The last major battle for gay & lesbian legal equality in Australia won’t be about marriage

[Updated March 4th 2015]

This Saturday, the 37th annual Sydney Gay & Lesbian Mardi Gras Parade will work its way up Oxford St with its now traditional mix of politics, colour and movement, and above all, pride. Pride in who we are, pride in our community, and pride in what we have managed to achieve.

Because life is unarguably better for the vast majority of Australia’s lesbian, gay, bisexual, transgender and intersex (LGBTI) population in 2015 than it has ever been before. And that indeed is something to be proud about.

Following the first Mardi Gras on 24 June 1978, many of the barriers to legal equality have been removed. NSW passed anti-discrimination laws in 1982, followed by the decriminalisation of gay sex in 1984. Same-sex couples have since achieved de facto relationship recognition, and there is now equal access to assisted reproductive technology and adoption in most Australian jurisdictions.

It is likely that one area where legal rights have yet to be achieved will, once again, be the dominant theme of many of the more politically-oriented floats in this year’s parade – the Australian Parliament’s ongoing refusal to recognise marriage equality between all couples.

As someone who is engaged to be married, and who has been for more than four years but is currently prohibited from doing so, I understand why marriage equality is an issue which arouses such intense passion, and an admirable level of commitment from many activists around Australia.

But marriage equality is also something which most of us know is probably, some might say almost inevitably, going to be achieved at some point in the next five, at most 10, years.

When that day comes, when the first couples legally married under federal law have shared their vows and celebrated their commitments to each other in front of their families and friends, there will still be a major outstanding issue of legal inequality confronting lesbian, gay, bisexual and transgender (LGBT) Australians.

It appears just as inevitable that, long after those couples dance their waltzes and cut their wedding cakes, the anti-discrimination protections which are offered to LGBT Australians under most state and federal laws will continue to be seriously undermined by the wide-ranging exceptions which are offered to religious organisations (NB Intersex is not included here because religious exemptions under the Commonwealth Sex Discrimination Act 1984 do not apply on those grounds).

These exceptions allow religious schools to actively discriminate against LGBT teachers and students. Religious hospitals and community welfare organisations can utilise these loopholes to discriminate against LGBT employees, as well as patients and clients. And, while the historic federal reforms passed via the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 do not allow religious-operated aged care facilities to discriminate against LGBT people accessing their services, LGBT people can still be denied employment in those facilities simply because of who they are.

All of these services – education and health, community welfare and aged care – are located firmly and squarely in the public sphere, and address some of the most fundamental human needs in life. It is these same characteristics, that they are public services meeting public needs, that are used to justify the substantial amounts of public funding which subsidise the religious organisations running them, money which comes from all taxpayers, religious and non-religious, LGBTI and non-LGBTI alike.

Yet, despite operating in the public sphere, almost always using public money, these organisations are granted exceptions from the same legal obligations that are imposed on any other group, namely the responsibility not to discriminate on the basis of sexual orientation and gender identity.

The justification for these ‘special rights’? Basically, that the ability to discriminate against lesbian, gay, bisexual and transgender people is so fundamental to the exercise of religious freedom that it cannot be limited.

Note that we are not here talking about who is appointed as office-holders, including ministers, within a religion itself, what a particular religion may or may not believe in terms of morality, how religious ceremonies are undertaken, or even who can attend a religious ceremony. These are things that are central to religious freedom, and most people would not advocate the imposition of limits on the ability of religious organisations to discriminate in these areas.

Instead, some religious organisations (and we must say some, because not all groups hold these views) believe that they should have the right to fire a gay teacher, to expel a bisexual school student, to refuse to employ a lesbian aged care worker, or to deny services to someone who is transgender, even when all of the above is clearly done in the public sphere.

This is a much more substantive denial of rights than simply being denied access to marriage rites. Religious exceptions to anti-discrimination laws can affect LGBT people in multiple areas of their lives, including times and places when they are at their most vulnerable. In practical terms, I believe it is religious exceptions and not marriage inequality that is the biggest battle left to be won for full gay and lesbian legal equality.

It is also a battle that looks set to be fought more ferociously than that over marriage equality. Some of the largest religious organisations in the country don’t just support these exceptions, they are prepared to wage cultural war to defend them.

The Wesley Mission recently spent eight years, and went all the way to the NSW Court of Appeal, defending their right to deny allowing a male same-sex couple to become foster carers to children in need. Wesley did so 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” (OW & OV v Members of the Board of the Wesley Mission Council [2010] NSWADT 293 (10 December 2010).

Further, they submitted that: “Wesley Mission’s tradition views a monogamous heterosexual partnership in marriage as the ideal family role model for the vulnerable and sometimes damaged children we foster. Other understandings fall short of that norm.” And finally that “[t]he proposition that we should provide a framework for children to be cared for and nurtured within the context of a homosexual lifestyle is fundamentally unacceptable to our evangelical teaching and practice.”

The irony, some might say hypocrisy, of these statements is that, in the same case, Wesley Mission admitted that single people could themselves become foster carers through their service. Apparently they believed that two dads or two mums had less to offer foster children than one.

The net effect of the Wesley Mission case was to provide judicial confirmation of the breadth of the religious exceptions offered under section 56(d) of the NSW Anti-Discrimination Act 1977. That section reads: “[n]othing in this Act affects: 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.”

In short, if you are lesbian, gay, bisexual or transgender, then you have no legal right or expectation to be treated fairly and without discrimination by a religious employer, or religious-operated service, in NSW.

It is no surprise then that, when the Federal Parliament was considering the Exposure Draft Human Rights and Anti-Discrimination (HRAD) Bill 2012, the precursor of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, key NSW religious organisations would argue for religious exceptions to be established in Commonwealth law, too.

What is perhaps surprising is that some churches made submissions to the Senate inquiry considering the HRAD Bill that these exceptions do not go far enough.

The Standing Committee of the Synod of the Anglican Church Diocese of Sydney, and the Catholic Archdiocese of Sydney (including the Diocese of Parramatta and the Catholic Education Commission of NSW), both argued that the concept of exceptions was problematic, and that the right to discriminate against LGBT people should instead be re-contextualised as a positive right.

From the Anglican submission: “[w]hile exceptions are necessary, casting the protection of these rights in a wholly negative manner, in the form of ‘exceptions’, does not do justice to their importance. It suggests they are merely to be tolerated rather than positively recognised and upheld as legitimate and important in themselves.”

Meanwhile, in a ‘Diedre Chambers’ style coincidence, the Catholic submission also wrote: “the terminology of “exceptions” is problematic and fails to acknowledge that the right of freedom of religion is a fundamental human right, which the Commonwealth government is obliged to protect under international law. In our view, the terminology of “exceptions” should be replaced with the terminology of “protections”. Using the terminology of “protections” would recognise that conduct which is deemed not to be unlawful because it is covered by an exception related to religion is in fact lawful because it accords with the fundamental human right of freedom of religion” [emphasis in original].

Both submissions also go further than concerns surrounding terminology to argue that the exceptions which are offered to religious organisations should also be available to individuals – that is, that their personal beliefs should allow them to discriminate, even in their professional lives and when not working for a religious organisation.

For example, the Anglican submission recommended that “[a]n employee should not be required by their employer to undertake particular tasks or provide services in a particular context that are contrary to the employee’s genuinely held religious convictions where this is reasonable.”

Thankfully, that style of exception, which is located somewhere on the bottom half of the slippery slope down to the abhorrent type of laws currently attracting controversy in several US states, was not included in the final Commonwealth legislation. But in making that submission, the Anglican Church of Sydney has made clear the direction it wants anti-discrimination, or more accurately, pro-discrimination, laws to head [As an aside, if it had been passed then, when marriage equality does eventually become a reality, such provisions would have allowed individual employees to refuse to sell wedding cakes, or serve as wedding photographers, merely because of the sexual orientation and/or gender identities of the couples involved].

