I realised I was same-gender attracted on my first day at a religious boarding school in Brisbane in the 1990s. It was terrible timing, and meant my high school experience there was a living hell.
This was a school that was proud to publish its homophobia in its school rules – homosexuality would not be tolerated because it was not in accordance with god’s will.
It was abundantly clear that ‘coming out’ as gay was simply not an option. To do so would likely be met with punishment. And so I didn’t.
At its worst, I vividly recall a school pastor giving a sermon to a chapel full of 600-or-so year 11 and 12 students, talking about how a child from his former parish had come to see him ‘struggling with confusion’ about who he was. He said the child ultimately committed suicide – before observing this was not the worst thing he could have done.
For many queer kids sitting there that day, like me, the sermon’s underlying message was obvious: much better to be dead than gay.
The school’s overall approach to LGBTQ issues oscillated between that kind of explicit prejudice on one hand, and silence and invisibility on the other (including failing to provide any relevant sex education, which was particularly dangerous at a time when HIV/AIDS was still killing thousands).
Looking back, I think this ‘invisibilisation’ was actually more detrimental in terms of its impact on me, because it meant suffering in silence, completely alone, with the people who were supposed to be looking after me offering no solace.
The climate created by the school’s silence on sexual orientation and gender identity also allowed anti-LGBTQ bigotry to flourish amongst its students.
While I cannot be certain homophobia was a conscious motivator in the multiple physical assaults I experienced in Year 11 (which went unpunished by the school), the fact I was ‘different’ in some fundamental way, left cowered by fear into being withdrawn and isolated, rendered me vulnerable.
I can be more confident homophobia was behind the choice by Year 11 students to bestow on me the ‘Big fat poof’ award at the end of Year 12, in front of both peers and boarding school staff, with the latter doing nothing to respond to it.
Not even to check if I was okay.
That was almost three decades ago, so why I am writing about it now?
Because, with Commonwealth Parliament yet again debating the issue of protections for LGBTQ students and teachers – and yet again looking like letting the LGBTQ community down – there’s two points I want people, and especially politicians, to know.
First, that religious school homophobia, biphobia and transphobia causes serious harm. For me, that meant thinking about committing suicide every single day from the start of Term 2 in Year 8, until the final term of Year 12. Sometimes upwards of twenty times a day.
That is no way for a child to live. And definitely no way to learn, or to grow.
Nor does it suddenly end when the students who are the victims of this prejudice leave the school gates for the final time.
Trust me, I know. Those terrible five years have impacted me for much, much longer than that again.
The hurt and the harm I suffered was a major contributing factor to the lost decade that was my twenties, culminating in my thankfully unsuccessful attempt at suicide around my 29th birthday, more than a decade post-school.
Life got better when I met partner just after I turned 30, but I am not ashamed to admit that even now the trauma from my schooling is something I have discussed with my psychologist multiple times over the past 12 months.
And so, if the Labor Government chooses to break their clear election promise to protect LGBTQ students in religious schools, it won’t just be a betrayal of the students currently enrolled in homophobic, biphobic and transphobic schools – who, as highlighted by Equality Australia’s ‘Dismissed, Denied and Demeaned’ report released on Monday, continue to be vulnerable now.
It will be a betrayal of their futures too, with the impacts continuing to be felt in the 2030s, 40s and 50s.
Second, while it may not initially seem like it, my story is one of hope.
Because those experiences were in Queensland – a state which legislated to protect LGBTQ students in religious schools against discrimination two decades ago, and which is currently consulting on promised reforms to protect LGBTQ teachers too.
Far from causing religious schools to cease to exist, as baseless scare-mongering by groups like Christian Schools Australia assert, the main outcome has simply been that LGBTQ students can finally learn and grow safe from discrimination on the basis of who they are.
And, I’m reliably informed by people whom I trust, that includes at the school I went to. Change is possible.
Sadly, that still has not happened everywhere, with religious schools legally free to discriminate against LGBTQ students under Commonwealth law, and in NSW, WA and SA too.
Commonwealth Parliament can rectify this by immediately implementing the straight-forward recommendations of the ALRC report. If they do, they would be choosing to bestow a brighter future on LGBTQ students right across Australia.
*****
For LGBTIQ people, if this post has raised issues for you, please contact QLife on 1800 184 527, or via webchat: https://qlife.org.au/resources/chat
Or contact Lifeline Australia on 13 11 14.
Five years at a homophobic religious boarding school caused decades of harm.
*****
For an extended account of my experiences at that homophobic and harmful religious boarding school, you can read the following:
Finally, if you have appreciated 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
Right now, the NSW Government is consulting the community about whether to introduce new commemorative birth certificates, with proposed themes including ‘AFL, Olympic and Astrology Zodiac’ (yes, seriously).
At the same time, trans and gender diverse people in NSW continue to endure the most regressive birth certificate laws of any state or territory in Australia, which require people seeking to update their identity documents to first undergo genital surgery – something many do not want, and even more cannot afford.
It is offensive that I might be able to access an astrology-themed birth certificate (Leo, don’t judge) before many of my trans and gender diverse friends can obtain identity documents that simply reflect who they are.
The Births, Deaths and Marriages Registration Act is far from the only NSW law that treats LGBTIQ people as second-class citizens. There are many ways in which LGBTIQ people in this state wake up each day confronted by their own ‘horror-scope’ of discrimination and mistreatment.
For LGBTQ students at religious schools: You could be suspended or expelled today simply because of who you are. [Or, as we saw last week, you could be denied the ability to bring your partner to the school formal because they are the ‘wrong’ gender.] But there’s nothing you or anyone else can do about it.
For LGBTQ teachers at religious schools: You could lose your job today, and it has nothing to do with your ability to perform your role.
For bisexual, non-binary and intersex people: You could be discriminated against or vilified as you go about your everyday activities, but don’t bother complaining to Anti-Discrimination NSW – the Anti-Discrimination Act doesn’t protect you.
For LGBTQ people seeking to access publicly-funded disability, health, homelessness, and other community services operated by religious organisations: Closed doors could be a constant in your day – because the services you need can turn you away just for being you.
And for vulnerable young LGBTQ people: Watch out for people or groups seeking to change or suppress your sexual orientation or gender identity – even though what they offer is psychological torture, it’s still totally legal here.
Despite being the home of the Sydney Gay & Lesbian Mardi Gras, and recent host of World Pride, it’s no exaggeration to describe the state of LGBTIQ laws in this state as abysmal. Indeed, none of the above scenarios have changed since before the Sydney Olympics, leaving us with the worst legislation in Australia.
NSW is the gold medal winner in anti-LGBTIQ bigotry. Although somehow I doubt we’ll be able to get that on any ‘Olympic’ themed commemorative certificate.
Right now, there are two Bills before NSW Parliament that would remedy this situation: strengthening protections against discrimination, finally providing trans and gender diverse people with access to identity documents that reflect their gender identity, and prohibiting sexual orientation and gender identity conversion practices.
They were drafted following consultation with the community, including trans and gender diverse people as well as survivors of conversion practices.
In many cases, they would simply drag NSW law up to minimum standards that have existed in other jurisdictions for years, or even decades (with LGBTQ students in religious schools protected against discrimination for upwards of twenty years in Tasmania, Queensland and the Northern Territory).
The NSW Government is currently considering whether to support them. It is imperative they do – and seize the opportunity to bring many of the state’s LGBTIQ laws into the 21st century.
Even if they do, however, the job of achieving full protection for the LGBTIQ community will not be over. Sadly, the Bills currently before Parliament do not follow the ACT’s precedent in addressing one of the most extreme human rights violations against any part of our community: the ongoing involuntary surgeries and other medical interventions performed on children born with variations of sex characteristics (intersex children).
Nevertheless, the reforms contained in Greenwich’s Bills are essential, and should be progressed.
So, as the Minns Labor Government decides whether to support the fundamental protections these Bills offer, they should read their own horoscope for today:
You have the chance to make a tangible difference in the lives of LGBTIQ people across NSW. And it’s much more important than introducing star sign-themed birth certificates.
Chris Minns (centre) marching in this year’s Sydney Gay & Lesbian Mardi Gras Parade.
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Thank you for the opportunity to provide this submission in response to the Draft National Care and Support Strategy 2023.
I do so as a long-standing advocate for lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) Australians, with a particular focus on ensuring our communities are legally protected and can live our lives free from discrimination on the basis of who we are.
At the outset, I would like to commend the Government for taking on the issue of ensuring the ‘care and support economy’ is working effectively and efficiently for the benefit of all people, including the people accessing these services as well as the workers providing them.
As noted in the draft strategy as circulated, this is especially important given ‘Australian Government spending in these sectors is projected to rise from around $60bn in 2021-22 to more than $110bn by 2026-27.’
In this context, however, it is disappointing that so little consideration is given to how the care and support economy impacts LGBTIQ people.
Indeed, as far as I can tell, there is only one reference to LGBTIQ people in the entire 56 pages of the proposed strategy (which I will address in more detail below).
Almost inevitably, this means that the impact of the care and support economy on LGBTIQ people accessing services, and LGBTIQ workers – as well as the inter-relationship between these two cohorts – is not adequately addressed.
I therefore call for the following issues to be addressed in more detail in the final version of the strategy to be released later this year.
Better protections for LGBTQ people accessing care and support services
While increased Government funding for care and support services overall is obviously welcome, one particular aspect of this funding which causes potential problems for the LGBTIQ community is that a significant share is provided to religious organisations to operate what are essential public services.
Although many religious organisations are now accepting of LGBTQ people and our families, many others remain discriminatory in their approaches towards diversity in sexual orientation and gender identity.
And in at least some of these cases, although thankfully not all, this discrimination is legally permitted under the Commonwealth Sex Discrimination Act1984.
First, on the positive side, the 2013 amendments to this legislation, which protected LGBTI people against discrimination under federal law for the first time, included a ‘carve-out’ which provides that Commonwealth-funded age care services operated by religious organisations are not permitted to discriminate against LGBTQ people accessing those services (sub-section 37(2)(a): ‘Paragraph (1)(d) does not apply to an act or practice of a body established for religious purposes if… the act or practice is connected with the provision, by the body, of Commonwealth-funded aged care.’)
While welcome, this carve-out is also extremely narrow. It does not protect LGBTQ people accessing non-Commonwealth Government funded aged care services against discrimination because of their sexual orientation and/or gender identity.
Even worse, the fact this carve-out only applies to aged care, means that other parts of the care and support economy – from disability services, through veterans’ care and early childhood education and care – are not covered.
In other words, religious organisations which operate services in these sectors are free to discriminate against LGBTQ people accessing them, even where the service is being provided with Australian Government money. With taxpayers’ money. With our money.
This is completely unacceptable in 2023. People should be able to access these services – disability services, veterans’ care and early childhood education and care – without having to fear such discrimination.
It is also completely contradictory to the otherwise-worthy stated objectives of the Draft Strategy.
This includes 1.4 ‘Services are culturally and psychologically safe for all people.’ Supported by the discussion on page 19 – which is the only place LGBTIQ people are explicitly mentioned in the document: ‘In addition to formal qualifications, the increasingly diverse Australian population also requires a workforce that is culturally competent for First Nations people, people from culturally and linguistically diverse backgrounds and lesbian, gay, bisexual, transgender and intersex people.’
Services cannot be culturally and psychologically safe for all people if some services are granted special privileges to discriminate against LGBTQ people accessing them.
And aiming for a workforce that is culturally competent to engage with LGBTI people is undermined if those services are permitted to refuse to engage with LGBTQ people anyway.
Therefore, if the Draft Strategy is to meet its stated objectives it must also include a recommendation, and commitment, to remove the exceptions in the Sex Discrimination Act that currently allow religious organisations to discriminate against LGBTQ people accessing disability services, veterans’ care and early childhood education and care.
2. Better protections for LGBTQ workers providing services
The need to improve legal protections for LGBTQ people under the Sex Discrimination Act doesn’t just apply to the people accessing those services – but also extends to the workers providing them.
This is especially important when, as noted in the draft Strategy, ‘The health care and social assistance industry now accounts for 15 per cent of Australia’s workforce, making it the largest employing industry in Australia’ and that ‘The care and support workforce is growing 3 times faster than other sectors in the Australian economy.’
Being able to enjoy safe and secure jobs, and ultimately careers, is therefore important for all cohorts within the Australian community – but this is something currently denied to too many LGBTQ workers.
That is because religious organisations receiving Commonwealth, State and Territory funding to deliver these services are legally permitted under federal anti-discrimination law to discriminate against workers simply based on their sexual orientation and/or gender identity.
