Submission re Tasmanian Law Reform Institute Sexual Orientation and Gender Identity Conversion Practices Issues Paper

via Law.Reform@utas.edu.au

28 January 2021

To whom it may concern

Thank you for the opportunity to make a submission on this important topic.

I do so as a long-term advocate for Australia’s lesbian, gay, bisexual, transgender and intersex (LGBTI) community, including through my website www.alastairlawrie.net

While my primary law reform focus is on improving LGBTI anti-discrimination and anti-vilification legislation, I have also previously made multiple submissions in relation to sexual orientation and gender identity conversion practices, including in New South Wales[i] and Victoria.[ii]

In this submission, I will attempt to answer most, although not all, of the answers posed in the Issues Paper.

However, I also wish to acknowledge that the most important voices in this debate are those of the survivors of these abhorrent practices, including survivors of sexual orientation and gender identity conversion practices in Tasmania.

Therefore, where my answers may diverge from the submissions made by survivors, both individuals and organisations, I urge you to prioritise their views as the experts on the wide scope of these practices, the serious harms they cause and the most effective way(s) in which to prohibit them.

Question 1: After considering the background and working definition, in your opinion, what are and are not ‘sexual orientation and gender identity conversion practices’?

In my view, the terminology ‘sexual orientation and gender identity conversion practices’ is appropriate, as it avoids the limitations of alternatives such as ‘ex-gay or ex-trans therapy’.

I defer to survivors on the matter of all of the possible acts that should be included in any definition. However, the scope of any definition must not be limited to only cover conversion practices which occur in health settings (a mistake made in the Queensland Health Legislation Amendment Act 2020).

On the other hand, it must cover conversion practices which occur in religious settings, both formal and informal, because that is where survivors tell us most of the harm is inflicted.

In terms of the possible definition, I think the TLRI working definition captures the core components of conversion practices:

(a) acts or statements;

(b) that are aimed at changing, suppressing, or eradicating the sexual orientation or gender identity of another person; and

(c) are based on a claim, assertion or notion that non-conforming sexual orientation or gender identity is a physical or psychological dysfunction that can be suppressed or changed.

My one concern in this definition is the use of the word ‘non-conforming’, implying that there are sexual orientations or gender identities which do conform, or are ‘the norm’.

I would suggest consideration of alternative phrasing, perhaps to words to the effect of ‘that a sexual orientation that is not heterosexuality or a gender identity that is not cisgender’.

This wording may also help to ensure that support services for same-sex attracted and gender diverse people exploring their identities, as well as assistance for people considering or undergoing a gender transition, are not captured in the definition (noting these have been expressly excluded in both the Queensland legislation, and the ACT Sexuality and Gender Identity Conversion Practices Act 2020).

Finally, I support the inclusion of removing a person from Tasmania for the purpose of sexual orientation and gender identity conversion practices conducted outside the state in any definition and/or offences, because the harm is still inflicted on Tasmanians.

Question 2: Should people be allowed to consent to SOGI conversion practices? If so, at what age, and under what conditions?

No, I do not believe it is possible to ‘consent’ to SOGI conversion practices, even for adults.

The ideology which underpins conversion practices – that people who are same-sex attracted or gender diverse are ‘broken’ and require ‘fixing’ – is dangerous and incredibly harmful. The ideology is also erroneous – LGBT people are beautiful, just as we are – meaning any consent derived from it is based on a falsehood.

In addition, people who have been indoctrinated with this abusive ideology, whether in familial, educational, health and/or religious settings, and therefore experience severe shame about who they are, are not in a position to provide genuine consent to what is simply further abuse.

As someone who attended a deeply homophobic religious boarding school in Queensland in the 1990s – where same-sex attraction was demonised from the school rules to the pulpit (with one pastor suggesting suicide was not the worst possible outcome for children struggling with their sexual orientation)[iii] – and consequently developed profound self-loathing, I may have even participated in more-formal conversion practices had they been offered, either at the school or afterwards.

I don’t believe that my ‘consent’ in such circumstances would have been any more real on the day I turned 18 than the day before.

The practices themselves are the problem, and they should be unlawful irrespective of who is being subjected to them.

On the other hand, I do support potential differentiation in penalty on the basis of who is being harmed. For example, while sexual orientation and gender identity conversion practices should be unlawful in all circumstances, I favour increased maximum sentences where the victim is a child or young adult under the age of 18 or a person with decision-making impairments (to use the terminology outlined in the Issues Paper).

Question 3: Have you been involved in or offered, or are you aware of, any forms of SOGI conversion practices in Tasmania? If so, what were the effects on you, or the person exposed to them?

Not applicable.

Question 4: Do you think that Tasmanian law should be changed to address SOGI conversion practices? If so, should this be through comprehensive reform, amendment or both (a hybrid)?

I do not believe current Tasmanian laws are sufficient to deal with the harms caused by sexual orientation and gender identity conversion practices. Nor do I believe they can be addressed simply by amendments to existing laws. Therefore, I support either comprehensive reform, or a hybrid approach.

This would, at a minimum, include creating criminal offences covering sexual orientation and gender identity conversion practices, as well as providing civil remedy options to ensure that survivors of these abuses have the ability to seek financial compensation.

