Tag Archives: intersex status

Submission to South Australian Law Reform Institute Consultation on Removing LGBTIQ Discrimination

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South Australian Law Reform Institute

c/- salri@adelaide.edu.au

Monday 6 July 2015

 

To whom it may concern,

Submission to South Australian Law Reform Institute Consultation on Removing LGBTIQ Discrimination from South Australian Laws

Thank you for the opportunity to provide this submission to the South Australian Law Reform Institute (SALRI) public consultation on removing discrimination against lesbian, gay, bisexual, transgender, intersex and queer people from South Australian laws.

While I am not a resident of South Australia, I am a passionate advocate for LGBTI rights, and I provide the following comments on possible ways to improve the legal situation of LGBTI people in South Australia, especially in terms of their protections under anti-discrimination law.

Specifically, I would like to suggest three major reforms to the South Australian Equal Opportunity Act 1984 (the ‘Act’), namely:

  1. Amend protected attributes to:
    1. Modernise wording around gender identity, and
    2. Genuinely include intersex status.

The Equal Opportunity Act 1984 currently provides protection to lesbian, gay and bisexual people through section 29 (and subsequent provisions of the Act), because of the definition of ‘sexuality’ in section 5: “sexuality means heterosexuality, homosexuality and bisexuality.”

While the SALRI may wish to consider whether to recommend amendments to the wording of these attributes (potentially to ‘sexual orientation’, to ensure consistency with the provisions of the Commonwealth Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013), the primary concerns around protected attributes, and how they are drafted, are in respect of transgender and intersex individuals.

For example, protections for transgender people are based on the term ‘chosen gender’, which is defined under sub-section 5(5) of the Act as: “a person is a person of a chosen gender if –

  • the person identifies on a genuine basis as a member of the opposite sex by assuming characteristics of the opposite sex (whether by means of medical intervention, style of dressing or otherwise) or by living, or seeking to live, as a member of the opposite sex…”

Based on my understanding of transgender activism, and through recent developments of anti-discrimination law within Australia, it is highly likely that using the term ‘chosen gender’, and then defining it in this way, is not best practice.

For example, the Commonwealth Sex Discrimination Act 1984 protections are instead based on ‘gender identity’, which is defined in section 4 of that Act as: “gender identity means the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth.”

The Commonwealth definition appears to be significantly more inclusive, especially because it does not use descriptors such as ‘opposite sex’ and therefore avoids strict gender binaries, allowing people who do not identify as either male or female to also be protected.

I suggest the SALRI consider recommending the South Australian Equal Opportunity Act 1984 be amended to incorporate the term, and definition of, ‘gender identity’ from the Commonwealth Sex Discrimination Act 1984.

In a similar way, it is possible that the drafters of subsection 5(5) of the South Australian Equal Opportunity Act 1984 believed that they were including people with intersex variations, when they wrote: “a person is a person of a chosen gender if – …

  • the person, being of indeterminate sex, identifies on a genuine basis as a member of a particular sex by assuming characteristics of the particular sex (whether by means of medical intervention, style of dressing or otherwise) or by living, or seeking to live, as a member of the particular sex.”

However, once again based on my understanding of intersex activism, and on recent developments in anti-discrimination law (particularly at the Commonwealth level, and more recently in Tasmania), it is clear that this definition is not best practice – and is, in fact, inadequate to ensure protection for people on the basis of intersex status.

For this reason, the SALRI should consider recommending that South Australia adopt the provisions of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, which was the first anti-discrimination legislation in the world to include ‘intersex status’ as a stand-alone protected attribute.

As a result of those reforms, ‘intersex status’ is now defined in section 4 of the Commonwealth Sex Discrimination Act 1984 as: “intersex status means the status of having physical, hormonal or genetic features that are:

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

Adopting this definition would ensure a far larger proportion of people with intersex variations would have protection under South Australia’s anti-discrimination laws.

Obviously, as a cisgender gay man, I am not an expert on either of the grounds of gender identity or intersex status. That is why these issues have been framed as suggestions – and if this is something that the SALRI wishes to take up in more detail, it should do so in close collaboration with South Australian and/or national transgender and intersex advocacy organisations to ensure that whatever language is ultimately adopted is the best, and most inclusive, possible.

  1. Remove broad exceptions granted to religious organisations

The current exceptions which are offered to religious organisations in the Equal Opportunity Act 1984 are overly generous, and their scope should be significantly narrowed.

Section 50 of the Act provides:

“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 both subsections 50(1)(a) and (b) appear to be necessary to protect the genuine exercise of freedom of religion, subsection 50(1)(ba) would only be justified on this basis if it was limited to the operation of explicitly or overtly religious bodies (like churches) and should not apply to other institutions which may be operated by religions but which have a different primary purpose (for example, schools, hospitals, aged care services or other community services).

Subsection 50(1)(c) is also completely unjustifiable given it provides what amounts to essentially a ‘blank cheque’ to organisations that are operated by religious groups to discriminate against lesbian, gay, bisexual or transgender (LGBT) South Australians, both in employment and in service delivery.

There should not be a general right to discriminate against LGBT people, across multiple areas of public life like education, health, aged care or community services, simply because of the religious beliefs of certain individuals or organisations. LGBT South Australians deserve the right to access services, and to apply for or undertake employment, in the public sphere without the threat of being discriminated against solely on the basis of who they are.

