What’s Wrong With Tasmania’s Anti-Discrimination Act 1998?

 

This is part of a series of posts looking at Australia’s anti-discrimination laws and discussing how well, or how poorly, they protect lesbian, gay, bisexual, transgender and intersex people. The articles on other jurisdictions can be found here.

 

In these posts, I have analysed Commonwealth, state and territory legislation with respect to three main issues:

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

 

This post will be the shortest of the nine, because in all three areas Tasmania’s Anti-Discrimination Act 1998 is either best practice, or close to best practice, with only minor amendments needed to improve its anti-vilification provisions.

 

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Protected Attributes

 

Unlike some other schemes, Tasmania’s Anti-Discrimination Act 1998 protects all parts of the lesbian, gay, bisexual, transgender and intersex community against discrimination.

 

Section 16 sets out the protected attributes of the Act, and they include sexual orientation (sub-section c), gender identity (ea) and intersex (eb).

 

The definitions of these terms in section 3 are also inclusive:

sexual orientation includes-

(a) heterosexuality; and

(b) homosexuality; and

(c) bisexuality”

 

gender identity means the gender-related identity, appearance or mannerisms or other gender-related characteristics of an individual (whether by way of medical intervention or not), with or without regard to the individual’s designated sex at birth, and includes transsexualism and transgenderism” (noting that this does not require gender diverse people to adopt a binary identity in order to receive protection). NB There is currently a Bill before the Tasmania Legislative Council that would improve this definition further, by including gender expression – meaning ‘any personal physical expression, appearance (whether by way of medical intervention or not), speech, mannerisms, behaviourally patterns, names and personal references that manifest or express gender or gender identity’.

 

intersex means the status of having physical, hormonal or genetic features that are-

(a) neither wholly female nor wholly male; or

(b) a combination of female and male; or

(c) neither female nor male”

with Tasmania only the second jurisdiction, after the Commonwealth, to include intersex as a stand-alone protected attribute, although they have since been joined by the ACT and South Australia. It should be noted, however, that in the March 2017 Darlington Statement, intersex activists called for this terminology to be replaced by the protected attribute of ‘sex characteristics’. NB The same Bill currently before the Legislative Council would also amend the protected attribute to ‘intersex variations of sex characteristics’, removing the definition of intersex and adding a definition of sex characteristics – meaning ‘a person’s physical, hormonal or genetic features relating to sex, including genitalia and other sexual and reproductive anatomy, chromosomes, genes, hormones, and secondary sex characteristics.’

 

Overall, the Tasmanian Anti-Discrimination Act 1998 adopts close to best practice in terms of the protected attributes it includes, covering all LGBTI Tasmanians.

 

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Religious Exceptions

 

The Anti-Discrimination Act 1998 is best practice when it comes to religious exceptions – in fact, Tasmania is better, far better, than any other Australian jurisdiction in this area.

 

There are three provisions outlining relevant religious exceptions in the Act:

 

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 of a particular religion if the discrimination is in order to enable, or better enable, the educational institution to be conducted in accordance with those tenets, beliefs, principles or practices.”

 

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.”

 

Section 52. “Participation in religious observance

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

(a) the ordination or appointment of a priest; or

(b) the training and education of any person seeking ordination or appointment as a priest; or

(c) the selection or appointment of a person to participate in any religious observance or practice; or

(d) any other act that-

(i) is carried out in accordance with the doctrine of a particular religion; and

(ii) is necessary to avoid offending the religious sensitivities of any person of that religion.”

 

At first glance these exceptions appear extensive in their application. However, the most important point to observe is that discrimination by religious bodies, including religious schools, is only allowed on the basis of the person being discriminated against’s religion – for example, a christian school offering preferential enrolment to students that are christian.

 

It specifically does not allow discrimination on the basis of other attributes, such as the person being discriminated against’s sexual orientation, gender identity or intersex status.

 

In this way, the Tasmanian Anti-Discrimination Act 1998 is clearly superior to other state and territory LGBTI discrimination laws, as well as the Commonwealth Sex Discrimination Act 1984 (which not only provides a general religious exception allowing discrimination against LGBT people in a wide range of circumstances, but also a specific one with respect to religious schools that permits discrimination against LGBT students and teachers).

 

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Anti-Vilification Coverage

 

The anti-vilification protections afforded LGBTI Tasmanians under the Anti-Discrimination Act 1998 are also strong – although, as we shall see below, there is one area of possible improvement.

 

There are actually two provisions that prohibit vilification under the Act:

 

Section 17 “Prohibition of certain conduct and sexual harassment

(1) A person must not engage in any conduct which offends, humiliates, insults or ridicules another person on the basis of an attribute referred to in section 16(e), (a), (b), (c), (d), (ea), (eb) and (k), (fa), (g), (h), (i) or (j) in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated, intimidated, insulted or ridiculed…”

 

Section 19 “Inciting hatred

A person, by a public act, must not incite hatred towards, serious contempt for, or severe ridicule of, a person or a group of persons on the ground of-

(a) the race of the person or any member of the group; or

(b) any disability of the person or any member of the group; or

(c) the sexual orientation or lawful sexual activity of the person or any member of the group; or

(d) the religious belief or activity of the person or any member of the group.”

 

As we saw earlier, sub-sections 16(c), (ea) and (eb) cover sexual orientation, gender identity and intersex, consequently all LGBTI Tasmanians have recourse to the general anti-vilification protection found in section 17(1).

 

Interestingly, however, only sexual orientation is deemed worthy of inclusion in the more serious ‘inciting hatred’ prohibition of section 19. Which leads me to suggest one of the few possible improvements to this legislation: an amendment to sub-section 19(c) to include gender identity and intersex (or sex characteristics) which are both equally deserving of this protection. NB The Justice and Related Legislation (Marriage Amendments) Bill 2018, which is currently before the Tasmanian Legislative Council, would make exactly this change. Hopefully it is passed early in 2019.

 

Nevertheless, the anti-vilification protections contained in the Anti-Discrimination Act 1998 are at least the equal of any other state or territory – noting of course that only NSW, Queensland and the ACT have introduced similar protections (with no LGBTI anti-vilification coverage under Commonwealth law, or in Victoria, Western Australia, South Australia or the Northern Territory).

 

It should be noted that the current Tasmanian Liberal Government has attempted to undermine these anti-vilification protections. It sought to introduce amendments that would have permitted vilification for public acts done in good faith for ‘religious purposes’ (where “religious purpose includes, but is not limited to, conveying, teaching or proselytising a religious belief”).

 

This would have inevitably resulted in increased vilification of lesbian, gay, bisexual and transgender Tasmanians. Thankfully, while the Bill was passed by the Liberal-majority Legislative Assembly, it was rejected by the Independent-majority Legislative Council in August 2017.

 

 

will-hodgman

Tasmania Premier Will Hodgman sought to undermine existing anti-vilification protections, and has also opposed the Bill which would add gender identity and intersex variations of sex characteristics to inciting hatred provisions (although it passed the Legislative Assembly with Opposition and Greens support).

 

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

This post is part of a series examining the anti-discrimination laws that exist in each Australian jurisdiction and analysing how well, or how poorly, they protect lesbian, gay, bisexual, transgender and intersex (LGBTI) people from discrimination. Other articles in the series can be found here.

Specifically, each post considers three main aspects of LGBTI anti-discrimination legislation:

  • Protected attributes
  • Religious exceptions, and
  • Anti-Vilification Coverage.

Unfortunately, as we shall see below, the Western Australian Equal Opportunity Act 1984 (‘the Act’) has significant problems in terms of all three elements, making it serious competition to the NSW Anti-Discrimination Act 1977 for the (unwanted) title of worst LGBTI anti-discrimination law in the country.

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Protected Attributes

As with most Australian anti-discrimination laws (other than those in the Commonwealth, South Australia, Tasmania and the ACT), the Equal Opportunity Act 1984 only protects some parts of the LGBTI community from discrimination, but not others.

On the positive side, it does include all lesbian, gay and bisexual members of the community – with ‘sexual orientation’ defined in section 4 as:

“in relation to a person, means heterosexuality, homosexuality, lesbianism or bisexuality and includes heterosexuality, homosexuality, lesbianism or bisexuality imputed to the person.”[i]

On the negative side, however, it completely excludes intersex people from anti-discrimination protection, an omission that should be rectified immediately.

On the negative and downright bizarre side, the Western Australian Act adopts a completely unique approach that results in only transgender people whose gender identity as been officially recognised by the State Government benefiting from anti-discrimination coverage.

Specifically, rather than prohibiting discrimination on the basis of gender identity (which would be best practice), the Act only prohibits discrimination against “a gender reassigned person on gender history grounds”.[ii]

Section 4 of the Act states that “gender reassigned person means a person who has been issued with a recognition certificate under the Gender Reassignment Act 2000 or a certificate which is an equivalent certificate for the purposes of that Act”, while section 35AA prescribes that “[f]or the purposes of this Part, a person has a gender history if the person identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex.”

Prima facie, the combination of these two definitions mean that only people who have transitioned from male to female, or vice versa, and had that transition recognised by the Government via the Gender Reassignment Act are protected from discrimination. People who have yet to transition, or any trans person who is non-binary, are not covered by these clauses. This is a serious flaw, and one that must be corrected by the WA State Government.

Conclusion: While lesbian, gay and bisexual Western Australians are included in the protected attributes of the Equal Opportunity Act 1984, intersex people are completely excluded, as are a large number of trans people (either because their gender identity has not been formally recognised under the Gender Reassignment Act, or because their gender identity is non-binary).

Both flaws should be rectified as a matter of priority, with the adoption of the protected attribute of ‘gender identity’ as found in the Commonwealth Sex Discrimination Act 1984, and the inclusion of ‘sex characteristics’ as called for by intersex activists in the March 2017 Darlington Statement.

