Tag Archives: intersex status

This is the easiest LGBTIQ election promise a political party could make. But the Morrison Government still probably won’t commit to it.

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Problem: Transgender and intersex workers are not explicitly protected under the Fair Work Act 2009 (Cth).

While discrimination on the basis of sexual orientation, gender identity and intersex status are all prohibited under the Sex Discrimination Act 1984 (Cth), only sexual orientation is included as a relevant attribute in the Fair Work Act for the purposes of protections against ‘adverse action’ (section 351(1)), and ‘unlawful termination’ (section 772(1)(f)), as well as in sections covering the contents of awards (section 153) and enterprise agreements (section 195), and the functions of the Fair Work Commission (section 578(c)).

This means that while the ability of lesbian, gay and bisexual workers to bring complaints to the Fair Work Commission (FWC) is certain, there is significant doubt about whether trans, nonbinary and intersex employees can do the same.

In practice, a trans worker who is mistreated in the workplace because of their gender identity, or an intersex employee who is fired on the basis of their sex characteristics, may be unable to have their issue resolved quickly and at low cost via the FWC, and instead be forced to go through a much less timely, and potentially more expensive, complaint to the Australian Human Rights Commission (and then in federal court after that).

This is a completely unjustified discrepancy in the rights of LG and B Australians on one hand, and transgender and intersex people on the other, and it must be resolved.

Solution: Amend the Fair Work Act to explicitly protect transgender and intersex workers.

Simple, right? Well, it certainly should be.

Sadly, however, the Liberal/National Government has proven itself to be completely uninterested in doing anything to address this most straightforward of problems.

I have been raising the lack of explicit protections for trans, nonbinary and intersex workers in the Fair Work Act since Malcolm Turnbull was Prime Minister. And on multiple occasions since then, to multiple Attorneys-General.

Not only have they refused to take action, but last September current Attorney-General Michaelia Cash, and the Morrison Government generally, voted *against* amendments to the Fair Work Act which would have, at a minimum, brought it into line with Sex Discrimination Act (SDA).

What makes that vote even more disappointing is the then Opposition, under Tony Abbott, had actually voted in favour of protecting transgender and intersex people in the SDA back in 2013 – meaning the Liberal/National Coalition has gone *backwards* in its support for these groups in the subsequent eight years.

In any event, with the election expected to be called today (and at the latest by Monday 18 April), it is clear the lack of explicit protections for trans, nonbinary and intersex workers in the Fair Work Act will not be addressed this term.

In which case, I think we should ensure that finally addressing this problem is made an election issue for the upcoming poll (on May 14 or 21).

What policy commitments do we want?

From my perspective, any election commitment on this issue should comprise four, inter-related parts.

First, a commitment to ensure the Fair Work Act explicitly covers trans, nonbinary and intersex workers.

Second, a commitment to use best practice terminology to do so.

This includes adding a protected attribute of ‘gender identity’, using the definition in section 4 of the Sex Discrimination Act (‘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’) as a starting point, and finalised in consultation with trans community organisations.

However, while the SDA currently uses the protected attribute ‘intersex status’ (defined in section 4 as ‘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’) this is no longer supported by the intersex community, at least in part because it has been interpreted by some as relating to identity rather than biology.

Instead, the best practice terminology is now ‘sex characteristics’, as called for in the historic March 2017 Darlington Statement, and most recently defined in the Equal Opportunity Act 2010 (Vic) as:

‘a person’s physical features relating to sex, including-

(a) genitalia and other sexual and reproductive parts of the person’s anatomy; and

(b) the person’s chromosomes, genes, hormones, and secondary physical features that emerge as a result of puberty.’

The definition of sex characteristics should also be finalised in consultation with intersex community organisations, particularly Intersex Human Rights Australia.

Third, if the attribute of ‘sex characteristics’ is added to the Fair Work Act, the Parliament should use the same opportunity to update the Sex Discrimination Act, replacing the protected attribute of intersex status with sex characteristics.

Fourth, a commitment to make these reforms within the first 12 months of the next Parliamentary term.

This discrepancy has existed since the passage of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, in June of that year.

Which means by mid-2023 it would have been a full decade of trans, nonbinary and intersex workers having less clear, and potentially lesser, workplace rights than lesbian, gay and bisexual employees.

That is far too long for workers to wait for what are basic protections, making a request that it be fixed in the next year entirely reasonable.

In this context, today I sent the below emails to the Government, Opposition and Greens.

The email to the Government highlights their rejection of amendments to the Fair Work Act in September last year, and asks them to take concrete action to protect trans, nonbinary and intersex workers as a matter of urgency.

The email to the Opposition welcomes their vote to support adding ‘intersex status’ to the Fair Work Act last September, while calling on them to go further, and commit to instead add the protected attribute of ‘sex characteristics’ if they form Government.

Finally, the email to the Greens thanks them for their leadership on this issue to date (it was their amendments that were voted on last year) and urges them to continue to prioritise this reform in the upcoming term of Parliament.

*****

Senator the Hon Michaelia Cash

Attorney-General

Via email: senator.cash@aph.gov.au

10 April 2022

Dear Senator Cash

Please commit to protecting trans, nonbinary and intersex workers in the Fair Work Act 2009 (Cth)

All workers should be protected against adverse action, and unlawful termination, on the basis of who they are.

These protections must include transgender and intersex employees.

As you are aware, these groups are not explicitly covered by relevant provisions of the Fair Work Act 2009 (Cth), unlike other protected attributes like race, sex, age, disability, religious belief and even sexual orientation.

In this context, it was extremely disappointing that you, and other Government Senators, voted to reject straight-forward amendments to address this discrepancy in September 2021, thus leaving the position of trans, nonbinary and intersex workers unclear.

In light of the upcoming federal election, I call on you, and the Liberal/National Coalition, to unequivocally commit to fixing this problem as a matter of priority next term.

Not only would this be the right thing to do in principle, it would also be consistent with the actions of the then Abbott Opposition in 2013 (of which you were a member), to support the prohibition of discrimination on the basis of gender identity and intersex status in the Sex Discrimination Act 1984 (Cth).

A commitment in four, inter-related parts

From my perspective, this commitment should include the following four, closely-linked, elements:

First, a commitment to protect transgender and intersex workers on exactly the same basis as other groups.

Second, a commitment to add the protected attributes of ‘gender identity’ (based on the definition in the Sex Discrimination Act, and finalised in consultation with transgender community groups) and ‘sex characteristics’ (which is now best practice rather than intersex status, based on the recently-added definition in the Equal Opportunity Act 2010 (Vic), and finalised in consultation with Intersex Human Rights Australia) to the Fair Work Act.

Third, a commitment to use the same legislation to replace the protected attribute of intersex status in the Sex Discrimination Act with the best practice terminology sex characteristics.

Fourth, a commitment to complete the above steps within the first 12 months of the next Parliamentary term, especially given trans, nonbinary and intersex workers have been waiting for these protections since mid-2013.

I look forward to receiving your response to this correspondence, and sincerely hope you are able to provide clear promises on these issues on behalf of the Morrison Liberal/National Government.

Please note that, as your commitments (or lack of commitments) on the above will be in the public interest, I will publish the contents of any response I receive on my personal website: www.alastairlawrie.net

Sincerely,

Alastair Lawrie

*****

The Hon Mark Dreyfus QC MP

Shadow Attorney-General

Via online contact form 

10 April 2022

Dear Mr Dreyfus

Please commit to protecting trans, nonbinary and intersex workers in the Fair Work Act 2009 (Cth)

All workers should be protected against adverse action, and unlawful termination, on the basis of who they are.

These protections must include transgender and intersex employees.

As you are aware, these groups are not explicitly covered by relevant provisions of the Fair Work Act 2009 (Cth), unlike other protected attributes like race, sex, age, disability, religious belief and even sexual orientation.

In this context, the ALP’s support for amendments in September 2021 to add gender identity and intersex status as protected attributes in the Fair Work Act was obviously welcome, although it was disappointing this did not extend to supporting the best practice terminology of sex characteristics.

In light of the upcoming federal election, I call on you, and the Australian Labor Party, to commit to protecting trans, nonbinary and intersex workers as a matter of priority next term.

Not only would this be the right thing to do in principle, it would also be consistent with, and build on, one of the major achievements of the most recent Labor Government, the passage of the historic Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (during your term as Attorney-General).

A commitment in four, inter-related parts

From my perspective, this commitment should include the following four, closely-linked, elements:

First, a commitment to protect transgender and intersex workers on exactly the same basis as other groups.

Second, a commitment to add the protected attributes of ‘gender identity’ (based on the definition in the Sex Discrimination Act, and finalised in consultation with transgender community groups) and ‘sex characteristics’ (which is now best practice rather than intersex status, based on the recently-added definition in the Equal Opportunity Act 2010 (Vic), and finalised in consultation with Intersex Human Rights Australia) to the Fair Work Act.

Third, a commitment to use the same legislation to replace the protected attribute of intersex status in the Sex Discrimination Act with the best practice terminology sex characteristics.

Fourth, a commitment to complete the above steps within the first 12 months of the next Parliamentary term, especially given trans, nonbinary and intersex workers have been waiting for these protections since mid-2013.

I look forward to receiving your response to this correspondence, and sincerely hope you are able to provide clear promises on these issues on behalf of the Albanese Labor Opposition.

Please note that, as your commitments (or lack of commitments) on the above will be in the public interest, I will publish the contents of any response I receive on my personal website: www.alastairlawrie.net

Sincerely,

Alastair Lawrie

*****

Senator Janet Rice

Australian Greens

Via email: senator.rice@aph.gov.au

10 April 2022

Dear Senator Rice

Lack of explicit protections for trans, nonbinary and intersex workers under the Fair Work Act 2009 (Cth)

Thank you for your ongoing leadership on this issue in the Commonwealth Parliament.

This includes regularly raising the lack of explicit protections for transgender and intersex employees in the Fair Work Act 2009 (Cth) during Senate Estimates hearings.

Most importantly, thank you for introducing amendments to the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 in September last year which, at best, would have added gender identity and sex characteristics as protected attributes to the Fair Work Act or, at a minimum, would have included gender identity and intersex status instead.

As you know, I shared your disappointment when neither set of amendments was successful.

However, I also share your passion to ensure this work is finally completed.

For your information, and in light of the upcoming federal election, this morning I have written to both the Attorney-General and Shadow Attorney-General calling on the Government and Opposition respectively to promise the following:

First, a commitment to protect transgender and intersex workers on exactly the same basis as other groups.

Second, a commitment to add the protected attributes of ‘gender identity’ (based on the definition in the Sex Discrimination Act, and finalised in consultation with transgender community groups) and ‘sex characteristics’ (which is now best practice rather than intersex status, based on the recently-added definition in the Equal Opportunity Act 2010 (Vic), and finalised in consultation with Intersex Human Rights Australia) to the Fair Work Act.

Third, a commitment to use the same legislation to replace the protected attribute of intersex status in the Sex Discrimination Act with the best practice terminology sex characteristics.

Fourth, a commitment to complete the above steps within the first 12 months of the next Parliamentary term, especially given trans, nonbinary and intersex workers have been waiting for these protections since mid-2013.

Ideally, both major parties will commit to protecting the rights of trans, nonbinary and intersex workers, and this reform will be passed quickly and on a bipartisan basis.

However, in the event that neither of the major parties is willing to make these promises, or that they do but do not follow through on them with appropriate and timely action, I urge you to continue fighting on this issue.

In particular, if no amendments are forthcoming by mid-2023, I call on you to reintroduce your amendments to the Fair Work Act either as part of a relevant legislative package, or via a private members Bill.

I look forward to receiving your response to this correspondence.

As with my emails to the Government and Opposition, please note that, as your response on the above will be in the public interest, I will publish the contents of any correspondence I receive on my personal website: www.alastairlawrie.net

Sincerely,

Alastair Lawrie

*****

Update, Sunday 8 May 2022:

On Friday (6 May) I received the following response from Greens Senator, and LGBTIQA+ spokesperson, Janet Rice:

Dear Alistair Lawrie

Thank you for your correspondence of 10 April 2022, in relation to improvements to antidiscrimination legislation, in order to protect members of LGBTIQA+ communities.
I would like to thank you for your tireless and important advocacy on such important issues, and in particular the legal expertise you have brought to issues which have such crucial importance for people’s lives.

Let me re-affirm the Greens’ commitment to fighting for LGBTIQA+ rights, as set out in our policy.

We will continue to advocate for the necessary changes to the Fair Work Act 2009 to ensure that workers who are trans or have intersex variations are protected on the same basis as other groups. That should include appropriate definitions in relation to gender identity and sex characteristics, developed in consultation with relevant communities. Those changes should also be accompanied by relevant updates to the Sex Discrimination Act 1984 as needed.

As you are aware, the Greens have a significant opportunity in this Parliament to achieve balance of power, potentially in both the House of Representatives and the Senate. We will continue to advocate as forcefully as we are able to, for these changes and others to protect the rights of LGBTIQA+ people.

Yours sincerely

Senator Janet Rice
Australian Greens LGBTIQA+ spokesperson

This is obviously encouraging, including commitments to advocate for the introduction of gender identity and sex characteristics as protected attributes in the Fair Work Act, with definitions to be developed in consultation with trans and intersex communities.

Disappointingly, I am yet to receive any response from either Senator Cash on behalf of the Government, or Mark Dreyfus on behalf of the Australian Labor Party.

Today I have written again to both, asking for any response to be provided by Sunday 15 May, so that they can be published prior to the election. I will obviously update this post if and when any such response is received.

*****

Update Wednesday 18 May:

Well, the update is really that there is nothing to update.

Unfortunately, despite writing again to both the Attorney-General Michaelia Cash and her Shadow Mark Dreyfus, I have received no response from either the Morrison Liberal/National Coalition, or the Albanese Labor Party. Which is perhaps not surprising in the case of the former (given they voted against protecting trans, gender diverse and intersex workers in the Fair Work Act in September last year), but is more disappointing in the case of the latter given they actually supported including gender identity and intersex status as protected attributes at a minimum (although need to go one step further by supporting the best practice terminology of sex characteristics).

I will of course update the post further if any response is received between now (COB Wednesday) and the opening of polls on Saturday morning.

NB This post is written in a personal capacity, and does not reflect the views of employers past or present.

Commonwealth Attorney-General Michaelia Cash and Shadow Attorney-General Mark Dreyfus

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Pathetic, and antipathetic, in equal measure

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Pathetic: adjective, ‘unsuccessful or showing no ability, effort, or bravery, so that people feel no respect’

Last week, the Senate witnessed one of the most pathetic votes by any Government in recent memory: on Wednesday 1 September, Liberal and National Party Senators voted against amendment sheet 1427 to the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021.

As that description suggests, those amendments, moved by the Australian Greens, were largely technical in nature. All they did (or at least would have done, had they passed), was ensure the terms gender identity and intersex status were included in exactly the same sections of the Fair Work Act 2009 (Cth) which cover other protected attributes, such as race, sex, disability and sexual orientation.

That includes provisions which protect workers against adverse action (section 351(1)) and unlawful termination (section 772(1)(f)) on the basis of who they are, meaning the amendments would have guaranteed trans, gender diverse and intersex employees the exact same ability to access the Fair Work Commission as women, people with disability and even lesbians, gay men and bisexuals. [For more background on this issue, see ‘Unfairness in the Fair Work Act’]

As well as being largely technical, they also should have been entirely uncontroversial. Gender identity and intersex status are already protected attributes in the Sex Discrimination Act 1984 (Cth). The amendments were simply intended to bring these two pieces of legislation into closer alignment.

Indeed, the Greens changes in sheet 1427 directly tied the proposed definitions in the Fair Work Act back to the Sex Discrimination Act:

‘gender identity has the same meaning as in the Sex Discrimination Act 1984.

intersex status has the same meaning as in the Sex Discrimination Act 1984.’[i]

And yet, these largely technical and entirely uncontroversial changes were still rejected by the Coalition Government. Together with One Nation, their votes were enough for the amendments to be voted down, leaving the rights of trans, gender diverse and intersex workers in doubt.

It seems like anything that advances the rights of LGBTI Australians, even if just an inch, will inevitably be rejected by the Morrison Liberal/National Government. Which is, frankly, pathetic.

*****

Antipatheic: adjective, ‘showing or feeling a strong dislike, opposition, or anger’

Perhaps the most depressing aspect of this situation is that the 2021 Coalition were voting against the protection of groups which the Coalition had actually supported eight years earlier.

In 2013, the Liberal/National Opposition, under the leadership of Tony ‘no friend of the gays’ Abbott, voted in favour of the then-Labor Government’s historic Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013.

That legislation inserted gender identity and intersex status into the Sex Discrimination Act in the first place. But, eight years later, the Coalition refused to back the inclusion of the exact same terms, with the exact same definitions, in the Fair Work Act.

Think about that for a second. The current Government is more opposed to the rights of trans, gender diverse and intersex Australians than the Abbott Opposition was back then.

The ‘strong dislike, opposition or anger’ towards trans rights from notoriously transphobic Senators like Claire Chandler has overwhelmed any semblance of support from other, more sympathetic sections of the Morrison Government.[ii]

The Coalition’s antipathy to trans rights also seems to have overwhelmed their ability to make political judgements that benefit them.

This amendment was a potential win for them. Almost 28 months into a maximum 36-month parliamentary term, it is increasingly likely the Government will not pass a single pro-LGBTI Bill before the next election (including a failure to introduce legislation to implement Scott Morrison’s since-broken promise to protect LGBT students in religious schools against discrimination).

If they had chosen to vote for these changes – the most straight-forward of amendments, merely introducing consistency in the groups protected under the Sex Discrimination and Fair Work Acts – moderate Liberal Senators, and Liberal candidates for socially-progressive electorates, could have pointed to this outcome as evidence they care about LGBTI rights.