And they will fight equally hard to ensure that the current framework of exceptions applies in as many contexts as possible. The eventual removal of these exceptions in terms of people accessing aged care services was strongly resisted from some religious bodies, even if their arguments for doing so were quite weak (the Anglican submission on the HRAD Bill suggested that “[i]t may be unsettling to these communities to have residents who do not share their beliefs, values and ethos facility on matters of sexual practice”).

They have been more successful in fighting against recent proposed changes to NSW law that were simply attempting to remove the right of religious and other private schools to discriminate against gay, lesbian and transgender students (NB Bisexuality is shamefully still not a protected attribute in the NSW Anti-Discrimination Act 1977). Alex Greenwich’s amendments are currently on hold, at least in part because of the influence of the two major churches in the Parliament.

As we have seen, some religious organisations have demonstrated over the past 10 years that they are prepared to fight, by whatever means necessary (through the courts, in parliamentary inquiries, by lobbying parliamentarians directly and in public debate) to maintain and even extend the reach of these exceptions.

While this may seem to some like a theoretical (or even theological) debate, they are not doing so because they want the law to recognise abstract rights – they are engaged in this battle because they want the retain the ability to actively discriminate against LGBT people in real life.

Sadly, there are too many stories of this happening, of religious exceptions causing real-world harm to LGBT people. In the lead-up to Mr Greenwich’s Bill being introduced, several lesbian and gay students came forward with stories of being sent to the counsellor’s office for being “sick” (that is, for being gay), of being called disgusting and a disgrace – by a teacher no less – and threatened with exclusion from senior school, and of being told not to talk about their sexuality in addition to being excluded from school events (source: “Discrimination has no place in schools” Alex Greenwich, Sydney Morning Herald, 19 September, 2013).

Not forgetting the recent incident where the Sacred Heart Primary School at Broken Hill, which falls within the Wilcannia-Forbes Catholic Diocese, rejected a young girl’s kindergarten application simply because her parents were two women (source: “Same-sex enrolment row prompts call for law change”, ABC News Online, 15 December 2011).

Of course, these are just some of the stories that we are aware about. Most people who are discriminated against by religious organisations, either directly or indirectly, do not speak up, because they are aware that the discriminatory actions of those bodies are entirely lawful, or because they fear retribution from those organisations if they do so.

Which brings me back to the Mardi Gras Parade. While for many of us the decision to participate on Saturday is an easy one, choosing to celebrate pride in who we are and as part of our community, for others the decision whether to be visible or not in this manner can be significantly more complicated.

For people already engaged with religious organisations in different ways, or whose profession may involve applying for jobs with them (for example, more than a third of schools in Australia are religious, an even higher proportion amongst secondary schools), choosing to be ‘out’ through Mardi Gras can have serious repercussions.

Some people can and do have a legitimate fear that being identified as lesbian, gay, bisexual or transgender could result in them being fired, or being refused employment in the first place, in being expelled from school (or seriously mistreated while there), or being denied necessary services. Neither state nor federal anti-discrimination law would currently protect them in these circumstances.

In this respect, despite all of the progress in law reform since the first Mardi Gras parade was held back in 1978, there is still an incredibly long way to go. That is one of the reasons why we must ensure that Mardi Gras, as well as being a celebration of pride, also continues to serve its role as a political protest.

It is also why me must continue to campaign for equality, and to fight for our rights, including the right not to be discriminated against. Given the scale of the challenge involved in removing these unjust religious exceptions, and how hard (some) religious organisations will struggle to retain them (and therefore to maintain their position of privilege in society), we should be aware that it is not a fight that we will win in months. It will take several years, at least – if not decades.

But it is a battle we must wage nonetheless. Because, if LGBT Australians are ever to be truly equal under the law, then the special exceptions granted to religious organisations under Commonwealth, state and territory laws must end.

Explanatory notes: I have attempted to be clear in this post about when I am speaking about gay and lesbian, or LGBT, or LGBTI, because sometimes the law affects these groups in different ways (and please accept my apologies if I have made some errors in this respect). For example, removing religious exceptions cannot be the last major battle for bisexual legal equality – especially if they are not included in the NSW Anti-Discrimination Act in the first place.

Equally, I am not in a position to argue that religious exceptions are the biggest legal issue confronting transgender Australians when uniform positive recognition of gender identity is not yet a reality. And, while intersex people are not subject to religious exceptions under the Sex Discrimination Act, I also wouldn’t describe this issue as more important than banning involuntary medical sterilisation, something I have written about previously (see link: https://alastairlawrie.net/2013/12/25/no-3-senate-report-on-involuntary-or-coerced-sterilisation-of-intersex-people-in-australia/).

Finally, while I wrote in the second paragraph that, for the vast majority of LGBTI Australians, life is unarguably better than it has ever been before, I do not wish to underestimate the ongoing problems of mental illness, depression and suicide which affect many young LGBTI people, or indeed the plight of LGBTI asylum-seekers, who Australia continues to send to Nauru and Manus Island, PNG, for ‘processing and resettlement’.

One (more) final thing: if you liked this post, please consider sharing. Thanks, Alastair

Is there a moral obligation on athletes to come out?

Following my post in January (“In search of the elusive gay or bisexual male tennis player”) I was asked by the Star Observer to write about lesbian, gay and bisexual sportspeople and whether they should be out or not. I took that to mean whether there is a moral obligation on LGB athletes to come out – and my piece discussing that topic can be found at the following link: <http://www.starobserver.com.au/opinion/soapbox-opinion/to-be-out-or-not-out-in-sport/118055

Coincidentally, it was written on the weekend before Mike Sam came out, making the topic of lesbian, gay and bisexual involvement in sport quite topical.

Of course, I really wish I could have written that yes, they do have a moral obligation, in particular to other members of the LGB community – but that would ignore both the individual behind the ‘athlete’, including their personal story (and struggles that we may not be aware of), and the many reasons why they may choose not to be out in their chosen sport, including homophobia and biphobia. In any event, I hope that I have done the topic justice, and would love to know your thoughts about what I wrote.

Two final notes: firstly, I deliberately chose not to cover the issues of trans* and intersex involvement in sports, because I didn’t feel that I had the necessary expertise to write about those subjects. Besides, I am confident there are many people better placed to write about trans* and sport, and intersex and sport, respectively.

Second, I was a little surprised that my references to ‘outing’, specifically that I believe there might be some circumstances in which outing a virulently or malevolently homophobic politician might be acceptable, didn’t attract any critical responses. Perhaps that position is a little less controversial than I thought? In any event, I might write more on the topic of outing at a later date.

In search of the elusive gay or bisexual male tennis player

As we enter the second week of the Australian Open, it is time, for yet another year, to call off the search party for that rare beast, the Australian singles quarter-finalist. Not seen since 2009, this critically-endangered animal is quickly going the way of its relative, the Australian winner, not seen since 1976 (male) and 1978 (female) respectively, and now presumed extinct.

But, believe it or not, there is at least one creature in tennis which is even rarer, indeed almost mythical – the openly gay or bisexual male tennis player.

In the long history of this genteel sport, there have been only two male tennis players of note who have been linked to homo- or bi-sexuality, and both had tragic personal stories. The first, 1930s German world number 1 and dual French Open winner, Gottfried Von Cramm, was jailed for 6 months by the Nazi regime for ‘morals charges’, as the result of an affair with another man.

