No 6 India’s Supreme Court Re-criminalises Homosexuality

One of the more disappointing developments of the year was also one of the last in terms of LGBTI rights. On 11 December, India’s Supreme Court effectively re-criminalised homosexuality in the world’s second most-populous nation.

They did so by overturning the Delhi High Court’s July 2 2009 decision in Naz Foundation v Govt of NCT of Delhi, which had found that section 377 of India’s penal code was unconstitutional in so far as it applied to sex, including gay sex, between consenting adults.

While the Supreme Court did find that section 377 was discriminatory and that gay sex between consenting adults should not be criminal, it nonetheless decided that the matter is one for Parliament to resolve, rather than the Courts, and consequently ‘revived’ the application of section 377 to homosexuality.

For its part, the Indian Government has expressed its disappointment with the Supreme Court’s decision. Sonia Gandhi, president of the ruling Congress Party, described section 377 as “an archaic, unjust law”, while Finance Minister P Chidambaram is reported as saying that the ruling had taken India “back to 1860” (the year the law was first introduced).

In the past 24 hours, the Indian Government has filed a petition in the Supreme Court asking it to review its decision to reinstate section 377, on the basis that it “violate[s] the principle of equality.”

The Law Minister, Kapil Sibal, has tweeted that “[t]he government has filed the review petition on Section 377 in the Supreme Court today. Let’s hope the right to personal choices is preserved”.

What they haven’t done is commit to introducing legislation to overturn section 377 themselves, instead preferring to hand it back to the judicial branch of government to resolve. Which means that, for however long the petition takes to resolve, consensual sex between same-sex attracted adults will remain a crime in India (after the all-too-brief 4 and a half year era of decriminalisation).

The decision not to legislate at this stage is obviously a tactical one. A national election is due before 31 May 2014, and with the opposition Bharatiya Janata Party (BJP) adopting a more hard-line conservative position in response to the decision, there is the potential for them to use the issue as a pre-election wedge.

However, if the BJP and its Coalition parties do form government next year then, as well as making it unlikely that legislation to decriminalise homosexuality will be passed by parliament, it will also throw the status of the current Government’s petition to the Supreme Court (assuming it hasn’t been heard) into doubt.

In short, the situation is a bit of a mess.

But, before we judge too harshly the efforts to date of India’s Parliament on this issue, including those of the Congress Party-led Government, it is important to remember where the original blame for section 377 lies.

After all, we are expecting the current Indian political (and judicial) system to clean up the mess left by the British imperial Government of the 19th century. Just like other European ‘colonial’ powers, the British left a legacy of legal – and cultural – homophobia in its wake.

In fact, the British were especially talented at spreading homophobia around the world. More than half of all countries where homosexuality is illegal in 2013 are current members of the Commonwealth of Nations (more on that topic in the next post).

Indeed, the actions of the British Empire during the 19th and 20th centuries place a special burden on the United Kingdom (as well as Canada, Australia and New Zealand) to do whatever they can to assist fellow Commonwealth countries along the path towards decriminalisation.

Nevertheless, despite the original blame for section 377 lying elsewhere, the people with the power to finally abolish it are in India – either on the judicial, or parliamentary, benches. Here’s hoping they find the courage to do so shortly, and allow millions of LGBTI people to return to living their lives free from the threat of prosecution, or police intimidation.

No 7 Russia’s Anti-Gay Crackdown

What is happening in Russia is horrible. The introduction of Putin’s laws, making so-called ‘gay propaganda’ illegal, is obviously a significant blow to both the country’s LGBTI population and to any concept of Russian democracy.

It is made worse because the laws are not some idle threat – they are being actively enforced against brave protesters who have the temerity to stand up and say that “To be gay and to love gays is normal. To beat gays and kill gays is criminal” as Dmitry Isakov did (just this week Dmitry was fined 4000 roubles for doing so, the third Russian to be prosecuted under the laws after Nikolai Alexeyev and Yaroslav Yevtushenko).

