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

The following is my personal submission to the Law Reform Commission of WA’s Review of Western Australian legislation in relation to the recognition of a person’s sex, change of sex or intersex status. For more information on this inquiry, click here.

**********

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

 

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

[NB This article is the third in a series looking at the ‘unfinished business’ of LGBTI equality in Australia]

 

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.

 

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.

 

 

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

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

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

 

**********

 

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

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

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.

What’s Wrong With South Australia’s Equal Opportunity Act 1984?

 

This post is part of a series looking at Australia’s anti-discrimination laws, and examining how well, or how poorly, they protect lesbian, gay, bisexual, transgender and intersex (LGBTI) people against discrimination. The other posts in the series can be found here.

 

In particular, they assess Commonwealth, State and Territory legislation in terms of the following three issues:

  • Protected Attributes
  • Religious Exceptions, and
  • Anti-Vilification Coverage.

 

Unfortunately, while South Australia has recently expanded the range of people legally protected against discrimination, the Equal Opportunity Act 1984 remains grossly inadequate because of the breadth of religious exceptions it offers, and its failure to establish LGBTI vilification offences.

 

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Protected Attributes

 

Section 29 of the Equal Opportunity Act 1984 protects lesbian, gay, bisexual, transgender and intersex South Australians from discrimination.

 

Sub-section (2a) defines discrimination “on the ground of gender identity” to include (among other things):

  • “if the person treats another unfavourably because the other is or has been a person of a particular gender identity or because of the other’s past sex; 
  • if the person treats another unfavourably on the basis of a characteristic that appertains generally to persons of a particular gender identity, or on the basis of a presumed characteristic that is generally imputed to persons of a particular gender identity… and
  • if the person requires a person of a particular gender identity to assume characteristics of a sex with which the person does not identify.”

 

Importantly, unlike some jurisdictions, South Australia protects all trans people against discrimination (and not just people with binary gender identities).

 

The protections against discrimination “on the ground of sexual orientation” contained in sub-section (3) are similarly broad, and would cover all lesbian, gay and bisexual South Australians.

 

Fortunately, the Relationships Register Act 2016 has improved this coverage even further by introducing a new protected attribute of ‘intersex status’, with the addition of sub-section 29(4)[i].

 

With this change, South Australia has become only the fourth jurisdiction in Australia – after the Commonwealth, Tasmania and the Australian Capital Territory – to explicitly protect intersex people against discrimination. Although it should be noted that in the March 2017 Darlington Statement, intersex activists called for this terminology to be replaced by a protected attribute of ‘sex characteristics’.

 

Summary: The South Australian Equal Opportunity Act 1984 protects lesbian, gay, bisexual, transgender and intersex people against discrimination – with the 2017 inclusion of ‘intersex status’ making it only the fourth Australian jurisdiction, out of nine, to cover the entire LGBTI community.

 

 

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Religious Exceptions

 

Unfortunately, while the Equal Opportunity Act 1984 will soon be close to best practice on protected attributes, in terms of religious exceptions it is anything but.

 

Section 50 sets out an incredibly broad range of circumstances in which religious organisations are legally entitled to discriminate against LGBT South Australians:

Religious bodies

(1) This Part does not render unlawful discrimination in relation to-

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

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

(ba) the administration of a body established for religious purposes in accordance with the precepts of that religion; or

(c) 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.”

 

While paragraphs (a) and (b) are at least directly related to religious appointments – and therefore somewhat defensible because of their connection to freedom of religion – paragraph (ba) and especially paragraph (c) effectively encourage discrimination by religious organisations in healthcare and other community services.

 

It also allows discrimination in relation to education in religious schools, and therefore likely overrides the general protections offered to students under section 37, which ostensibly prohibits discrimination with respect to admission as a student, the education or training offered to that student, and expelling or otherwise punishing the student.

 

However, the situation is slightly more complicated with respect to teachers in religious schools, with sub-section 34(3) setting out a separate, specific exception in that area:

“(3) This Division does not apply to discrimination on the ground of sexual orientation or gender identity in relation to employment or engagement for the purposes of an educational institution if-

(a) the educational institution is administered in accordance with the precepts of a particular religion and the discrimination is founded on the precepts of that religion; and

(b) the educational authority administering the institution has a written policy stating its position in relation to the matter; and

(c) a copy of the policy is given to a person who is to be interviewed for or offered employment with the authority or a teacher who is to be offered engagement as a contractor by the authority; and

(d) a copy of the policy is provided on request, free of charge-

(i) to employees and contractors and prospective employees and contractors of the authority to whom it relates or may relate; and

(ii) to students, prospective students and parents and guardians of students and prospective students of the institution; and

(iii) to other members of the public.”

 

Some may see this as a relatively positive approach, because at the very least it allows everyone to be informed about the policies any particular school adopts. And, admittedly, it is preferable to the carte blanche approach adopted in other states (and especially in New South Wales).

