What Gender Reveal Parties Actually Reveal

If the Germans hadn’t invented the term schadenfreude several centuries ago, we would have needed to create it to describe the most 21st century of phenomena: laughing at gender reveal fail videos.

 

These videos are (unintentionally) hilarious not just because when they go wrong, they go very wrong. With people coming up with increasingly intricate and in many cases bizarre scenarios to ‘stand out’, the potential for things to go awry has grown exponentially.

 

They are also deeply funny because the concept of a gender reveal party itself is inherently problematic, which means that laughing at the misfortunate of those involved is usually a guilt-free pleasure.

 

If you’re reading this and still think gender reveal parties are just a bit of harmless fun, perhaps it is useful to consider what exactly it is these parties are revealing – which is far more about the parent(s) than about their child(ren).

 

First, they reveal that some parents don’t seem to understand the difference between sex and gender.

 

Sex is biological (defined by the Oxford English Dictionary as ‘either of the two main categories (male and female) into which humans and many other living things are divided on the basis of their reproductive functions’).

 

On the other hand, gender is identity-based (with the Yogyakarta Principles defining gender identity as ‘each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms’).[i]

 

Given it is impossible to know a child’s gender identity before or at birth (and usually for years after that), this means these celebrations should at the very least be renamed ‘sex reveal parties’.

 

Second, they reveal that some parents don’t seem to understand that both sex and gender are much more complicated than just male and female.

 

At its very core, a gender reveal party is an attempt to place an unborn child (or children) into one of two boxes: boy or girl.

 

And yet, in 2019, we know that gender identity is a spectrum, and there is a wide range of other options, including non-binary.

 

We also know that some children will be ‘born with physical sex characteristics that don’t fit medical and social norms for female or male bodies’ (the definition of intersex from Intersex Human Rights Australia).[ii]

 

Gender reveal parties therefore deliberately exclude some of the beautiful diversity of the human experience.[iii]

 

Third, they reveal that some parents are willing participants in a reductivist view of gender.

 

Gender reveal parties simplify the concepts of male and female into blue and pink respectively, as though entire genders can be signified by, even summed up by, a colour. When there is obviously more diversity within genders, and more similarities across people of different genders, than such a basic dichotomy can hope to represent.

 

Somewhat amusingly, these colours are also the exact opposite of those from just a century ago. From US Ladies Home Journal in June 1918:

 

‘The generally accepted rule is pink for the boys, and blue for the girls. The reason is that pink, being a more decided and stronger color, is more suitable for the boy, while blue, which is more delicate and dainty, is prettier for the girl.’

 

Mush less amusingly, while the colours have changed, some of those gender stereotypes remain and gender reveal parties tend to entrench, rather than question, them.

 

Based on these three factors, gender reveal parties can actually be harmful. By supporting a view that gender will match sex assigned at birth, they can make life much more difficult for trans and gender diverse children.

 

By raising expectations that babies will be born with sex characteristics that are exclusively male or female, they can erase intersex children (and even potentially increase pressure for unnecessary surgeries post-birth to ensure their bodies match these societal ‘norms’).

 

And by entrenching the notion that boys and girls are inherently different, and reinforcing stereotypes about how they will (or should) behave, gender reveal parties place artificial restrictions on all of us, and our behaviours.

 

It may sound like I am unsympathetic to the parents who hold gender reveal parties. I’m not, at least in part because most are simply replicating the actions of those around them (and those they follow on social media), and probably haven’t considered any of the issues described above. They are acting out of ignorance rather than malice.[iv]

 

I’m also sympathetic because, as a society, we seem to be placing an ever-greater emphasis on gender, certainly much more than I can remember as a child growing up in the 1980s. From unnecessarily gendered toys, to unnecessarily gendered toiletries, and even unnecessarily gendered grocery items, heightened expectations of ‘gender conformity’ are all around us – so it is perhaps only natural they will be felt most keenly by expecting parents.

 

The challenge then is what we can do to overcome these norms, especially the emerging norm that parents will hold gender reveal parties in the first place.

 

I have four suggestions to start, from the easiest to the most difficult:

 

  1. Don’t hold a gender reveal party

 

If you are having a child, simply refuse to have one of these ‘celebrations’. Which is easy for someone like me to say (a cis gay man who has decided, with his partner, not to have children, at least in part because of the climate emergency), so let’s move on…

 

  1. Don’t attend gender reveal parties

 

If you are invited to one of these ‘celebrations’, don’t attend. If people all stopped going, parents would stop holding them.

 

  1. Let the person know why you’re not attending

 

This is clearly more difficult than simply not turning up, especially because many of us prefer to avoid confrontation. But if we are to do the hard yards of ending this social norm, then we should take the time to explain to the person who has sent the invitation why you won’t be there.

 

  1. Stop asking ‘What are you having?’

 

Obviously, this is another degree of difficulty again, especially because this is something we’ve been conditioned to ask, usually first, when someone says they are pregnant (and something I have been guilty of, on more than one occasion).

 

But what does it actually matter? And aren’t there more interesting and/or important questions to ask, like ‘What are you looking forward to?’ ‘What are you nervous about?’ ‘Are you prepared?’ and ‘Is there anything I can do to help?’

 

For those having difficulty making this mental adjustment, consider thinking of it this way. When you are asking ‘What are you having?’ what you’re really asking is ‘What are your child’s sex chromosomes and/or genitalia?’ and ‘What gender do you currently intend to raise your child even though you cannot know now their eventual gender identity?’

 

Rationally, an expecting parent who knows the difference between sex and gender could also respond to the ‘What are you having?’ inquiry by saying that they’ll get back to the questioner in five, ten, 15 or even 20 years, when the child decides for themself.

 

Which brings me to the primary exception to my ‘no gender reveal parties’ stance: where trans and gender diverse people announce their own gender identity. This is truly something to celebrate, especially for those who’ve overcome years or even decades of transphobia from families, schools, and society in general.

 

[I suppose I would also make an exception for parents who hold a gender reveal party and then release a colour like green or brown and tell attendees that they’ll let their child determine their identity for themselves.]

 

Other than that, gender reveal parties are a social phenomenon that has risen to prominence incredibly quickly over the past decade – and hopefully will recede just as quickly in the early 2020s.

 

Indeed, that’s the view of the woman whose 2008 post is widely-credited as popularising ‘gender reveal parties’, Jenna Karvunidis. From NPR in July 2019:[v]

 

‘Plot twist! The baby from the original gender reveal party is a girl who wears suits,’ Karvunidis says. ‘She says ‘she’ and ‘her’ and all that, but you know she really goes outside gender norms’.

 

… Karvunidis says her views on sex and gender have changed, especially when she’s talking to her daughter.

 

‘She’s telling me ‘Mom, there are many genders. Mom, there’s many different sexualities and all different types,’ and I take her lead on that,’ Karvunidis says.

 

She says she does have some regrets and understands these parties aren’t beneficial to everyone.

 

‘I know it’s been harmful to some individuals. It’s 2019, we don’t need to get our joy by giving others pain,’ she says. ‘I think there’s a new way to have these parties.’

 

And that idea is as simple as just eating cake.

 

‘Celebrate the baby,’ she says. ‘There’s no way to have a cake cut into it, to see if they’re going to like chess. Let’s just have a cake.’

 

Which is a great idea. And then to eat any leftovers while watching videos of gender reveal party fails because, let’s face it, some of them are funny as hell.

 

Untitled design (5)

An infamous 2017 gender reveal party fail, which caused a 47,000 acre fire in Arizona.

 

Footnotes:

[i] Yes, I’m aware that both the concepts of sex and gender, and the relationship between them, are far more complex. However, in the context of ‘gender reveal parties’ it’s clear these celebrations are based on biological sex (chromosomes and/or genitalia) rather than identity-based ideas of gender.

[ii] IHRA website, here.

[iii] We should note here that variations in sex characteristics is separate to non-binary gender identities, with many intersex people identifying with the ‘sex’ they were assigned at birth. Again for the Intersex Human Rights Australia website:

‘Some intersex people and some non-intersex (‘endosex’) people use nonbinary terms to describe their identities and sex classifications. Often, however, we encounter assumptions that to be intersex is to be nonbinary, or to be nonbinary is to be intersex. These assumptions are harmful. They fail to recognize the diversity of the intersex population, and in this case even the existence of intersex boys and girls, and intersex women and men.’

[iv] Of course, some parents possibly are deliberately setting expectations that their children will be either male or female, and that they will ‘act accordingly’ (including not identifying as trans or gender diverse), to which I say ‘fuck you’.

[v] Woman who popularized gender reveal parties says her views on gender have changed.