 

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Religious Exceptions

While it’s approach to trans anti-discrimination regulation is unique, the Equal Opportunity Act’s provisions surrounding the rights of religious organisations to discriminate against LGBT people are pretty standard for a state and territory (or even Commonwealth) law[iii]. Unfortunately, that ‘standard’ allows homophobic, biphobic and transphobic discrimination in an incredibly wide range of circumstances.

Section 72 of the Act states:

Religious bodies

Nothing in this Act affects-

(a) the ordination or appointment of priests, ministers of religion or members of any 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

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

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

The first three sub-sections ((a), (b) and (c)), can potentially be justified on the basis that there is a direct connection with the appointment and training of religious office-holders, or the conduct of religious ceremonies.

However, sub-section 72(d) is effectively a blanket exception that allows any religious organisation – including religious-operated schools, hospitals and community services – to discriminate against LGBT employees, and LGBT people accessing their services. This is clearly unacceptable.

Religious schools don’t even need to rely on this broad exception. That’s because they have additional, specific protections in section 73, which allow them to discriminate against teachers and other employees (sub-section (1)), contract workers (sub-section (2)), and even students (sub-section (3)).

Sub-section (1) is incredibly generous (with sub-section (2) adopting similar wording):

“(1) Nothing in this Act renders it unlawful for a person to discriminate against another person on any one or more of the grounds of discrimination referred to in this Act in connection with employment as a member of the staff of an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the first-mentioned person so discriminates in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.”

Even though the wording used in relation to students is slightly narrower, it nevertheless envisages discrimination against students on the basis of sexual orientation or against gender reassigned persons on the basis of their gender history:

“(3) Nothing in this Act renders it unlawful for a person to discriminate against another person on any one or more of the grounds of discrimination referred to in this Act, other than the grounds of race, impairment or age, in connection with the provision of education or training by an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the first-mentioned person so discriminates in good faith in favour of adherents of that religion or creed generally, but not in a manner that discriminates against a particular class or group of persons who are not adherents of that religion or creed.”[iv]

Given education is conducted in the public sphere, it is, in nearly all circumstances, at least partially paid for by taxpayers, and above all it is the right of students to receive a comprehensive and inclusive education free from discrimination, there can be no justification for the continued existence of the exceptions for religious schools outlined in section 73. Just like sub-section 72(d), they should be repealed as a matter of priority.

Conclusion: The religious exceptions contained in the WA Equal Opportunity Act are, sadly, similar to those that exist in most Australian jurisdictions, in that they provide religious organisations generally, and religious schools in particular, extremely generous rights to discriminate against lesbian, gay, bisexual and trans employees and people accessing services. These religious exceptions must be curtailed to better protect LGBT Western Australians against discrimination.

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Anti-Vilification Coverage

This will be the shortest section of this post because, well, there isn’t any: there is currently no prohibition on vilification of LGBTI people under the Equal Opportunity Act 1984. This lack of protection is similar to the Commonwealth, Victoria, South Australia and the Northern Territory.

Interestingly, the Act also excludes racial vilification. Instead, Western Australia has chosen to outlaw racial vilification via the Criminal Code 1913, which creates a total of eight related offences, including:

Section 77. Conduct intended to incite racial animosity or racist harassment

Any person who engages in any conduct, otherwise than in private, by which the person intends to create, promote or increase animosity towards, or harassment of a racial group, or a person as a member of a racial group, is guilty of a crime and is liable to imprisonment for 14 years” and

Section 78. Conduct likely to incite racial animosity or racist harassment

Any person who engages in any conduct, otherwise than in private, that is likely to create, promote or increase animosity towards, or harassment of, a racial group, or a person as a member of a racial group, is guilty of a crime and is liable to imprisonment for 5 years.”[v]

However, there are exactly zero offences outlawing vilification of LGBTI people in the Code. This disparity is completely unjustified, especially given the real and damaging impact of homophobia, biphobia, transphobia and intersexphobia on people’s lives (similar to the detrimental impact of racism).

If vilification offences are to be retained, as I believe they should (even if some right-wing Commonwealth MPs and Senators may disagree), then they should be expanded to cover vilification against members of the LGBTI community.

Conclusion: Neither the Equal Opportunity Act nor the Criminal Code prohibit LGBTI vilification, despite the latter creating a number of offences against racial vilification. Similar offences should also be established against the vilification of lesbian, gay, bisexual, transgender and intersex Western Australians.

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Other Issues

We have already seen, under ‘Protected Attributes’ above, that the Equal Opportunity Act offers only limited anti-discrimination protections to Western Australia’s trans and gender diverse community.

Unfortunately, this ‘anti-trans’ approach is replicated in a number of other sections of the Act, and is even featured in the Long Title: “An Act to promote equality of opportunity in Western Australia and to provide remedies in respect of discrimination on the grounds of sex, marital status, pregnancy, sexual orientation, family responsibility or family status, race, religious or political conviction, impairment, age, or publication of details on the Fines Enforcement Registrar’s website, or involving sexual or racial harassment or, in certain cases, on gender history grounds” [emphasis added].

Note that, not only does ‘gender history’ come last, it is also the only ground which features the qualifier ‘in certain cases’.

The objects of the Act are also exclusionary with respect to trans people. While object (a) in section 3 the Act seeks to ‘eliminate, so far as possible’ discrimination on grounds including sexual orientation and “in certain cases, gender history”, object (d) excludes trans people altogether:

“to promote recognition and acceptance within the community of the equality of persons of all races and of all persons regardless of their sexual orientation, religious or political convictions or their impairments or ages.”

Apparently, promoting recognition and acceptance of transgender people is not a priority.

This approach is also reflected in substantive parts of the Bill. Whereas section 35ZD allows discrimination in favour of people on the basis of their sexual orientation “to ensure that persons of a particular sexual orientation have equal opportunities with other persons” and “to afford persons of a particular sexual orientation access to facilities, services or opportunities to meet their special needs” (ie positive discrimination), there is no equivalent section for transgender people (or gender reassigned people with a gender history).

There is even a sub-section (74(3a)) that ensures an aged care service cannot discriminate solely in favour of transgender people (even though other aged care services can discriminate on the basis of ‘class, type, sex, race, age or religious or political conviction’[vi]).

Even the way some sections of Part IX, which aims to provide ‘Equal opportunity in public employment’, are drafted indicate that transgender discrimination is to be considered separately. For example, section 140 states:

“The objects of this Part are-

(a) to eliminate and ensure the absence of discrimination in employment on the ground of sex, marital status, pregnancy, family responsibility or family status, sexual orientation, race, religious or political conviction, impairment, age or the publication of relevant details on the Fines Enforcement Registrar’s website; and

(aa) to eliminate and ensure the absence of discrimination in employment against gender reassigned persons on gender history grounds; and

(b) to promote equal employment opportunity for all persons.”[vii]

It is bizarre that even the protected attribute of ‘publication of relevant details on the Fines Enforcement Registrar’s website’ is included with sex, race and sexual orientation (among others), while gender reassigned persons are included in a separate sub-section.

Whenever the Western Australian Equal Opportunity Act 1984 is finally updated to ensure all transgender and gender diverse people are protected from discrimination, these additional sections will need to be updated to ensure that, as a protected attribute, gender identity is finally treated equally to other attributes.

Update:

In October 2018, the Western Australian Attorney-General John Quigley announced that the Equal Opportunity Act would be referred to the Law Reform Commission of Western Australia for a comprehensive review. This was in the wake of the leaking of the recommendations from the Ruddock Religious Freedom Review, and ongoing publicity about the issue of discrimination against LGBT students and teachers in religious schools. Although note at the time of writing (late December) nothing has yet appeared on the LRCWA website.

Mark McGowan

Will WA Labor Premier Mark McGowan, elected in March 2017, update the out-dated Equal Opportunity Act 1984?

 

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Footnotes:

[i] With discrimination on the basis of sexual orientation then prohibited under Part IIB of the Act.

[ii] Section 35AB.

[iii] Other than Tasmania’s exceptions, which are significantly narrower and, to a lesser extent, Queensland’s and the Northern Territory’s.

[iv] Interestingly, the phrase “other than the grounds of race, impairment or age” is omitted from the exceptions relating to teachers and contract workers – presumably religious schools can discriminate on these attributes then too.

[v] Other related offences include:

79 Possession of material for dissemination with intent to incite racial animosity or racist harassment

80 Possession of material that is likely to incite racial animosity or racist harassment

80A Conduct intended to racially harass

80B Conduct likely to racially harass

80C Possession of material for display with intent to racially harass

80D Possession of material for display that is likely to racially harass

[vi] Sub-section 74(2)(a).

[vii] Section 146 includes a similar delineation.

Victoria’s Births, Deaths and Marriages Registration Amendment Bill 2016

Update: 14 January 2017

 

Unfortunately, this necessary and important legislation was voted down by the Victorian Legislative Council on December 6 2016.

 

As reported by SBS here (‘Gender change voted down in Vic parly’), the Victorian Liberal and National Parties combined with cross-bench conservative MLCs to reject the Births, Deaths and Marriages Registration Amendment Bill 2016.

 

In the process, Victorian Coalition MPs have ensured that the process for transgender people to amend their birth certificates remains onerous, and continues to exclude a large number of trans and gender diverse people completely, especially those who identify as non-binary and gender-fluid.

 

The decision to reject this vital reform was shameful, and will hopefully be remembered by all LGBTI Victorians when they go to the polls next, in November 2018.

 

Original post:

 

The Andrews Labor Government, elected in November 2014, has repeatedly demonstrated its commitment to the rights of lesbian, gay, bisexual, transgender and intersex (LGBTI) Victorians in its first two years in office. This includes:

  • Creating the nation’s first Minister for Equality (Martin Foley)
  • Appointing a Gender and Sexuality Commissioner (Rowena Allen) and establishing an LGBTI Taskforce
  • Legalising adoption by same-sex couples
  • Apologising to people unjustly convicted for historical homosexual offences
  • Committing funds to establish a Pride Centre, and
  • Defending the Safe Schools program from Commonwealth Government attacks.

It is currently pursuing two further important items of law reform. The first of these is the Births, Deaths and Marriages Registration Amendment Bill 2016 (the second, the Equal Opportunity Amendment (Religious Exceptions) Bill 2016, will be the subject of a later post).