 

However, there are two important qualifications to this ‘benign’ assessment:

  • It still allows discrimination against teachers and other employees in religious schools solely on the basis of their gender identity or sexual orientation. This discrimination – which has no connection whatsoever to the ability of LGBT teachers and staff to do their jobs – remains unacceptable, irrespective of the procedural steps a school must first negotiate, and
  • The general religious exception in sub-section 50(c) nevertheless applies (because it covers all sections in the Part, including those applying to employment). Depending on how the interaction between these two provisions has been interpreted by the judiciary, it is possible that religious schools can ‘pick and choose’ the basis on which they discriminate against teachers and employees (and therefore potentially avoid these procedural hurdles altogether).

 

There is one final religious exception which allows discrimination against LGBT South Australians – sub-section 35(2b) allows ‘associations’ to exclude and otherwise adversely treat people on the basis of their gender identity or sexual orientation “if the association is administered in accordance with the precepts of a particular religion and the discrimination is founded on the precepts of that religion.”

 

Summary: The religious exceptions contained in the South Australian Equal Opportunity Act 1984 allow discrimination against LGBT people in a wide range of circumstances, including healthcare, community services, associations and in education (at least in relation to students).

 

LGBT teachers and other staff in religious schools can also be discriminated against simply because of who they are, although whether or not the school must have transparent policies in place to allow such discrimination would depend on judicial interpretation.

 

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Anti-Vilification Coverage

 

This section will be the shortest of this post – because there is none. Lesbian, gay, bisexual, transgender and intersex South Australians have no protection against anti-LGBTI vilification under the Equal Opportunity Act 1984[ii].

 

This is despite the fact that an entire stand-alone act exists with respect to racial vilification (the Racial Vilification Act 1996). Given homophobia, biphobia, transphobia and intersexphobia are just as damaging, and just as harmful, as racism, the lack of equivalent protections against anti-LGBTI vilification is, in my opinion, shameful.

 

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Other Issues

There are a few additional issues in the Equal Opportunity Act 1984 that it would be remiss not to at least mention.

 

On the negative side, there is a very broad ‘inherent requirement’ exception in relation to employment. Sub-section 34(2) provides that:

“This Division does not apply to discrimination on the ground of sex, sexual orientation or gender identity in relation to employment or engagement for which it is a genuine occupational requirement that a person be of a particular sex, sexual orientation or gender identity.”

 

It is difficult to think of many – in fact, any – jobs in which it is an inherent requirement that someone be of a particular sexual orientation or gender identity. It would be interesting to see on what possible basis the drafters attempted to justify this sub-section.

 

Similarly, sub-section 34(4) allows discrimination in employment against transgender people generally, and non-binary gender diverse people in particular, on the basis of their appearance, stating that:

“This Division does not apply to discrimination on the ground of gender identity in relation to employment or engagement if the discrimination is for the purposes of enforcing standards of appearance and dress reasonably required for the employment or engagement.”

 

Once again, it is hard to see how such discrimination can possibly be justified, and I would argue that both sub-sections (34(2) and (4)) should be repealed.

 

On the other hand, there are two exceptions that allow positive discrimination in favour of LGBTI people.

 

The first, in sub-section 35(2a), permits LGBT-specific associations to be created (for “persons of a particular gender identity” or for “persons of a particular sexual orientation (other than heterosexuality)”, noting that heterosexuality remains privileged within Australian society).

 

The second, in section 47, authorises actions designed to overcome discrimination against minority groups:

Measures intended to achieve equality

This Part does not render unlawful an act done for the purpose of carrying out a scheme or undertaking intended to ensure that persons of a particular sex, sexual orientation or gender identity, have equal opportunities with, respectively, all other persons, in circumstances to which this Part applies.”

 

Nevertheless, while these final two provisions are welcome, they do not negate the harmful aspects of the Act, including its overly-generous religious exceptions, and the complete lack of anti-vilification coverage for LGBTI South Australians.

 

In the lead-up to the 2018 election, hopefully all sides of politics acknowledge these major flaws and work together to rectify them as a matter of priority.

 

jayweatherill

With the next election due in March 2018, will South Australian Premier Jay Weatherill commit to reducing religious exceptions and introducing LGBTI anti-vilification protections?

 

Footnotes:

[i] “(4) For the purposes of this Act, a person discriminates on the ground of intersex status-

(a) if the person treats another unfavourably because of the other’s intersex status or past intersex status; or

(b) if the person treats another unfavourably because the other does not comply, or is not able to comply, with a particular requirement and-

(i) the nature of the requirement is such that a substantially higher proportion of persons who are not of intersex status complies, or is able to comply, with the requirement than of those of intersex status; and

(ii) the requirement is not reasonable in the circumstances of the case; or

(c) if the person treats another unfavourably on the basis of a characteristic that appertains generally to persons of intersex status, or presumed intersex status, or on the basis of a presumed characteristic that is generally imputed to persons of intersex status; or

(d) if the person treats another unfavourably because of an attribute of or a circumstance affecting a relative or associate of the other, being an attribute or circumstances described in the preceding paragraphs.”

[ii] Although South Australia is not alone in this regard – there are also no LGBTI vilification protections in Commonwealth law, and in Victoria, Western Australia and the Northern Territory.