As discussed in my answer to question 2, above, I believe these responses (criminal offences and civil remedies) should cover all people who are subjected to sexual orientation and gender identity conversion practices. However, the available penalties should be higher where the person subject to harm is a child or young adult under the age of 18 or a person with decision-making impairments.

Question 5: Should some or all forms of SOGI conversion practices be criminalised in Tasmania? If so, which, if any should be dealt with as serious (indictable) crimes and which, if any, should be dealt with as less serious (summary) offences?

Yes, sexual orientation and gender identity conversion practices should be criminalised.

Given the serious harms caused by these practices, I believe that at least some of these activities should constitute indictable offences.

As indicated in my answers to both questions 2 and 4, above, I also believe there should be higher maximum penalties where the person subject to harm is a child or young adult under the age of 18 or a person with decision-making impairments. This may involve the creation of separate offences, or the inclusion of age and decision-making capacity as aggravating factors in sentencing.

Again, given the seriousness of the harms inflicted by sexual orientation and gender identity conversion practices, I believe that imprisonment should be an option, particularly for the worst instances of abuse (although, being unfamiliar with sentences under Tasmanian criminal law, I am not in a position to recommend a maximum term of imprisonment).

Finally, as indicated in my response to question 1, I believe these offences must extend beyond just health practitioners to include religious settings, both formal and informal, because that is where survivors tell us most of the harm is inflicted, as well as other areas (for example, educational settings).

Question 6: Should some or all forms of SOGI conversion practices be made civil wrongs in Tasmania? If so, what sort of practices should people be liable for and how should those subject to such practices be compensated?

Yes, sexual orientation and gender identity conversion practices should be made civil wrongs in Tasmania, in addition to being subject to criminal sanctions. This is necessary to allow the people harmed by such abuses to seek financial compensation.

Given people who have been exposed to the harmful ideology which underpins conversion practices may not be aware for some time afterwards that what they experienced was, in fact, abuse, I am in favour of extending the limitation period beyond the ordinary three years, and potentially up to 12 years.

Question 7: Should any existing Tasmanian laws (besides criminal laws or the Civil Liability Act 2002 (Tas)) be amended to cover SOGI conversion practices? If so, which ones and in which ways?

Provided that sexual orientation and gender identity conversion practices are covered by both criminal penalties and civil remedies (including financial compensation), I am agnostic about the specific vehicle(s) to deliver the latter.

I note that inclusion within Tasmania’s best practice anti-discrimination framework, via the Anti-Discrimination Act 1998, may confer some benefits (including in terms of access to dispute resolution, potential lesser exposure to costs as well as possible greater variation in outcomes such as public apologies).

Inclusion in the Anti-Discrimination Act may also allow the Anti-Discrimination Commissioner to investigate conversion practices, even in the absence of a specific complaint from survivors. 

However, I defer to the views of survivors about their preferred regulatory approach.

Question 8: Are there any other models or approaches that are preferable to, or should complement, changing the law?

I also defer to survivors, both individuals and organisations, about the best ways to detect or report sexual orientation and gender identity conversion practices.

However, I agree with the view expressed in the Issues Paper that it may be difficult to enforce any law against these abuses.

This includes both the criminal law – where it may be difficult to establish proof beyond a reasonable doubt (although I nevertheless support the creation of criminal offences to send a strong public statement that such practices are contrary to community interests, are wrong, and are fundamentally harmful). 

And it will also be difficult to enforce under civil law because it will place the onus on people who have experienced psychological abuse (and potentially physical abuse, too) to bring actions and to therefore possibly be retraumatised through the litigation process.

As with most complex problems, legislation alone will never be sufficient on its own to combat the ills of sexual orientation and gender identity conversion practices.

This is especially true because eliminating such practices also means eradicating the harmful ideology which underpins it (that people who are same-sex attracted or gender diverse are ‘broken’ and require ‘fixing’). That will require the concerted and sustained efforts of government and non-government organisations, in partnership with survivors.

I obviously defer to survivor organisations about which support and other services require funding to accomplish this objective.

Question 9: Are there any other matters that you consider relevant to this Inquiry and would like to raise?

I agree with the view expressed in the Issues Paper that criminalisation may drive sexual orientation and gender identity conversion practices further underground.

However, I do not believe this risk is sufficient to justify not prohibiting practices which inflict severe harm on many of the community’s most vulnerable people, including LGBT children and young adults.

This risk can also be mitigated by ensuring that law enforcement is appropriately trained and resourced to address the serious problems caused by conversion practices, as well as empowering an independent authority to investigate systemic issues (for example, the Tasmanian Anti-Discrimination Commissioner, as discussed above in response to Question 7).

Finally, I understand that some groups may oppose any regulation in this area on the basis of ‘religious freedom’.

However, such opposition does not understand that freedom of religion is not absolute. As Article 18(3) of the International Covenant on Civil and Political Rights makes clear:

Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others.

Laws which seek to protect people against sexual orientation and gender identity conversion practices – which, in my view, constitute psychological torture and can and in many cases do lead to adverse mental health outcomes including depression, self-harm and even suicide – would therefore be clearly justified under international human rights law.

Thank you in advance for your consideration of this submission. Please do not hesitate to contact me, at the details provided, should you require additional information.