But, if it were ‘just’ these laws (and yes, I know that it is almost impossible to use the word ‘just’ in this context), then what is going on in Russia would probably not stand out in a world where homosexuality remains criminal in 77 countries (and where, despite these laws, Russia still does not technically criminalise homosexuality).

However, the sad reality is that the laws criminalising gay propaganda seem to be just the start. They have been accompanied by a wave of homophobia affecting many aspects of Russian society.

Legally, a threat hangs over rainbow families that their children will be taken away from them (as an Australian, the idea of children being stolen because of their parents’ social group is especially poignant).

There have also been widespread acts of physical violence and intimidation against LGBTI Russians, including numerous hate crimes and, tragically, murders. Gay clubs have been attacked, with bullets and with fire.

And the cultural debate has degenerated to the point that a Russian actor, Ivan Okhlobystin, can say that “I would have them [gays] all stuffed alive inside an oven. This is Sodom and Gomorrah, as a believer, I can not remain indifferent to this, it is a living danger to my children!” – and be applauded.

It is not just that last comment which has made many people think back 80 years to political developments to the West of Russia, in Italy and, especially, Germany. While I do not throw the word fascist around lightly (and we are, thankfully, still some distance away from the worst of Hitler’s regime), the scapegoating of a minority group in the way Russia is doing now certainly brings fascism to mind.

Part of what makes this a difficult subject to write about is that, as an Australian LGBTI activist, it is hard to work out what the best response is. So hard, in fact, that it is almost tempting to forgive the initial ‘kneejerk’ reaction of some people who indicated their disgust at the actions of Putin & co by boycotting Russian vodka (‘vodka revolution’ anyone?).

Others have concentrated their advocacy around the upcoming Winter Olympics, to be held in Sochi from February 7 to 23. While most calls to boycott seem to have died down (it was always going to be an unlikely outcome, especially in the apparent absence of a united position from Russian LGBTI groups calling on us to do so), there will be other ways to draw attention to the state-sponsored homophobia of Putin’s Russia during that fortnight.

In particular, the campaign by @allout and Athlete Ally, focusing on Principle 6 of the Olympic Charter (which states that any form of discrimination is incompatible with the Olympics), seems like a sensible way to go about it (especially because it allows athletes to take a political stand without falling foul of the Olympics rules against ‘politicising’ sports).

But the problem, with this and other campaigns, will come in the days and weeks after the closing ceremony, when the spotlight of the world’s media turns elsewhere. Because it will be very easy for the Russian Government to ensure that nothing negative happens for a couple of weeks, especially to the athletes, tourists and reporters converging on Sochi.

It is far more important to focus on what is happening to Russia’s LGBTI population now, in the days leading up Sochi, what happens elsewhere in Russia during the Games, and what will happen in the months and years that follow.

We must make sure that we don’t avert our gaze just because the global media caravan moves on. We must continue to pressure our own Governments to take action on this issue, raising it with their Russian counterparts. And, above all, we must continue to communicate with Russian LGBTI groups to learn from them what we can do to help them in their fight.

No 12 The End (Almost) of the Homosexual Advance Defence in NSW

One of the more pleasing aspects of law reform in NSW over the past 12 months has been signs of progress – at last – on the subject of the homosexual advance (or “gay panic”) defence.

The Legislative Council Select Committee on the Partial Defence of Provocation, chaired by Mr Fred Nile, handed down its long-awaited report on 23 April. (http://www.parliament.nsw.gov.au/Prod/Parlment/committee.nsf/0/61173c421853420aca257b5500838b2e/$FILE/Partial%20defence%20of%20provocation_Final%20report.pdf)

The Committee explicitly and unanimously recommended that the homosexual advance defence should be repealed. Recommendation 6 of their Report reads: “[t]hat the NSW Government introduce an amendment to section 23 of the Crimes Act 1900 to ensure that the partial defence [of provocation] is not available to defendants who… respond to a non-violent sexual advance by the victim.”