As noted by Attorney-General Martin Pakula in the Bill’s second reading speech, “[t]he bill implements the government’s pre-election commitment to remove barriers for trans, gender diverse and intersex Victorians to apply for new birth certificates.”

Specifically, the Births, Deaths and Marriages Registration Amendment Bill 2016 will:

  • Remove the requirement for trans and gender diverse people to undergo gender affirmation surgery in order to alter their official records, including birth certificates
  • Remove the requirement for trans and gender diverse people to be unmarried in order to alter their records (thus ending the policy of ‘forced trans divorce’)
  • Simplify the process for adults to alter their records – with the new system based on a statutory declaration by the individual, supported by a statement from another adult who has known them for more than 12 months
  • Allow children to alter their records for the first time (with the application made by parent(s) or guardian(s), and supported by a statement from a doctor or registered psychologist that the alteration is in the child’s interest), and
  • Allow individuals to nominate a descriptor of their choice – ‘male’, ‘female’ or any other term chosen by the applicant (provided it is not obscene or offensive) – to recognise their trans, gender diverse or non-binary identity.

Writing as a cisgender gay man, these reforms seem very straightforward – allowing trans and gender diverse people to access documentation that reflects their identity, removing inappropriate and unjust barriers (such as the requirement to undergo gender affirmation surgery – something many trans people will never do – and abolishing the horrific practice of forced trans divorce).

The reforms also appear to be widely supported by trans, gender diverse and intersex advocates, with Transgender Victoria’s Chair Brenda Appleton noting that “[t]his is a profoundly important reform for our community, as many of us are currently prevented from changing the most basic form of documentation to reflect our true identity.”[i]

Intersex advocate Gina Wilson also welcomed the changes in the same media release: “[f]or the Victorian Parliament to say ‘we give you here a document that acknowledges the truth of your life’ would be life changing… It is very difficult to explain to someone who has never struggled to fit in the way Intersex people often have to how much joy and relief that would bring.”

Consequently, one would hope such legislation, respecting the autonomy of people to nominate their own gender identity or sex, rather than having one imposed upon them (by the medical profession, and ultimately by the Government), would be uncontroversial.

Alas, those hopes were forlorn. The Bill has been opposed by the ‘unholy’ triumvirate of contemporary Australian politics: the right-wing of the Coalition, the Australian Christian Lobby, and News Corp (in this case, via the Herald Sun).

The Bill has already been debated, and voted on, in the Legislative Assembly, where it only passed by a margin of 45 votes to 35. The debate leading up to this vote saw a number of ill-informed and, frankly, intolerant, contributions by some members of the Liberal and National Parties, perhaps none ‘less-informed’ than that by the Member for Ripon, Louise Staley. Her speech included the following ignorant observations:

“I oppose this bill. This bill goes too far. This government is in thrall to highly contested gender theories. This is the sort of post-modernist mumbo jumbo we have come to expect from the Andrews Labor Government…

“I ask the house to reflect on what we are doing when we allow a man – and the statistics show most transgender people are born male – who has male chromosomes and who naturally has the right to enjoy the privileges we as a society still give to men, such as earning more and dominating business and politics, to choose to be recognised by the state as a woman because he feels like a sex he biologically is not and cannot by definition actually ever experience. I cannot help feel that such men are engaged in a radical form of mansplaining, telling women what really makes one a woman…

“The feminist in me objects strongly to a man changing his birth certificate to female because he feels enough of a woman to identify as one but not enough to take the step of permanently doing so…

“There are also women-only spaces, services, shelters et cetera that explicitly exclude men for feminist or safety reasons. Allowing preoperative transgender people to join these bodies – especially, I may add, to make political points or to pursue activism – will at some point cause great distress to all involved.”

Many of the worst aspects of transphobia – deliberately misgendering trans people, invalidating non-binary identities, creating panic about trans women accessing women’s spaces – are present and accounted for in Ms Staley’s offensive and outrageous speech. If you want to read the full catastrophe, you can find it here (but make sure you don’t eat immediately beforehand).

160930-louise-staley

Transphobic Victorian Liberal MLA Louise Staley

Of course, right-wing Liberal and National Party MPs are not the only ones capable of extreme transphobia. As expected, Lyle Shelton and the Australian Christian Lobby have lived down to their already-low public reputation by inciting bathroom panic as part of their campaign against the Bill. In a web post titled “Why is This Government Putting Women at Risk?”[ii] (yes, seriously), they wrote:

“Australian Christian Lobby Managing Director Lyle Shelton said radical changes that would allow men identifying as women to enter women’s private spaces such as toilets and change rooms needed wider discussion…

“Mr Shelton said Mr Andrews [sic] new laws would make private space unsafe for women. “Why should a man identifying as a woman be allowed into a woman’s gym or a domestic violence shelter? Why should biological males identifying as women be allowed into women’s public toilets and shower facilities?””

It seems the ACL is intent on importing the worst kind of hate-speech from its international counterparts, and especially from anti-LGBTI groups in the United States, whipping up fear against trans women and vilifying people on the basis of their gender identity[iii].

And of course, where right-wing Liberals and Nationals and the ACL ‘lead’ (into the gutter), News Corp papers usually follow – with the Herald Sun backing the transphobic campaign against what should, on its merits, be uncontentious legislation.

In an appalling article titled “Laws allowing Victorians to choose sex on birth certificate raise safety concerns,”[iv] Rita Panahi wrote:

“New laws allowing Victorians to choose their sex on a birth certificate will compromise the safety of female-only spaces, including single-sex schools  changing rooms, domestic violence shelters and even prisons, according to a women’s rights group…

“The proposed changes, which passed the Lower House earlier this month, could see boys and men identifying as female – but with no intention of undergoing gender reassignment or clinical treatment – being allowed access to areas reserved for girls and women.”

Umm, Rita, that would be because they are girls and women, and therefore have the right to access ‘areas reserved for girls and women’. And, just like Ms Staley and Mr Shelton before you, you should already be aware that deliberating misgendering trans people in this way is extremely offensive.

The Bill that has prompted this backlash is expected to be debated in the Legislative Council in the week beginning Tuesday 11 October. Given that the ALP does not have a majority in the Upper House (even with the addition of Greens and Sex Party MLCs), and the ongoing scare campaign against its provisions, it is now uncertain whether the Births, Deaths and Marriages Registration Amendment Bill 2016 will in fact be passed.

As a result, I have sent the below short email to all Members of the Victorian Legislative Council, calling on them to support the Bill. If you have time between now and October 10th, I encourage you to do the same. You can find the contact list for MLCs here.

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Friday 30 September 2016

Dear Member of the Victorian Legislative Assembly

Please Support the Births, Deaths and Marriages Registration Amendment Bill 2016

I am writing to you to urge you to support the Births, Deaths and Marriages Registration Amendment Bill 2016 when it is debated and voted upon in October.

This legislation is important because it will remove the barriers that exist for trans, gender diverse and intersex people in terms of accessing new birth certificates.

Specifically, I understand that the Bill will:

  • Remove the requirement for trans and gender diverse people to undergo gender affirmation surgery in order to alter their official records, including birth certificates
  • Remove the requirement for trans and gender diverse people to be unmarried in order to alter their records (thus ending the policy of ‘forced trans divorce’)
  • Simplify the process for adults to alter their records – with the new system based on a statutory declaration by the individual, supported by a statement from another adult who has known them for more than 12 months
  • Allow children to alter their records for the first time (with the application made by parent(s) or guardian(s), and supported by a statement from a doctor or registered psychologist that the alteration is in the child’s interest), and
  • Allow individuals to nominate a descriptor of their choice – ‘male’, ‘female’ or any other term chosen by the applicant (provided it is not obscene or offensive) – to recognise their trans, gender diverse or non-binary identity.

These appear to be straightforward reforms that respect the autonomy of people to nominate their own gender identity or sex, rather than having one imposed upon them by clinicians or the Government. I note they are also supported by trans, gender diverse and intersex advocates.

As highlighted by Jo Hirst, these reforms “won’t mean much to most Victorians, but to an estimated 4 per cent of the population it means everything. It’s certainly significant for my little boy, who’s transgender. He recently told me it would mean more to him than food.”[v]

Hirst then further observes that “[t]o have their birth certificate reflect their true identity would empower young transgender people to fully participate in all the educational, social, sporting and job opportunities our society has to offer. Most importantly it would give them a sense of validation that would help them feel whole.”

I therefore call on you to support the Births, Deaths and Marriages Registration Amendment Bill 2016 to better recognise the human rights of trans, gender diverse and intersex Victorians, by simplifying the process by which they can ensure official records reflect their gender identity or sex.

If you have any questions or would like additional information, please contact me at the details provided below.

Sincerely,

Alastair Lawrie

**********

Footnotes:

[i] Media Release, Birth certificate reforms will deliver respect and recognition for trans, gender diverse and intersex Victorians, 12 September 2016.

[ii] Australian Christian Lobby, Why is this Government Putting Women at Risk?, 29 August 2016.

[iii] Noting of course that anti-LGBTI vilification is not prohibited currently under either Victorian or Commonwealth law.

[iv] Herald Sun, Laws allowing Victorians to choose sex on birth certificate raise safety concerns, 27 September 2016.

[v] Sydney Morning Herald, Surgical sterilisation shouldn’t be the cost of correcting a transgender person’s birth certificate, 15 September 2016.

Letter to Paul Lynch re LGBTI Anti-Vilification Reform

In June, NSW Shadow Attorney-General Mr Paul Lynch MP introduced the Crimes and Anti-Discrimination Legislation Amendment (Vilification) Bill 2016. Details of the Bill can be found here.

 

In short, the legislation seeks to implement the recommendations of the Legislative Council Standing Committee on Law and Justice’s 2013 Inquiry into Racial Vilification Law in NSW.

