Letter to Paul Lynch re LGBTI Anti-Vilification Reform

In June, NSW Shadow Attorney-General Mr Paul Lynch MP introduced the Crimes and Anti-Discrimination Legislation Amendment (Vilification) Bill 2016. Details of the Bill can be found here.

 

In short, the legislation seeks to implement the recommendations of the Legislative Council Standing Committee on Law and Justice’s 2013 Inquiry into Racial Vilification Law in NSW.

 

Importantly, in doing so the Bill ignores the Report’s (implicit) approach to treat racial vilification differently from the other forms of vilification currently prohibited by the Anti-Discrimination 1977: namely homosexual, transgender and HIV/AIDS vilification.

 

Just as importantly, however, the Bill fails to update the definitions of these grounds, and also fails to extend anti-vilification coverage to bisexual and intersex people in NSW.

 

The following is my letter to the Shadow Attorney-General about his Bill, sent before the return of State Parliament next week (Tuesday 2 August 2016).

 

**********

 

Mr Paul Lynch MP

Shadow Attorney-General

100 Moore St

Liverpool NSW 2170

liverpool@parliament.nsw.gov.au

 

24 July 2016

 

 

Dear Mr Lynch

 

LGBTI Anti-Vilification Reform

 

I am writing to you about your Crimes and Anti-Discrimination Legislation Amendment (Vilification) Bill 2016 (‘the Bill’), currently before NSW Parliament.

 

Specifically, I am writing to congratulate you on what is included in the Bill, while also encouraging you to amend the Bill to address other inadequacies within the NSW anti-vilification framework.

 

First, to the positives. I welcome the fact that the Bill removes one of the more bizarre and, in my opinion, completely unjustifiable aspects of the NSW Anti-Discrimination Act 1977 (‘the Act’) – that the penalties for the offences of serious racial and HIV/AIDS vilification are different to, and slightly higher than, the penalties for the offences of serious homosexual and transgender vilification.

 

By consolidating these offences in one place – the proposed new section 91N of the NSW Crimes Act 1900 – your Bill would ensure there is no difference in severity in how these offences are treated by the Government, and therefore avoids sending the signal that some forms of vilification are worse than others.

 

I also welcome the fact you have avoided one of the key pitfalls of the Legislative Council Standing Committee on Law and Justice’s Inquiry into Racial Vilification Law in NSW, which, given it exclusively focused on racial vilification, only suggested changes to the laws surrounding one of the four existing attributes that attract anti-vilification protection.

 

Were these recommendations to be implemented in their entirety (and no other changes made), it would exacerbate, rather than remove, the inequality in treatment between serious racial vilification and the three other current grounds (homosexual, transgender and HIV/AIDS vilification).

 

I further support the substantive amendments proposed in your Bill, including:

 

  • Removing the requirement for the Attorney-General to give consent to prosecution for any vilification offence
  • Extending the time within which prosecutions for vilification offences must be commenced from 6 months to 12 months (addressing a flaw in the current Act highlighted by the case of Simon Margan v Director of Public Prosecutions & Anor [2-13] NSWSC 44)
  • Adopting the recommendation of the Law and Justice Standing Committee report that recklessness is sufficient to establish intention to vilify
  • Clarifying which public acts constitute unlawful vilification
  • Providing that vilification applies whether or not the person or members of the group vilified have the characteristic that was the ground for the promotion of hatred, contempt or ridicule concerned, and
  • Ensuring that the President of the Anti-Discrimination Board refers vilification complaints to the Commissioner of Police where the President considers that the offence of serious racial, transgender, homosexual or HIV/AIDS vilification may have been committed.

 

In terms of the proposal to replace ‘incitement’ with ‘promotion’ within the definition of vilification itself, while I have not had the opportunity to examine this amendment in great depth, on a prima facie basis it appears reasonable.

 

Finally, I agree with your decision to relocate the offence of serious vilification to the Crimes Act 1900, for the reasons outlined in your Second Reading Speech:

 

“Certainly, the legal effect of a provision should be the same whether it is located in the Crimes Act or in the Anti-Discrimination Act. However, there is significant symbolism in the provision being located in the Crimes Act in the new section 91N. And symbolism, as everyone in this Chamber knows, is important.”

 

Now, I will turn my attention to the shortcomings of the Bill and, unfortunately, in my opinion they are significant.

 

Specifically, while what the Bill includes is to be welcomed, it is flawed because of what it excludes. It fails to address one of the main problems of the Anti-Discrimination Act 1977, which is that it only protects some parts of the lesbian, gay, bisexual, transgender and intersex (LGBTI) community, and not others.

 

As I have detailed elsewhere (see “What’s wrong with the NSW Anti-Discrimination Act 1977?”), the out-dated terminology used in the Act means that only lesbian, gay and transgender people are protected (and even then not all transgender people are covered).