Submission to Tasmanian Law Reform Institute Inquiry into Legal Recognition of Sex and Gender

The Tasmanian Law Reform Institute is currently conducting an inquiry into matters arising from the passage of trans and gender diverse birth certificate reforms earlier this year, as well as issues relating to coercive surgeries and other medical treatments on children born with variations of sex characteristics.

The following is my personal submission, focusing on the latter topic. Submissions are due Tuesday 20 August, and you can find more details here.

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Submission to Tasmanian Law Reform Institute Inquiry into Legal Recognition of Sex and Gender

 

Tasmanian law Reform Institute

Private Bag 89

Hobart, TAS 7001

via Law.Reform@utas.edu.au

Wednesday 14 August 2019

 

To whom it may concern

 

Submission re Inquiry into Legal Recognition of Sex and Gender

 

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

 

I make this submission as a long-term advocate for the lesbian, gay, bisexual, transgender and intersex (LGBTI) community and, particularly for the purposes of this inquiry, as an ally to intersex Australians.

 

In this submission I will respond, generally, to those questions (5 through 9) that are focussed on the question of coercive surgeries and other medical treatments on children born with variations of sex characteristics.
These invasive and involuntary medical interventions, which continue in Australia today, are one of the biggest human rights violations against any members of the LGBTI community.

 

Indeed, given the serious, lifelong consequences of these human rights violations, I believe addressing coercive surgeries and medical treatments on intersex children is one of the most important human rights issues in Australia. Period.

 

Which is why it is so disappointing that so little action has been taken since the ground-breaking 2013 Senate Inquiry into Involuntary or Coerced Sterilisation of Intersex People in Australia.[i]

 

Specifically, in the past six years, the Commonwealth Liberal-National Government has failed to make any progress whatsoever in ending these unjustified and unacceptable practices.

 

In this context, I obviously welcome the additional focus on this issue by the Tasmanian Law Reform Institute.

 

This includes asking relevant questions in terms of what should be done to address this problem, especially in question 5 (which includes consideration of court approvals, legislative prohibitions with possible criminal penalties, independent advocates, independent counselling and advice, and specialist tribunals).

 

However, I also note that the same issues are being considered, at the moment, by the Australian Human Rights Commission (AHRC) as part of its own investigation of this topic. [ii]

 

This has included a public consultation process from July to September 2018,[iii] and ongoing involvement of and consultation with intersex people.

 

I understand that this investigation is expected to conclude by the end of 2019, with a report and recommendations for how these human rights violations should be addressed nation-wide.

 

The AHRC is relevant to this submission in three main ways.

 

First, I reiterate the five recommendations made to that investigation, including:

 

Recommendation 1. Australian Governments must introduce legislation to prohibit deferrable medical interventions, including surgical and medical interventions, that alter the sex characteristics of infants and children without personal consent, including penalties for breaching such laws.

 

Recommendation 2. Individuals who are asked to provide consent to necessary, non-deferrable medical interventions must have access to counselling and peer support, including from intersex people and intersex-led community organisations.

 

Recommendation 3. Australian governments must explicitly prohibit the ability of parents and guardians to provide consent to modifications to the sex characteristics of children born with variations of sex characteristics on the basis of social or cultural rationales.

 

Recommendation 4. That a new independent oversight body be created to review necessary, non-deferrable, therapeutic medical interventions on children born with variations of sex characteristics, comprising clinicians, human rights experts, child advocates and intersex-led community organisations.

 

Recommendation 5. That Commonwealth, state and territory governments provide ongoing funding to intersex-led community organisations, for the purposes of:

  • Peer support of individuals and families to inform decision-making about medical interventions
  • Serving on the new independent oversight body that reviews medical interventions
  • Broader peer support for all members of the intersex community, and
  • Systemic advocacy for all people with variations of sex characteristics.

 

Second, I express my support for the submission made by Intersex Human Rights Australia (IHRA) to the AHRC investigation[iv] (a submission that was also endorsed by the AIS Support Group Australia, Disabled People’s Organisations Australia, LGBTI Legal Service, and People with Disability Australia).

 

I note in particular that on page 66 of their submission, in response to the question ‘Should all non-emergency and/or deferrable medical interventions that alter a child’s sex characteristics, where the child does not have legal capacity to consent, be prohibited by law? If so, should this prohibition be civil or criminal?’ IHRA responded that:

 

We support the Darlington Statement’s call for criminal prohibitions of all non-deferrable medical interventions that alter a child’s sex characteristics [emphasis added].

 

I encourage the Tasmanian Law Reform Institute to adopt the IHRA submission as the primary foundation of its approach to these issues (and, wherever there are conflicts between my own recommendations and the position of IHRA, I defer to them on the basis that intersex people should have the right to self-determination as well as the right to bodily autonomy).

 

Third, given the ongoing AHRC investigation – covering largely the same issues as those featured in questions 5 through 9 of this inquiry – I encourage the Tasmanian Law Reform Institute to consider how it can work together with the Australian Human Rights Commission, and contribute to its efforts. This would potentially avoid any duplication in work (including duplication in the calls on intersex people to make multiple submissions on the same subject matter).

 

As indicated earlier, I welcome the focus provided by the Tasmanian Law Reform Institute to the issue of ongoing human rights violations against children born with variations of sex characteristics.

 

It is my sincere hope that the AHRC process, possibly with input from the Tasmanian Law Reform Institute, can make a series of practical recommendations to end coercive surgeries and other involuntary medical treatments on intersex children.

 

And that ultimately, the Commonwealth Government, and all State and Territory Governments, work together to implement these recommendations as quickly as possible so that these human rights violations end once and for all.

 

Thank you for taking this submission into consideration. Please do not hesitate to contact me, at the details below, should you require further information.

 

Sincerely

Alastair Lawrie

 

Footnotes:

[i] See the Final Report of that Senate Inquiry here and my personal submission to that inquiry here.

[ii] See the Australian Human Rights Commission website.

[iii] See my submission to that consultation here.

[iv] The IHRA submission to the AHRC investigation can be found here, and is attached with this submission.

 

1200px-Intersex_flag.svg

Putting the ‘International’ Back into IDAHOBIT: Supporting International LGBTI Rights

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

 

Today we celebrate the International Day Against Homophobia, Biphobia, Transphobia and Intersexphobia (variously abbreviated as IDAHO, IDAHOT, IDAHOTB or IDAHOBIT).

 

In Australia, we do a relatively good job of focusing on what the day means in terms of the challenges that remain in order to achieve lesbian, gay, bisexual, transgender and intersex (LGBTI) rights – domestically anyway.

 

However, we are much less successful in remembering the first word in the day’s title, and highlighting the even greater barriers left in addressing and overcoming homophobia, biphobia, transphobia and intersexphobia globally.

 

As the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) confirms in its recently-published State-Sponsored Homophobia Report 2019 (p15):

 

As of March 2019, there are 70 Member States (35%) that criminalise consensual same-sex sexual acts: 68 of them have laws that explicitly criminalise consensual same-sex sexual acts and 2 more criminalise such acts de facto. In addition, other jurisdictions which are not UN Member States also criminalise such acts (Gaza, the Cook Islands and certain provinces in Indonesia).

 

A significant number of these countries are within our region. In Oceania, that includes:

 

Country Maximum Penalty for Homosexuality
Cook Islands 14 years imprisonment
Kiribati 14 years imprisonment
Papua New Guinea 14 years imprisonment
Samoa 5 years imprisonment
Solomon Islands 14 years imprisonment
Tonga 10 years imprisonment
Tuvalu 14 years imprisonment

 

There are a number of other countries that criminalise same-sex sexual activity in South-East Asia, too:

 

Country Maximum Penalty for Homosexuality
Brunei 10 years imprisonment
Malaysia 20 years imprisonment
Myanmar 10 years imprisonment
Singapore 2 years imprisonment

*As well as some provinces within Indonesia, including Aceh.

 

And Australia has another important connection with a large number of countries that still criminalise homosexuality around the world, with half being members of the Commonwealth (including more than half of countries within the Commonwealth itself).

 

Therefore, while Australia might have fully decriminalised homosexuality in 2016 (when Queensland finally equalised the age of consent for anal intercourse), there is still a long way to go on this issue internationally.

 

ilga_sexual_orientation_laws_map_2019

Source: ILGA

 

Of course, there is even further to go – both domestically and internationally – for trans and gender diverse people to have the right for their identity documentation to reflect their gender identity based on self-declaration, and to be able to live their lives free from discrimination, violence and in some countries criminalisation. For more, see ILGA’s 2017 Trans Legal Mapping Report.

