because all students, whether they be heterosexual, lesbian, gay, bisexual, transgender or intersex (LGBTI), or a combination of these, have the right to an inclusive education, to learn about who they are, to develop their identity in a safe place, and to be provided with all of the information which they need as they grow up.

These rights are particularly important for LGBTI students because they will be entering a world in which homophobia, bi-phobia, trans-phobia and anti-intersex prejudice remain a sad and unarguable fact. The consequences of not providing an inclusive education can be severe – LGBTI students can be the victims of harassment and bullying on account of their sexual orientations, gender identity or intersex status. LGBTI students, and later adults, also have higher rates of mental health issues, including rates of suicide, as a result of the discrimination which they experience. Any HPE curriculum which is adopted should be furthering the health of LGBTI people – and should not instead perpetuate their exclusion.

Sexual health education is necessary for all students, again, irrespective of whether they are gay or straight and no matter their gender identity or intersex status. However, unless they are specifically mentioned, the needs of LGBTI people can easily be overlooked with teachers and schools sometimes providing for the needs of the majority of their students, while ignoring the fact that every student should receive all the information they need to stay safe.

This is especially important for same-sex attracted boys, given that men who have sex with men remain a high-priority population in terms of HIV prevention. This means that sexual health education cannot be limited to ‘reproductive health’ or simply outline the risks of heterosexual intercourse, but must be comprehensive and teach all students about the risks involved in different types of intercourse, and above all the measures, such as condoms, which reduce those risks.

Of course, there is an additional reason why a HPE curriculum must be inclusive of LGBTI students, and must provide inclusive sexual health education – and that is because in many cases teachers and schools will be unaware which of their students are LGBT or I. Some students do ‘come out’ while at school, and obviously I believe that all schools should provide encouraging and nurturing environments to allow those students to do so. But many students do not come out while at school.

And I do not believe that they should be compelled to do so in order to receive an education which teaches them what they need to know about their identity, and the sexual health education which they need to stay safe.

As I mentioned before, my school education failed, and failed miserably, on both of these grounds. My school did not mention homosexuality, unless it was from a negative perspective. And throughout my education, at both primary and secondary schools, I not once was taught about safe sex in a same-sex attracted (or ‘non-reproductive’) context. Sadly, while many schools have become better at both inclusivity and sexual health education since that time (the early to mid-1990s), many have not.

The development of a national Health and Physical Education curriculum presents an ideal opportunity to address these issues. It is a chance to ensure that HPE, taught in any class room in any school across the country, is inclusive of LGBTI students, and provides sexual health education that is appropriate for all students, not just those who are heterosexual.

Unfortunately, the draft national HPE curriculum released by ACARA in December 2012 does not seize this historic opportunity. In my opinion, it falls far short in terms of its inclusivity (or, more accurately, lack thereof) of LGBTI students. For example, it does not even mention the words lesbian, gay, bisexual, transgender and intersex (LGBTI), and therefore contributes to what can feel like an all-pervasive silence about these issues. I do not understand how any document can aspire to being inclusive of the full diversity of students when it deliberately omits the words lesbian, gay, bisexual, transgender and intersex.

The draft national HPE curriculum also falls short in terms of the sexual health education which it provides. As well as beginning too late (in year 7 rather than year 5), the sexual health education which is included appears to focus on ‘reproductive health’ rather than genuinely inclusive sexual health. It should, but does not, cover everything necessary for same-sex attracted students and for HIV prevention.

The remainder of this submission will focus on some of the specific parts of the draft HPE curriculum which I believe should be amended, focusing on the many opportunities for improvement. I hope that these recommendations or suggestions are taken up, so that all students, including LGBTI students, get the education which they deserve.

1. On pages 3 and 4 of the draft HPE curriculum, the ‘key idea’ of being ‘healthy, safe and active’ could be amended to read: ‘confident, healthy, safe and active’. This would reflect the need for students to be confident in their personal identity (which is discussed briefly on page 4, but should be elevated in importance). Personal identity is fundamental to a student’s sense of wellbeing, and just as important as being ‘healthy’ or ‘safe’. It should also be noted that personal identity is not limited to LGBTI students, but would include a wide range of diverse backgrounds and therefore benefit students from across the spectrum.

2. On page 6, under the heading ‘relationships and sexuality’, the dot point which currently reads ‘exploring sexual and gender identities’ could be amended to be more explicit. A possible replacement could read ‘exploring different sexual orientations, gender identities and sex and intersex status’.

3. On page 15, I disagree with the choice to delay relationships and sexuality education until years 5-6 onwards. Instead, I believe it should commence in years 3-4, in the same way that alcohol and other drugs education does. This would ensure that students are aware of the full range of identities as they enter puberty, and do not need to ‘suffer in silence’ because they might be attracted to someone of the same sex. This outcome could be achieved by introducing the ‘themes’ or general concepts of relationships and sexuality in years 3-4 (including the identities of lesbian, gay and bisexual), and then providing more detailed sexual health education in years 5 and 6. As it currently stands, students would not receive detailed sexual health education until year 7 at the earliest, when students are generally turning 13. Given what we know about the sexual activity of young people, and the fact that puberty is starting earlier and earlier, this is too late for effective sexual health education to begin.

4. Onto a more specific issue – I think that more consideration could be given to introducing the particular topics relating to transgender and intersex from Foundation onwards, rather than waiting for 3-4 when lesbian, gay and bisexual issues are introduced. This is because gender identity and intersex are not related to sexual attraction, but instead may well be known before or at the commencement of schooling. Obviously I am not an expert on these issues, and would defer to the input of transgender organisations and groups like OII Australia. I am merely raising this issue because it would not appear logical to delay teaching these particular matters until closer to puberty (unlike arguably the same-sex attracted issues referred to above).

5. I welcome the inclusion of a statement about same-sex attracted (SSA) and gender diverse students on page 18 of the draft HPE curriculum – at the very least the curriculum acknowledges that these students exist and have specific needs. However, I reject the idea that the curriculum should provide schools with the ‘flexibility’ to include these students, with a vague and non-committal ‘expectation’ that schools will take opportunities to be inclusive. This seems fundamentally inconsistent with a sentence in the same paragraph which correctly notes that ‘students facing these issues exist in all school communities’.

If that statement is correct, then ALL schools across the country MUST be inclusive. The best way to achieve this is to provide specific and detailed requirements for the inclusion of LGBTI-related content throughout the text of the curriculum, rather than through a non-binding ‘aspirational’ statement at the beginning of the document which will likely only be referred to and applied by those schools and teachers which are already supportive of LGBTI students.

6. As a broader point, while I understand that the terms same-sex attracted (SSA) and gender diverse are included on page 18 because they are considered more inclusive of the diverse range of possible identities, I disagree that these should be the only terms used in the document to describe these groups. The vast majority of students who grow up who are SSA or gender diverse, will over time identify with one or more of the following identities: lesbian, gay, bisexual, transgender or intersex.

For this reason, I believe that these specific identities/descriptors should be included in the curriculum as well. These students deserve to have their identities spoken about in the classroom – and other students should also learn about the diversity of sexual orientations, gender identities and intersex people, rather than just the catch-all phrases SSA and gender diverse. After all, these are the terms which all students are likely to be exposed to after they depart the school environment. If any students leave school without understanding these terms then I think we are doing them a great disservice.

7. On page 49, at heading 4.2, I welcome the introduction of discrimination on the basis of sexuality as one of the particular examples of negative forms of discrimination which may be discussed in the classroom. However, I would like to see this broadened to look at discrimination on the basis of sexual orientation, gender identity or intersex status (rather than the more generic term ‘sexuality’), and I would also like teachers to be required to use all of these examples (including race, gender, disability etc), rather than simply choosing one or two from the list and potentially ignoring or omitting discrimination on the basis of sexual orientation, gender identity and intersex.

8. In the discussion of years 7-8, from page 58 onwards, the curriculum finally looks at sexual health education in detail. As discussed above, I believe this is far too late (and should instead be taught from year 5 onwards). However, turning to the substance of what is proposed, I also believe that it is too narrowly defined and limited in content.

For example, on page 59 the draft curriculum only refers to ‘reproductive health and wellbeing’. This is a very exclusionary term, traditionally focusing on sexual practices which are related to reproduction. This does NOT include other forms of sexual intercourse, including the behaviours of people who are same-sex attracted (as well as a range of other behaviours of heterosexual students which are also unrelated to reproduction). It is for this reason that the term sexual health should be used instead (or at least sexual and reproductive health), as it captures all of the behaviours which should be discussed.

9. The discussion of sexual health also needs to be made significantly longer, with more detail provided about what exactly has to be taught. This should include explicit reference to condoms, safe sex and the need for the prevention of HIV and other STIs. As a gay man who grew up in the 1980s and 1990s, I believe that it is negligent to draft a curriculum for primary and secondary students that does not include the words condom, safe sex or even HIV. Any comprehensive guide for the ‘health and physical education’ of young people must include these terms, especially when considering the health and wellbeing of young gay men, bisexual men and men who have sex with men generally. I would hope that organisations from the HIV/AIDS sector will be making similar points on this particular issue.