The second, the great Bill Tilden of the US, the best player in the world in the 1920s and winner of 3 Wimbledons and 7 US Opens, was twice jailed after his career had finished for male same-sex encounters (one with a 14 year old sex worker and a second with a 16 year old hitchhiker – their respective ages certainly making this a more complicated case to ‘categorise’).

Bill Tilden. Source: Sports Illustrated.

Bill Tilden. Source: Sports Illustrated.

There have been no openly gay or bisexual male players in the post-Second World War period, and certainly none of any note in the Open era.

Contrast this with the cavalcade of greats from the women’s game known to have been lesbian, bisexual or, at the very least, to have been in same-sex relationships. This includes greats like Helen Jacobs (winner of 5 grand slams); Billie Jean King (12 grand slams), who was famously outed through a ‘palimony’ lawsuit from an ex-partner; Martina Navratilova, winner of 18 slams who voluntarily came out in 1981 early in her career; and Hana Mandlikova, winner of 4 slams (and who, towards the end of her career, became an Australian citizen).

They are joined by some of the best doubles players of the past 30 years as well, including Gigi Fernandez (winner of 17 Grand Slam doubles titles and 2 Olympic gold medals), Lisa Raymond (6 Grand Slam doubles titles) and our own Rennae Stubbs, winner of 4 Grand Slam doubles titles and a 4-time Olympian.

Perhaps the most famous lesbian player of the past 15 years was Amelie Mauresmo, the Frenchwoman who made the Final of the Australian Open in 1999, and ‘came out’ at the same time, acknowledging her girlfriend Sylvie. All that, at 19 years of age (as an aside, it is worth noting that one of the players who, at least early in her career, had a reputation for being mentally fragile on the court, was incredibly strong off it). Mauresmo went on to become world number 1, and won both the Australian Open and Wimbledon Championships later in her career.

Amelie Mauresmo. Source: The Guardian.

Amelie Mauresmo. Source: The Guardian.

In 2013, in a sign of how far the women’s tour has come, Australia’s Casey Dellacqua came out via a short statement announcing the birth of her and her partner Amanda’s son, Blake. About the only consequence of that announcement has been an increase in questions from reporters about how she manages life on tour with a new-born.

It is fair to say that, when a male player does eventually come out, it will provoke a much larger response, from the tennis community, the media and of course the fans. Unlike other sports, this will not necessarily be because men’s tennis is, in an inherently sexist view, deemed more important than the women’s game (because of the wonderful work of people like Billie Jean King, gender inequality is far less in tennis than elsewhere), but simply because the novelty of a men’s tennis player coming out will make it big news.

But why is it novel? Why, when tennis as a sport has shown itself to be at ease with the concept of openly lesbian or bisexual female players, has no male player felt sufficiently at ease to come forward and identify himself? Is there such a fundamental difference between the men’s and women’s tours?

Now, I will preface the rest of this article by saying that I am not an ‘insider’ on the men’s tour, and don’t know of any gay or bisexual male players (nor am I going to play the ‘is he or isn’t he’ game of speculation – sorry). But the following are some reasons which I believe might help explain why a tennis player would choose not to come out (and, where relevant, why that factor might be more relevant for a male player):

Tennis is a truly global sport. In an age of increasing world-wide sporting competition, there are still surprisingly few sports that could be considered truly global – meaning sports that compete on each continent, and draw elite players from each continent. Tennis is one, alongside athletics and soccer and, well, I’m struggling to think of too many others. Possibly not coincidentally, soccer and athletics have also been sports where, male players in particular, have not come out until relatively recently (Robbie Rogers and Thomas Hitzlsperger in the last 18 months finally joining their tragic earlier standard-bearer in football, Justin Fashanu).

With at least 72 countries around the world still criminalising homosexuality (and some of those only criminalising male, rather than female, same-sex sexual intercourse), the threat of having to play in a country where you are considered a criminal must be a relevant consideration. Of course, most players set their own schedules, and none of the Grand Slams or compulsory Masters tournaments are held in countries where homosexuality is criminalised. Even the End of Year Championships, which moves around, hasn’t been held in a city with operative ‘anti-sodomy’ laws since New York in the late 1970s.

However, the Davis Cup (at least until 2018) was held annually in countries all around the world, on a rotating home-and-away basis. This format meant that, in 2013, Australia played ties in Chinese Taipei, Uzbekistan and Poland. Of those, Uzbekistan has laws criminalising male, but not female, homosexuality (by up to 3 years imprisonment). With some countries, like Australia, placing a high emphasis on players representing their country in Davis Cup, this must make it a more difficult calculation to decide whether to come out in tennis, compared to an athlete in a domestic-only sport (for example, Australian rules football).

Elite tennis players earn more ‘off-court’ than on. While tennis prizemoney has increased exponentially since the beginning of the Open era (and probably makes Billie Jean King simultaneously wince, and feel satisfied), the bounty to be had off-court, at least by the very top players, is even greater. For example, Forbes magazine estimated in August 2013 that, over the previous 12 months, Roger Federer earned $71.5million, including ‘only’ $6.5million in prizemoney versus $65million in endorsements.

On the women’s side, 2013’s top earner (and incidentally the highest-paid female athlete in the world at the time) Maria Sharapova earned an estimated $29million, with $6million from prizemoney and $23million in endorsements. For some players, this disparity is even greater – Kei Nishikori earned $10.5million, with ‘just’ $1.5million coming from on-court activities.

The reason is that tennis players are truly marketable commodities, both globally and within each country, or to put it bluntly, ‘market’, especially to consumers with higher average levels of disposable income. For a player to come out, in a world where more than one third of countries criminalise homosexuality, means potentially making themselves unsaleable in a large number of markets.

This consideration is even more acute when you consider that one way in which elite players line their pockets during the off-season is to play exhibition matches, increasingly staged in oil-rich Middle Eastern countries (often with their own laws against homosexuality). It is possible that an openly gay male player’s invitation could get ‘lost in the mail’ in such circumstances.

In short, elite tennis players – or those with an aspiration of being an elite player at some stage in their career (nearly all young players) – may still have a genuine financial incentive to stay in the closet. Again, this would be different from an athlete in a domestic-only sport, whose consideration about off-field sponsorship only depends on the reaction of sponsors within one country, and therefore may feel my able to come out when social attitudes within that country change.

The men’s tour may have a more homophobic culture than the women’s tour. As indicated earlier, I am not a tennis insider, so this is largely speculation. But, from an outsider’s perspective, it certainly seems like there is some evidence to support this assertion. For example, it is difficult to imagine a player on the women’s tour making the following comments, both before and after winning a major championship, and largely getting away with it:

Before the championship, at Queens: “Last year I played well here and played like a faggot at Wimbledon… Better to play like a faggot here and play well at Wimbledon.” And then, after winning: “Then I hit another serve, huge. And that ball was on the line, was not even close. And that guy, he looks like a faggot little bit, you know. This hair all over him. He call it. I couldn’t believe he did it.” Goran Ivanisevic, Wimbledon winner 2001 (and later back on tour as the coach of fellow Croatian Marin Cilic).

Australia’s own Lleyton Hewitt has similar form. In 2005, he finally experienced some reprobation for yelling out “Poof” on court. Years earlier – at the End of Year Championships in Shanghai, 2002 – I remember watching Hewitt shout, on multiple occasions, “Poofter”, when he lost points. The Australian television commentator remarked at the time “I think Hewitt thinks he will get away with this in China” and he pretty much did – despite much larger previous backlashes when he made remarks based on disability and race.

Contrast this with the reaction of one of the then youngest players on tour, the UK’s Laura Robson, who in a dignified yet steadfast manner supported the ‘rainbow’-coloured protests in 2012 following comments by notorious homophobe, and one-time tennis player, Margaret Court*. From memory, no male players joined that protest – and I doubt many would if similar circumstances arose today.