Instead, by voting against these amendments, everybody can see that they don’t care, about anybody whose gender identities or sex characteristics are different to societal expectations.

*****

The Government’s reasons for not supporting these amendments also demonstrate the simultaneously pathetic and antipathetic nature of their opposition. Attorney-General, Senator Michaelia Cash, made the following comments in relation to the Greens’ amendments:

‘The government will also be opposing the amendment moved by the Australian Greens. The government believes that people are entitled to respect, dignity and the opportunity to participate in society and receive the protection of the law, regardless of their sexual orientation, gender identity or intersex status. The Sex Discrimination Act prohibits discrimination on these grounds in a range of areas of public life. The primary purpose of this bill is to implement the government’s commitments in its response to the Respect@Work report and to implement, as a matter of urgency, measures to strengthen national laws to better prevent and respond to sexual harassment in Australian workplaces. Discrimination on the basis of gender identity and intersex status is already prohibited in the Sex Discrimination Act…’

Cash raises a number of different arguments there. Unfortunately, none of them are compelling upon closer inspection.

For example, her attempt to declare that the primary purpose of the legislation is ‘to implement the government’s commitments in its response to the Respect@Work report’, might be an explanation of why they did not include these changes in the original Bill. It is not a justification for voting against these changes when they are moved by others.

Even worse, Cash’s argument is directly undermined by the words of her own Department, exactly one year-to-the-day beforehand. In response to my letter to then-Attorney-General Christian Porter calling for him to address this very issue, I received a reply dated 1 September 2020 from an Assistant Secretary in the Attorney-General’s Department, which included the following paragraph:

‘I note the discrepancies you raise between the language in the Fair Work Act 2009 and the Sex Discrimination Act 1984. At this point in time, the Australian Government has not indicated an intention to amend the Fair Work Act 2009 to explicitly include gender identity or intersex status as grounds for lodging an adverse action or unlawful termination application. In saying this, however, you may be interested to know that the Australian Government is currently considering its response to a number of recommendations made in the Australian Human Rights Commission’s Respect@Work: Sexual Harassment National Inquiry Report. This process provides scope for the issues you have raised here to be considered further in the implementation of any proposed recommendations.’ [emphasis added]

Not only did the Department acknowledge this legislative gap, but they highlighted the Respect@Work response as an opportunity for this issue to be resolved. It was the Government itself, and possibly even Michaelia Cash herself or her predecessor Christian Porter, who actively decided to ignore, rather than address, this discrepancy.

Cash’s other arguments are just as flawed. She mentions not once, but twice, that discrimination on the basis of gender identity and intersex status is already prohibited under the Sex Discrimination Act. Which, well, yes, of course it is. As is discrimination on the basis of sex and sexual orientation.

The point is, while sex and sexual orientation are also explicitly included in the Fair Work Act, gender identity and intersex status are not. Meaning women, lesbians, gay men and bisexuals have clear rights to access the Fair Work Commission, while trans, gender diverse and intersex workers do not. That inequality of access is exactly the issue the Greens’ amendments were intended to address, amendments the Government chose to reject.

Which reveals the lie at the heart of Cash’s introductory comment, that ‘[t]he government believes that people are entitled to respect, dignity and the opportunity to participate in society and receive the protection of the law, regardless of their sexual orientation, gender identity or intersex status.’

No. No, you don’t. If you did, you would have voted for these amendments.

*****

Of course, for most people paying attention to Australian politics these days, the fact the Coalition Government doesn’t really give a shit about LGBTI Australians is no surprise.

Last Wednesday’s vote by Liberal and National Party Senators against amendments to explicitly include trans, gender diverse and intersex workers in the Fair Work Act wouldn’t even make a list of the top five worst things the Abbott/Turnbull/Morrison Government has done in relation to LGBTI rights over the past eight years.

[A list that, from my perspective, would include (in no particular order):

  • Holding an unnecessary, wasteful and divisive public vote on our fundamental human rights
  • Defunding an evidence-based program against anti-LGBTI bullying in schools
  • Detaining LGBTI people seeking asylum in countries that criminalise homosexuality
  • Failing to implement the recommendations of the 2013 Senate Inquiry into the Involuntary or Coerced Sterilisation of Intersex People (allowing these human rights violations to continue to this day), and
  • Breaking its promise to protect vulnerable LGBT kids against abuse and mistreatment by publicly-funded religious schools.]

It probably won’t even be the worst thing the Coalition Government does to LGBTI Australians this year, with Cash also committing to introduce the recently-revived Religious Discrimination Bill before the end of 2021.

This is legislation that, based on the Second Exposure Draft, would encourage anti-LGBT comments in all areas of public life, as well as making access to essential healthcare much more difficult, among other serious threats. [For more background on this issue, see ‘The ‘Bad Faith’ Religious Discrimination Bill Must Be Blocked’] 

Nevertheless, just because this isn’t the worst thing they’ve ever done, doesn’t mean their vote on Wednesday was any less abhorrent.

And just because I earlier described these amendments as largely technical in nature, doesn’t mean they were any less important.

As well as guaranteeing access to the Fair Work Commission, these amendments were an opportunity for the Government, and Parliament more broadly, to reaffirm that trans, gender diverse and intersex Australians should enjoy the same rights as everyone else.

In rejecting the Greens’ amendments to add gender identity and intersex status to the Fair Work Act, the Government repudiated this fundamental principle.

The Senate vote last Wednesday perfectly encapsulates the Morrison Government’s pettiness, and the meanness of its approach, when it comes to LGBTI rights.

How pathetic in their lack of principle, and basic decency.

How antipathetic to the human rights and dignity of their fellow Australians.

In roughly equal measure.

Morrison, Turnbull and Abbott, divided by political ambition but united in their pathetic, and antipathetic, approach to LGBTI rights.

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Footnotes:

[i] Earlier amendments (sheet 1373) that would have introduced the protected attribute of sex characteristics, rather than intersex status, in the Fair Work Act to reflect both best practice and the views of intersex advocates such as Intersex Human Rights Australia, failed with both the Government and Labor expressing their opposition. Sheet 1427, which included intersex status based on the definition in the Sex Discrimination Act was then moved by the Greens because it was seen as being entirely uncontroversial and therefore more chance of succeeding.

[ii] NSW Liberal Senator Andrew Bragg did refer to the issue of trans, gender diverse and intersex inclusion in the Fair Work Act in his second reading debate speech, expressing support for it being addressed at some point, but did not find the courage to cross the floor on the amendment itself.

Submission re: South Australia’s Equal Opportunity (Religious Bodies) Amendment Bill 2020

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22 November 2020

Attorney-General’s Department

Legislative Services

GPO Box 464

Adelaide SA 5001

Via email: LLPSubmissions@sa.gov.au

To whom it may concern

Submission re: Equal Opportunity (Religious Bodies) Amendment Bill 2020

Thank you for the opportunity to provide a submission on the draft Equal Opportunity (Religious Bodies) Amendment Bill 2020.

I do so as a long-term advocate for the rights of the lesbian, gay, bisexual, transgender and intersex (LGBTI) community, and as someone with particular expertise in anti-discrimination legislation, including comparative analysis of LGBTI anti-discrimination protections across Australia.[i]

First, I welcome the intention of the draft legislation, which is to narrow the scope of the excessive and extreme religious exceptions currently found in section 50 of the Equal Opportunity Act 1984 (SA). These exceptions allow religious organisations to discriminate against LGBTI South Australians in a wide range of everyday situations, causing direct and significant harm to a vulnerable population.

Second, I particularly welcome proposed section 50(1)(c)(ix), which would have the effect of protecting LGBTI students in religious schools against discrimination on the basis of who they are. This protection is long overdue, with change in South Australia made necessary because of the failure of the Morrison Government to deliver on his October 2018 promise to prohibit such discrimination under the Sex Discrimination Act 1984 (Cth).[ii]

However, while passage of this legislation would represent an improvement in terms of the rights of LGBTI South Australians to participate in public life without fear of discrimination, I would like to highlight three major problems with the Bill as drafted:

  1. The scope of areas where LGBTI people will be protected – or not

The draft Equal Opportunity (Religious Bodies) Amendment Bill 2020 effectively creates a ‘carve-out’ from the general religious exception found in section 50(c)[iii] of the Equal Opportunity Act 1984 (SA) so that it does not apply in relation to certain areas of public life.

This approach appears to be based on section 37(2) of the Sex Discrimination Act 1984 (Cth), which provides that the general religious exception in section 37(1) of that Act does not allow aged care services operated by religious organisations to discriminate against LGBT people accessing those services (although, disappointingly, it continues to allow religious aged care services to discriminate against LGBT employees).

It is encouraging that the draft South Australian Bill extends this carve-out to a wider range of areas of public life, including:

  • Children’s education
  • Health care and disability support
  • Aged care
  • Emergency accommodation
  • Public housing, and
  • Foster care placement.

In another welcome development, the carve-out also applies to employees in these areas (other than in relation to educational institutions, an issue which is discussed further below).

However, the carve-out approach has inherent limitations. In particular, the boundary between areas of public life where LGBTI people will be protected, and those where they will not, may appear arbitrary and difficult to justify.

For example, while proposed sections 50(1)(c)(ix) and 50(1)(c)(x) mean that religious pre-schools, primary schools and secondary schools will not be able to discriminate against LGBTI students, the absence of a similar carve-out for tertiary education means that religious universities will nevertheless still be able to discriminate against LGBTI students.

In an environment when many university-age students are exploring and ultimately affirming their sexual orientation and/or gender identity, I do not believe it is acceptable to allow religious universities to discriminate against those students simply because of who they are (and especially where religious universities use public funds to do so).

In a similar way, while it is pleasing that emergency accommodation services operated by religious organisations will not be able to turn away LGBTI people in need of their assistance, it seems arbitrary that other essential service providers (such as food services or other forms of welfare support)[iv] will be able to reject people on the basis of their sexual orientation, gender identity or intersex status.[v]

Finally, proposed section 50(1)(c)(i) would ensure that religious foster care agencies will not be able to discriminate against LGBTI people (including employees, potential foster carers and children being placed). However, the absence of a similar provision in relation to adoption agencies presumably means that religious organisations providing that particular service will be able to discriminate in this way.

This double-standard – where rainbow families are ‘good enough’ to be foster carers, but can still be rejected as adoptive parents just because of who they are – cannot be justified.

Therefore, if the carve-out approach is retained, in my view it should at a minimum be extended to include tertiary education, broader welfare services and adoption agencies.

Recommendation 1: If the ‘carve-out’ approach in section 50(1)(c) of the draft Bill is retained, the following areas of public life should be added:

  • Tertiary education
  • Welfare services generally, and
  • Adoption agencies.

2. The ongoing ability of religious organisations to discriminate on the basis of gender identity, sexual orientation and intersex status

I have framed the above recommendation in a qualified manner because I believe the ‘carve-out’ approach is itself problematic. That is because, in any area of public life that is not listed in section 50(1)(c), religious organisations will continue to be permitted to discriminate on the basis of gender identity, sexual orientation and intersex status, including in terms of who they employ and who they provide their services to.

This will obviously have a negative impact on LGBTI South Australians by restricting their ability to participate in public life without fear of discrimination. And it falls well below the best practice approach to religious exceptions, which has been adopted in the Anti-Discrimination Act 1998 (Tas), and in a more limited way the Discrimination Act 1991 (ACT).[vi]

The Tasmanian ‘gold standard’ allows religious organisations to discriminate – but only on the basis of religious belief or activity, and not on other grounds, such as sexual orientation, gender identity or intersex variations of sex characteristics.

For example, section 51 allows religious organisations to discriminate in employment in the following way:

(1) A person may discriminate against another person on the ground of religious belief or affiliation or religious activity in relation to employment if the participation of the person in the teaching, observance or practice of a particular religious is a genuine occupational qualification or requirement in relation to the employment.

(2) A person may discriminate against another person on the ground of religious belief or affiliation or religious activity in relation to employment in an educational institution that is or is to be conducted in accordance with the tenets, beliefs, teachings, principles or practices of a particular religion if the discrimination is in order to enable, or better enable, the educational institution to be conducted in accordance with those tenets, beliefs, teachings, principles or practices.

Section 51A then allows discrimination on the ground of religious belief or affiliation or religious activity in relation to enrolment at religious educational institutions (although not after the point of admission), while section 52 allows discrimination by religious organisations on the ground of religious belief or affiliation or religious activity in relation to ‘participation in religious observance’.[vii]

From my perspective, this is a fairer way in which to allow religious organisations to prioritise people from their own faith, while not infringing upon the rights of others – including LGBTI people – to live their lives free from discrimination.

I strongly urge the South Australian Government to improve the proposed Equal Opportunity (Religious Bodies) Amendment Bill 2020 by moving to a model where religious organisations are only allowed to discriminate on the basis of religious belief or activity, and not in relation to other protected attributes, including gender identity, sexual orientation and intersex status.

Recommendation 2: The South Australian Government should consider adopting the Tasmanian best practice approach to religious exceptions, allowing religious organisations to discriminate on the basis of religious belief and activity, but not in relation to other protected attributes including gender identity, sexual orientation and intersex status.

3. The ongoing ability of religious schools and universities to discriminate against LGBTI teachers, lecturers and other staff

The final, and arguably most important, problem with the Equal Opportunity (Religious Bodies) Amendment Bill 2020 is something it does not do – it does not remove the ability of religious education institutions (including schools and universities) to discriminate against LGBTI teachers, lecturers and other staff (which is currently permitted under section 34(3) of the Equal Opportunity Act 1984 (SA)).

In my view, this exception is unacceptable, for several reasons.

First, it is unfair on LGBTI teachers, lecturers and other staff. They may be the best qualified person for a job, but they can be denied employment (or, where they already work for a religious school or university, fired), on the basis of something which has no connection to their ability to perform the role. This is especially egregious given the large amounts of public funding provided to these institutions.

Second, it is unfair to students generally – who are denied being taught by the best possible teacher or lecturer for their class.

Third, it is unfair on LGBTI students in particular. Not only are they denied positive role models, they are also enrolled in an educational institution which has adopted a hostile attitude towards LGBTI teachers, lecturers and other staff, something which will inevitably influence the broader culture of the school or university.

Fourth, I do not believe the supposed ‘safeguard’ contained in sections 34(3)(b), (c) and (d) – which requires educational institutions wishing to rely on this exception to have a written policy stating its (discriminatory) position, that is provided to employees and potential employees, and on request to students, their families and members of the public – is sufficient.[viii]

Transparency doesn’t make prejudice any less real, or any more acceptable. LGBTI teachers, lecturers and other staff members can still be denied employment simply because of their gender identity, sexual orientation or intersex status – attributes which have absolutely nothing to do with their ability to perform the role.

Further, and even more damagingly, LGBTI students at these institutions who are aware of such policies will be acutely aware their presence there is only ‘tolerated’ because the institution is legally prohibited from discriminating against them (in other words, they would discriminate against these students if they could). They will know that they will never be truly accepted for who they are.

This last reason alone justifies removal of the exception for religious educational institutions in section 34(3) of the Equal Opportunity Act 1984 (SA) and instead prohibit all religious schools and universities from discriminating against LGBTI employees.

Recommendation 3: The exception allowing religious education institutions to discriminate against LGBTI teachers, lecturers and other staff in section 34(3) of the Equal Opportunity Act 1984 (SA) must be repealed, with these institutions prohibited from discriminating against employees on the basis of gender identity, sexual orientation and intersex status.

In conclusion, I should reiterate that, despite the problems identified above, the draft Equal Opportunity (Religious Bodies) Amendment Bill 2020 would, if passed in its current form, still significantly improve the rights of LGBTI people in South Australia to go about their lives free from discrimination.

In particular, I welcome the commitment of the South Australian Government to protect LGBTI students at religious schools against discrimination. This is much needed, and would have an immediate and appreciable benefit for vulnerable students across the state.

Nevertheless, I firmly believe the proposed legislation can be substantially strengthened, including by extending the scope of areas in which LGBTI people are protected to include tertiary education, welfare services and adoption agencies – or, even better, to adopt the best practice Tasmanian approach to religious exceptions (as discussed earlier).

Above all, I strongly encourage the South Australian Government to remove the ability of religious educational institutions to discriminate against LGBTI teachers, lecturers and other staff members, so that these places can become welcoming and inclusive places for all people seeking to learn, or impart knowledge, irrespective of their gender identity, sexual orientation or intersex status.

Thank you in advance for your consideration of this submission. Please contact me at the details provided should you wish to clarify any of the above, or for further information.

Sincerely,

Alastair Lawrie

Footnotes:

[i] See: A Quick Guide to Australian LGBTI Anti-Discrimination Laws.

[ii] For more information, see: Scott Morrison’s Broken Promise to Protect LGBT Students is Now Two Years Old. 

[iii] ‘This Part does not render unlawful discrimination in relation to- any other practice of a body established for religious purposes that conforms with the precepts of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.’

[iv] In many cases, these services will be using local, state and/or Commonwealth funding to do so. In nearly all cases, they will be relying on tax exemptions supporting them to carry out this work.

[v] Intersex status is the protected attribute currently included in the Equal Opportunity Act 1984 (SA). However, I support the replacement of intersex status with ‘sex characteristics’, as called for by Intersex Human Rights Australia, as well as intersex advocates in the March 2017 Darlington Statement.

[vi] The ACT has adopted the Tasmanian approach in relation to religious schools (only allowing discrimination on the basis of religious conviction, and not on the ground of sexuality, gender identity or sex characteristics), but not for other religious organisations.

[vii] Noting that section 52(d) of the Anti-Discrimination Act 1998 (Tas) is quite generous: ‘A person may discriminate against another person on the ground of religious belief or affiliation or religious activity in relation to- (d) any other act that- (i) is carried out in accordance with the doctrine of a particular religion; and (ii) is necessary to avoid offending the religious sensitivities of any person of that religion.’