One month later, on May 22, Premier Barry O’Farrell confirmed that the NSW Government would indeed act to ensure that the partial defence of provocation, which if successful reduces a murder conviction to manslaughter, does not apply in circumstances where there is only a non-violent sexual advance. (http://www.news.com.au/national/breaking-news/provocation-laws-to-be-changed-in-nsw/story-e6frfku9-1226648578317)

In October, the Government tabled its response to the Committee. It accepted the policy intention of the Committee’s Report, and included an Exposure Draft Crimes Amendment (Provocation) Bill 2013 for public consultation. (http://www.parliament.nsw.gov.au/Prod/Parlment/committee.nsf/0/61173c421853420aca257b5500838b2e/$FILE/Partial%20defence%20of%20provocation%20-%20Govt%20response.pdf)

As part of that Exposure Draft Bill, which reframes the partial defence of provocation to a partial defence of extreme provocation, it is proposed that the new section 23 would include a clause providing that “[c]onduct of the deceased does not constitute extreme provocation if… the conduct was only a non-violent sexual advance to the accused.”

In short, if this Bill is introduced into and passed by the NSW Parliament then the stain of the homosexual advance (or ‘gay panic’) defence will finally be removed from the law books of NSW for good. And the signs continue to be encouraging – just this week, Premier O’Farrell told 2GB radio that it was the Government’s intention that the Bill will be “hopefully through the Parliament by the end of February” (audio starting at 6mins40seconds: http://www.2gb.com/audioplayer/25171#.Uqf1xyct2RM).

Which would be not a moment too soon. Because this is not some historical artefact, gathering dust somewhere, sitting neglected on a shelf. The homosexual advance defence has been used, and used regularly, over the last 20 years. When successful, it dishonours the victim of a brutal killing, implying that he was at least partly at fault, all for simply making a non-violent pass at someone else.

It is somewhat ironic that one of the most eloquent rebuttals of the homosexual advance defence comes from the very same case in which the High Court of Australia upheld its validity. In Green v The Queen [1997] HCA 50, then Justice Michael Kirby dissented, writing:

“If every woman who was the subject of a “gentle”, “non-aggressive” although persistent sexual advance… could respond with brutal violence rising to an intention to kill or inflict grievous bodily harm on the male importuning her, and then claim provocation after a homicide, the law of provocation would be sorely tested and undesirably extended… Any unwanted sexual advance, heterosexual or homosexual, can be offensive. It may intrude on sexual integrity in an objectionable way. But this Court should not send the message that, in Australia today, such conduct is objectively capable of being found by a jury to be sufficient to provoke the intent to kill or inflict grievous bodily harm. Such a message unacceptably condones sexual violence by people who take the law into their own hands.”

At the core of this partial defence lies unbridled homophobia, an irrational fear, and stereotyping, of gay men as “predators”, lurking and waiting for any opportunity to pounce on any unsuspecting “normal” heterosexual men. And it tells these “normal” men that they are entitled to use lethal force to repel any type of unwanted, non-violent sexual advance, that it is, at least in part, justified to somehow help defend their “honour”.

It is a law that has always been unjust. It seems that Members of the NSW Parliament have at last recognised that fact. To that I say, better late than never. But never forget the victims whose murderers have escaped the full convictions, and punishments, that they deserved, solely because the victim made a non-violent sexual advance to them.

Assuming that the Crimes Amendment (Provocation) Bill is passed early next year, I am sure that the actual repeal of the homosexual advance defence would feature highly on any list of the highs and lows of 2014. Til then, it is up to us to make one final push to ensure this abhorrent piece of law is finally abolished, once and for all.