Unlike LGBTQ people accessing aged care services, this includes LGBTQ workers in those services – sub-section 37(2)(d) makes it clear that the ‘carve-out’ does not apply where ‘the act or practice is… connected with the employment of persons to provide that aged care.’
There is also no Commonwealth protection for LGBTQ workers delivering disability services, veterans’ care or early childhood education and care, where their employers are faith bodies.
This is unacceptable. Workers should be hired, fired, promoted or otherwise engaged or not engaged on the basis of their ability to deliver this vital ‘care and support’ – not on their sexual orientation and/or gender identity.
This obviously has direct negative impacts on the LGBTQ workers involved – and potential workers too, who may be dissuaded from entering the care and support workforce to begin with if they are aware large sections of these industries are legally empowered to mistreat them just because of who they are.
But it also undermines the stated objectives of the draft strategy, including:
2.4 ‘Workplaces are safe and healthy, and psychological and physical risks are eliminated or, if this is not possible, minimised’ and
2.6 ‘Workplaces are inclusive of diverse cultures, genders, ages and abilities and are culturally safe for all workers, including First Nations workers.’
Psychological risks for LGBTQ workers are not being eliminated or minimised however long religious organisations in the care and support economy are legally permitted to discriminate against them.
And workplaces can never be ‘culturally safe for all workers’ while this situation prevails too.
If the Government is serious about achieving both of those objectives, then it must include a recommendation, and commitment, to remove the exceptions in the Sex Discrimination Act that currently allow religious organisations to discriminate against LGBTQ workers providing aged care, disability services, veterans’ care and early childhood education and care.
3. Better protections for LGBTQ workers will lead to better services for all people, including LGBTQ people, accessing these services
It should be noted that, as well as benefitting individual LGBTQ workers, removing the ability of religious organisations in this sector to discriminate against LGBTQ workers will also deliver a higher quality of care – which is something all Australians have an interest in.
The first and most obvious way in which the ability of religious organisations to discriminate against LGBT employees impacts on the quality of aged care services is the reduction of potential talent in their aged care workforce.
This is an entirely logical, and foreseeable, outcome; by excluding some highly-qualified applicants, for reasons that have nothing whatsoever to do with their ability to perform the relevant role(s), the number of qualified applicants from which to choose is inevitably diminished.
This impact may be exacerbated in remote, rural and regional Australia, where the number of applicants for a position may be much smaller to begin with – any loss of highly-qualified applicants, simply because of their sexual orientation or gender identity, could have a severe impact on service standards.
And this impact will likely exist for as long as the general exception in the Sex Discrimination Act 1984 allows religious aged care services to discriminate in this way.
Because, even if a particular aged care facility doesn’t discriminate at a particular point in time, highly-qualified LGBT employees may nevertheless be discouraged from applying because of the possibility of being legally discriminated against in the future. In remote, rural and regional Australia, where there may be limited employment options, this could even result in qualified employees being lost to the aged care services industry entirely.
There is also a compelling argument that the stress of LGBT employees working in religious aged care services that may lawfully discriminate against them, where they may need to be constantly vigilant in self-censoring their words and actions lest they be ‘found out’, undermines the quality of service provided because it serves as a potential distraction from their day-to-day responsibilities.
People accessing aged care services have the right to expect the highest possible standard of care. That is not provided when an aged care service refuses to employ highly-qualified people simply because they are lesbian, gay, bisexual or transgender.
The second practical reason why allowing religious aged care services to discriminate against LGBT employees impacts on the quality of aged care services is that it can contribute to an organisational culture of homophobia, biphobia and transphobia.
Once an organisation acts in a manner that suggests discriminating against employees on the basis of their sexual orientation or gender identity is acceptable, it is hard not to see this abuse spilling over into the treatment of LGBT people accessing these services.
LGBT individuals and couples in aged care facilities may directly witness the homophobic, biphobic and transphobic mistreatment of staff, and feel less safe in their surroundings as a result. Or they could be subject to direct or indirect anti-LGBT discrimination themselves.
There is already a significant power imbalance between people accessing these services and the service-providers themselves. As a result, even if the LGBT person accessing the service technically has a right not to be discriminated against under the Sex Discrimination Act 1984, they may feel uncomfortable in making a formal complaint because of a legitimate fear that the organisation will not be responsive to it.
LGBT people accessing these services are also denied natural allies because any LGBT employees at the facility may feel unable to advocate on their behalf because they are also afraid of retribution from the organisation itself (in this case, entirely legal).
Homophobic, biphobic and transphobic discrimination against LGBT employees inevitably has a detrimental impact on LGBT individuals and couples accessing aged care services.
The third and final practical reason why allowing religious aged care services to discriminate against LGBT employees impacts on the quality of aged care services, especially for LGBT people, is that it denies them an opportunity for human connection.
Residential aged care facilities, in particular, are the ‘homes’ of the people living in them, usually for the final years or decades of their lives. The provision of services is about much more than simply providing shelter, food and health care.
For LGBT individuals and couples, having one or more LGBT employees offers the opportunity to bond with them over potential interests, and to share stories with each other (including, I might add, the ability for younger LGBT employees to learn from the older LGBT residents).
However, this opportunity is lost if an LGBT employee is unable to discuss this aspect of their lives, for fear of being discriminated against. For the resident, the possibility of conversation is replaced by silence.
Discrimination against LGBT employees in aged care services can exacerbate the social isolation experienced by LGBT individuals and couples accessing those services.
In conclusion, there are principled reasons why religious aged care services should not be able to discriminate against LGBT employees. These employees should be judged on their ability to perform the role, not on the basis of their sexual orientation or gender identity. And taxpayers’ money should not be used to subsidise anti-LGBT discrimination.
There are also practical reasons why such discrimination should be prohibited, including that it impacts on the quality of aged care services provided, contributes to a culture of homophobia, biphobia and transphobia, and denies LGBT residents an opportunity for human connection.
Therefore, to improve the quality of aged care services, including although not only for LGBT residents, the special privilege allowing such discrimination should be repealed.
*****
The same or similar arguments can be made with respect to LGBTQ workers providing other services in the care and support economy.
If we care about the care and support economy, if we care about the people working in it, and above all the people accessing the services within it, then the special privileges which allow religious organisations to discriminate against LGBTQ people must be repealed.
Sadly, not a lot has changed since I wrote that Aged Care Royal Commission submission more than four years ago. Perhaps the only two developments to note are a) even more money seems to be going to these sectors (and therefore to faith-based organisations providing these services), and b) the change to the Commonwealth Government in May 2022.
The previous Morrison Liberal/National Government was clearly uninterested in protecting LGBTQ people accessing services, and LGBTQ workers (indeed, with their thankfully abandoned Religious Discrimination Bill, they potentially sought to increase discrimination against both groups).
The questions now are for the Albanese Labor Government:
How serious are you about ensuring care and support economy services are ‘culturally and psychologically safe for all people’, including LGBTQ people?
What priority do you give to eliminating as far as possible psychological risks to workers, and ensuring workplaces are ‘culturally safe for all workers’, including LGBTQ workers?
Because if you’re serious about this, if it’s a priority to you, then the final version of the National Care and Support Economy Strategy 2023 must include recommendations, and commitments, to remove the special privileges under the Sex Discrimination Act 1984 (Cth) which allow religious organisations to discriminate against people on the basis of their sexual orientation and/or gender identity.
Thank you in advance for taking the issues raised in this submission into consideration as the National Care and Support Strategy is finalised. Please do not hesitate to contact me, at the details provided, should you require more information.
In 2015 and 2018, under then-Leader Bill Shorten, the Australian Labor Party adopted national party platforms with wide-ranging policy commitments on LGBTIQ issues. These helped to inform the promises taken to the federal elections in the following years, which were similarly-broad in scope.
In 2021, the ALP, under Shorten’s replacement Anthony Albanese, adopted a much more narrowly-drafted party platform, which involved jettisoning some previously-held LGBTIQ policies (although a few of these were restored via conference resolutions from the floor). This was then reflected in an relatively narrow range of LGBTIQ promises at the May 2022 election.
With the next ALP National Conference coming up in Brisbane on August 17-19 2023, this week the Party’s national policy forum released its draft Platform for public consultation.
Unfortunately, the LGBTIQ policy commitments it contains have been pared back even further than the already-limited 2021 offerings, including in the following key areas:
The draft platform axes previous support for LGBTIQ vilification protections
The 2021 National ALP Platform includes a commitment that:
‘Labor will work closely with LGBTIQ Australians and advocates to develop policy that will…
b. strengthen laws and expand initiatives against discrimination, vilification and harassment on the basis of sexual orientation, gender identity or sex characteristics.’ (p64).
The 2023 draft Platform instead includes the general statement that: ‘Labor will work closely with LGBTIQ+ Australians and advocates to develop policy that meets the specific needs of the community to ensure equality with broader Australian society.’ (p56).
This clause is so generic, and so bland, as to be almost meaningless.
It is difficult to comprehend why previous ALP support for vilification protections has been axed in the current political climate, with TERFs and neo-Nazis rallying on the steps of Victorian Parliament, Christian Lives Matter rioting in Sydney, Mark Latham being Mark Latham, and escalating violent threats against local councils hosting Drag Story Time events (and LGBTIQ community events more broadly).
What makes this axing even worse is that, just two pages later, under the heading ‘Freedom of thought, conscience and religion’, the 2023 draft Platform actually retains its previous commitment from the 2021 Platform for Commonwealth religious vilification laws:
‘Labor believes that people of faith deserve the same human rights, equality, respect and safety as every other Australian. No Australian should ever be vilified, discriminated against or subjected to violence or threats of violence because of that person’s religion or religious belief. Labor will work to ensure that Australia’s anti-vilification laws and discrimination framework are fit for purpose.’ (p58).
Those are strong sentiments. I, and I’m sure many other LGBTIQ Australians, could perhaps suggest another community, currently under sustained attack from far-right extremists, who could perhaps do with a similar expression of support…
But the piece de resistance of this shameful situation is that the draft Platform actually repeats the promise of religious vilification laws on the following page for a second time:
‘Labor believes that people of faith deserve the same human rights, equality, respect and safety as every other Australian. No Australian should ever be vilified, discriminated against or subjected to violence or threats of violence because of that person’s religion or religious belief. Labor will therefore ensure that Australia’s anti-vilification laws are fit for purpose.’ (p59).
So, the draft 2023 ALP Platform axes support for LGBTIQ vilification protections, at a time when we need them more than ever, while promising it to people of faith. Twice.
That’s the opposite of great.
2. The draft platform axes previous support for affordable trans health care
The 2015 and 2018 ALP National Platforms included commitments to, where possible, reducing out-of-pocket medical costs for gender-affirming health care.
While this was cut from the official platform in 2021, a conference resolution was passed which included the following:
‘Labor acknowledges the needs and rights of transgender and gender diverse people to fair, equal and affordable access to health care services. For many, this many include accessing vital specialist health services and gender-affirming medical technologies. Labor commits to removing, wherever possible, barriers to accessing these services in consultation with medical experts and government.’ (p140).
That statement appears to have been significantly cut back, reappearing in the following form in the 2023 draft:
‘Labor supports queer, transgender and gender diverse Australians and their families, and will work to support their agency in health decisions. Labor will provide access to the vital health and support services LGBTIQ+ Australians need.’ (p44).
Worryingly, this redrafted clause removes any specific reference to the affordability of trans health care, which is really the point: far too many trans and gender diverse people are currently blocked from accessing the care they need because they simply cannot afford it.
3. The draft platform axes most intersex-specific commitments
Intersex Australians fare even worse than their trans and gender diverse counterparts in the draft 2023 Platform.
The 2021 version included a commitment to: ‘support intersex-led organisations to provide support to intersex persons and their families, and advocate on intersex issues.’ (p64).
The 2021 conference also passed multiple resolutions from the floor, including statements that:
‘Labor will recognise the bodily integrity of intersex persons, prohibiting modifications to the sex characteristics of people with innate variations of sex characteristics performed for social or cultural reasons, and ensuring respect for intersex persons right not to undergo sex normalisation treatment. Labor commits to supporting the development and implementation with community participation of human-rights affirming oversight and standards of care, including for accessing lifetime medical treatments and procedures.’ (p140).
and
‘Labor will ensure that the actions of a Federal Labor Government are informed by the Yogyakarta Principles on the Application of International Human Rights Law in Relation to sexual orientation, gender identity, gender expression and sex characteristics and the Plus 10 Supplementary Principles. Further, Labor acknowledges the Darlington Statement as a guide to intersex policy responses within Australia.’ (p142).
As far as I can tell, not one of these commitments made it into the draft 2023 Platform. This is deeply troubling given the human rights abuses experienced by intersex Australians aren’t just the worst of those affecting the LGBTIQ community, they are some of the worst affecting any group in Australia.