[viii] Even if, in some circumstances, it may be useful in applying external pressure on religious educational institutions whose employment practices fall short of community standards.

Cooperative workplaces must be trans and intersex inclusive workplaces

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The Commonwealth Attorney-General’s Department has issued a consultation paper titled: ‘Cooperative Workplaces – How can Australia capture productivity improvements from more harmonious workplace relations’.

 

Submissions are due by Friday 28 February 2020. The following is mine:

 

Attorney-General’s Department

via IRconsultation@ag.gov.au

 

Monday 24 February 2020

 

To whom it may concern

 

Cooperative workplaces must be trans and intersex inclusive workplaces

 

Thank you for the opportunity to provide this submission in response to the Cooperative Workplaces consultation paper.

 

I do so as a long-term advocate on behalf of the lesbian, gay, bisexual, transgender and intersex (LGBTI) community.

 

In this submission I will focus on the following questions posed in the paper:

2. To what extent do employees benefit from cooperative workplaces?

7. How does the Australian industrial relations system support and encourage cooperative workplaces?

10. What has been the experience with techniques and practices to foster cooperative workplaces including, but not limited to: …

e) Fair treatment policies and procedures.

 

From my perspective, the benefits of cooperative workplaces flow from all employees being treated fairly and with respect, and where all employees are protected against discrimination on the basis of who they are.

 

If employees are able to bring their full selves to work, without having to hide who they are or fear mistreatment and other forms of abuse, they are likely to be happier, healthier and consequently work better.

 

Unfortunately, this is not the situation for all employees in Australian workplaces today. That’s at least in part because some groups, including trans and gender diverse, and intersex, employees do not enjoy the same rights as other employees.

 

Specifically, while gender identity and intersex status are protected attributes under the Sex Discrimination Act 1984 (Cth), they are not included in equivalent protections in the Fair Work Act 2009 (Cth).

 

For example, the adverse action provisions in sub-section 351(1) cover:

  • Race
  • Colour
  • Sex
  • Sexual orientation
  • Age
  • Physical or mental disability
  • Marital status
  • Family or carer’s responsibilities
  • Pregnancy
  • Religion
  • Political opinion
  • National extraction, and
  • Social origin.

 

Note that this long list does not protect trans, gender diverse or intersex people.

 

The same list of attributes, with the same exclusions, is found in sub-section 772(1)(f), which protects employees against unlawful termination. Meaning that the Fair Work Act does not protect trans, gender diverse and intersex Australians from mistreatment or unfair dismissal based on who they are.

 

There are other exclusions too:

  • Section 153 provides that discriminatory terms must not be included in modern awards. The list of relevant attributes includes sexual orientation, but excludes gender identity and sex characteristics;
  • Section 195 includes a similar prohibition on discriminatory terms in enterprise agreements, and once again omits trans, gender diverse and intersex people;
  • Sub-section 578(c) provides that the Fair Work Commission must perform its functions taking into account ‘the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.’

 

There is literally no requirement for the Fair Work Commission to help prevent or eliminate transphobic and intersexphobic workplace discrimination.

 

This leaves trans, gender diverse and intersex employees at a distinct disadvantage compared to other groups, including lesbian, gay and bisexual employees.

 

Indeed, even a certain infamous footballer was potentially covered against unfair dismissal on the basis of religious belief, whereas one of the main groups that he directed his offensive statements against – transgender Australians – is not.

 

I wrote to the former Prime Minister, Malcolm Turnbull, and the former Minister for Jobs and Innovation, Senator Michaelia Cash, raising this issue in May 2018, calling on them to amend the Fair Work Act to include gender identity and sex characteristics (being the terminology preferred by intersex advocate organisations including Intersex Human Rights Australia) as protected attributes.

 

I received a response to that letter from the then Minister for Small and Family Business, the Workplace and Deregulation, Craig Laundy, in July of that year, rejecting this call.

 

While he stated that ‘The Australian Government believes that discrimination in the workplace is unacceptable and all employees have the right to be free from discrimination at work”, he pointed to the SDA protections as being sufficient:

 

“The Sex Discrimination Act 1984 is the principal legislation providing protection against discrimination or harassment on the basis of sex and/or gender. It also covers discrimination and harassment in the workplace. The Sex Discrimination Act explicitly covers discrimination on the basis of gender identity and intersex status.”

 

Which, to be blunt, entirely misses the point.

 

First, other groups protected by the Fair Work Act, including those based on race, sex, age, disability and even sexual orientation, are covered by both that Act and an equivalent Commonwealth anti-discrimination law. If it is good enough for them, it is good enough for trans, gender diverse and intersex Australians.

 

Second, being included in the Fair Work Act gives people who are mistreated in the workplace, or unfairly dismissed, additional options in terms of making complaints, with potential implications for timing, jurisdiction, costs and compensation. Excluding gender identity and sex characteristics from one puts trans, gender diverse and intersex employees in an inferior legal position.

 

Third, there is a symbolic effect from the exclusion of gender identity and sex characteristics from the Fair Work Act, with many employers possibly viewing anti-trans and anti-intersex workplace discrimination as being less important than other types of workplace mistreatment.

 

Perhaps that is an inevitable outcome when the Government itself, as recently as 2018, was saying the same thing – loudly and clearly – by failing to address this obvious inconsistency, even after it was brought to their attention.

 

With a new Prime Minister, Scott Morrison, a new Attorney-General and Minister for Industrial Relations – both portfolios held by Christian Porter – as well as an apparent interest in ‘cooperative workplaces’, I believe it is essential for the Government to take action on this issue as a matter of urgency.

 

Recommendation 1

The Fair Work Act 2009 (Cth) should be amended to include gender identity as a protected attribute, with a definition based on the definition in the 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.’

 

Recommendation 2

The Fair Work Act 2009 (Cth) should be amended to include sex characteristics as a protected attribute, with a definition settled after consultation with Intersex Human Rights Australia and other intersex individuals and organisations, and based on the definition in the Yogyakarta Principles + 10:

‘understanding sex characteristics as each person’s physical features relating to sex, including genital and other sexual and reproductive anatomy, chromosomes, hormones, and secondary physical features emerging from puberty.’

 

If these recommendations are implemented, then trans, gender diverse and intersex employees around the country stand to benefit from being able to work with less fear from workplace mistreatment and abuse.

 

In doing so, the Australian industrial relations system will better support and encourage cooperative and harmonious workplaces where people are able to bring their full selves to work (if they so wish).

 

And all workplaces will be encouraged to adopt improved fair treatment policies and procedures, that don’t exclude trans, gender diverse and intersex employees, and don’t treat prohibitions on transphobic and intersexphobic discrimination as somehow less important than prohibitions relating to other protected attributes, including sexual orientation.

 

Overall, Australia would benefit from a significant minority of happier, healthier and yes more productive employees.

 

Thank you for taking this submission into consideration. Please contact me at the details provided should you require additional information.

 

Sincerely

Alastair Lawrie

 

Cooperative workplaces

 

For more, see Unfairness in the Fair Work Act.

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Submission to WA Law Reform Commission Inquiry into Recognition of a Person’s Sex, Change of Sex or Intersex Status

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Update 5 March 2019:

 

The Law Reform Commission of Western Australia has handed down its final report of its Review of Western Australian legislation in relation to the registration or change of a person’s sex and/or gender and status relating to sex characteristics (a copy of the report is available here).

 

It is generally well-considered, and largely positive for the trans, gender diverse and (in parts at least) intersex communities.

 

This includes Recommendation 1 that “The Equal Opportunity Act 1984 (WA) be amended to include protections against discrimination based on gender identity and intersex status” (although the latter protected attribute should instead be ‘sex characteristics’ in line with the Yogyakarta Principles plus 10).

 

There are also a range of recommendations that clarify the difference between sex and gender (and which one should be recorded in different contexts).

 

The most controversial recommendations (albeit ones I support) are:

 

Recommendation 5

Sex classification be removed from birth certificates

 

Recommendation 6

The Births, Deaths and Marriages Registration Act 1998 (WA) and the Births, Deaths and Marriages Registration Regulations 1999 (WA) be amended to expressly prohibit the recording of sex or gender on birth certificates.

 

This would then be replaced by an opt-in system of ‘Gender Identity Certificates’ for situations where gender may be relevant:

 

Recommendation 7

The Births, Deaths and Marriages Registration Act 1998 (WA) be amended to provide an application process for a person born in Western Australia to apply for a Gender Identity Certificate (with Recommendation 8 covering people born outside WA).

 

Importantly, under Recommendation 9, the gender markers included in these certificates would be expanded to include male, female and non-binary (although it does not include an ‘other’ category, as suggested in my submission to the Review, published below).

 

The WALRC further recommends that there no longer be any surgical or medical barriers for people to update their Gender Identity Certificate, instead proposing a simple administrative process, which, if introduced, would be best practice in Australia (for a comparison with existing laws around Australia, see Identity, not Surgery).

 

That phrase – if introduced – is key. Unfortunately, I understand that the WA Government has already shied away from the removal of sex and/or gender from birth certificates which, if true, would obviously be incredibly disappointing.

 

Trans, gender diverse and intersex people deserve better than to have a progressive Law Reform Commission of Western Australia report languish, unimplemented, on the shelves. Let’s hope the WA Government remembers why it commissioned this review in the first place.

 

Original submission:

Law Reform Commission of Western Australia

Level 23, David Malcolm Justice Centre

28 Barrack St

Perth WA 6000

lrcwa@justice.wa.gov.au

 

Friday 19 October 2018

 

To whom it may concern

 

Submission in relation to recognition of a person’s sex, change of sex or intersex status

 

Thank you for the opportunity to provide a submission to this important inquiry.

 

As noted in the Discussion Paper, Western Australia’s current legislation in relation to recognition of a person’s sex, change of sex (or gender) or intersex status is inadequate and out-dated, with negative consequences for trans, gender diverse and intersex individuals.

 

The model for reform proposed by the Commission would address a number of these short-comings, although I believe there could be further improvements as discussed below.

 

I write this submission as a cisgender gay member of the LGBTI community, and as an ally of the intersex, trans and gender diverse communities. Where there may be inconsistencies between this submission and the positions supported by those communities, I defer to their views.

 

Question 1. Will the Commission’s proposed model cause any difficulties if implemented?

 

I believe the Commission’s proposed model will remove some of the regulatory barriers currently experienced by trans and gender diverse people in having their gender identities recognised in Western Australia.

 

The removal of sex from birth certificates will also have particular benefits for people born with variations in sex characteristics, reducing pressure for involuntary and unnecessary medical treatments and/or surgeries to be performed.

 

However, as indicated above, I believe there could nevertheless be some improvements made to the model to ensure it better addresses the needs of these diverse communities.

 

Question 2. Is the ‘indeterminate’ category sufficient or should additional categories be added to the forms that are used for the First Report and the Second Report, which will then be used to record the sex of the child?

 

In principle, I do not object to the recording of ‘indeterminate’ sex in the First or Second Reports, provided other aspects of the model – and especially the removal of sex from birth certificates – are also implemented. This appears to ensure statistical data is collected while also reducing the stigmatisation of children born with intersex variations.

 

However, if the collection of ‘indeterminate’ sex is to continue through this process, it would be useful for the WA Government to indicate the numbers of births that have been recorded using this category – and also to actively monitor the number of children with intersex variations who undergo medical interventions to modify their sex characteristics each year (in an effort to reduce and ultimately eliminate human rights abuses in this area).

 

Question 3. Should sex classification be mandatory on birth certificates?

 

No.

 

I can see no proper purpose for recording sex classification in this way. In contrast, there are multiple benefits to be gained by removing this category from this form.

 

For trans and gender diverse people, and especially trans and gender diverse young people, it means they will be able to determine their own gender identity (which is much more relevant) when they are ready – and have that identity reflected in official documentation more easily (under other parts of the model),

 

For people born with variations of sex characteristics, it will help to reduce pressures for involuntary and unnecessary treatments and/or surgeries to alter their sex characteristics to conform to medical, parental and/or societal expectations.

 

The removal of sex and gender from birth certificates has also been called for in the March 2017 Darlington Statement of Australian and New Zealand intersex advocates and as part of the Yogyakarta Principles plus 10.

 

Question 4. Should alternative markers be available, such as ‘other/indeterminate’ or ‘not specified’, if sex classification is required on birth certificates?

 

I would defer to the views of intersex, trans and gender diverse organisations on this issue.

 

However, for the reasons outlined above, I would strongly urge the Commission – and the Western Australian Parliament – to ensure that sex classification be removed, avoiding the potential for adverse consequences in this area.

 

Question 5. Are there circumstances in which it will be necessary or desirable to prove sex through a birth certificate, where proof of gender by a Gender Identity Certificate or proof of sex by medical documentation is not appropriate or sufficient?

 

No. I can think of no circumstances in which proof of sex through birth certificate would be necessary, or preferable instead of proof of gender by Gender Identity Certificate.

 

Question 6. If yes for the above, would certification by the Registrar alleviate this issue?

 

Not applicable.

 

Other comments on the proposed model

 

There are other aspects of the Commission’s proposed model that are welcome, including the recommended abolition of the Gender Reassignment Board (with the simplified functions under the model performed by the Registrar instead).

 

I also welcome the proposed ability of minors to apply for a Gender Identity Certificate from the age of 12, with parental consent.

 

However, I question the age at which parental consent should no longer be required. Rather than the age of 18, which appears to be the position of the Discussion Paper, I believe consideration should be given to adopting an age of 16, as recommended by the February 2016 options paper from the Tasmanian Anti-Discrimination Commissioner.

 

In terms of which categories should be available on Gender Identity Certificates, I suggest that all of Male, Female, Non-Binary and Other (Please Specify) should be options, to recognise the complexity of gender identity, and that simply adding ‘non-binary’ may not accurately capture all of the possible identities of trans and gender diverse people.

 

However, as expressed earlier in the submission, if the consensus view of trans organisations and individuals is that Male, Female and Non-Binary are sufficient, I defer to those views.

 

On the issue of time limits, I do not agree with the proposal to make any change of gender identity beyond the third occasion subject to approval by an appropriate court or tribunal. I can see no reason why, if change of name is allowed annually, that application for change of gender identity should not also be allowed every 12 months (while noting that it is highly unlikely people will actually apply more than two or three times).

 

I also believe there may be some circumstances in which, even within a particular 12 month timeframe, there may be reasons to allow a person to apply to an appropriate court or tribunal for a change of gender identity to be revised (where, for example, a person is distressed following the issuing of a new gender identity certificate and making them wait to amend it has the potential to cause additional psychological distress).

 

An additional concern I have about the model is the comment on page 70 that “The Registrar may also request further evidence if required to prove the application [for a Gender Identity Certificate] is not sought for an improper or fraudulent purpose.”

 

This power seems to undermine the overall intention for the model to reflect self-identification as far as possible. There is also already a penalty for providing a false statutory declaration, making the necessity of such a power debatable.

 

In this situation, I suggest consideration of either removing this power entirely, or for ensuring additional safeguards on its exercise, to ensure it is only used sparingly, and in exceptional circumstances (rather than reintroducing onerous requirements for individuals to supply medical and other evidence through these administrative arrangements).

 

In addition, any decision by a Registrar to reject an application for a new Gender Identity Certificate (that is different to a previous certificate) on these grounds must be easily appealable, at low or no cost to the individual.

 

Finally, in relation to determining the appropriate place to hear appeals (both in relation to this issue, and also on other questions, such as applications for Gender Identity Certificates for minors where parents disagree, or where a person seeks a change in certificate prior to the expiry of any relevant time limits), I express reservations about the suggestion on page 75 that:

 

“The Commission considers the Family Court to be an appropriate decision-maker where the application is contested by one or more parent(s)/guardian(s), given the Family Court’s jurisdiction for approving medical procedures for intersex and trans and gender diverse minors in circumstances where a child is unable to give informed consent or where there is a disagreement between the parents or guardians about the medical procedure.”

 

Based on some harmful decisions in relation to intersex minors and involuntary medical treatments and/or surgeries by the Family Court of Australia, the Western Australian Family Court may not be seen as being best-placed to adopt the role of decision-maker under the Commission’s proposed model. I therefore suggest consideration be given to adopting a different decision-maker, including the possibility of a specialist tribunal within Western Australia.

 

Other issues

 

I welcome the comments by the Commission, on page 77, that:

 

“The [Equal Opportunity Act 1984] does not provide protections for intersex people, on the basis of their sex characteristics or intersex status, nor does it provide protections for people on the basis of their gender identity. The Commission considers a detailed review of the EO Act would be beneficial.”

 

However, while I support the view that this inadequate and out-dated legislation should be reviewed, I do not believe this should delay amendments to the protected attributes covered under the Act to ensure all members of the LGBTI community in Western Australia are protected against discrimination, as quickly as possible.

 

This could be achieved by adding the protected attribute of ‘gender identity’, potentially based on the definition used in the CommonwealthSex Discrimination Act 1984(with final wording agreed following consultation with the WA trans and gender diverse community).

 

However, I disagree with the Commission that consideration should be given to introducing a protected attribute of ‘intersex status’, again potentially based on the Sex Discrimination Actdefinition.

 

While that approach would ensure greater consistency between WA and Commonwealth law, it is not best practice. Instead, I support the introduction of a protected attribute of ‘sex characteristics’, as called for by Intersex Human Rights Australia, and in the Darlington Statement, potentially using the definition included in the Yogyakarta Principles plus 10:

 

‘each person’s physical features relating to sex, including genitalia and other sexual and reproductive anatomy, chromosomes, hormones, and secondary physical features emerging from puberty.’

 

Finally, I note that any consultation that addresses the issue of legal recognition of people with intersex variations will inevitably raise the issue of harmful, involuntary and unnecessary medical surgeries and/or treatments of children born with variations in sex characteristics.