 

Importantly, in doing so the Bill ignores the Report’s (implicit) approach to treat racial vilification differently from the other forms of vilification currently prohibited by the Anti-Discrimination 1977: namely homosexual, transgender and HIV/AIDS vilification.

 

Just as importantly, however, the Bill fails to update the definitions of these grounds, and also fails to extend anti-vilification coverage to bisexual and intersex people in NSW.

 

The following is my letter to the Shadow Attorney-General about his Bill, sent before the return of State Parliament next week (Tuesday 2 August 2016).

 

**********

 

Mr Paul Lynch MP

Shadow Attorney-General

100 Moore St

Liverpool NSW 2170

liverpool@parliament.nsw.gov.au

 

24 July 2016

 

 

Dear Mr Lynch

 

LGBTI Anti-Vilification Reform

 

I am writing to you about your Crimes and Anti-Discrimination Legislation Amendment (Vilification) Bill 2016 (‘the Bill’), currently before NSW Parliament.

 

Specifically, I am writing to congratulate you on what is included in the Bill, while also encouraging you to amend the Bill to address other inadequacies within the NSW anti-vilification framework.

 

First, to the positives. I welcome the fact that the Bill removes one of the more bizarre and, in my opinion, completely unjustifiable aspects of the NSW Anti-Discrimination Act 1977 (‘the Act’) – that the penalties for the offences of serious racial and HIV/AIDS vilification are different to, and slightly higher than, the penalties for the offences of serious homosexual and transgender vilification.

 

By consolidating these offences in one place – the proposed new section 91N of the NSW Crimes Act 1900 – your Bill would ensure there is no difference in severity in how these offences are treated by the Government, and therefore avoids sending the signal that some forms of vilification are worse than others.

 

I also welcome the fact you have avoided one of the key pitfalls of the Legislative Council Standing Committee on Law and Justice’s Inquiry into Racial Vilification Law in NSW, which, given it exclusively focused on racial vilification, only suggested changes to the laws surrounding one of the four existing attributes that attract anti-vilification protection.

 

Were these recommendations to be implemented in their entirety (and no other changes made), it would exacerbate, rather than remove, the inequality in treatment between serious racial vilification and the three other current grounds (homosexual, transgender and HIV/AIDS vilification).

 

I further support the substantive amendments proposed in your Bill, including:

 

  • Removing the requirement for the Attorney-General to give consent to prosecution for any vilification offence
  • Extending the time within which prosecutions for vilification offences must be commenced from 6 months to 12 months (addressing a flaw in the current Act highlighted by the case of Simon Margan v Director of Public Prosecutions & Anor [2-13] NSWSC 44)
  • Adopting the recommendation of the Law and Justice Standing Committee report that recklessness is sufficient to establish intention to vilify
  • Clarifying which public acts constitute unlawful vilification
  • Providing that vilification applies whether or not the person or members of the group vilified have the characteristic that was the ground for the promotion of hatred, contempt or ridicule concerned, and
  • Ensuring that the President of the Anti-Discrimination Board refers vilification complaints to the Commissioner of Police where the President considers that the offence of serious racial, transgender, homosexual or HIV/AIDS vilification may have been committed.

 

In terms of the proposal to replace ‘incitement’ with ‘promotion’ within the definition of vilification itself, while I have not had the opportunity to examine this amendment in great depth, on a prima facie basis it appears reasonable.

 

Finally, I agree with your decision to relocate the offence of serious vilification to the Crimes Act 1900, for the reasons outlined in your Second Reading Speech:

 

“Certainly, the legal effect of a provision should be the same whether it is located in the Crimes Act or in the Anti-Discrimination Act. However, there is significant symbolism in the provision being located in the Crimes Act in the new section 91N. And symbolism, as everyone in this Chamber knows, is important.”

 

Now, I will turn my attention to the shortcomings of the Bill and, unfortunately, in my opinion they are significant.

 

Specifically, while what the Bill includes is to be welcomed, it is flawed because of what it excludes. It fails to address one of the main problems of the Anti-Discrimination Act 1977, which is that it only protects some parts of the lesbian, gay, bisexual, transgender and intersex (LGBTI) community, and not others.

 

As I have detailed elsewhere (see “What’s wrong with the NSW Anti-Discrimination Act 1977?”), the out-dated terminology used in the Act means that only lesbian, gay and transgender people are protected (and even then not all transgender people are covered).

 

Meanwhile, there is still no anti-vilification protection for bisexual people, or for intersex people, in NSW (with the absence of Commonwealth LGBTI anti-vilification laws only compounding this problem).

 

In my view, the limited coverage offered by the NSW anti-vilification framework is an even greater problem than those issues identified by the Standing Committee on Law and Justice’s Inquiry into Racial Vilification Law.

 

As such, I believe this issue should be addressed before, or at least simultaneously to, those provisions contained in your Bill. Otherwise, the differential treatment of groups within the LGBTI community would only become further entrenched.

 

For these reasons, I strongly encourage you to consider amending your Bill to ensure that all sections of the LGBTI community are protected against vilification. To achieve this, you may wish to incorporate the definitions included in the historic Commonwealth Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013.

 

This would involve:

 

  • Replacing the current protected attribute of homosexual with ‘sexual orientation’ (and which would therefore cover bisexual people)
  • Amending the protected attribute of transgender to the more inclusive term ‘gender identity’, and
  • Introducing the new protected attribute of ‘intersex status’.

 

If you are interested in pursuing these changes then I also encourage you to consult with the LGBTI community, and its representative organisations, beforehand (to ensure that any consequential difficulties are avoided).

 

To conclude, and despite the issues described above, I genuinely welcome the provisions contained in the Crimes and Anti-Discrimination Legislation Amendment (Vilification) Bill 2016. However, by extending the scope of vilification offences to protect bisexual and intersex people, I sincerely believe you would significantly improve your legislation.

 

Thank you for your consideration of this letter. I am of course happy to discuss any of the issues raised at the contact details provided below.

 

Sincerely,

Alastair Lawrie

 

print.jpg

NSW Shadow Attorney-General Paul Lynch

 

What’s Wrong With the NSW Anti-Discrimination Act 1977?

This post is part of a series looking at anti-discrimination laws around Australia and examining how well, or how poorly, they protect lesbian, gay, bisexual, transgender and intersex (LGBTI) people against discrimination and vilification.[i]

 

This includes analysing three key issues: protected attributes, religious exceptions and anti-vilification coverage. Unfortunately, as we shall see below, the Anti-Discrimination Act 1977 has serious shortcomings in all of these areas, and NSW has gone from having the first gay anti-discrimination laws in Australia, to having (arguably) the worst.

 

It is clear this legislation is in urgent need of major reform. What is less clear is whether the current NSW Government, and Parliament, is up to the task.

 

Protected Attributes

 

As indicated above, NSW was the first jurisdiction in Australia to introduce anti-discrimination protections for ‘homosexuals’. In fact, it passed these laws in late 1982, 18 months before homosexuality was decriminalised, meaning a gay man could not be discriminated against for who he was (in some areas of public life at least), but could still be convicted for having sexual intercourse in private. The problem is that the protected attributes included in the Anti-Discrimination Act 1977 have not kept pace with community standards in the decades since.

 

There was one positive clarification in 1994 that “homosexual means male or female homosexual”[ii] (to overcome any erroneous assumption that homosexuality only referred to gay men). However, the only significant expansion in the past 35 years was the introduction of transgender as a protected attribute in 1996:

 

Section 38A Interpretation

A reference in this Part to a person being transgender or a transgender person is a reference to a person, whether or not the person is a recognised transgender person[iii]:

(a) who identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex, or

(b) who has identified as a member of the opposite sex by living as a member of the opposite sex, or

(c) who, being of indeterminate sex, identifies as a member of a particular sex by living as a member of that sex,

and includes a reference to the person being thought of as a transgender person, whether the person is, or was, in fact a transgender person.”

 

While this reform was a major step forward, it nevertheless failed to cover all discrimination on the basis of gender identity. This protected attribute focuses only on binary genders – covering people whose sex was designated as male at birth, but now identify as female (and vice versa). It does not cover other people along a more inclusive spectrum, including people who do not identify exclusively as either male or female.

 

Section 38A of the NSW Anti-Discrimination Act 1977 is therefore no longer best practice, and a new, more inclusive definition[iv] should be adopted to ensure all transgender people benefit from anti-discrimination protection.

 

Intersex people are even worse off under the Act. Paragraph (c) of the definition above offers their only protection under NSW law, but it is problematic because:

  • It inappropriately conflates intersex, which relates to physical sex characteristics, with gender identity, and
  • It only appears to protect people with intersex variations where they identify as either male or female.

 

To remedy this situation, a stand-alone protected attribute of ‘sex characteristics’ should be introduced, based on the March 2017 Darlington Statement by intersex activists.[v]

 

There is, however, one section within the LGBTI community that is not included in the entire Anti-Discrimination Act, not even in an out-dated, fundamentally flawed or only partial way. In fact, one of the five letters of the acronym has no anti-discrimination coverage at all: bisexual people.

 

NSW is the only jurisdiction in Australia where its anti-discrimination laws do not cover discrimination on the basis of bisexuality. That is as bizarre as it is offensive.

 

It must be remedied at the earliest possible opportunity by the NSW Parliament, with either the introduction of a new stand-alone protected attribute of ‘bisexual’, or (preferably) by the modernisation of the current protected attribute of ‘homosexual’ to instead refer to ‘sexual orientation’, in line with the Commonwealth Sex Discrimination Act 1984[vi].

 

Summary: The protected attributes contained in the NSW Anti-Discrimination Act 1977 are the narrowest in the country, only offering protection to gay men, lesbians, and some transgender people. It needs to be updated to ensure it covers gender identity and sex characteristics, as well as extending anti-discrimination protection to bisexual people, whose exclusion is a gross oversight that has been allowed to stand for far too long.

 

**********

 

Religious Exceptions

 

In contrast to its narrowly-defined protected attributes, the religious exceptions included in the NSW Anti-Discrimination Act are in fact the broadest in Australia.