10. Finally, in years 9-10, on page 70, in addition to the reference to homophobia, there should also be references to bi-phobia, trans-phobia and anti-intersex discrimination. Students should be aware of the existence of, and unacceptability of, each of these types of prejudice. Of course, logically these types of discrimination cannot be discussed without an understanding of the identities lesbian, gay, bisexual, transgender and intersex, further underscoring the need for these issues to be taught from earlier in the curriculum.

As discussed earlier, I believe that significant amendments and improvements should be made to the draft national HPE curriculum to ensure that it is genuinely inclusive of, and provides appropriate sexual health education for, LGBTI students. I hope that ACARA takes these suggestions or recommendations for improvement into consideration as it revises the HPE curriculum before it is submitted to the Commonwealth and State and Territory education ministers for approval later this year.

Submission to Scottish Marriage Equality Consultation

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Today I made a submission to the Scottish Government’s consultation on their Marriage and Civil Partnership (Scotland) Bill. Submissions close 5pm Wednesday 20 March 2013(Scottish time). Below is the text of comments which I made in addition to the model response to the Bill provided on the Equal Marriage UK website: http://www.equalmarriage.org.uk/takeaction I encourage other people to make a submission if you have time.

Scotland flag

I am writing this submission in support of marriage equality as an Australian of Scottish descent, and therefore someone who wishes to see Scotland leading on a key progressive issue. I am also a gay man, engaged to be married to a wonderful partner, but currently prohibited from doing so by my own government. As a result, I am keenly aware of the negative consequences of the imposition of inequality in relationship recognition on the basis of sexual orientation, gender identity and intersex status.

I do not propose to detail the general arguments in favour marriage equality here because I am confident that LGBTI people in Scotland, and their families and friends, will be able to do so far more eloquently than I could. However, from my vantage point on the other side of the world, I do wish to highlight the potential symbolic importance of a move by the government of Scotland to finally accept lesbian, gay, bisexual, transgender and intersex people as equal citizens.

I sincerely believe that the introduction of marriage equality by the Scottish parliament would have precedent value for other members of the Commonwealth of Nations. As one of the first countries colonised by the English, and one of the last to adopt any form of self-government, Scotland embracing LGBTI human rights in this way would demonstrate that it is possible to overcome the history of homophobia which often accompanied imperialism.

Together with the expected passage of marriage equality in England and Wales in the near future, and on top of earlier moves by Canada and South Africa, Scotland would be sending a signal to other members of the Commonwealth that LGBTI people deserve equal treatment under the law. This is especially important because 41 Commonwealth countries continue to impose criminal penalties for homosexuality, and with homosexuality attracting life imprisonment in six of these.

There are also two upcoming events of symbolic significance within Scotland which, I believe, would be enhanced by the passage of marriage equality. The first is the Glasgow Commonwealth Games in July and August 2014. I think it would be a wonderful achievement if these were to be the first games held on soil where LGBTI people were full and equal citizens. This would deliver a message of acceptance of different sexual orientations, gender identities and of intersex people to those Commonwealth countries who attend.

The second event with symbolic significance is the forthcoming referendum on Scottish independence, which is currently expected to be held in the autumn of 2014. I submit that it is important to remove the blemish of legislated discrimination against LGBTI people ahead of this referendum: if the Scottish people are to embrace independence, then surely all of its citizens should be able to celebrate this achievement as equals. This newly-independent country, if that is the outcome of the referendum, should be able to start its life with a clean slate, and not one that has been tarnished by homophobia, bi-phobia, trans-phobia and anti-intersex prejudice.

Of course, I am not writing this submission completely unmotivated by self-interest. If Scotland were to adopt marriage equality, it would add another name to the long list of countries which have left Australia behind on this issue. Our near neighbours New Zealand look likely to do the same in the next few months. Hopefully, as the marriage equality movement continues to sweep the world, my own government will finally be embarrassed into action on this issue.

Leaving self-interest aside, and irrespective of the symbolic arguments which I have outlined above, the most powerful argument in favour of marriage equality must always be the thousands of LGBTI-inclusive couples in Scotland who would be able to take advantage of this Bill if and when it is eventually passed. The happiness of these couples would be immeasurably increased by a law which does not deny anyone else their rights, but simply extends the rights which one group already has to other communities.

I know how important and affirming it would be to have legal recognition of my relationship with my fiancé. The LGBTI people of Scotland are no different in terms of their hopes and aspirations for full legal equality. I hope that Scottish parliamentarians listen to these voices before deciding whether to say “Yes” or “No” to the Marriage and Civil Partnership (Scotland) Bill. Ultimately, any person should be able to determine for themselves whether to say “I do”.

Submission on Human Rights and Anti-Discrimination Bill 2012

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I am very happy that my submission to the Senate Legal and Constitutional Affairs Committee inquiry into the exposure draft Human Rights and Anti-Discrimination Bill 2012 was published this afternoon

(http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=legcon_ctte/anti_discrimination_2012/submissions.htm).

The full text of my submission is reproduced below:

Exposure Draft Human Rights and Anti-Discrimination Bill 2012

Inquiry by the Senate Standing Committee on Legal and Constitutional Affairs

Submission by Alastair Lawrie

Friday 21 December 2012

Thank you for the opportunity to make a submission on the exposure draft of the Human Rights and Anti-Discrimination Bill 2012. This submission reflects my personal views on the Bill, and makes a number of recommendations for improvements to the draft legislation to ensure that it provides adequate protection to lesbian, gay, bisexual, transgender and intersex Australians from – what will hopefully be – unlawful discrimination. Nevertheless, these recommendations for improvements do not change my primary recommendation; namely, that the Parliament should pass this Bill as a matter of priority in 2013.

Recommendations:

  1. The Parliament should pass the Human Rights and Anti-Discrimination Bill 2012 as a matter of priority in 2013.
  2. The Bill should retain the exposure draft definitions of ‘sexual orientation’ and ‘relationship status’ so that discrimination on these grounds is prohibited under Commonwealth law.
  3. The Bill should amend the definition of ‘gender identity’ to reflect the Tasmanian Anti-Discrimination Bill 2012 definition, so that it removes the phrase ‘genuine basis’ and includes gender expression and presentation.
  4. The Bill should include the definition of ‘intersex’ as used in the Tasmanian Anti-Discrimination Bill 2012, so that anti-discrimination protections adequately cover this protected attribute.
  5. Exceptions from anti-discrimination requirements should only be provided to religious organisations where it relates to religious appointments or celebrations (for example, appointment of ministers of religion, admission to membership of the religion or celebrating sacraments within the religion).
  6. Religious organisations should not be provided with exceptions in terms of service-delivery, including service delivery in schools and education, healthcare, aged care and other community services.
  7. If Recommendation 6 is not agreed, the existing provisions of the Human Rights and Anti-Discrimination Bill 2012 which preclude the application of exceptions with respect to aged care service delivery by religious organisations should be retained.
  8. Religious organisations should not be provided with exceptions in terms of employment, in any area outside appointment of ministers of religion or other appointments which are essentially religious in nature.
  9. If either or both recommendations 6 or 8 are not accepted, or if recommendation 7 is accepted, then wherever religious organisations are provided with exceptions with respect to either service delivery or employment, they must publish a statement outlining their intention to discriminate in position descriptions and job advertisements, on their website and in any brochures or advertisements of their service.
  10. The Bill should expand anti-vilification protections to cover sexual orientation, gender identity and intersex.
  11. The Bill should provide for the appointment of a dedicated Sexual Orientation and Gender Identity Commissioner.

The draft Human Rights and Anti-Discrimination Bill 2012 covers subject matter which is close to my heart, and which is also an important issue of public policy; namely, providing legal protections to lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians against unjust discrimination, harassment and abuse.

These legal protections are long overdue. By the time this legislation is (hopefully) passed in 2013, it will be 38 years since the passage of the Racial Discrimination Act 1975, 29 years since the Sex Discrimination Act 1984, more than two decades since the Disability Discrimination Act 1992 and almost a decade since the Age Discrimination Act 2004. These Acts were passed to address major problems of discrimination within society on each of these grounds.

Discrimination on the basis of sexual orientation, gender identity and intersex is no less offensive, and tackling this discrimination is no less urgent. It is a failing of successive Commonwealth Governments that they have not introduced anti-discrimination legislation covering these attributes before now, but happily this is something that the current Parliament can address in this term.

There is abundant evidence that discrimination against LGBTI Australians is both serious and widespread. The 2003 NSW Attorney-General’s Department report You Shouldn’t Have to Hide to be Safe, found that 56% of respondents had been the victims of homophobic abuse, violence or harassment in the previous 12 months. 85% of respondents had experienced abuse, violence or harassment at some point in their life. That fact alone is sickening: 5 out of every 6 LGBTI Australians have suffered some form of homophobic abuse, violence or harassment simply for being themselves.