4. The draft platform fails to support an LGBTIQA+ Human Rights Commissioner at the Australian Human Rights Commission
One area where the draft Platform hasn’t gone backwards from 2021 is on the question of a stand-alone, dedicated Commissioner for Sexual Orientation, Gender Identity and Sex Characteristics at the Australian Human Rights Commission (AHRC) – because neither version commits to creating this much-needed role.
However, the 2015 and 2018 platforms did, with the Shorten Labor Opposition promising to introduce one at both the 2016 and 2019 federal elections.
Recent events have, I believe, demonstrated the urgent need for such a position. Unfortunately, in the absence of an LGBTIQA+ Commissioner, the AHRC has not issued any media releases in response to the TERF and neo-Nazi rally, Christian Lives Matter riot, or escalating threats of violence against Drag Story Times.
The LGBTIQ community is under attack, and it feels like nobody federally is on our side.
Instead of seeking to rectify this situation, the draft 2023 Platform offers this acceptance of the unsatisfactory status quo: ‘Labor supports the Australian Human Rights Commission and its commissioners, including the important work they do to promote a more inclusive and respectful society.’ (p59).
We need an LGBTIQA+ Commissioner, and we need it yesterday.
Who knows, perhaps if there already was such an office-holder, the people responsible for drafting the consultation version of the 2023 national platform might have done a better job at understanding the need for more, and more-detailed, LGBTIQ policy commitments?
*****
If you haven’t guessed by now, I am genuinely disappointed (#understatement) by the draft national ALP platform released this week, and its omission of key policy commitments affecting the LGBTIQ community.
Beyond that, I am perturbed by the thought process that must have gone into the decision to cut support for things like LGBTIQ vilification protections, at a time of growing threats of violent extremism against our community.
The four issues outlined above are just those I have identified today. I am sure there will be others, affecting different parts of our community, which will become apparent in the coming days.
But there is an urgency to this analysis, because the draft platform is only open for public consultation until 23 June (ie just over three weeks away).
It’s time to get writing – and get lobbying – because what the ALP national policy forum has released this week is simply not good enough on LGBTIQ issues.
Anthony Albanese at the 2021 ALP National Conference.
Yes, I acknowledge it’s early April (and a lot has already happened this year, including Better Together in Adelaide, Sydney World Pride, TERF tours, neo-Nazi rallies, Christian Lives Matter riots and Mark Latham being, well, Mark Latham ie a homophobic and transphobic bigot).
But there’s still plenty of 2023 yet to come. I would therefore like to take this opportunity to set out what I think are, or should be, some of the law reform priorities for the lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) community in Australia.
Ending non-consenting surgeries and other harmful medical interventions on children born with variations of sex characteristics
The ongoing mistreatment of intersex kids, which includes egregious violations of the fundamental right to bodily autonomy, remains the worst human rights abuses against any part of the LGBTIQ community.
Once passed, the ACT will become the first jurisdiction in Australia to prohibit many of these non-consenting surgeries and other harmful medical interventions.
This achievement obviously reflects the leadership of ACT Chief Minister Andrew Barr, and his Government. But above all, it is a tribute to the relentless advocacy of Intersex Human Rights Australia, its tireless Executive Director Morgan Carpenter, and the intersex community and movement more broadly.
However, even after this historic legislation is implemented, there will remain seven other states and territories where children born with variations of sex characteristics are not protected.
October 2023 will mark ten years since the Final Report of the Senate Inquiry into ‘Involuntary or coerced sterilisation of intersex people in Australia’, which first recommended such surgeries should end. At the current rate – of one jurisdiction legislating every ten years – it will take until 2093 before all intersex children are protected around the country.
That is clearly not good enough. We need the Governments of New South Wales, Victoria, Queensland, Western Australia, South Australia, Tasmania and the Northern Territory to follow the lead of the ACT and urgently introduce their own Bills to outlaw these abhorrent practices.
2. Reforming trans birth certificate laws in NSW, Queensland and WA
It is appalling that, in 2023, trans and gender diverse people in NSW and Queensland are still required to undergo genital surgery in order to update identity documents, including birth certificates, to reflect their gender identity. WA is almost as bad – trans people there must demonstrate they have engaged in some form of physical treatment (which may include genital surgery, top surgery and/or hormone treatment), to do the same.
As with the issue of intersex surgeries, on trans birth certificates we start 2023 with good news – in two of these three jurisdictions anyway.
The Queensland Government has introduced the Births, Deaths and Marriages Registration Bill 2022 which, once passed, will remove all requirements for genital surgery, as well as other forms of medical treatment or approval from psychologists or counsellors. I urge the Queensland Parliament to pass this vital law as quickly as possible.
The WA Government meanwhile has publicly committed to abolish their Gender Recognition Board, and remove the serious barriers which confront trans and gender diverse people who simply want identity documents to accurately reflect their identity. Hopefully, the WA reform Bill can be developed, introduced and passed before the end of this year.
Which just leaves NSW – and, assuming both the above Bills do pass, will leave NSW as the only jurisdiction in Australia which mistreats its trans and gender diverse community in this way.
While March saw a change of Government in NSW, the new Minns Labor Government has not made specific commitments to change the laws here. Their response to a question on this topic in the LGBTIQ pre-election community survey, led by ACON, only noted ‘Labor will review these provisions in consultation with the community and trans and gender diverse communities’.
There is therefore a need for significant community pressure to be applied on the NSW Government to reform trans birth certificate laws as a matter of priority – and that pressure should come not just from the trans and gender diverse community, but also from cisgender allies who support trans human rights.
As at April 2023, only two Australian jurisdictions have prohibited sexual orientation and gender identity conversion practices generally: Victoria and the ACT.
A third, Queensland, has only done so in health settings, which means the places where conversion practices primarily occur – religious settings – are not covered.
Therefore, we need 6 of 8 Australian states and territories to either introduce, or upgrade, bans on conversion practices.
There are signs of movement in at least some of those jurisdictions:
The Western Australian Government promised in December 2022 that it would introduce legislation banning conversion practices (although some of the language used at the time suggested it may follow the flawed Queensland approach, rather than the more comprehensive Victorian and ACT models), and
The Tasmanian Government has also committed to implement the recommendations of a Tasmanian Law Reform Institute inquiry into conversion practices (although there have been some delays in the introduction of its legislation).
Meanwhile, the newly elected Labor Government in NSW sent mixed signals on conversion practices during the recent state election campaign. After first promising to ban conversion practices outright, the now-Premier Chris Minns later indicated it may not apply to religious settings, telling faith leaders that:
‘Taking offence at the teachings of a religious leader will not be banned, expressing a religious belief through sermon will not be banned, and an individual, with their own consent, seeking guidance through prayer will not be banned either.’
Advocates will need to spend considerable time explaining to Minns and his Cabinet colleagues why such a limited ban would be almost pointless in addressing the serious harms caused by conversion practices.
At this stage, I am unaware of current proposals in either South Australia or the Northern Territory to prohibit conversion practices – if you know more, please add the details in the comments section, below.
Let’s hope all six jurisdictions named (NSW, Queensland, WA, SA, Tasmania and the NT) take concrete steps this year to consign conversion practices to history (I was going to add ‘… where they belong’, but really, conversion practices have always been torture, and were never acceptable).
4. Modernising LGBTIQ anti-discrimination laws
2022 ended with two important developments in Australian LGBTIQ anti-discrimination legislation. The first saw the NT Parliament pass a major update to its Anti-Discrimination Act 1992, including covering non-binary and intersex people for the first time, and finally protecting LGBTQ teachers in religious schools against discrimination.
The second was the Commonwealth Government amending the Fair Work Act 2009 to explicitly include gender identity and intersex status as protected attributes for the purposes of adverse action and unlawful termination protections (after more than four years of campaigning, by myself and others, including Intersex Human Rights Australia and Just.Equal Australia).
Nevertheless, there remains a long way to go before the patchwork of our anti-discrimination laws finally ensure all LGBTIQ people, all around the country, can live our daily lives free from the threat of discrimination just because of who we are.
In (the remainder of) 2023, some of the main areas of activity will include:
Commonwealth
At Commonwealth level, the primary focus is obviously the Australian Law Reform Commission inquiry into religious exceptions allowing discrimination against LGBTQ students and teachers at religious schools, which is currently due to report on 21 April. Demanding that any subsequent Bill passed protects students and teachers, without allowing discrimination via alternative means, is essential.
But it is by no means sufficient. We also need to reform religious exceptions under the Sex Discrimination Act 1984more broadly, to ensure LGBTQ people accessing services, and LGBTQ workers, are not discriminated against by faith-based bodies across a range of public services, including health, housing, disability, welfare and other community services. As well as lobbying to include similar reforms to protect LGBTQ workers in the Fair Work Act(which also has incredibly broad religious exceptions), including via the Commonwealth Government’s Employment White Paper process.
New South Wales
Regular readers of this blog will be aware that the NSW Anti-Discrimination Act 1977 is the worst LGBTIQ anti-discrimination law in Australia. It fails to protect bisexual people. And non-binary people. And intersex people. It has the broadest exceptions allowing discrimination against LGBTQ students. And teachers. And the broadest religious exceptions generally. (For more background, see: What’s Wrong With the NSW Anti-Discrimination Act 1977?)
While the previous Government effectively ignored these problems, the new NSW Government has at least agreed to refer the Act to the NSW Law Reform Commission for comprehensive review. This review needs to take place as quickly as possible, as does any legislation which emerges from it, to finally drag the NSW Anti-Discrimination Act into the 21st century.
Queensland
Queensland’s Anti-Discrimination Act 1991 is already much better than NSW’s – and, by the end of 2023, it’s LGBTIQ anti-discrimination laws should move even further ahead (and approach those of Tasmania, Victoria and the ACT which are now the best in the country). That’s because the Bill updating trans birth certificate requirements, described earlier, also modernises the definition of gender identity, to protect non-binary people, and introduces a new protected attribute of sex characteristics.
Even more significantly, the Government has agreed in-principle to all of the recommendations of last year’s review of the Anti-Discrimination Act by the Queensland Human Rights Commission, and vowed to introduce a new Act by the end of this year. That Bill should finally remove the ‘Don’t Act, Don’t Tell’ regime which still applies to LGBTQ teachers in Queensland’s religious schools, and replace it with a system where teachers are judged on their ability, not their sexual orientation or gender identity.
Western Australia
Western Australia has much, much worse LGBTIQ anti-discrimination laws than Queensland – indeed, they are almost as bad as NSW’s – but they are on track to make a great leap forward this year. The WA Government has similarly accepted the recommendations of its own Law Reform Commission review of the Equal Opportunity Act 1984, including to ensure all trans and gender diverse people, as well as intersex people, are finally covered, and to modernise its approach to religious exceptions, including to protect LGBTQ students and teachers in religious schools. This legislation needs to be introduced and passed as a matter of priority – because LGBTIQ people in WA have waited for far too long already to enjoy effective anti-discrimination laws.
South Australia
The only Australian jurisdiction which does not already unequivocally protect LGBTQ students and teachers in religious schools against discrimination and which also does not have at least a process in place (or promised) that could lead to these exceptions being removed is South Australia. It’s time for the South Australian Government to take urgent steps to remedy this situation.
The same NT laws which modernised their Anti-Discrimination Act 1992 also prohibited vilification there for the first time through the introduction of new section 20A, which provides:
‘A person must not do an act that (a) is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and (b) is done because of an attribute of the other person or of some or all of the people in the group.’
Despite this positive development, there are still four Australian jurisdictions which do not prohibit anti-LGBTIQ vilification in any way: the Commonwealth, Victoria, Western Australia and South Australia.
Of these, the WA Law Reform Commission review of the Equal Opportunity Act 1984 recommended that anti-LGBTIQ vilification should be prohibited, so hopefully this gap will be addressed this year.
While the Victorian Government has a long-standing commitment to introducing anti-LGBTIQ vilification laws, a commitment which seems to have been revived following the recent TERF and neo-Nazi rally on the steps of Victorian Parliament.
Indeed, the events of the past few months, including that TERF tour and neo-Nazi demonstration, as well as the Christian Lives Matter riot in Sydney and Mark Latham’s potentially vilifying, and definitely homophobic, tweets, have reiterated the need for vilification protections nation-wide, meaning the Commonwealth and South Australia Governments must address this menace too.
6. Creating an LGBTIQA+ Commissioner at the Australian Human Rights Commission
The disturbing events of the past few months have confirmed one of the other major holes in Australia’s LGBTIQ rights framework – the absence of a dedicated LGBTIQA+ Human Rights Commissioner at the Australian Human Rights Commission (AHRC).