The Commonwealth Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, which specifically excluded religious exceptions from applying to LGBT people accessing aged care services operated by religious organisations, has successfully demonstrated that:

  1. It is possible to restrict these religious exceptions in law, and
  2. After two years of operation, there have been no practical problems in the application of such provisions.

Even more relevantly, the Tasmanian Anti-Discrimination Act 1998 has not granted explicit exceptions to protections on sexual orientation, gender identity or intersex status to religious organisations – and this approach has also worked well over the past decade.

For example, under the Tasmanian legislation, religious organisations have traditionally only been allowed to discriminate in terms of:

  1. Employment based on religion (section 51)[1] or
  2. Participation in religious observance (section 52)[2].

I suggest that the SALRI consider the long-standing Tasmanian exceptions, which do not allow for general discrimination against LGBTI people on the basis of their sexual orientation, gender identity or intersex status, but only on the grounds of religious belief or activity, as a ‘best practice’ guide to help reform the South Australian Equal Opportunity Act 1984 and therefore improve the anti-discrimination protections which are offered to LGBTI South Australians.[3]

  1. Introduce anti-vilification protections for LGBTI South Australians

The final suggestion relates to the issue of anti-lesbian, gay, bisexual, transgender and intersex vilification.

Specifically, it is to recommend the creation of anti-vilification laws, on the basis of sexual orientation, gender identity and intersex status, which are equivalent to the race-based anti-vilification provisions of the South Australian Racial Vilification Act 1996[4].

To put it bluntly, there is no justification whatsoever to have anti-vilification laws which protect people from racist vilification, but to simultaneously not have anti-vilification laws which apply to homophobia, biphobia, transphobia and intersexphobia.

Homophobia, biphobia, transphobia and intersexphobia are just as unacceptable, and, most importantly, just as harmful, as racism – with significant impacts on the mental health of young LGBTI people in particular. If, as a community, we have (or in this case, South Australia, has) resolved to outlaw racist vilification, then similar laws should also be used to outlaw homophobic, biphobic, transphobic and intersexphobic vilification.

Currently, four Australian jurisdictions (NSW, Queensland, the ACT and Tasmania) have anti-vilification laws which cover (at least some of) the lesbian, gay, bisexual, transgender and intersex communities.

However, given neither the Commonwealth Sex Discrimination Act 1984, nor South Australian law, have any vilification protections on these grounds, none of the LGBTI communities in South Australia have any legal protection from similar conduct.

This situation should change – and I suggest the SALRI recommend the creation of new anti-vilification laws which prohibit vilification on the basis of sexual orientation, gender identity and intersex status.

The past 18 months have seen an extensive community conversation about race-based vilification laws at the Commonwealth level, and specifically whether section 18C of the Racial Discrimination Act 1975 should be repealed, amended or retained.

The outcome of this debate appears to be relatively strong community support for the retention of section 18C. As such, I believe the SALRI should take advantage of this moment to recommend that another marginalised group within Australian society should be offered the same shield against conduct which is similarly destructive.

Thank you again for the opportunity to make a submission to the South Australian Law Reform Institute (SALRI) public consultation on removing discrimination against lesbian, gay, bisexual, transgender, intersex and queer people from South Australian laws.

I look forward to the outcome of this consultation, and to the consequent improvements to South Australia’s laws – hopefully including the reforms to the Equal Opportunity Act 1984 recommended in this submission.

Sincerely,

Alastair Lawrie

[1] “Section 51: Employment based on religion.

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

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

[2] “Section 52: Participation in religious observance.

A person may discriminate against another person on the ground of religious belief or affiliation or religious activity in relation to –

  • the ordination or appointment of a priest; or
  • the training and education of any person seeking ordination or appointment as a priest; or
  • the selection or appointment of a person to participate in any religious observance or practice; or
  • any other act that –
    • is carried out in accordance with the doctrine of a particular religion; and
    • is necessary to avoid offending the religious sensitivities of any person of that religion.”

[3] However, I do not believe there is any reason to include the recently added, unnecessary – and unnecessarily discriminatory – provisions included in section 51A of the Tasmanian Act which state: “Section 51A. Admission of person as student based on religion.

(1) A person may discriminate against another person on the ground of religious belief or affiliation or religious activity in relation to admission of that other person as a student to an educational institution that is or is to be conducted in accordance with the tenets, beliefs, teachings, principles or practices of a particular religion.

(2) Subsection (1) does not apply to a person who is enrolled as a student at the educational institution referred to in that subsection.

(3) Subsection (1) does not permit discrimination on any grounds referred to in section 16 other than those specified in that subsection.

(4) A person may, on a ground specified in subsection (1), discriminate against another person in relation to the admission of the other person as a student to an educational institution, if the educational institution’s policy for the admission of students demonstrates that the criteria for admission relates to the religious belief or affiliation, or religious activity, of the other person, the other person’s parents or the other person’s grandparents.”

[4] Section 4 of the SA Racial Vilification Act provides: “Racial vilification. A person must not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of their race by –

  • threatening physical harm to the person, or members of the group, or to property of the person or members of the group; or
  • inciting others to threaten physical harm to the person, or members of the group, or to property of the person or members of the group.