On the flipside, there are some reasons why, theoretically at least, it should be easier for a tennis player to come out than athletes in other sports.

First, competitive tennis is largely an individual sport. Yes, there is doubles, but finding an open-minded playing partner must surely be more likely than expecting every single member of a football team to be supportive. Indeed, the women’s doubles greats, listed above, and including Martina Navratilova, never seemed to encounter too much of a problem recruiting partners (although that might also be because they were so good that the promise of winning would overcome most obstacles). And, while there are some teams competitions throughout the year (most importantly Davis Cup for men and Federation Cup for women), these are only for short time periods, with many elite players opting out of them from time to time.

In my opinion, tennis is such an individual sport that it is almost individualist – in that it encourages, and has a long history of, strong characters breaking out of any box that seeks to capture them, and doing things their own way, both on court and off (see: McEnroe, John; Connors, Jimmy). It doesn’t seem outrageous to think that a gay male player could similarly have struck out on their own, saying “That’s how I play, this is who I am, deal with it.”

A second factor making it potentially easier for a gay or bisexual male player to come out now is the rapidly ageing nature of the men’s tour. Contrary to earlier generations, the average age of the men’s top 10 is now more than 30 years old (as at the end of 2018).  Indeed, only two players in the top 10 are younger than 29: Alexander Zverev at 21 years and 8 months, and Dominic Thiem at 25 years and 3 months.

Further, while there are currently a number of exciting young players inside the top 100, or just outside (Stefanos Tsitsipas, Denis Shapovalov, Felix Auger-Aliassime, Alex De Minaur, Frances Tiafoe, Taylor Fritz, Reilly Opelka, Casper Ruud, Andrey Rublev, Miomir Kecmanovic, Ugo Humbert, Alexei Popyrin, Corentin Moutet and Alejandro Davidovich Fokina), all of them are already older than both Boris Becker when he won Wimbledon and Michael Chang when he won the French Open.

An ageing tour should help because it is probably not reasonable to expect everyone to ‘do a Mauresmo’ and come out at age 19 (heck, I was nervous enough telling my family at that age, let alone the whole world). But it is reasonable to think that, as players mature during their 20s, and even play on until their early to mid 30s, at least one, and possibly more, might eventually feel comfortable enough to disclose their sexual orientation while still playing.

A third reason why a gay or bisexual male player should find it somewhat easier to come out today is that so many women have already done so. Players like Mauresmo, and Navratilova, and Raymond and Dellacqua (and recently Alison Van Uytvanck), have all shown that it is possible to disclose one’s sexuality and remain active through the week-in, week-out grind of the tennis tour.

Of course, in doing so, they have had to overcome the very same barriers I outlined earlier. They have all had to negotiate the vagaries of the global tour, and decide whether to play in countries with higher levels of homophobia, including places where female same-sex sexual activity is banned.

And they have had to confront a very real, and demonstrated, loss of sponsorship. Billie Jean King’s endorsements basically dried up the day after she was so publicly outed. Martina Navratilova probably earned an order of magnitude less off-court than she would have had she not revealed who she was. Even Amelie Mauresmo likely lost out financially, potentially millions of Euros, because of her courage at age 19.

Martina Navratilova. Winner on-court, missed out on endorsements off-court. Source: The Guardian.

Martina Navratilova. Winner on-court, missed out on endorsements off-court. Source: The Guardian.

Bisexual female and lesbian tennis players have also had to overcome homophobia on the tour. Mauresmo had to withstand not-very-subtle ‘plays like a man’ critiques in 1999 from other players like Martina Hingis and, in a lapse of judgment, Lindsay Davenport. But, and this is the important part, both were forced to apologise. In that same year, US player Alexandra Stevenson’s mother commented during Wimbledon that her daughter needed to be protected from “lesbians in the locker-room”. This time around, Davenport was on the right side of the debate, and called the comments out as bizarre and ignorant.

In short, the very existence of openly lesbian players has brought forward the arguments around homosexuality, on court and in the stands, and those arguments have been won – at least on the women’s tour. King, and Navratilova, and Mauresmo, and others, have had to fight these battles, and have eventually emerged victorious, together with the help of allies (some of whom themselves needed to be educated).

Which brings me to my almost prosaic conclusion: no gay or bisexual male player has come out in the open era because none have chosen to take on that fight. For whatever reason, as individuals – not just tennis players, but humans – each man has decided that taking on that battle, with at least some attendant personal cost, is not in their own interest. That is an understandable conclusion for an individual to arrive at, separately.

Even so, as each year brings more players onto the tour, it brings us closer to the point where a player (or multiple players) will look at those same factors, and reach the opposite view. Surely we cannot be too many years away from a male tennis player casually talking about his boyfriend in a post-match interview, releasing a statement that he and his husband have had a child together, or even going to the Wimbledon Winners’ Ball together (which would be a pretty awesome way to come out, come to think of it).

Casey Dellacqua. Where is out male equivalent? Source: Sydney Morning Herald

Casey Dellacqua. Where is our male equivalent? Source: Sydney Morning Herald

For this tennis-mad LGBTI activist, I hope that day is not too far away. Not just because it would add to the already long list of same-sex attracted tennis players to look up to but, if Australian singles players continue to under-perform at home as they have done in the recent past, having an openly gay or bisexual male player might give me someone to barrack for in the second week of the next Australian Open.

 

UPDATE 18 January 2016:

With this year’s Australian Open starting today, I thought I would take a look back on this post, to see what has changed during the past two years. The answer is: lots, and not very much at the same time.

Australian tennis has rediscovered what it is like to have players reach the Australian Open quarter-finals, with Nick Kyrgios achieving the feat last year (2015), and he and Bernard Tomic possibilities to do so again this year and into the future.

Amelie Mauresmo continues to break down barriers, this time as coach, since June 2014, of men’s world number 2 Andy Murray.

The ‘ageing’ trend amongst the male tour might finally be on the cusp of slowing down, and eventually reversing. While the upper echelon remains, for now at least, older than any generation in memory (the only player under the age of 28 inside the current top ten is Kei Nishikori, and even he is 26), there is a large group of new young players who appear of the cusp of breaking through.

Nick Kyrgios (ranked 30) and Thanasi Kokkinakis (ranked 86) have youthful company inside the top 100 with Borna Coric, Hyeon Chung and Alexander Zverev (currently ranked 40, 51 and 83 respectively), and look likely to be joined by Karen Khachanov, too.

While I wrote in the original post that older players might stand more chance of coming out on their own terms, it is also possible that this new generation of players will shake things up in more ways than just their on-court play.

The past few years have also seen an acceleration of the welcome trend for currently-active male professional athletes to come out as either gay or bisexual. Most prominently Michael Sam came out as gay just two weeks after my original post, with Jason Collins also becoming the first openly gay man to play in the NBA that same month (having come out publicly the previous year). They have been joined by male athletes across a wide range of sports, including New Zealand Olympic rower Robbie Manson and US Winter Olympic freestyle skier silver medallist Gus Kenworthy, among others.

Of course, one thing that hasn’t changed is that there remains no out gay or bisexual male tennis players. That is a fact that still astounds me. I had thought, when writing the original post, that it was only a matter of months, or potentially just a year or two, before a player would finally break down that particular closet door.

Perhaps the culture of the men’s tennis tour is more homophobic than it appears from the outside. Perhaps there are other factors that have not been identified or considered. We probably won’t know for sure until a male player does finally come out (and even then only if they choose to discuss such things). In the meantime, the wait for an openly gay or bisexual male tennis player continues.