 

The Discussion Paper indeed touches on this issue, including noting on page 28 that “The Commission understands that the current medical preference is to monitor, rather than intervene, for as long as is medically viable.”

 

My own understanding, based on views expressed by intersex organisations, is that this position may not be entirely accurate. I therefore call on the Commission to further investigate this issue, in consultation with intersex organisations.

 

Ultimately, I would like to see Principle 32 of the Yogyakarta Principles plus 10 reflected in the lived experience of all intersex people in Australia:

 

‘Everyone has the right to bodily integrity, autonomy and self-determination irrespective of sexual orientation, gender identity, gender expression or sex characteristics. Everyone has the right to be free from torture and cruel, inhuman and degrading treatment or punishment on the basis of sexual orientation, gender identity, gender expression and sex characteristics. No one shall be subjected to invasive or irreversible medical procedures that modify sex characteristics without their free, prior and informed consent, unless medically necessary to avoid serious, urgent and irreparable harm to the concerned person’ (emphasis added).

 

Please do not hesitate to contact me at the details provided below should you wish to clarify any of the above, or for further information.

 

Sincerely

Alastair Lawrie

 

5 Years of Commonwealth LGBTI Anti-Discrimination Laws. 5 Suggestions for Reform.

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This post is part of a series looking at the unfinished business of LGBTI equality in Australia. You can see the rest of the posts here. 

 

Five years ago today, Commonwealth Parliament passed the historic Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013.

 

Almost four decades after the Racial Discrimination Act 1975, and nearly three decades after the passage of the Sex Discrimination Act 1984, lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians finally received protection against discrimination under Commonwealth law.

 

While the SDA amendments were ground-breaking at the time, no piece of legislation is ever perfect. Five years into its operation, here are five areas in which I believe this Act can and should be improved.

 

  1. Update ‘intersex status’ to ‘sex characteristics’

 

With the passage of the 2013 amendments to the Sex Discrimination Act, Australia became one of the first jurisdictions in the world to explicitly protect people with intersex variations against discrimination.

 

This is because it added ‘intersex status’ as a stand-alone protected attribute, which was defined under section 4 as:

 

‘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.’

 

However, since then intersex advocates have expressed concerns about this wording, including that it may not adequately protect all intersex people (for example, potentially conflating or confusing issues of biology and identity).

 

For these reasons, in the landmark March 2017 Darlington Statement, OII Australia (now Intersex Human Rights Australia) and other intersex representatives ‘call[ed] for effective legislative protection from discrimination and harmful practices on grounds of sex characteristics’ [emphasis added].

 

Sex characteristics was then defined in the Yogyakarta Plus 10 Principles ‘as each person’s physical features relating to sex, including genitalia and other sexual and reproductive anatomy, chromosomes, hormones, and secondary physical features emerging from puberty.’

 

Australia helped lead the world in including ‘intersex status’ in the Sex Discrimination Act. Five years later we should take action again by updating this attribute to refer to ‘sex characteristics’ instead.

 

  1. Protect LGBT students against discrimination

 

A positive feature of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 was the aged care ‘carve-out’ from the otherwise overly-generous (see below) exceptions provided to religious organisations.

 

Sub-section 37(2) of the amended Sex Discrimination Act provides that the general exception ‘does not apply to an act or practice of a body established for religious purposes if:

(a) the act or practice is connected with the provision, by the body, of Commonwealth-funded aged care; and

(b) the act or practice is not connected with the employment of persons to provide that aged care.’

 

In effect, religious-operated aged care facilities that receive public funding are not permitted to discriminate against LGBT people accessing those services (although unfortunately they can still discriminate against LGBT employees).

 

Five years since this clause was passed, and there is exactly zero evidence that it has had any negative impact on the supposed ‘religious freedom’ of these institutions – and plenty of evidence that it has helped to protect older lesbian, gay, bisexual and transgender people from unjustifiable discrimination.

 

Now, it is time to ensure that an equivalent provision is introduced to protect people at the other end of the age spectrum from similar mistreatment: younger LGBT people who are students at government-funded religious schools and colleges.

 

These students are just as vulnerable as older LGBT people accessing aged care services, and just as with the ‘carve-out’ in sub-section 37(2), there is no reason why taxpayer money should be used to discriminate against them on the basis of their sexual orientation or gender identity.

 

It is time to amend the Sex Discrimination Act to remove the special privilege enjoyed by publicly-funded religious educational institutions to discriminate against LGBT students. This could be achieved by adding a similar carve-out in sub-section 37(2), and repealing sub-section 38(3), which also allows discrimination by religious schools against LGBT students.

 

  1. Limit overly-generous general religious exceptions

 

While I believe the exceptions allowing discrimination against LGBT students deserve special attention, it is also important to reform the broader religious exceptions contained in the Sex Discrimination Act.

 

Sub-section 37(1) currently provides that none of the Act’s LGBT discrimination protections apply to:

(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 selection or appointment of persons to perform duties or functions for the purposes of or in connection with, or otherwise to participate in, any religious observance or practice; or

(d) any other act or practice of a body established for religious purposes, being an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion.’

 

[Section 38 provides a similarly-worded exception in relation to education, with sub-section 38(1) allowing religious schools to discriminate against teachers and other employees, and sub-section 38(2) permitting discrimination against contract workers.]

 

These clauses, and especially s37(1)(d), provide religious organisations with carte blanche to discriminate against LGBT Australians on the basis of their sexual orientation or gender identity. Such discrimination often has very little to do with sincerely-held religious beliefs, but is instead simply homophobia, biphobia or transphobia dressed up in a cloak of religious-sounding language.

 

I believe this discrimination has no place in 21st century Australia – and suspect most ordinary Australians agree (something that was confirmed in October in the wake of the leaking of the recommendations of the Ruddock Religious Freedom Review).

 

Fortunately, one Australian jurisdiction provides a much better precedent in this area, with legislation that still protects genuine religious freedom without endorsing broader anti-LGBT discrimination.

 

The Tasmanian Anti-Discrimination Act 1998 allows discrimination in certain circumstances in employment (section 51), admission as a student (section 51A) and participation in a religious observance (section 52), but only on the basis of religious belief or affiliation, and not because of sexual orientation or gender identity (or sex, pregnancy, relationship status or other attributes).

 

The Commonwealth Sex Discrimination Act should be amended to adopt the much-preferable Tasmanian approach to religious exceptions, thereby dramatically narrowing the special privileges allowing them to engage in discrimination that would otherwise be unlawful.

 

  1. Introduce protections against anti-LGBTI vilification

 

Currently, only four Australian jurisdictions have anti-vilification laws which protect members of the lesbian, gay, bisexual, transgender and intersex community: NSW, Queensland, Tasmania and the ACT. Of those, Queensland doesn’t cover intersex people, while NSW includes LGBTI people in the new criminal offence of ‘publicly threatening or inciting violence’ but only lesbians, gay men and trans people with binary gender identities can make civil complaints of vilification under the Anti-Discrimination Act 1977.

 

There are still no protections against anti-LGBTI vilification in Victoria, Western Australia, South Australia or the Northern Territory. And there is no LGBTI equivalent of section 18C of the Racial Discrimination Act 1975 under Commonwealth law either.

 

This is a situation that must change. Because homophobic, biphobic, transphobic and intersexphobic vilification is just as serious, and just as damaging, as racial vilification.

 

This was unequivocally demonstrated, and witnessed by the entire country, during last year’s same-sex marriage postal survey, with anti-LGBTI (and especially anti-trans) rhetoric in mainstream media and across society more generally. And while there were temporary, narrowly-defined prohibitions on vilification for the duration of that campaign (which have now expired), the hate-speech against our community that it stirred up continues unabated.

 

For all of these reasons, I believe it is beyond time for the Sex Discrimination Act to be amended to prohibit vilification on the basis of sexual orientation, gender identity and sex characteristics.

 

  1. Create an LGBTI Commissioner

 

From the Australian Human Rights Commission (AHRC) website:

 

‘The Commission has a President and seven Commissioners:

  • President Emeritus Professor Rosalind Croucher AM
  • Aboriginal and Torres Strait Islander Social Justice Commissioner Ms June Oscar AO
  • Age Discrimination Commissioner The Hon Dr Kay Patterson AO
  • Children’s Commissioner Ms Megan Mitchell
  • Disability Discrimination Commissioner Mr Alastair McEwin
  • Human Rights Commissioner Mr Edward Santow
  • Race Discrimination Commissioner Mr Chin Tan
  • Sex Discrimination Commissioner Ms Kate Jenkins.’

 

Notice who’s missing? Of the major groups protected against discrimination under legislation administered by the AHRC, only one does not have a stand-alone Commissioner of their own: the LGBTI community.

 

Responsibility for LGBTI issues has instead been allocated to the Human Rights Commissioner (both the current office-holder, and his predecessor, Tim Wilson) but it is merely one of a number of different, often competing priorities of their role – sometimes directly so, given their simultaneous responsibility for promoting religious freedom.

 

It is inevitable that, under this organisational structure, LGBTI issues will not be given the same level of attention as those of race, sex, disability and age. The best way to change this is to amend the Sex Discrimination Act to create a full-time Commissioner dedicated to addressing anti-LGBTI discrimination.

 

**********

 

The passage of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 was an important achievement in the long struggle for LGBTI equality in Australia, in my opinion just as significant as the recognition of same-sex de facto relationships in 2008, and the long overdue legalisation of same-sex marriage late last year.

 

But, just five years old, these historic reforms are already showing their inherent limitations. It’s time for Commonwealth parliament to take action to ensure that the Sex Discrimination Act is effective in addressing anti-LGBTI discrimination and vilification. The five reforms suggested above would be a good place to start.

 

julia

Former Prime Minister Julia Gillard passed the historic Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 in the dying days of her leadership.

 

If you have enjoyed reading this article, please consider subscribing to receive future posts, via the right-hand scroll bar on the desktop version of this blog or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus

 

The State of Homophobia, Biphobia & Transphobia Survey Results, Part 5: Discrimination in Employment

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This post is the fifth in a series of six, reporting the results of The State of Homophobia, Biphobia & Transphobia survey I conducted at the start of 2017[i].

 

In all, 1,672 lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) Australians provided valid responses to that survey.

 

In this article, I will be focusing on their answers to four questions, asking whether they have ever experienced discrimination in employment, whether any of this discrimination occurred in the past 12 months, whether this discrimination related to employment by religious organisations and to provide an example of the discrimination that they experienced.

 

The responses to these questions confirm that too many LGBTIQ Australians have to worry about discrimination on the basis of their sexual orientation, gender identity and intersex status in the workplace on top of the usual career and financial worries.

 

The question about whether any of this discrimination occurred in relation to employment by a religious organisation is important because of the existence of special rights to discriminate for these employers in most states and territories, leaving LGBTI employees in these circumstances without any legal redress.

 

I also encourage you to read the examples provided in response to question four, which reveal some of the many different types of employment-related discrimination that LGBTIQ people have encountered.

 

The State of Homophobia, Biphobia & Transphobia-11

 

Question 1: Have you ever experienced discrimination because of your sexual orientation, gender identity or intersex status in relation to employment (including as an employee, contract worker or job applicant)?

 

Question 2: Has one or more instances of this employment-related discrimination occurred in the past 12 months?

 

&

 

Question 3: Did any of this discrimination occur in relation to employment, or an application for employment, with a religious organisation?

 

Of the 1,622 people who answered the first question, 491 – or 30% – said they had experienced employment-related discrimination at some point in their lives.

 

Disturbingly, 235 survey respondents[ii] reported experiencing anti-LGBTIQ discrimination in employment in the past 12 months alone. That is 14.5% of the total, or 1 in every 7 people who completed the survey.

 

The proportion that reported employment-related discrimination by religious organisations was 6.1%[iii]. This is thankfully much lower than the proportion that had reported discrimination by religious schools (in Survey Results, Part 4) – although that is likely a reflection of the expansive reach of religious schools, and comparatively smaller employment footprint of religious bodies.

 

Nevertheless, most of those 6% probably had no recourse to anti-discrimination protections given the excessive, and unjustified, exceptions provided to religious organisations in most Australian jurisdictions.

 

LGBTIQ Status

 

There were some significant differences in reported employment-related discrimination between lesbian, gay, bisexual, transgender, intersex and queer survey respondents:

 

Lesbian

 

  • 31.6%[iv] reported employment-related discrimination at some point
  • 15.3%[v] experienced at least one instance in the last 12 months
  • 7.8%[vi] experienced employment-related discrimination by a religious organisation

 

Gay

 

  • 34.3%[vii] reported employment-related discrimination at some point
  • 13%[viii] experienced at least one instance in the last 12 months
  • 5.9%[ix] experienced employment-related discrimination by a religious organisation

 

Bisexual

 

  • 20.3%[x] reported employment-related discrimination at some point
  • 11.1%[xi] experienced at least one instance in the last 12 months
  • 4.3%[xii] experienced employment-related discrimination by a religious organisation

 

Transgender

 

  • 44.4%[xiii] reported employment-related discrimination at some point
  • 29.2%[xiv] experienced at least one instance in the last 12 months
  • 6.8%[xv] experienced employment-related discrimination by a religious organisation

 

Intersex

 

  • 73.3%[xvi] reported employment-related discrimination at some point
  • 40%[xvii] experienced at least one instance in the last 12 months
  • 20%[xviii] experienced employment-related discrimination by a religious organisation

 

Queer

 

  • 30.3%[xix] reported employment-related discrimination at some point
  • 16.9%[xx] experienced at least one instance in the last 12 months
  • 6%[xxi] experienced employment-related discrimination by a religious organisation

 

LGBTIQ Category Experienced anti-LGBTIQ discrimination in employment (%)?
Ever Last 12 months By religious organisation
Lesbian 31.6 15.3 7.8
Gay 34.3 13 5.9
Bisexual 20.3 11.1 4.3
Transgender 44.4 29.2 6.8
Intersex 73.3 40 20
Queer 30.3 16.9 6

 

The highest rates for all three were from intersex respondents, although the small sample size for that group (n=15) means those figures should be treated with some caution.

 

Of the other groups, there was a large degree of consistency, with two main exceptions:

 

  • Bisexual respondents reported significantly lower rates of employment-related discrimination in all three areas (ever, last 12 months and by religious organisations), and
  • Transgender respondents reported significantly higher rates of lifetime employment-related discrimination, and particularly in the last 12 months (although, interestingly, not in terms of discrimination by religious organisations).

 

Taking a closer look at the trans cohort, and in particular respondents who identified as both trans and another LGBQ category, the figures[xxii] were as follows:

 

Trans and lesbian: 37.2%[xxiii] ever, and 25.6% in the last 12 months

 

Trans and gay: 47.4%[xxiv] ever, and 28% in the last 12 months

 

Trans and bisexual: 36.1%[xxv] ever, and 24.6% in the last 12 months, and

 

Trans and queer: 42.2%[xxvi] ever, and 25.9% in the last 12 months.

 

While there was little variation in terms of discrimination over the past 12 months (at a disturbingly high 1-in-4 across all groups), trans and queer, and especially trans and gay respondents were more likely to report lifetime discrimination in employment than the other two groups.

 

Overall, then, while lesbian, gay and queer people reported close-to-(the LGBTIQ)-average levels of employment-related discrimination across the board, bisexual respondents reported lower rates.

 

On the other hand, intersex and transgender respondents were particularly affected by discrimination in employment, with people who were both trans and gay and (to a lesser extent) trans and queer more likely to report lifetime discrimination.

 

Aboriginal and Torres Strait Islander People

 

The rates of discrimination for Aboriginal and/or Torres Strait Islander LGBTIQ people were higher for all three questions than for their non-Indigenous counterparts, although thankfully in relation to discrimination in the past 12 months and by religious organisations these rates were only slightly elevated:

 

  • 37.9%[xxvii] reported employment-related discrimination at some point (compared to 30% of non-Indigenous people)
  • 15.5%[xxviii] experienced at least one instance in the past 12 months (compared to 14.5% of non-Indigenous people) and
  • 6.9%[xxix] experienced employment-related discrimination by a religious organisation (compared to 6.1% of non-Indigenous people).

 

Experienced anti-LGBTIQ discrimination in employment (%)?
Ever Last 12 months By religious organisation
Aboriginal and/or Torres Strait Islander 37.9 15.5 6.9
Non-Indigenous 30 14.5 6.1

 

Age

 

These results are potentially the most interesting of this post:

 

Aged 24 and under

 

  • 20.9%[xxx] reported employment-related discrimination at some point
  • 13.8%[xxxi] experienced at least one instance in the past 12 months
  • 3.8%[xxxii] experienced employment-related discrimination by a religious organisation

 

25 to 44

 

  • 36.9%[xxxiii] reported employment-related discrimination at some point
  • 16.2%[xxxiv] experienced at least one instance in the past 12 months
  • 7%[xxxv] experienced employment-related discrimination by a religious organisation

 

45 to 64

 

  • 48.5%[xxxvi] reported employment-related discrimination at some point
  • 16.1%[xxxvii] experienced at least one instance in the past 12 months
  • 11.3%[xxxviii] experienced employment-related discrimination by a religious organisation

 

65 and over

 

  • 41.9%[xxxix] reported employment-related discrimination at some point
  • None experienced any instance in the past 12 months
  • 16.1%[xl] reported discrimination at a religious school or college

 

Age cohort Experienced anti-LGBTIQ discrimination in employment (%)?
Ever Last 12 months By religious organisation
24 and under 20.9 13.8 3.8
25 to 44 36.9 16.2 7
45 to 64 48.5 16.1 11.3
65 and over 41.9 0 16.1

 

Young people obviously have less employment history, and therefore the lower rates of reported lifetime discrimination are perhaps unsurprising. However, the fact that almost 1-in-7 suffered employment-related discrimination during the past 12 months alone, when a significant share would not even be in the workforce at all, is shocking.