Maximum penalty:

If the offender is a body corporate – $25 000.

If the offender is a natural person – $5 000, or imprisonment for 3 years, or both.”

Submission to Rights & Responsibilities 2014 Consultation

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The Human Rights Commissioner, Tim Wilson, is currently undertaking a public consultation called Rights & Responsibilities 2014. Unfortunately, similar to the ALRC Freedoms Inquiry, it is very much focused on ‘traditional’ rights at the expense of other rights like the right to non-discrimination on the basis of sexual orientation, gender identity and intersex status. This post is my submission to this consultation process.

You can find out more about the inquiry, including downloading the Discussion Paper, at the following link: https://www.humanrights.gov.au/rights-responsibilities-2014 Written submissions, including an option to complete an online survey, are due by Friday 14 November 2014. Public consultations are also being held across the country, with a session in Sydney scheduled for Wednesday 19 November 2014 (details at the AHRC website).

Mr Tim Wilson

Human Rights Commissioner

Australian Human Rights Commission

c/- rights2014@humanrights.gov.au

Monday 27 October 2014

Dear Commissioner Wilson

SUBMISSION TO RIGHTS & RESPONSIBILITIES 2014 CONSULTATION

I welcome the opportunity to provide a submission to the Rights & Responsibilities 2014 public consultation, and in particular to provide feedback on the Discussion Paper, of the same name, published on the Australian Human Rights Commission (AHRC) website.

In this submission, I will provide feedback on two of the four rights, or related sets of rights, featured in Appendix A of the discussion paper (namely, the right to freedom of expression, and the right to freedom of thought, conscience and religious worship).

However, before doing so I would like to express my serious concern that the focus of the discussion paper is limited to some rights, which could be characterised as being more ‘traditional’ in nature (for example, the right to property), to the apparent exclusion of other rights which, I believe, are no less important in the contemporary world.

Specifically, I would argue that prioritising certain rights above others potentially neglects and devalues the importance of those other rights which are no less essential to ensuring that all Australians are able to fully participate in modern society. From my point of view, chief among these rights is the right to non-discrimination, or to put it another way (which may be more favourably received), to be free from discrimination, including unfair or adverse treatment on the basis of sexual orientation, gender identity and intersex status.

The right to non-discrimination is fundamental in international human rights law adopted immediately post-World War II. Article 2(1) of the International Covenant on Civil and Political Rights (ICCPR) provides that: “Each State Party to the present Covenant undertakes to respect and to ensure all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant, without distinction of any kind such as race, colour, sex, language, religion, political or other opinion, property, birth or other status.”

Similarly, article 21 of the ICCPR establishes that: “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

The United Nations Human Rights Committee has, in cases which both involved complaints by Australian citizens against actions by the Tasmanian and Commonwealth Government respectively, found that the wording of these articles includes the right to be free from discrimination on the basis of sexual orientation.[1]

The Commonwealth Parliament has also recognised that the right to non-discrimination for lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians is worthy of protection, with the passage of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013. This historic legislation, providing similar rights to non-discrimination to those already enjoyed on the basis of race, sex, disability and age, was a significant, albeit long overdue, step forward for the LGBTI community.

For this reason, I would not wish to see the right to be free from discrimination on these attributes to be diminished in comparison to other, more ‘traditional’ rights. Unfortunately, that is the almost inevitable conclusion of a consultation process which aims to consider “how effectively we protect people’s human rights and freedoms in Australia” (page 1 of the Discussion Paper) but which then only focuses on a small number of freedoms, including the right to property, and which neglects others.

In this way, the Rights & Responsibilities 2014 Discussion Paper appears to reinforce the message, already made clear by the Attorney-General, Senator the Hon George Brandis’ ‘Freedom Inquiry’ reference to the Australian Law Reform Commission (see http://www.alrc.gov.au/inquiries/freedoms/terms-reference for the terms of reference), that some freedoms are somehow better or more worthy of protection than others. Both inquiries appear to suggest that there is a hierarchy of rights, with ‘traditional’ rights at the top, and other rights, such as the right to non-discrimination, placed below them.

This is particularly concerning when some of those traditional rights being promoted or ‘privileged’ in these consultations, including the right to property and the right to ‘common law protection of personal reputation’ (aka defamation), are rights which are inherently more valuable to those who already enjoy ‘privilege’ within society, while other rights vital to protect the interests of people who are not ‘privileged’ are largely ignored.

Above all, I am concerned that you, in your role as Human Rights Commissioner, should actively participate in the reinforcement of this supposed hierarchy of rights, with the right to non-discrimination placed somewhere toward the bottom – especially as you are also the Commissioner at the AHRC with responsibility for sexual orientation, gender identity and intersex status issues.

I would ask that you reconsider your approach to these issues in the Rights & Responsibilities 2014 consultation process, and, instead of promoting a narrow view of what constitutes fundamental human rights, ensure that other rights, including the right to non-discrimination – or to be free from discrimination – are also given appropriate consideration.

I will now turn my attention to two of the four rights, or related sets of rights, featured in Appendix A of the Discussion Paper.