 

These loopholes allow religious organisations to discriminate against lesbian, gay and transgender people in a wide variety of circumstances, and are so generous that they substantially, and substantively, undermine the overall purpose of the legislation (which is supposedly “[a]n Act to render unlawful racial, sex and other types of discrimination in certain circumstances and to promote equality of opportunity between all persons”).

 

The main exceptions permitting anti-LG&T discrimination by religious organisations are found in section 56 of the Act:

 

Section 56 Religious bodies

Nothing in this Act affects:

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

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

(c) the appointment of any other person in any capacity by a body established to propagate religion, or

(d) any other 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 religious susceptibilities of the adherents of that religion.”

 

While sub-sections (a) and (b) might appear reasonable, as they are at least related to the internal training and appointment of ministers of religion, sub-sections (c) and especially (d) are outrageous in their breadth, essentially sanctioning discrimination against lesbian, gay and transgender employees and people accessing services in any organisation that is considered ‘religious’, including schools, hospitals and social services.

 

The operation of these provisions, and sub-section 56(d) in particular, in giving effective carte blanche to religious organisations to discriminate on the basis of sexual orientation and gender identity in NSW was confirmed in a 2010 decision of the Court of Appeal[vii], allowing Wesley Mission to discriminate against a male same-sex couple who had applied to be foster carers to children in need.

 

Wesley successfully defended its prejudiced approach on the basis that “[t]he biblical teaching on human sexuality makes it clear that monogamous heterosexual partnership within marriage is both the norm and ideal.”[viii] This was in spite of the fact Wesley allowed single men and women to be carers (apparently they believed two dads or two mums had less to offer than one).

 

The ‘right to discriminate’ provided to religious organisations by section 56 of the NSW Anti-Discrimination Act 1977 is essentially without restriction. And this general ability to exclude lesbian, gay and transgender people in NSW is supplemented by additional loopholes covering specific areas of public life.

 

One of these covers discrimination in adoption services. While the equal right of same-sex couples to adopt was recognised in NSW law in 2010, those very same reforms inserted the following into the Anti-Discrimination Act 1977:

 

Section 59A Adoption services

(1) Nothing in Part 3A [transgender protections] or 4C [homosexual protections] affects any policy or practice of a faith-based organisation concerning the provision of adoption services under the Adoption Act 2000 or anything done to give effect to any such policy or practice.”

 

Which means that a religious organisation that operates an adoption service is legally permitted to deny a child the best possible adoptive parents solely because they might be lesbian, gay or transgender.

 

Perhaps the most (in)famous exceptions in the Act are those that apply to ‘private educational authorities’.[ix] Even though subsection 56(d) already allows religious schools to do whatever they want in relation to lesbian, gay and transgender teachers and students, NSW Parliament added specific clauses to ensure that private educational authorities can:

 

  • Discriminate against transgender employees[x]
  • Discriminate against transgender students, including by refusing their admission, attaching conditions to their admission, denying them benefits as a student, or by expelling them[xi]
  • Discriminate against lesbian and gay employees[xii] and
  • Discriminate against lesbian and gay students, including by refusing their admission, attaching conditions to their admission, denying them benefits as a student, or by expelling them[xiii].

 

Imagine considering it justified to seek special privileges to discriminate against these groups, let alone for State Parliament to condone such discrimination via legislation?

 

Perhaps the most extraordinary part of the ‘private educational authorities’ exceptions is that they aren’t even restricted to religious schools – in fact, the Anti-Discrimination Act 1977 allows all non-government schools and colleges, even where they have absolutely nothing to do with religion, to refuse to employ lesbian, gay and transgender people, and exclude or expel LG&T students.

 

Summary: The religious exceptions contained in the NSW Anti-Discrimination Act 1977 are the broadest in Australia, and fundamentally undermine the integrity of a framework which is supposed to address discrimination on the basis of sexual orientation and gender identity. Subsections 56(c) and (d) should be repealed, as well as the more specific exceptions offered to religious organisations in relation to adoption services, and those allowing private educational authorities to discriminate against lesbian, gay and transgender employees and students.

 

**********

 

Anti-Vilification Coverage

 

There is one area where anti-discrimination law in NSW has improved recently, and that is anti-vilification coverage, with the passage of the Crimes Amendment (Publicly Threatening and Inciting Violence) Act 2018.

 

However, because this was a piecemeal change, rather than part of a comprehensive reform package, it means NSW is left with a two-tier, fundamentally inconsistent anti-vilification regime.

 

On one hand, the civil prohibitions against vilification contained in the Anti-Discrimination Act 1977 only apply to homosexuality [xiv] and (narrowly-defined) transgender [xv] .

 

This means that bisexuals, non-binary trans people and people with intersex variations are not able to make complaints of vilification to the Anti-Discrimination Board.

 

On the other hand, the new Crimes Act 1900 offence of ‘publicly threatening or inciting violence’ in section 93Z applies to all of:

  • Sexual orientation
  • Gender identity and
  • Intersex status.

 

All three are defined in section 93Z(5) [xvi] using the broadly-inclusive definitions of the Commonwealth Sex Discrimination Act 1984, and mean that bisexuals, non-binary trans people and people with intersex variations are protected in NSW anti-discrimination laws for the first time (although note that, once again, intersex advocates have called for intersex status to be replaced by the protected attribute of sex characteristics). [xvii]

 

The penalty for this offence is also relatively high: up to three years imprisonment for individuals, and up to 500 penalty units for corporations.

 

Summary: This year’s anti-vilification reforms are welcome, both for bringing anti-LGBTI vilification provisions into closer alignment with other forms of vilification, and also for including bisexual, non-binary trans and intersex people for the first time. However, if anything, these changes have underscored just how out of date the other anti-vilification provisions of the Anti-Discrimination Act itself are, given it still covers only lesbian, gay and some trans people. This remains an area in desperate need of reform.

 

**********

 

Other Issues

 

While the ‘What’s Wrong With’ series concentrates on the three main areas of protected attributes, religious exceptions and anti-vilification coverage, I will also raise other issues relating to LGBTI anti-discrimination laws where they are significant.

 

In the case of the NSW Anti-Discrimination Act 1977, these include:

 

  • An incredibly broad exception allowing “the exclusion of a transgender person from participation in any sporting activity for members of the sex with which the transgender person identifies”[xviii]
  • An inappropriate exception allowing superannuation funds to “treat… the transgender person as being of the opposite sex to the sex with which the transgender person identifies”[xix] and
  • Perhaps most alarmingly, exceptions which allow employers to discriminate against lesbian, gay and transgender applicants and employees “if the number of persons employed by the employer… does not exceed 5”[xx].

 

In fact, a similar exception also permits discrimination in relation to the ground of sex[xxi] – but no such limitation applies to race[xxii].  Which means that the NSW Parliament has effectively determined that racial discrimination cannot be tolerated in employment in any circumstances – but discrimination against lesbians, gay men, transgender people and even women is acceptable in some circumstances. That message is unconscionable, and these provisions must be made uniform (by abolishing the exceptions applying to homosexual, transgender and sex discrimination in employment).

 

**********

 

In conclusion, it is clear that, while NSW once had the first gay anti-discrimination laws in Australia, it now has (arguably) the nation’s worst LGBTI laws – with significant problems in terms of protected attributes and religious exceptions, and serious shortcomings where it does have anti-vilification coverage. These and other issues must be addressed by the Government, and Parliament more broadly, as a matter of priority.

 

NSW ADA homosexuality 1982

NSW was the first Australian jurisdiction to introduce anti-discrimination laws covering any part of the LGBTI community – but 36 years later still doesn’t protect bisexual or intersex people.

 

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

 

Footnotes:

[i] The other posts in the series can be found here: LGBTI Anti-Discrimination / #NoHomophobiaNoExceptions

[ii] Section 4 Definitions.

[iii] From section 4: “recognised transgender person means a person the record of whose sex is altered under Part 5A of the Births, Deaths and Marriages Registration Act 1995 or under the corresponding provisions of a law of another Australian jurisdiction.”

[iv] Potentially modelled on the definition adopted by the Commonwealth Sex Discrimination Act 1984: “gender identity means the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth” [Although obviously exact wording should be agreed with NSW’s transgender community.]

[v] OII Australia, and other intersex activists from Australia and Aotearoa/New Zealand, issued the Darlington Statement as a call for wide-ranging law and policy reforms, including ‘for effective legislative protection from discrimination and harmful practices on grounds of sex characteristics’ (paragraph 9, here).

This terminology (‘sex characteristics’) is intended to replace the previous protected attribute of ‘intersex status’, as included in section 4 of the Sex Discrimination Act 1984, and defined as: “intersex status means the status of having physical, hormonal or genetic features that are:

(a) neither wholly female nor wholly male; or

(b) a combination of female and male; or

(c) neither female nor male.”

[vi] Section 4 of the Sex Discrimination Act 1984 states ““sexual orientation” means a person’s sexual orientation towards:

(a) persons of the same sex; or

(b) persons of a different sex; or

(c) persons of the same sex and persons of a different sex.”

[vii] OV & OW v Members of the Board of the Wesley Council [2010] NSWCA 155 (6 July 2010).

[viii] OW & OV v Members of the Board of the Wesley Mission Council [2010] NSWADT 293 (10 December 2010).

[ix] Defined in section 4 as “private educational authority means a person or body administering a school, college, university or other institution at which education or training is provided, not being:

(a) a school, college, university or other institution established under the Education Reform Act 1990 (by the Minister administering that Act), the Technical and Further Education Commission Act 1990 or an Act of incorporation of a university, or

(b) an agricultural college administered by the Minister for Agriculture.”

[x] Section 38C prohibits discrimination against transgender applicants and employees, but subsection (3)(c) clarifies that this prohibition does not apply to discrimination by private educational authorities.

[xi]Section 38K Education

(1) It is unlawful for an educational authority to discriminate against a person on transgender grounds:

(a) by refusing or failing to accept the person’s application for admission as a student, or

(b) in the terms on which it is prepared to admit the person as a student.