 

Lifetime rates of discrimination then increase for the next two age groups, peaking at almost 1-in-2 for LGBTIQ people aged 45 to 64. In effect, just as many people in this cohort have experienced discrimination in employment as those who have escaped its impact – another remarkable statistic.

 

Perhaps just as depressing is the fact that for both people aged 25 to 44, and 45 to 64, the rates of recent anti-LGBTIQ prejudice in employment were roughly the same – at a time when they should be more ‘secure’ in their careers, almost 1-in-6 experienced employment related discrimination in the last year alone.

 

State or Territory of Residence

 

The final demographic category according to which I have analysed the survey results is the state or territory of residence:

 

New South Wales

 

  • 28.7%[xli] reported employment-related discrimination at some point
  • 13.4%[xlii] experienced at least one instance in the last 12 months
  • 5.7%[xliii] experienced employment-related discrimination by a religious organisation

 

Victoria

 

  • 33%[xliv] reported employment-related discrimination at some point
  • 14.2%[xlv] experienced at least one instance in the last 12 months
  • 6.6%[xlvi] experienced employment-related discrimination by a religious organisation

 

Queensland

 

  • 36.6%[xlvii] reported employment-related discrimination at some point
  • 17.5%[xlviii] experienced at least one instance in the last 12 months
  • 6.9%[xlix] experienced employment-related discrimination by a religious organisation

 

Western Australia

 

  • 32.7%[l] reported employment-related discrimination at some point
  • 17.3%[li] experienced at least one instance in the last 12 months
  • 5.3%[lii] experienced employment-related discrimination by a religious organisation

 

South Australia

 

  • 26.3%[liii] reported employment-related discrimination at some point
  • 15.8%[liv] experienced at least one instance in the last 12 months
  • 7.5%[lv] experienced employment-related discrimination by a religious organisation

 

Tasmania

 

  • 20.4%[lvi] reported employment-related discrimination at some point
  • 9.3%[lvii] experienced at least one instance in the last 12 months
  • 3.7%[lviii] experienced employment-related discrimination by a religious organisation

 

Australian Capital Territory

 

  • 19.6%[lix] reported employment-related discrimination at some point
  • 14.3%[lx] experienced at least one instance in the last 12 months
  • 3.6%[lxi] experienced employment-related discrimination by a religious organisation

 

Northern Territory

 

  • 35%[lxii] reported employment-related discrimination at some point
  • 10%[lxiii] experienced at least one instance in the last 12 months
  • 15%[lxiv] experienced employment-related discrimination by a religious organisation

 

State or territory Experienced anti-LGBTIQ discrimination in employment (%)?
Ever Last 12 months By religious organisation
NSW 28.7 13.4 5.7
Victoria 33 14.2 6.6
Queensland 36.6 17.5 6.9
WA 32.7 17.3 5.3
SA 26.3 15.8 7.5
Tasmania 20.4 9.3 3.7
ACT 19.6 14.3 3.6
NT 35 10 15

 

These results were largely consistent across state and territory boundaries (thus lending weight to the overall figures, discussed earlier).

 

Tasmania and the ACT reported low lifetime rates of employment-related discrimination, with Queensland recording the highest rates (alongside the Northern Territory, although note the latter’s small sample size, n=20).

 

Queensland and Western Australia reported higher levels of anti-LGBTIQ prejudice in the workplace during the last year – more than 1-in-6 employees reporting recent discrimination. Tasmania (and the Northern Territory) reported the lowest rates – but that nevertheless reflected the fact 1-in-10 LGBTIQ people were discriminated against in 2016 alone.

 

**********

 

Question 4: If you feel comfortable, please provide an example of the discrimination you experienced in relation to employment [Optional]:

 

This question allowed respondents to provide examples of the anti-LGBTIQ discrimination they had experienced and, just as with previous survey results, these comments are often confronting to read.

 

A lightly-edited[lxv] version of the answers to this question – providing examples of homophobic, biphobic, transphobic and intersexphobic discrimination in relation to employment – can be found at the following link:

 

question 4 examples of discrimination in employment

 

These answers demonstrate a range of different ways in which LGBTIQ people were mistreated in comparison to cisgender heterosexual employees, including:

 

  • Being refused employment

 

“I was told “we don’t hire faggy trans here, or anywhere in this town. If you come back in this shop, we’ll shoot you.””

 

“I was hired as CEO for a charity. After three interviews, a psych test and a video presentation, I was told I was the leading candidate by a mile. We negotiated start date and salary. As part of the process, I disclosed I was married to a man. That disclosure happened at 305pm on a Monday. At 740am Tuesday, I received an email advising me that the offer was withdrawn. They, of course, did not say it was because I was gay. I, apparently, did not demonstrate sufficient interest in the job.”

 

“Denied a job based on cultural reasons – sexuality not part of our culture therefore cannot teach about said culture. Offer of employment rescinded.”

 

“Got a job interview but as soon as they saw that I was a dyke I didn’t even get a chance to speak to them they acted awkward and uncomfortable and said I wouldn’t suit the job.”

 

  • Being fired from employment

 

“when they found i was homosexual i was sacked from my position as bar attendant in a league club”

 

“Refused employment because of my transgender status, the supervisor found a reason for dismissal on day one and asked what dose oestrogen I was on as my voice is deep and upsetting my patients”

 

  • Losing shifts, especially in casual or part-time employment

 

“My old maccas got a new restaurant manager who hated me because of it and stopped giving me shifts.”

 

“At my last job my employer found out I was a lesbian and coincidentally I stopped receiving any shifts.”

 

“I was in a casual position, the moment I began to transition however, I was shoved sideways and out the door. No more hours.”

 

  • Contracts not being renewed

 

“My contract was not renewed because I am gay”

 

“I believe that when my homophobic boss found out I was gay, she discontinued my contract”

 

  • Being denied other employee entitlements

 

“I wasn’t allowed to nominate my partner to receive my superannuation in the event of my death.”

 

Some survey respondents indicated they were punished because of fears (real or perceived) that clients would react badly to their sexual orientation or gender identity:

 

“I have been turned down for some jobs where I would be dealing with the public in hospitality because I was a non passing trans woman.”

 

“I had a job interview with an organisation specialising in disability support in the Midland area (Western Australia), to work as a disability support officer. I had already done exactly the same work for about a year with two other similar organisations which both wanted me to take on more hours. Because those organisations were both a long drive from where I lived I wanted to change to a closer employer. At the end of the interview one of the two interviewers said they could not employ a transgender person because their clients would not accept me. Funny that, their clients must have been very different from the other clients who accepted me without question.”

 

“Clients have refused to hire me and have been open about it being related to my sexuality. My clients’ clients have been very vocal and made complaints about hiring me because of my work with young people and their sexuality/gender identity/expression”

 

For some, workplace homophobia, biphobia, transphobia or intersexphobia was explained by a need to ‘protect’ children:

 

“I was sacked in 1987 because I was gay and working as a swimming teacher with children. Despite my full accreditation this was perceived to be inappropriate. I had no resources to take legal action as I was just 19, from a poor background and despite being the regional swimming champion the community had turned against me.”

 

“One employer was so uncomfortable with my sexuality that he would not allow his 3 daughters to have contact with me despite bringing them into the office frequently.”

 

“In 2012 my boss suggested that we have 2 Christmas dinners. One for people with kids, and a separate one with just me and the 2 bosses because “it’s not appropriate to allow a gay man near the kids of other staff members”. I worked at an adult store (sex shop), where I thought I’d be accepted by open minds. I was wrong.”

 

“I was doing work with teenagers at my church’s youth group, but when I refused to hide my sexuality I was told that I was being a bad influence on the kids and would let the devil into their lives and condemn them to damnation. I was no longer allowed to work with the teenagers.”

 

This last example points to a much larger issue – employment-related discrimination by religious organisations, as evidenced by the following responses:

 

“I was a charge nurse of an operating suite that had successfully turned around the fortunes of a religious based hospital: a new manager was appointed that decided to “root out’ all the homosexuals working in the organisation.”

 

“I have been asked to sign a document that guarantees my not wilfully “sinning” (listing homosexual acts as one of those sins) in order to be considered for employment at a religious school.”

 

“After completing my course with results and references from teachers and clinical placements which were far superior to other students, I received no interviews or call backs from employers from religious organisations. I did find work at a private company in my field and am doing well in my job. I feel like my talents and abilities were denied to the clients of these religious employers because of my gender identity and my employment options were severely limited.”

 

“I work as a nurse at a religious based hospital and I experience bullying/ homophobic remarks frequently at work”

 

“company bought out by exclusive brethren, all gays got sacked, was obvious, but they got away with it. “company restructure”…”

 

“I was employed by the Salvation Army. They told me not to have a photo of me and my partner on my desk even though all the Het people had their photos on their desks. I was then told they accept me being a Lesbian provided I’m not a practicing Lesbian. They put a private detective on me and harassed me out of my job.”

 

“I was required to resign my job in 2006 when I came out as gay because my employer was religious. The job had only tangential connection to his religion. I chose not to fight the discrimination – I had lost the heart to work there any more any way. I was then unemployed for 8 months.”

 

“Before I moved into my own practice, I was working in a Baptist school on a maternity leave position. The position then became a permanent role. My manager wanted me to apply and she put my name forward. They pretty much told her that they did not want me in the role because of my “sexuality”…”

 

“Many years ago I won a job in a religious school, was offered the job and then the offer was withdrawn with the explanation that I would not fit the culture.”

 

The public service was not exempt from examples of anti-LGBTIQ discrimination (although some were more historical than others):

 

“Being told my sexuality would count against me in an interview for a public sector position.”

 

“In 2012 I was appointed as [senior position] in the [redacted] government. It was a high level and high profile appointment. The Deputy Secretary of the Department who appointed me, wrongly informed the Secretary (i.e. CEO) of the Department that I was gay, in the period when I was coming on board in the role. His response? He told the Dep Sec “I hope he’s not going to flaunt it”. This from one of the highest paid public servants in the entire public service in [redacted] – and the very person who was supposed to safeguard the rights of me and all his other employees. Unbelievable!”

 

“In the early 1990s, I was working in the Commonwealth Public Service in Sydney. I applied for a job at a higher level and was accepted for interview. I was told that although I had come first in the selection process, the job was going to be given to the second-rated candidate because as he was a “family man” he deserved the promotion (and increase in income) more than I did.”

 

“Face significant formal (policy) and informal (cultural attitudes) discrimination in the workplace as an ADF member. Whilst this is improving, it is wrong to say that I am not discriminated against – e.g. placed in the wrong accommodation area, having to adhere to binary uniform codes, etc.”

 

As suggested by the statistics earlier, transgender respondents provided a range of examples of workplace discrimination:

 

“Very difficult to apply for job when all experience and jobs were held under previous identity”

 

“I was told that because I wasn’t using my legal name in my application, I couldn’t be input into their system, and hence did not receive an interview.”

 

“After losing my job, at every interview I’ve been told I ‘got the job’, and once they receive my legal documents and tax file number they never get back to me. At one interview, they told me that my gender identity was a ‘mental illness’ and they needed a doctor’s note before I could work.”

 

“HR seemed to take me seriously at first but whenever I would make a small mistake she would blame it on my transition saying that I was a different and less capable person (primarily she blamed hormone therapy). Most of the time she would talk about me to other people and I needed to quit that job for my own mental health.”

 

“Employers felt uncomfortable with my gender identity and asked me not to wear a binder at work. I’ve started presenting as only female at work now. It’s killing me”

 

“Despite the fact I had a name tag that said Adam and had introduced myself as trans, I was constantly called she. I complained to a manager and it happened again, in a group chat to all employees and managers I yet again said in the kindest way that I do wish to be respected and not misgendered and later that night and from then on was still misgendered.”

 

“Refusal to change name in email system. Misgendering during heated discussions (seemingly deliberate). Office doesn’t have gender-neutral toilets, asked to use toilets of assigned gender. Could go on…”

 

“When I finally told my work I was Transitioning I was made to feel an outcast and I finally left the position”

 

“My work requires i wear a male uniform regardless of my gender identity. I didn’t get a choice of what gender uniform. Only got to choose the size”

 

Disturbingly, some survey respondents reported complaining about the anti-LGBTIQ conduct they experienced, but then no (or insufficient) action being taken:

 

“I have also been the subject of religious based hate speech in a non religious school in the lunch room and that was let slide despite my protestations.”

 

“Gay and AIDS jokes being made, and then on one occasion when i complained to the manager, the manager made me stay home whilst she investigated the complaint, which made me feel as if I was being punished and not the offender.”

 

A few respondents noted the difficulty of proving homophobic discrimination:

 

“It’s really hard to explain, you know when people are making decisions about you without actually saying out loud it’s homophobia. It can be very obscure & hard to prove, but its there alright.”

 

“I can’t prove it but have a strong suspicion my position was made redundant because my boss found out I was gay”

 

This final comment explicitly describes discrimination by religious organisations, the fact that it remains completely lawful in most circumstances, and the impact that this has:

 

“This is an area that I get upset about, especially working for a religious organisation. The invisibility and intolerance by some people is hard to bear, especially knowing that religious organisations are exempt from the Anti-Discrimination Act. Living with the fear that if management realise you are gay and sack you for being gay – this is TOTALLY LEGAL. This is totally unjust and disgraceful that anti-discrimination law actually endorses and permits discrimination. I recently had a new manager who, though looking cool, held some very conservative views. I didn’t dare sound him out on gay issues, because I would have been lectured that I was an abomination for being gay (as other people have told me). This leads me to not reveal my true identity at work and to live in some fear of discrimination (knowing the law does not protect me)”

 

**********

 

Conclusion

 

The results of these four questions have confirmed that homophobic, biphobic, transphobic and intersexphobic discrimination in employment is relatively widespread, and has a significant impact on lesbian, gay, bisexual, transgender, intersex and queer Australians.

 

This includes 3 in every 10 respondents people reporting lifetime experience of such discrimination, with 1 in 7 reporting at least one instance of anti-LGBTIQ discrimination in employment in the last 12 months alone.

 

Some groups within the community reported even higher lifetime rates than this already high average, with intersex and trans people, Aboriginal and/or Torres Strait Islander LGBTIQ people and people aged 45 to 64 particularly affected.

 

While the rates of discrimination by religious organisations were comparatively low, this is likely explained by the lower numbers of people employed in this sector (especially compared to the far higher proportion of students in religious schools).

 

The personal examples of employment-related discrimination shared in response to question 4 demonstrate the many different forms such prejudice can take, with a particular focus on transphobia, and discrimination by religious organisations (noting that such mistreatment is entirely lawful in most jurisdictions due to religious exceptions to anti-discrimination laws).

 

As noted at the beginning of this post, this has been the fifth in my series of six articles reporting the results of my The State of Homophobia, Biphobia and Transphobia survey. The remaining article, which will focus on discrimination in health and other areas, will be published within the next week.

 

If you would like to receive updates of these results, please sign up to this blog: on mobile, at the bottom of this page, or on desktop at the top right-hand corner of the screen.

 

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If this post has raised any issues for you, you can contact:

 

  • QLife, Australia’s national telephone and web counselling and referral service for LGBTI people.

Freecall: 1800 184 527, Webchat: qlife.org.au (3pm to midnight every day)

 

Footnotes:

[i] The previous posts can be found here:

Part 1: Verbal Harassment and Abuse

Part 2: Physical Abuse or Violence

Part 3: Where Discriminatory Comments Occur and Their Impact 

Part 4: Discrimination in Education

[ii] 490 people responded to question 2: 235 yes/255 no.

[iii] 490 people responded to question 3: 99 yes/391 no.

[iv] 320 people responded to question 1: 101 yes/219 no.

[v] 49 respondents.

[vi] 35 respondents.

[vii] 629 people responded to question 1: 216 yes/413 no.

[viii] 82 respondents.

[ix] 37 respondents.

[x] 513 people responded to question 1: 104 yes/409 no.

[xi] 57 respondents.

[xii] 22 respondents.

[xiii] 367 people responded to question 1: 163 yes/204 no.

[xiv] 107 respondents.

[xv] 62 respondents.

[xvi] 15 people responded to question 1: 11 yes/4 no. Note that, given the small sample size, these percentages should be treated with some caution.

[xvii] 6 respondents.

[xviii] 3 respondents.

[xix] 485 people responded to question 1: 147 yes/338 no.

[xx] 82 respondents.

[xxi] 29 respondents.

[xxii] I have excluded the figures for discrimination by religious employers, which ranged from 1.8% for trans and gay, to 8.1% for trans and queer, with trans and lesbian, and trans and bisexual, sitting in the middle.

[xxiii] 43 respondents total, with 16 yes to question 1 and 11 yes to question 2.

[xxiv] 57 respondents total, with 27 yes to question 1 and 16 yes to question 2.

[xxv] 122 respondents total, with 44 yes to question1 and 30 yes to question 2.

[xxvi] 185 respondents total, with 78 yes to question 1 and 48 yes to question 2.

[xxvii] 58 people responded to question 1: 22 yes/36 no.

[xxviii] 9 respondents.

[xxix] 4 respondents.

[xxx] 871 people responded to question 1: 182 yes/689 no.

[xxxi] 120 respondents.

[xxxii] 33 respondents.

[xxxiii] 431 people responded to question 1: 159 yes/272 no.

[xxxiv] 70 respondents.

[xxxv] 30 respondents.

[xxxvi] 274 people responded to question 1: 133 yes/141 no.

[xxxvii] 44 respondents.

[xxxviii] 31 respondents.

[xxxix] 31 people responded to question 1: 13 yes/18 no. Note that, given the small sample size, these percentages should be treated with some caution.

[xl] 5 respondents.

[xli] 530 people responded to question 1: 152 yes/378 no.