Right to freedom of expression (page 5 of the Discussion Paper)

I acknowledge the importance of the right to freedom of expression, or freedom of speech. However, I also welcome the Discussion Paper’s statement that freedom of speech is not absolute, in particular where it notes that: “Under international law, freedom of expression may only be limited where it is prescribed by law and deemed necessary to protect the rights or reputations of others, national security, public order, or public health or morals. A mandatory limitation also applies to the right to freedom of expression in relation to ‘any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence’.”[2]

In this context, I question why laws should be established to prohibit ‘advocacy of national, racial or religious hatred’ but not to prohibit advocacy of hatred on other grounds, including sexual orientation, gender identity or intersex status. The impact of vilification on these grounds, and the negative influence of public homophobia, biphobia, transphobia and intersexphobia more generally, is just as harmful as racial or religious vilification. Therefore I can see no good reason why there should not also exist equivalent anti-vilification protections covering LGBTI Australians a Commonwealth level.

It is for this reason that I provided a submission earlier this year in response to the Attorney-General, Senator the Hon George Brandis’, Exposure Draft Bill seeking to repeal section 18C of the Racial Discrimination Act 1975, in which I argued that, instead of abolishing racial vilification laws, similar protections against vilification on the basis of sexual orientation, gender identity and intersex status should be added to the Sex Discrimination Act 1984 (a copy of this submission can be found at the following link: https://alastairlawrie.net/2014/04/24/dont-limit-racial-vilification-protections-introduce-vilification-protections-for-lgbti-australians-instead/ ).

Thus, while I understand the focus of this section of the Discussion Paper is on ensuring that there exist only narrow restrictions on ‘freedom of expression’ (as summed up in the question “how individuals can be held accountable for the use of their freedom of expression outside of law” emphasis added), I submit there remains a proper, indeed necessary, role for legal restrictions on this freedom to protect against the “incitement to discrimination, hostility or violence”.

I further submit that these protections should cover lesbian, gay, bisexual, transgender and intersex Australians against such incitements. I sincerely hope that, in your capacity as both Human Rights Commissioner and AHRC Commissioner with responsibility for sexual orientation, gender identity and intersex status issues, you agree.

Right to freedom of thought, conscience and religious worship (page 6 of the Discussion Paper)

I also acknowledge the fundamental importance of the rights to freedom of thought, conscience and religious worship. I further agree with the Discussion Paper on page 6 where it states that “[t]he internal dimension of the right – the freedom to adopt or hold a belief – is absolute.”

However, just as importantly, I support the statement that “the external dimension – the freedom to manifest that belief in worship, observance, practice or teaching – may be limited by laws when deemed necessary to protect the public safety, order, health or morals, or the fundamental rights and freedoms of others” (emphasis added). This is a vital caveat that allows Governments to protect other individuals and groups against both potential and real harm.

Unfortunately, I do not believe that Australian law currently strikes the right balance between respecting the right to freedom of religious worship, and the harms caused by breaches of the right to non-discrimination on the basis of sexual orientation, gender identity and intersex status.

Specifically, I am concerned that the broad exceptions and/or exemptions which are provided to religious organisations under Commonwealth, state and territory anti-discrimination laws, including those protections added by the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, are far too generous, and essentially approve the prejudicial and discriminatory treatment of LGBT Australians by religious bodies in a large number of areas of public life[3].

For example, the combined impact of sub-section 37(1)(d) of the amended Sex Discrimination Act 1984 (which provides that “[n]othing in Division 1 or 2 affects… 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 susceptibility of adherants of that religion”) and section 38 of the same law (which applies to educational institutions established for religious purposes), means that, according to Commonwealth law:

  • Religious schools can freely discriminate against lesbian, gay, bisexual and transgender students, including expelling those students simply for being who they are;
  • Religious schools can also freely discriminate against LGBT staff members, including by refusing to provide or terminating their employment, where sexual orientation and gender identity is completely irrelevant to the ability of that person to perform the duties of the role;
  • Religious health and community services can similarly discriminate, with impunity, against both LGBT employees and potential employees, as well as LGBT individuals and families accessing these services; and
  • Religious aged care services can discriminate against LGBT employees or potential employees.[4]

It is difficult to see how these exemptions, which allow LGBT people to be discriminated against simply as they seek to obtain an education, or access healthcare (which are themselves fundamental international human rights), and to be treated unfairly in employment in a large number of jobs across a wide range of areas, is not a gross breach of their human rights.

It is even more difficult to envisage how these exemptions fit with the statements on page 2 of the Discussion Paper that “[r]ights and freedoms… are about being treated fairly, treating others fairly…” (emphasis added) and that “[l]imits on rights have been established to ensure individuals do not harm others when exercising their own rights.” Religious exceptions and exemptions under Commonwealth, state and territory anti-discrimination laws allow serious harm to be caused to LGBT Australians, on a day-to-day basis and across multiple spheres of public life, and, I assert, should be significantly curbed.

To this end, I believe the religious exemptions which are included in sub-sections 37(1)(a),(b) and (c) of the Sex Discrimination Act 1984[5], if supplemented by exemptions covering how religious ceremonies are conducted, would be both more justifiable in being better targeted to protecting freedom of religious worship itself, and less likely to result in harm to LGBT people through the breach of their right to non-discrimination across broad areas of public life. Therefore, these are the only religious exemptions which should be retained.