This discrimination can particularly target, and have the most damaging effects on, young people. The Writing Themselves In 3 report found that 60% of young same-sex attracted and gender questioning young people had experienced some form of physical or verbal abuse. Homophobic, bi-phobic and trans-phobic discrimination, and discrimination against intersex people, can have a lasting, negative impact on their mental health, and limit their ability to fully participate in society. LGBTI youth should not have to suffer because of the prejudices of others.

But you do not need to consult these reports to understand that discrimination against LGBTI people is rife. Instinctively, we all know, simply as ordinary members of Australian society, that homophobia is an unacceptably widespread phenomenon, and that it has the potential to affect almost every facet of life. As individuals, we have likely seen it, heard about it, felt its impact on family members or friends.

For those of us who are LGBTI, we have been on the receiving end of this abuse, this violence, this harassment. As a gay man, I have been the victim of numerous counts of homophobic discrimination. I have been ‘moved on’ by police officers simply for kissing another man. I have been yelled at on the street for holding my boyfriend’s hand, and called ‘faggot’ more times than I care to remember. I have been subjected to multiple instances of prejudice and exclusion by my school. And I have probably been discriminated against in other ways which I didn’t even know at the time, because discrimination can be insidious.

My fiancé Steve has similar stories. His lesbian sister and her partner have been discriminated against too, both as individuals, and as mothers in a rainbow family. Steve’s best friends, another lesbian couple, have their own stories of prejudice, as do many of our other gay and lesbian friends. Sadly, each and everyone one of us has our own story of how discrimination has affected our everyday lives, in so many different situations.

What we have not had, until now, is any protection under Commonwealth law against this discrimination. Federal anti-discrimination legislation, covering LGBTI Australians, is essential to complement existing protections under state and territory law, and ensure that there are no holes or gaps in this coverage.

Even more importantly, the passage of this bill would be a statement by our elected leaders that prejudice and discrimination on the basis of sexual orientation, gender identity and intersex will no longer be tolerated. I urge the Commonwealth parliament to pass this law, and do so as quickly as possible.

Recommendation 1: The Parliament should pass the Human Rights and Anti-Discrimination Bill 2012 as a matter of priority in 2013.

 

The exposure draft Bill already features a useful and inclusive definition for ‘sexual orientation’ which will ensure that lesbians, gay men and bisexuals are afforded anti-discrimination protection. The amendment of the previously protected ground of ‘marital status’ to ‘relationship status’ will also ensure that all relationships are covered, irrespective of the sex or gender of the participants. Both of these definitions should be retained in the final Bill.

Recommendation 2: The Bill should retain the exposure draft definitions of ‘sexual orientation’ and ‘relationship status’ so that discrimination on these grounds is prohibited under Commonwealth law.

I am also supportive of the inclusion of anti-discrimination protection for transgender people. However, I understand that the definition of ‘gender identity’ in the exposure draft Bill requires significant improvement. In particular, it is unclear why the definition includes the additional test of living on a “genuine basis” for transgender people. The definition also does not appear to adequately capture and protect gender expression, including mannerisms and appearance. A much better definition is contained in the Tasmanian Anti-Discrimination Bill 2012, which is currently before their state parliament. That definition should be used in the Commonwealth’s Human Rights and Anti-Discrimination Bill 2012.

Recommendation 3: The Bill should amend the definition of ‘gender identity’ to reflect the 2012 Tasmanian Anti-Discrimination Bill definition, so that it removes the test of ‘genuine basis’ and includes gender expression and presentation.

An even larger drafting problem concerns the definition of, and therefore protection for, intersex people. The exposure draft Human Rights and Anti-Discrimination Bill 2012 appears to try to include intersex under part (b) of gender identity. This is incorrect, because intersex is not a matter of identity, instead it is a biological fact.

It should also be noted that similar definitions which have been included previously under state and territory laws have either operated to provide only limited protection from discrimination to intersex people, or provided no protection at all.

It would be tragic if, 38 years after the Racial Discrimination Act 1975, the Commonwealth parliament finally acted to extend anti-discrimination protection to lesbian, gay, bisexual and transgender people, but, at the same time, failed to cover intersex people and instead further entrenched rather than remedied discrimination on this ground.

Once again, the definition of intersex which has been used in the Tasmanian Anti-Discrimination Bill 2012 appears to offer a better and more inclusive basis for this protected attribute, and one that should be included in the Human Rights and Anti-Discrimination Bill 2012 as a stand-alone attribute, rather than inappropriately subsumed within gender identity.

Recommendation 4: The Bill should include the definition of ‘intersex’ as used in the Tasmanian Anti-Discrimination Bill, so that anti-discrimination protections adequately cover this protected attribute.

One of the most controversial elements of any anti-discrimination regime, and the one that regularly receives the most attention, is the topic of exceptions. In particular, there is usually significant focus on the question of whether religious organisations should be granted exceptions from the obligation not to discriminate on the basis of sexual orientation, gender identity and intersex (and, it must also be noted, on the basis of sex and relationship status). As a result, I will devote the largest section of this submission to addressing these questions, firstly on a philosophical basis and, secondly, on a more personal level.

To begin with, I think it is important to remember the justification for implementing anti-discrimination protections in the first place. These laws are designed to publicly state that some forms of prejudice are not acceptable and to prohibit discrimination on illegitimate grounds (such as race, sex or religion), thereby protecting people from these groups against discrimination in a range of public areas, such as employment, education, healthcare and other forms of service delivery.

By introducing anti-discrimination protections covering sexual orientation, gender identity and intersex in this Bill, parliament would be effectively saying that discrimination on these grounds is no longer acceptable, and that all LGBTI people should be protected from discrimination in all areas of public life. Exceptions from this principle, if they are to be introduced, must therefore have a clear rationale and must be adopted only where it furthers the public interest.

The argument for providing exceptions to religious organisations from obligations under anti-discrimination law is based on the separation of church and state, and respect for religious freedoms for people of all faiths. That is, religious exceptions are intended to allow the free celebration of religious beliefs, even if these beliefs include discrimination against other groups that would not otherwise be acceptable.

This argument potentially has some merit in terms of public policy. Religion is an intensely personal matter, and something which individuals and groups should be allowed to pursue however they so choose. This would apply to all matters within that religion which have no impact on the rest of society – such as determining who may join that religion, who may be a minister within that religion, and how the religion is celebrated.

As a result, philosophically, this approach would allow anything which occurs entirely within that religion to be free from anti-discrimination obligations – so, for example, the religious exception would allow religions to discriminate when determining who to employ as ministers, who is admitted as a member of the religious community, who is provided with a funeral, even who is married within that religion (although obviously not who can marry through a civil ceremony).

As a consequence, if religions wanted to discriminate against any group in any of these areas (for example, by excluding LGBTI people) then that right would be allowed through a religious exception in these narrow or confined circumstances. [Of course, it should be noted at this point that state and territory parliaments have in fact legislated to restrict this right – so that, while religions can discriminate on sex, relationship status and LGBTI grounds, they are not allowed to discriminate on race. But that inconsistency is an argument for another day.]

The problem comes when religious organisations seek to broaden that exception to cover a wide range of scenarios which are not primarily based on the celebration of that religion. So, for example, some religions seek to use the religious exception to cover anything that is done in connection with a school where it is run by a religious organisation. They argue that they should be able to discriminate in terms of what may be taught within that school, who may be employed (including not employing LGBTI staff) and even being able to directly discriminate against LGBTI students.

This is an inappropriate extension of the principle of respecting religious freedom. The main function of a school is to provide education. This is a service or transaction which occurs primarily in the ‘public sphere’, which is why it is subject to many levels of government regulation, in terms of teacher qualifications, starting and finishing ages, and agreed state and territory (and soon to be federal) curricula. Even home-schooling by a parent is strictly regulated by the state because the provision of education services is in and of itself a ‘public good’.

Just because a school is run by a religious organisation, does not automatically mean that school education suddenly becomes primarily concerned with ‘celebrating religious freedom’ and thereby removed from the public sphere. The day-to-day provision of classes, by teachers to students, is not in its very nature or essence a religious sacrament. Even where there is direct religious instruction offered by a religious-run school, it is usually only a very small component of their curriculum, the vast majority of which is the same no matter who is offering it, religious or non-religious.

As a result, I submit that providing education services is not at its core about ‘celebrating religious freedom’ but, rather mundanely, is actually mostly just about providing education services. The service provision within those schools, and the employment contracts which they enter into, are not fundamentally religious in nature, meaning that the state has a legitimate interest in regulating both areas. Consequently, it is not an inappropriate restriction of fundamental religious freedom to rule that a religious school cannot discriminate against LGBTI teachers, and cannot exclude LGBTI students.