(2) It is unlawful for an educational authority to discriminate against a student on transgender grounds:

(a) by denying the student access, or limiting the student’s access, to any benefit provided by the educational authority, or

(b) by expelling the student or subjecting the student to any other detriment.

(3) Nothing in this section applies to or in respect of a private educational authority.”

[xii] Section 49ZH prohibits discrimination against lesbian and gay applicants and employees, but, just like for transgender people, subsection (3)(c) clarifies that this prohibition does not apply to discrimination by private educational authorities.

[xiii]Section 49ZO Education

(1) It is unlawful for an educational authority to discriminate against a person on the ground of homosexuality:

(a) by refusing or failing to accept the person’s application for admission as a student, or

(b) in the terms on which it is prepared to admit the person as a student.

(2) It is unlawful for an educational authority to discriminate against a student on the ground of homosexuality:

(a) by denying the student access, or limiting the student’s access, to any benefit provided by the educational authority, or

(b) by expelling the student or subjecting the student to any other detriment.

(3) Nothing in this section applies to or in respect of a private educational authority.”

[xiv] Section 49ZT

[xv] Section 39S

[xvi] Gender identity means the gender related identity, appearances 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.

Intersex status means the status of having physical, hormonal or genetic features that are:

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

Sexual orientation means a person’s orientation towards:

  • persons of the same sex, or
  • persons of a different sex, or
  • persons of the same sex and persons of a different sex.

[xvii] Interestingly, it also means heterosexual people are covered by the publicly threatening or inciting violence offence in the Crimes Act 1900, although they still don’t have any coverage under the Anti-Discrimination Act 1977 itself (for discrimination, or civil complaints of vilification).

[xviii] Section 38P. It is hoped that, given the work in recent years by transgender groups, the Australian Human Rights Commission and Australian sporting organisations, these provisions could be amended if not repealed entirely in future years.

[xix] Section 38Q.

[xx] Included in both sub-sections 38C(3)(b) and 49ZO(3)(b).

[xxi] Section 25(3)(b).

[xxii] Section 8, which covers Discrimination against applicants and employees on the ground of race, does not include any exception based on the number of employees that an employer has.

Will NSW Reforms Prioritise Racial Vilification at the Expense of LGBTI Vilification?

Post Update #3: 12 January 2017

Contrary to the response received from the Department of Justice in November 2015 (included below), and commitments given by Attorney-General Gabrielle Upton in October 2015, the NSW Government did not release an Exposure Draft Bill to reform vilification laws in early 2016.

In fact, as noted by the Sydney Morning Herald in November 2016: “NSW Parliament has risen for the year without any action on reforms promised by the NSW Attorney-General to ethnic communities a year ago to make it easier to prosecute serious racial vilification cases in the state.”

That means there has been an entire year of inaction on much-needed reforms to vilification laws, that would have not only strengthened racial vilification laws, but also harmonised provisions across the different grounds for vilification (including homosexual, transgender and HIV/AIDS vilification).

This inaction is incredibly disappointing given that same 12-month period has seen a wide range of homophobic and transphobic public debate in NSW, and across Australia (see 2016: Annus Homophobicus). Hopefully 2017 will see this situation change – although, based on the past year, I certainly won’t be holding my breath.

 

Post Update #2: 23 December 2015

I received the following response to my letter (below) on 19 November 2015, not from the Attorney-General Ms Upton, but instead from the Director of the Community Relations Unit in the Department of Justice [and apologies for the delay in posting before now]:

“I refer to your email to the Attorney General, the Hon Gabrielle Upton MP, about your concerns regarding a review of the NSW racial vilification laws. The Attorney General has asked me to reply on her behalf.

NSW is one of the most culturally, linguistically and religiously diverse
communities in the world. To protect the diversity of our community, the
Government has committed to amending the Anti-Discrimination Act 1977 (the Act), in particular the racial vilification laws.

Currently, the vilification offences make it clear that for vilification to
be an offence it must threaten violence or incite others to threaten
violence.

As you are aware, the New South Wales Legislative Council’s Law and Justice Committee conducted a review of racial vilification laws in New South Wales, in particular section 20D of the Act.

Section 20D of the Act makes it a criminal offence to incite hatred
towards, serious contempt for, or severe ridicule of, a person or group of
persons on the grounds of race by means which include; threatening physical harm towards, or towards any property of, the person or group of persons, or inciting others to threaten physical harm towards, or towards any property of, the person or group of persons.

In its Report, the Committee concluded that improvements were required to the Act. These improvements include allowing the President of the
Anti-Discrimination Board to refer complaints directly to the NSW Police,
extending the time limit for commencing prosecutions from six months to 12 months and clarifying reckless actions are sufficient to establish an
intention to incite under section 20D.

In light of the Committee’s Report, the NSW Government considers the racial vilification offence and other vilification offences relating to
homosexuality, HIV/AIDS status and transgender status in the Act also need revising.

The Government intends to release for public consultation an exposure draft Bill amending the State’s vilification laws, with legislation to be
introduced into Parliament in the first half of 2016. Details regarding the
draft exposure Bill will be released in early 2016.

Thank you for taking the time to write about this issue.

Yours faithfully

Director
Community Relations Unit
NSW Department of Justice”

 

Post Update #1: 1 November 2015

The NSW Attorney-General, the Hon Gabrielle Upton MP, announced the NSW Government’s position of vilification reforms on Monday 19 October 2015.

According to the Sydney Morning Herald[i]:

“The government will overhaul hate speech laws in NSW following the terror attack at Parramatta police headquarters and calls from the opposition for stronger laws to clamp down on ‘radical preachers’.

Attorney-General Gabrielle Upton said the government will strengthen and streamline racial vilification laws, defying right-wing commentators who have previously said proposed reforms were ‘straight out of the Leninist playbook.’

Ms Upton said recent events had ‘reinforced the necessarily of being vigilant to and guarding against the spread of racial vilification’.”

Importantly, the Guardian[ii] also reported that “LGBTIQ groups have been lobbying for hate speech against members of their communities to be included in any new laws and it is understood the proposed changes would include them” although it did not provide any further information on this issue.

I sought clarification through twitter from the Attorney-General on the inclusion, or exclusion, of LGBTI vilification in the reforms, and received the following reply:

IMG_0640

This response obviously gives hope that vilification provisions contained in the Anti-Discrimination Act 1977 may finally be amended to be genuinely LGBTI inclusive, although it will be important to closely scrutinise the Government’s exposure draft Bill, which is expected to be released for public consultation in January 2016.

One final cause for optimism – on the day before Attorney-General Upton’s announcement, the Leader of the NSW Opposition, Luke Foley, made a similar commitment on vilification reform. As reported by samesame[iii]:

“The Labor opposition in New South Wales wants to ensure people who promote or advocate violence based on race, gender or sexual orientation are punished under the law.”

All we need to do now is hold both the Liberal-National Government, and Labor Opposition, to their public commitments.

[i] “Hate speech overhaul to try to spread of racial vilification”, Sydney Morning Herald, 19 October 2015: http://www.smh.com.au/nsw/hate-speech-overhaul–to-try-to-stop-spread-of-racial-vilification-20151018-gkbukb.html

[ii] “New South Wales hate speech laws to clamp down on ‘violent extremists’”, The Guardian, 19 October 2015: http://www.theguardian.com/australia-news/2015/oct/19/new-south-wales-hate-speech-laws-to-clamp-down-on-violent-extremists

[iii] “NSW Opposition: ‘Hate speech should be a crime’”, samesame, 19 October 2015: http://www.samesame.com.au/news/12884/NSW-opposition-Hate-speech-should-be-a-crime

 

Original Post: 16 October 2015

The Hon Gabrielle Upton MP

Attorney-General

GPO Box 5341

Sydney NSW 2001

office@upton.minister.nsw.gov.au

Friday 16 October 2015

Dear Attorney-General

REFORMS TO NSW ANTI-VILIFICATION LAWS

I am writing to you on the subject of possible changes to anti-vilification laws in the Anti-Discrimination Act 1977(‘the Act’), as flagged by you in two tweets on 18 September 2015[i], and as confirmed in an article which appeared in The Australian on 23 September 2015, in which your spokesperson “said the NSW government was ‘working towards reform’ in the area”.[ii]

Specifically, I am writing to seek your assurance that any reforms to anti-vilification laws will apply equally across all grounds of vilification, including homosexual, transgender and HIV vilification which are also included in the Act, and will not prioritise racial vilification as more important, or worthy of punishment, than vilification on the basis of other attributes.

Instead, I urge you and the Liberal-National Government to ensure that anti-vilification laws apply fairly both to members of NSW’s ethnic communities, and to the state’s lesbian, gay, bisexual, transgender and intersex (LGBTI) community.

To begin with, I note that currently the provisions of the Anti-Discrimination Act only protect lesbian, gay[iii] and transgender[iv] members of the LGBTI community. There is no legal protection for bisexual and intersex people against vilification on the basis of who they are (or against discrimination more broadly, for that matter).

If reforms are to be made to anti-vilification laws in NSW, then the specific inclusion of bisexual and intersex people in the Act must be a priority.

Even more concerningly, I note that there is a discrepancy in the penalties for vilification which are contained in the Act, depending on the attribute which is involved.

For example, while the maximum penalty for homosexual and transgender vilification by an individual is set at “10 penalty units or imprisonment for 6 months, or both”[v], the penalty for racial or HIV vilification by an individual is set at “50 penalty units or imprisonment for 6 months, or both.”[vi]

Given the vast majority of prosecutions for vilification offences in NSW are unlikely to result in imprisonment, the consequence of this discrepancy is to send the message to the community, whether intentionally or otherwise, that racial and HIV vilification is five times more important, or worthy of punishment, than homosexual or transgender vilification.

I find this message to be inherently offensive – that equivalent acts of vilification should attract differing penalties simply because it involved sexual orientation or gender identity rather than race. I sincerely hope that you agree – and that you will therefore commit to harmonising the penalties for vilification contained in the Act.