 

And, as on so many issues, progress on intersex rights has lagged even further behind, with very few countries following Malta’s 2015 lead in banning coercive surgeries and other involuntary medical treatments on intersex people. That includes Australia, too, with governments at all levels failing to implement the recommendations of the 2013 Senate Inquiry on this subject in the intervening six years. [Unfortunately, I am note aware of an equivalent State-Sponsored Intersexphobia/Intersex Legal Mapping Report].

 

Thankfully, it’s not all bad news. There has been some significant progress in recent years on at least some of these issues, not least of which was the historic September 2018 decision by the Supreme Court of India to declare section 377 of the Indian Penal Code unconstitutional, thereby legalising homosexuality in the second most-populous country on earth.

 

That case, after years of amazing advocacy by Indian activists, helps make the following graph look much more encouraging:

 

ILGA Criminalisation by Population Graph copy

 

Nevertheless, there are still far too many countries where people are not free to love who they love, not able to identify with their gender and be protected against discrimination, violence and criminalisation, and not subject to coercive surgeries and other involuntary medical treatments because of their sex characteristics.

 

So, what can Australia do? There are a range of ways in which Australia can better support progress on LGBTI rights internationally, including the following:

 

  1. Support decriminalisation as a key priority of foreign policy

 

Australia should support decriminalisation for all LGBTI people around the world as a key human rights objective of our foreign policy. This should include a primary focus on decriminalisation within our region, as well as within the Commonwealth.

 

Unfortunately, the most recent Foreign Policy White Paper makes exactly zero references to supporting LGBTI human rights (despite my submission calling for their inclusion).

 

Of course, achieving this goal depends on partnership with communities within these countries, not only because they are best placed to know how to advocate for decriminalisation, but also because Australia acting unilaterally would risk entrenching anti-LGBTI policies and laws.

 

  1. Support LGBTI rights through international human rights architecture

 

This includes using our current term on the United Nations Human Rights Council to prioritise LGBTI rights, as well as actively supporting the reappointment of the UN Independent Expert on Sexual Orientation and Gender Identity. And it also includes regularly raising LGBTI rights issues within the Commonwealth Heads of Government framework (with the next CHOGM meeting in Rwanda next year).

 

Australia could also consider appointing an Ambassador for LGBTI Rights in the same way that we have appointed an Ambassador for Women and Girls.

 

  1. Support LGBTI rights through foreign aid

 

Another way in which Australia can better support LGBTI rights internationally is by supporting LGBTI human rights through our foreign aid policies (and of course by ensuring our foreign aid Budget is increased overall, after a series of mean-spirited and unjustified cuts under the Liberal-National Government have reduced it to 0.19-0.21% of GDP, far short of the UN target of 0.70% and far short of our capacity, and responsibility, as one of the richest countries on the planet).

 

This could include funding for international LGBTI associations, such as the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), OutRight International and Kaleidoscope Trust, as well as other human rights organisations that include a focus on LGBTI rights (such as Human Rights Watch). It also means actively supporting the Commonwealth Equality Network, and LGBTI organisations working towards decriminalisation within our region.

 

  1. Accept LGBTI refugees and people seeking asylum

 

We should acknowledge that, while the aim is to ensure lesbian, gay, bisexual, transgender and intersex people are safe everywhere, this is not currently the case and will not be possible in some places for some time. Australia should therefore ensure its refugee framework helps to protect LGBTI people fleeing persecution, including through appropriate assessment processes, and providing improved support services post-resettlement. Oh, and that obviously means not detaining, processing and settling LGBTI refugees offshore, including in countries that criminalise them (for more, see Australia’s (Mis)Treatment of LGBTI Refugees).

 

  1. Set a better example on LGBTI rights domestically

 

Australia’s ongoing (mis)treatment of refugees, including LGBTI people seeking asylum, raises another key challenge – in order to better support human rights internationally, we must be seen to respect human rights domestically. That is obviously not currently occurring when it comes to our refugee policy.

 

It is also not the case in terms of our own treatment of trans and gender diverse people. We must make sure all states and territories follow Tasmania’s recent lead in guaranteeing access to identity documentation on the basis of identity not surgery. And we must finally make long overdue progress on intersex human rights, including protecting the bodily autonomy and integrity of intersex children against coercive surgeries and other involuntary medical treatments.

 

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As we commemorate International Day Against Homophobia, Biphobia, Transphobia and Intersexphobia (IDAHOBIT) today, we should by all means celebrate how far we have come within Australia, as well as highlighting those challenges that remain domestically. But we must not forget the ‘International’ focus of the day, and the important role Australia can play in making progress on LGBTI rights everywhere, for everyone.

 

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

23 LGBTI Issues for the 2019 NSW Election

The 2019 NSW election will be held on Saturday March 23.

It will determine who holds Government until March 2023.

Therefore, with just over a month to go, here are 23 LGBTI issues that parties and candidates should address.

 

  1. Provide anti-discrimination protection to bisexual people

The NSW Anti-Discrimination Act 1977 is the only LGBTI anti-discrimination law in Australia that does not cover bisexual people. This should be amended as a matter of urgency, by adopting the Sex Discrimination Act 1984 (Cth) definition of sexual orientation.[i]

 

  1. Provide anti-discrimination protection to non-binary trans people

The NSW Anti-Discrimination Act 1977 also fails to protect non-binary trans people against mistreatment, because its definition of transgender is out-dated. This definition should be updated, possibly using the Sex Discrimination Act definition of gender identity, to ensure it covers all trans and gender diverse people.

 

  1. Provide anti-discrimination protection to intersex people

The NSW Anti-Discrimination Act 1977 does not have a stand-alone protected attribute covering people born with intersex variations. It should be amended as a matter of urgency by adopting the Yogyakarta Principles Plus 10 definition of sex characteristics: ‘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.’

 

  1. Remove the special privileges that allow private schools and colleges to discriminate against LG&T students and teachers

The NSW Anti-Discrimination Act 1977 is the only LGBTI anti-discrimination law in Australia that allows all privates schools and colleges, religious and non-religious alike, to discriminate on the basis of homosexuality and transgender status.[ii] These special privileges must be repealed, so that all LGBTI students, teachers and staff are protected against discrimination no matter which school or college they attend.

 

  1. Remove the general exception that allows religious organisations to discriminate in employment and service delivery

Section 56(d) of the NSW Anti-Discrimination Act 1977 provides that its protections do not apply to any ‘act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avoid injury to the religions susceptibilities of the adherents of that religion.’ This incredibly broad exception allows wide-ranging discrimination against lesbian, gay and trans people. This provision should be replaced by the best-practice approach to religious exceptions in Tasmania’s Anti-Discrimination Act 1998.

 

  1. Remove the special privilege that allows religious adoption agencies to discriminate against LG&T prospective parents

Section 59A of the NSW Anti-Discrimination Act 1977 allows religious adoption agencies to discriminate against prospective parents on the basis of homosexuality and transgender status. This special privilege should be repealed, because the ability of an individual or couple to provide a loving and nurturing environment for a child has nothing whatsoever to do with their sexual orientation or gender identity.

 

  1. Reform commercial surrogacy laws

Under the NSW Surrogacy Act 2010, it is illegal to enter into commercial surrogacy arrangements, either within NSW or elsewhere (including overseas), punishable by up to two years’ imprisonment. Despite this prohibition, people in NSW (including many same-sex male couples) continue to enter into international surrogacy arrangements. It is clearly not in the best interests of children born through such arrangements for either or both of their parents to be subject to criminal penalties. NSW should either legalise and appropriately regulate commercial surrogacy domestically, or remove the prohibition on international surrogacy.[iii]

 

  1. Recognise multi-parent families

Modern families continue to evolve, particularly in terms of the number of parents who may be involved in a child’s upbringing, and especially within rainbow families (for example, with male donors playing an increasingly active role in the lives of children born with female co-parents). This growing complexity should be recognised under the law, including the option of recording more than two parents on official documentation.

 

  1. Modernise the relationships register

The NSW relationships register may have declined in salience, especially within the LGBTI community, following the passage of same-sex marriage in December 2017. However, it remains an important option for couples to legally prove their relationship, especially for those who do not wish to marry (for whatever reason). However, the NSW Relationships Register Act 2010 requires modernisation, including by amending the term ‘registered relationship’ to ‘civil partnership’, and by allowing couples to hold a ceremony if they so choose.[iv]

 

  1. Remove surgical and medical requirements for trans access to identity documentation

Another law requiring modernisation is the NSW Births, Deaths and Marriages Registration Act 1995, which currently provides that, in order to record a change of sex, a person must first have undergone a sex affirmation procedure. This is completely inappropriate, especially because many trans and gender diverse people either do not want to, or cannot (often for financial reasons), undergo surgery. Gender identity should be based on exactly that, identity, with this law amended to allow documentation to be updated on the basis of statutory declaration only, without medical practitioners acting as gate-keepers.[v] The range of identities that are recorded should also be expanded, and this should be done in consultation with the trans and gender diverse community.