Sincerely

Alastair Lawrie

Footnotes:


[i] Submission to NSW Parliament Inquiry into False or Misleading Health Practices re Ex-Gay Therapy and Intersex Sterilisation, 16 June 2014. Available at https://alastairlawrie.net/2014/06/16/submission-to-nsw-parliament-inquiry-into-false-or-misleading-health-practices-re-ex-gay-therapy-and-intersex-sterilisation/

[ii] Submission to Victorian Government Consultation on Banning Conversion Practices, 24 November 2019. Available at: https://alastairlawrie.net/2019/11/24/submission-to-victorian-government-consultation-on-banning-conversion-practices/

[iii] I have previously written about my experiences at that school, here: The longest five years.

LGBTIQ Law Reform Priorities for 2021

ANU Gender Identity + Sexuality Law Moot Webinar Presentation

In October 2020, I was invited to be a judge for the round robin stage of the inaugural ANU Gender Identity + Sexuality Law Moot. In the lead-up to the moot itself, I participated in a webinar for participants about the state of LGBTIQ law reform in Australia, including being asked to address the following two questions:

What are, in your view, the most significant issues that need legal reform with respect to LGBTIQ rights and inclusion? and

How can we ensure that workplaces are inclusive and safe for people from all backgrounds but in particular for the LGBTIQ community?

While the panel ultimately adopted a more ‘free-wheeling’ approach to its discussion, I prepared the below, more detailed responses to these questions. Now that, at the end of a busy year, I’ve finally had the chance to tidy them up, I thought they might be worth sharing. I’m also keen to hear other people’s views, including on what you think the most significant issues that need legal reform are today – please leave your comments below.

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Question 1. What are, in your view, the most significant issues that need legal reform with respect to LGBTIQ rights and inclusion?

Despite what many people might assume – and what far too many members of our political and media classes seem to believe following the recognition of LGBTI marriage in 2017 – there remain a large number of outstanding legal reforms necessary for LGBTIQ rights and inclusion in 2020 [and I guess we can say 2021 now, too]. The following are my top three:

  1. Ending coercive medical interventions on children born with intersex variations of sex characteristics

Intersex people, and especially children born with intersex variations of sex characteristics, currently experience the worst human rights abuses of any group within the Australian LGBTIQ community.

Intersex people are born with physical sex characteristics that do not neatly fit medical norms for female or male bodies. Infants, children, adolescents and adults born with intersex variations risk or suffer forced and coercive medical interventions, designed to make their bodies more typically female or male. These interventions are not medically necessary, but instead rely on social or cultural rationales.[i]

The consequences of early and unnecessary deferrable interventions can include pain, trauma, shame, loss of sexual function and sensation, urinary incontinence and urgency, a need for ongoing medical treatment or repeat surgeries, experiences of violation and sexual assault, reinforcement of incorrect sex assignment and loss of choice.

These coercive medical interventions breach a large number of human rights principles, including the right to bodily integrity. They also adversely impact on rights to liberty, security, non-discrimination, privacy and freedom from torture, experimentation and harmful practices.

Unfortunately, coercive medical interventions on intersex people, and especially children born with intersex variations, have not been legally prohibited in any Australian jurisdiction. 

Instead, they are self-governed by clinical guidelines which support coercive interventions despite a lack of supporting medical evidence. And they are enabled by a legal system, including family law, which have permitted coercive interventions on the basis of (often poorly-informed) parental consent. The most infamous decision was the 2016 Family Court decision of Re: Carla, although it was merely one of a long line to contravene the human rights of intersex children.

In terms of law reform, there has been disappointingly little progress in this area. This month (October 2020) marks seven years since a bipartisan Senate Committee recommended new guidelines be developed that ‘should favour deferral of normalising treatment until the person can give fully informed consent, and seek to minimise surgical intervention on infants undertaken for primarily psychosocial reasons’ (among other recommendations).[ii]

Unfortunately, the Abbott, Turnbull and Morrison Governments have effectively done nothing to implement even these modest proposals.

More encouragingly, in June 2020 the Tasmanian Law Reform Institute released the final report of its inquiry into the legal recognition of sex and gender. It made a number of recommendations about intersex law reform, including:

Recommendation 7

The Criminal Code should be reformed to criminalise non-consensual medical interventions in the following terms:

178F Unnecessary medical intervention to change the sex characteristics of children.

(1) Any person who performs a surgical, hormonal or other medical intervention to alter or modify the sex characteristics of a child is guilty of a crime, unless:

(a) it is performed to address a clear danger to the life or health of the child and it cannot be deferred until the child is able to give informed consent; or

(b) it takes place with the informed consent of the child.

(2) Nothing in this Section is intended to apply to interventions involving a consenting transgender child seeking treatment to delay puberty or secondary sexual differentiation.

Charge: Performing unnecessary medical intervention to change the sex characteristics of a non-consenting child.

Recommendation 8 of that report also recommended that:

‘intersex people should be able to pursue claims for compensation for personal trespass and breach of professional duty against doctors where medical interventions to alter intersex variations of sex characteristics have resulted in physical or mental harm, irrespective of any parental consent to the intervention at the time it was performed.’

The Tasmanian Government is now considering these recommendations, meaning it is possible it will become the first Australian jurisdiction to criminalise coercive medical interventions on children born with intersex variations.

Before moving on, I should note the Australian Human Rights Commission has also been undertaking a long-running project on these issues.[iii] I understand it is (finally) nearing completion, and my personal hope is it recommends all Australian jurisdictions criminalise these human rights abuses.