[xlii] 71 respondents.

[xliii] 30 respondents.

[xliv] 379 people responded to question 1: 125 yes/254 no.

[xlv] 54 respondents.

[xlvi] 25 respondents.

[xlvii] 246 people responded to question 1: 90 yes/156 no.

[xlviii] 43 respondents.

[xlix] 17 respondents.

[l] 150 people responded to question 1: 49 yes/101 no.

[li] 26 respondents.

[lii] 8 respondents.

[liii] 133 people responded to question 1: 35 yes/98 no.

[liv] 21 respondents.

[lv] 10 respondents.

[lvi] 108 people responded to question 1: 22 yes/86 no.

[lvii] 10 respondents.

[lviii] 4 respondents.

[lix] 56 people responded to question 1: 11 yes/45 no.

[lx] 8 respondents.

[lxi] 2 respondents.

[lxii] 20 people responded to question 1: 7 yes/13 no. Note that, given the small sample size, these percentages should be treated with some caution.

[lxiii] 2 respondents.

[lxiv] 3 respondents.

[lxv] In this context, lightly-edited includes:

-Removing identifying information

-Removing potentially defamatory comments and

-Removing offensive remarks.

I have also corrected some spelling/grammatical mistakes for ease of reading.

Malcolm Turnbull, If you want to ‘strengthen’ anti-vilification laws, here’s something you can do

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Update 29 April 2017:

In early April, I wrote to Prime Minister Malcolm Turnbull and Attorney-General George Brandis suggesting that, it they genuinely wanted to ‘strengthen’ Australia’s anti-vilification protections, they should introduce laws prohibiting vilification against lesbian, gay, bisexual, transgender and intersex (LGBTI) people.

In that letter, I included statistics from The State of Homophobia, Biphobia & Transphobia Survey Results, Part 1: Verbal Harassment and Abuse which found that 74% of LGBTIQ Australians experienced homophobic, biphobic, transphobic or intersexphobic verbal abuse at some point in their lives, with 48% reporting anti-LGBTIQ harassment in the past 12 months alone.

Unfortunately, it appears that the Australian Government isn’t particularly interested in doing anything to address this epidemic of anti-LGBTI abuse – there is no LGBTI equivalent to section 18C of the Racial Discrimination Act 1975, and, based on the response I received this week from the Attorney-General’s Department (see below), the Turnbull Government will not introduce one.

Perhaps the most bizarre part of the Government’s letter is the reference to ‘sexual harassment’ provisions within the Sex Discrimination Act 1984, as offering protections against anti-LGBTI vilification. The definition of sexual harassment under that legislation is as follows:

“Section 28A

Meaning of sexual harassment

(1) For the purposes of this Division, a person sexually harasses another person (the person harassed) if:

(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or

(b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed…

(2) In this section:

‘conduct of a sexual nature’ includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.”

This definition, and its focus on ‘of a sexual nature’, means that while LGBTI people are protected against ‘sexual harassment’ under the Sex Discrimination Act 1984, only a small fraction of the anti-LGBTI verbal abuse that is experienced by LGBTI Australians would be covered by this provision – the vast majority of harassment and abuse, including nearly all of the comments reported in The State of Homophobia, Biphobia & Transphobia, would remain entirely legal.

Of course, given their ongoing refusal to pass marriage equality without a completely unnecessary, wasteful and divisive plebiscite, and the attacks on and dismantling of the Safe Schools program, it was always unlikely that the Turnbull Government would do anything substantive to tackle anti-LGBTIQ verbal harassment and abuse.

Still, now that they have been presented with the evidence, they can no longer claim that there is no problem with homophobia, biphobia, transphobia and intersexphobia in Australia. They know it exists – they are simply choosing to ignore it.

Here is the full response from the Attorney-General’s Department:

27 April 2017

Dear Mr Lawrie

Thank you for your correspondent of 3 April 2017 to the Prime Minister, the Hon Malcolm Turnbull MP, regarding Commonwealth anti-vilification laws. Your letter was referred to the Attorney-General, Senator the Hon George Brandis QC, as the matter falls within his portfolio. The Attorney-General has asked me to respond on his behalf.

The Australian Government believes that people are entitled to respect, dignity and the opportunity to participate in society and receive the protection of the law regardless of their sexual orientation, gender identity or intersex status. The Sex Discrimination Act 1984 (Cth) prohibits discrimination on these grounds in a range of areas of public life.

The Sex Discrimination Act also prohibits sexual harassment in a number of areas of public life. Under the definition of sexual harassment, the circumstances to be taken into account include, but are not limited to, the sex, sexual orientation, gender identity and intersex status of the person harassed.

Criminal laws in Australia generally prohibit conduct which threatens or results in harm to a person, regardless of the individual attributes of the victim.

The Australian Government considers these protections, in conjunction with other protections under Australian law, are appropriate in addressing the behaviour outlined in your letter.

Thank you for bringing your concerns to the attention of the Australian Government.

Yours sincerely

[Name withheld]

Director, Human Rights

Civil Law Unit

 

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Original Post:

 

The Hon Malcolm Turnbull MP

Prime Minister

PO Box 6022

House of Representatives

Parliament House

Canberra ACT 2600

Monday 3 April 2017

Dear Prime Minister

Commonwealth Anti-Vilification Laws

I am writing to you about a subject that has preoccupied your Government in recent weeks: Commonwealth anti-vilification laws.

However, I do not wish to re-litigate the debate over your proposed amendments to section 18C of the Racial Discrimination Act 1975, especially now that those changes have been comprehensively rejected by the Senate (happily from my perspective, presumably less so from yours).

Instead, I wish to discuss an area where it appears that, at least based on your public statements, you and I agree.

Specifically, during the course of the debate around 18C, two key principles emerged from media releases and speeches made both by yourself, and by the Attorney-General, Senator the Hon George Brandis.

First, your Government believes that there is a place for legal protections against vilification.

This is apparent not just from the fact that you chose to try to amend section 18C, rather than repeal it (therefore acknowledging the overall legitimacy of anti-vilification laws), but also through your comments at the joint Press Conference on 21 March, announcing the changes:

“We are defending the law by making it clearer. We are defending Australians against racial vilification.”

And from the Attorney-General’s Second Reading Speech:

“I have always believed that there is no inconsistency whatever between effective, appropriately-worded racial vilification laws, and the robust defence of freedom of speech.”

Second, your Government believes that such legal protections against vilification should be ‘strong’.

Indeed, both you and your Attorney-General repeatedly claimed that the Human Rights Legislation Amendment Bill 2017 would strengthen existing vilification protections.

At your joint Press Conference you stated that “[W]e are announcing changes to the Racial Discrimination Act and the Human Rights Commission legislation, which will strengthen the protection of Australians from racial vilification” and that it was time to “defend Australians with effective laws, clear laws, against racial vilification.”

The Attorney-General similarly claimed in his Second Reading Speech that the changes were being proposed “to strengthen its anti-vilification provisions.”

Taking you at your word(s) then, you both believe there is a place for anti-vilification laws, and that such laws should be strong and effective.

I agree with these two principles (even if we disagree on how they should be reflected in the Racial Discrimination Act).

Which is why, now that your changes to section 18C have been defeated, I write to suggest an additional way in which you can protect Australians against vilification: by introducing anti-vilification protections for lesbian, gay, bisexual, transgender and intersex (LGBTI) people.

As you would be aware, there is currently no Commonwealth protection against vilification on the basis of sexual orientation, gender identity or intersex status.

Nor are there LGBTI anti-vilification protections under the laws of Victoria, South Australia, Western Australia or the Northern Territory (meanwhile, the protections that exist under NSW law are overly-narrow, and fail to protect some parts of the community).

This leaves a significant proportion of Australia’s LGBTI communities without any legal protections against homophobic, biphobic, transphobic and intersexphobic vilification.

Unfortunately, such vilification remains all-too-common in Australia.

In a survey that I conducted at the start of 2017, 74% of LGBTIQ respondents reported being subject to anti-LGBTIQ verbal abuse or harassment at some point during their lives[i].

Disturbingly, 48% of respondents reported that at least one instance of such abuse or harassment occurred during the last 12 months.

These figures were even higher for some sections of the LGBTIQ community:

  • 68.2% of trans respondents
  • 65% of Aboriginal and/or Torres Strait Islander LGBTIQ respondents, and
  • 74.5% of LGBTIQ respondents aged 24 or under

reported verbal abuse or harassment in the past 12 months alone.

I hope that you agree these rates of homophobic, biphobic, transphobic and intersexphobic verbal abuse are simply unacceptable.

And if you are unconvinced by the raw numbers, then I suggest that you read the even rawer, and in some cases quite horrific, examples of anti-LGBTIQ harassment shared by the 1,672 people who took part in my survey (attached).

The challenge for you is that this abuse is happening on your watch.

If you genuinely believe there is a place for anti-vilification laws, and that such laws should be strong and effective, then I believe you should respond to this epidemic of anti-LGBTI verbal abuse and harassment with Commonwealth anti-vilification laws covering sexual orientation, gender identity and intersex status, on an equivalent basis to existing racial vilification protections.

After all, if racist vilification is considered so serious as to require legislative intervention, then there is no logical reason why homophobic, biphobic, transphobic and intersexphobic vilification should not be similarly prohibited.

If you do not take action to address this issue, then by implication you are suggesting that you and your Government find anti-LGBTIQ vilification to be less offensive, and arguably more ‘acceptable’, than racial vilification.

In conclusion, I will return to another comment made by you at the joint Press Conference on 21 March:

“Ensuring Australians are protected from racial vilification, likewise, is part of that mutual respect of which I often speak, which is the foundation of our success as the greatest and most successful multicultural society in the world.”

My question to you is: do you believe that lesbian, gay, bisexual, transgender and intersex Australians also deserve ‘mutual respect’?

If you do, then please take action to protect LGBTI Australians from the homophobic, biphobic, transphobic and intersexphobic vilification that far-too-frequently mars our own participation in the country you currently lead.

Sincerely

Alastair Lawrie

Cc Senator the Hon George Brandis

Attorney-General

PO Box 6100

Senate

Parliament House

Canberra ACT 2600

Malcolm Turnbull Hands

Whether LGBTI Australians receive anti-vilification protections under Commonwealth law is now in Malcolm Turnbull’s hands.

Footnotes:

[i] For full results, see The State of Homophobia, Biphobia & Transphobia, Survey Results Part 1: Verbal Harassment and Abuse

The State of Homophobia, Biphobia & Transphobia Survey Results, Part 2: Physical Abuse or Violence

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This post is the second in a series of six, reporting the results of The State of Homophobia, Biphobia & Transphobia survey I conducted at the start of 2017[i].

In all, 1,672 lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) Australians provided valid responses to that survey.

In this article, I will be focusing on their answers to three questions about experiences of anti-LGBTIQ physical abuse or violence, including publishing their personal stories of homophobic, biphobic, transphobic and intersexphobic violence.

It makes for particularly tough reading – not only are the reported rates of physical abuse, both over their lifetimes and specifically during the last 12 months, far too high, many of the examples of violence that were provided are, frankly, brutal reminders of the unacceptable state of homophobia, biphobia and transphobia in Australia today.

If the topics covered in this post raise any issues for you, contact details of relevant support services are provided at the end of the article.

the-state-of-homophobia-biphobia-transphobia-6

Question 1: Have you ever experienced physical abuse or violence because of your sexual orientation, gender identity or intersex status?

&

Question 2: Has one or more instances of this physical abuse or violence occurred in the past 12 months?

Overall, 26% of survey respondents – 431 people out of the 1,647 who answered question 1 – indicated they had experienced physical abuse or violence because of their LGBTIQ status at some point in their life.

128 people – or 30% of respondents who answered yes to question 1[ii] – then answered question 2 by stating that at least one instance of this anti-LGBTIQ physical abuse or violence had occurred during the last 12 months.

Including those who answered no to question 1, that means approximately 7.8% of all respondents reported experiencing physical abuse or violence in the past year alone.

It should be noted that these rates are significantly lower than the numbers who had previously reported receiving anti-LGBTIQ verbal harassment or abuse. Nevertheless, these findings confirm that homophobic, biphobic, transphobic and intersexphobic physical abuse or violence in Australia is unacceptably high:

  • 1 in 4 LGBTIQ people have been physically assaulted simply because of who they are, and
  • 1 in every 13 LGBTIQ respondents has experienced such abuse or violence in the last 12 months alone.

The following sections show the results to these two questions according to different demographic groupings, including LGBTIQ status, Aboriginal and Torres Strait Islander people, age, and residence by state and territory.

LGBTIQ Status

There were some potentially surprising results in reported rates of lifetime anti-LGBTIQ physical abuse or violence. However, the respective answers of different groups to question 2 were more predictable – and more depressing for that reason. The results for both questions were as follows:

Lesbian: 24.1% of respondents have ever experienced anti-LGBTIQ physical abuse, and of those 27.3% indicated at least one instance during the past 12 months[iii]

Gay: 34.4% ever, and of those 23.6% during the past 12 months[iv]

Bisexual: 14.6% ever, of those 44.2% in last 12 months[v]

Transgender: 33.6% ever, of those 47.2% in last 12 months[vi]

Intersex: 46.7% ever, of those 71.4% in last 12 months[vii], and

Queer: 27.1% ever, of those 44% in last 12 months[viii].

The rates for intersex respondents were clearly the highest – on both measures – although the small sample size (n=15) should be remembered at this point. Of the remaining LGBTQ groups, the category reporting the highest lifetime rates of physical abuse or violence were people identifying as gay, followed closely by transgender people.

There are a range of possible explanations for this, including physical bullying of gay students during school, and ‘historical’ incidents of anti-gay violence that may have happened many years ago (and there is some evidence for both factors in the personal stories of violence detailed below)

Sadly, the relatively high rates reported by transgender respondents were largely predictable. Disturbingly, they were higher again where a person indicated they were both transgender and gay – with 45.6% reporting lifetime physical abuse or violence. These numbers are obviously horrific [ix].

It is equally worrying to look at the proportion of each group overall who reported an instance of anti-LGBTIQ physical abuse or violence in the past 12 months:

  • Lesbian: 6.5%
  • Gay: 8.1%
  • Bisexual: 6.5%
  • Transgender: 15.6%
  • Intersex: 33.3%
  • Queer: 12%

On this measure, the proportion of gay respondents reporting physical abuse or violence is much lower, and is in fact similar to both lesbian and bisexual survey respondents.

However, this finding demonstrates the disproportionate impact of recent anti-LGBTIQ physical abuse and violence on transgender (including people who identified as both transgender and gay, where the figure was 24.6%, on 1 in 4 people reporting abuse in the last year alone), intersex and queer members of the community.

Therefore, while there have historically been high rates of homophobic (and specifically anti-gay), transphobic and intersexphobic violence in Australia, there appears to be comparatively far higher rates of transphobic, intersexphobic and anti-queer physical abuse during the last 12 months.

Aboriginal and Torres Strait Islander people

As with verbal harassment and abuse, Aboriginal and/or Torres Strait Islander LGBTIQ people reported higher rates of physical abuse or violence than their non-Indigenous LGBTIQ counterparts.

36.7% of Aboriginal and Torres Strait Islander respondents reported anti-LGBTIQ physical abuse at some point during their lifetime[x], which is higher than both gay and transgender people, discussed above. Of those, 40.9% indicated at least one instance of such violence had occurred in the past 12 months[xi].

Taken together, this means that 15% of Aboriginal and Torres Strait Islander LGBTIQ people reported homophobic, biphobic or transphobic physical abuse or violence during the past year – double the rate of non-Indigenous LGBTIQ Australians (7.5%).

Age

There were some significant differences in terms of experiences of homophobic, biphobic, transphobic or intersexphobic physical abuse or violence depending on the age cohort of the respondent:

24 and under: 18.7% of respondents have ever experienced anti-LGBTIQ physical abuse, and of those 47.6% indicated at least one instance during the past 12 months[xii]

25 to 44: 33.1% ever, and of those 27.2% in the last 12 months[xiii]

45 to 64: 39.9% ever, and of those 16.4% in the last 12 months[xiv], and

65 and over: 30.1% ever, and of those 9.1% in the last 12 months[xv].

Thankfully, the proportion of LGBTIQ people aged 24 or under reporting lifetime physical abuse or violence was lower than their counterparts in other age cohorts. Of course, this result should be expected given their lesser ‘life experience’ (ie fewer years in which abuse may have occurred), but that was not the case for verbal harassment or abuse which was reported at similar rates to older groups.

Rates of lifetime homophobic, biphobic and transphobic physical abuse or violence then increased for people aged 25 to 44, and again for people aged 45 to 64, before declining for people aged 65 and over.

One possible explanation for this is the age at which these groups ‘came of age’: people aged 65+ turned 18 before 1970, and lower visibility of LGBTIQ people (and especially some communities within this umbrella term) may have lessened their experiences of direct physical violence (while exacerbating other problems, including social exclusion and mental health issues).

On the other hand, people aged 45 to 64 generally turned 18 in the 1970s and 1980s, and likely bore the brunt of societal backlash to increased visibility of non-cisgender and/or non-heterosexual Australians, including via physical assaults.

It is however worrying that for those people who turned 18 in the supposedly more accepting 1990s and 2000s (who are now aged 25 to 44), the rates of physical abuse or violence remained relatively high – with 1 in 3 survey respondents in this demographic affected.

Turning to anti-LGBTIQ physical abuse in the past 12 months, the results were very different:

  • 8.8% of all respondents aged 24 or under reported abuse in the last year, compared to
  • 7.1% of people aged 25 to 44
  • 6.5% of people aged 45 to 64, and
  • 2.8% of people aged 65 and over.

Once again, we see that current homophobic, biphobic and transphobic physical abuse and violence is disproportionately affecting younger LGBTIQ Australians – who are 35.4% more likely to report such abuse than people aged 45 to 64.