While there are existing Commissioners for Race, Sex, Disability, Age, Children, and Aboriginal and Torres Strait Islander Social Justice, there is no stand-alone, independent office-holder with primary responsibility for advocating on issues affecting the LGBTIQA+ community.
This gap meant there were many missed opportunities for commenting on, educating about and generally advancing the rights of LGBTIQA+ Australians when those same rights came under sustained attack.
In my view, it is simply not good enough to ask the Sex Discrimination Commissioner to take on additional responsibility for sexual orientation, gender identity and intersex human rights issues within the AHRC with whatever spare capacity they have left after addressing discrimination against women (hint: not much).
Indeed, as far as I can tell, there have been exactly zero media releases and/or news items on the Commission’s website about the awful attacks on our community over the past month (while the LGBTI section of the website has not been updated since October 2021).
Please note, this is not a criticism of the many good people who work at the Commission. It is simply an inevitable consequence of the severe structural weakness of a model where LGBTQA+ rights are only ever an add-on to someone else’s existing role.
It is beyond time for this structural weakness to be remedied, by the creation and appointment of an LGBTIQA+ Commissioner at the AHRC.
7. Supporting LGBTIQ refugees and people seeking asylum
This priority is both a law reform issue, and something where policies need to be improved and increased funding provided. Australia’s abhorrent refugee laws also obviously harm all people seeking asylum, rather than just LGBTIQ people. In that context, it should be stated that mandatory detention, and off-shore processing, must both be ended for all people seeking asylum.
However, there are some issues which do have a particular impact on LGBTIQ people seeking asylum, including that Australia’s off-shore processing scheme could still involve sending LGBTIQ refugees to Papua New Guinea, a country where male homosexuality remains criminalised (and from which all refugees should be repatriated to Australia).
Our processes for the intake of people seeking asylum are still not suitably tailored to deal with the needs of LGBTIQ people, and in my view we should be increasing the intake of LGBTIQ refugees from countries which are newly–criminalising same-gender sexual activity (including Uganda).
Finally, Australia needs to better support the LGBTIQ refugees and people seeking asylum who are in Australia, including by funding dedicated LGBTIQ refugee support services and the LGBTIQ refugee peak body, Forcibly Displaced People Network (FDPN).
8. Supporting the Voice to Parliament at the upcoming referendum
Even after writing just that heading, I can already hear some people respond: ‘But that isn’t an LGBTIQ issue.’
Except that all LGBTIQA+ people living in Australia are either First Nations LGBTIQA+ people, including brotherboys and sistergirls, or non-Indigenous LGBTIQA+ people living on Aboriginal land.
Meaning all of us have an interest in supporting reconciliation and, in my personal view, the best chance we have of making progress on that in 2023 is by supporting the generous invitation extended by First Nations people through the Uluru Statement from the Heart, which includes commitments to the three inter-related pillars of Voice, Treaty and Truth.
The first step in making that happen is by campaigning, and voting, for a constitutionally-enshrined Voice when it is the subject of a referendum later this year.
LGBTIQA+ Australians, as the community most-recently subjected to a national public vote on our human rights, also have an intimate understanding of what it is like to be at the centre of this type of debate, including consistent attacks from extreme-right politicians and the Murdoch press.
My sincere hope is that many non-Indigenous LGBTIQA+ Australians demonstrate solidarity with LGBTIQA+ First Nations people, and Indigenous people more broadly, by supporting the Voice as it too is attacked by the same people who attacked us. In other words, Vote Yes.
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Well, it’s official. When Sydney World Pride kicks off in less than a fortnight, it will be held in the jurisdiction with the worst LGBTIQ laws in Australia.
This incontrovertible fact is not surprising to anybody who has been paying attention. But it is still shocking to observe all of the different forms of legal prejudice which still exist in NSW. And, as always, the most vulnerable members of our community are the ones left paying the price.
This includes all those let down by the worst anti-discrimination legislation in the country.
The NSW Anti-Discrimination Act 1977 is already the only anti-discrimination law which fails to protect bisexuals against discrimination.
With legislation currently before Queensland Parliament, and a recent promise by the Western Australian Government to implement WA Law Reform Commission recommendations there, NSW will also soon be the only place which fails to protect non-binary people.
And the only place with no explicit intersex protections either.
The Anti-Discrimination Act’s exceptions which allow ‘private educational authorities’ to lawfully discriminate against LGBTQ students and teachers remain the broadest in Australia too.
Once again, the WA Government’s promised response to their Law Reform Commission, and the current Australian Law Reform Commission inquiry into the Commonwealth Sex Discrimination Act 1984, mean it is highly likely, by the end of this year, NSW will retain the only anti-discrimination law which fails to protect LGBTQ young people.
When it comes to the LGBTIQ community, the NSW Anti-Discrimination Act permits more discrimination than it prohibits.
Trans and gender diverse people in NSW are also subjected to out-dated and overly restrictive birth certificate laws.
It is currently one of only two states that still require transgender people to have genital surgery in order to access identity documents which reflect their gender identity – but the other, Queensland, has a Bill before Parliament to remove this unnecessary barrier.
A third jurisdiction, Western Australia, also requires physical treatment of some kind (such as hormone therapy) although the WA Government recently committed to reform their laws.
Unfortunately, the NSW Government has made no such promise here, effectively abandoning trans people who either cannot afford (because of the prohibitive costs involved) or do not wish to undergo surgery, as well as people with non-binary gender identities.
NSW’s laws fail the LGBTIQ community in two other areas which are no less important.
First, there is no ban on sexual orientation and gender identity conversion practices in NSW.
Victoria and the ACT have already banned these dangerous and harmful psychological practices, while Queensland has partially banned it (in health settings only). Other jurisdictions, including Tasmania and Western Australia, have promised to outlaw it. But ‘ex-gay’ and ‘ex-trans’ torture remains legally permitted in NSW today.
Second, there is no prohibition on non-consenting surgeries and other unnecessary and deferrable medical interventions on children born with variations of sex characteristics in NSW either.
These are horrific and ongoing human rights abuses, denying the fundamental right to bodily integrity of intersex infants. Just as horrific is the fact no Australian jurisdiction has, to date, ended these practices.
Thankfully the ACT Government will shortly become the first, with legislation expected to be introduced in the first half of 2023.
Once again, however, there have been no promises, and no signs of movement, on this issue from the NSW Government.
The current appalling situation in these four areas (LGBTIQ anti-discrimination laws, trans and gender diverse birth certificates, sexual orientation and gender identity conversion practices, and non-consenting surgeries and other medical interventions on children born with variations of sex characteristics) constitutes nothing less than a crisis in LGBTIQ rights in NSW.
To some extent, it is a crisis that has emerged, and worsened, only gradually over time, thanks to the inaction of successive Governments of both persuasions (especially in relation to the broken Anti-Discrimination Act).
However, with the O’Farrell/Baird/Berejiklian/Perrottet Liberal-National Government about to celebrate 12 years in office, they must clearly shoulder a significant share of the blame.
Indeed, the last LGBTIQ-specific law reform which the Coalition implemented was way back in 2018.[i] That means they passed exactly zero LGBTIQ-related laws during the entire parliamentary term which has just ended.
By way of contrast, the Victorian Government reformed their Equal Opportunity Act (to better protect trans, non-binary and intersex people, and protect LGBTQ students and teachers), updated trans birth certificate laws, and banned conversion practices, all in the same period (2019-22).
To be fair, during the past term the Berejiklian/Perrottet Government did initiate a Special Commission of Inquiry into LGBTIQ hate crimes (although they rejected community calls for this to be constituted as a Royal Commission, and it obviously remains to be seen what the practical outcomes of the Inquiry will be, if any).
The NSW Government also ultimately rejected Mark Latham’s legislative attack on trans kids. Although that was only after a parliamentary inquiry in which all three Coalition Committee members supported his Bill, and an 18-month public debate during which trans kids and their families felt abandoned. Plus, as I wrote at the time, not going backwards (by rejecting Latham’s Bill) is not the same thing as going forwards (like pro-actively addressing all of the ways in which NSW law still discriminates against trans and gender diverse people).
Perhaps the only unequivocally positive achievement during the term was the development and launch of the NSW LGBTIQ+ Health Strategy 2022-27, which contains a number of important initiatives.
However, no amount of health programs can remove the legal prejudice which confronts LGBTIQ people in NSW – only Government, and Parliament, can do that.
On that note, I find it incredibly curious, and probably revealing that, despite knowing World Pride was headed to Sydney since October 2019, the NSW Government took exactly zero steps to fix any of the four major deficiencies in LGBTIQ rights in this state. They were apparently content for the spotlight to fall on NSW and proudly show their failures to the world.
With the state election on March 25 (less than a month after World Pride finishes), perhaps they thought we would be satisfied with the ‘bread and circuses’ of the coming weeks. Or, to adapt another Roman saying, maybe they believed we would be happy to just dance while our human rights burn.
Well, they might soon discover they were badly mistaken.
[UPDATE 17 February 2023: Following pressure for Independent Member for Sydney Alex Greenwich MP, who has developed his own legislation to ban conversion practices, and a promise by the Labor Opposition to do the same if elected, Premier Perrottet finally expressed ‘in-principle support’ for a ban. However, there remains no detail to this expression of support, including whether it specifically includes gender identity conversion practices, or whether it will cover all sites where conversion practices occur, including religious settings.
UPDATE 23 February 2023: This week, Premier Perrottet wrote to faith leaders to reassure them any bans on conversion practices would not affect religious freedoms, as well as telling a community forum: ‘We will not ban prayer. We will not ban preaching. That is fundamental to freedom of religion.’ In effect, it seems likely any ban by a re-elected Liberal Government would therefore exclude religious settings, where the vast majority of harm is caused. In which case, a Perrottet conversion practices ban would not be worth the paper it is printed on.]
Again, to be fair, this is not to let the NSW Labor Opposition off the hook either.
They were also missing in action in terms of defending our community from Mark Latham’s legislative attack on trans kids, with neither of their Leaders (Jodi McKay and Chris Minns) prepared to publicly condemn it, and one of the two ALP members of the parliamentary Committee actively supporting it.
After 12 years in Opposition, and less than seven weeks out from the election, they also don’t have a comprehensive LGBTIQ policy agenda. Indeed, based on Chris Minns’ ‘Fresh Start Plan’, and the issues listed on his website (https://www.chrisminns.com.au/issues), they don’t appear to have any specific LGBTIQ election policies at all.
Having said that, they do commit to referring the Anti-Discrimination Act to the Law Reform Commission for ‘holistic review’, although the policy (here: https://www.chrisminns.com.au/reviewantidiscriminationact) doesn’t make any detailed commitments in relation to LGBTIQ inclusion, such as protecting LGBTQ students or teachers, or covering bisexual, non-binary or intersex people (while specifically noting ‘the need to address discrimination on the basis of religion.’)
The Policy Committee Report to last year’s ALP State Conference also suggests ‘an incoming NSW Labor Government will work with relevant government agencies and other stakeholders to ban gay conversion therapy in NSW.’ But this is problematic, not just because it is silent on gender identity conversion practices, but also because it goes on to note ‘any proposed legislation to ban gay conversion therapy must not outlaw individuals voluntarily seeking out medical, health, allied health or other advice and assistance regarding their personal circumstances’.
[UPDATE 11 February 2023: Today, Opposition Leader Chris Minns committed a Labor Government to banning LGBTQ+ conversion practices. Importantly, this includes both formal and informal practices, covers LGBTQ+ (rather than just sexual orientation), and features a commitment to work with survivors in drafting the legislation. More details here.
UPDATE 27 February 2023: Unfortunately, just like Premier Perrottet before him, today Opposition Leader Mines ‘reassured’ faith leaders that the ALP’s ban on conversion practices would not impact ‘religious freedom’. His quote, as reported by the Sydney Morning Herald: ‘Taking offence at the teachings of a religious leader will not be banned, expressing a religious belief through sermon will not be banned, and an individual, with their own consent, seeking guidance through prayer will not be banned either.’ This means the ALP’s ban will also only be partial, and therefore only partially effective.]
While there still appears to be no ALP commitments in relation to trans access to birth certificates, or ending medical interventions on intersex kids.
This situation, in 2023, is simply not good enough. The LGBTIQ community of NSW deserves much better, from the Government and the Opposition.
I should clarify here that this article is by no means a criticism of Sydney World Pride, or of its organisers.
Celebrating pride is a worthy and important activity, in and of itself, especially if it contributes to long-lasting culture change. Sydney World Pride’s focus on First Nations LGBTQIA+SB people, as well as human rights in the Asia-Pacific, are both welcome. And, on a personal level, I’m genuinely looking forward to a fortnight of queer cultural events and parties (the tiredness that will inevitably follow, perhaps less so).