 

Meanwhile, there is still no anti-vilification protection for bisexual people, or for intersex people, in NSW (with the absence of Commonwealth LGBTI anti-vilification laws only compounding this problem).

 

In my view, the limited coverage offered by the NSW anti-vilification framework is an even greater problem than those issues identified by the Standing Committee on Law and Justice’s Inquiry into Racial Vilification Law.

 

As such, I believe this issue should be addressed before, or at least simultaneously to, those provisions contained in your Bill. Otherwise, the differential treatment of groups within the LGBTI community would only become further entrenched.

 

For these reasons, I strongly encourage you to consider amending your Bill to ensure that all sections of the LGBTI community are protected against vilification. To achieve this, you may wish to incorporate the definitions included in the historic Commonwealth Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013.

 

This would involve:

 

  • Replacing the current protected attribute of homosexual with ‘sexual orientation’ (and which would therefore cover bisexual people)
  • Amending the protected attribute of transgender to the more inclusive term ‘gender identity’, and
  • Introducing the new protected attribute of ‘intersex status’.

 

If you are interested in pursuing these changes then I also encourage you to consult with the LGBTI community, and its representative organisations, beforehand (to ensure that any consequential difficulties are avoided).

 

To conclude, and despite the issues described above, I genuinely welcome the provisions contained in the Crimes and Anti-Discrimination Legislation Amendment (Vilification) Bill 2016. However, by extending the scope of vilification offences to protect bisexual and intersex people, I sincerely believe you would significantly improve your legislation.

 

Thank you for your consideration of this letter. I am of course happy to discuss any of the issues raised at the contact details provided below.

 

Sincerely,

Alastair Lawrie

 

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NSW Shadow Attorney-General Paul Lynch

 

What’s Wrong With the NSW Anti-Discrimination Act 1977?

This post is part of a series looking at anti-discrimination laws around Australia and examining how well, or how poorly, they protect lesbian, gay, bisexual, transgender and intersex (LGBTI) people against discrimination and vilification.[i]

 

This includes analysing three key issues: protected attributes, religious exceptions and anti-vilification coverage. Unfortunately, as we shall see below, the Anti-Discrimination Act 1977 has serious shortcomings in all of these areas, and NSW has gone from having the first gay anti-discrimination laws in Australia, to having (arguably) the worst.

 

It is clear this legislation is in urgent need of major reform. What is less clear is whether the current NSW Government, and Parliament, is up to the task.

 

Protected Attributes

 

As indicated above, NSW was the first jurisdiction in Australia to introduce anti-discrimination protections for ‘homosexuals’. In fact, it passed these laws in late 1982, 18 months before homosexuality was decriminalised, meaning a gay man could not be discriminated against for who he was (in some areas of public life at least), but could still be convicted for having sexual intercourse in private. The problem is that the protected attributes included in the Anti-Discrimination Act 1977 have not kept pace with community standards in the decades since.

 

There was one positive clarification in 1994 that “homosexual means male or female homosexual”[ii] (to overcome any erroneous assumption that homosexuality only referred to gay men). However, the only significant expansion in the past 35 years was the introduction of transgender as a protected attribute in 1996:

 

Section 38A Interpretation

A reference in this Part to a person being transgender or a transgender person is a reference to a person, whether or not the person is a recognised transgender person[iii]:

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

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

(c) who, being of indeterminate sex, identifies as a member of a particular sex by living as a member of that sex,

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

 

While this reform was a major step forward, it nevertheless failed to cover all discrimination on the basis of gender identity. This protected attribute focuses only on binary genders – covering people whose sex was designated as male at birth, but now identify as female (and vice versa). It does not cover other people along a more inclusive spectrum, including people who do not identify exclusively as either male or female.

 

Section 38A of the NSW Anti-Discrimination Act 1977 is therefore no longer best practice, and a new, more inclusive definition[iv] should be adopted to ensure all transgender people benefit from anti-discrimination protection.

 

Intersex people are even worse off under the Act. Paragraph (c) of the definition above offers their only protection under NSW law, but it is problematic because:

  • It inappropriately conflates intersex, which relates to physical sex characteristics, with gender identity, and
  • It only appears to protect people with intersex variations where they identify as either male or female.

 

To remedy this situation, a stand-alone protected attribute of ‘sex characteristics’ should be introduced, based on the March 2017 Darlington Statement by intersex activists.[v]

 

There is, however, one section within the LGBTI community that is not included in the entire Anti-Discrimination Act, not even in an out-dated, fundamentally flawed or only partial way. In fact, one of the five letters of the acronym has no anti-discrimination coverage at all: bisexual people.

 

NSW is the only jurisdiction in Australia where its anti-discrimination laws do not cover discrimination on the basis of bisexuality. That is as bizarre as it is offensive.

 

It must be remedied at the earliest possible opportunity by the NSW Parliament, with either the introduction of a new stand-alone protected attribute of ‘bisexual’, or (preferably) by the modernisation of the current protected attribute of ‘homosexual’ to instead refer to ‘sexual orientation’, in line with the Commonwealth Sex Discrimination Act 1984[vi].