In short, the rationale of respecting religious freedom is not sufficient to allow a religious-run school to be granted an exception from lawful obligations with which it would otherwise have to comply, including anti-discrimination obligations. The proposition put forward by religious organisations, to exclude religious-run schools from anti-discrimination law, does not have sufficient weight to pass the public interest test.

I am aware that I have chosen what is perhaps the most hotly-contested area of service-delivery to make my case. The basic argument is even clearer if we examine other services which may be provided by a religious-run organisation. Take, for example, the case of a ‘for-profit’ business, which is purchased by a religious organisation to make money to divert back into its religious activities. In this example, it doesn’t actually matter what the business makes, sells or provides, just that the process involved is not religious, and that the product or service is not religious.

Philosophically, there is no justification to allow the for-profit business to discriminate against employees on the basis of their LGBTI status because the business at its core is not religious – and this applies irrespective of the fact it is owned by a religious organisation. Further, people would be outraged, quite legitimately, if the business was allowed to discriminate in its service-provision (for example, by not serving certain people because of sexual orientation, gender identity or intersex, or even sex or relationship status) simply because it was owned by the religion involved.

The same arguments can in fact be made with respect to all employment contracts and service-provision which is not inherently about religious celebration. This would include healthcare services, education services, other community services, and employment as anything other than religious ministers or religious office-holders. In each of these cases, the service provision or employment contract is part of the public sphere and the fact that it merely involves a religious organisation is not enough to justify the transaction being excluded from the operation of the law.

There is another popular argument why religious-run schools, and other religious-run services, should not be provided with exceptions from anti-discrimination obligations. This is the fact that nearly all of these services are in receipt of public funding, and often significant sums. As a matter of fairness, everyday taxpayers – including, it must be highlighted, LGBTI taxpayers – should not be subsidising the religious freedoms of others, especially the so-called religious ‘freedom’ to not hire a gay doctor in a religious hospital, to fire a lesbian teacher, or to expel a transgender student from a high school. If religious organisations want to exercise these ‘rights’, then they should not be using public funding to do so.

While this argument is morally attractive, I do not think it goes far enough in practice. That is, even if a religious-run high school received no public funding, the fact that it is a high school, which is primarily concerned with providing education services and is firmly in the ‘public sphere’, is sufficient to attract government intervention, including the requirement to comply with anti-discrimination legislation.

After all, an LGBTI student who might be discriminated against by the school should, philosophically, have the same right to be treated fairly irrespective of the funding breakdown for that particular school. The discrimination is no less egregious, and the homophobia no more acceptable, where no money comes from public funding, rather than if 10, 40 or even 70 % of the school’s funding is provided by the government. It genuinely doesn’t matter who funds the discrimination against that student, only that the student has a legitimate public interest in being protected from it.

Which brings me to the much more ‘personal’ argument for why exceptions for religious organisations should be narrow in scope. I mentioned earlier that, like most LGBTI Australians, I have been subjected to numerous instances of homophobic discrimination and harassment over the course of my life (I am now 34 years old). Well, I experienced the vast, vast majority of that prejudice during my time as a boarding student at a religious school in Queensland in the early to mid-1990s.

I have chosen not to include the name of the school here because I don’t think it actually matters – only the instances of homophobic discrimination which I experienced matter for the purposes of this inquiry. And, sadly, I don’t think what I experienced sets me apart from what many other students have experienced over the years, at many different schools.

During my time at his particular school, being gay was either not mentioned at all, or was mentioned in a negative context. This tyranny of silence extended to sex education, which, over the course of five years, made not one mention of same-sex attraction, or even of anal intercourse.

Imagine that, at the peak of the HIV/AIDS epidemic, while it was still very much a matter of life and death (before protease inhibitors and combination therapies), actively ignoring a major risk factor of HIV transmission simply because it didn’t fit within the religious philosophy of the school. That is not a celebration of religious freedom; that is criminal negligence.

Homophobic bullying was also common – including regular taunts of ‘faggot’, ‘poofter’, graffiti-ing of those words on books and bags, physical confrontations such as pushing and shoving – and was never actively discouraged by the school. In fact, at one end of year boarding house awards ceremony, I was given the ‘big fat poof’ award, which I was expected to get up and accept in front of everyone, including in the presence of school authorities, and to take in good humour (but, of course, which caused great personal anguish and distress).

An even worse example: in year 11, I was twice held down by a large group of students and had my chest hair shaved off. This was done because I was academic, non-sporting, basically an outsider who was not interested in girls – and, I suspect, because some of the students had correctly assumed I was gay (based on the award described above, some obviously had). The school was aware of both of these assaults and yet, within a few days of the second attack, appointed one the boys responsible school captain, and another as boarding house captain.

But the worst example of homophobic bullying at the school came during a speech by a pastor. He talked about a student at a former parish, who had struggled with his ‘identity’ for some time, and how it did not fit within god’s plan. Ultimately, he said, the student had committed suicide. The pastor made it clear that this was not the worst thing which could have happened (the former student was now at ‘peace’ and no longer struggling).

This pastor was clever – he did not use the exact words, but through his intimations he made it clear that killing yourself could be a better option than growing up and adopting a ‘homosexual lifestyle’. To be honest, I am not even sure that the heterosexual students who were present would have known the full import of what was being said – but the LGBTI students certainly would have, and they were the real ‘target’ of his hate speech.

And that is the fundamental nature of homophobic (and bi-phobic, trans-phobic and anti-intersex) discrimination. It can be insidious, and subtly but harmfully pervade everyday life. At a religious school like mine, these instances do not happen in isolation either – they are allowed to happen, cultivated and even nurtured, because the school adopts an active policy of not tolerating homosexuality or bisexuality (I am not sure they would have even understood transgender or intersex – if they did, I am sure they would have been actively against those too – but through their silence they would have seriously harmed any transgender or intersex student there as well).

Of course, I am not saying that my experience of discrimination at school is unique. There are thousands, probably tens or perhaps even hundreds of thousands, of other people with horror stories of their own from their school days, and their accounts relate to both government and religious schools. You just have to ask your LGBTI family members and friends about what their experiences were like to begin to understand.

But, in doing so, always remember that these stories are just from the adults who have survived their ordeals – sadly, some LGBTI students do not survive, and instead take their own lives along the way. Sexual orientation, gender identity and intersex-related youth suicide in Australia remains disproportionately high, and it is fair to point the finger at school-based silence, exclusion and prejudice as one of the key factors involved.

Unfortunately, the evidence is clear that discrimination against LGBTI students is still occurring in our schools today. As indicated earlier, the 2010 Writing Themselves In 3 report found that 60% of same-sex attracted and gender questioning young people had experienced some form of physical or verbal abuse. More pertinently here, the same report found that 80% of all harassment, discrimination and abuse actually happened in school settings.

This is a major national scandal. Anti-LGBTI prejudice in schools is something which all levels of government should address, in all states and territories, and in all types of school, government, non-government, religious and non-religious. There is indeed some work which is being done in different jurisdictions, such as the NSW Proud Schools initiative, and the efforts of Daniel Witthaus through his ‘Beyond That’s So Gay’ projects (www.thatssogay.com.au). But this work, without the support of every government and every school system, will never reach each and every student who needs support and protection.

More importantly, any campaign to address prejudice based on sexual orientation, gender identity and intersex is fatally undermined if we provide religious schools with exceptions from anti-discrimination obligations. We cannot in good conscience say that we support the rights of LGBTI students if, at the same time, we allow schools which are run by religious organisations to continue to actively discriminate against or marginalise students because of their sexual orientation, gender identity or intersex.

To apply this to my own experiences, providing that school with an exception under anti-discrimination legislation would mean that everything they did (with the exception of the chest shaving incidents, because, after all, assault is still assault) would have been legally protected. Not including homosexuality in sex education would be acceptable because they would claim they have a religious objection to teaching about ‘sinful’ activities.

Allowing students to denigrate other students because of their apparent homosexuality would be fine because the abusers would simply be following the teachings of their religion. And a pastor implying that killing yourself rather than lead a ‘gay lifestyle’ would be protected because they would argue that their religion included proclamations against the ‘abomination’ of homosexuality.

This situation – allowing religious schools to hide behind religious exceptions to commit acts which essentially amount to child abuse – is no longer acceptable in 2013 (if it ever was).

Thus, for both philosophical and intensely personal reasons, I submit that if the Human Rights and Anti-Discrimination Bill 2012 is to include exceptions for religious organisations, these exceptions should only apply to religious appointments or celebrations.

Recommendation 5: Exceptions from anti-discrimination requirements should only be provided to religious organisations where it relates to religious appointments or celebrations (for example, appointment of ministers of religion, admission to membership of the religion or celebrating sacraments within the religion).

This means that, in practice, these exceptions should not apply to any other area of service-delivery where it is provided by a religious organisation, including service delivery in schools and education, healthcare, aged care and other community services.