 

  1. Ban unnecessary and involuntary medical treatment of intersex children

One of the worst human rights abuses perpetrated against any LGBTI community in Australia is the ongoing involuntary medical treatment of intersex children, which often includes unnecessary surgical modification to sex characteristics. Despite a 2013 Senate report recommending action to end these harmful practices, nothing has been done, including in NSW. With a new review being undertaken by the Australian Human Rights Commission,[vi] whoever is elected in March must take concrete steps to ban non-consensual, medically unnecessary modifications of sex characteristics as soon as possible. In doing so, they should consult with Intersex Human Rights Australia and other intersex organisations, and be guided by the Darlington Statement.

 

  1. Ban gay and trans conversion therapy

Another abhorrent practice that should be banned immediately is gay or trans conversion therapy, which is not therapy but is psychological abuse. Thankfully, this problem has received increased attention over the past 12 months, including a focus on the need for multi-faceted strategies to address this issue. However, a key part of any response must be the criminalisation of medical practitioners or other organisations offering ‘ex-gay’ or ‘ex-trans’ therapy, with increased penalties where the victims of these practices are minors.[vii]

 

  1. Establish a Royal Commission into gay and trans hate crimes

In late 2018, the NSW Parliament commenced an inquiry into hate crimes committed against the gay and trans communities between 1970 and 2010. This inquiry handed down an interim report in late February, recommending that it be re-established after the election. However, in my view a parliamentary inquiry is insufficient to properly investigate this issue, including both the extent of these crimes, and the failures of NSW Police to properly investigate them. Any new Government should establish a Royal Commission to thoroughly examine this issue.[viii]

 

  1. Re-introduce Safe Schools

The Safe Schools program is an effective, evidence-based and age-appropriate initiative to help reduce bullying against lesbian, gay, bisexual, transgender and intersex students. Unfortunately, following a vitriolic homophobic and transphobic public campaign against it, the NSW Government axed Safe Schools in mid-2017. In its place is a generic anti-bullying program that does not adequately address the factors that contribute to anti-LGBTI bullying. The Safe Schools program should be re-introduced to ensure every student can learn and grow in a safe environment.[ix]

 

  1. Include LGBTI content in the PDHPE Syllabus

The NSW Personal Development, Health and Physical Education (PDHPE) curriculum does not require schools to teach what lesbian, gay, bisexual, transgender or intersex mean, or even that they exist. The new K-10 Syllabus, gradually implemented from the beginning of 2019, excludes LGBTI students and content that is relevant to their needs. It is also manifestly inadequate in terms of sexual health education, with minimal information about sexually transmissible infections and HIV. The Syllabus requires an urgent redraft to ensure LGBTI content is adequately covered.[x]

 

  1. Expand efforts to end HIV

NSW has made significant progress in recent years to reduce new HIV transmissions, with increased testing, greater access to pre-exposure prophylaxis (PrEP) and higher treatment rates. However, new HIV diagnoses among overseas-born men who have sex with men are increasing. The NSW Government should create an affordability access scheme for people who are Medicare-ineligible that covers PrEP and HIV treatments (including for foreign students). The introduction of mandatory testing of people whose bodily fluids come into contact with police (aka ‘spitting laws’)[xi] should also be opposed.[xii]

 

  1. Appoint a Minister for Equality

Both the NSW Government and Opposition currently have spokespeople with responsibility for women, ageing and multiculturalism. However, neither side has allocated a portfolio for equality. Whoever is elected on 23 March should appoint a Minister for Equality so that LGBTI issues finally have a seat at the Cabinet table.[xiii]

 

  1. Establish an LGBTI Commissioner

The Victorian Government does have a Minister for Equality (the Hon Martin Foley MP). They have also appointed a Gender and Sexuality Commissioner (Ro Allen) whose role it is to co-ordinate LGBTI initiatives at a bureaucratic level. A new Government in NSW should also appoint an LGBTI Commissioner here.

 

  1. Create an Office for Equality

While having leadership positions like a Minister for Equality and an LGBTI Commissioner are important, the work that is done by an Office for Equality within a central agency (like the Equality Branch within the Victorian Department of Premier and Cabinet) is essential to support LGBTI policies and programs across Government.

 

  1. Convene LGBTI education, health and justice working groups

The NSW Government should establish formal consultative committees across (at least) these three policy areas to ensure that the voices of LGBTI communities are heard on a consistent, rather than ad hoc, basis.

 

  1. Fund an LGBTI Pride Centre

Another initiative that is worth ‘borrowing’ from south of the NSW border is the creation of a Pride Centre, to house key LGBTI community organisations, potentially including a permanent LGBTI history museum. This centre would need to be developed in close partnership with LGBTI groups, with major decisions made by the community itself.

 

  1. Provide funding for LGBTI community organisations

There is significant unmet need across NSW’s LGBTI communities, which should be addressed through increased funding for community advocacy, and service-delivery, organisations, with a focus on intersex, trans and bi groups, and Aboriginal and Torres Strait Islander LGBTI bodies. This should also include funding for LGBTI services focusing on youth, ageing, mental health, drug and alcohol, and family and partner violence issues, and to meet the needs of LGBTI people from culturally and linguistically diverse and refugee backgrounds.

 

  1. Develop and implement an LGBTI Strategy

If, in reading this long list, it seems that NSW has a long way left to go on LGBTI issues, well that’s because it’s true. The birthplace of the Sydney Gay & Lesbian Mardi Gras parade has fallen behind other states and territories when it comes to LGBTI-specific policies and programs. We need a whole-of-government strategy, including clear goals and transparent reporting against them, to help drive LGBTI inclusion forward.

 

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

 

References:

[i] For a comparison of Australian anti-discrimination laws, see: A Quick Guide to Australian LGBTI Anti-Discrimination Laws.

[ii] Sections 38C, 38K, 49ZH and 49ZO. For more, see: What’s Wrong With the NSW Anti-Discrimination Act 1977.

[iii] For more, see: Submissions to Commonwealth Parliamentary Inquiry into Surrogacy.

[iv] For more, see: Submission to Review of NSW Relationships Register Act 2010.

[v] For more, see: Identity, not Surgery.

[vi] My submission to the AHRC Consultation re Medical Interventions on People Born with Variations of Sex Characteristics can be found here.

[vii] For more, see: Criminalising Ex-Gay Therapy.

[viii] For more, see: Submission to NSW Parliamentary Inquiry into Gay and Trans Hate Crimes.

[ix] For more, see: Saving Safe Schools.

[x] For more, see: Invisibility in the Curriculum.

[xi] For more, see: Submission re Mandatory BBV Testing Options Paper.

[xii] For more HIV-related policy priorities, see ACON, Positive Life NSW, SWOP and the NSW GLRL 2019 NSW State Elections Issues’ document.

[xiii] For more, see: Increasing LGBTI Representation.

Submission to the Australian Law Reform Commission Review of the Family Law System

Australian Law Reform Commission

via familylaw@alrc.gov.au

 

Tuesday 13 November 2018

 

To whom it may concern

 

Submission in response to the Review of the Family Law System Discussion Paper

 

Thank you for the opportunity to provide a submission to this review.

 

While there are a number of important issues raised in the Discussion Paper, I will restrict my comments to one issue in particular: the welfare jurisdiction, and specifically its impact on people born with variations in sex characteristics.

 

This issue is discussed in Chapter 9 of the Discussion Paper, and specifically addressed in Question 9-1:

 

In relation to the welfare jurisdiction:

  • Should authorisation by a court, tribunal, or other regulatory body be required for procedures such as sterilisation of children with disability or intersex medical procedures? What body would be most appropriate to undertake this function?
  • In what circumstances should it be possible for this body to authorise sterilisation procedures or intersex medical procedures before a child is legally able to personally make these decisions?
  • What additional legislative, procedural or other safeguards, if any, should be put in place to ensure that the human rights of children are protected in these cases?

 

I will seek to answer these question as both an advocate for the overall lesbian, gay, bisexual, transgender and intersex (LGBTI) community, and specifically as an ally for intersex people, including as a supporter of Intersex Human Rights Australia (IHRA).

 

In this capacity – as an intersex ally – I have affirmed the March 2017 Darlington Statement of intersex advocates and organisations from Australia and Aotearoa/New Zealand.