Despite all of the progress that we have made, on so many fronts, the fact that 1 in 12 LGBTIQ people aged under 25 reported physical abuse or violence in the last year alone is a confronting, and in many ways, devastating, statistic.

State or Territory of Residence

The rates of homophobic, biphobic, transphobic or intersexphobic violence did not differ greatly between most states and territories:

NSW: 26% of respondents have ever experienced anti-LGBTIQ physical abuse, and of those 27.3% indicated at least one instance during the past 12 months[xvi]

Victoria: 29.5% ever, and of those 29% in the last 12 months[xvii]

Queensland: 26.4% ever, and of those 21.2% in the last 12 months[xviii]

Western Australia: 28.1% ever, and 45.2% in the last 12 months[xix]

South Australia: 25.2% ever, and of those 29.4% in the last 12 months[xx]

Tasmania: 19.8% ever, and of those 45.4% in the last 12 months[xxi]

ACT: 14.3% ever, and of those 37.5% in the last 12 months[xxii], and

Northern Territory: 23.8% ever, and of those 20% in the last 12 months[xxiii].

Despite the similarity between jurisdictions, there are three things here worth noting:

  • Western Australia had by far the highest overall proportion of LGBTIQ people reporting physical abuse or violence in the last year, at 12.4%[xxiv]
  • The ACT has reported significantly lower levels of physical abuse than the national average (5.4% in the past 12 months), and was also significantly lower in terms of verbal harassment or abuse, and
  • Despite having the second lowest lifetime rates of anti-LGBTIQ physical abuse, Tasmania actually reported the second highest rates in the past 12 months (9%), repeating a similar pattern for verbal abuse.

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Question 3: If you feel comfortable, please provide an example of this homophobic, biphobic, transphobic or intersexphobic physical abuse or violence [Optional]:

This question allowed respondents to provide an example of the physical abuse or violence they had experienced, irrespective of when it had occurred.

As anticipated, many of the stories that have been shared are both incredibly powerful, and profoundly upsetting.

At this point, I would recommend that you only read further if you are emotionally and mentally prepared to do so. To help you decide whether to continue, please be aware that some stories involve details of physical violence and injury, as well as sexual and child sexual assault.

A lightly-edited[xxv] version of the stories of homophobic, biphobic, transphobic and intersexphobic physical abuse or violence that were shared can be found at the following link:

question 3 physical abuse or violence comments

From my perspective, several consistent themes emerge from these stories, including:

The most common type of story shared involved anti-LGBTIQ abuse in the school environment (at least 38 respondents mentioned school). For example:

“Other kids would throw food at me at school and threaten to kill me. One time a group of bigger boys held me down and drew penises on my face at school. Teachers did nothing. People just laughed. I wanted to die.”

“During the HSC, the day of my last exam. A group of guys waited for me around the corner of the hall. They grabbed me by the neck and dragged me around the corner whilst beating me.”

“I was violently assaulted during high school. A boy at my school also stalked me and threatened to rape me to ‘make me straight.’”

A number of respondents explicitly indicated that the homophobic, biphobic or transphobic abuse occurred some time ago:

“Many years ago at high school. Managed to steer clear of physically violent homophobic behaviour since then.”[xxvi]

“I was bullied relentlessly when I was at school. It was a long time ago (in the 70s) and it included physical abuse. I’m one of the lucky ones, I survived. Many other young LGBTI Australian youth didn’t… and this is still continuing today, validated by politicians and religious ‘leaders’ who have no concern about the harm they are doing by imposing their hetero-normative agendas.”

“I have been punched in the street a few times in the 1990s and once had a bottle broken over my head and was stabbed in the face with the broken bottle (year 2000).”

Several stories involved anti-lesbian violence, including attempts of ‘corrective rape’ and sexual assault:

“I have been bashed in the street for holding my partner’s hand, I have been threatened with rape for dancing with another woman, I have had the police stand in my lounge room making threatening gestures when my partner and I reported a crime, refusing to do anything because ‘some people just don’t like dykes’ and we’d ‘just have to get used to that.’”

“Men grope me, stick their hands down my pants in public places and try to force me to kiss them. When I say I’m a lesbian it’s always either ‘that’s okay I don’t mind’, ‘I can change that’, ‘you’ve just never had a good fuck’.”

“When I lived in Queensland (not where I currently reside) I had strangers at parties come up to my girlfriend and I and forcibly try to dance with us and grope us and insist that we should have sex with them/have a threesome because we need ‘some real fucking’.”

Another common theme was anti-trans violence, such as the ‘policing’ of gender appearance or behaviour, and again including sexual assault:

“Was physically abused by a middle-aged woman who was confused by my gender presentation and took it upon herself to check + feel my chest for the presence of breast tissue (which was underneath my binder).”

“I’ve been sexually assaulted by partners because of my gender non-conforming behaviour, to try and ‘correct’ me into being femme.”

“When I wasn’t out about being a trans man, this bi girl that also knew I was bi thought it was ok and appropriate to sexually assault me and grab my vagina.”

“I was sexually assaulted when a group of young men found out I was transgender.”

A disturbing proportion of stories involved physical abuse and violence from parents, family members and partners in intimate relationships:

“My dad tried to beat the gay out of me a lot growing up.”

“As a child I was beaten at different times by both parents, one publicly, and being told to man up.”

“My mum hit/tried to strangle me when I came out to her as trans.”

“A boyfriend at the time – I told him I’m queer (pan, if you like) and he started grabbing me without my consent sexually in public.”

At least a dozen stories referred to homophobic, biphobic and transphobic violence in spaces and places that the LGBTIQ community call ‘home’:

“I got king-hit/coward-punched whilst walking down Oxford Street in Sydney during Mardi Gras.”

“I have been poofter bashed – just off Oxford St – and was once assaulted by police officers (which I took action about).”

“When I lived in Sydney in the mid-1990s I was bashed by a group of ‘skin-heads’ on Darlinghurst Rd as I walked home after work.”

“Physically assaulted and knocked unconscious by men loitering at a McDonalds on a popular gay night strip in Melbourne.”

“Several years ago I was assaulted in Malvern Rd Prahran by 5 guys yelling death to fags – luckily for me as the group kicked me as I lay helpless a driver stopped and they got scared off.”

And then there were some stories that defied easy ‘categorisation’, but which were so powerful that I felt compelled to reproduce here:

“I’ve been verbally abused, threatened by men, chased by youths with knives and survived an attempted rape and murder by a straight man who saw me come out of a gay pub.”

“Attacked during lgbt rally, egged until I got welts, physically attacked, had people bang on the windows of my room + house and yell they’d kill me etc.”

“Glass bottles thrown at my head and at my lesbian friends because we needed to “get back to the Valley with the freaks” and “needed them to show us dick” so we would stop being into women; guy holding up my girlfriend by her throat because we kissed in a pub; sexual assaults to me (several) partly because they knew I was bisexual so I was “automatically up for sex”. I wasn’t. There was no consent. I even said no and they said I was lying because I am bi.”

“I, my partner and her elderly father were all bashed by a bunch of teenage boys who chased us from the train station to our home kicking us, hitting us, spitting at us, throwing things at us and verbally abusing us. They then attacked my father-in-law when he attempted to come to our aid. He was in his mid-60s at the time of the attack.”

Some shorter comments were nevertheless shocking:

“Being beaten by 3 older men who had followed me home after I left my boyfriend on public transport. I was 16.”

“My partner and I were assaulted whilst kissing to say good bye.”

“My partner and I had glass beer bottles thrown at us walking down the street while holding hands.”

“I was last assaulted for my sexuality in early 2013, and dozens of times before that.”

Finally, and disturbingly, there were at least three stories in which the person who experienced anti-LGBTIQ physical abuse tried to downplay the extent of the violence:

“Bashed (not badly) numerous times by strangers, usually with onlookers. Extreme harassment and threats from police on several occasions.”

“Mild beatings by groups of boys in late high school.”

“Just being punched in the face.”

Describing homophobic, biphobic and transphobic violence in this way is likely part of a psychological coping strategy for these respondents – but, from this author’s perspective, there is no circumstance in which the word ‘just’ ought to appear in front of the phrase being punched in the face.

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Conclusion

The results of this survey suggest that 1 out of every 4 LGBTIQ Australians have experienced homophobic, biphobic, transphobic or intersexphobic physical abuse or violence at some point in their lives.

30% of that group – or 1 in 13 out of all survey respondents – reported anti-LGBTIQ physical violence in the past 12 months alone, confirming once again that 2016 was an awful year for lesbian, gay, bisexual, transgender, intersex and queer Australians.

These proportions were even higher for some sections within the community. While the overall rate was 7.8% reporting abuse in the last year, the equivalent figure was:

  • 15.6% of transgender people
  • 33% of intersex people
  • 12% of queer people
  • 15% of Aboriginal and/or Torres Strait Islander LGBTIQ people.

LGBTIQ respondents age 24 and under were also 35.4% more likely to report recent homophobic, biphobic, transphobic or intersexphobic physical abuse than people aged 45 to 64.

Some of our political leaders like to espouse the idea that Australia is an inclusive and tolerant country, welcoming of differences in sexual orientation, gender identity and intersex status. That may be the case for some people – but these figures reveal a different, harsher, reality for many LGBTIQ Australians.

And, if anyone doubts the impact of homophobic, biphobic, transphobic and intersexphobic physical abuse and violence in this nation, I encourage them to read the personal stories from survey respondents, detailed above. If they do, they will come away with a better understanding of what life is like for far too many people.

As noted at the beginning of this post, this has been the second in a series of six articles reporting the results of my ‘The State of Homophobia, Biphobia & Transphobia’ Survey.

The next four will be published over the remainder of March and April, with part 3 – which focuses on the places where prejudice occurs – to be published in a couple of weeks.

If you would like to receive updates of these results, please sign up to this blog: on mobile, at the bottom of this page, or on desktop at the top right-hand corner of the screen.

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If this post has raised any issues for you, you can contact:

  • QLife, Australia’s national telephone and web counselling and referral service for LGBTI people. Freecall: 1800 184 527, Webchat: qlife.org.au (3pm to midnight every day)
  • Lifeline: 13 11 14, lifeline.org.au

Footnotes:

[i] The first was published two weeks ago: The State of Homophobia, Biphobia & Transphobia Survey Results, Part 1: Verbal Harassment and Abuse

[ii] Only people who answered yes to question 1 were provided with an opportunity to answer question 2, with 430 people completing the second question and 302 (70%) indicating they had not experienced physical abuse or violence because of their sexual orientation, gender identity or intersex status in the past 12 months.

[iii] Question 1: 78 yes/246 no. Question 2: 21 yes/56 no.

[iv] Question 1: 220 yes/419 no. Question 2: 52 yes/168 no.

[v] Question 1: 76 yes/445 no. Question 2: 34 yes/43 no.

[vi] Question 1: 125 yes/247 no. Question 2: 58 yes/65 no.

[vii] Question 1: 7 yes/8 no. Question 2: 5 yes/2 no. Note that, given the low number of respondents, the proportions re intersex status must be treated with caution. For this reason, intersex status is also omitted from some of the discussion/analysis throughout the article.

[viii] Question 1: 133 yes/358 no. Question 2: 59 yes/75 no.

[ix] Other figures for people who identified as both transgender and another category:

-Transgender and lesbian: 30.2% lifetime abuse, including 14% of all trans and lesbian respondents experiencing such abuse in the last 12 months alone

-Transgender and bisexual: 26.6% lifetime abuse, 15.3% in the last 12 months, and

-Transgender and queer: 33.5% lifetime abuse, 18.1% in the last 12 months.

[x] Question 1: 22 yes/38 no.

[xi] Question 2: 9 yes/13 no.

[xii] Question 1: 165 yes/719 no. Question 2: 78 yes/86 no.

[xiii] Question 1: 144 yes/291 no. Question 2: 31 yes/114 no.

[xiv] Question 1: 110 yes/166 no. Question 2: 18 yes/91 no.

[xv] Question 1: 11 yes/25 no. Question 2: 1 yes/10 no. Note that, given the low number of respondents, the proportions re people aged 65 and over must be treated with caution. For this reason, this group is also omitted from some of the discussion/analysis throughout the article.

[xvi] Question 1: 140 yes/399 no. Question 2: 38 yes/101 no.

[xvii] Question 1: 113 yes/270 no. Question 2: 33 yes/81 no.

[xviii] Question 1: 66 yes/184 no. Question 2: 14 yes/52 no.

[xix] Question 1: 43 yes/90 no. Question 2: 19 yes/23 no.

[xx] Question 1: 34 yes/101 no. Question 2: 10 yes/24 no.

[xxi] Question 1: 22 yes/89 no. Question 2: 10 yes/12 no.

[xxii] Question 1: 8 yes/48 no. Question 2: 3 yes/5 no.

[xxiii] Question 1: 5 yes/16 no. Question 2: 1 yes/4 no. Note that, given the low number of respondents, the proportions re the Northern Territory must be treated with caution. For this reason, the NT is also omitted from some of the discussion/analysis throughout the article.

[xxiv] Full results: NSW 7.1%, Victoria 8.6%, Queensland 5.6%, WA 12.4%, SA 7.4%, Tasmania 9%, ACT 5.4%, NT 4.8%.

[xxv] In this context, lightly-edited includes:

-Removing identifying information, and

-Removing offensive (for example, racist) remarks.

I have also chosen to exclude a couple of stories where the connection between the physical abuse or violence experienced and anti-LGBTIQ motivation was not clear, and one longer story which could not be edited to retain key points without also potentially disclosing the identity of the person concerned.

[xxvi] It seems one of the lessons many learned at school was to hide or minimise visible displays of same-sex behaviour, to avoid future abuse or violence.

The State of Homophobia, Biphobia & Transphobia Survey Results, Part 1: Verbal Harassment and Abuse

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With unrelenting attacks on the safe schools program, divisive debate about the proposed marriage equality plebiscite, the horrific mass murder at Pulse nightclub in Orlando and the tragic suicide of Indigenous gay youth Tyrone Unsworth, the past 12 months have undeniably been tough on members of Australia’s lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) communities.

Now we have empirical evidence to prove that last year was indeed an annus homophobicus.[i]

At the start of this year I conducted a survey of LGBTIQ Australians asking about their experiences of homophobia, biphobia, transphobia and intersexphobia in 2016, covering a range of topics including verbal harassment, physical violence, the places where prejudice occurs, and discrimination in education, employment and other areas.

Excluding responses from non-LGBTIQ people, and from LGBTIQ people outside Australia, a total of 1,672 people completed the survey in the four weeks between 26 December 2016 and 21 January 2017.

This post is the first in a series of six reporting the results of this survey, with a particular focus on three questions about the verbal harassment and abuse experienced by LGBTIQ Australians.

For many people, a number of the results will be unsurprising and yet still shocking – although, even for hardened campaigners such as myself, there are a few findings that are both depressing and disturbing, especially the varying impact of verbal harassment on different sections of the LGBTIQ community.

The State of Homophobia, Biphobia & Transphobia (4)

Question 1: Have you ever experienced verbal harassment or abuse because of your sexual orientation, gender identity or intersex status?

&

Question 2: Has one or more instances of this verbal harassment or abuse occurred in the past 12 months?

Overall, 74% of survey respondents – 1,226 people out of the 1,655 people who answered question 1 – indicated they had experienced verbal harassment or abuse because of their LGBTIQ status at some point in their life.

799 people – or 65% of respondents who answered yes to question 1[ii] – then answered question 2 by stating that at least one instance of this anti-LGBTIQ verbal harassment or abuse had occurred during the last 12 months.

Even including those who answered no to question 1, that still means 48% of all respondents reported experiencing verbal harassment or abuse in the past year alone.

These numbers might not be surprising to members of our community, but it is nevertheless shocking to confirm that 3 out of every 4 LGBTIQ Australians have been verbally harassed because of who they are, with almost half of all respondents reporting homophobic, biphobic, transphobic or intersexphobic verbal abuse in the last 12 months.

The following sections show the results to these two questions according to different demographic groupings, including LGBTIQ status, Aboriginal and Torres Strait Islander people, age, and residence by state and territory.

LGBTIQ Status

There were similarities, as well as some stark differences, in how lesbian, gay, bisexual, transgender, intersex and queer people experienced verbal harassment and abuse. Their respective answers to questions 1 and 2 are as follows:

Lesbian: 77.6% have ever experienced anti-LGBTIQ verbal harassment, and of those 68.7% indicated at least one instance during the past 12 months[iii]

Gay: 78% ever, and of those 56.5% during the past 12 months[iv]

Bisexual: 63.9% ever, of those 68.8% in last 12 months[v]

Transgender: 81% ever, of those 84.4% in last 12 months[vi]

Intersex: 88.2% ever, of those 93.3% in last 12 months[vii], and

Queer: 79.8% ever, of those 79.9% in last 12 months[viii].

Among lesbian, gay, transgender and queer respondents, the proportion that had experienced verbal harassment or abuse at some point in their lives was remarkably consistent – all falling somewhere between 77.6% and 81%. The proportion of bisexual people reporting lifetime abuse was somewhat lower, at 63.9%[ix].

However, there were much larger differences between groups in terms of experiences of anti-LGBTIQ verbal harassment and abuse over the past year.

While 43.4% of all gay respondents, and 44% of all bisexual respondents, reported verbal harassment or abuse during the last 12 months[x], this figure rose to 53.1% of all lesbian respondents (slightly above the overall average).

In terms of queer respondents the figure was higher still, at 63.9%, while for transgender people it rose again to 68.2%.

Think about that for a second: more than two-thirds of transgender people reported being verbally harassed or abused simply because of who they are in the past 12 months alone.

Further, while there is little difference between gay and transgender people in reporting lifetime verbal harassment (78% and 81% respectively), transgender people were 57% more likely to report verbal abuse over the past year.