 

Summary: The protected attributes contained in the NSW Anti-Discrimination Act 1977 are the narrowest in the country, only offering protection to gay men, lesbians, and some transgender people. It needs to be updated to ensure it covers gender identity and sex characteristics, as well as extending anti-discrimination protection to bisexual people, whose exclusion is a gross oversight that has been allowed to stand for far too long.

 

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Religious Exceptions

 

In contrast to its narrowly-defined protected attributes, the religious exceptions included in the NSW Anti-Discrimination Act are in fact the broadest in Australia.

 

These loopholes allow religious organisations to discriminate against lesbian, gay and transgender people in a wide variety of circumstances, and are so generous that they substantially, and substantively, undermine the overall purpose of the legislation (which is supposedly “[a]n Act to render unlawful racial, sex and other types of discrimination in certain circumstances and to promote equality of opportunity between all persons”).

 

The main exceptions permitting anti-LG&T discrimination by religious organisations are found in section 56 of the Act:

 

Section 56 Religious bodies

Nothing in this Act affects:

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

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

(c) the appointment of any other person in any capacity by a body established to propagate religion, or

(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.”

 

While sub-sections (a) and (b) might appear reasonable, as they are at least related to the internal training and appointment of ministers of religion, sub-sections (c) and especially (d) are outrageous in their breadth, essentially sanctioning discrimination against lesbian, gay and transgender employees and people accessing services in any organisation that is considered ‘religious’, including schools, hospitals and social services.

 

The operation of these provisions, and sub-section 56(d) in particular, in giving effective carte blanche to religious organisations to discriminate on the basis of sexual orientation and gender identity in NSW was confirmed in a 2010 decision of the Court of Appeal[vii], allowing Wesley Mission to discriminate against a male same-sex couple who had applied to be foster carers to children in need.

 

Wesley successfully defended its prejudiced approach on the basis that “[t]he biblical teaching on human sexuality makes it clear that monogamous heterosexual partnership within marriage is both the norm and ideal.”[viii] This was in spite of the fact Wesley allowed single men and women to be carers (apparently they believed two dads or two mums had less to offer than one).

 

The ‘right to discriminate’ provided to religious organisations by section 56 of the NSW Anti-Discrimination Act 1977 is essentially without restriction. And this general ability to exclude lesbian, gay and transgender people in NSW is supplemented by additional loopholes covering specific areas of public life.

 

One of these covers discrimination in adoption services. While the equal right of same-sex couples to adopt was recognised in NSW law in 2010, those very same reforms inserted the following into the Anti-Discrimination Act 1977:

 

Section 59A Adoption services

(1) Nothing in Part 3A [transgender protections] or 4C [homosexual protections] affects any policy or practice of a faith-based organisation concerning the provision of adoption services under the Adoption Act 2000 or anything done to give effect to any such policy or practice.”

 

Which means that a religious organisation that operates an adoption service is legally permitted to deny a child the best possible adoptive parents solely because they might be lesbian, gay or transgender.

 

Perhaps the most (in)famous exceptions in the Act are those that apply to ‘private educational authorities’.[ix] Even though subsection 56(d) already allows religious schools to do whatever they want in relation to lesbian, gay and transgender teachers and students, NSW Parliament added specific clauses to ensure that private educational authorities can:

 

  • Discriminate against transgender employees[x]
  • Discriminate against transgender students, including by refusing their admission, attaching conditions to their admission, denying them benefits as a student, or by expelling them[xi]
  • Discriminate against lesbian and gay employees[xii] and
  • Discriminate against lesbian and gay students, including by refusing their admission, attaching conditions to their admission, denying them benefits as a student, or by expelling them[xiii].

 

Imagine considering it justified to seek special privileges to discriminate against these groups, let alone for State Parliament to condone such discrimination via legislation?

 

Perhaps the most extraordinary part of the ‘private educational authorities’ exceptions is that they aren’t even restricted to religious schools – in fact, the Anti-Discrimination Act 1977 allows all non-government schools and colleges, even where they have absolutely nothing to do with religion, to refuse to employ lesbian, gay and transgender people, and exclude or expel LG&T students.

 

Summary: The religious exceptions contained in the NSW Anti-Discrimination Act 1977 are the broadest in Australia, and fundamentally undermine the integrity of a framework which is supposed to address discrimination on the basis of sexual orientation and gender identity. Subsections 56(c) and (d) should be repealed, as well as the more specific exceptions offered to religious organisations in relation to adoption services, and those allowing private educational authorities to discriminate against lesbian, gay and transgender employees and students.

 

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Anti-Vilification Coverage

 

There is one area where anti-discrimination law in NSW has improved recently, and that is anti-vilification coverage, with the passage of the Crimes Amendment (Publicly Threatening and Inciting Violence) Act 2018.