 

That Statement provides a clear set of principles which guide the response to the current Discussion Paper. This includes:

 

Article 5: Our rights to bodily integrity, physical autonomy and self determination.

 

Article 7: We call for the immediate prohibition as a criminal act of deferrable medical interventions, including surgical and hormonal interventions, that alter the sex characteristics of infants and children without personal consent. We call for freely-given and fully informed consent by individuals, with individuals and families having mandatory independent access to funded counselling and peer support.

 

Article 16: Current forms of oversight of medical interventions affecting people born with variations of sex characteristics have proven to be inadequate.

a. We note a lack of transparency about diverse standards of care and practices across Australia and New Zealand for all age groups.

b. We note that the Family Court system in Australia has failed to adequately consider the human rights and autonomy of children born with variations of sex characteristics, and the repercussions of medical interventions on individuals and their families. The role of the Family Court is itself unclear. Distinctions between ‘therapeutic’ and ‘non-therapeutic’ interventions have failed our population.

 

Article 22: We call for the provision of alternative, independent, effective human rights-based oversight mechanism(s) to determine individual cases involving persons born with intersex variations who are unable to consent to treatment, bringing together human rights experts, clinicians and intersex-led community organisations. The pros and cons for and against medical treatment must be properly ventilated and considered, including the lifetime health, legal, ethical, sexual and human rights implications.

 

Article 23: Multi-disciplinary teams must operate in line with transparent, human rights-based standards of care for the treatment of intersex people and bodies. Multi-disciplinary teams in hospitals must include human rights specialists, child advocates, and independent intersex community representatives [emphasis in original].

 

I also endorse the 7 May 2018 submission by Intersex Human Rights Australia to the Review of the Family Law System – Issues Paper.

 

This includes supporting their analysis of the serious problems caused by the jurisprudence of the Family Court to date in this area (on pages 33 to 42), specifically:

 

  • Welfare of a Child A (1993)
  • Re: Carla (Medical procedure) (2016)
  • Re: Lesley (Special Medical Procedure) (2008), and
  • Re: Kaitlin (2017).

 

The horrific circumstances of the Re: Carla case in particular demonstrate the acute failure of the Family Court to adequately protect the human rights of children born with intersex variations. Instead, the Family Court appears more likely to be complicit in, and sign off on, these same human rights violations.

 

It is hard not to agree with IHRA’s conclusion that: ‘this 2016 Family Court of Australia case is deeply disturbing, exemplifying the way that the human rights of intersex children are violated with inadequate evidence for social and cosmetic purposes’ (page 39).

 

I further endorse the summary findings of the IHRA submission (on page 42) including that:

 

  • The Family Court system has not understood the intersex population, nor the nature of procedures in cases that it has been asked to adjudicate. Most cases are not subject to even this limited form of oversight.
  • The Family Court has failed to properly utilise its procedures in order to ensure that the best interests of intersex children have been thoroughly investigated and understood within the medical context, and within the human rights context, and
  • The ‘best interests of the child’ has been interpreted through a narrow lens, manipulated to facilitate experimental treatments that, contrary to Article 3 of the Convention on the Rights of the Child, conflict with the child’s human dignity and right to physical integrity. This has been facilitated through appeals to gender stereotypes and social norms with insufficient attention to the long-term health and well-being interests of the child.

 

And I support the recommendations made by IHRA on pages 43 and 44, including that:

 

Recommendation 4. Any non-deferrable interventions which alter the sex characteristics of infants and children proposed to be performed before a child is able to consent on their own behalf should be identified as medical treatment outside the scope of parental consent and requiring authorisation of an independent body (hereafter referred to as the ‘decision-making forum’). A decision-making forum must bring together human rights experts, clinicians, and intersex-led community organisations.

 

Recommendation 5. Whether consent is provided by the intersex minor or a decision-making forum, the pros and cons of medical treatment must be properly ventilated and considered, including the lifelong health, legal, ethical, sexual and human rights implications. Consent or authorisation for treatment must be premised on provision of all the available medical evidence on necessity, timing, and evaluation of outcome of medical interventions. Where this is no clinical consensus, this must be disclosed.

 

Recommendation 10. The current threshold criteria to determine whether or not a procedure is within the scope of parental authority is whether it is therapeutic or non-therapeutic. This criterion has failed to distinguish between interventions that are strictly clinically necessary and those that are not; between interventions based on culturally-specific social norms and gender stereotypes and those that are not. This criterion should be abandoned as a threshold test of whether a medical procedure requires oversight or authorisation from a decision-making forum, and

 

Recommendation 11. Children born with variations of sex characteristics must be treated by multi-disciplinary teams. Multi-disciplinary teams must operate in line with transparent, human rights-based standards of care for the treatment of intersex people and bodies. Multi-disciplinary teams in hospitals must include human rights specialists, child advocates, and independent intersex community representatives.

 

Based on all of the above factors, and returning to Question 9-1 in the Discussion Paper, my approach to these issues is therefore:

 

  • All deferrable medical interventions, including surgical and hormonal interventions, that alter the sex characteristics of infants and children with variations in sex characteristics without personal consent should be prohibited as criminal acts.
  • Where medical interventions on infants and children with variations in sex characteristics are considered non-deferrable, this must be subject to genuine independent oversight.
  • Based on the advice of Intersex Human Rights Australia, the experiences of far too many people born with intersex variations, and the jurisprudence cited earlier, adequate oversight is not being provided currently. The Family Court has failed, in its welfare jurisdiction, to protect the welfare of intersex infants and children.
  • Given this, the Family Court should no longer perform this function. Instead, a new independent authority should be created to oversee issues related to non-deferrable medical interventions on infants and children with variations in sex characteristics.
  • This new independent authority should primarily be guided by human rights considerations, including the human rights of the child concerned – rather than the current approach which both prioritises and privileges a medicalised approach to these questions.
  • Consequently, this new independent authority should receive evidence and information from human rights and children’s rights experts, from intersex-led community organisations and peers, alongside clinical and psychosocial experts. Only by hearing from all of these sources can the issues be properly ventilated.
  • This new independent authority should be national, both so that it can help ensure greater consistency, but also to assist with the transparency of and accountability for its decision-making.

 

Thank you for the opportunity to provide this submission to this important inquiry. Please do not hesitate to contact me, at the details provided, should you require additional information.

 

Sincerely,

Alastair Lawrie

1200px-Intersex_flag.svg

Genderless (Notices of Intended) Marriage

The Commonwealth Attorney-General’s Department is currently consulting about the Notice of Intended Marriage form. Submissions close today, 28 October 2018 (for more information, click here). Here’s mine:

**********

Commonwealth Attorney-General’s Department

via marriagecelebrantssection@ag.gov.au

 

Sunday 28 October 2018

 

To whom it may concern

 

Notice of Intended Marriage Consultation

 

Thank you for the opportunity to provide a submission to this consultation.

 

My comments relate to only one section of the revised Notice of Intended Marriage form, and that is:

 

  1. Gender (optional) Male, Female or Non-Binary.

 

This is required to be completed for both parties to an intended marriage.

 

The inclusion of this question is entirely unnecessary and it should be removed.

 

It is unnecessary because, following the Marriage Amendment (Definition and Religious Freedoms) Act 2017, there is generally no gender (or sex) based restriction on whether couples are able to lawfully marry.

 

This status will be reinforced on December 9 this year when, for those states and territories that have yet to abolish forced trans divorce, the exception provided by the Commonwealth Sex Discrimination Act 1984 to permit this unjustifiable discrimination will expire.

 

This question is also unnecessary to establish identity, which is proved by name, date and place of birth and the requirement to supply identity documentation on the subsequent page of the form. Logically, it is clearly unnecessary to prove identity it if answering is optional.

 

It should be removed because of the growing recognition of, and respect for, the full diversity of the Australian community, particularly in terms of sex, sex characteristics and gender identity.

 

As a cisgender gay man and LGBTI advocate I acknowledge the advice of trans, gender diverse and intersex individuals and organisations that, in order to be fully inclusive of their diversity, requests for information about sex and/or gender should only be included if they can be shown to serve a valid purpose.[i]

 

I can see no such purpose in this instance.

 

Recommendation 1: Question 3 of the Notice of Intended Marriage form should be removed.

 

If the above recommendation is not agreed, then it is my strong view this question should remain optional.

 

Further, given the question serves no valid purpose (in terms of determining whether a person is eligible to marry, or in verifying their legal identity) I suggest that the current three options of Male, Female and Non-Binary be removed. Instead it should simply state:

 

Gender (optional), please specify

 

This should be a write-in box, and have no other prompts for information. Amending the question in this way would allow people to enter their own gender identity, including those who may not identify with any of Male, Female, or Non-Binary.