This, much narrower, approach to religious exemptions would, in my view, also be a more appropriate outcome of a system of human rights that seeks to both protect fundamental rights, and promote the responsibility not to infringe upon the fundamental rights of others. In this respect, I question why the Discussion Paper does not live up to its title – examining both Rights AND Responsibilities – but instead focuses primarily on the expansion of some rights, including the right to freedom of religious worship, even at the possible expense of others, such as the right to non-discrimination.

For example, the conclusion of the section on “Right to freedom of thought, conscience and religious worship” notes that: “Rights & Responsibilities will focus on:

  • the ways you exercise your right to freedom of religion
  • where restrictions on freedom of religious worship exist
  • whether you have felt restricted or prohibited from exercising your right to freedom of religion
  • what could be done to enable you to exercise your right to freedom of religion.”

This focus presupposes that the only changes with respect to this area of law should be expansions to the ‘freedom of religion’, rather than allowing for the possibility that people claiming to exercise this freedom are in fact unjustifiably and inappropriately infringing upon the rights of others. The Discussion Paper does not seem to even contemplate the possibility that more protections may be needed to shield LGBT Australians from discrimination, perpetrated by religious organisations, but which at this stage is legitimated by exemptions to Commonwealth anti-discrimination law.

I submit that removing these wide-ranging, and overly-generous, religious exemptions is one of the most important, and effective, reforms the Government could make to improve the rights of any group of Australians. I sincerely hope that, as AHRC Commissioner with responsibility for sexual orientation, gender identity and intersex status issues, you agree that LGBT Australians should be free to live their lives without homophobia, biphobia, transphobia and intersexphobia. And to do so without exception. Thank you in advance for your consideration of this submission. Sincerely Alastair Lawrie

Human Rights Commissioner and Rights & Responsibilities 2014 author, Tim Wilson.

Human Rights Commissioner and Rights & Responsibilities 2014 author, Tim Wilson.

[1] Human Rights Committee, Toonen v Australia, Communication No. 488/1992, UN Doc CCPR/C/50/D/488/92 and Human Rights Committee, Young v Australia, Communication No. 941/2000, UN Doc CCPR/C/78/D/941/2000. [2] International Covenant on Civil and Political Rights, Article 20(2). [3] Noting that the religious exemptions contained in the Sex Discrimination Act 1984 do not apply to intersex status, only to sexual orientation and gender identity. [4] Noting that the religious exemptions contained in the Sex Discrimination Act 1984 do not apply to LGBT people accessing aged care services. [5] “Nothing in Division 1 or 2 affects:

  • the ordination or appointment of priests, ministers of religion or members of any religious order;
  • the training or education of persons seeking ordination or appointment as priests, ministers of religion or members of a religious order;
  • 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…”

Don’t Limit Racial Vilification Protections, Add Vilification Protections for LGBTI Australians

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The following is my submission to the Attorney-General’s Department’s Review of the Freedom of speech (repeal of s.18C) Bill 2014 – Exposure Draft (aka the Bill to significantly limit the scope of racial vilification protections under the Racial Discrimination Act 1975).

Submissions close on Wednesday 30 April, and more details can be found here: <http://www.ag.gov.au/Consultations/Pages/ConsultationsonamendmentstotheRacialDiscriminationAct1975.aspx

I strongly encourage you to make a submission, and include in it the call for the Commonwealth to focus on expanding protections for the benefit of all lesbian, gay, bisexual, transgender and intersex Australians, rather than limiting the operation of s18C for one Melbourne-based News Ltd columnist. Thanks.

Human Rights Policy Branch

Attorney-General’s Department

3-5 National Circuit

BARTON ACT 2600

s18cconsultation@ag.gov.au

Thursday 24 April 2014

To whom it may concern,

SUBMISSION ON RACIAL VILIFICATION AMENDMENTS

Thank you for the opportunity to make a submission on the proposed changes to the racial vilification provisions of the Racial Discrimination Act 1975, as contained in the Freedom of speech (repeal of s.18C) Bill 2014 Exposure Draft.

For the reasons explained below, I do not support the replacement of existing sections 18B, 18C, 18D and 18E with the new clauses of the Exposure Draft Bill.

However, I do believe that significant changes should be made to vilification provisions in Commonwealth law: namely, that vilification protections should be expanded to cover sexual orientation, gender identity and intersex status.

The absence of such protections leaves lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians vulnerable to the same types of adverse public conduct experienced by people of different racial backgrounds, but without recourse to the same complaint resolution mechanisms.

I will now turn to these two issues – the proposed reforms, and the case for introducing LGBTI vilification protections – in more detail.

Proposed Reforms to Section 18C

In considering any potential reforms to section 18C of the Racial Discrimination Act 1975, it is useful to start at the particular sub-section which features in most debate. Sub-section 18C(1)(a) makes it “unlawful for a person to do an act, otherwise than in private, if: the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people.”

I am of the view that the drafting of this sub-section is probably not ideal, and, arguably, is too broad in terms of the types of conduct that at least theoretically could be captured. I do not believe that, were provisions regarding racial vilification to be drafted today, they would include the terms ‘offend’ or ‘insult’ (or at least not without aggravating factors or considerations).