Related posts:

My 2012 submission to the Select Committee Inquiry: https://alastairlawrie.net/2012/08/10/submission-on-homosexual-advance-defence/

My 2013 Submission on the Exposure Draft Crimes Amendment (Provocation) Bill 2013: https://alastairlawrie.net/2013/11/14/submission-on-crimes-amendment-provocation-bill-2013-re-homosexual-advance-or-gay-panic-defence/

LGBTI Refugees and the 2013 Federal Election

It appears that my previous post on LGBTI asylum seekers was overly optimistic (well, to be perfectly honest it wasn’t that optimistic to begin with – it’s just that the reality has turned out to be even worse than the already dire situation).

After more than 9 months of trying to get an answer out of the Commonwealth Immigration Minister (first Chris Bowen, and then Brendan O’Connor), when I eventually received a response from the Immigration Department instead in June, it failed to answer whether the criminal laws against homosexuality of Nauru and Papua New Guinea applied to refugees in processing centres there.

This omission clearly implied that the criminal laws do in fact apply. However, the letter left open an interpretation that refugees who were LGBTI, and feared persecution (or prosecution) in these countries, could apply to the Minister to be transferred to Australia, on the basis that their rights could not be guaranteed in those countries.

Unfortunately, that no longer appears to be the case. In the time since that response the Prime Minister changed, and within a month of Rudd’s return he had announced the ‘PNG Solution’, with a similar deal with Nauru revealed shortly afterwards. These policies moved beyond offshore processing, to include the permanent ‘resettlement’ in those countries of any and all refugees who arrive in Australia by boat.

Now, let me say from the outset that I completely oppose these policies, and believe them to be unconscionable, inhumane, and probably contrary to international law. Australia should not be in the business of abrogating its responsibility to offer protection to people who are fleeing persecution by simply dumping these people in other countries. And my opposition applies to the ‘resettlement’ of all refugees, irrespective of the grounds of their persecution (eg race, religion, nationality etc).

However, as a gay man, and in particular as a passionate advocate for LGBTI rights, I find policies that involve the resettlement of LGBTI refugees in countries that criminalise homosexuality particularly abhorrent. That is exactly what Australia is doing – taking any LGBTI refugee who arrives by boat and sending them to countries which make male homosexuality a criminal offence, liable to up to 14 years’ imprisonment.

I know that many other people agree with me – in fact, the only pleasing thing arising from this horrible situation has been the emergence of a variety of voices condemning these policies. This has meant that the Labor Government has been unable to avoid questions on this particular topic (something which they had largely managed to successfully do in the previous 10 months).

But it doesn’t make the answers given by Government Ministers any easier to stomach. On 8 August, Serkan Ozturk of the Star Observer reported that the Attorney-General Mark Dreyfus (an intelligent man who really should know better): “confirmed the government intends to send all asylum seekers who arrive in Australia by boat without a visa – including LGBTI people fleeing persecution and people living with HIV – to Papua New Guinea (PNG) for processing and permanent resettlement despite laws criminalising homosexual sex, high rates of HIV infection and limited medical and social infrastructure on the impoverished island-nation…

When questioned by the Star Observer on whether LGBTI asylum seekers would be sent to PNG, Dreyfus was unequivocal.

“You’ve outlined an aspect of PNG law which is of general application but as I say we are not ruling out any group,” Dreyfus said.

“At the same time our Minister for Immigration, Tony Burke, has made it very clear that those transfers won’t occur until there is appropriate accommodation and appropriate circumstances for everyone who is sent.”

Pressed on whether that meant the Australian government would be placing pressure on PNG to reform legal codes, Dreyfus said he would not be drawn “giving a running commentary” on the laws of neighbouring countries, including PNG, Indonesia or Malaysia.

“We don’t think that’s necessary in order for Australia to comply with our international legal obligations and the obligations we have under the Migration Act.””

The fact that the Government is aware of this situation, and specifically the potential consequences of sending LGBTI refugees to these countries, but has continued on along this path irrespective of the dangers, is damning.