 

*It is an extraordinary, and extraordinarily awful, achievement that someone who has won 24 Grand Slam singles titles could, through years of expressing hateful and discriminatory comments, be better known as a bigot than a former champion.

No 4 Draft Health & Physical Education Curriculum Fails LGBTI Students

For people who read my blog regularly, you will know that this is something I have written a fair bit about over the past 12 months. For others, you could be forgiven for asking what exactly I am talking about. Which is a fair enough question, given this subject has almost completely evaded media attention, even within the LGBTI community.

In December 2012, the Australian Curriculum, Assessment and Reporting Authority (ACARA) released a draft national Health & Physical Education (HPE) curriculum for public consultation. Submissions closed in April this year, before a second draft was released for limited public consultation in July 2013.

ACARA then finalised the draft curriculum from August to November, before submitting it for approval at the COAG Standing Council on School Education and Early Childhood (SCSEEC) meeting in in Sydney on 29 November.

Through this process, it became clear that the draft HPE curriculum that had been developed would almost completely fail to serve the needs of young LGBTI people right around Australia. Neither the first nor the second draft curriculum even included the words gay, lesbian or bisexual, and, while the second included transgender and intersex, it only did so in the glossary and even then erroneously included them within the same definition.

Nor did the draft HPE curriculum guarantee that all students, LGBTI and non-LGBTI alike, would learn the necessary sexual health education to allow them to make informed choices. Almost unbelievably, COAG Education Ministers were asked to approve a Health & Physical Education curriculum that did not even include the term HIV (or other BBVs like viral hepatitis for that matter), just two days before World AIDS Day.

For more information on just how bad the draft HPE curriculums were, here is my submission to the first draft: https://alastairlawrie.net/2013/04/11/submission-on-national-health-physical-education-curriculum/ and second draft: https://alastairlawrie.net/2013/07/30/submission-on-redrafted-national-health-physical-education-curriculum/

Given the fact the draft HPE curriculums so comprehensively failed to include LGBTI students, let alone content that was relevant to their needs, why didn’t this issue receive more attention, both from the media, and more specifically from LGBTI activists and advocates?

Well, there are lots of reasons – including but not limited to the inability of something as complicated as a school curriculum to compete with the much more emotive, yes/no, good/evil, photogenic juggernaut that is marriage equality.

But simply writing it off in that way is too simple – and lets us off the hook, free from our own responsibility for this failure. Because, if the exclusion of LGBTI students and content from the HPE curriculum was not a public issue, it is because we, as LGBTI activists and advocates, did not make it one.

In which case, I would like to sincerely apologise to future generations of young LGBTI people, who we failed over the past 12 months. If the HPE curriculum that is ultimately adopted resembles anything like its draft form, then we simply did not do enough to ensure that you received the education that you deserve.

Of course, I should not be alone in making such an apology – there are many other people, and organisations, who could and should have done more in this area throughout the course of 2013. Nor should we let off the hook the Education Ministers, both Labor and Liberal, who oversaw the development of the HPE curriculum, including Peter Garrett and Bill Shorten who were Education Minister when the two drafts were released, respectively.

There is however, a small glimmer of hope, and an opportunity to make things better, in the HPE curriculum and therefore for LGBTI students over the next 10 to 15 years. That is because new Commonwealth Education Minister Christopher Pyne has commenced a review of both ACARA, and of the curriculum development process more generally.

While overall that is probably not a positive development, it did mean that the HPE curriculum was not actually agreed at the 29 November meeting, but was instead simply ‘noted’. In short, there is still time to try to convince Minister Pyne, and any or all of this state and territory counterparts (Labor, Liberal and Green), that the draft HPE curriculum is not good enough when it comes to providing essential health education to LGBTI students.

Unfortunately, doing so would require the concerted effort of LGBTI people and organisations from around the country. Based on all the evidence of the past 12 months, I am not especially hopeful. Still, I can hope to be proven wrong.

UPDATE January 11 2014: As of yesterday, the small glimmer of hope that might have existed is no more. The Commonwealth Education Minister, Christopher Pyne, has appointed Kevin Donnelly as one of two men to review the curriculum. Unfortunately, Mr Donnelly is on record as making numerous homophobic comments in the past, including advocating for the rights of religious schools to discriminate against LGBTI students and staff. If anything, there is now a grave danger that the final Health & Physical Education curriculum will be significantly worse than the already poor versions released publicly in December 2012 and July 2013. How depressing for us – and how dangerous for the health and safety of the next generation of LGBTI students and young people.

Submission on Alex Greenwich’s Anti-Discrimination Amendment (Private Educational Authorities) Bill 2013

The following is my submission, lodged today, in response to a discussion paper and Bill released by the Member for Sydney, Mr Alex Greenwich. The Paper and Bill seek to remove exceptions which allow private educational authorities, including religious schools, the right to discriminate against lesbian, gay and transgender students. Unfortunately, I think that to achieve that goal, more amendments to the NSW Anti-Discrimination Act 1977 may need to be made. In any event, I believe that there are a range of other amendments which should also be made at the same time, including the removal of section 56 generally. Anyway, here it is:

Mr Alex Greenwich

Member for Sydney

Sydney@parliament.nsw.gov.au

Monday 30 September 2013

Dear Mr Greenwich

Submission on Anti-Discrimination Amendment (Private Educational Authorities) Bill 2013

Thank you for the opportunity to provide a submission in response to your discussion paper on anti-discrimination law reform, released in August 2013, and in particular in relation to your Anti-Discrimination Amendment (Private Educational Authorities) Bill 2013 (the Bill), which you introduced into NSW Parliament on 19 September 2013.

First of all, let me say that I welcome your strong commitment to removing the discrimination that can be experienced by lesbian, gay and transgender students in private educational institutions, including private schools. As has been demonstrated by the Writing Themselves In reports, and countless other research projects over the years, schools can be one of the major sources of homophobia and trans-phobia in the lives of young people.

It is vital that any ‘exceptions’ in the NSW Anti-Discrimination Act 1977 which may authorise schools to discriminate against lesbian, gay and transgender students are removed, and this must apply to all types of private schools, including religious schools. From what I have read, both in the Discussion Paper and associated media, as well as in your Second Reading Speech, I believe this is what your Bill is attempting to achieve.

However, I do have some concerns about the Anti-Discrimination (Private Educational Authorities) Bill 2013, in particular:

  • It is unclear whether the Bill, as drafted, will accomplish this aim
  • There are a range of other amendments which also need to be made to the Anti-Discrimination Act 1997 and
  • If the Bill is aimed at removing the right to discriminate from religious schools, thereby provoking an expected negative response from religious organisations, then I believe that the right of religious organisations to discriminate more broadly under s56 should be removed at the same time.

Turning first to the question of whether the Bill, if passed, would actually achieve the aim of removing the right to discriminate from all schools, including religious schools, I note that the Bill simply removes those provisions of the Anti-Discrimination Act 1997 which provide a specific right to discriminate (namely, sections 31A(3)(a), 38K(3), 46A(3), 49L(3)(a), 49ZO(3) and 49ZYL(3)(b)).

However, the Bill does not amend or seek to repeal the catch-all section which provides exceptions to religious organisations to discriminate – and that is found in section 56(d) which states: “Nothing in this Act affects: (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.”

I am concerned that, by leaving this section unamended, the effect of your Bill would be to remove the right to discriminate from private educational authorities that are not religious, but that religious schools would retain the right to discriminate against lesbian, gay and transgender students on the basis of their ‘religious principles or beliefs’. The practical effect of the Bill would therefore have a positive outcome for a much, much smaller cohort of students than what is intended.