Of course, all of these figures are far too high; no level of homophobia, biphobia or transphobia is acceptable. Nevertheless, we must not ignore the fact that, when it comes to verbal harassment and abuse over the last year, the burden has fallen much more heavily on transgender and queer Australians.

Aboriginal and Torres Strait Islander people

A total of 62 survey respondents indicated that they were Aboriginal and/or Torres Strait Islander (or 3.7% of the sample).

83.3% reported that they had ever reported verbal harassment or abuse because of their sexual orientation, gender identity or intersex status[xi]. Of those, 78% reported verbal harassment or abuse during the past 12 months[xii].

That means 65% of all Aboriginal and Torres Strait Islander LGBTIQ respondents reported homophobic, biphobic, transphobic or intersexphobic abuse during the last 12 months, significantly above the national average and placing them at similar risk to transgender and queer Australians.

Age

The survey asked respondents to nominate their respective cohort: 24 and under; 25 to 44; 45 to 64; or 65 and over. The answers provided by these different groups were relatively similar for question 1, although varied greatly for question 2.

Have you ever experienced verbal harassment or abuse because of your sexual orientation, gender identity or intersex status?

  • 24 and under: 70.6% yes[xiii]
  • 25 to 44: 78.2% yes[xiv]
  • 45 to 64: 79.5% yes[xv], and
  • 65 and over: 69.4% yes.[xvi]

Prima facie, the fact the figures for people aged under 25 are slightly lower than the two generations that preceded them might seem encouraging.

However, looked at in a different way, they are a cause for serious alarm: in 2017, a young LGBTIQ person is almost as likely to have experienced homophobic, biphobic, transphobic or intersexphobic verbal abuse at some point in their comparatively shorter life as someone with 20 or even 40 more years life experience.

This concern is borne out by the answers to the second question:

Has one of more instances of this verbal harassment or abuse occurred in the past 12 months?

  • 24 and under: 74.5% yes[xvii]
  • 25 to 44: 58.9% yes[xviii]
  • 45 to 64: 46.1% yes[xix], and
  • 65 and over: 33.3% yes[xx].

The net effect of these two questions reveals that 54.6% of all respondents aged 24 or under have been verbally harassed or abused because of who they are in the last year, compared to 46.1% of respondents aged 25 to 44 and 36.3% of respondents aged 45 to 64.

To put it another way: young LGBTIQ Australians were 50% more likely to be subject to homophobic, biphobic, transphobic or intersexphobic verbal harassment and abuse in 2016 than LGBTIQ people aged 45 to 64.

This result simultaneously proves and undermines the ‘It Gets Better’ message – yes, it gets better for individuals as they grow older, but, on the basis of these findings, it does not seem it has gotten significantly better for young LGBTIQ people today.

Personally, I believe this result at least partially reflects the fallout of attacks on the safe schools program by religious fundamentalists and right-wing extremists, with a potentially devastating impact on young LGBTIQ people, many of whom are only beginning their journey toward self-understanding and self-acceptance, and consequently may be lacking the same resilience as their older counterparts.

State or Territory of Residence

In contrast to the significant differences in results based on age, the levels of anti-LGBTIQ verbal harassment and abuse reported in different jurisdictions around Australia were remarkably consistent. The respective answers to question 1 and 2 are as follows:

New South Wales: 74% have ever experienced anti-LGBTIQ verbal harassment, and of those 64.8% indicated at least one instance during the past 12 months[xxi]

Victoria: 74.1% ever, and of those 67.3% during the past 12 months[xxii]

Queensland: 76.2% ever, of those 63% in last 12 months[xxiii]

Western Australia: 76.3% ever, of those 65.5% in last 12 months[xxiv]

South Australia: 71.1% ever, of those 66% in last 12 months[xxv]

Tasmania: 70.3% ever, of those 77.9% in last 12 months[xxvi]

Australian Capital Territory: 73.2% ever, of those 51.2% in last 12 months[xxvii], and

Northern Territory: 76.2% ever, of those 56.3% in last 12 months[xxviii].

Including those who answered no to question 1, this means for most states and territories the proportion of LGBTIQ people reporting verbal harassment or abuse in the last 12 months was between 42.9% (NT) and 50% (WA)[xxix].

The jurisdiction with the lowest incidence of homophobic, biphobic, transphobic or intersexphobic verbal abuse in the last year was the ACT at 37.5%; the highest was Tasmania at 54.1% of all respondents.

Of course, while the rates of anti-LGBTIQ verbal harassment may be similar across Australia, the options available to victims of such abuse vary considerably.

Only four jurisdictions offer any legal protections against vilification to the LGBTI community (NSW, Queensland, Tasmania and the ACT[xxx]). With no equivalent to section 18C of the Racial Discrimination Act 1975 contained in the Sex Discrimination Act 1984, LGBTI people in Victoria, Western Australia, South Australia and the Northern Territory are not protected against vilification at any level[xxxi].

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Question 3: If you feel comfortable, please provide an example of this homophobic, biphobic, transphobic or intersexphobic verbal harassment or abuse [Optional]

This question allowed respondents to provide an example of the verbal harassment or abuse they had received, irrespective of when it had occurred.

A large number of LGBTIQ respondents took up this opportunity, and the results are sobering, and frequently heart-breaking, to read. A lightly-edited[xxxii] version of these comments can be found at the following link:

question-3-verbal-harassment-and-abuse-comments [PDF]

I encourage you to take the time to read the survey respondent’s very personal stories of homophobic, biphobic, transphobic and intersexphobic abuse, of them experiencing verbal harassment simply because of who they are.

Ideally, conservative and/or right-wing politicians, many of whom claim that anti-LGBTIQ prejudice either doesn’t exist, or is no longer a serious problem, would read them too. If they did, they would have their ‘relaxed and comfortable’ ideas shattered by the irrefutable evidence provided via these real-life stories.

From my perspective, some of the derogatory comments related to sexual orientation that stood out include:

“I was just coming out of a convenience store and walked past this man who was staring at me. Then suddenly he started screaming “Faggot, faggot!!” at me. No one around me said or did anything. I just tried to not react and get away as soon as I could.”

“I normally get something once a year. Walking down the street in Brisbane, my (now) husband and I were shouted at by a couple of blokes who started by saying: ‘you have got to be fucking kidding’ in reference to the fact we were holding hands.”

“I recently saw two young gay men, a couple, who were walking up Chapel Street holding hands. A group of 3 older men were harassing them, following them. I joined the 2 gay men and told them to cross the road and ignore the others. I was then also subjected to the same vitriol with comments such as ‘there’s another one’ and ‘look at the 3 poofters’. We walked into a crowded shop and they didn’t follow us. I was extremely upset by this as were the 2 other younger fellows.”

“I was in my Drs surgery last year & I was abused, & my children were abused, by another patient. My Dr had to drag him away. Some of the names I was called were pervert, deviant, faggot. My kids were called queer, sexually perverted and confused.”

“A co-worker was informed that I identify as bisexual. She berated me openly, saying that I was merely attention seeking and that my children would be very confused adults with such poor guidance in life. She then contacted my husband through social media and told him to take my children and leave because raising them with a mentally ill person was dangerous.”

Transphobic harassment, and verbal abuse on the basis of gender identity, was also disturbingly widespread:

“Public name calling outside a local pub, shouting to others that I don’t have a penis… Being deadnamed in public despite being asked not to, in dismissal of transition or gender status… All in the last 3 months.”

“I was harassed outside a disabled toilet, which I went to because I was uncomfortable in gendered toilets. I overheard someone talking about a ‘faggot’ and learned they were talking about me. I was called transsexual repeatedly against my will by someone. Constant misgendering, deadnaming and disrespect on a daily basis just for being me…”

“Without going into detail, I have been referred to as a tranny, and had both my sexuality and gender identity mocked and invalidated repeatedly. I have been told to kill myself an innumerable amount of times, including being told to ‘get my teeth and gender straight or kill myself’, and that my gender is ‘cancer’. This is just a short list of the abuse I’ve suffered.”

“Demeaning laughter. Hostile stares. Derogatory language (eg ‘faggot’, ‘it’), usually just spoken audibly to others in front of me occasionally yelled from cars. Deliberate misgendering. I’ve noticed increased hostility from authority figures (eg ticket inspectors) in response to me looking more identifiably trans also. When I was closeted, I used to find people making transphobic jokes in front of me a common and painful experience.”

“Because of my choice of clothing/hairstyle I get called shemale. Heshe. Thing. It. Freak. Pervert. Dyke. Faggot. And that’s just the shortlist, and the most common insults I deal with, especially when I go clothes shopping or use a public restroom.”

This story was worrying, both because of the source of the discriminatory comments, but also because of the lack of action by authorities:

“I’m a pre-service teacher (still in university completing a bachelor). While on one of my teaching placements I received verbal harassment intermittently from the year 6 classes. When I reported this I was underwhelmed by the response from the faculty, both at my teaching school and the university faculty. The underlying cause of transphobic slurs directed towards me was undermined by only addressing ‘disrespect’ and they refused to address anything extending from that. When I expressed my concern in not addressing homophobia and transphobia directly I was met with hostility from the faculty, which made my teaching the remaining 3 weeks very uncomfortable.”

The most common story shared in response to this question concerned homophobic, biphobic or transphobic abuse from people in passing cars: at least 78 different comments cited this type of harassment.

This is both an extraordinary total, and an extraordinary indictment of the kind of person who would engage in the behaviour of shouting anti-LGBTIQ abuse at strangers from the safety, comfort and anonymity of their vehicles.

A typical story related to this type of harassment: “Minding my own business at a train station waiting to be picked up and a car full of guys and girls were yelling out ‘faggot’ to me just because they didn’t like the look of me.”

Although perhaps my favourite comment (for reasons that will soon become obvious) was this: “I was on a date walking with the guy and a guy started yelling at us from his car while he was driving, he lost control of the car and crashed into a sign.” #karma

Another common story was homophobic, biphobic or transphobic harassment on public transport, including trains, buses, trams and even taxis: at least 34 comments reported this kind of abuse. This included:

“Frequent dirty looks in public. Once on a bus (my partner and I were holding hands and talking) a woman stood up from her seat [and] said loudly that ‘we didn’t need to rub our sexuality in everyone’s face’ and moved to a seat further away from us.”

“On a packed train going home and one man took offense to another man’s skin was touching him (we were crammed in together… everyone was touching everyone). He started screaming about how the next person doing ‘any more gay shit’ to him was going to cop it. And screamed at the poor man who tried to defend himself. Anyone who tried to get him to calm down was met with homophobic language and threats. It was very scary.”

“(I’m a trans man, my husband is a cis man – we married and had a daughter before I transitioned). Just last week my husband and I were boarding a bus to the local shopping centre with our 4 year old daughter in tow. The myki machine was taking a bit of time to read each card. A man behind us shouted ‘move it, faggots!’ at us several times. Our daughter became visibly upset. No one stepped in to help or say anything. The man spent the entire bus ride glaring at us and making snide comments to the person in front of him.”

Perhaps most disappointing about the comments in response to question 3 was the fact approximately 20 people described homophobia, biphobia or transphobia from other members of the LGBTIQ community. This was particularly aimed at bisexual people, and to a slightly lesser degree transgender people[xxxiii]. For example:

“Told I’m greedy for being bi, that bisexuality is an excuse to hide that I’m ‘actually gay’, told that I’m a disgrace to the LGBT+ community for ‘not being able to decide’/’pick a side’…”

“Mostly it’s been lesbians telling me that bisexuals are just straight people trying to be trendy and undermining my identity…”

“There have been quite a few instances over the years where people have learned my sexuality and gone on a rant on how disgusting it is, and in some instances behaved threateningly while doing so. This comes from both non-LGBT+ and LGBT+ people.”

“Spat on in a gay bar for being transgender. Called a freak and told to kill myself. Been told I’m not a real man.”

If we are going to campaign for the elimination of homophobia, biphobia, transphobia and intersexphobia from society, then it is incumbent upon us to do better on these issues within our own communities, too.

One small positive from the responses to question 3: the old stereotype of gay man (or trans person) as ‘paedophile’ appears to be fading away, with only eight comments including this description as an element of the verbal harassment or abuse received. That particular form of abuse cannot die soon enough.

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Conclusion

The results of this survey suggest that 3 out of every 4 LGBTIQ Australians have experienced homophobic, biphobic, transphobic or intersexphobic verbal harassment or abuse at some point in their lives.

The survey also confirms that 2016 was a bad year for the LGBTIQ community, with 48% of people reporting that at least one instance of this anti-LGBTIQ verbal abuse occurred in the past 12 months.

These figures are unacceptably high to begin with, but we must also not overlook the fact these proportions are higher still for several groups within the LGBTIQ community who are particularly vulnerable:

  • Transgender individuals were 57% more likely to report verbal harassment and abuse in the past 12 months than gay people
  • Queer individuals were 47% more likely than gay people to experience recent verbal abuse
  • Almost two-thirds of Aboriginal and Torres Strait Islander respondents were subject to homophobic, biphobic or transphobic verbal harassment throughout the course of the past year, and
  • LGBTIQ people aged 24 or under were 50% more likely to have experienced recent verbal abuse than their counterparts aged 45 to 64.

These statistics show that the state of homophobia, biphobia and transphobia in Australia, in 2017, features far more anti-LGBTIQ verbal harassment than any of us would like. The stories shared in response to question 3, detailing personal accounts of this abuse, powerfully reinforces this fact.

As noted at the beginning of this post, this has been the first in a series of six articles reporting the results of my ‘The State of Homophobia, Biphobia and Transphobia’ survey.

The next five, which focus on physical abuse or violence, the places where prejudice occurs, and discrimination in education, employment and other areas, will be published during March and April.

If you would like to receive updates of these results, please sign up to this blog: on mobile, at the bottom of this page, or on desktop at the top right-hand corner of the screen.

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If this post has raised any issues for you, you can contact:

  • QLife, Australia’s national telephone and web counselling and referral service for LGBTI people. Freecall: 1800 184 527, Webchat: qlife.org.au (3pm to midnight every day)

Footnotes:

[i] See 2016: Annus Homophobicus.

[ii] Only people who answered yes to question 1 were provided with the opportunity to answer question 2, with 1,220 people completing the second question and 421 people (or 35%) indicting they had not experienced verbal harassment or abuse because of their sexual orientation, gender identity or intersex status in the past 12 months.

[iii] Question 1: 253 yes/73 no. Question 2: 173 yes/79 no.

[iv] Question 1: 501 yes/141 no. Question 2: 280 yes/216 no.

[v] Question 1: 333 yes/188 no. Question 2: 229 yes/104 no.

[vi] Question 1: 303 yes/71 no. Question 2: 255 yes/47 no. For those respondents who identified as both trans and bisexual, this figure was even higher – 86.3% reporting lifetime abuse. Queer trans respondents also reported higher rates (86.2% lifetime abuse).

[vii] Question 1: 15 yes/2 no. Question 2: 14 yes/1 no. Note that, given the low number of respondents, the proportions re intersex status must be treated with caution. For this reason, intersex status is also omitted from some of the discussion/analysis throughout the article.

[viii] Question 1: 394 yes/100 no. Question 2: 314 yes/79 no.

[ix] Without additional information, it is difficult to reach any firm conclusions about why this is the case, although one factor may be historically lesser visibility of bisexuality (which may reduce verbal harassment and abuse, but also exacerbates exclusion and isolation).

[x] Noting that this calculation includes the numbers of respondents who answered no to question 1.

[xi] Question 1: 50 yes/10 no.

[xii] Question 2: 39 yes/11 no.

[xiii] 627 yes/261 no.

[xiv] 341 yes/95 no.

[xv] 221 yes/57 no.

[xvi] 25 yes/11 no. Note that, given the low number of respondents, the proportions re people aged 65 and over must be treated with caution. For this reason, this group is also omitted from some of the discussion/analysis throughout the article.

[xvii] 485 yes/141 no.

[xviii] 201 yes/140 no.

[xix] 101 yes/118 no.

[xx] 8 yes/16 no.

[xxi] Question 1: 401 yes/141 no. Question 2: 259 yes/141 no.

[xxii] Question 1: 286 yes/100 no. Question 2: 191 yes/93 no.

[xxiii] Question 1: 192 yes/60 no. Question 2: 121 yes/71 no.

[xxiv] Question 1: 116 yes/36 no. Question 2: 76 yes/40 no.

[xxv] Question 1: 96 yes/39 no. Question 2: 62 yes/32 no.

[xxvi] Question 1: 78 yes, 33 no. Question 2: 60 yes/17 no.

[xxvii] Question 1: 41 yes/15 no. Question 2: 21 yes/20 no.

[xxviii] Question 1: 16 yes/5 no. Question 2: 9 yes/7 no. Note that, given the low number of respondents, the proportions re people in the Northern Territory must be treated with caution.

[xxix] Full results (reporting verbal harassment of abuse in the past 12 months, all respondents):

  • NSW 47.8%
  • Victoria 49.5%
  • Queensland 48%
  • WA 50%
  • SA 45.9%
  • Tasmania 54.1%
  • ACT 37.5%
  • NT 42.9%

[xxx] Although NSW does not include vilification protections for bisexual or intersex people, and Queensland does not protect intersex people.

[xxxi] Obviously, depending on the circumstances of the verbal harassment or abuse, only some of the responses given to the survey would fit the legal definition of vilification, irrespective of the ground on which it was based.

[xxxii] Comments were edited to, amongst other things:

-Remove identifying information

-Remove defamatory comments, and

-Remove offensive remarks (for example, deleting explicitly racist comments and/or unnecessary descriptions of a person’s race).

[xxxiii] Although I was particularly disturbed by a small number of respondents who included transphobic comments in their answers to question 3 itself, which were subsequently edited to remove the most offensive elements.