2. Trans and gender diverse birth certificate reform

Trans and gender diverse people should have access to birth certificates, and other identity documentation, based solely on self-identification, and without medical approval (because gender identity is exactly that, identity, and not a ‘medical’ issue). Currently only one Australian jurisdiction has completely achieved this model: Tasmania, following its historic 2019 birth certificate reforms.

Victoria is a close second, also following changes in 2019, which removed the involvement of medical gatekeepers, although unfortunately it does not fully realise self-identification, because applications must be accompanied by a statement from someone who has known the applicant for at least 12 months and ‘supports’ the application.

Three other jurisdictions – South Australia, the ACT and the Northern Territory – have removed requirements for surgery or other physically invasive treatments. However, they still adopt a medical model, because they require engagement with psychologists or counsellors prior to approval. Ultimately, these laws will need to be updated.

However, the largest problems are in the other three states. NSW and Queensland still require surgery in order to access new identity documents, which is completely inappropriate not just because it unnecessarily medicalises gender identity, but also because not all trans and gender diverse people want surgery (or can afford it).[iv]

Western Australia’s legislation also requires surgery, although thanks to a favourable High Court decision, this has been interpreted to ‘only’ require some forms of physical treatment (such as hormone therapy).

Nevertheless, all three states – NSW, Queensland and Western Australia – must urgently amend their births, deaths and marriages laws to support self-identification for their trans and gender diverse residents [for more on this topic, see Did You Know? Trans People in NSW and Queensland Still Require Surgery to Update Their Birth Certificates].

3. LGBTIQ refugees in Papua New Guinea and Nauru

One LGBTIQ human rights abuse that is not technically in Australia, but is perpetrated by Australia, is the detention, processing and resettlement of LGBTIQ refugees and people seeking asylum in countries that criminalise them.

In particular, there remain LGBTIQ refugees and people seeking asylum who are trapped in Papua New Guinea – because the Australia Government put them there – a country which retains a maximum penalty of up to 14 years imprisonment for male same-sex activity.

And, even though Nauru decriminalised homosexuality in 2016, that does not necessarily translate into it being a safe environment for the LGBTIQ refugees and people seeking asylum which the Australian Government imprisoned there.

Of course, for anyone interested in international human rights law, all offshore detention, processing and resettlement is abhorrent, and should be ended for all refugees irrespective of their sexual orientation, gender identity or sex characteristics (or other attributes).

However, we must not overlook the fact Australia’s immigration framework has a particularly awful impact on people fleeing persecution on the basis of being lesbian, gay, bisexual, transgender, intersex or queer. They should be brought to Australia immediately.[v]

Anti-Discrimination Reform

While there is no individual LGBTI anti-discrimination law reform issue which is as important as the above three topics, I would argue that addressing our inadequate, incomplete and inconsistent LGBTI anti-discrimination and vilification framework overall must also be a high priority. Specifically, the majority of Commonwealth, state and territory anti-discrimination laws should be updated across three main areas:

Ensuring everyone is protected against discrimination. Most state and territory laws currently exclude at least some parts of our community. The NSW Anti-Discrimination Act 1977 is the worst – it doesn’t even protect bisexuals.[vi] While NSW, Victoria, Queensland, Western Australia and the Northern Territory don’t cover people with non-binary gender identities – and the same jurisdictions exclude intersex people as well.

Repealing the special privileges enjoyed by religious organisations. Loopholes allow faith bodies to discriminate against LGBT people, in employment and against people accessing services, even when they are delivering public services using public funding. Nearly all Australian anti-discrimination laws, including the Sex Discrimination Act 1984 (Cth), need to be reformed – although the Tasmanian Anti-Discrimination Act 1998 provides a template for how this can be done, by permitting religious organisations to preference people from their own faith (in limited circumstances), while not allowing discrimination on the basis of other attributes like sexual orientation or gender identity.[vii]

Obviously, the religious exceptions which have received the most public debate, at least in the past few years, are those allowing religious schools to discriminate against LGBT students, teachers and other staff. Positively, four jurisdictions (Tasmania, Queensland, the ACT and Northern Territory) have already legislated to cover LGBT students, although only two (Tasmania and the ACT) fully protect LGBT teachers and other staff. On the negative side, Scott Morrison’s Broken Promise to Protect LGBT Students is Now Two Years Old, and there’s little chance he will act on it for several years to come either.

Introducing prohibitions on anti-LGBTI vilification. There is currently no prohibition on anti-LGBTI vilification under Commonwealth law. Although they are by no means alone – currently Most Australian Jurisdictions Don’t Prohibit Anti-LGBTI Vilification. Of those that do (NSW, Queensland, Tasmania and the ACT), only Tasmania and the ACT protect all sections of the LGBTI community. Given homophobia, biphobia, transphobia and intersexphobia are just as damaging, and harmful, as racism, I firmly believe anti-LGBTI vilification should be prohibited on the same basis as racial vilification (equivalent to section 18C of the Racial Discrimination Act 1975 (Cth)). 

[For more on the overall state of LGBTI anti-discrimination and vilification law, see A Quick Guide to Australian LGBTI Anti-Discrimination Laws.]