Sadly, the Foreign Minister, Senator Bob Carr, isn’t any better. On 6 August the ABC reported (from what I believe was a response to an oursay question from Senthorun Raj) that Senator Carr similarly confirmed that homosexual asylum seekers who arrive in Australia by boat will be resettled in PNG despite facing prison under local laws, even though those laws conflict with contemporary Australia values.

“I am concerned about… what we see as a grotesquely outdated, legal position applying in PNG. I understand – and I know this is little comfort – but there have been few if any charges laid or prosecutions made under laws prohibiting homosexual activity in PNG,” he said. You are right on one thing, Senator Carr: that is little comfort.

Tony Burke, the current Minister for Immigration (and the third person to hold that post this year), also believes that this policy is appropriate. However, in one of the most Orwellian moments of the 2013 federal election campaign (or indeed in recent Australian politics more generally), he stated that he had been advised that ‘no part of the caseload so far’ had arisen (ie no LGBTI person had been sent to Nauru or PNG so far).

The transcript, from a media conference on 1 August, is as follows:

Question: Sorry Minister, just to go out to Manus Island for a moment. Given that homosexuality is still considered a crime in PNG, but our government has pledged to transfer all asylum seekers regardless of their sexuality, what efforts have been undertaken to make sure that those transferred will not be persecuted for their sexuality, either as detainees, or if they are then settled in PNG?

Tony Burke: In the first instance we have no part of the caseload so far where this issue has arisen, no part of the caseload where this has arisen. In…

Question: So does that mean…

Tony Burke: Please, please, when other people were talking over you I made sure you got the run so allow me to answer your question.

I’ve been very careful throughout all of this to not carve out any exclusions from the policy. And I explained the implications of that with the specific reference to what the Opposition have attempted to do with women and children. There are very deep implications if we start carving people out. And if you do that, you are by no means taking a – I’m saying you, but anyone doing that is by no means taking a compassionate response because of the automatic reaction that people smugglers will engage in.

My language on this has not changed, which is people will be sent when we are confident they will be safe, when we are confident that appropriate accommodation and services are in place, and I’m not going to define it further than that.”

Which raises far more questions than it provides answers. It is possible that what he meant to say was that no-one sent to Manus Island has lodged a refugee claim on the basis of persecution of sexual orientation, gender identity or intersex status. But that doesn’t mean those claims won’t emerge at a later point (it is definitely possible that a LGBTI refugee will not disclose their status in the limited time after arrival in Australia and before transfer, but that it would instead emerge at a later point).

And it ignores the fact that someone who is seeking refugee protection on the basis of race, religion or other grounds can also be LGBTI (even if just as someone who has sexual intercourse with someone else of the same sex). This would not be immediately apparent to an interviewer and there are foreseeably several reasons why they would NOT disclose their particular circumstances (especially if fleeing as part of a family group where their family is unaware of their sexual orientation).

But the most obvious flaw in Minister Burke’s advice is that all refugees who arrive by boat, including children, are being ‘resettled’ in PNG and Nauru. Those children could grow up to be lesbian, gay, bisexual or transgender, or they may have been born intersex, and it may not be known to that child, their family or indeed anyone else at the time of resettlement. It does not make it any more acceptable that as a country we exposed that child to future criminal prosecution (or at the very least, societal discrimination), simply because we didn’t know of their status.

We DO know that this policy is wrong and should be stopped, which means that we are collectively responsible for what happens in the future as a result of it.

Unfortunately, while some of the positive reforms of the Rudd/Gillard/Rudd Labor Governments will be dismantled by the incoming Abbott Liberal-National Government it seems there is bipartisan agreement on the idea of resettling refugees in South Pacific countries. Opposition Leader Tony Abbott, and Shadow Minister for Immigration Scott Morrison, both appeared to welcome the announcement by Rudd of the PNG policy, while they have also announced their own plans to resettle refugees in Nauru (aka “tent city”).