However, when the glitter has been swept up, and the paint from the rainbows which have been painted across Sydney starts to crack and fade, we will still be left living under the worst LGBTIQ laws in Australia.
Laws which mean a gay student who simply holds his boyfriend’s hand at Fair Day could be expelled the very next day.
Laws which allow a school to sack a teacher just for marching with her wife and children in the Rainbow Families float in the Mardi Gras Parade.
During World Pride, trans and gender diverse people will have the opportunity to walk across the Harbour Bridge. But most still won’t be able to walk into the NSW Registry of Births, Deaths and Marriages to update their birth certificate simply to match their gender identity.
It is also likely many LGBTQ people will begin their ‘coming out’ journey over the next month, inspired by the visibility of World Pride. But if they’re in NSW and don’t have a supportive family and/or community, they could still be subjected to sexual orientation or gender identity conversion practices – entirely lawfully.
Finally, Sydney World Pride will bring much celebration of the human body, and the joy it can bring. But – tragically – in 2023, NSW continues to allow violations of the bodily integrity of children born with variations of sex characteristics.
So, by all means celebrate during Sydney World Pride, including the achievements that have already been won, and our resilience in the face of ongoing oppression. I know I will.
But we cannot allow ourselves to be distracted from the challenges which remain, challenges which are especially acute right here in NSW.
What better time then to raise our voices, loudly, passionately, as a community, to tell the Government, and Opposition – and anybody else who is seeking our vote on 25 March – that our community deserves better than the legal prejudice which we currently endure?
NB This post is written in a personal capacity, and does not reflect the views of employers past or present, nor of any community organisations with which I am involved.
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] In 2018, the then-Berejiklian Government passed two LGBTIQ-related reforms:
-the first ended forced trans divorce (although they were effectively compelled to do this following the passage of marriage reforms federally), and
-the second replaced homosexual and transgender serious vilification offences in the Anti-Discrimination Act with sexual orientation, gender identity and intersex status ‘threatening or inciting violence’ offences in the Crimes Act (although my understanding is that these offences have yet to be used).
This week saw the 100-day milestone for the new Albanese Labor Government, with lots of attention on issues like climate change, a federal Independent Commission Against Corruption, a referendum to create a constitutionally-enshrined Voice to Parliament, and of course the Jobs and Skills Summit (which I have written about here, and here).
One issue that has received comparatively little focus, but which will be considered by the Senate next week (beginning 5 September), is the possible creation of a Commissioner for Lesbian, Gay, Bisexual, Transgender, Intersex, Queer and Asexual (LGBTIQA+) issues within the Australian Human Rights Commission (AHCR).
I bring this to your attention because there is a strong chance the Government will reject amendments to establish this much-needed position, and this weekend is your last chance to take action to let Prime Minister Albanese and his ministerial colleagues know that you support an LGBTIQA+ Commissioner. But first, some background.
Why an LGBTIQA+ Commissioner?
The AHRC is our national anti-discrimination body, with responsibility for receiving and conciliating discrimination complaints under Commonwealth anti-discrimination laws, including the Racial Discrimination Act 1975, Sex Discrimination Act 1984, Disability Discrimination Act 1992 and Age Discrimination Act 2004.
The AHRC also has a number of statutory office-holders, with responsibility for publicly advocating for equality and human rights generally, including the President and the Human Rights Commissioner, as well as positions dedicated to specific attributes or communities, including the:
Aboriginal and Torres Strait Islander Social Justice Commissioner
Age Discrimination Commissioner
Children’s Commissioner
Disability Discrimination Commissioner
Race Discrimination Commissioner, and
Sex Discrimination Commissioner.
Notice who’s missing? That’s right, there’s no Commissioner with responsibility for LGBTIQA+ issues.
That’s because the 2013 amendments to the Sex Discrimination Act which added sexual orientation, gender identity and intersex status as protected attributes in that law did not create such a position. These are now the only attributes in the four main Commonwealth anti-discrimination laws not to have a Commissioner attached to them.
This omission has left LGBTIQA+ Australians at a distinct disadvantage over the past nine years, with no Commissioner with primary responsibility to speak on issues affecting our community, including during the marriage equality debate (while former Human Rights Commissioner Ed Santow did a good job, it was still only a small part of his overall role).
With ongoing attacks on LGBTIQA+ rights, including the rise of transphobia in both politics and the media, I believe it is beyond time there was a Commissioner within the AHRC empowered to advocate on our behalf, without other competing responsibilities.
The Australian Human Rights Commission Legislation Amendment (Selection and Appointment) Bill 2022
The absence of an LGBTIQA+ Commissioner has become topical in the context of the Government’s Australian Human Rights Commission Legislation Amendment (Selection and Appointment) Bill 2022, one of the first laws introduced since the election.
This is an important Bill, which seeks to enforce a transparent and merit-based appointment process for the statutory office-holders discussed above, both to prevent a repeat of the previous Government’s appointments which failed to meet these criteria, and to maintain the AHRC’s international accreditation as an ‘A-status’ national human rights institution (which is under threat because of those same non-transparent appointments). I support its passage.
However, introducing legislation which focuses on the appointment of Commissioners under national anti-discrimination laws obviously draws attention to the lack of an LGBTIQA+ Commissioner under those same laws.
In this context, and responding to lobbying from LGBTIQA rights group Just.Equal Australia, new Greens MP for Brisbane Stephen Bates introduced the following amendment during the Bill’s Second Reading debate in the House of Representatives in early August:
‘whilst not declining to give the bill a second reading, the House calls on the Government to establish a Human Rights Commissioner for LGBTIQA+ people within the Australian Human Rights Commission.’
In the words of Mr Bates:
‘The lack of such a commissioner is an obvious oversight that we can remedy here today. This remedy would send a strong and clear message to the LGBTIQA+ community that the era of the homophobia and transphobia from the previous government has come to an end, and signal a new approach in engaging with and protecting communities that have suffered systemic oppression for centuries. The community is not asking for anything unreasonable. There already exist commissioners for race discrimination, disability discrimination and so many others. It is vitally important that the LGBTIQA+ community have the same protection of our rights afforded to us.’
This amendment was supported by a number of cross-bench MPs. This includes MP for Kooyong, Dr Monique Ryan, who said:
‘There is a clear and urgent need for a dedicated LGBTIQA+ human rights commissioner. The absence of such diminishes the reality of discrimination against this group of individuals. The absence of such means that no-one at the AHRC has the resources or experience to advocate for and articulate the concerns of the community in legislation, policy reform or public education.’
And the MP for Goldstein Zoe Daniel, who noted:
‘Traditionally, the human rights of the LGBTQI+ community were part of the Human Rights Commissioner’s portfolio, but with that portfolio also holding religious freedom, in recent history I think there’s been a conflict between those two areas. We know that in the last parliament this led to a toxic debate that caused great distress to members of the LGBTQI+ community, particularly trans people, compounding mental health issues for children in this community particularly. For that reason, I think that direct representation is needed.’
While the MP for Warringah Zali Steggall spoke of her front-row view of the transphobic campaign of her failed Liberal Opponent during the recent election:
‘it is clear that in Warringah during the election we had very inflammatory debates about members of our community and their opportunity for inclusion. I have to say that it did raise concerns for me. There was a lack of information in the public domain about the real status of the law when it came to transgender rights and issues within the LGBTQI community. I am concerned that issues that are specific to members of the LGBTQI community do at times get overlooked or submerged into the greater responsibilities of the Sex Discrimination Commissioner, so I think there is merit in there being a more specific mandate for addressing those issues.’
Despite these, what I would describe as compelling, reasons, the Government chose to vote against the Bates amendment, ensuring its defeat.
Attorney-General Mark Dreyfus made two main arguments against the amendment in his own speech:
‘The government will not support that second reading amendment. Let’s be clear about this: the effect of the second reading amendment, if it succeeds, would be to negate the bill, to stop these important measure that are contained in this bill from coming into effect…
‘While we of course understand the strong sentiment expressed by members of the community in support of a dedicated LGBTIQA+ commissioner, this bill is not the vehicle to create such a position. The government recognises that it is important to consider how best the commission can operate to promote and protect the human rights of all members of the Australian community, including LGBTIQA+ people. I acknowledge and commend the work that the commission already undertakes in relation to LGBTIQA+ rights, which is led by the Sex Discrimination Commissioner, Kate Jenkins. There will no doubt be further discussion on this proposal, as well as, I hope, discussion on other opportunities to strengthen the work of the commission in the future.’
The first argument is a matter of debate around the wording of the Bates amendment, and may or may not be correct. It is also probably not relevant to the different, substantive amendments proposed by Greens Senator David Shoebridge and to be voted on in coming days (discussed in more detail below).
However, the second argument is incredibly weak. Claiming LGBTIQA+ rights are already worked on by the Sex Discrimination Commissioner is simply not good enough, for at least two reasons. First, the Sex Discrimination Commissioner has a full-time role of their own, with plenty to focus on in terms of sexism, and sexual harassment – they, understandably, have limited capacity to simultaneously focus on anti-LGBTIQA+ discrimination.
Second, this arrangement does not seem to be working, especially when checking the LGBTI section of the AHRC website itself. Where not only are there no current projects on LGBTI issues – and haven’t been any since October 2021 – there are no news items from the past eleven months either. After all, it’s not like there are any substantive issues of LGBTIQA+ equality which still need to be addressed, or any major debates involving transphobia which have happened during that time… [sarcasm]
What is perhaps most disappointing about the Attorney’s comments is that, irrespective of the Government’s position on the specific Bates amendment, he was unwilling to make a commitment to creating an LGBTIQA+ Commissioner at all, even at some point in the future.
This disappointment was compounded two days later when the Government and Opposition united to defeat a Greens motion in the Senate to at least hold an inquiry into the Bill, to allow for consultation with the LGBTIQA+ community about the need to create a Commissioner within the AHRC.
All hope is not lost
While there is no denying those two votes were setbacks, there is still a third chance for this issue to be progressed.
As mentioned above, Greens Senator for NSW David Shoebridge has introduced a more comprehensive set of amendments to the Bill, which would create an LGBTIQA+ Commissioner on exactly the same basis as the other attribute-based Commissioners. You can see the details of those amendments here.
I understand these amendments are likely to be voted on in the Senate this coming week, and potentially on Tuesday 6 September. Which means we have just days left to convince the Government, as well as cross-benchers like David Pocock, Jacqui Lambie and Tammy Tyrrell, to support these amendments.
The easiest thing you can do, right now, is to sign and then share this petition from Just.Equal Australia calling on the Government to support an LGBTIQA+ Commissioner.
If you have more time, you can also write to the Prime Minister, Attorney-General and/or other members of the Government (like your local MP or Senator), urging them to support the equal treatment of LGBTIQA+ people by establishing an AHRC Commissioner for our community.
Below is the letter I have sent this morning to Attorney-General Dreyfus.
*****
3 September 2022
The Hon Mark Dreyfus QC MP
Attorney-General
PO Box 6022
House of Representatives
Parliament House
CANBERRA ACT 2600
Dear Mr Dreyfus
Please create an LGBTIQA+ Commissioner within the Australian Human Rights Commission
I am writing to call on you to create a Commissioner for Lesbian, Gay, Bisexual, Transgender, Intersex, Queer and Asexual (LGBTIQA+) issues within the Australian Human Rights Commission (AHRC).
The establishment of this position is long-overdue. While there are Commissioners at the AHRC for a number of other attributes within Commonwealth anti-discrimination law, there are none with specific responsibility for advocating for LGBTIQA+ equality and human rights.
This has caused a distinct disadvantage for the LGBTIQA+ community when our rights are up for debate, including during the emergence of transphobic campaigns in politics and in the media over the past 12 months.
The creation of an LGBTIQA+ Commissioner within the AHRC would also be consistent with the 2021 ALP National Platform, which was developed ahead of the election. This included commitments that:
‘Labor will work closely with LGBTIQ Australians and advocates to develop policy that will… strengthen laws and expand initiatives against discrimination, vilification and harassment on the basis of sexual orientation, gender identity or sex characteristics’ (page 64), and
‘All Australians should be able to go about their lives free from discrimination. Labor is the primary architect of the anti-discrimination law framework in Australia. We will continue to defend and enhance that framework to ensure that it is fit for purpose, accessible and promotes equality’ (page 66).
I hope you would agree that creating an LGBTIQA+ Commissioner will ‘strengthen’ and ‘enhance’ initiatives against discrimination on the basis of sexual orientation, gender identity and sex characteristics, while ‘enhancing’ the Commonwealth anti-discrimination framework.