This reading of the Anti-Discrimination Act 1977, and in particular s56(d), appears to be supported by the main case in this area in recent years: OW & OV v Members of the Board of the Wesley Mission Council [2010] NSWADT 293. This case involved a service operated by the Wesley Mission, which sought to utilise the ‘protections’ offered in s56(d) to discriminate against gay male foster carers. The Wesley Mission was ultimately successful in its appeal.

While foster care is obviously not exactly the same as providing education in religious schools, I believe that it is potentially analogous in terms of indicating how broad the religious exceptions under s56(d) are in practice, and in particular in suggesting that they would operate to shield religious schools that discriminate against lesbian, gay and transgender students from the scope of the Anti-Discrimination Act 1977.

This also appears to be the opinion of the current Attorney-General of NSW, the Hon Greg Smith SC MP. In a speech titled Religious Vilification, Anti-Discrimination Law and Religious Freedom, which he gave on 24 August 2011, the Attorney-General discussed the operation of s56:

“116. Section 56 creates a general exemption from the ADA for religious bodies. Religious bodies are not required to comply with the ADA in relation to:

  1. The training, education, ordination or appointment of religious leaders [s56(a)&(b)];
  2. The appointment of any other person [s56(c)];
  3. Any other act or practice that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of thast religion [s56(d)].

117. Section 56 was included in the ADA when first enacted. While other jurisdictions have adopted a general exception from their anti-discrimination statutes for religious bodies, the exceptions are narrower than that under the ADA in the following ways:

a. While section 56(c) of the ADA exempts the appointment of persons ‘in any capacity’ by a religious body, other jurisdictions exempt only appointment of persons to perform functions related to religious practices;

b. Some other jurisdictions have provisions equivalent to s56(d) of the ADA, but others are narrower. Those that are narrower limit the exemption to acts done as part of a religious practice [NT], or don’t extend the exemption to discrimination in work or education [Qld], or limit the grounds of discrimination that are exempt.” [emphasis added]

The implication from this speech, and in particular from para 117(b) above, is that the Attorney-General believes that the protections offered by s56(d) would be available to a school or educational facility run by a religious organisation. This also appears to be the interpretation of s 56(d) by other organisations and advocacy groups which work in this area, including the Inner-City Legal Centre and Public Interest Advocacy Centre.

If that is the case – that either your Bill does not operate to limit the right of religious schools to discriminate against lesbian, gay and transgender students, or that there may be some ongoing uncertainty in this area – then might I suggest you seek additional legal advice on the scope of s56(d), and whether further amendments to your Bill might be necessary to guarantee the rights of lesbian, gay and transgender students in religious schools not to be discriminated against. Obviously, if the Bill is to be debated and ultimately voted upon in late 2013 or early 2014, it would be useful to have clarity about the exact protections to be offered by the Bill beforehand.

Moving on to my second concern about the Bill, which applies irrespective of whether students at religious schools are covered or not, specifically that there are a range of other serious problems with the NSW Anti-Discrimination Act 1977, and it is my belief that these issues should be considered at the same time by the Parliament.

For example, as well as protecting lesbian, gay and transgender students, anti-discrimination protections should also be offered to teachers and other employees at the same schools, irrespective of their sexual orientation or gender identity.

In fact, I believe that religious exceptions should be limited to only cover the appointment of ministers of religion, and the conduct of religious ceremonies. In short, religious organisations should no longer be sanctioned by the State to discriminate in employment and service delivery in places like hospitals or social services – and a reform to the existing law is a perfect opportunity to make such changes.

There are also a range of problems with the current scope of, and definitions included in, the NSW Anti-Discrimination Act 1977, including the fact that it protects homosexuals (in s49ZF) rather than people with different sexual orientations (with the effect that, while lesbians and gay men are covered, bisexuals are not).

The NSW Act also includes what I understand to be an out-dated definition of transgender (in s38A), rather than the preferred definition of gender identity as passed in the Commonwealth Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013. Indeed, the NSW Act does not even cover intersex status at all, unlike its Commonwealth counterpart. I hope that you, and other MPs involved in this area of public policy, are consulting with groups representing the transgender and intersex communities about whether, and how, to deal with these issues.

There are also other problems with the current Act, including what I find to be an objectionable difference in financial penalties for individual offenders found guilty of vilification; the maximum financial penalty for racial or HIV/AIDS vilification (set at 50 Penalty Units) is five times higher than that for homosexual or transgender vilification (set at 10 Penalty Units). There can be no justification for this discrepancy, which effectively creates a hierarchy of offensiveness, with some types of vilification considered more serious than others.

The above problems with the NSW Anti-Discrimination Act 1977 are simply those which I have identified from my own reading and research. I am sure that there are other issues which also need to be addressed. This to me suggests that there is sufficient impetus for a more comprehensive re-write of the Act. While the subject of protecting lesbian, gay and transgender students is an incredibly important one, I believe that the range of problems identified above should all be dealt with at the same time.

Which brings me to my third concern with the draft Anti-Discrimination Amendment (Private Educational Authorities) Bill 2013, and that is a concern around tactics or strategy.

By attempting to limit the right of religious organisations to discriminate against lesbian, gay and transgender students in their schools, you are taking on something which many churches take to be an inalienable ‘right’ – the ability to indoctrinate young people with their religious teachings against homosexuality or transgender identity.

As a result, I would expect a significant backlash from those same religious organisations against your Bill. The size or scale of that backlash might only be slightly less than that which could be expected from an attempt to narrow the broader exceptions contained in section 56 (by limiting its coverage to the appointment of ministers and conduct of religious ceremonies).

In that case, it is my personal view that, as well as removing the specific provisions concerning private educational authorities (as featured in your Bill), any attempt to reform the NSW Anti-Discrimination Act 1977 should also contain provisions which significantly reduce the scope of s56. If people such as yourself are going to take on the right of religious organisations to discriminate, then why not do so more comprehensively, rather than in what could be described a piecemeal (or at the very least, narrowly-targeted) fashion?

Which is not to say that moves to protect lesbian, gay and transgender students from discrimination are not welcome – they obviously are. And I also wish to restate my support for the overall intention of the Bill; protecting young people who are lesbian, gay and transgender from homophobia and trans-phobia is an incredibly important objective.

However, any attempt to do so must ensure that the Bill captures all private schools, including religious schools. And, even if that drafting issue is resolved, it remains my personal view that reform to the NSW Anti-Discrimination Act 1977 should go much further, and address broader issues including but not limited to restricting the scope of section 56.

Thank you for considering this submission.

Yours sincerely,

Alastair Lawrie

Submission on Redrafted National Health & Physical Education Curriculum

The Australian Curriculum, Assessment and Reporting Authority (ACARA) released a slightly redrafted version of the national Health & Physical Education curriculum for limited public consultation over the past 2 weeks. While there were some modest improvements from the original draft released in December 2012, there are still significant problems with what is proposed, especially as it fails to ensure that content is relevant for LGBTI students, and that every classroom is genuinely LGBTI inclusive.

This afternoon I provided my personal submission to the process, which included attachments covering my previous petition to the Commonwealth Education Minister, the Hon Peter Garrett MP, and the comments which people made on that (although not reproduced here because both are too large). Anyway, here is my submission (I understand that a range of groups, including the NSW Gay & Lesbian Rights Lobby and others, will be making submissions too, so hopefully there is more change before the final document is released later this year):

Submission on Redrafted National Health & Physical Education Curriculum

I am writing to provide a personal submission in response to the redrafted national Health & Physical Education (HPE) curriculum, as published on the Australian Curriculum, Assessment and Reporting Authority (ACARA) website in July 2013.

I also provided a submission in April 2013 in response to the original draft HPE curriculum as released by ACARA in December 2012. Please find a copy of that submission at Attachment A. In it, I outlined a range of substantive concerns with the draft curriculum, and in particular in relation to how it related to (or, more accurately, ignored) the needs of lesbian, gay, bisexual, transgender and intersex students.