 

Recommendation 2: If question 3 is retained, it must continue to be optional, and should ask for Gender, please specify, followed by a write-in box.

 

With the passage of last year’s amendments to the Marriage Act 1961, and the imminent abolition of forced trans divorce, marriage in Australia will shortly be available to all couples, irrespective of sex, sex characteristics, sexual orientation and gender identity.

 

That is what 61.6% of Australians said yes to (in the Liberal-National Government’s unnecessary, wasteful, divisive and harmful postal survey).

 

This equality-of-access should be reflected in the Notice of Intended Marriage form, by removing the optional question that asks for the gender of the participants, because it is no longer relevant in 2018.

 

Please do not hesitate to contact me at the details provided should you require additional information.

 

Sincerely

Alastair Lawrie

 

images-1

 

Footnotes:

[i] See for example article 8 of the 2017 Darlington Statement of intersex advocates from Australia and Aoteoroa/New Zealand, which includes:

“Undue emphasis on how to classify intersex people rather than how we are treated is also a form of structural violence. The larger goal is not to seek new classifications, but to end legal classification systems and the hierarchies that lie behind them. Therefore:

  1. a) As with race or religion, sex/gender should not be a legal category on birth certificates or identification documents for anybody” (emphasis in original).

The State of Homophobia, Biphobia & Transphobia Survey Results, Part 6: Discrimination in Health, Community Services or Aged Care

This post is the final 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 experienced discrimination in health, community services or aged care, whether any of this discrimination occurred in the past 12 months, whether this discrimination related to religious organisations and to provide an example of the discrimination that they experienced.

 

The responses reveal a disturbing pattern of discrimination across these areas, with many LGBTIQ Australians denied equal access to services simply because of their sexual orientation, gender identity or intersex status.

 

The question about whether any of this discrimination occurred in relation to religious organisations is important because of the existence of ‘special rights’ to discriminate for these bodies in most states and territories[ii], leaving LGBTI people 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 different types of discrimination that LGBTIQ people have encountered in health, community services or aged care.

 

 

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 health, community services or aged care

 

Question 2: Has one or more instances of this discrimination (in health, community services or aged care) occurred in the past 12 months?

 

&

 

Question 3: Did any of this discrimination (in health, community services or aged care) occur in relation to a religious organisation?

 

Of the 1,611 people who answered the first question, 345 – or 21% – said they had experienced discrimination in one of these areas at some point in their lives.

 

Disturbingly, 189 survey respondents[iii] reported experiencing anti-LGBTIQ discrimination in health, community services or aged care in the past 12 months alone. In other words, more than half of those who had experienced discrimination in these areas reported at least one instance of this mistreatment just in 2016 – that is simply shocking.

 

The proportion reporting discrimination by religious organisations was 3.7%[iv]. This is thankfully lower than the rates reported for discrimination by religious organisations in education (Survey Results, Part 4) and employment (Survey Results, Part 5), although this nevertheless represents roughly 1 in 25 LGBTI people exposed without adequate protections from anti-discrimination schemes.

 

LGBTIQ Status

 

There were some significant differences in reported discrimination in health, community services and aged care between lesbian, gay, bisexual, transgender, intersex and queer survey respondents:

 

Lesbian

 

  • 26.5%[v] reported discrimination in these areas at some point
  • 14.5%[vi] experienced at least one instance in the last 12 months
  • 3.5%[vii] experienced discrimination by a religious organisation

 

Gay

 

  • 19.8%[viii] reported discrimination in these areas at some point
  • 9.9%[ix] experienced at least one instance in the last 12 months
  • 2.7%[x] experienced discrimination by a religious organisation

 

Bisexual

 

  • 16.1%[xi] reported discrimination in these areas at some point
  • 8.7%[xii] experienced at least one instance in the last 12 months
  • 4.7%[xiii] experienced discrimination by a religious organisation

 

Transgender

 

  • 35.3%[xiv] reported discrimination in these areas at some point
  • 24.9%[xv] experienced at least one instance in the last 12 months
  • 3.8%[xvi] experienced discrimination by a religious organisation

 

Intersex

 

  • 40%[xvii] reported discrimination in these areas at some point
  • 13.3%[xviii] experienced at least one instance in the last 12 months
  • 6.7%[xix] experienced discrimination by a religious organisation

 

Queer

 

  • 29.6%[xx] reported discrimination in these areas at some point
  • 19.2%[xxi] experienced at least one instance in the last 12 months
  • 4.6%[xxii] experienced discrimination by a religious organisation

 

LGBTIQ Category Experienced anti-LGBTIQ discrimination in health, community services or aged care (%)?
Ever Last 12 months By religious organisation
Lesbian 26.5 14.5 3.5
Gay 19.8 9.9 2.7
Bisexual 16.1 8.7 4.7
Transgender 35.3 24.9 3.8
Intersex 40 13.3 6.7
Queer 29.6 19.2 4.6

 

The highest rate for lifetime discrimination was from intersex respondents, although the small sample size for that group (n=15) means this figure should be treated with some caution. It is also interesting that intersex people reported average rates of recent discrimination in these areas.

 

Of the other groups, gay and particularly bisexual respondents reported lower rates of both lifetime, and recent, discrimination in health, community services and aged care than other groups.

 

In contrast to earlier survey results, lesbians reported higher rates of discrimination on both measures. One possible explanation is greater involvement, and therefore potential exposure to discrimination in, family-related health and community services.

 

Once again, higher rates of discrimination, and especially recent mistreatment, were reported by transgender and, to a slightly lesser extent, queer survey respondents.

 

It is particularly disturbing that one in five queer respondents, and fully one quarter of trans people, experienced discrimination in these areas in the past 12 months alone.

 

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

 

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

 

Trans and gay: 40.4%[xxiv] ever, and 28.1% in the last 12 months

 

Trans and bisexual: 26.7%[xxv] ever, and 16.7% in the last 12 months, and

 

Trans and queer: 40.1%[xxvi] ever, and 32.2% in the last 12 months.

 

These groups were largely consistent, although trans and bi respondents reported lower rates on both measures, while trans and queer respondents were more likely to experience recent discrimination (at almost 1 in 3 people overall).

 

Finally, there is little that stands out in the reported rates of discrimination by religious organisations in these areas, with the range from 2.7% (gay) to 6.7% (intersex).

 

Aboriginal and Torres Strait Islander People

 

The rates of discrimination for Aboriginal and/or Torres Strait Islander LGBTIQ people were higher for both lifetime discrimination, and especially for recent discrimination, than for their non-Indigenous counterparts.

 

On the other hand, Aboriginal and/or Torres Strait Islander LGBTIQ people reported lower rates of discrimination by religious organisations in health, community services or aged care. The full figures are as follows:

 

  • 24.6%[xxvii] reported discrimination in these areas at some point (compared to 21.3% of non-Indigenous people)
  • 17.5%[xxviii] experienced at least one instance in the past 12 months (compared to 11.5% of non-Indigenous people) and
  • 1.8%[xxix] experienced discrimination by a religious organisation (compared to 3.7% of non-Indigenous people).

 

  Experienced anti-LGBTIQ discrimination in health, community services or aged care (%)?
Ever Last 12 months By religious organisation
Aboriginal and/or Torres Strait Islander 24.6 17.5 1.8
Non-Indigenous 21.3 11.5 3.7

 

Age

 

Aged 24 and under

 

  • 15.7%[xxx] reported discrimination in these areas at some point
  • 10.8%[xxxi] experienced at least one instance in the past 12 months
  • 3.3%[xxxii] experienced discrimination by a religious organisation

 

25 to 44

 

  • 31.1%[xxxiii] reported discrimination in these areas at some point
  • 15.8%[xxxiv] experienced at least one instance in the past 12 months
  • 3.9%[xxxv] experienced discrimination by a religious organisation

 

45 to 64

 

  • 23.7%[xxxvi] reported discrimination in these areas at some point
  • 9.1%[xxxvii] experienced at least one instance in the past 12 months
  • 4%[xxxviii] experienced discrimination by a religious organisation

 

65 and over

 

  • 25.8%[xxxix] reported discrimination in these areas at some point
  • 9.7%[xl] experienced any instance in the past 12 months
  • 9.7%[xli] reported discrimination by a religious organisation

 

Age cohort Experienced anti-LGBTIQ discrimination in health, community services or aged care (%)?
Ever Last 12 months By religious organisation
24 and under 15.7 10.8 3.3
25 to 44 31.1 15.8 3.9
45 to 64 23.7 9.1 4
65 and over 25.8 9.7 9.7

 

Given their lesser years of life experience, it is perhaps unsurprising that young people experienced lower levels of lifetime discrimination in these areas. Although the fact that more than 1 in 10 LGBTIQ people aged 24 or under reported homophobic, biphobic, transphobic or intersexphobic discrimination in health or community services over the past 12 months is alarming.