 

However, because this was a piecemeal change, rather than part of a comprehensive reform package, it means NSW is left with a two-tier, fundamentally inconsistent anti-vilification regime.

 

On one hand, the civil prohibitions against vilification contained in the Anti-Discrimination Act 1977 only apply to homosexuality [xiv] and (narrowly-defined) transgender [xv] .

 

This means that bisexuals, non-binary trans people and people with intersex variations are not able to make complaints of vilification to the Anti-Discrimination Board.

 

On the other hand, the new Crimes Act 1900 offence of ‘publicly threatening or inciting violence’ in section 93Z applies to all of:

  • Sexual orientation
  • Gender identity and
  • Intersex status.

 

All three are defined in section 93Z(5) [xvi] using the broadly-inclusive definitions of the Commonwealth Sex Discrimination Act 1984, and mean that bisexuals, non-binary trans people and people with intersex variations are protected in NSW anti-discrimination laws for the first time (although note that, once again, intersex advocates have called for intersex status to be replaced by the protected attribute of sex characteristics). [xvii]

 

The penalty for this offence is also relatively high: up to three years imprisonment for individuals, and up to 500 penalty units for corporations.

 

Summary: The 2018 anti-vilification reforms are welcome, both for bringing anti-LGBTI vilification provisions into closer alignment with other forms of vilification, and also for including bisexual, non-binary trans and intersex people for the first time. However, if anything, these changes have underscored just how out of date the other anti-vilification provisions of the Anti-Discrimination Act itself are, given it still covers only lesbian, gay and some trans people. This remains an area in desperate need of reform.

 

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Other Issues

 

While the ‘What’s Wrong With’ series concentrates on the three main areas of protected attributes, religious exceptions and anti-vilification coverage, I will also raise other issues relating to LGBTI anti-discrimination laws where they are significant.

 

In the case of the NSW Anti-Discrimination Act 1977, these include:

 

  • An incredibly broad exception allowing “the exclusion of a transgender person from participation in any sporting activity for members of the sex with which the transgender person identifies”[xviii]
  • An inappropriate exception allowing superannuation funds to “treat… the transgender person as being of the opposite sex to the sex with which the transgender person identifies”[xix] and
  • Perhaps most alarmingly, exceptions which allow employers to discriminate against lesbian, gay and transgender applicants and employees “if the number of persons employed by the employer… does not exceed 5”[xx].

 

In fact, a similar exception also permits discrimination in relation to the ground of sex[xxi] – but no such limitation applies to race[xxii].  Which means that the NSW Parliament has effectively determined that racial discrimination cannot be tolerated in employment in any circumstances – but discrimination against lesbians, gay men, transgender people and even women is acceptable in some circumstances. That message is unconscionable, and these provisions must be made uniform (by abolishing the exceptions applying to homosexual, transgender and sex discrimination in employment).

 

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In conclusion, it is clear that, while NSW once had the first gay anti-discrimination laws in Australia, it now has (arguably) the nation’s worst LGBTI laws – with significant problems in terms of protected attributes and religious exceptions, and serious shortcomings where it does have anti-vilification coverage. These and other issues must be addressed by the Government, and Parliament more broadly, as a matter of priority.

 

NSW ADA homosexuality 1982

NSW was the first Australian jurisdiction to introduce anti-discrimination laws covering any part of the LGBTI community – but 36 years later still doesn’t protect bisexual or intersex people.

 

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Footnotes:

[i] The other posts in the series can be found here: LGBTI Anti-Discrimination / #NoHomophobiaNoExceptions

[ii] Section 4 Definitions.

[iii] From section 4: “recognised transgender person means a person the record of whose sex is altered under Part 5A of the Births, Deaths and Marriages Registration Act 1995 or under the corresponding provisions of a law of another Australian jurisdiction.”

[iv] Potentially modelled on the definition adopted by the Commonwealth Sex Discrimination Act 1984: “gender identity means the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth” [Although obviously exact wording should be agreed with NSW’s transgender community.]

[v] OII Australia, and other intersex activists from Australia and Aotearoa/New Zealand, issued the Darlington Statement as a call for wide-ranging law and policy reforms, including ‘for effective legislative protection from discrimination and harmful practices on grounds of sex characteristics’ (paragraph 9, here).

This terminology (‘sex characteristics’) is intended to replace the previous protected attribute of ‘intersex status’, as included in section 4 of the Sex Discrimination Act 1984, and defined as: “intersex status means the status of having physical, hormonal or genetic features that are:

(a) neither wholly female nor wholly male; or

(b) a combination of female and male; or

(c) neither female nor male.”

[vi] Section 4 of the Sex Discrimination Act 1984 states ““sexual orientation” means a person’s sexual orientation towards:

(a) persons of the same sex; or

(b) persons of a different sex; or

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

[vii] OV & OW v Members of the Board of the Wesley Council [2010] NSWCA 155 (6 July 2010).