Of course, I am realistic enough to know that campaigning by religious organisations to maintain their ‘religious freedom’ (or, in other words, to retain their right to exercise prejudice on the basis of sexual orientation, gender identity and intersex) will be successful, and that, shamefully, religious schools will continue to be able to discriminate against and marginalise LGBTI people for a long time to come.

In this case, I would submit that, at a minimum, the existing provisions of the Human Rights and Anti-Discrimination Bill 2012 which remove the ability of religious organisations from discriminating in aged care service delivery should be retained.

This is a positive move by the federal government, and complements their work in releasing the National LGBTI Ageing and Aged Care Strategy on 20 December 2012. The removal of the exception from this area also recognises the very personal nature of aged care services, and the fact that LGBTI people, and their families and carers, should not be discriminated against in accessing these services.

Recommendation 6: Religious organisations should not be provided with exceptions in terms of service-delivery, including service delivery in schools and education, healthcare, aged care and other community services.

Recommendation 7: If Recommendation 6 is not agreed, the existing provisions of the Human Rights and Anti-Discrimination Bill 2012 which preclude the application of exceptions with respect to aged care service delivery by religious organisations should be retained.

The same arguments which dictate that religious organisations should not be able to discriminate in terms of service delivery, also mean that the religious exception should not apply to employment. After all, employment as anything other than a minister of religion (or other internal religious appointments), is a contract or transaction undertaken in the ‘public sphere’, and is not something which is so fundamental to the ‘celebration of religious freedom’ that it should be excluded from lawful obligations not to discriminate.

In practical terms, there is nothing fundamentally religious about the role of a doctor in a public hospital, meaning a religious hospital should not be able to sack someone from this role simply for being gay. Nor is there anything inherently religious about teaching maths in a secondary school, hence a lesbian teacher should not be able to be dismissed on that basis. And an employee in an aged care facility is there to provide services to the elderly – provided they do their job well, it is irrelevant that the employee may be transgender or intersex.

Recommendation 8: Religious organisations should not be provided with exceptions in terms of employment, in any area outside appointment of ministers of religion or other appointments which are essentially religious in nature.

Once again, I am realistic enough to know that it is highly likely at least some of the exceptions which are currently provided to religious organisations – in either or both service delivery and employment – will be retained when the Human Rights and Anti-Discrimination Bill 2012 is eventually passed.

In this case, I submit that religious organisations should be required to actively disclose any and all situations where they intend to use their ‘religious freedoms’ in ways which discriminate on the basis of sexual orientation, gender identity and intersex. This disclosure should be included in positions descriptions and part of job advertisements, should be included in the organisation’s websites (including at individual school or healthcare service level), and in brochures advertising the services which they provide.

This is a minimum level of public accountability and transparency, and is not a significant regulatory burden if we are allowing an organisation to evade what are otherwise lawful obligations. It will also mean that everyone is clear on the situations in which a religious organisation intends to exercise its prejudice against LGBTI people.

For example, a gay teacher would be able to take into consideration the fact that the school could reject him for no other reason than his sexuality. Parents of a lesbian daughter would be able to choose an alternative and more inclusive environment for their child. And citizens who do not support homophobia, bi-phobia, trans-phobia and anti-intersex discrimination will be able to boycott discriminatory services if they so desire.

Obviously, this is not an ideal situation – and clearly it is far removed from my preferred model. But if we are to allow religious organisations the ‘right’ to be excepted from their obligations under anti-discrimination legislation, at the very least the potential victims of this discrimination equally have the right to know and be forewarned.

Recommendation 9: If either or both recommendations 6 or 8 are not accepted, or if recommendation 7 is accepted, then wherever religious organisations are provided with exceptions with respect to either service delivery or employment, they must publish a statement outlining their intention to discriminate in position descriptions and job advertisements, on their website and in any brochures or advertisements of their service.

There is one area which the Bill has essentially ignored – despite reproducing the existing ban on racial vilification, the Human Rights and Anti-Discrimination Bill 2012 does not extend these protections to the grounds of sexual orientation, gender identity or intersex.

This is a significant shortcoming in the exposure draft legislation. As outlined earlier, the majority of LGBTI Australians have experienced homophobic, bi-phobic, trans-phobic and anti-intersex abuse, violence or harassment.

The level of this abuse – and its corollary, the legitimate fear of it – means that I am not at all surprised by the findings of the Private Lives survey, which showed that 67% of participants’ fear of prejudice or discrimination caused them, at least sometimes, to modify their daily activities in particular environments. This same survey revealed that 90% of participants had at some time avoided expressions of public affections and disclosure of their sexual orientation or gender identity.

My fiancé Steve and I have made the conscious decision to ignore the abuse which we might receive and behave in exactly the way we choose – including kissing, holding hands and expressing our affection in public. This is a right which every couple should have. As a result of merely exercising our ‘rights’, we have been yelled at, with ‘faggot’ an all-too-common word in the bigot’s vocabulary. We are also aware that in a couple of situations things have had the potential to turn violent, with an unspoken level of threat present. And we have had nails put through all four tyres on our car, we suspect simply because we were the neighbours of someone who disagreed with our sexual orientation, and our relationship.

Of course, others do not have the ability to make a conscious decision – they may be more easily identifiable as LGBTI simply because of how they appear, or certain sex or gender characteristics which they may have. This means they are exposed to the risk of violence, abuse or harassment irrespective of how they behave, solely for having the temerity of being in a public space.

It shouldn’t be this way. LGBTI people should not be forced to accept a threat of verbal and sometimes physical violence simply for being themselves in a public space. Commonwealth law should embrace the approach already adopted by some states and territories and prohibit vilification on the basis of sexual orientation, gender identity and intersex.

This could be based on anti-vilification measures contained in the NSW Anti-Discrimination Act 1977, which outlaws public acts which “[i]ncite hatred towards, serious contempt for, or ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group.”

Such anti-vilification measures should also be adopted because there is no intellectual distinction between vilification on the basis of race, and vilification on the basis of sexual orientation, gender identity and intersex. Both are abhorrent, and both should be banned – as such both should be included in the Human Rights and Anti-Discrimination Bill 2012.

Recommendation 10: The Bill should expand anti-vilification protections to cover sexual orientation, gender identity and intersex.

The final recommendation of this submission relates back to the justification for the Commonwealth legislating to protect LGBTI Australians in the first place: and that is, to address the significant problems of homophobia, bi-phobia, trans-phobia and anti-intersex discrimination which exist across our society.

If that is our goal, then simply providing a legal remedy for some individuals to take action against the individual or organisation that has directly discriminated against them will not be sufficient to achieve it. That is why the existing Commonwealth Acts which have prohibited discrimination on the basis of race, sex, disability and age, have also created specific commissioners within the Australian Human Rights Commission to take primary responsibility for these issues (namely the Race, Aboriginal and Torres Strait Islander, Sex, Disability and Age Commissioners).

These Commissioners, in addition to overseeing the disputes which arise under their respective portfolio, can take on a wider role to redress discrimination more broadly across society. The appointment of a specific commissioner, together with proper resourcing, is also a powerful statement of the significance which the Government places on combating discrimination in a particular area. Conversely, not appointing a commissioner, and instead subsuming it within an existing, completely unrelated portfolio, would demonstrate that the Government does not believe these issues warrant any particular attention.

For all of these reasons, I believe that the Bill should provide for a dedicated or stand-alone Sexual Orientation and Gender Identity Commissioner. This Commissioner would not only assist with implementation of the range of new attributes under Commonwealth legislation, but would also be able to take an active role in fighting the homophobia which I, my fiancé, and all of our LGBTI family members and friends know all-too-well.

Recommendation 11: The Bill should provide for the appointment of a dedicated Sexual Orientation and Gender Identity Commissioner.

Senate Submission on Marriage Equality

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Earlier this year, I made a lengthy submission to the Senate Legal and Constitutional Affairs Committee Inquiry into the Marriage Equality Amendment Bill 2010. I – and 79,200 other Australians. The majority of these (approximately 46,400 submissions) were in favour of marriage equality, although we all know that our parliamentarians ultimately ignored them, and many other public policy arguments, as they voted to entrench discrimination against LGBTI Australians.

Unfortunately, given the volume of submissions received, the Committee chose to only publish 360 submissions in total, and mine was not one of the select few. As the year draws to a close I thought I might publish what I submitted to the Committee. On reflection, it does tend toward the ‘ranty’ at times, but I think this simply reflects the passion which I felt (and still feel) on the issue. Which also helps to explain the length. Fortunately, I will be able to reuse much of this submission as the NSW Parliament has its own inquiry into marriage equality in the first half of 2013.

Anyway, here is the full text of my submission:

Submission to the Senate Inquiry into Marriage Equality

Please note that this submission reflects my personal views only and does not reflect the views of any other person or organisation.