However, it is one thing to suggest that the drafting of a provision is something less than ‘ideal’ – it is another to suggest that poor drafting has directly caused problems that mean it must be amended. And even if that test is satisfied, any proposed reforms to the law should be an improvement, and not worsen any potential harm.

Turning to the question of whether the drafting of section 18C has directly led to, or caused, any significant problems, I am not convinced that it has. Racial vilification protections under the Racial Discrimination Act 1975 appear to be widely supported by the community, and, for the most part, appear to be working well, both with the oversight of the Australian Human Rights Commission and in the Courts.

There is, of course, one case which is frequently cited as necessitating change to section 18C, and its related provisions, and that is the case of Eatock v Bolt [2011] FCA 1103.

Even ignoring the old legal maxim that hard cases make bad law (“Hard cases, it has frequently been observed, are apt to introduce bad law”, from Judge Rolfe in Winterbottom v Wright in 1842), it is not clear that the outcome of the “Bolt case” makes any persuasive case for change.

In the summary of that decision, Justice Mordecai Bromberg explained that “I am satisfied that fair-skinned Aboriginal people (or some of them) were reasonably likely, in all the circumstances, to have been offended, insulted, humiliated or intimidated by the imputations conveyed by the newspaper articles” of Mr Bolt (para 17).

Justice Bromberg also explained that Mr Bolt’s conduct could not fit within what are, to be frank, extremely generous exemptions in section 18D, writing that “I have not been satisfied that the offensive conduct that I have found occurred, is exempted from unlawfulness by section 18D. The reasons for that conclusion have to do with the manner in which the articles were written, including that they contained errors of fact, distortions of the truth and inflammatory and provocative language” (para 23, emphasis added).

In his summary, Justice Bromberg also articulates at least one of the reasons why laws should exist to prohibit writings such as those of Mr Bolt: “People should be free to fully identify with their race without fear of public disdain or loss of esteem for so identifying. Disparagement directed at the legitimacy of the racial identification of a group of people is likely to be destructive of racial tolerance, just as disparagement directed at the real or imagined practices or traits of those people is also destructive of racial tolerance” (para 22).

In short, there appears to at least be an arguable case that not only was the “Bolt case” decided correctly on the existing law, but also that the current provisions are operating as intended to limit the negative effects of racial intolerance. Conversely, I believe it is difficult to argue, solely on the basis of Eatock v Bolt, that section 18C is so deficient that it should be amended, and amended as a matter of high priority.

Even if the argument that change was, indeed, necessary was accepted, I do not support that changes proposed in the Freedom of speech (repeal of s.18C) Bill 2014 Exposure Draft.

I believe that the replacement of ‘offend, insult, humiliate or intimidate’ with to vilify (defined as “to incite hatred against a person or a group of persons”) or to intimidate (meaning “to cause fear of physical harm; to a person; to the property of a person; or to the members of a group of persons”), would arbitrarily and unduly limit the effectiveness of these protections.

I agree with the Australian Human Rights Commission, in their statement of Tuesday 25 March 2014, that: “the bill reduces the level of protection by providing a narrow definition of vilification and by limiting intimidation to causing fear of physical harm. It is not clear why intimidation should not include the psychological and emotional damage that can be caused by racial abuse.”

I also agree with the Australian Human Rights Commission in their concerns about the breadth of the exemptions proposed in new clause (4). As the Commission notes “[t]his provision is so broad it is difficult to see any circumstances in public that these protections would apply.”

This is at least in part because the previous limitations of section 18D – that words or conduct must be done “reasonably and good faith” to be exempted – have been removed, again without a clear explanation or motivation. In my opinion, the proposals contained in the Exposure Draft Bill would not improve the operation of racial vilification protections generally, but instead have the capacity to make things substantially worse.

Overall, while I concede that the current drafting of section 18C is not ‘ideal’, I do not believe that there are sufficient problems in practice for it to be amended. I also strongly oppose the replacement of sections 18B, 18C, 18D and 18E of the current Racial Discrimination Act 1975, with the clauses contained in the Freedom of speech (repeal of s.18C) Bill 2014 Exposure Draft.

Recommendation 1. The Freedom of speech (repeal of s.18C) Bill 2014 – Exposure Draft should not be introduced into or passed by the Commonwealth Parliament.

Need to expand vilification protections to cover sexual orientation, gender identity and intersex status

While I do not believe a case has been made to reform the racial vilification provisions of the Racial Discrimination Act 1975, I do believe there is a strong case for expanding vilification provisions under Commonwealth law to offer additional protection to LGBTI Australians.

In a similar way to their ongoing problems with race, some extreme elements within Australian society continue to demonstrate their difficulty in accepting people, and treating them equally, irrespective of sexual orientation, gender identity or intersex status.

Both groups – Australians of diverse racial backgrounds, and LGBTI people – are regularly subject to vilification in public contexts, whether that be in political or media debates, or in harassment and abuse in public spaces.

Significantly, while LGBTI Australians finally achieved anti-discrimination protections under Commonwealth law in 2013 (a mere 38 years after the passage of the Racial Discrimination Act), the Sex Discrimination Act amendments did not include protections from homophobic, biphobic, transphobic and anti-intersex vilification. Unlike people of diverse races, LGBTI people still cannot launch complaints about vilification under Commonwealth law.