However, I am concerned that, rather than ameliorating existing problems, the reforms to NSW’s anti-vilification laws which you have indicated you are considering will instead compound the differential treatment of racial vilification compared to homosexual or transgender vilification.

That is because these reforms appear to be based primarily on the recommendations of the 2013 Legislative Council Standing Committee on Law and Justice Inquiry into Racial Vilification Law in New South Wales.[vii]

This Inquiry made a number of recommendations to amend racial vilification laws, including to:

  • Include “quasi-public places, such as the lobby of a strata or company title apartment block” (Recommendation 1)
  • Clarify that “recklessness is sufficient to establish intention to incite” (Recommendation 3)
  • “[R]eview the adequacy of the maximum penalty units in section 20D of the Anti-Discrimination Act 1977, taking into account the maximum penalty units for comparable offences within the Crimes Act 1900 and other Australian jurisdictions” (Recommendation 6)
  • “[R]epeal the requirement for the Attorney-General’s consent to prosecutions of serious racial vilification” (Recommendation 7)
  • Extend the time limits for commencing prosecutions for racial vilification offences to 12 months, or alternatively to extend the timeframe for the President of the Anti-Discrimination Board to refer complaints to the Attorney-General (Recommendations 9, 10)
  • “[A]llow the President of the Anti-Discrimination Board of NSW to directly refer serious racial vilification complaints to the NSW Police Force” (Recommendation 11) and
  • Provide training to NSW Police Force members about the offence of serious racial vilification (Recommendation 14).[viii]

It is arguable that the inquiry itself was flawed from the beginning given it focused on only one out of the four existing grounds of vilification in the Act.

However, what is beyond doubt is that, were you to adopt the recommendations of this Inquiry as a whole, but only with respect to racial vilification, you and the Liberal-National Government would in effect be creating a discriminatory ‘hierarchy’ of vilification laws and procedures in NSW law.

The offences of racial and homosexual vilification are drafted in exactly the same way – the only difference being substitution of the word homosexuality for race.[ix]

In which case, there cannot be any justification for the introduction and passage of laws which would mean that only racial vilification applies in quasi-public places, or includes recklessness, or attracts higher penalties, or does not need Attorney-General approval to commence proceedings, or has longer timeframes for prosecution, or can be directly referred to Police, or for which NSW Police Force members are specifically trained.

Therefore, the implementation of these reforms, if applied exclusively to racial vilification, would be both discriminatory and unjustifiable.

However, what would make them repugnant is the fact that the Standing Committee on Law and Justice’s own rationale for at least one of its recommendations – to extend the time limits for commencing prosecution of vilification offences to 12 months – is in fact based on a case of alleged homosexual vilification. As discussed in Chapter 6 of the Committee Report:

“6.20 The Board referred to a recent case involving homosexual vilification, Simon Margan v Director of Public Prosecutions & Anor [2013] NSWSC 44, which illustrated the potential issues surrounding the timeframe for lodging vilification complaints. In that case, Mr Margan lodged a complaint with the Anti-Discrimination Board of NSW within the 12 month timeframe required under s89B of the Anti-Discrimination Act. However the Director of Prosecutions (DPP), and later the Supreme Court, dismissed the offence as statute barred as it was a summary offence and proceedings were required to be commenced within six months.

Committee comment

6.21 The Committee understands that there is a significant discrepancy between the timeframes for lodging complaints under s89B of the Anti-Discrimination Act (12 months of an incident occurring) and s179 of the Criminal Procedure Act 1986 (summary offences must commence within six months of an incident occurring). The case of Simon Margan v Director of Public Prosecutions & Anor highlighted the injurious impact that this discrepancy can have on vilification complaints.

6.22 It appears sensible to align the above timeframes. Therefore the Committee recommends that the NSW Government extend the time limit for prosecutions under section 179 of the Criminal Procedure Act to 12 months to be consistent with the time limit for lodging complaints under section 89B of the Anti-Discrimination Act.”[x]

And yet, despite noting the ‘injurious impact’ of the discrepancies in time limits on Mr Margan, whose complaint was based on homosexual vilification, the Committee’s recommendation was explicitly restricted to racial vilification:

Recommendation 9

That, for the purposes of racial vilification proceedings only [emphasis added], the NSW Government extend the time limit for commencing prosecutions under section 79 of the Criminal Procedure Act 1986 to 12 months to be consistent with the time limit for lodging complaints under section 89B of the Anti-Discrimination Act 1977.”[xi]

If you and the Liberal-National Government were to implement Recommendation 9 as it stands then you would only be adding insult to injury.

For all of the reasons outlined above, I urge you to ensure that any reforms which you make to the anti-vilification laws contained in the Anti-Discrimination Act treat vilification equally across all grounds, and do not unjustifiably, and above all unjustly, prioritise racial vilification offences and discriminate against homosexual, transgender and HIV vilification protections.

Finally, if you are serious about modernising the vilification provisions contained in the Act you should also expand the grounds covered to offer vilification protection to bisexual and intersex people for the first time (and indeed to provide them with anti-discrimination coverage too), and to remove the existing discrepancies in penalties between racial and HIV vilification offences on the one hand, and homosexual and transgender vilification offences on the other.

Thank you in advance for taking my correspondence into consideration. Should you require additional information, or wish to clarify any of the above comments, please do not hesitate to contact me at the details provided below.

Sincerely

Alastair Lawrie

NSW Attorney-General the Hon Gabrielle Upton MP

NSW Attorney-General the Hon Gabrielle Upton MP

[i] Gabrielle Upton MP (@gabrielleupton), 8:55am – 18 Sep 2015: “.@shumba60 Racial vilification abhorrent. NSW Govt considering proposed changes to streamline/strengthen race hate laws @mikebairdMP #nswpol”

Gabrielle Upton MP (gabrielleupton), 3:39pm – 18 Sep 2015: “.@VicAlhadeff #NSWGovt wants inclusive, diverse comm. Considering changes to streamline/strengthen race hate laws @NSWJBD @ajnnews #nswpol”

[ii] “Taunts to Trigger Race-Hate Law Overhaul”, The Australian, September 23 2015: http://www.theaustralian.com.au/national-affairs/state-politics/taunts-to-trigger-race-hate-law-overhaul/story-e6frgczx-1227539272920?sv=64dde3a02ebcfb4c634183c907bbeacf

[iii] Sub-section 49ZT(1) Homosexual vilification unlawful “It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group.”

[iv] Sub-section 38S(1) Transgender vilification unlawful “It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of: (a) a person on the ground that the person is a transgender person, or (b) a group of persons on the ground that the members of the group are transgender persons.”

[v] S49ZTA(1)(b), s38T(1)(b)

[vi] S20D(1)(b), s49ZXC(1)(b)

[vii] “Racial Vilification Law in New South Wales – Final Report”, 3 December 2013: https://www.parliament.nsw.gov.au/prod/parlment/committee.nsf/0/E08D4387100A3C56CA257C35007FCC4D?open&refnavid=x

[viii] Ibid, pp xii-xiii.

[ix] S20D Offence of serious racial vilification (1) A person shall 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 the race of the person or members of the group by means which include: (a) threatening physical harm towards, or towards any property of, the person or group of persons, or (b) inciting others to threaten physical harm towards, or towards any property of, the person or group of persons.”

S49ZTA Offence of serious homosexual vilification (1) A person shall 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 the homosexuality of the person or members of the group by means which include: (a) threatening physical harm towards, or towards any property of, the person or group of persons, or (b) inciting others to threaten physical harm towards, or towards any property of, the person or group of persons.”

[x] “Racial Vilification Law in New South Wales – Final Report”, 3 December 2013, pp84-85.

[xi] Ibid, p85.

Why we need a full-time LGBTI Commissioner at the Australian Human Rights Commission

As I have written previously, the passage of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 was a major achievement for lesbian, gay, bisexual, transgender and intersex (LGBTI) rights in Australia[1].

It provided anti-discrimination protections for LGBTI people under Commonwealth law for the first time – including historic world-first specific protections for people with intersex variations.

However, one thing this legislation did not do was establish a statutory position for a Commissioner for Sexual Orientation, Gender Identity and Intersex (SOGII) Issues within the Australian Human Rights Commission (AHRC) – unlike existing positions for race and sex (indeed, the Sex Discrimination Commissioner is created in section 96 of the same act in which LGBTI anti-discrimination protections now live[2]).

This means there is no guaranteed advocate for LGBTI equality within the AHRC. The current President of the AHRC, Gillian Triggs, has sought to overcome this serious shortcoming by asking the Human Rights Commissioner, Tim Wilson, to also accept responsibility for SOGII issues, in addition to his existing priorities.

Nevertheless, this essentially stop-gap measure does not reconcile the challenges presented when his ‘part-time’ role – his responsibilities for LGBTI matters – conflicts with his full-time role – he was appointed by the Commonwealth Attorney-General, Senator George Brandis, with the explicit mandate to advocate for ‘freedoms’, by which he meant traditional civil liberties as opposed to more contemporary rights like freedom from discrimination.

Over the past 18 months, this tension has played out in a variety of ways, including through the failure of the otherwise worthy Resilient Individuals: Sexual Orientation, Gender Identity & Intersex Rights 2015 Report[3] to adequately address the issue of state-sanctioned discrimination by religious organisations against people simply for being LGBT.

However, this conflict has come to a head in a column which Mr Wilson wrote for The Australian last week on the topic “Religious freedom and same-sex marriage need not be incompatible”[4], in which he argued that, should marriage equality legislation be passed in Australia, new rights should be created to allow not just ministers of religion, but also businesses involved in providing wedding-related services (and yes, that includes businesses selling wedding cakes), to discriminate against customers.

Through this column, Mr Wilson has indicated that his first priority is protecting the freedom to discriminate, and that the right of LGBTI Australians not to be discriminated against comes second (and even then arguably by some distance). He has therefore demonstrated that his roles as Human Rights Commissioner, and ‘part-time’ responsibility for SOGII issues, are incompatible.