Other LGBTIQ Law Reform Issues

There are a range of other LGBTIQ law reform issues which still need to be addressed, including:

  • Sexual orientation and gender identity conversion practices (sometimes called ex-gay or ex-trans therapy) should be outlawed across Australia. The Queensland Government recently introduced the first ban on these practices – although disappointingly it only applied in health care settings, and not in the religious environments where most anti-gay and anti-trans conversion practices occur. The ACT Government followed shortly thereafter, and their legislation has been welcomed by survivor groups because it covers both health care and religious settings. I understand that there are also moves to outlaw these practices in Victoria, Tasmania and South Australia – although sadly not in my adopted home state of NSW [NB Since the webinar, Victoria has introduced their own Bill to ban conversion practices, which appears to be stronger than both Queensland and the ACT, while the Tasmanian Law Reform Institute has released an Issues Paper on ‘Sexual Orientation and Gender Identity Conversion Practices’, with submissions due 7 January 2021].
  • South Australia still needs to abolish the gay panic defence (or homosexual advance defence). Thankfully, after much prompting, the South Australian Government has finally released draft legislation that does just that, for public consultation. Hopefully it is finally removed from the statute books later this year or in early 2021. [NB South Australian Parliament passed legislation finally abolishing the gay panic defence on 1 December 2020].
  • Expungement regimes – which allow for historical convictions for same-sex sexual activity to be expunged from a person’s criminal record – should also be strengthened. In particular, there is a serious limitation in the Queensland scheme, which does not allow gay, bisexual and other men who have sex with men who were convicted as a result of the unequal age of consent for anal intercourse between 1991 and 2016 to have their records expunged,[viii] and
  • The Marriage Act 1961 (Cth) needs to be amended to remove the unjustified special privileges that were introduced for existing civil celebrants, and religious organisations, as part of the Marriage Amendment (Definition and Religious Freedoms) Act 2017. Note that I usually do not refer to that legislation as providing ‘marriage equality’ as a result of these exceptions, because they mean LGBTI couples marrying now can be discriminated against in ways that divorced people remarrying before 2017 could not. We can get married, but it is still not equal.[ix]

Protecting Existing Rights

Some people take the quote ‘the arc of the moral universe is long, but it bends towards justice’ a little too literally, and consequently fail to appreciate LGBTIQ rights can go backwards. Something which has happened multiple times in the past decade, including the Newman LNP Government in Queensland winding back civil partnership laws passed by the Bligh Labor Government.

In the area of anti-discrimination, we should also remember the Baillieu Coalition Government in Victoria undid the introduction of a modest ‘inherent requirements’ test for religious exceptions passed by the Brumby Labor Government in 2010 – before they had even commenced. While the Hodgman Liberal Government tried multiple times to undermine vilification protections for LGBTI Tasmanians (and other groups) as long as that vilification was religiously-motivated (although thankfully those efforts failed).

There are currently three major efforts to undermine LGBTIQ rights:

The Commonwealth Government’s proposed Religious Discrimination Bill, of which we have seen two Exposure Drafts and was due to be introduced in March 2020 but has been delayed because of the coronavirus pandemic. This legislation would:

  • Make it easier to make comments that ‘offend, humiliate, intimidate, insult or ridicule’ LGBTI Australians
  • Make it easier for health practitioners to refuse to provide services to LGBTI patients
  • Make it easier for religious organisations to discriminate against others
  • Make it more difficult for big business to promote diversity and inclusion
  • Create a Religious Freedom Commissioner at the Australian Human Rights Commission (when we still don’t have a Commissioner for Sexual Orientation, Gender Identity and Sex Characteristics)
  • Entrench unjustified religious exceptions in the Marriage Act 1961 (Cth), and
  • Explicitly protect charities advocating against LGBTI relationship recognition in the Charities Act 2013 (Cth), despite it being completely unnecessary.

[For more, see The ‘Bad Faith’ Religious Discrimination Bill Must Be Blocked.] 

The Mark Latham/One Nation Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020 in NSW, which, similar to the Commonwealth Religious Discrimination Bill, seeks to privilege the rights of religious individuals and organisations over the rights of others, including the right of LGBTI people in NSW to be protected against discrimination [since the webinar, I had this opinion piece published in the Sydney Morning Herald, outlining just one of the many serious problems created by the NSW ‘Religious Freedoms’ Bill], and

The Mark Latham/One Nation Education Legislation Amendment (Parental Rights) Bill 2020, also in NSW. This legislation does (at least) three awful things:

  • Prohibiting the teaching of ‘gender fluidity’ – where teaching includes anything to do with a school (including counselling) by anyone connected to a school (including volunteers), and ‘gender fluidity’ means acknowledging that gender identity can be different to biological sex at birth. In effect, it will mean erasing trans and gender diverse students, as well as teachers, in schools across NSW
  • Introducing a UK section 28-style law against ‘promotion’ of ideological views about sexuality and gender identity – which, just like section 28 did there, will impose a silence on LGBT students struggling with invisibility at the most vulnerable point in their lives, and
  • Enacting an erroneous and stigmatising definition of intersex in NSW law for the first time (‘disorders of sexual differentiation’).

[For more, see I Stand with Trans Kids, and Against Mark Latham.]