I note that you, and therefore the Government, opposed a second reading amendment in the House of Representatives to your Australian Human Rights Commission Legislation Amendment (Selection and Appointment) Bill 2022 from the Greens which called on the Government to ‘establish a Human Rights Commissioner for LGBTIQA+ people’ within the AHRC.
While one of your arguments was technical (which has hopefully been addressed by the revised, comprehensive amendments proposed by the Greens in the Senate), I am disappointed by another argument you raised, that this work is already being performed by the Sex Discrimination Commissioner.
In my opinion, the Sex Discrimination Commissioner already has a (more than) full-time role in advocating on issues of sexism, and sexual harassment. They do not have the capacity to address LGBTIQA+ discrimination as well, nor should addressing LGBTIQA+ discrimination be treated as some kind of add-on to somebody else’s role, with the consequence that our community’s issues are inevitably ignored (noting, for example, that the AHRC has no current projects on LGBTI discrimination listed on its website, and have not posted even a news item since October 2021).
Now that the Bill has progressed to the Senate, I urge you and the Albanese Labor Government to support Senator David Shoebridge’s amendments to create an LGBTIQA+ Commissioner with the same powers and responsibilities as existing office-holders within the AHRC.
In the event you continue to oppose these specific amendments, for whatever reason, I call on you to:
Commit to the Government itself creating an LGBTIQA+ Commissioner within the AHRC, and
Provide a clear timeline for when this position will be established.
Thank you in advance for considering the issues raised in this correspondence. Please do not hesitate to contact me at the details provided should you like to discuss the above.
Sincerely
Alastair Lawrie
*****
Update: I received the following reply from a Director in the Human Rights Branch of the Attorney-General’s Department:
4 October 2022
Dear Mr Lawrie
Thank you for your email of 3 September 2022 to the Attorney-General, the Hon Mark Dreyfus KC MP, regarding the creation of a LGBTIQA+ Commissioner at the Australian Human Rights Commission (the Commission). The Attorney-General has requested that the Attorney-General’s Department respond to you on his behalf.
The Government believes that all Australians are entitled to respect and dignity, the opportunity to participate in society, and receive the protection of the law regardless of their gender identity, sexual orientation and intersex status. The Sex Discrimination Act 1984 (Cth) prohibits discrimination on the grounds of gender identity, sexual orientation and intersex status in many areas of public life, including employment, education, in the provision of goods, services and facilities. The Government acknowledges the work that the Commission already undertakes in relation to LGBTIQA+ rights, led by the Sex Discrimination Commissioner, Kate Jenkins.
The Government recognises that it is important to consider how best the Commission can operate to promote and protect human rights of all members of the Australian community, including LGBTIQA+ people. The Government understands the strong sentiment expressed by members of the community in support of a dedicated LGBTIQA+ Commissioner. There will no doubt be further discussion on this proposal, as well as other opportunities to strengthen the work of the Commission, in the future.
Thank you for bringing your concerns to the Attorney-General’s attention.
Yours sincerely
[Details redacted]
Commonwealth Attorney-General Mark Dreyfus QC MP.
NB This post is written in a personal capacity, and does not reflect the views of employers past or present.
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
This included a letter to Prime Minister Albanese, Treasurer Chalmers, and seven of their ministerial colleagues, calling on them to include consideration of two matters in particular that affect LGBTIQ people in the workplace:
The absence of explicit protections for trans, gender diverse and intersex employees in the Fair Work Act 2009(Cth), and
The breadth of exceptions, in the Sex Discrimination Act 1984 (Cth) and elsewhere, allowing religious organisations to discriminate against employees on the basis of their sexual orientation and/or gender identity, including in the delivery of public services using taxpayers’ money.
Since then, the issue of potential LGBTIQ exclusion from the Jobs and Skills Summit has been picked up by my friends at Just.Equal Australia, as well as being reported on by:
I also received the below, generic response from the Treasurer’s office, which, to be honest, did not inspire much confidence that my concerns, and the concerns of my community, were being taken seriously:
Dear Alastair,
Thank you for your email and attached correspondence about the Albanese Government’s Jobs and Skills Summit, which is scheduled to held over the 1st and 2nd of September.
The Jobs and Skills Summit will bring together around 100 representatives including from unions, employers, civil society and governments, to address our shared economic challenges.
The outcomes of the Summit will inform the Employment White Paper, which will be a shared vision and comprehensive blueprint for the future of Australia’s labour market.
Although Summit attendance will be limited and invite only, Treasury will be opening a submission process to collect insights and perspectives from the wider community later in 2022.
Again, thanks for taking the time to share your thoughts and views on the above which will be brought to the attention of the Treasurer’s ministerial team.
Best wishes
[Name withheld], on behalf of the Hon. Jim Chalmers MP
Office of the Hon. Jim Chalmers MP | Treasurer of Australia and Federal Member for Rankin
Which made it a pleasant surprise to read, via Out in Perth, the Treasurer Jim Chalmers confirm that LGBTIQA+ issues would indeed be on the agenda at the conference:
‘We recognise that many LGBTIQA+ Australians often face a range of unique challenges when it comes to secure employment.
‘These are exactly the issues that we hope to address through our Jobs and Skills Summit.
‘That’s why removing barriers to employment and workforce participation are central themes of our Jobs and Skills Summit. Our aim is to bring people together around our big economic challenges to ensure more Australians can get a secure, well-paid job.’
Of course, just because LGBTIQ issues might actually be discussed, does not mean the Summit itself, or the Government afterwards, will recommend or commit to taking action to fix the problems which lead to workplace discrimination against, and exclusion of, LGBTIQ people.
I should also note I have not had a response from Albanese, Chalmers or any of the other seven Ministers addressing the substantive concerns raised by my letter.
In which case, the push continues to ensure the Fair Work Act, Sex Discrimination Act and other relevant laws are amended so that LGBTIQ workers are judged on the basis of their ability, not their sexual orientation, gender identity or sex characteristics.
In that context, today I have sent the below emails to two of the primary non-Government voices that will be represented at the Jobs and Skills Summit: ACTU Secretary Sally McManus and Business Council of Australia CEO Jennifer Westacott.
Hopefully their assistance will help give voice to the need to legislate better protections for LGBTIQ workers in Australia.
*****
Sunday 28 August 2022
Sally McManus
Secretary
Australian Council of Trade Unions
Dear Ms McManus
Please support reforms to protect LGBTIQ workers at the Jobs and Skills Summit
I am writing to you about the upcoming Jobs and Skills Summit, at which you will be a key voice advocating for the interests of Australian workers.
In particular, I am writing, both as a union member for two decades, and as a leading advocate for my community, to ask you to support important reforms to protect the rights of lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) workers.
These include:
Reforms to the Fair Work Act 2009 (Cth) to explicitly protect trans, gender diverse and intersex workers against adverse action and unlawful termination. This could be achieved, easily, by adding gender identity and sex characteristics as protected attributes in relevant sections where categories such as race, sex, disability, age and even sexual orientation are already covered.
Reforms to the Sex Discrimination Act 1984 (Cth) and other Commonwealth and State and Territory anti-discrimination laws to remove the special privileges granted to religious organisations allowing them to discriminate against workers on the basis of their sexual orientation and/or gender identity, including in the delivery of public services using taxpayers’ money. This problem is especially acute in what is described in the Issues Paper as the ‘care economy’ and their removal would, I believe, lead to more LGBTQ people entering professions like education, disability services and aged care.
I attach with this correspondence a letter which was sent to Prime Minister Albanese, Treasurer Chalmers and seven of their ministerial colleagues, that provides more detail about these issues, and the compelling reasons why changes must be made to both.
I note both your own strong personal support, and the strong support of many unions and members of the ACTU, to LGBTIQ rights over the past decade, including through the campaign for marriage equality.
I look forward to your support once again, on Thursday and Friday of this week, and over the following months, for the interests of LGBTIQ workers.
Because I am confident that you agree trans, gender diverse and intersex workers should have the same Fair Work Act protections as any employee. And that LGBTQ workers should be judged on their ability, rather than their sexual orientation and/or gender identity.
Sincerely
Alastair Lawrie
*****
Sunday 28 August 2022
Jennifer Westacott
Chief Executive Officer
Business Council of Australia
Dear Ms Westacott
Please support reforms to protect LGBTIQ workers at the Jobs and Skills Summit
I am writing to you about the upcoming Jobs and Skills Summit, at which you will be a key voice in central debates around economic and industrial relations reforms.
In particular, I am writing as a leading advocate for my community to ask you to support important reforms to protect the rights of lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) workers.
These include:
Reforms to the Fair Work Act 2009 (Cth) to explicitly protect trans, gender diverse and intersex workers against adverse action and unlawful termination. This could be achieved, easily, by adding gender identity and sex characteristics as protected attributes in relevant sections where categories such as race, sex, disability, age and even sexual orientation are already covered.
Reforms to the Sex Discrimination Act 1984 (Cth) and other Commonwealth and State and Territory anti-discrimination laws to remove the special privileges granted to religious organisations allowing them to discriminate against workers on the basis of their sexual orientation and/or gender identity, including in the delivery of public services using taxpayers’ money. This problem is especially acute in what is described in the Issues Paper as the ‘care economy’ and their removal would, I believe, lead to more LGBTQ people entering professions like education, disability services and aged care.
I attach with this correspondence a letter which was sent to Prime Minister Albanese, Treasurer Chalmers and seven of their ministerial colleagues, that provides more details about these issues, and the compelling reasons why changes must be made to both.
Indeed, I note that you made some of the same arguments for better workplace inclusion in your speech on 27 May this year at the 2022 Australian LGBTIQ Inclusion Awards:
‘[T]oday we are here to celebrate and applaud the excellence of employers and their teams for their commitment to advancing inclusion and diversity.
It’s the right thing to do.
And not just that – it’s also smart business.
When every person can be their best selves at work:
They’re happier
They’re more productive
They’re more creative
They’re more loyal, and
They’re more likely to stay with their current employer.
Doing the right thing is a win-win…
I do not believe that any person should be made to feel excluded.
I do not believe that any person should be made to feel less than they are.
I do not believe that anyone’s personal struggle should be used as a political football.
So today I want to spend the bulk of my time apologising.
I want to apologise to our transgender colleagues.
I want to apologise:
For the hurt you have endured
For the cruelty you have been subjected to, and
For the fundamental misinformation and unfairness that has shrouded the discussion over the last year, but particularly during the election.’
You went on to acknowledge:
‘I understand the fear and worry when you turn up to work and every single new encounter is potentially:
A rejection
The loss of your employment status, or
The loss of your job.
I understand that there is only one choice you have to make.
It is not a flippant or superficial lifestyle choice.
Instead, it’s a difficult and often agonising acceptance to either be yourself or to pretend to be someone else.’
The upcoming Jobs and Skills Summit is another opportunity to demonstrate your commitment to improving the lives of trans and gender diverse Australians, who are affected by both the lack of explicit protections under the Fair Work Act, and the broad special privileges granted to religious organisations under the Sex Discrimination Act.
I look forward to you building on your public apology in May by supporting essential reforms to both these laws later this week.
Because I am confident, based on your speech, that you agree trans, gender diverse and intersex workers should have the same Fair Work Act protections as any employee. And that LGBTQ workers should be judged on their ability, rather than their sexual orientation and/or gender identity.
Sincerely
Alastair Lawrie
*****
ACTU Secretary Sally McManus and Business Council of Australia CEO Jennifer Westacott will play a key role in whether the upcoming Jobs and Skills Summit supports much-needed law reform to protect the rights of LGBTIQ workers.
NB This post is written in a personal capacity, and does not reflect the views of employers past or present.
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
The Albanese Labor Government’s Jobs and Skills Summit will be held on September 1 and 2, 2022, now just eleven days away.
While there has been significant coverage of a wide range of issues relevant to this conference, there has been little to no reporting of how it will affect lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) workers.
The letter below, to Prime Minister Albanese, Treasurer Chalmers and a number of other Ministers, seeks to place at least two important and urgent LGBTIQ policy matters onto the Jobs and Skills Summit agenda.
As always, I will publish any responses received.
*****
Prime Minister Anthony Albanese
Treasurer Jim Chalmers
Attorney-General Mark Dreyfus
Minister for Employment and Workplace Relations Tony Burke
Minister for Health and Aged Care Mark Butler
Minister for Aged Care Anika Wells
Minister for Education Jason Clare
Minister for Social Services Amanda Rishworth
Minister for the NDIS Bill Shorten
Sunday 21 August 2022
Dear Prime Minister Albanese and other Ministers
Please include LGBTIQ workers in the Jobs and Skills Summit
I am writing to you about the upcoming Jobs and Skills Summit, and the need to include lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) workers and the issues which affect them.