Introduction

I am writing to strongly support the urgent introduction of marriage equality, and to call for the federal parliament to remove one of the final major pieces of discrimination against lesbian, gay, bisexual, transgender and intersex Australians.

It is somewhat frustrating to have to go through this process in 2012. To have to, once again, ask for the rights which should be granted as a matter of course, to demand action to remove a form of discrimination which should have been erased from the law books long ago. Of course, this frustration has been shared in the past by campaigners for gender and racial equality, who were forced to continue to protest and take action to gain equality, long after it should have been introduced. But just because this frustration is shared, doesn’t mean it is any less disheartening.

And it is also disheartening to have to engage in the same debate, to have to listen to the same so-called arguments against marriage equality, which are generally based on either prejudice (on a bad day) or ignorance (on a good one). The arguments for equality, which include the recognition of love, the introduction of genuine equality irrespective of sexual orientation or gender identity, and the symbolism of acceptance, are so compelling that the debate on this issue has already been won, amongst the family and friends of LGBTI Australians, in the wider community, and in the public sphere. The majority of Australians have come to recognise that marriage equality is something that should have already happened.

In fact, the only place where support for marriage equality seems to be in the minority is in the federal parliament. Well, later this year, our 226 elected representatives have the opportunity to finally redress this injustice. Our federal parliamentarians have the chance to treat love equally, to show that all Australians should be treated fairly no matter who they are attracted to, in short, to bring Australia into the 21st century.

But it is more than simply a chance to do what is right, it is an obligation. Our 226 elected representatives have an obligation to represent all of their constituents, not just the heterosexual ones. They have a responsibility to respect the rights of a minority, even when other groups demand that the law be used as a weapon to discriminate against that minority. Our elected representatives should be striving to eliminate homophobia, in the same way that our society continues to strive to overcome sexism or racism.

I hope that, later this year, our federal parliamentarians will seize this historic opportunity, and fulfil their obligations, to support the passage of marriage equality.

The major arguments against same-sex marriage

To begin the substantive part of this submission, I would like to rebut the main arguments which our opponents use to deny marriage equality, namely, that marriage is about religion, that marriage is about children, and that marriage is about tradition. Each of these is fundamentally wrong, as I will explain:

i)                    Marriage is a religious institution which cannot accommodate same-sex couples

There are so many things wrong with this statement it is difficult to know where to start. It is completely inaccurate and inappropriate in contemporary Australia. There is no religious test for people who wish to get married – anyone is welcome (christian, muslim, jew, hindu, buddhist, atheist and agnostic alike). And it goes without saying that, despite historical restrictions on religious ‘intermarriage’, people can also marry outside their religious affiliation, so it therefore cannot be considered a sacrament to a particular god. Marriage ceremonies also do not need to be religious – indeed, the vast majority of ceremonies are performed civilly (65% in 2008). Above all, a marriage in modern Australia is more likely to be simply a celebration of the love between two people, shared by their family and friends, than a solemn vow in front of their god or gods.

More fundamentally, the federal Marriage Act, which defines marriage and from which its legal rights and obligations flow, is a secular law, passed by a secular parliament, within an entirely secular system of government. Or to put it another way, because of the separation of church and state, Australia is not legally or formally a christian country, and its laws are not the exclusive plaything of christians. This is the only fair approach in a modern society – surely it is unjust to impose religious laws on those who are not ‘believers’, or deny citizens equal rights on the basis of their religion, or their lack of religion.

The most extreme example of the ‘gay marriage should be banned because of religion argument’ is a convoluted one, which goes something like: for some people, marriage is religious, and they would not accept same-sex marriage, so the granting of same-sex marriages to others would somehow be an infringement of their religious freedom. This has absolutely no weight, confusing as it does the freedom of religion (for religious people to conduct a wedding in the manner of their choosing) with a supposed freedom to impose their religious views on others (and thereby infringing on the equally important freedom from religion).

It also conveniently ignores the fact that several religious organisations would themselves like the right to perform same-sex marriages, so a same-sex marriage ban would infringe on their freedom of religion. Finally, I believe that religious differences can easily be accommodated by the current exemptions within the Marriage Act, which mean that no religious celebrant can be compelled to officiate over any ceremony which they do not support. Nothing in any current proposal for marriage equality would compel a church to allow same-sex ceremonies where they do not wish.

All in all, there is absolutely no religious reason why marriage should remain exclusively between men and women.

ii)                   Marriage is about children and therefore gay men and lesbians need not apply

The regularly-raised Simpsons-esque ‘won’t somebody think of the children’ argument also has no substance whatsoever. Apparently, marriage is about children and only those opposite-sex couples who intend to have children, and indeed who are capable of having children, should get married. I say apparently, because it seems a lot of married couples didn’t get that memo. Think of the people who get married beyond their natural reproductive age. Or who get married and have absolutely no intention of having children. Or who get married and are incapable of having children.

It also seems to have escaped the marriage vows ‘industry’. I can’t recall anyone getting married and promising to have the other person’s children. Instead, marriage vows, quite understandably, seem to focus on the love between two people. In fact, the book of common prayer vows state “to be my lawful wedded wife/husband, to have and to hold from this day forward, for better or for worse, for richer or poorer, in sickness and in health, to love and to cherish, til death us do part, according to God’s holy ordinance; and thereto I plight thee my troth.” There is no mention of children, and after all, wouldn’t it be included here if bearing children were so central to the rite of marriage?

The next variation of ‘won’t somebody think of the children’, claims that the best way to raise children is within heterosexual married families, as only opposite sex couples can reproduce naturally and only marriage provides a stable family environment. Once again, this proposition is full of holes. It ignores the reality that many gay and lesbian couples are having children, whether through surrogacy, artificial insemination or adoption. These rainbow families are real, and they are increasing. They are also good parents – independent studies by reputable psychologists have found that children raised by rainbow families are doing fine. In 2007, the Australian Psychological Society found that “parenting practices and children’s outcomes in families parented by lesbian and gay parents are likely to be at least as favourable as those in families of heterosexual parents, despite the reality that considerable legal discrimination and inequity remain significant challenges for these families.” If people genuinely cared about the children of these families, surely we should be arguing for the right of their parents to get married, if they so desire.

The ‘straight married families are best’ argument is also incredibly disrespectful to the diverse range of families in contemporary Australia. There are many wonderful married opposite sex parents, just as there are awful married opposite sex ones. That split applies equally to unmarried opposite couples too. There are amazing single parents, just as there are terrible ones. There are couples who stay together for the sake of their children, but probably shouldn’t. And there are all kinds of families who do the best they can for their child or children, no matter what the situation. In short, family structure does not guarantee anything, but the love of a good parent or parents counts for so much more.

So, that leaves just one of the most commonly used troika of arguments against equal marriage to rebut.

iii)                 Marriage is about tradition and it should remain ‘just the way it is’

This is the weakest argument of the three. Tradition as an argument only works where it meets one necessary pre-condition: that the tradition involved is an inherently good one. This is because tradition alone is never enough to justify the retention of a fundamentally flawed institution. Australia, and indeed the western world, has done away with many social policies over time that were once deemed traditional: slavery was traditional, terra nullius was a long-held custom, and yet both have been quite rightly swept away because they were abhorrent.

To argue against changing something, solely because of tradition, to unquestioningly state that what is now, is what automatically should be, forever more, is quite plainly a ridiculous position to adopt.

Many of the features of modern Australia would not exist if our predecessors had blindly worshipped at the altar of tradition – women would not have the right to vote, let alone be Prime Minister, and indigenous Australians would still be third class citizens. Many of Australia’s major social reforms were achievements because they removed outdated and inappropriate social traditions, and not in spite of this.

In terms of marriage, it is a well-respected tradition within the community (at least in concept, if not reflected in divorce rates), and one that arguably can perform a valuable social function in terms of organising social relationships. However, one must be careful to distinguish between the feature that gives it value – that marriage is the union of two people in a loving relationship – and other traditions which are associated with it, but not a core element. That is why the essential meaning of marriage has survived, despite the significant changes that have been made to the institution over time. For example, marriage is now seen as the union of two equals, rather than simply a man taking possession of a woman. As we have seen, marriage has gone from most being performed religiously, to most being civil. Marriage between races was once prohibited, now miscegenation laws are (thankfully) a distant memory. The introduction of divorce laws, in the first instance, and then later of no-fault divorce, have both been welcome improvements to the operation of marriage, but have not fundamentally altered its underlying meaning.

That is why, although marriage itself may be traditional, and the exclusion of same-sex couples from marriage has a long history, support for the former does not mean hanging desperately onto the latter. The exclusion of lesbians and gay men from marriage is not an inherently good tradition, worthy of continuation, especially when we have finally reached a point as a society where we understand that all citizens should be treated equally, irrespective of sexual orientation or gender identity. At least a dozen other countries have shown that you can amend marriage laws, removing the homophobic exclusion of same-sex couples, and yet retain its core meaning (of recognising the love between two people). The tradition of marriage does not mean that it cannot or should not ever change. To the contrary, the tradition of social progress within Australia means that we must change the marriage law to be inclusive, to reflect the 21st century. That act will not weaken the institution of marriage, it will instead make it more relevant to a new generation of Australians.