Of course, ordinarily, we wouldn’t be too concerned about legislation being proposed by fringe extremists in the NSW Legislative Council. However, the NSW Government and Opposition have both supported both One Nation Bills being referred to Committee for inquiry – with the anti-trans kids inquiry chaired by Mark Latham himself. Which means we must resist the laws themselves, as well as fighting against toxic debate surrounding them which has the potential to harm vulnerable younger members of our community, and especially trans and gender diverse kids.

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Question 2. How can we ensure that workplaces are inclusive and safe for people from all backgrounds but in particular for the LGBTIQ community?

My answer to this will (thankfully) be significantly shorter than for the previous question, in part because we’ve already discussed some of the reforms that are needed, especially in terms of anti-discrimination law reform, such as repealing the special privileges that allow religious organisations to discriminate against LGBT employees.

This includes amending the Sex Discrimination Act 1984 (Cth) to protect LGBT teachers in religious schools, as well as reforms in the other jurisdictions where LGBT school staff are not fully protected (all states and territories bar Tasmania and the ACT).[x]

It also means ensuring LGBT employees in Government-funded aged care services operated by religious organisations are protected (where people accessing these services are currently covered under the SDA, but staff in those same facilities are not). There are several reasons for this, including because it is unfair on employees:

‘People should be hired, not hired or even fired, on the basis of how well they are able to provide care and support to the people accessing aged care services, not who they are attracted to or how they identify.’[xi]

It is also unfair on people accessing these services, who ‘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.’[xii]

The same reasons also apply in terms of fighting against the Commonwealth Government’s proposed Religious Discrimination Bill, especially in the era of coronavirus. That’s because the 2nd Exposure Draft Religious Discrimination Bill allows hospitals to hire the most religious, not the most qualified: 

‘Surely, that must have an impact on the standard of care that patients will receive. Imagine the worry if one of your loved ones is taken to the emergency department of a faith-based hospital and you can’t be certain whether the health practitioner is there because of what they believe, not what they can do.’

Likewise, the proposed Religious Discrimination Bill allows aged care facilities to hire the most religious, not the most qualified. As I wrote earlier this year: ‘As someone with a grandmother who turned 99 last Wednesday, and who is in a nursing home, I would hate to think she is being cared for by someone who is there because of their views and not their vocational skills’.

[Both quotes taken from my March 2020 article Coronavirus and the Religious Discrimination Bill which I think holds up pretty well, 9 months later, as a strong argument against the RDB when the Morrison Government inevitably brings it back it in the first half of 2021.] 

But repealing religious exceptions is not the only law reform needed to make workplaces inclusive and safe for people from all backgrounds, and in particular for the LGBTIQ community.

One specific reform that should be introduced as a matter of priority are amendments to the Fair Work Act 2009 (Cth) to ensure it treats trans, gender diverse and intersex employees exactly the same as lesbian, gay and bisexual ones.

Currently, the adverse action protections in section 351(1), and unlawful termination protections in section 772(1)(f), of that Act cover sexual orientation, but do not explicitly include gender identity or sex characteristics.[xiii]

Unfortunately, despite this issue being raised repeatedly with the Turnbull and Morrison Governments, they do not appear to be in any hurry to remedy this omission.

A broader structural reform to anti-discrimination law is ensuring it is able to deal with real-life people, who are complex and have multi-faceted characteristics (covering race, sex, age, disability, sexual orientation, gender identity, sex characteristics and more attributes besides).

Often, it is impossible for people to know whether they have been discriminated against because of a particular protected attribute, or a combination of attributes. Any definition of discrimination must be able to deal with this complexity, and uncertainty. In my perspective, one of the best approaches is found in section 8 of the ACT Discrimination Act 1991:

‘Meaning of discrimination

(1) For this Act, discrimination occurs when a person discriminates either directly, or indirectly, or both, against someone else.

(2) For this section, a person directly discriminates against someone else if the person treats, or proposes to treat, another person unfavourably because the other person has 1 or more protected attributes.

(3) For this section, a person indirectly discriminates against someone else if the person imposes, or proposes to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because the other person has 1 or more protected attributes.’

One final point that should be mentioned, if we are genuine about making workplaces inclusive and safe for people from all backgrounds, is that there is a gap in terms of anti-discrimination protections around religious belief, and lack of belief.

It is unacceptable that the Commonwealth, NSW and South Australian anti-discrimination regimes do not protect people of faith, and no faith, against discrimination – this is something that should be addressed.

But it must not be addressed in the way proposed by the Commonwealth Religious Discrimination Bill, or the Mark Latham/One Nation Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020 in NSW. Because they are just as unacceptable.

People of faith, and no faith, should be protected against discrimination on exactly the same terms as everyone else, including to the same standard as sexual orientation, gender identity and sex characteristics.

People of faith, and especially faith-run organisations, must not be given new special privileges to discriminate against others, including people of minority faiths or no faith, as well as women, LGBTIQ people, single parents, divorced people and people in de facto relationships, people with disability and plenty more.

Doing this one simple thing – protecting everyone against discrimination, equally – would help create an Australia where all people are accepted for who they are. And it would be a great leap forward for LGBTIQ people of faith too, many of whom experience discrimination on the basis of both sexual orientation/gender identity/sex characteristics and faith.

Footnotes:


[i] The information in this, and following, paragraph(s) is summarised from the website of Intersex Human Rights Australia. Please check them out here.