It should also be pointed out that, last September, at the same time that I wrote to the Immigration Minister (and Prime Minister and Attorney-General), I also wrote to the Shadow Minister, Opposition Leader and Shadow Attorney-General, raising the same concerns about the processing or resettlement of LGBTI refugees in countries which criminalise homosexuality. No-one from the Opposition ever responded to these letters, which perhaps indicates how seriously they take those concerns.

The fact that, as it stands, both major parties endorse this policy means that, no matter who is elected on Saturday, the incoming Government will continue to abrogate its responsibilities to offer protection to all refugees, including refugees who are LGBTI. That it will inevitably continue to be cheered along by sections of the press will make it even harder to endure.

Perhaps the only ray of hope in this awful mess is that the High Court might do what the public should (but won’t) on Saturday – tell our MPs, from both the ALP and the Liberal-National Coalition, that resettling refugees in PNG and Nauru is unconscionable, inhumane, and, hopefully, unlawful. So, to our distinguished High Court Justices I say: no pressure, but it seems this is now entirely up to you.

Sex Discrimination Amendment (LGBTI) Bill Senate Inquiry Submission

Another week, another submission, this time to the Senate Legal & Constitutional Affairs Committee Inquiry into the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013.

Now that the Government has ‘deferred’ the Human Rights and Anti-Discrimination Bill/consolidation reforms, this Bill is the vehicle it has chosen to progress federal anti-discrimination protections for the lesbian, gay, bisexual, transgendernand intersex (LGBTI) community.

It is by no means a perfect Bill – at the very least it should incorporate the Government’s own policy of removing religious exceptions for people accessing aged care services. At best, it should remove all religious exceptions outside of the appointment of ministers of religion and religious ceremonies.

Nevertheless, this Bill, if passed, would be a significant step forward in terms of LGBTI law reform. If you have a chance to write your own submission before this Friday (26 April), I strongly encourage you to do so. Details here: http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=legcon_ctte/sex_discrim_sexual_orientation/info.htm

NB I have also not included the appendix to this submission, because it is simply the discussion about religious exceptions from my submission on the HRAD Bill last year.

Senate Legal and Constitutional Affairs Committee

Inquiry into Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013

Submission by Alastair Lawrie

I am writing this submission to make three main recommendations:

i)                    That the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013, which introduces federal anti-discrimination protections for lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians for the first time, should be supported.

ii)                   That the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 should be passed as a matter of priority by the Commonwealth Parliament; and

iii)                 That the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 should be amended to remove all religious exceptions which would otherwise allow discrimination against LGBTI Australians, outside of appointments of religious office-holders (such as priests) and religious ceremonies.

I was born in 1978. That is three years after the passage of the Racial Discrimination Act 1975. In the year I turned 6, the Commonwealth Parliament supported the Sex Discrimination Act 1984. The Disability Discrimination Act was passed in 1992, about three years before I first came out as gay at age 17. Even the most recent stand-alone Commonwealth anti-discrimination law, the Age Discrimination Act 2002, has already been in operation for more than a decade.

In 2013, I am 34 years old, and I have still never enjoyed the protection of federal anti-discrimination laws on the basis of my sexual orientation. Discrimination on the basis of race has been prohibited for my entire life, and on the basis of sex for almost as long. But up until now, successive Governments have not seen fit to legislate to prohibit discrimination on the basis of sexual orientation, gender identity and intersex status.

Which means that the reforms contained in the Labor Government’s Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 are both incredibly welcome, and long overdue. Lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians deserve the right to be employed, to access services, indeed to simply go about their everyday lives, without the threat of being discriminated against on these grounds.

If and when this Bill is eventually passed, it will be another key milestone on the long journey towards full equality for our LGBTI citizens. Which is why my first recommendation is that this legislation should be supported.

My second recommendation is that the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 should be passed by the Commonwealth Parliament as a matter of priority.

There are now only five Parliamentary sitting weeks left before the end of this term, ahead of the federal election which is currently expected to be held on September 14th. Having waited so long – decades, in fact – it would be a devastating blow to the LGBTI community were this legislation to be delayed yet again because the current Parliament simply ran out of time.