[viii] OW & OV v Members of the Board of the Wesley Mission Council [2010] NSWADT 293 (10 December 2010).

[ix] Defined in section 4 as “private educational authority means a person or body administering a school, college, university or other institution at which education or training is provided, not being:

(a) a school, college, university or other institution established under the Education Reform Act 1990 (by the Minister administering that Act), the Technical and Further Education Commission Act 1990 or an Act of incorporation of a university, or

(b) an agricultural college administered by the Minister for Agriculture.”

[x] Section 38C prohibits discrimination against transgender applicants and employees, but subsection (3)(c) clarifies that this prohibition does not apply to discrimination by private educational authorities.

[xi]Section 38K Education

(1) It is unlawful for an educational authority to discriminate against a person on transgender grounds:

(a) by refusing or failing to accept the person’s application for admission as a student, or

(b) in the terms on which it is prepared to admit the person as a student.

(2) It is unlawful for an educational authority to discriminate against a student on transgender grounds:

(a) by denying the student access, or limiting the student’s access, to any benefit provided by the educational authority, or

(b) by expelling the student or subjecting the student to any other detriment.

(3) Nothing in this section applies to or in respect of a private educational authority.”

[xii] Section 49ZH prohibits discrimination against lesbian and gay applicants and employees, but, just like for transgender people, subsection (3)(c) clarifies that this prohibition does not apply to discrimination by private educational authorities.

[xiii]Section 49ZO Education

(1) It is unlawful for an educational authority to discriminate against a person on the ground of homosexuality:

(a) by refusing or failing to accept the person’s application for admission as a student, or

(b) in the terms on which it is prepared to admit the person as a student.

(2) It is unlawful for an educational authority to discriminate against a student on the ground of homosexuality:

(a) by denying the student access, or limiting the student’s access, to any benefit provided by the educational authority, or

(b) by expelling the student or subjecting the student to any other detriment.

(3) Nothing in this section applies to or in respect of a private educational authority.”

[xiv] Section 49ZT

[xv] Section 39S

[xvi] Gender identity means the gender related identity, appearances or mannerisms or other gender related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth.

Intersex status means the status of having physical, hormonal or genetic features that are:

  • neither wholly female nor wholly male,
  • a combination of female and male, or
  • neither female nor male.

Sexual orientation means a person’s orientation towards:

  • persons of the same sex, or
  • persons of a different sex, or
  • persons of the same sex and persons of a different sex.

[xvii] Interestingly, it also means heterosexual people are covered by the publicly threatening or inciting violence offence in the Crimes Act 1900, although they still don’t have any coverage under the Anti-Discrimination Act 1977 itself (for discrimination, or civil complaints of vilification).

[xviii] Section 38P. It is hoped that, given the work in recent years by transgender groups, the Australian Human Rights Commission and Australian sporting organisations, these provisions could be amended if not repealed entirely in future years.

[xix] Section 38Q.

[xx] Included in both sub-sections 38C(3)(b) and 49ZO(3)(b).

[xxi] Section 25(3)(b).

[xxii] Section 8, which covers Discrimination against applicants and employees on the ground of race, does not include any exception based on the number of employees that an employer has.

In search of the elusive gay or bisexual male tennis player

As we enter the second week of the Australian Open, it is time, for yet another year, to call off the search party for that rare beast, the Australian singles quarter-finalist. Not seen since 2009, this critically-endangered animal is quickly going the way of its relative, the Australian winner, not seen since 1976 (male) and 1978 (female) respectively, and now presumed extinct.

But, believe it or not, there is at least one creature in tennis which is even rarer, indeed almost mythical – the openly gay or bisexual male tennis player.

In the long history of this genteel sport, there have been only two male tennis players of note who have been linked to homo- or bi-sexuality, and both had tragic personal stories. The first, 1930s German world number 1 and dual French Open winner, Gottfried Von Cramm, was jailed for 6 months by the Nazi regime for ‘morals charges’, as the result of an affair with another man.

The second, the great Bill Tilden of the US, the best player in the world in the 1920s and winner of 3 Wimbledons and 7 US Opens, was twice jailed after his career had finished for male same-sex encounters (one with a 14 year old sex worker and a second with a 16 year old hitchhiker – their respective ages certainly making this a more complicated case to ‘categorise’).

Bill Tilden. Source: Sports Illustrated.

Bill Tilden. Source: Sports Illustrated.

There have been no openly gay or bisexual male players in the post-Second World War period, and certainly none of any note in the Open era.

Contrast this with the cavalcade of greats from the women’s game known to have been lesbian, bisexual or, at the very least, to have been in same-sex relationships. This includes greats like Helen Jacobs (winner of 5 grand slams); Billie Jean King (12 grand slams), who was famously outed through a ‘palimony’ lawsuit from an ex-partner; Martina Navratilova, winner of 18 slams who voluntarily came out in 1981 early in her career; and Hana Mandlikova, winner of 4 slams (and who, towards the end of her career, became an Australian citizen).