[ii] I made a submission to this inquiry way back in July 2013.

[iii] Please see my Submission to AHRC Consultation re Medical Interventions on People Born with Variations of Sex Characteristics.

[iv] This issue – financial barriers to trans healthcare – is something we don’t discuss enough. For more, see: Trans out-of-pocket medical costs.

[v] For more, see: Australia’s (Mis)Treatment of LGBTI Refugees.

[vi] For more, see: Did You Know? The NSW Anti-Discrimination Act Doesn’t Protect Bisexuals Against Discrimination.

[vii] For more, see: What’s Wrong With Tasmania’s Anti-Discrimination Act 1998? 

[viii] An issue I raised in my Submission re Queensland Criminal Law (Historical Homosexual Convictions Expungement) Bill 2017

[ix] For more, see: No, We Don’t Have Marriage Equality Yet.

[x] For more, see: Back to School, Back to Discrimination for LGBT Students and Teachers

[xi] From my Submission to [the] Royal Commission into Aged Care.

[xii] Ibid.

[xiii] For more, see: Unfairness in the Fair Work Act.

Private Lives. Public Discrimination. Political Exacerbation.

In November, La Trobe University’s Australian Research Centre in Sex, Health and Society (ARCSHS) released ‘Private Lives 3: The Health and Wellbeing of LGBTIQ People in Australia’. 

Building on reports in 2005 and 2011, Private Lives is Australia’s largest national survey of the health and wellbeing of lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) people.

Covering a diversity of topics, from households and relationships, to housing and homelessness, general health and wellbeing, mental health and wellbeing, alcohol, tobacco and other drug use, and intimate partner and family violence (among others), it makes for both fascinating reading and invaluable research. I strongly encourage you to download and read it.

However, as someone with a particular interest in all things LGBTIQ discrimination, it is their section on ‘Discrimination, harassment and feelings of acceptance’ I will focus on today.

The Private Lives 3 findings in this area are, frankly, disturbing.

Asked, ‘to what extent do you feel accepted in the following situations?’, just 60.7% of LGBTIQ Australians answered ‘a lot’ or ‘always’ in relation to work.

That figure dropped to 55.3% in educational institutions, and 43.4% when accessing a health or support service.

Only 30.5% of LGBTIQ people said they felt accepted a lot or always in public (eg in the street/park), and a perhaps unsurprising but still shockingly low figure of 10.5% at religious or faith-based events or services.

It is also unsurprising that cisgender members of the LGBTIQ community reported higher rates of acceptance than trans and non-binary people.

For example, while 68.5% of cisgender men and 61% of cisgender women felt accepted a lot or always at work, this fell to 50% for trans women, 48.8% for trans men and just 43% for non-binary people.[i]

There was a similar divergence in terms of acceptance by sexual orientation, with gay and, to a lesser extent, lesbian respondents reporting higher rates than bisexual, pansexual, queer and asexual people.

For example, while 69.6% of gay and 63.8% of lesbian people said they felt accepted at work always or a lot, just 53.6% of bisexual, 54.5% of pansexual, 54.5% or queer and 47.4% of asexual people said the same thing.[ii]

The responses to the question ‘In the past 12 months, to what extent do you feel you have been treated unfairly because of your sexual orientation or gender identity?’ are just as disturbing (if not more). As the authors (Hill, Bourne, McNair, Carman and Lyons) observe on page 40:

‘Almost six in ten participants reported that they had been treated unfairly to some degree (either a little, somewhat, a lot or always) because of their sexual orientation in the past 12 months, with 4.5% reporting a lot or always. Over three quarters (77.5%) of trans and gender diverse participants reported that they had been treated unfairly to some degree because of their gender identity in the past 12 months, with 19.8% reporting a lot or always.’

Even more shocking are the high reported rates of experiences of vilification – and worse – based on sexual orientation and/or gender identity. In the previous 12 months:[iii]

  • 34.6% of respondents reported experiencing verbal abuse (including hateful or obscene phone calls) due to their sexual orientation or gender identity
  • 23.6% experienced harassment such as being spat at and offensive gestures
  • 22.1% received written threats of abuse via emails or social media
  • 14.6% experienced threats of physical violence, physical attack or assault without a weapon
  • 11.8% experienced sexual assault
  • 11.4% received written threats of abuse in other ways
  • 10% experienced refusal of service
  • 9.9% experienced refusal of employment or being denied promotion
  • 5.3% received written threats of abuse via graffiti, and
  • 3.9% experienced physical attack or assault with a weapon (knife, bottle, stones).

‘Overall, trans and gender diverse participants reported higher levels of harassment and abuse than cisgender participants. For example, a greater proportion of trans women (51.6%), non-binary participants (49.4%) and trans men (45%) reported verbal abuse in the past 12 months due to their sexual orientation or gender identity compared to 28.7% of cisgender women and 32.7% of cisgender men.’

This is nothing short of an epidemic of discrimination, harassment, vilification and violence against LGBTQ Australians on the basis of their sexual orientation and, especially, gender identity. And it is getting worse, not better.

For example, reported rates of verbal abuse increased from 25.5% in Private Lives 2 (released in 2011) to 34.6% in Private Lives 3; harassment such as being spat at and offensive gestures rose from 15.5% in PL2 to 23.6% in PL3; physical attack or assault with a weapon doubled, from 1.8% to 3.9%; and sexual assault quadrupled, from 2.9% to 11.8%.