 

What is perhaps most surprising is that people aged 25 to 44 were most likely to report both lifetime discrimination in these areas (with almost a third of respondents affected), as well as anti-LGBTIQ discrimination in the past 12 months (at almost 1 in every 6 respondents).

 

Meanwhile, the highest rate of reported discrimination by religious organisations was from LGBTIQ people aged 65 and over – which is possibly explained by recent interactions with religious-operated aged care services.

 

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

 

  • 21.4%[xlii] reported discrimination in these areas at some point
  • 10.9%[xliii] experienced at least one instance in the last 12 months
  • 2.7%[xliv] experienced discrimination by a religious organisation

 

Victoria

 

  • 22.8%[xlv] reported discrimination in these areas at some point
  • 12.4%[xlvi] experienced at least one instance in the last 12 months
  • 4%[xlvii] experienced discrimination by a religious organisation

 

Queensland

 

  • 22%[xlviii] reported discrimination in these areas at some point
  • 11.4%[xlix] experienced at least one instance in the last 12 months
  • 6.1%[l] experienced discrimination by a religious organisation

 

Western Australia

 

  • 22.1%[li] reported discrimination in these areas at some point
  • 12.8%[lii] experienced at least one instance in the last 12 months
  • 2.7%[liii] experienced discrimination by a religious organisation

 

South Australia

 

  • 19.5%[liv] reported discrimination in these areas at some point
  • 14.3%[lv] experienced at least one instance in the last 12 months
  • 3%[lvi] experienced discrimination by a religious organisation

 

Tasmania

 

  • 16%[lvii] reported discrimination in these areas at some point
  • 10.4%[lviii] experienced at least one instance in the last 12 months
  • 1.9%[lix] experienced discrimination by a religious organisation

 

Australian Capital Territory

 

  • 23.2%[lx] reported discrimination in these areas at some point
  • 10.7%[lxi] experienced at least one instance in the last 12 months
  • 7.1%[lxii] experienced discrimination by a religious organisation

 

Northern Territory

 

  • 20%[lxiii] reported discrimination in these areas at some point
  • 10%[lxiv] experienced at least one instance in the last 12 months
  • 5%[lxv] experienced discrimination by a religious organisation

 

State or territory Experienced anti-LGBTIQ discrimination in health, community services or aged care (%)?
Ever Last 12 months By religious organisation
NSW 21.4 10.9 2.7
Victoria 22.8 12.4 4
Queensland 22 11.4 6.1
WA 22.1 12.8 2.7
SA 19.5 14.3 3
Tasmania 16 10.4 1.9
ACT 23.2 10.7 7.1
NT 20 10 5

 

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

 

The lowest lifetime rates of discrimination in health, community services or aged care were in Tasmania, while the highest (but only just) were in the ACT. Meanwhile, South Australians were most likely to experience discrimination in the last 12 months, while LGBTIQ people in Queensland and the ACT reported the highest rates of discrimination in these areas by religious organisations.

 

**********

 

Question 4: If you feel comfortable, please provide an example of the discrimination you experienced in relation to health, community services or aged care [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[lxvi] version of the answers to this question – providing examples of homophobic, biphobic, transphobic and intersexphobic discrimination in relation to health, community services or aged care – can be found at the following link:

 

 

question-4-examples-of-health-community-services-and-aged-care-discrimination

 

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

 

One of the most common stories was denial of LGBTIQ relationships, including refusal to treat partners as next of kin:

 

“I was asked if I was in a relationship and what not and gender during a visit to a new and local doctor, I said yes and gender non-binary and I was put down as single and female. Single because my partner was a woman and the system didn’t have an option for same sex couples and it was “easier”.”

 

“Having my female partner not being able to be with me in emergency because it was family and partners only. (Had no family in the region at the time)”

 

“My wife was in emergency at [redacted] Hospital and the doctor did not want to discuss with me her condition or provide me with a carers certificate because of our sexuality”

 

“While an inmate in the mental health unit, the doctor assigned to me was very uncomfortable when my partner was in the room. And even though I gave permission, he would not treat my partner with respect or discuss my care with her.”

 

“At a hospital where my partner of over ten years was not accepted as my next of kin. I had to put my son down”

 

“Was at a hospital after becoming very ill and my girlfriend was holding my hand. Once my nurse noticed, her attitude towards me changed and she told me that “friends” couldn’t visit”

 

“While my girlfriend was in hospital and had come in via ambulance I was denied access to her / the ability to see her while she was in the emergency department because a receptionist didn’t believe we were partners. Clearly thought I was ‘just a friend’”

 

“I was critically ill and my partner was ignored by hospital staff as my next of kin”

 

Another common story related to an assumption that being gay (or bi, or trans) automatically equates to being at high risk of HIV, including being subjected to additional testing or ‘safety precautions’ – or, in one case, being denied testing:

 

“Feeling like the dentist did not want to treat me because I answered the at risk of HIV questions (in the 90s)”

 

“Disclosing that I had a same sex partner opened me up to extra medical testing before procedures, including unnecessary HIV testing unrelated to my procedure.”

 

“I was informed that due to being bisexual, I was at a high risk of STDs, regardless of the fact that I am married and in a monogamous relationship.”

 

“A doctor was dismissive of my health concerns and wrote me off as an HIV magnet for being transgender.”

 

“Because I am open about being gay, I have been repeatedly advised by health practitioners to have an HIV test when consulting them about a range of health issues that have no relation to HIV. Of course, I have had HIV tests and would do so again if I thought I had been at risk.”

 

“A GP refused to test me for HIV as he had “better things to do than take care of sexually promiscuous people like” me. I had not told him anything about my sex life apart from the fact that I was gay – this was purely a homophobic assumption on his behalf. He suggested I go to a free sexual health centre in the city instead.”

 

It is unsurprising that these attitudes translated to adverse treatment of people who are HIV-positive:

 

“A doctor was bombastic when I presented at ED when he learned I was HIV +. He just carried on about my HIV Status and not the issue I presented for”

 

Several respondents cited the blanket ban on sexually-active gay men donating blood as being anti-LGBTIQ discrimination:

 

“Apparently just cause I’m gay I can’t donate blood, even tho [sic] I get tested all the time probably more times than a straight person would in their life time”

 

“Gay men are not allowed to give blood if they’ve had sex within the past year. It is alienating and presumptuous”

 

This approach also applies to some transgender people:

 

“Refused to donate blood. Because blood donation is a purely altruistic act, this makes one feel apart from the community. The policy of the local blood collection organisations is to treat all transgender people like gay men, irrespective of the sex they were assigned at birth, the state of the individual’s legal document, the individual’s genitals, etc.”

 

There was a range of stories about homophobia from GPs:

 

“I had a sore throat and my GP suggested that it may be because men weren’t designed to suck cock.”

 

“Doctor called me a homo, and multiple doctors being uncomfortable discussing sexual health issues once finding out my sexuality.”

 

“Being told by a doctor that I am more prone to disease because I am homosexual”

 

“A GP at my local health centre treated me with caution and wrote a ridiculous warning on my medical file for anyone to see. “Warning: Homosexual relations”.”

 

Lesbian respondents also described a variety of discrimination they had experienced:

 

“Talking about sex with GPs and health providers, there’s an assumption that sex is only with the opposite sex and that nothing else is sexual. Even when in a monogamous same sex relationship doctors would assume and ask questions about male sex partners and dismiss my actual partner. Ie, could you be pregnant? When they know I’m a cis woman only having sex with a cis woman.”

 

“Local doctor told me that I couldn’t go on the pill to stop my painful periods due to endometriosis because I was not in a sexually active relationship with a man, that because I was lesbian and not at risk of falling pregnant there was no need to be put on the pill”

 

“I have had a doctor tell me that I shouldn’t get a pap smear because I had never had sex with someone who had a penis, which is just wrong information and could be detrimental to my health. This denial was also mixed with her confusion and homophobia around the fact that I was queer and I felt very uncomfortable and shamed.”

 

This included a particularly-horrific situation involving sexual assault:

 

“I have received many instances of refusal of care or denial of optimal care by health professionals because of my sexuality. But the one that still traumatises me is when I went for a Pap smear with a female gp and she inserted her fingers into my vagina (for what I now know is an optional test) without telling me. I screamed and told her to stop, but she continued saying people like me like this kind of thing…she raped me. While looking at me in the face. Because I am gay.”