They are joined by some of the best doubles players of the past 30 years as well, including Gigi Fernandez (winner of 17 Grand Slam doubles titles and 2 Olympic gold medals), Lisa Raymond (6 Grand Slam doubles titles) and our own Rennae Stubbs, winner of 4 Grand Slam doubles titles and a 4-time Olympian.

Perhaps the most famous lesbian player of the past 15 years was Amelie Mauresmo, the Frenchwoman who made the Final of the Australian Open in 1999, and ‘came out’ at the same time, acknowledging her girlfriend Sylvie. All that, at 19 years of age (as an aside, it is worth noting that one of the players who, at least early in her career, had a reputation for being mentally fragile on the court, was incredibly strong off it). Mauresmo went on to become world number 1, and won both the Australian Open and Wimbledon Championships later in her career.

Amelie Mauresmo. Source: The Guardian.

Amelie Mauresmo. Source: The Guardian.

In 2013, in a sign of how far the women’s tour has come, Australia’s Casey Dellacqua came out via a short statement announcing the birth of her and her partner Amanda’s son, Blake. About the only consequence of that announcement has been an increase in questions from reporters about how she manages life on tour with a new-born.

It is fair to say that, when a male player does eventually come out, it will provoke a much larger response, from the tennis community, the media and of course the fans. Unlike other sports, this will not necessarily be because men’s tennis is, in an inherently sexist view, deemed more important than the women’s game (because of the wonderful work of people like Billie Jean King, gender inequality is far less in tennis than elsewhere), but simply because the novelty of a men’s tennis player coming out will make it big news.

But why is it novel? Why, when tennis as a sport has shown itself to be at ease with the concept of openly lesbian or bisexual female players, has no male player felt sufficiently at ease to come forward and identify himself? Is there such a fundamental difference between the men’s and women’s tours?

Now, I will preface the rest of this article by saying that I am not an ‘insider’ on the men’s tour, and don’t know of any gay or bisexual male players (nor am I going to play the ‘is he or isn’t he’ game of speculation – sorry). But the following are some reasons which I believe might help explain why a tennis player would choose not to come out (and, where relevant, why that factor might be more relevant for a male player):

Tennis is a truly global sport. In an age of increasing world-wide sporting competition, there are still surprisingly few sports that could be considered truly global – meaning sports that compete on each continent, and draw elite players from each continent. Tennis is one, alongside athletics and soccer and, well, I’m struggling to think of too many others. Possibly not coincidentally, soccer and athletics have also been sports where, male players in particular, have not come out until relatively recently (Robbie Rogers and Thomas Hitzlsperger in the last 18 months finally joining their tragic earlier standard-bearer in football, Justin Fashanu).

With at least 72 countries around the world still criminalising homosexuality (and some of those only criminalising male, rather than female, same-sex sexual intercourse), the threat of having to play in a country where you are considered a criminal must be a relevant consideration. Of course, most players set their own schedules, and none of the Grand Slams or compulsory Masters tournaments are held in countries where homosexuality is criminalised. Even the End of Year Championships, which moves around, hasn’t been held in a city with operative ‘anti-sodomy’ laws since New York in the late 1970s.

However, the Davis Cup (at least until 2018) was held annually in countries all around the world, on a rotating home-and-away basis. This format meant that, in 2013, Australia played ties in Chinese Taipei, Uzbekistan and Poland. Of those, Uzbekistan has laws criminalising male, but not female, homosexuality (by up to 3 years imprisonment). With some countries, like Australia, placing a high emphasis on players representing their country in Davis Cup, this must make it a more difficult calculation to decide whether to come out in tennis, compared to an athlete in a domestic-only sport (for example, Australian rules football).

Elite tennis players earn more ‘off-court’ than on. While tennis prizemoney has increased exponentially since the beginning of the Open era (and probably makes Billie Jean King simultaneously wince, and feel satisfied), the bounty to be had off-court, at least by the very top players, is even greater. For example, Forbes magazine estimated in August 2013 that, over the previous 12 months, Roger Federer earned $71.5million, including ‘only’ $6.5million in prizemoney versus $65million in endorsements.

On the women’s side, 2013’s top earner (and incidentally the highest-paid female athlete in the world at the time) Maria Sharapova earned an estimated $29million, with $6million from prizemoney and $23million in endorsements. For some players, this disparity is even greater – Kei Nishikori earned $10.5million, with ‘just’ $1.5million coming from on-court activities.

The reason is that tennis players are truly marketable commodities, both globally and within each country, or to put it bluntly, ‘market’, especially to consumers with higher average levels of disposable income. For a player to come out, in a world where more than one third of countries criminalise homosexuality, means potentially making themselves unsaleable in a large number of markets.

This consideration is even more acute when you consider that one way in which elite players line their pockets during the off-season is to play exhibition matches, increasingly staged in oil-rich Middle Eastern countries (often with their own laws against homosexuality). It is possible that an openly gay male player’s invitation could get ‘lost in the mail’ in such circumstances.