There is no philosophical or conceptual reason why this should be the case – both are vulnerable groups, subject to vilification against which they deserve to be protected.

The vilification of LGBTI people can take many forms. A 2003 NSW Attorney-General’s Report found that, in the previous 12 months, 56% of gay men and lesbians had been subject to one or more forms of homophobic abuse, harassment or violence.

This violence can also be extreme – as demonstrated by the disturbingly high number of gay men violently murdered in Sydney during the 1980s and 1990s, but whose tragic deaths are only now being properly investigated.

In terms of vilification in public debate, there are almost too many examples of homophobia, biphobia, transphobia and anti-intersex discrimination to choose from (and certainly enough to hold an annual event ‘celebrating’ the worst of these comments in a range of different areas of public life, aka The GLORIAs).

One notorious example from recent years was the homophobic comment of a religious figure, addressing a ‘National Marriage Day’ rally outside Parliament House in 2012, who said “I’m convinced that homosexuals (re)produces (sic) themselves by molesting children.”

Unfortunately, heading inside Parliament House, the tenor of public debate is sometimes not much better. Over the past 12 years we have seen Senators argue that allowing two men or two women to marry could lead to humans having sex with animals, arguing that enacting marriage equality would potentially result in another ‘Stolen Generations’, and abusing parliamentary privilege to smear an openly-gay High Court Justice with unfounded allegations of paedophilia (apparently solely because of his homosexuality).

This is not to say that all, or even any, of those comments would necessarily qualify as vilification under an equivalent provision to section 18C, but, the fact those comments are able to be made in our National Parliament provides a small insight into the type of abuse and vitriol which continues in other forums, day-in, day-out, which are not subject to the same levels of scrutiny.

That includes street-level harassment and abuse which my fiancé Steven and I, like many thousands of other LGBTI Australians, experience all-too-frequently. Anyone who is ‘visibly’ identifiable as lesbian, gay, bisexual, transgender or intersex, including non-LGBTI people who are perceived as being LGBTI by others, and anyone who simply wants to engage in the tender act of holding one’s same-sex partner’s hand, knows the risks that being or expressing who you are in public can bring, from being yelled at from passing cars, to the very real threat of much, much worse.

Of course, the introduction of s18C-style protections on the basis of sexual orientation, gender identity and intersex status will not automatically lead to a reduction in such abuse, but it will allow for people to contest the most egregious examples of homophobic, biphobic, transphobic and anti-intersex vilification in public life.

Over time, the introduction of vilification protections for LGBTI Australians, on top of the recently passed anti-discrimination laws, would help to send a strong signal to the wider community that such conduct was no longer tolerated.

The impetus for sending such a signal can be found in figures which show that lesbian, gay, bisexual, transgender and intersex Australians continue to experience disproportionately high rates of mental health issues, including depression, attempted suicide and suicide.

This problem is especially pronounced amongst younger LGBTI people, with young same-sex attracted people estimated to be 6 times more likely to attempt suicide than their heterosexual counterparts (source: National LGBTI Health Alliance). Young people’s experience of discrimination and homophobia has been found to play a key role in this huge, and sadly persisting, health disparity.

Not only is public vilification in the form of homophobia, biphobia, transphobia and anti-intersex discrimination wrong in and of itself, it has serious consequences, including in negative mental health outcomes for LGBTI people.

I believe that anti-LGBTI vilification must be prohibited under the Sex Discrimination Act, in the same way that racial vilification was in 1995 when the Racial Hatred Act amended the Racial Discrimination Act, and that it should be done as soon as possible.

Recommendation 2. The Sex Discrimination Act 1984 should be amended to prohibit vilification on the basis of sexual orientation, gender identity and intersex status.

Obviously, there are other potential attributes which could also be aided by the introduction of vilification protections, including those grounds which already have Commonwealth anti-discrimination laws (sex, disability and age), but, as I am not an expert in any of those issues, I am not in a position to argue for or against their inclusion in this submission.

Nevertheless, I strongly believe that these questions – whether vilification protections should be expanded, and which additional groups they should cover – are the ones which should be occupying the mind of our Commonwealth Attorney-General, and indeed all MPs, rather than working out how to restrict the protections offered by the racial vilification provisions contained in the Racial Discrimination Act 1975.

I sincerely hope that this submission assists in helping to turn that conversation around, and that we, as a community, start to focus on enhancing instead of undermining human rights.

Thank you for taking these comments into consideration. Should you require clarification or further information, I can be contacted at the details below.

Sincerely,

Alastair Lawrie

No 3 Senate Report on Involuntary or Coerced Sterilisation of Intersex People in Australia

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Another development during 2013 which was, frankly, far more important than anything related to marriage equality was the Senate Standing Committee on Community Affairs’ Report on Involuntary or Coerced Sterilisation of Intersex People in Australia, handed down on 25 October (link here: http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Community_Affairs/Involuntary_Sterilisation/Sec_Report/~/media/Committees/Senate/committee/clac_ctte/involuntary_sterilisation/second_report/report.ashx).