These concerns included that:

  • The draft curriculum did not explicitly include LGBTI students by name, nor did it ensure that every classroom in every school included content that was relevant to LGBTI student needs
  • The draft curriculum also concentrated on ‘reproductive health’ meaning that it effectively excluded the sexual health needs of LGBTI students and
  • The draft curriculum did not even include the term HIV, let alone ensure that groups at higher risk of contracting HIV (including gay and bisexual men) receive appropriate education to help prevent new transmissions.

Following the lodgement of my submission, I also initiated a national petition to the Commonwealth Education Minister at the time, the Hon Peter Garrett MP, and his state and territory counterparts. I have since sent this petition to the new Commonwealth Education Minister, the Hon Bill Shorten MP, and the NSW Education Minister, the Hon Adrian Piccoli MP.

This petition, which called for the three issues listed above to be remedied as a matter of urgency, received an incredible level of community support, garnering more than 6,000 signatures in less than four weeks.

However, just as important as the number of signatures, the comments which people provided demonstrate the breadth and depth of community concern about the failure of the original HPE curriculum to address the issues of LGBTI inclusion, sexual health education and HIV.

These comments show that this is an issue which matters not just to LGBTI people themselves, but also to their family members and friends, as well as a broad cross-section of the community who understand that everyone has a right to inclusive, appropriate health education, irrespective of sexual orientation, gender identity or intersex status. I would strongly encourage you to read these comments, as many of them are far more articulate and passionate about why LGBTI students must be included than I could ever hope to be.

Having examined the redrafted HPE curriculum released on the ACARA website earlier this month, I would like to acknowledge that there have been some improvements made from the December 2012 version, including an attempt to include reproductive health and sexual health, rather than just reproductive health.

However, it is also disappointing to note that many of the significant problems which existed in the original draft have not been resolved.  I will use the remainder of this submission to identify those areas which still require amendment in order to meet the needs of LGBTI students, including specific recommendations to make these much needed improvements.

Recommendation 1:  The national HPE curriculum must directly and explicitly include lesbian, gay and bisexual students, and content which is relevant to their needs

As with the original draft submission, I believe that it is irresponsible for a national HPE curriculum not to even include the words lesbian, gay or bisexual. These are the most common forms of sexual orientation for people who are not heterosexual. To deliberately exclude these terms from the curriculum contributes to the marginalisation of students who may grow up to identify with any one of these terms.

By excluding these terms/sexual orientations, I believe that the curriculum would inevitably lead to some schools ignoring the health needs of these students, and ultimately contribute to higher level of mental health issues across the lesbian, gay and bisexual communities, including higher rates of depression and youth suicide.

I must also highlight that including the term same-sex attracted (in the ‘aspirational’ paragraph on page 18 – more on that at recommendation 3, below – and in the Glossary) is insufficient in and of itself to ensure that lesbian, gay and bisexual students are included in both classrooms and content. While I acknowledge that it is an inclusive term, I do not understand how referring to the term ‘same-sex attracted’ twice (and only once in the body of the document, and even then not in the content description for any year), without providing more information, will help ensure that all students learn what being lesbian, gay and bisexual mean, in the same way that they would learn what being heterosexual means.

In fact, I find it impossible to see how excluding the words lesbian, gay and bisexual does anything other than ensure that students who happen to be lesbian, gay or bisexual are denied their right to an equal and fair health education, irrespective of which school they might attend.

Recommendation 2: The national HPE curriculum must directly and explicitly include transgender and intersex students, and content which is relevant to their needs, whilst noting that gender identity and intersex status are different things meaning that education about these issues must make this distinction

I acknowledge that the terms transgender and intersex are at least included in the redrafted national HPE curriculum. However, they are only included in the glossary on page 45, and unfortunately the curriculum incorrectly includes both as part of the definition of gender-diverse. Transgender may fall within this term, but intersex is a distinct characteristic as a biological sex status.

I am not an expert in this field, and expect that submissions from the National LGBTI Health Alliance as well as Organisation Intersex International (OII) Australia will provide recommendations to improve the curriculum in terms of transgender and intersex inclusion. I would encourage you to give full consideration to their suggestions in these areas.

Recommendation 3: The statement about LGBTI inclusion must explicitly refer to lesbian, gay, bisexual, transgender and intersex students, and ensure that all schools are inclusive of these students, irrespective of whether students have publicly identified their orientation, identity or status

I note that the ‘aspirational’ statement of inclusion on page 18 of the redrafted curriculum has been amended from the original December 2012 draft. In particular, I am concerned by the decision to omit the statement that ‘same sex attracted and gender diverse’ students exist in all schools. It is unclear why this statement of fact has been removed, given we know that people who are LGBTI have come from all school communities across the country.

This omission also presents some complications when read together with remainder of the paragraph as redrafted, which talks about “becoming increasingly visible”, “designed to allow flexibility” and “have a responsibility… to ensure teaching is inclusive and relevant to the lived experiences or all students”. One reading of this paragraph is that schools now only have a responsibility to be inclusive where they are aware that students are LGBT or I (ie where schools are aware of the lived experience of their students).

If this is the case, it is not acceptable. All students have a right to be included, and to have their health and physical education needs met, and most importantly should not have the onus placed on themselves to disclose their orientation, identity or status in order to receive this education (especially when such disclosure can risk discrimination from other students, teachers and sometimes from the school itself).

I strongly recommend that this paragraph be amended so that it:

  • Explicitly names LGBTI students (for example, same-sex attracted students, including lesbian, gay and bisexual students, and transgender and intersex students) and
  • States that all school communities must provide content and classrooms which are inclusive of LGBTI students, irrespective of whether they disclose their orientation, identity or status.

Recommendation 4: The statement about LGBTI inclusion must be supported by explicit references to LGBTI content in the year descriptions

While an ‘aspirational’ statement on page 18 is welcome, in order to be most effective it should be backed up by explicit references to issues of concern to LGBTI students at relevant points throughout the curriculum.

For example, the terms transgender and intersex should be introduced and explained from Foundation/Years 1-2, given these identities and statuses can be present from early childhood and/or birth.

Ideally, the orientations lesbian, gay and bisexual should be introduced and explained in Years 3-4, so that students who experience same-sex attraction in puberty (which can commence for some in these years) are aware that these attractions are normal. At the latest, all students should be aware of the concepts of heterosexuality, as well as homosexuality and bisexuality, by the end of Year 6.

This would then leave room from comprehensive and inclusive sexual health education (and not just reproductive health) in Years 5-6 (more on this at recommendation 5, below), or Years 7-8 at the absolute latest.

I note with particular concern the sub-strand Being healthy, safe and active, on page 27 of the redrafted curriculum, which includes the following points under Years 7-8:

  • Examining the impact of physical changes on gender, cultural and sexual identities and
  • Exploring sexual identities and investigating how changing feelings and attractions are part of getting older.

This is both far too old (covering students who are turning 13 and 14 across most states, beyond the age which many people have first realised that they are same-sex attracted, including myself) and far too vague, to be genuinely inclusive of LGBTI students and their needs.

LGBTI issues should also be explicitly mentioned in the outline of the Relationships and sexuality learning area on page 9 of the document, which is reproduced in the Glossary on pages 47 and 48. For example, the dot point “changing identities and the factors that influence them” could be redrafted to include “developing sexual orientations, include heterosexual, lesbian, gay and bisexual, and the factors that influence them” while transgender and intersex should be included in in this Area of learning in Foundation to Year 2 (as indicated above).