Other arguments against same-sex marriage

There are a range of other arguments which are occasionally raised in ‘defending’ the institution of marriage from the homosexual invaders. They range from the ridiculous, to what are essentially distractions, to the downright homophobic, so I will only touch on them rather than delve into too much detail.

i)                    Same-sex marriage will devalue the marriages of opposite sex couples who are already married.

This argument goes something like: marriage has a particular meaning for some people, which appears to derive value from excluding same-sex couples, and so they will feel their relationship is lessened or cheapened if same-sex couples have access to it. It is hard to engage with people who hold this view. If your marriage relies on other people being discriminated against for it to survive, then you need to focus on your relationship more and what other people do less. After all, what will it matter if Sue and Sandra down the road get married? And where do you have room in your heart for the love of your spouse, when it is already full of intolerance for people who are different to you? Your marriage will not change if my fiancé and I get married. If you want to prefer to think of marriage as being between a man and a woman, then you are free to do so in the comfort of your own relationship. But don’t deny other people their rights because of your insecurity.

The apotheosis of this argument was recently put forward, in its most ridiculous form, by Frank Brennan. He stated that “[t]he Commonwealth Parliament should not legislate to change the paradigm of marriage unless and until the majority of persons living that paradigm seek a change.” This is a novel point of view. I would love to know whether this means women should have waited for the majority of men to eventually figure out that the sexes were equal before they demanded change, or for indigenous people to be satisfied with their second-class status while white folk decided whether they were good enough or not. All citizens have the right to hold an opinion about a law, and not just those people who currently have access to a particular institution. To say otherwise denies the democratic process, and the agency of people who are discriminated against to advocate for reform.

ii)                   There will be unintended, unspecified consequences of allowing equal marriage

This argument is always vague, because its proponents can never spell out what any of these consequences might be. Because they are scared of this particular change, they suspect that the sky might fall in. In practice, the only negative consequence of gay people getting married will be gay people eventually getting divorced – in just the same way as heterosexual couples already do. No one else would be affected.

iii)                 Other issues are more important that equal marriage

It is incredibly difficult to argue against this proposition because it is basically true. There are indeed many other more important issues in the world. But, this argument ignores the fact that as a society and as a parliament we are capable of concentrating on multiple issues at the same time. And it also underestimates how easy it would be to fix this particular problem – all it would take is one bill, amending the Marriage Act and instantly, equality achieved. It is difficult to say that about many other social issues (and, in a best case scenario, could be done by the middle of the year). It is incorrect to say same-sex marriage is a distraction if it is one so readily resolved.

iv)                 The slippery slope argument

This argument starts our descent into the territory of outright homophobia. It was the one raised recently by fundamentalist christians in the Great Hall of Parliament House, when they hysterically asserted that equal marriage for LGBTI citizens will lead to men marrying children or humans marrying animals (or even inanimate objects). Not only does it raise the utterly grotesque and offensive stereotype of ‘gay men as paedophile’ (when we know that most child sexual abuse happens within the heterosexual family unit), it also completely devalues the institution of marriage itself, as the union of two equals, based on love and consent. Those conditions cannot exist in the ridiculous examples listed. The people involved in making such arguments should be laughed at when they spout such nonsense.

v)                  Equal marriage will ‘promote’ homosexuality

This argument is often followed by ‘and will lead to homosexuality being taught in schools’. Again, this argument is fundamentally based on homophobia. Apparently, if we treat lesbians, gay men, bisexuals, transgender and intersex people as equal citizens, then this will result in other, ‘normal’ people catching one of these infectious letters of the alphabet, much like catching the flu. Leaving aside the fact that being any one of these things is a perfectly natural thing (in the same way that being heterosexual is natural), it also does not reflect the reality of my experience, or anyone else I know from the LGBTI community. Saying that being gay is normal, or teaching kids that society is incredibly diverse and includes people with different sexual orientations and genders, will not mean people ‘catch’ gay or transgender. But it might just mean that a kid who is questioning his or her sexuality or gender identity will find acceptance rather than bullying, and might ultimately be spared from becoming one of the sad statistics in our epidemic of sexuality-related youth suicide.

vi)                 Gay people are not equal and do not deserve equal rights

In one sense, the people who make this argument should be respected for at least being honest, and not trying to dress their homophobia up as defending religion, children or tradition. On the other hand, if you are alive in 2012 and genuinely believe that you deserve more rights than me because you are attracted to someone of the opposite sex and I am attracted to someone of the same sex, then I feel sorry for you – the modern world must be a truly scary place to live in when you hold those bigoted views. But guess what, it is only going to get worse for you from here on – society will keep on marching towards equality, and your views will look worse and worse as time goes by.

In summary, we have seen that there are no strong arguments against the recognition of equal marriage – in fact, there are no substantive arguments at all. And even more importantly, the introduction of equality will cause no harm whatsoever. The churches will not be harmed because they will be free to not celebrate same-sex weddings. It will not make any difference to couples who are already married, or opposite-sex couples who plan to get married (well, other than some more competition for wedding venues). It will not harm children to know that there are gay people in the world – indeed, it will help some as they themselves will be same-sex attracted and it may make their coming out much easier.

The only groups who claim they will be ‘harmed’ are bigots and homophobes, as if the granting of legal rights to others compromises their own rights. This is of course not true – they are free to continue to disagree with same-sex marriage, but they should not be free to impose their prejudice on others, nor abuse the legal system in order to do so.

Arguments in favour of same sex marriage

Of course, logically, the absence of a negative does not mean a positive. While there is no reason to oppose same-sex marriage, there needs to be a positive reason for the parliament to adopt a legislative change. From my perspective, there are four main reasons: love, equality, symbolism and health benefits.

i)                    Recognition of love

The main argument for the recognition of same-sex marriage is the same reason why we have marriage at all – to celebrate the love between two people. I have attended the weddings of my sister, of my brother, of other relatives and of friends. Each ceremony has been wonderful (well, with the exception of the mandatory ‘Ruddock clause’, where the current definition of opposite sex marriage is read out, presumably to rub in the noses of gays and lesbians in attendance – this offensive piece of hateful propaganda is unnecessary in a ceremony which is essentially about love). Each ceremony also involves the warm embrace of the couple, both literally and figuratively, by their family and friends.

The love between gay couples is no different to the love between opposite sex couples, and deserves to be recognised in exactly the same way. On a more personal level, I see no reason why the love which I share with my wonderful fiancé Steve, should not be celebrated by my family and friends too. Or why we cannot stand in front of our 100 nearest and dearest and say ‘I do’. In fact, I am conscious of the fact that my parents have already reached their mid-60s. If marriage equality is lost this year, then we may have lost the opportunity for reform for 10 or 15 years.

I would be absolutely devastated if either one of my parents were not able to be here to celebrate my legal marriage simply because some people within the federal parliament now are hard of heart and mean of spirit, and want to perpetuate the ongoing discrimination against same-sex couples within our marriage law. I know that Steve feels exactly the same way – he would be gutted if either of his parents, or his grandma, were not alive when we finally had the legal right to get married in our own country. I do not understand the mentality of any parliamentarian who believes they have the right to deny that to us.

ii)                   Equality

The second argument in favour of same-sex marriage is an even simpler one. That is, people should not be treated differently on the basis of sexual orientation or gender identity; straight, gay, lesbian, bisexual, intersex and transgender people all deserve the same human rights. We have reached the point in public debate when even most of the opponents of same-sex marriage (except the truly homophobic) concede that same-sex relationships deserve all the same ‘legal rights’ as opposite sex couples. They then go into complete logic meltdown when they try and justify why they actually mean ‘all the same legal rights – except marriage’ because there is no justification to restrict the fundamental principle of equality from applying to this right as well. If gay and straight are truly equal, then same-sex marriage is not only inevitable it is also essential.

iii)                 Symbolism

No-one should underestimate the strength of this argument. It is why the gay and lesbian community is arguing so passionately, and it is also why our homophobic opponents are so upset at the possibility. If as a society we say gay people can get married, then we are saying once and for all that ‘gay is okay’. Full stop. No exceptions. Our current level of acceptance of gay people is inherently qualified – you are okay but, you are equal except, you have most of the same rights, just not all. It has led to many LGBTI Australians, myself included, feeling permanently like second-class citizens. It is also one of the reasons why I believe the internet ‘It Gets Better’ project has been so powerful and so popular. Because our parliament refuses to tell young gay and lesbian people that they are full citizens, just as worthy as their straight counterparts, it has been up to private citizens to communicate that message to their younger counterparts. I can imagine a large and incredibly diverse range of the LGBTI community collectively shedding a tear when the federal parliament delivers equal marriage, a legislative equivalent of ‘It Gets Better’, to its citizens.

iv)                 Health benefits

I touched on this earlier, in responding to those who say same-sex marriage will promote homosexuality. I suspect they mean it will ‘convert’ people or make people ‘catch gay’ (which is patently ludicrous). But, if they mean it in the sense it will encourage people who are actually lesbian, gay, bisexual, transgender or intersex to accept themselves and live a happier life, then I say “Damn right!”