The future is always unknowable: it may be that, should these reforms not be passed now, a new Parliament or even Government introduces similar legislation later this year, or early next year. That would obviously be a welcome development. But it may also be that, after the upcoming election, LGBTI anti-discrimination reforms are delayed for several more years.

The current Bill fulfils the general objective of signalling that discrimination on the basis of sexual orientation, gender identity and intersex status is no longer tolerated, by society and by the Parliament. It is already drafted, and (leaving aside the amendments suggested in my third recommendation) it is ready to go.

That is why all serving Parliamentarians, from all political parties and independents, should pass the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 as soon as possible.

My third and final recommendation is that the Bill should be amended to ensure that religious exceptions from LGBTI-anti-discrimination requirements are narrowly drafted, only covering religious appointments, such as priests, and religious ceremonies.

The justification for this position involves my personal experience. Like many, indeed probably most, LGBTI Australians I have been discriminated against in a wide variety of different situations. I have been abused on the street, and threatened with violence, simply for holding my boyfriend’s hand. I have received sub-standard treatment from different service-providers simply because of my sexual orientation, or at least because of their perceptions of me.

I have likely been discriminated against in terms of employment, because I have always been upfront about who I am, including through my job applications. But I will probably never know for sure, because discrimination like homophobia is insidious, and its victims can never know all of the different ways in which they are mistreated.

But by far the activity in which I have been discriminated against the most was the education I received during the five years that I attended a religious boarding school. There was, from memory, a school rule against homosexuality, I was bullied on the basis of my (perceived) sexual orientation and this was effectively condoned by the school which was aware of it but failed to take any action, the sex education that was provided completely ignored homosexuality (including omitting essential safe sex/HIV-prevention messages), and I had a pastor intimate that killing yourself because you were gay was not the worst possible outcome.

It distresses me to think that, if religious organisations are granted wide-ranging exceptions under anti-discrimination laws, they will lawfully be able to (mis)treat future students in this way.

No student should be subject to prejudice, from their schools as well as from other students, because of their sexual orientation, gender identity or intersex status. No teacher should have to fear for their job simply because of who they are, or who they are attracted to.

This principle extends far and wide across a range of different activities. Patients receiving hospital and other health or community services should not have to consider whether disclosing their identity will compromise the standard of care they receive. LGBTI doctors, nurses and other employees in the health and community sector should be able to be confident in talking about who they are without fearing possible repercussions.

This principle obviously also includes aged care services. And I welcome the Labor Government’s commitment that they will legislate to protect people accessing aged care services from discrimination on the basis of sexual orientation, gender identity and intersex status.

However, I question why these protections are not included in the current Bill – the drafting of such provisions is not overly complicated, and I would like to believe that no Parliamentarian could argue, or vote, against such a basic proposition.

I also question why such protections should not equally apply to the employees of aged care services. If we are going to have truly inclusive aged care services, then neither the service recipients nor the employees should be subject to discrimination simply because they are LGBTI.

But, for the reasons outlined above, I do not believe that even ‘carving out’ the aged care sector from the operation of religious exceptions goes far enough. There is no justification for allowing religious organisations to discriminate against service recipients or employees in any activity which is carried on in the public sphere. For further discussion of this, please see Appendix A, which I provided to the Senate Inquiry into the Exposure Draft of the Human Rights and Anti-Discrimination Bill 2012 in December last year on this very topic.

In conclusion, I would like to thank the Committee for the opportunity to comment on the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013. As I have indicated, I think this Bill could be significantly improved by limiting the operation of religious exceptions which undermine protections that would otherwise cover LGBTI Australians.

However, even if these exceptions are not removed by the current Bill, the fact that some LGBTI anti-discrimination protections will finally be enacted federally is sufficient justification to recommend both that the Commonwealth Parliament support the Bill, and that it be passed as a matter of priority. The Australian LGBTI community has waited long enough for these reforms. It’s time to just get it done.