I was initially encouraged to observe the Summit would include a focus on ‘expanding employment opportunities for all Australians including the most disadvantaged.’[i]
However, I am both concerned and deeply disappointed by the Jobs and Skills Summit Issues Paper, released on 17 August,[ii] which completely omits LGBTIQ Australians as one of the groups which should be considered as part of this focus.
Specifically, page 2 of that document states:
‘While the participation rate is around historically high levels, many Australians still face barriers to secure and well-paid employment. In particular, women, First Nations people, people with disability, older Australians, migrants and refugees, and those living in certain regional and remote areas face specific barriers to entering the workforce. This means there are further opportunities and obligations to ensure the benefits of strong labour market conditions are accessible to all people in Australia.’
There is no mention of LGBTIQ workers here, nor on any other of the Issues Paper’s 14 pages.
This is despite the fact employment-related discrimination against LGBTIQ workers, including and perhaps especially transgender and gender diverse workers, is well-documented.
For example, a 2021 paper[iii] found that for transgender, including gender diverse and nonbinary (trans), people:
‘The unemployment rate of 19% was three times that of the Australian general population rate of 5.5% in May 2018 and well above the youth unemployment rate (12.2%). Notably, 33% of respondents perceived discrimination in employment. Unemployment may also occur due to difficulty with name and identity documents, discrimination in basic housing and health care, and the impact of mental health conditions such as depression and anxiety on an individual’s ability to seek or maintain employment. Conversely, levels of depression and anxiety may be higher due to unemployment.’
The omission of LGBTIQ workers from the Jobs and Skills Summit Issues Paper also comes despite many LGBTIQ workers enjoying lesser workplace rights and protections than other employees, and a large number of employers being legally entitled to fire, to refuse to hire, or to otherwise discriminate against, LGBTQ workers simply because of their sexual orientation and/or gender identity. This often includes the use of taxpayers’ money in said discrimination.
These issues must be addressed if the Jobs and Skills Summit is to indeed focus on ‘expanding employment opportunities for all Australians including the most disadvantaged.’
I include below two fundamental, urgent issues which therefore must be included in the Summit’s agenda.
Protect transgender, gender diverse and intersex workers under the Fair Work Act
Currently, transgender, gender diverse and intersex workers do not enjoy the same legal status under the Fair Work Act 2009 (Cth) as other employees, including women, people with disability, and even lesbian, gay and bisexual people.
This is because the adverse action protections in section 351, and unlawful termination protections in section 772, contain a long list of protected attributes – such as ‘race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin’ – but omit the protected attributes of gender identity and sex characteristics (intersex status).
In practice, this means transgender, gender diverse and intersex workers may not have the same guaranteed access to the low-cost, low-barrier Fair Work Commission as other employees who are subjected to mistreatment or unfair dismissal simply because of who they are.
Despite raising the lack of explicit Fair Work Act protections for these workers with the previous Government for several years,[iv] they refused to take any action to address this discrepancy, even voting against straight-forward Greens amendments to the 2021 Respect@Work Bill which would have remedied the situation, providing much-needed remedies to workers.[v]
I note the then-Labor Opposition voted for some, although not all, of those Greens amendments.[vi] I also note that, as a result of advocacy from myself and others, the 2021 ALP National Conference passed the following special resolution:[vii]
‘Aligning the Fair Work Act and Sex Discrimination Act
Labor will amend the relevant sections of the Fair Work Act to align with the Sex Discrimination Act to cover workers who are currently not protected.’
Unfortunately, while implementing this commitment – which would involve adding gender identity and intersex status as protected attributes in the Fair Work Act – would achieve some improvement, it would not bring that legislation up to best practice.
This is because sex characteristics[viii] is considered a more accurate, and more inclusive, protected attribute, and is the terminology preferred by intersex advocates, including Intersex Human Rights Australia.
Therefore, at least part of the response to this question on page 5 of the Jobs and Skills Summit Issues Paper:
‘How can we ensure workplaces are safe and fair, particularly for those people at higher risk of harassment, discrimination and other breaches of workplace minimum standards?’
is to add gender identity and sex characteristics as protected attributes in the Fair Work Act 2009 (Cth), including in relation to adverse action (s351) and unlawful termination (s772), so that transgender, gender diverse and intersex workers have the same rights and protections as everyone else.
Recommendation 1: The Jobs and Skills Summit must ensure transgender, gender diverse and intersex workers have the same rights and protections under the Fair Work Act as other employees, including in relation to adverse action and unlawful termination.
2. Remove special exceptions allowing religious organisations to discriminate against LGBTQ workers
That same question – ‘How can we ensure workplaces are safe and fair, particularly for those people at higher risk of harassment, discrimination and other breaches of workplace minimum standards?’ – is also relevant to the second issue which I submit must be on the Jobs and Skills Summit agenda: removing special exceptions which allow religious bodies to discriminate against lesbian, gay, bisexual, transgender and queer (LGBTQ) workers.
In fact, this issue is pertinent to a range of discussion, and questions, covered in the Issues Paper, including this statement on pages 6 and 7:
‘Addressing the barriers to participation and promoting equality of opportunity will contribute to a stronger and more inclusive economy, enable more Australians to realise their full potential, and help address current labour market challenges. This, in turn, will help ensure that the benefits of full employment are shared fairly across our community.’
And the associated questions on page 7:
‘How can we reduce the barriers to employment for some Australians? How should governments, unions, business and the broader community best coordinate efforts to achieve this?’ and
‘What strategies can be used to reduce discrimination and increase awareness of the value that diversity can bring to business and the broader economy?’
And on page 11: ‘How do we navigate workforce shortages in the care economy while supporting our frontline workers?’
Many people are aware of this issue because of public debate over the past five years surrounding ‘religious freedom’, the previous Government’s proposed (but thankfully-defeated) Religious Discrimination Bill, and the discriminatory (mis)treatment of LGBTQ students, teachers and other staff under the Sex Discrimination Act 1984 (Cth).
Many people may not be aware of how broad these exceptions are in practice, not just under the Sex Discrimination Act, but also under the Age Discrimination Act 2004 (Cth), Fair Work Act itself (undermining both its adverse action and unlawful termination protections), and the majority of state and territory anti-discrimination laws (including in my home state of NSW where the Anti-Discrimination Act 1977 has the broadest religious exceptions in the country).
The effects of these exceptions are all-too-real for LGBTQ workers.
Not only can LGBTQ teachers be denied, or fired from, jobs for which they are otherwise eminently qualified, simply because of their sexual orientation and/or gender identity.
But so too can LGBTQ aged care workers, nurses, doctors, social workers, disability workers and other employees across what is described in the Issues Paper as the care economy.
There are a range of serious consequences which flow from this discrimination, including:
For LGBTQ workers, obviously this includes being denied employment, and losing significant financial benefits, or alternatively being forced to stay closeted while in the workplace, with associated mental health harms.
For the LGBTQ community more broadly, this discrimination reinforces poorer health and well-being outcomes, as well as entrenching economic disadvantage.
For the services themselves, they are rejecting the best person for the job on the basis of criteria which has nothing whatsoever to do with their ability to do the job. Alternatively, they are forcing some employees to not bring their whole selves to work, thereby diminishing the quality of the work those employees do.
This also means that, for people accessing these services, they are effectively denied being served by the most qualified person for the role. A person in an aged care home deserves the best aged care worker possible, not the best cisgender-heterosexual worker. A student deserves to learn from the most qualified teacher, not the most qualified cisgender-heterosexual one. And so on. And so on. Across society.
It should be remembered that the vast majority of these roles are delivering what are basically public services, like education, health, aged care, or social and disability services, and in nearly all cases using public – or taxpayers’ – money to do so. That means every Australian is helping to fund this discrimination, and even more egregiously, that LGBTQ workers are being asked to subsidise their own oppression.
Finally, in an era of large and growing worker shortages across education, health, aged care, and social and disability services, permitting lawful discrimination on the basis of sexual orientation and gender identity discourages at least some members of the LGBTQ community from considering careers in these areas – which is perhaps a rational response to the knowledge that large employers in your chosen profession may be lawfully able to refuse to hire you, or fire you, just because of who you are.
For all of these reasons, a Jobs and Skills Summit that is focused on ‘expanding employment opportunities for all Australians including the most disadvantaged’ must seriously consider the harmful impacts of special exceptions which allow religious organisations to discriminate against LGBTQ workers simply because of their sexual orientation and/or gender identity.
And I submit it should recommend that such exceptions be abolished, not just for the benefit of those LGBTQ workers, but for the benefit of people accessing publicly-funded services in education, health, aged care, and social and disability services, and the benefit of the Australian community generally.
Recommendation 2: The Jobs and Skills Summit should call for the repeal of special exceptions allowing religious organisations to discriminate against LGBTQ workers simply because of their sexual orientation and/or gender identity.
Thank you in advance for considering the above issues ahead of the Jobs and Skills Summit. Please do not hesitate to contact me at the details provided should you require additional information.
Sincerely
Alastair Lawrie
Will Prime Minister Anthony Albanese ensure that significant issues affecting LGBTIQ workers are considered at the Jobs and Skills Summit?
NB This post is written in a personal capacity, and does not reflect the views of employers past or present.
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
[vi] The Labor Party supported the inclusion of gender identity and intersex status as protected attributes in the Fair Work Act – which are the same attributes already covered under the Sex Discrimination Act 1984 (Cth) – but did not support amendments which would have added gender identity and sex characteristics as protected attributes, with the latter terminology now considered best practice, and supported by intersex community organisations including Intersex Human Rights Australia.
Thank you for the opportunity to provide this personal submission as part of your consultation process on a proposed Equality Bill.
Thank you also for your leadership on the issue of lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) rights in NSW, something which has been neglected by too many for far too long.
As I have written previously, LGBTIQ rights in NSW are now the worst of any state or territory in the country – through decades of inaction on law reform by the NSW Government and Parliament, Sydney has become Australia’s capital of homophobia, biphobia and transphobia.
This includes the worst LGBTIQ anti-discrimination protections, and the equal worst birth certificate laws for trans and gender diverse people. As well as an ongoing failure to prohibit non-consenting surgeries and other medical interventions on children born with variations in sex characteristics (intersex children), and to ban sexual orientation and gender identity conversion practices.
If these issues are not addressed before next February, then Sydney’s hosting of World Pride 2023 will not be a cause for celebration, but instead the focus of global embarrassment about the incredibly poor state of legal rights for the LGBTIQ people who live here.
In this submission I will make recommendations for reform in the above-mentioned four areas, with a particular focus on LGBTI anti-discrimination law reform, as well as in relation to commercial surgery.
LGBTI reforms to the Anti-Discrimination Act 1977 (NSW)
The NSW Anti-Discrimination Act was once a leader – including becoming the first anti-discrimination law in Australia to prohibit discrimination on the basis of homosexuality in 1982 (before homosexuality was even decriminalised here, which did not happen until 1984).
However, it now compares incredibly poorly across a wide range of criteria, from protected attributes, special privileges for private schools and special privileges for religious organisations generally (for comparative analysis of how it fares overall, see A Quick Guide to Australian LGBTI Anti-Discrimination Laws).
While the Act itself is now so out-dated that it is impossible for it to become best practice without a comprehensive review followed by complete overhaul, there are some immediate, interim steps which could be taken to ensure LGBTI people are better protected against discrimination on the basis of who they are. This includes:
1. Replace homosexuality with sexual orientation
NSW is the only jurisdiction in Australia which does not prohibit discrimination against bisexual, bi+ and/or pansexual people. That is because the protected attribute in the Anti-Discrimination Act is ‘homosexuality’ rather than sexuality or sexual orientation.
This should be replaced with a protected attribute of ’sexual orientation’, with a definition drawing from s4(1) of the Equal Opportunity Act 2010 (Vic):
‘sexual orientation means a person’s emotional, affectional and sexual attraction to, or intimate or sexual relations with, persons of a different gender or the same gender or more than one gender.’
2. Replace transgender with gender identity
NSW also offers extremely narrow protection against discrimination for trans and gender diverse people, effectively excluding people with non-binary gender identities completely.
The protection attribute of ‘transgender’ should be replaced with ‘gender identity’, with a definition again drawing from the Equal Opportunity Act 2010 (Vic):
‘gender identity means a person’s gender-related identity, which may or may not correspond with their designated sex at birth, and includes the personal sense of the body (whether this involves medical intervention or not) and other expressions of gender, including dress, speech, mannerisms, names and personal references’.