For people unaware (as, being perfectly honest, I was until around this time last year), the vast majority of intersex children are subjected to involuntary surgeries shortly after birth, designed to ‘normalise’ them according to the expectations of either their parents, their doctors, or society at large (or, more likely, a combination of all three) that they should conform to a man/woman binary model of sex.

These surgeries, obviously performed without the infant/child’s consent, can involve sterilisation, as well as other ‘cosmetic’ (ie unnecessary), largely irreversible surgery on genitalia to make it fit within the idea of what a man or woman ‘should’ be (completely ignoring the fact that the infant doesn’t fit into that model, nor should that model be imposed upon them, and certainly not without their informed consent).

The fact that these surgeries continue to the present day is a major human rights scandal. The idea that people are having such major, lifelong decisions made for them by doctors and parents (who are often persuaded by the views of the medical profession) is a horrifying one.

It is something that groups like Organisation Intersex International Australia (OII Australia), and others have been campaigning on for some time. And in 2013 the members of the Senate Standing Committee on Community Affairs were listening.

They commenced an inquiry on September 20 2012, looking at the general topic of involuntary or coerced sterilisation of people with disabilities in Australia. Through the course of this inquiry, and the advocacy of groups like OII Australia, they came to see the significance of the continuing violation of the rights, including the bodily integrity, of young intersex people.

So much so, that they separated out the issues surrounding intersex people and, after handing down their general report on 17 July 2013, devoted a second report entirely to these issues. In their conclusion, they made some very encouraging observations about the need to break down the barriers of thinking around sex. In particular, they noted:

“ 6.29      Least well understood is the challenge that intersex variation presents to the rest of society. It is the challenge involved in recognising that genetic diversity is not a problem in itself; that we should not try to ‘normalise’ people who look different, if there is no medical necessity. It is the challenge of understanding that everyone does not have to fit into fixed binary models of sex and gender, and that nature certainly does not do so.

6.30      A key example of our lack of understanding of how to respond to intersex diversity can be seen in the clinical research on sex and gender of intersex people. The medical understanding of intersex is so strongly focussed on binary sex and gender that, even though its subjects have some sort of sex or gender ambiguity, the committee is unaware of any evidence to show that there are poor clinical or social outcomes from not assigning a sex to intersex infants.[19] Why? Because it appears never to have even been considered or researched. Enormous effort has gone into assigning and ‘normalising’ sex: none has gone into asking whether this is necessary or beneficial. Given the extremely complex and risky medical treatments that are sometimes involved, this appears extremely unfortunate. [emphasis added]”

 

Which is a pretty radical sentiment for a cross-party group of Senators to put their names to. The Committee also made recommendations designed to at least reduce the incidence of coerced sterilization (and surgery on genitalia), as well as increasing the support available to parents of intersex children. Specifically:

“3.130    The committee recommends that all medical treatment of intersex people take place under guidelines that ensure treatment is managed by multidisciplinary teams within a human rights framework. The guidelines should favour deferral of normalising treatment until the person can give fully informed consent, and seek to minimise surgical intervention on infants undertaken for primarily psychosocial reasons. [emphasis added]

 

Recommendation 11

5.70    The committee recommends that the provision of information about intersex support groups to both parents/families and the patient be a mandatory part of the health care management of intersex cases.

Recommendation 12

5.72    The committee recommends that intersex support groups be core funded to provide support and information to patients, parents, families and health professionals in all intersex cases.”

These recommendations, and the Report more broadly, have been received positively by the National LGBTI Health Alliance, and by OII Australia, who released a statement responding to the report on 29 October (link here: http://oii.org.au/24058/statement-senate-report-involuntary-or-coerced-sterilisation-intersex-people/). OII President Morgan Carpenter said:

“This report represents the first opportunity, after many years of campaigning, to place our most serious human rights concerns before Parliament. Medical interventions on intersex infants, children and adolescents have been taking place in Australia with insufficient medical evidence, and insufficient emphasis placed on the human rights of the child and future adult. Genital surgeries and sterilisations create lifelong patients and there’s significant evidence of trauma.

At a first view, many of the headline conclusions and recommendations are positive – accepting our recommendations on minimising genital surgery, concern over the lack of adequate data, insufficient psychosocial support, and concern that decision making on cancer risk is insufficiently disentangled from wider concerns about a person’s intersex status itself; we also broadly welcome the recommendations relating to the prenatal use of Dexamethasone” and, went on to say:

 

“OII Australia warmly welcomes this crucial report. It addresses the main concerns of the intersex community. We welcome that this is a joint report with cross-party support, and we would like to thank the Committee members and staff for their hard work.

We also give particular thanks to our friends in the Androgen Insensitivity Syndrome Support Group Australia (AISSGA), the National LGBTI Health Alliance, and the other people and organisations who took time to make relevant submissions to the inquiry, or who participated in the hearing on intersex issues.

We look forward to working with clinicians, Commonwealth and State and Territory Health Departments, and the Commonwealth Attorney General’s Department, to improve health outcomes for intersex infants, children, adolescents and adults.”

Which is I guess the crucial point – it is up to multiple levels of Government, and the health profession, to implement the Committee’s recommendations, and make substantial (and long overdue) improvements in this area. And it is up to groups like OII Australia – together with support from their allies throughout the LGBTI, and wider, community – to make sure that they do.