As most people would know, LGBTI youth are far more likely to suffer from depression, to attempt suicide or most tragically to take their own life. And as most people would know, many of these mental health problems stem from their lack of acceptance by friends, family and society at large. Being denied full equality is surely a part of this. As eloquently put by psychologist Paul Martin in the GetUp! ad on 19 November, “until we end institutionalised discrimination, same-sex attracted young people in particular will continue to suffer as a result of the message [of inequality] we are sending them”.

From personal experience, I know the pain of living in an environment which does not accept you. Growing up gay on a farm outside a small town in Queensland, with very conservative parents, and then attending a religious boarding school which made no secret of its disdain for homosexuals, I almost became one of the statistics – it is only through a combination of luck and strong will that I did not take my own life, where so many others have and sadly continue to do so. So I know that, while it would not change the world completely, introducing same-sex marriage would make things just that little bit brighter for young gays and lesbians around the country. And that can only be a positive thing.

You will note that I have excluded some of the other arguments which are commonly employed by some people. For example, I do not have a lot of time for the argument that introducing same-sex marriage will lead to an economic bonanza (that a pink wave of weddings will lead to a boom in related industries) because I think that this trivialises what is fundamentally a question of human rights.

I also do not include the growing acceptance of gay marriage, as evidenced through opinion polls, as a stand-alone justification for its introduction. I think the arguments for the introduction of same-sex marriage described above are so powerful, and the arguments against so weak, that it should be introduced irrespective of its level of community support, whether that be 20, 50 or even 80%. Human rights are human rights, and remain rights even if there is popular opposition to them.

So, we have seen that there are no substantive arguments against equal marriage, and strong arguments for its urgent introduction. Which means that the result should be straight-forward, shouldn’t it?

Civil unions are not the answer and would only be a distraction

I am growing concerned that, later this year, some parliamentarians may try and take the focus away from genuine marriage equality, and instead aim for ‘civil unions’. This worry derives from the fact that civil unions are a red herring which can easily distract otherwise sensible people from the goal of full equality. Superficially, the argument that some people have concerns about the term marriage, so why don’t we give same-sex relationships the same legal rights but call it something else (ie civil unions), is attractive. Everyone wins, right?

Wrong. Civil unions are a compromise that would satisfy no-one. Setting up an entirely new system of relationship recognition for LGBTI Australians would not end discrimination, instead it would perpetuate and entrench it. If we are trying to overcome the treatment of people as second-class citizens we would not give them a second-class relationship category. The principle of ‘separate but equal’ has been comprehensively debunked from Brown v Board of Education of Topeka 1954 onwards. Separate but equal can never be equal.

Civil unions would also only ever be a half-way house. Even in countries which have introduced civil unions as an attempted compromise, the movement for full marriage equality continues – and will likely ultimately succeed. Therefore, the introduction of civil unions here should not be countenanced, whether by people who see it is a useful stepping stone or others who see it as a useful tool to suppress or delay equality. I cannot put it any more bluntly than this – in 2012 nothing short of full equality will do. Other groups do not accept separate but equal status, and lesbian, gay, bisexual, transgender and intersex Australians will not accept second-class status either.

Conclusion

So, as has become clear through-out this submission, there are no strong public policy arguments against equal marriage, and several strong arguments in favour. No-one would be harmed by its introduction, and there are no other valid options except for full equality. So now is the time for our 226 elected representatives to live up to their collective responsibility and just get it done already.

One of the best aspects of this issue is just how easy it is to redress. It would take just one Act of parliament to achieve. There would be no cost involved to the government, and none to the citizen – with the exception of those couples who could then chose to enter into a marriage (a choice which should be theirs alone and not the choice of their parliamentarians to make on their behalf). There are very few times when parliament can do such a purely positive thing, to immeasurably increase the human happiness of their constituents, without any negative or cost. I implore you to take advantage of this opportunity now and not let it wait another 10 or 15 years.

I ask you that, because, on a personal level, I am engaged to a wonderful man and would dearly love to be able to get married in my own country, and to have as many of my family and friends to be there as possible. I met my fiancé Steve 2 weeks after my 30th birthday. I had begun to doubt that I might ever meet the one, and then suddenly there he was, right in front of me. He is the most wonderful partner I could ever imagine, and I love him with all my heart. We have been together for almost four amazing years, through thick and thin, and I hope that other couples, same-sex and opposite sex, have relationships as good as ours.

Steve and I got engaged over two years ago. At some point in the next year or two, we will have our wedding. Obviously, we are both looking forward to the celebration that entails. We have delayed naming the date in the hope that we might be able to do so in Australia, depending on what happens in federal parliament later this year. If marriage equality is passed, then we will be able to have around 100 of our nearest and dearest present with us for our special day.

But, in the event the legislation fails, then we do not see any way that it will be passed in the next five years (at least – and more likely 10). We would obviously not wait for the next Bill, and be engaged for potentially close to a decade, if not longer, but would be forced instead to go overseas and get married in a different country. While some people may think that this is romantic or an adventure, I think that it is profoundly disappointing.

It would mean that many of our friends, and at least some of our family members, will not be able to be there with us (whether that be because they have small children, it costs too much, they cannot take time off work, it is too far etc). Because Steve and I are a ‘normal’ engaged couple – in the sense that we both plan on only having one wedding in our lifetimes – this means that parliamentarians who vote no on marriage equality this year are effectively taking those people away from our ceremony, limiting the amount of people who can be there for our wedding day. I am acutely aware that those lost memories will never, ever be given back.

I hope that this is something which parliamentarians who are considering voting no think about before they cast their vote later this year. In fact, I would welcome the opportunity to be able to discuss the issue of marriage equality, face to face, because I am confident in the power of the arguments for, and in the weakness of the arguments against. However, given I will likely not be able to speak directly with those parliamentarians before the Bill, I would like to conclude my submission with a personal message, and a series of questions, just to them.

A message to the parliamentarians considering voting against marriage equality

To those MPs and Senators who are considering voting against legislation which would introduce marriage equality, I would like to make the following points:

  • Of all the bills which you will vote on in your entire parliamentary career, there will always be a group of people in the community who will judge you according to this particular vote, and whether you stood up for equality and love, or for discrimination and prejudice.
  • If you do not appreciate the characterisation of the issue in that way, then I am sorry, but you are going to have to get used to it. This vote is that simple – either you vote for equality or against, either you believe that lesbian, gay, bisexual, transgender and intersex Australians are first-class citizens, or you think they are inherently second-class.
  • Further, if you vote no on marriage equality, then please do not ever again say that you stand up for lesbian, gay, bisexual, transgender and intersex Australians, or believe that they deserve equal rights. If you do so, we will rightly point out your hypocrisy.
  • Down the track, if your views change and you come to regret your vote, then please do not say that you did not understand what you were doing at the time – the arguments have all been made, and you must be aware by now of the consequences of your actions.

And finally, I would like to leave you with the following questions to contemplate before you vote no:

  1. Have you told all of your gay and lesbian colleagues, staff, friends and family members that you think they are second-class citizens and deserve less legal rights than you?
  2. Have you considered how you are likely to reflect upon this vote in 20 years’ time – will you be proud of your actions in parliament, or will you try and disown them?
  3. Are you comfortable being remembered as someone who stood against the tide of progress, in the same way that we now consider someone who supported apartheid, or who supports discrimination against women or indigenous people?
  4. Will party allegiance or political considerations be enough to make you feel better for having voted against the human rights of your fellow citizens?
  5. Given we all know that marriage equality will eventually be achieved, at some point in the next two decades, what will voting against it this year actually achieve, other than simply delaying the inevitable?
  6. What would you say to an elderly lesbian, whose partner dies between now and when equal marriage is ultimately legalised, but who was never able to legally marry the person they love, at least in part because of your actions?
  7. How would you explain your vote to a mother or father, who simply wants to celebrate their gay son’s wedding, in exactly the same way they have celebrated the wedding of their heterosexual son and/or daughter?
  8. What message do you want to send to a same-sex attracted youth , growing up in a country town and having trouble accepting their sexuality in a society which does not value them as much as their straight peers?
  9. How will you feel, waking up the day after the vote, knowing that your actions have helped to break gay and lesbian hearts rights across the country?
  10. Finally, and most importantly, if you had a gay child or grandchild (or your best friend had a gay child or grandchild) could you honestly explain to them why you thought you were better than them, and that you deserved to have a legal right that they did not, just because you were straight and they were not?