The definition of ‘recognised transgender person’ in section 4 of the Anti-Discrimination Act 1977 (NSW) should be removed at the same time.
3. Add a new protected attribute of sex characteristics
Intersex people are also poorly-served by anti-discrimination laws in NSW, with the Act failing to include a stand-alone protected attribute to prohibit discrimination against them.
A new protected attribute of ‘sex characteristics’ should be added, once again drawing from the Equal Opportunity Act 2010 (Vic):
‘sex characteristics means a person’s physical features relating to sex, including-
(a) genitalia and other sexual and reproductive parts of the person’s anatomy; and
(b) the person’s chromosomes, genes, hormones, and secondary physical features that emerge as a result of puberty.’
4. Add new protected attributes of sex work, and genetic characteristics
I support-in-principle the inclusion of protected attributes of sex work, with a definition developed in consultation with sex worker organisations such as Scarlet Alliance, and genetic characteristics, developed in consultation with Intersex Human Rights Australia.
5. Remove special privileges for private educational authorities
The Anti-Discrimination Act is the only such law in the country which provides blanket exceptions to all private schools, colleges and universities, irrespective of whether they are religious or not, allowing them to engage in conduct that would otherwise be prohibited.
This includes special privileges to discriminate on the basis of homosexuality against students (s49ZO) and teachers and other staff (s49ZH), and on the basis of transgender status against students (s38K) and workers (s38C), too.
There can be no possible justification for these special rights to discriminate in 2022 – they must be repealed entirely.
In order to ensure LGBT students, teachers and other staff at religious schools are properly protected against discrimination, it is also necessary to introduce a limitation on the general religious exception in section 56 (discussed further below), so that it does not apply to religious educational institutions.[i]
6. Significantly narrow special privileges for religious organisations
In addition to specific exceptions for private schools, colleges and universities, s56 of the Anti-Discrimination Actprovides incredibly broad exceptions for religious organisations more generally.
While paras (a) and (b) of that provision (which permit discrimination in relation to the appointment, and training, of priests and ministers of religion) may be justifiable on the basis of religious freedom (because of their closeness to religious observance), the same justification does not apply to para (c), which allows discrimination by religious organisations in employment (including in the delivery of publicly-funded health, housing and welfare services) and (d), which effectively grants faith bodies a blank cheque to discriminate in service provision.
Both para s56(c) and 56(d) should be repealed entirely.[ii]
7. Remove special privileges for faith-based adoption services
Under s59A of the Anti-Discrimination Act, adoption agencies operated by religious organisations are permitted to discriminate against rainbow families.
This is frankly outrageous, not only discriminating against prospective parents on the basis of irrelevant factors such as their sexual orientation and/or gender identity, but also not being in the best interests of the child, given the exclusion of loving parents on these grounds.
S59A should be repealed entirely.
8. Remove the specific transgender exception in superannuation
Under s38Q of the Act, superannuation providers are given an exception to discriminate against transgender people, by ‘treat[ing] the transgender person as being of the opposite sex to the sex with which the transgender person identifies.’
This type of provision is not found in the equivalent Sex Discrimination Act 1984 (Cth).
Once again, there can be no possible justification for this special right to discriminate in 2022 – this provision must be repealed entirely.
9. Significantly narrow the specific transgender exception in sport
Under s38P of the Act, it is lawful to discriminate against transgender people in relation to a wide range of sporting activities, from elite level through to community sport.
This exception is much, much broader than equivalent exceptions elsewhere, including s42 of the Sex Discrimination Act 1984 (Cth), which includes qualifications that such discrimination is only permitted ‘in any competitive sporting activity in which the strength, stamina or physique of competitors is relevant’, and does not apply to children under 12.
At a minimum, these qualifications should also be introduced in NSW, with consideration of adopting the narrower approach found in s29 in the Anti-Discrimination Act 1998 (Tas), or the proposed changes in this area in the ACT Government’s recent Exposure Draft Discrimination Amendment Bill 2022.
Any reforms in this area should be made in close consultation with trans and gender diverse people, and organisations representing them, and intersex people and their representative bodies as well (given the impact of sporting exceptions on that community).
10. Prohibit civil vilification on the basis of sexual orientation, gender identity and sex characteristics
Assuming changes are made to replace the protected attributes of homosexuality with sexual orientation, and transgender with gender identity (1 and 2, above), equivalent changes to civil vilification provisions under the Anti-Discrimination Act should be made at the same time.
I also support introducing civil prohibitions against vilification on the basis of sex characteristics.
11. Ensure consistency between the Anti-Discrimination Act 1977 and the Crimes Act 1900 (NSW)
If the civil vilification provisions of the Anti-Discrimination Act are updated to cover sexual orientation, gender identity and sex characteristics, equivalent amendments should be made to s93Z of the Crimes Act 1900 (NSW),[iii] which makes it a criminal offence to ‘by a public act, intentionally or reckless threaten or incite violence towards another person or a group of persons’ on the basis of a range of attributes.
Reforms to the Births, Deaths and Marriages Registration Act 1995 (NSW)
This situation is completely unacceptable. Gender identity is exactly that, a fundamental characteristic of personal identity, and exists irrespective of surgery, or other forms of medical or psychological treatment.
In my opinion, trans and gender diverse people should be able to update their identity documentation, including birth certificates, solely on the basis of self-identification.
That means imposing no restrictions based on whether the person has had surgery, whether they have had other forms of physical treatment (including hormones), or whether they have accessed counselling or psychological services. It also means not requiring an application to include supporting statements from medical or psychological ‘gate-keepers’.
There is only one Australian jurisdiction which currently meets this standard, the Tasmanian Births, Deaths and Marriages Registration Act 1999, with s28A(2)(b) simply requiring the applicant to make a ‘gender declaration’ in support of their application.
I therefore support-in-principle the introduction of birth certificate reforms in NSW drawing on the existing framework in Tasmania.
One other important element is ensuring children and young people have the right to update their identity documentation, irrespective of whether it makes some adults uncomfortable.
This, at a minimum, would involve allowing young people aged 16 and 17 to make applications for new birth certificates in their own right.
It also means ensuring there is a process to allow children under 16 to update their birth certificates where they have two or more parents or guardians and those parents/guardians disagree among themselves whether to support that application.
Finally, it means introducing a framework to allow children under 16 to apply in the absence of support from a parent or guardian, where a court or tribunal considers it to be in the best interests of the child and also assesses the child to be capable of consenting to the application (such as in s29J of the Births, Deaths and Marriages Registration Act 1996 (SA)).
However, as a cisgender member of the LGBTIQ community, I defer to the views of trans and gender diverse people, and the organisations representing them, on what the exact details of birth certificate reforms should include.
Ending non-consenting surgeries and other medical interventions on intersex children
The unnecessary, non-consenting and/or deferrable surgeries and other medical interventions which continue to be inflicted on children born with variations of sex characteristics (intersex children) aren’t just some of the biggest human rights abuses against the LGBTIQ community, but against any segment of the Australian community.
In this context, it is extremely frustrating that, approaching nine years from the historic 2013 Senate Inquiry into ‘Involuntary or coerced sterilisation of intersex people in Australia’, no Australian jurisdiction has legally prohibited these practices, including there being no signs of action in this area by the NSW Government.
Fortunately, the ACT Government has committed to ending these practices, and recently released their draft Variation in Sex Characteristics (Restricted Medical Treatment) Bill 2022 for public consultation.
On this issue, and whether the ACT legislation is best practice, I defer to the expertise of Intersex Human Rights Australia (IHRA). I note that in their submission to the current inquiry, they wrote:
‘The ACT government draft bill, published in May 2022, arises out of a commitment made in 2019, and deep engagement with community, clinicians, and human rights, bioethics and legal expertise. We commend this bill as a basis for reform in New South Wales.
‘The ACT government bill implements demands in the Darlington Statement of intersex community organisations and advocates in our region, and the Yogyakarta Principles plus 10… Action on this issue implements recommendations 1, 4, 7, 8 and 9 of the 2021 Australian Human Rights Commission report ‘Ensuring health and bodily integrity: towards a human rights approach for people born with variations in sex characteristics’. It also implements calls for reform by UN Treaty Bodies CEDAW, CRPD, CRC, HRC and CESCR, and addresses calls in 2021 position statements citing IHRA staff by the Australian Medical Association and the Public Health Association of Australia. It is consistent with a 2018 submission to the Australian Human Rights Commission by the Royal Australian and New Zealand College of Psychiatrists’ [emphasis added].
I therefore endorse IHRA’s view – that the ACT draft legislation be used as a basis for reform in NSW, with any necessary amendments developed in close consultation with IHRA.
Banning sexual orientation and gender identity conversion practices
The fourth major reform which should be included in the NSW Equality Bill is a prohibition on sexual orientation and/or gender identity (SOGI) conversion practices (sometimes referred to as gay/trans conversion therapy, or ex-gay/ex-trans therapy).
These are incredibly harmful practices which cause immense psychological, and sometimes physical, harm on LGBTQ people.
In my view, SOGI conversion practices should be banned, both through civil prohibitions, allowing for a range of legal responses, and criminal offences in serious cases (such as where it causes actual physical or psychological harm, and/or involves minors or other vulnerable persons).
Importantly, these prohibitions must apply across a broad range of circumstances, including religious settings (where much of the reported harm takes place), and not just in health settings (which means the existing Queensland approach to this issue cannot be supported).
My understanding is there are potential strengths to both the Victorian Change or Suppression (Conversion) Practices Act 2021 and ACT Sexuality and Gender Identity Conversion Practices Act 2020.
However, as with trans and gender diverse birth certificate reform and intersex surgeries, I defer to the views of survivors of sexual orientation and/or gender identity conversion practices, and the organisations representing them, on what the exact details of this legislation should contain.
Legalising commercial surrogacy in NSW
This reform is different from the previous four in that it is not exclusively or even primarily an issue for the LGBTIQ community, given individuals and couples seeking to employ commercial surrogacy services can be cisgender and heterosexual also.
However, rainbow families, and especially male same-gender couples, are disproportionately affected by the current legal approach to surrogacy in NSW, which is not only to prohibit commercial surrogacy domestically (s8 of the Surrogacy Act 2010 (NSW)), but also to capture individuals or couples who engage in commercial surrogacy elsewhere but are ‘ordinarily resident or domiciled in the State’ (s11).
The maximum penalty for this offence is high: up to 1,000 penalty units or imprisonment for 2 years, or both, for individuals.
More than a decade after this legislation was introduced, I don’t believe anyone in NSW genuinely believes that individuals and couples, including rainbow families, are not still engaging in commercial surrogacy arrangements in a wide range of international jurisdictions (and perhaps the only thing to even slow this process down has been since-eased pandemic-related travel restrictions, not domestic laws).
In this context, my personal view is that commercial surrogacy should be legalised in NSW.
There are two reasons for this. The first is based on harm reduction. Yes, I acknowledge that commercial surrogacy arrangements include a significant potential for exploitation, especially for women who are vulnerable or financially disadvantaged.
However, given commercial surrogacy is continuing (and will continue into the future, based on the strong desires of some members of the community to have children), the best way to minimise such exploitation is to permit commercial surrogacy within NSW, with careful and close oversight – in contrast to the current situation which sees people engage in surrogacy in jurisdictions potentially with minimal or no oversight, and with a legal incentive to avoid scrutiny of their activities.
The second reason for legalising commercial surrogacy in NSW is based on the best interests of the child. For the child being born into these families, it simply cannot be in their best interests for their parent(s) to be liable to up to 2 years imprisonment for the crime of the manner of their birth.
*****
Thank you in advance for your consideration of this submission. Please do not hesitate to contact me, at the details provided, if you would like further information or to discuss its contents.
Sincerely
Alastair Lawrie
NB This post is written in a personal capacity, and does not reflect the views of employers past or present.
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Footnotes:
[i] This approach applies in the absence of prohibitions against discrimination on the basis of religious belief in NSW. If religious belief is added as a stand-alone protected attribute to the Anti-Discrimination Act 1977 (NSW) in the future, it may be appropriate to allow discrimination by religious schools on the basis of religious belief only (and not other attributes), but only against students at the point of enrolment, and only against teachers and other staff where it is an inherent requirement of the role.
[ii] As with the previous footnote, this approach applies in the absence of a stand-alone protected attribute of religious belief under the Act. If such an attribute were to be introduced in future, it may be appropriate to permit some discrimination on the basis of religious belief only, in narrowly-restricted circumstances, informed by existing laws in Tasmania, and Victoria.
[iii] This includes potentially updating the existing definitions of sexual orientation and gender identity in s93Z of the Crimes Act, as well as replacing the attribute of intersex status with sex characteristics.
alastairlawrie 