Recommendation 5: The term sexual health should be preferred to reproductive health throughout

I welcome the amendment from the original draft of the HPE curriculum, with the addition of sexual health to the redrafted curriculum. However, I am confused by the inclusion of both reproductive health and sexual health, and the definitions of both which are provided in the Glossary on pages 48 and 49 respectively.

In particular, the definition of reproductive health seems to try to ‘cover the field’ for the physical aspects of sexual health, even though for many people their sexual anatomy/systems are not primarily related to ‘reproduction’. This is especially apparent when considering the definition of sexual health, which uses the shorter World Health Organisation definition of sexual health, but not the 2006 longer and more inclusive definition which begins:  “…a state of physical, emotional, mental and social well-being in relation to sexuality; it is not merely the absence of disease, dysfunction or infirmity” [emphasis added].

This longer definition makes it clear that sexual health includes the physical health aspects of sex education. As a result, I believe that the much more inclusive term sexual health should be used throughout the document, and if explicit references to reproduction are considered necessary, then the term should be ‘sexual health, including reproductive health’. This would help to ensure that the needs of all students are considered and not just those of heterosexual students.

Recommendation 6: The topic of sexual health should include more detailed information on safer sex, including condom usage, and Sexually Transmitted Infections (STIs)

While it is welcome that sexual health has been added as a term to the redrafted HPE curriculum, it is unclear where it is intended that detailed sexual health education, including STI information and prevention, is included in the content for specific years.

As indicated above, I believe that comprehensive sexual health education should be included in Years 5-6 (and by 7-8 at the absolutely latest). In order to meet the needs of all students, whether LGBTI or otherwise, it must include specific references to safer sex, and condom usage, as well as ensuring that students learn about STIs and how they can best be prevented (and where relevant treated). I cannot locate this information in the redrafted document.

I believe it would be irresponsible for a HPE curriculum not to ensure that students learn this information prior to the age at which they become sexually active.

Recommendation 7: The national HPE must include Blood Borne Viruses, and in particular HIV

Building on the inclusion of sexual health, and comprehensive sexual health education, including STIs (recommendations 5 and 6 respectively), I believe that it is vital for the national HPE curriculum to explicitly refer to Blood Borne Viruses, including HIV.

As a gay man who has just turned 35, I find it almost incomprehensible that HIV, including information about how it can be prevented, has been omitted from the HPE curriculum, both in the original draft and in the redraft. While HIV is no longer a ‘death sentence’, diagnoses with HIV is still a serious thing, and we should be maintaining our efforts to minimise new transmissions. This is particularly important for younger gay and bisexual men, with male same-sex intercourse remaining the primary means of HIV transmission within Australia.

The importance of this message is reinforced by recent figures which show that the number of HIV notifications in NSW rose by 24% in 2012, including 19% among men who have sex with men. The HIV epidemic is not over, and it is essential that a national Health & Physical Education curriculum provides relevant information for young people to help them avoid future HIV transmissions.

Recommendation 8: The national HPE curriculum should ensure that all students learn about homophobia, bi-phobia, trans-phobia and anti-intersex prejudice, and the damage caused by each

One of the pleasing aspects of the original HPE curriculum, released in December 2012, was that it explicitly named ‘homophobia’ as something that students should be taught about (and implicit in this, was the assumption that students would learn the damage caused by discrimination on the basis of sexual orientation). In my original submission, I argued that this should be amended to include bi-phobia, trans-phobia and anti-intersex prejudice as well, as these encompass similarly destructive beliefs and behaviours.

Unfortunately, it appears that the reference to homophobia has now been deleted, and replaced by a much more generic statement on page 34: “examining values and beliefs about cultural and social issues, such as gender, race, sexuality and disability” and “researching how stereotypes and prejudice are challenged in local, national and global contexts.”

To me, these statements do not ensure that students learn that homophobia, bi-phobia, trans-phobia and anti-intersex prejudice are entirely negative phenomena, which can cause immense hurt amongst members of these groups (indeed, the first statement makes no value judgment at all about different ‘values and beliefs’ in relation to sexuality, and leaves it open to some schools teaching that discrimination on the basis of sexual orientation, gender identity and intersex status is acceptable behaviour).

I would strongly urge you to reconsider the drafting of these dot points, and to include homophobia, bi-phobia, trans-phobia and anti-intersex prejudice as subjects about which students should learn, including being taught about the damage caused by these types of discrimination.

Conclusion

Thank you for reading my detailed submission, and attachments. I acknowledge that much of what I have written is strongly worded, but it is only done so out of genuine concern that, if the redrafted national HPE curriculum was implemented without further amendment, it would fail to meet the needs of our LGBTI students, and fail to provide them with the sexual health and HIV prevention education that they have a right to.

Research has shown that younger LGBTI people are amongst the most disadvantaged students across the country, with high rates of bullying and harassment, and consequently of mental health issues including depression and youth suicide.

I believe that the development of a national Health & Physical Education curriculum is an ideal opportunity to remedy some of the active discrimination which exists against lesbian, gay, bisexual, transgender and intersex students, through the introduction of LGBTI-inclusive content, and hopefully leading to LGBTI students being genuinely included in classrooms across the country. I hope that the final version of the HPE curriculum will implement as many of the above recommendations as possible, to help make this a reality.

Sincerely,

Alastair Lawrie

Letter to Premier O’Farrell about renaming Taylor Square

10 days ago, the NSW Premier Barry O’Farrell suggested that Taylor Square could be renamed after former High Court Justice Michael Kirby. While I support recognising his achievements, I think that it would be better to rename the square after both Mr Kirby and current, lesbian High Court Justice Virginia Bell. The outcome would reflect both the gay and lesbian history of this location. Below I have included the text of a letter which I sent to the NSW Premier on this subject this afternoon.

Taylor Square Rainbow Crossing

Dear Premier O’Farrell,

RENAMING TAYLOR SQUARE

I am writing in relation to comments which you made in the Legislative Assembly on Thursday 28 February 2013, in response to a question from the Member for Sydney, Mr Alex Greenwich MP, regarding the Government’s commitment to the Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) community.

In particular, during your answer you suggested that Taylor Square could be renamed after former High Court Justice Michael Kirby, who, as you said in the Chamber, is “a great individual who epitomises that good community.”

While I agree with the sentiment of your proposal, I note that Mr Kirby is already highly decorated, including having the former National Centre in HIV Epidemiology and Clinical Research (NCHECR) at the University of New South Wales renamed the Kirby Institute for Infection and Immunity in Society in his honour.

Of course, this does not mean the state of New South Wales, and the City of Sydney, should not further celebrate the contributions of such an eminent jurist, and the first openly gay man appointed to the High Court.

However, I would humbly like to suggest that, if you wish to pursue this proposal, you could also consider co-naming the square after the first openly lesbian woman appointed to the High Court, Ms Virginia Bell. The location could then be known as either the Kirby-Bell Square or the Bell-Kirby Square.

I make this suggestion because I think it is important to recognise and celebrate the achievements of both the gay and lesbian communities, who each have a historical connection to Taylor Square.

Ms Bell, who replaced Mr Kirby on the High Court following his retirement, is another distinguished resident of Sydney, and one who began her legal career in the inner-city working at the Redfern Legal Centre.

Ms Bell was also a participant in the very first Sydney Gay Mardi Gras on 24 June 1978, which, fortuitously, assembled at Taylor Square before commencing the march. Renaming Taylor Square in Ms Bell’s honour, alongside Mr Kirby, would therefore acknowledge some of the important LGBTI history of this particular location.

Thank you in advance for considering my suggestion for renaming Taylor Square to be Kirby-Bell or Bell-Kirby Square, which I think would be more inclusive of the lesbian and gay communities of Sydney.

Sincerely

Alastair Lawrie