In the short-term, lesbian, gay, bisexual, transgender and intersex Australians deserve a Commissioner within the AHRC whose existing responsibilities do not cause them to advocate against their interests. In the medium-term, we need a stand-alone full-time Commissioner for SOGII issues within the Commission, to avoid these problems arising in the future.

I have written below two letters, one to the President of the AHRC, Gillian Triggs, calling for Mr Wilson’s responsibilities for LGBTI matters to be reallocated within the Australian Human Rights Commission.

And I have written a second letter to the Shadow Attorney-General, Mark Dreyfus, asking him to support a resolution at the upcoming ALP National Conference to amend the Labor Party Platform to include a commitment to create a new Commissioner for Sexual Orientation, Gender Identity and Intersex Issues within the AHRC.

I have chosen not to write or send a third letter, to the current Attorney-General, George Brandis, given he likely agrees with the actions of Mr Wilson, and it is extremely unlikely that someone who axed funding for the position of Disability Commissioner (and therefore ended the role of the highly-respected disability rights advocate Graeme Innes) last year, would somehow find funding for the creation of a SOGII Commissioner today.

As always, I will publish any responses I receive from Ms Triggs and Mr Dreyfus.

Professor Gillian Triggs

President

Australian Human Rights Commission

GPO Box 5218

SYDNEY NSW 2001

Sunday 12 July 2015

Dear Professor Triggs

PLEASE REALLOCATE RESPONSIBILITY FOR SEXUAL ORIENTATION, GENDER IDENTITY AND INTERSEX ISSUES WITHIN THE AHRC

I am writing to you about the allocation of responsibility for sexual orientation, gender identity and intersex issues within the Australian Human Rights Commission (AHRC).

Specifically, I call on you to reallocate these responsibilities, which currently lie (informally at least) with the Human Rights Commissioner, Mr Tim Wilson, to another of the Commissioners within the AHRC.

I do so because I believe that the stance which Mr Wilson has adopted, in advocating for traditional freedoms like freedom of religion, has taken precedence over and is increasingly incompatible with the responsibility to advocate for the equal rights, and freedom from discrimination, of lesbian, gay, bisexual, transgender and intersex Australians.

I cite as evidence the column which Mr Wilson wrote for The Australian newspaper, published on Monday 6 July 2015, titled “Religious freedom and same-sex marriage need not be incompatible.”

In this piece, Mr Wilson does the following four things:

First, he argues that the legislation which finally introduces marriage equality in Australia should include new provisions which provide a substantive right to discriminate against couples, not just for ministers of religion (which are already proposed), but also for businesses that provide wedding-related services.

Second, the argument for this appears to be primarily to allow businesses the ability to discriminate against LGBTI couples (so that the individuals who operate these businesses are not “forced to act against their conscience”).

Not only is Mr Wilson raising this issue now as part of the broader discussion around making marriage non-discriminatory on the basis of sexual orientation, gender identity or intersex status – but, just as importantly, there does not appear to be any other public calls for a greater right to discriminate for wedding service providers outside of the marriage equality debate.

Third, the ‘solution’ which he offers, which would allow discrimination by wedding service providers on the basis of the religious (or not) nature of the wedding involved, would allow increased discrimination against a wide range of couples – in practice, this would inevitably include a detrimental impact on some LGBTI couples (although of course they would not be the only ones affected).

Fourth, at a time when one of the last major legal sources of discrimination against LGBTI Australians are the wide-ranging exceptions to anti-discrimination laws which are offered to religious organisations, instead of advocating for the curtailment of these exceptions, Mr Wilson is arguing for establish new rights to discriminate in a key area of public life.

Mr Wilson may well respond to the above description of his column by indicating he is performing his primary role, which is to advocate for traditional rights and freedoms, including the freedom of religion. I am not disputing that view.

However, I submit that, in doing so, he is not fulfilling his ‘part-time’ responsibilities, which include advocating for the removal of discrimination against lesbian, gay, bisexual, transgender and intersex people.

LGBTI Australians deserve better than to have a ‘part-time’ Commissioner for whom, when potential conflict arises between freedom of religion and their freedom from discrimination, as it does in this situation, the former takes precedence.

I urge you to reallocate the responsibility for sexual orientation, gender identity and intersex issues within the Australian Human Rights Commission from Mr Wilson to another Commissioner, hopefully to one where there is less apparent conflict between their primary role and these additional functions.

The only way in which such a conflict can be resolved on a permanent basis would be for the amendment of the Sex Discrimination Act to create, and for Government to appoint, a full-time Sexual Orientation, Gender Identity and Intersex Issues Commissioner within the AHRC. I therefore also urge you to advocate for the creation of such a position by the Government.

Thank you in advance for your consideration of this correspondence.

Sincerely

Alastair Lawrie

President of the Australian Human Rights Commission, Professor Gillian Triggs, should reallocate responsibility for LGBTI issues within the Commission.

President of the Australian Human Rights Commission, Professor Gillian Triggs, should reallocate responsibility for LGBTI issues within the Commission.

Hon Mark Dreyfus QC, MP

Shadow Attorney-General

PO Box 6022

House of Representatives

Parliament House

CANBERRA ACT 2600

Sunday 12 July 2015

Dear Mr Dreyfus

PLEASE SUPPORT THE CREATION OF A COMMISSIONER FOR SEXUAL ORIENTATION, GENDER IDENTITY AND INTERSEX ISSUES WITHIN THE AHRC

I am writing to you about the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013.

Specifically, I call on you to help address one of the outstanding issues of this historic legislation – namely, the failure to create a new statutory position of Sexual Orientation, Gender Identity and Intersex (SOGII) Issues Commissioner within the Australian Human Rights Commission (AHRC).

Without such a position, the rights of lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians are not being as effectively promoted as they could be, and certainly not as effectively as the rights promoted by the statutory Race and Sex Discrimination Commissioners, also within the AHRC.

For example, currently, and in the absence of a statutory position, responsibility for SOGII issues has been allocated, on a ‘part-time’ basis, to the Human Rights Commissioner, Mr Tim Wilson, whose primary role is to advocate for ‘freedoms’, meaning traditional civil liberties as opposed to more contemporary rights like freedom from discrimination.

This means that, not only do issues of discrimination that confront LGBTI Australians not receive sufficient time and resources, but they are also secondary to, and sometimes incompatible with, the promotion of other rights like the freedom of religion.

One example of this incompatibility comes from the column which Mr Wilson wrote for The Australian newspaper, published on Monday 6 July 2015, titled “Religious freedom and same-sex marriage need not be incompatible.”

In this piece, Mr Wilson does the following four things:

First, he argues that the legislation which finally introduces marriage equality in Australia should include new provisions which provide a substantive right to discriminate against couples, not just for ministers of religion (which are already proposed), but also for businesses that provide wedding-related services.

Second, the argument for this appears to be primarily to allow businesses the ability to discriminate against LGBTI couples (so that the individuals who operate these businesses are not “forced to act against their conscience”).

Not only is Mr Wilson raising this issue now as part of the broader discussion around making marriage non-discriminatory on the basis of sexual orientation, gender identity or intersex status – but, just as importantly, there does not appear to be any other public calls for a greater right to discriminate for wedding service providers outside of the marriage equality debate.

Third, the ‘solution’ which he offers, which would allow discrimination by wedding service providers on the basis of the religious (or not) nature of the wedding involved, would allow increased discrimination against a wide range of couples – in practice, this would inevitably include a detrimental impact on some LGBTI couples (although of course they would not be the only ones affected).

Fourth, at a time when one of the last major legal sources of discrimination against LGBTI Australians are the wide-ranging exceptions to anti-discrimination laws which are offered to religious organisations, instead of advocating for the curtailment of these exceptions, Mr Wilson is arguing for establish new rights to discriminate in a key area of public life.

In my opinion as an LGBTI advocate, it is simply not good enough that, when there is a conflict between the freedom of religion and freedom from discrimination, the person with responsibility for SOGII issues within the AHRC promotes the former at the expense of the latter.

The issues of homophobia, biphobia, transphobia and intersexphobia which confront LGBTI Australians, every day, are both real and serious. We deserve a full-time Commissioner within the AHRC to help address these problems – and certainly not a ‘part-time’, informal appointee, whose primary responsibilities can conflict with, and in some instances override, LGBTI rights.

I understand that, at the upcoming ALP National Conference in Melbourne, on July 24-26 2015, there will likely be a resolution to amend the Labor Party Platform to include a commitment to create a new Sexual Orientation, Gender Identity and Intersex Issues Commissioner within the Australian Human Rights Commission.

This resolution is based on recent developments in Victoria, where the new Labor Government has committed to appointing Australia’s first Gender and Sexuality Commissioner within the Victorian Equal Opportunity and Human Rights Commission (VEOHRC)[5].

I call on you, as Shadow Attorney-General, to support moves to amend the Platform in this way, so that the Federal Labor Party can establish the first stand-alone SOGII Commissioner at Commonwealth level when it returns to Government.

Thank you in advance for your consideration of this correspondence.

Sincerely,

Alastair Lawrie

[1] Highs & Lows of 2013, No 2: Australia finally adopts federal anti-discrimination protections for lesbian, gay, bisexual, transgender and intersex people: https://alastairlawrie.net/2013/12/26/no-2-australia-finally-adopts-federal-anti-discrimination-protections-for-lesbian-gay-bisexual-transgender-and-intersex-people/

[2] “Section 96. Sex Discrimination Commissioner. (1) There shall be a Sex Discrimination Commissioner, who shall be appointed by the Governor-General.”

[3] The Resilient Individuals Report is available here: https://www.humanrights.gov.au/our-work/sexual-orientation-sex-gender-identity/publications/resilient-individuals-sexual

[4] http://www.theaustralian.com.au/opinion/religious-freedom-and-same-sex-marriage-need-not-be-incompatible/story-e6frg6zo-1227429558684

[5] VEOHRC Media Release welcoming Budget funding for this appointment: http://www.humanrightscommission.vic.gov.au/index.php/news-and-events/media-releases/item/1225-commission-welcomes-funding-for-lgbti-community-in-state-budget