 

As with previous survey results, the most frequent stories of discrimination came from trans respondents. This included blatant transphobia, as well as deadnaming and misgendering:

 

“I was referred to by a receptionist to one of her co-workers as ‘a dude who wants to cut his d*ck off.’ The other replied with ‘well, you don’t want those types to breed.’”

 

“In 2005 I was involved in a car crash which necessitated a precautionary visit to the emergency dept at [redacted] in Perth. An orderly could not contain his mirth at me being a transgender person and kept commenting about it and laughing at me several times over a period of hours while I was required to stay motionless on my back awaiting a spinal scan.”

 

“I was repeatedly misgendered by nurses in a public hospital despite my efforts to correct them”

 

“being continually misgendered and deadnamed at a hospital”

 

“No doctor has refused to treat me but I have had doctors refuse to refer to me as a male once they find out, or assume every ailment must be linked to being transgender.”

 

It also included a refusal to provide essential trans-related medical services:

 

“Doctor telling me I should not get PBS for testosterone because it’s a lifestyle choice not a medical condition”

 

“Had a doctor tell me to stop HRT because it was dangerous, he did not seem to think being trans was real.”

 

“Was prevented from getting access to medical treatment and to start my transitioning for over 6 yrs by doctors.”

 

“My first psychiatrist was a gatekeeper who denied me access to services essential to transition.”

 

Several trans respondents complained about systemic discrimination in place simply to access transition:

 

“I think having to get diagnosed with gender dysphoria and have your life torn open by a psychologist is fucking pretty discriminatory. It’s bullshit. My body, my rules.”

 

“the entire process for getting access to gender related assistance is transphobic”

 

This comment seemed to sum up the feelings of many:

 

“Most doctors are totally clueless about how to treat trans people.”

 

A concerning theme to several stories was homophobic, biphobic and transphobic treatment of LGBTIQ people accessing mental health services:

 

“I was in a psychiatric ward for severe mental health issues and I mentioned that I was queer. The registrar fixated on it and tried to make it out that my sexuality was the root of all my problems. He tried to pathologise it.”

 

“I also had a session with a counsellor who referred to me as having a split personality when they found out I was Transgender.”

 

“Psychologists were the worst, though. I have serious mental illness and part of the problem was sexual assault trauma and problems with harassment and discrimination because of being bisexual. The psychologists told me that it didn’t exist and that I had to choose and that “if you want women it means you need mothering in your relationships so work on that with men”. Dangerous lies.”

 

“My counsellor didn’t “believe” in LGBT people or issues and told me I just needed to “get a job, join a gym and eat healthy””

 

“In a psychiatric ward I got told that my being gay was a part of my mental illness and a contributing factor to my depression”

 

Domestic and family violence was also cited as an area of anti-LGBTIQ discrimination:

 

“I’ve contacted domestic violence places for support groups and been told ‘women only’ even though I’m non-binary, assigned female at birth, and don’t pass as male. When I’ve asked where I’m meant to go, they’re suggested men’s behavioural change programs (I was the victim, I ended up with PTSD!) and then said they had no idea.”

 

“DV situation cops didn’t take a woman abusing a woman seriously”

 

“Having no services for DV Support to get help after a 8 yr DV relationship. Mainstream services having no understanding of LGBTIQ relationships/ community”

 

Finally, there were several examples of anti-LGBTIQ discrimination on the basis of religious belief:

 

“I was hospitalised for a suicide attempt. While there, I was sent a chaplain instead of a nurse to watch me. He spent 6 hours telling me how I was going to hell and how much god hated me and my gender was all in my head.”

 

“I was offered help by the salvation army after I was forced to leave home. I was told that I could just go home, once I mentioned that the cause of my situation was abuse related to my sexuality, the belief seemed to be that I should somehow change my mind and then my parents would accept me.”

 

“I was refused for a counselling service because the organization was religion based and insisted they wouldn’t work with someone that was beyond help like me.”

 

“My job in regards to [employment-related organisation] was with a religious org and it ran aged care services. The org wouldn’t recognise an aging couple’s relationship and they were placed in 2 separate care homes”

 

**********

 

Conclusion

 

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

 

This includes more than 1 in every 5 respondents people reporting lifetime experience of such discrimination, with 11.7% reporting at least one instance of anti-LGBTIQ discrimination in health, community services or aged care in the last 12 months alone.

 

Some groups within the community reported even higher rates than these already high averages, with intersex and trans people, Aboriginal and/or Torres Strait Islander LGBTIQ people and people aged 25 to 44 particularly affected.

 

While the rates of discrimination by religious organisations were comparatively low, it is important to note than in most cases, such discrimination is entirely lawful, due to the wide-ranging and completely unjustified religious exceptions to anti-discrimination laws in the majority of Australian jurisdictions.

 

The personal examples of discrimination in health, community services and aged care shared in response to question 4 demonstrate the different forms such prejudice can take, with many heart-breaking stories of homophobia, transphobia and even discrimination by mental health services.

 

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

 

Thank you to all those people who participated in the survey, and of course to everyone who has read the results I have published. Hopefully, through this process we have demonstrated the ongoing problems caused by homophobia, biphobia, transphobia and intersexphobia in Australia – and the urgent need for our lawmakers and decision-makers to take action to address these issues.

 

Finally, if you would like to continue to receive articles on LGBTI rights, 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.

 

**********

 

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

Part 5: Discrimination in Employment

[ii] Noting that discrimination against LGBTI people accessing aged care services from Commonwealth-funded aged care facilities operated by religious organisations is prohibited by the Sex Discrimination Act 1984 (although those same protections do not cover LGBTI employees in those facilities).

[iii] 343 people responded to question 2: 189 yes/154 no.

[iv] 344 people responded to question 3: 59 yes/285 no.

[v] 317 people responded to question 1: 84 yes/233 no.

[vi] 46 respondents.

[vii] 11 respondents.

[viii] 626 people responded to question 1: 124 yes/502 no.

[ix] 62 respondents.

[x] 17 respondents.

[xi] 508 people responded to question 1: 82 yes/426 no.

[xii] 44 respondents.

[xiii] 24 respondents.

[xiv] 365 people responded to question 1: 129 yes/236 no.

[xv] 91 respondents.

[xvi] 14 respondents.

[xvii] 15 people responded to question 1: 6 yes/9 no. Note that, given the small sample size, these percentages should be treated with some caution.

[xviii] 2 respondents.

[xix] 1 respondent.

[xx] 480 people responded to question 1: 142 yes/338 no.

[xxi] 92 respondents.

[xxii] 22 respondents.

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

[xxiv] 57 respondents total, with 23 yes to question 1 and 16 yes to question 2.

[xxv] 120 respondents total, with 32 yes to question1 and 20 yes to question 2.

[xxvi] 183 respondents total, with 75 yes to question 1 and 59 yes to question 2.

[xxvii] 57 people responded to question 1: 14 yes/43 no.

[xxviii] 10 respondents.

[xxix] 1 respondent.

[xxx] 860 people responded to question 1: 135 yes/725 no.

[xxxi] 93 respondents.

[xxxii] 28 respondents.

[xxxiii] 431 people responded to question 1: 134 yes/297 no.

[xxxiv] 68 respondents.

[xxxv] 17 respondents.

[xxxvi] 274 people responded to question 1: 65 yes/209 no.

[xxxvii] 25 respondents.

[xxxviii] 11 respondents.

[xxxix] 31 people responded to question 1: 8 yes/23 no. Note that, given the small sample size, these percentages should be treated with some caution.

[xl] 3 respondents.

[xli] 3 respondents.

[xlii] 524 people responded to question 1: 112 yes/412 no.

[xliii] 57 respondents.

[xliv] 14 respondents.

[xlv] 378 people responded to question 1: 86 yes/292 no.

[xlvi] 47 respondents.

[xlvii] 15 respondents.

[xlviii] 245 people responded to question 1: 54 yes/191 no.

[xlix] 28 respondents.

[l] 15 respondents.

[li] 149 people responded to question 1: 33 yes/116 no.

[lii] 19 respondents.

[liii] 4 respondents.

[liv] 133 people responded to question 1: 26 yes/107 no.

[lv] 19 respondents.

[lvi] 4 respondents.

[lvii] 106 people responded to question 1: 17 yes/89 no.

[lviii] 11 respondents.

[lix] 2 respondents.

[lx] 56 people responded to question 1: 13 yes/43 no.

[lxi] 6 respondents.

[lxii] 4 respondents.

[lxiii] 20 people responded to question 1: 4 yes/16 no. Note that, given the small sample size, these percentages should be treated with some caution.

[lxiv] 2 respondents.

[lxv] 1 respondent.

[lxvi] 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.