In short, elite tennis players – or those with an aspiration of being an elite player at some stage in their career (nearly all young players) – may still have a genuine financial incentive to stay in the closet. Again, this would be different from an athlete in a domestic-only sport, whose consideration about off-field sponsorship only depends on the reaction of sponsors within one country, and therefore may feel my able to come out when social attitudes within that country change.

The men’s tour may have a more homophobic culture than the women’s tour. As indicated earlier, I am not a tennis insider, so this is largely speculation. But, from an outsider’s perspective, it certainly seems like there is some evidence to support this assertion. For example, it is difficult to imagine a player on the women’s tour making the following comments, both before and after winning a major championship, and largely getting away with it:

Before the championship, at Queens: “Last year I played well here and played like a faggot at Wimbledon… Better to play like a faggot here and play well at Wimbledon.” And then, after winning: “Then I hit another serve, huge. And that ball was on the line, was not even close. And that guy, he looks like a faggot little bit, you know. This hair all over him. He call it. I couldn’t believe he did it.” Goran Ivanisevic, Wimbledon winner 2001 (and later back on tour as the coach of fellow Croatian Marin Cilic).

Australia’s own Lleyton Hewitt has similar form. In 2005, he finally experienced some reprobation for yelling out “Poof” on court. Years earlier – at the End of Year Championships in Shanghai, 2002 – I remember watching Hewitt shout, on multiple occasions, “Poofter”, when he lost points. The Australian television commentator remarked at the time “I think Hewitt thinks he will get away with this in China” and he pretty much did – despite much larger previous backlashes when he made remarks based on disability and race.

Contrast this with the reaction of one of the then youngest players on tour, the UK’s Laura Robson, who in a dignified yet steadfast manner supported the ‘rainbow’-coloured protests in 2012 following comments by notorious homophobe, and one-time tennis player, Margaret Court*. From memory, no male players joined that protest – and I doubt many would if similar circumstances arose today.

On the flipside, there are some reasons why, theoretically at least, it should be easier for a tennis player to come out than athletes in other sports.

First, competitive tennis is largely an individual sport. Yes, there is doubles, but finding an open-minded playing partner must surely be more likely than expecting every single member of a football team to be supportive. Indeed, the women’s doubles greats, listed above, and including Martina Navratilova, never seemed to encounter too much of a problem recruiting partners (although that might also be because they were so good that the promise of winning would overcome most obstacles). And, while there are some teams competitions throughout the year (most importantly Davis Cup for men and Federation Cup for women), these are only for short time periods, with many elite players opting out of them from time to time.

In my opinion, tennis is such an individual sport that it is almost individualist – in that it encourages, and has a long history of, strong characters breaking out of any box that seeks to capture them, and doing things their own way, both on court and off (see: McEnroe, John; Connors, Jimmy). It doesn’t seem outrageous to think that a gay male player could similarly have struck out on their own, saying “That’s how I play, this is who I am, deal with it.”

A second factor making it potentially easier for a gay or bisexual male player to come out now is the rapidly ageing nature of the men’s tour. Contrary to earlier generations, the average age of the men’s top 10 is now more than 30 years old (as at the end of 2018).  Indeed, only two players in the top 10 are younger than 29: Alexander Zverev at 21 years and 8 months, and Dominic Thiem at 25 years and 3 months.

Further, while there are currently a number of exciting young players inside the top 100, or just outside (Stefanos Tsitsipas, Denis Shapovalov, Felix Auger-Aliassime, Alex De Minaur, Frances Tiafoe, Taylor Fritz, Reilly Opelka, Casper Ruud, Andrey Rublev, Miomir Kecmanovic, Ugo Humbert, Alexei Popyrin, Corentin Moutet and Alejandro Davidovich Fokina), all of them are already older than both Boris Becker when he won Wimbledon and Michael Chang when he won the French Open.

An ageing tour should help because it is probably not reasonable to expect everyone to ‘do a Mauresmo’ and come out at age 19 (heck, I was nervous enough telling my family at that age, let alone the whole world). But it is reasonable to think that, as players mature during their 20s, and even play on until their early to mid 30s, at least one, and possibly more, might eventually feel comfortable enough to disclose their sexual orientation while still playing.

A third reason why a gay or bisexual male player should find it somewhat easier to come out today is that so many women have already done so. Players like Mauresmo, and Navratilova, and Raymond and Dellacqua (and recently Alison Van Uytvanck), have all shown that it is possible to disclose one’s sexuality and remain active through the week-in, week-out grind of the tennis tour.

Of course, in doing so, they have had to overcome the very same barriers I outlined earlier. They have all had to negotiate the vagaries of the global tour, and decide whether to play in countries with higher levels of homophobia, including places where female same-sex sexual activity is banned.

And they have had to confront a very real, and demonstrated, loss of sponsorship. Billie Jean King’s endorsements basically dried up the day after she was so publicly outed. Martina Navratilova probably earned an order of magnitude less off-court than she would have had she not revealed who she was. Even Amelie Mauresmo likely lost out financially, potentially millions of Euros, because of her courage at age 19.

Martina Navratilova. Winner on-court, missed out on endorsements off-court. Source: The Guardian.

Martina Navratilova. Winner on-court, missed out on endorsements off-court. Source: The Guardian.

Bisexual female and lesbian tennis players have also had to overcome homophobia on the tour. Mauresmo had to withstand not-very-subtle ‘plays like a man’ critiques in 1999 from other players like Martina Hingis and, in a lapse of judgment, Lindsay Davenport. But, and this is the important part, both were forced to apologise. In that same year, US player Alexandra Stevenson’s mother commented during Wimbledon that her daughter needed to be protected from “lesbians in the locker-room”. This time around, Davenport was on the right side of the debate, and called the comments out as bizarre and ignorant.

In short, the very existence of openly lesbian players has brought forward the arguments around homosexuality, on court and in the stands, and those arguments have been won – at least on the women’s tour. King, and Navratilova, and Mauresmo, and others, have had to fight these battles, and have eventually emerged victorious, together with the help of allies (some of whom themselves needed to be educated).

Which brings me to my almost prosaic conclusion: no gay or bisexual male player has come out in the open era because none have chosen to take on that fight. For whatever reason, as individuals – not just tennis players, but humans – each man has decided that taking on that battle, with at least some attendant personal cost, is not in their own interest. That is an understandable conclusion for an individual to arrive at, separately.

Even so, as each year brings more players onto the tour, it brings us closer to the point where a player (or multiple players) will look at those same factors, and reach the opposite view. Surely we cannot be too many years away from a male tennis player casually talking about his boyfriend in a post-match interview, releasing a statement that he and his husband have had a child together, or even going to the Wimbledon Winners’ Ball together (which would be a pretty awesome way to come out, come to think of it).

Casey Dellacqua. Where is out male equivalent? Source: Sydney Morning Herald

Casey Dellacqua. Where is our male equivalent? Source: Sydney Morning Herald

For this tennis-mad LGBTI activist, I hope that day is not too far away. Not just because it would add to the already long list of same-sex attracted tennis players to look up to but, if Australian singles players continue to under-perform at home as they have done in the recent past, having an openly gay or bisexual male player might give me someone to barrack for in the second week of the next Australian Open.

 

UPDATE 18 January 2016:

With this year’s Australian Open starting today, I thought I would take a look back on this post, to see what has changed during the past two years. The answer is: lots, and not very much at the same time.

Australian tennis has rediscovered what it is like to have players reach the Australian Open quarter-finals, with Nick Kyrgios achieving the feat last year (2015), and he and Bernard Tomic possibilities to do so again this year and into the future.

Amelie Mauresmo continues to break down barriers, this time as coach, since June 2014, of men’s world number 2 Andy Murray.

The ‘ageing’ trend amongst the male tour might finally be on the cusp of slowing down, and eventually reversing. While the upper echelon remains, for now at least, older than any generation in memory (the only player under the age of 28 inside the current top ten is Kei Nishikori, and even he is 26), there is a large group of new young players who appear of the cusp of breaking through.

Nick Kyrgios (ranked 30) and Thanasi Kokkinakis (ranked 86) have youthful company inside the top 100 with Borna Coric, Hyeon Chung and Alexander Zverev (currently ranked 40, 51 and 83 respectively), and look likely to be joined by Karen Khachanov, too.

While I wrote in the original post that older players might stand more chance of coming out on their own terms, it is also possible that this new generation of players will shake things up in more ways than just their on-court play.

The past few years have also seen an acceleration of the welcome trend for currently-active male professional athletes to come out as either gay or bisexual. Most prominently Michael Sam came out as gay just two weeks after my original post, with Jason Collins also becoming the first openly gay man to play in the NBA that same month (having come out publicly the previous year). They have been joined by male athletes across a wide range of sports, including New Zealand Olympic rower Robbie Manson and US Winter Olympic freestyle skier silver medallist Gus Kenworthy, among others.

Of course, one thing that hasn’t changed is that there remains no out gay or bisexual male tennis players. That is a fact that still astounds me. I had thought, when writing the original post, that it was only a matter of months, or potentially just a year or two, before a player would finally break down that particular closet door.

Perhaps the culture of the men’s tennis tour is more homophobic than it appears from the outside. Perhaps there are other factors that have not been identified or considered. We probably won’t know for sure until a male player does finally come out (and even then only if they choose to discuss such things). In the meantime, the wait for an openly gay or bisexual male tennis player continues.

 

*It is an extraordinary, and extraordinarily awful, achievement that someone who has won 24 Grand Slam singles titles could, through years of expressing hateful and discriminatory comments, be better known as a bigot than a former champion.