Let me think, what happened in the period between Private Lives 2, and the survey period for Private Lives 3 (from 24 July to 1 October 2019), which could have caused greater homophobia, biphobia and transphobia in the Australian community?

It seems undeniable that the Coalition Government’s proposed plebiscite on same-sex marriage, and actual postal survey – and the toxic public debate surrounding both – has directly contributed to increased anti-LGBTQ prejudice.

Nor should we underestimate the negative impact of the ‘religious freedom’ movement which they deliberately unleashed, with the Religious Freedom Review in 2018, and the Morrison Government’s First Exposure Draft Religious Discrimination Bill which was released right in the middle of the Private Lives 3 survey period, in August 2019.

What should happen from here?

The Private Lives 3 survey results show us the scale of the problem: appalling rates of discrimination, harassment, vilification and violence against LGBTQ Australians on the basis of their sexual orientation and, especially, gender identity. And we have a pretty good idea about who is to blame (at least for making the situation much, much worse than it already was). But what is the solution?

I would argue the following three actions would be a good place to start (although I’m sure readers of this blog could offer other useful suggestions, via the comments section below):

  1. Improve LGBTI anti-discrimination laws

The introduction of Commonwealth anti-discrimination protections for the LGBTI community, through the historic Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, was an important step, although by no means the end of the journey.

As I have written previously, these laws need to be strengthened, including by:

  • Updating ‘intersex status’ to ‘sex characteristics’
  • Protecting LGBT students, teachers and other staff in religious schools against discrimination
  • Limiting overly-generous religious exceptions that permit discrimination against LGBT people across many areas of public life, and
  • Appointing a Commissioner for Sexual Orientation, Gender Identity and Sex Characteristics at the Australian Human Rights Commission.

Discrimination in employment, especially against trans and gender diverse employees as identified in Private Lives 3, also needs to be addressed by explicitly including gender identity and sex characteristics in adverse action and unlawful termination provisions of the Fair Work Act 2009 (Cth). 

2. Introduce LGBTI anti-vilification protections

One of the long-standing, missing pieces of LGBTI law reform, at least at Commonwealth level, is protection against anti-LGBTI vilification. The high rates of hate-speech reported through Private Lives 3 has merely confirmed the urgency of addressing this gap.

As I hav consistently advocated over many years,[iv] given homophobia, biphobia, transphobia and intersexphobia can be just as harmful as racism, the Sex Discrimination Act 1984 (Cth) should be amended to prohibit anti-LGBTI vilification on an equivalent basis to the prohibition of racial vilification in section 18C of the Racial Discrimination Act 1975 (Cth).

3. Publicly-fund programs against homophobia, biphobia, transphobia and intersexphobia

Being an advocate for LGBTI law reform, it is easy to forget that changing the law can only ever be one part of the solution – and often only a small part at that.

To address the ongoing, high levels of anti-LGBTQ discrimination in employment, healthcare, education and other areas of public life identified in Private Lives 3, we need well-funded, publicly-funded campaigns explicitly targeting homophobia, biphobia, transphobia and intersexphobia.

We also need our elected representatives to lead by example, by calling out prejudice on the basis of sexual orientation, gender identity and sex characteristics, and making sure anti-LGBTIQ comments are never acceptable in public debate.

What is actually happening?

Unfortunately, when we examine what is being done in relation to the three actions described above, the answer is not much. In fact, worse than just political inaction, the Coalition Government seems intent on exacerbating these problems rather than solving them.

For example, the proposed Religious Discrimination Bill – which Attorney-General Christian Porter recently confirmed remained part of the Government’s legislative agenda – would make it easier for religious individuals and organisations to discriminate against LGBTIQ Australians, including by refusing to provide healthcare services that benefit members of our communities (for more, see The ‘Bad Faith’ Religious Discrimination Bill Must Be Blocked).

That same legislation also calculatingly, and explicitly, undermines state and territory anti-vilification laws (where they exist), by making it easier for people to make comments that ‘offend, humiliate, intimidate, insult or ridicule’ LGBTI people as long as those comments are motivated by faith. This includes over-riding the ‘best practice’ Anti-Discrimination Act 1998 (Tas).

As for culture change, then-Prime Minister Malcolm Turnbull first ‘gutted’ then abolished entirely the national, evidence-based program targeting bullying against LGBT kids in schools (Safe Schools).

Meanwhile, current Prime Minister Scott Morrison has publicly attacked school counsellors who support trans and gender diverse children, deriding them as ‘gender whisperers’ in a now-infamous tweet. And he has taken more concrete action to remove trans-inclusive toilet door signs in the Department of Prime Minister & Cabinet, than he has to implement his 2018 promise to protect LGBT students in religious schools against discrimination (for more, see ‘Scott Morrison’s Broken Promise to Protect LGBT Students is Now Two Years Old).

The findings of Private Lives 3 reveal a bushfire of bigotry is burning in the Australian community – but far-too-often our elected representatives are the ones who are fanning the flames.

Of course, it isn’t just the Commonwealth Government who should be taking action to address discrimination, harassment, vilification and violence against LGBTQ Australians. Our state and territory governments, too, need to step up, including by modernising their own anti-discrimination laws.[v] The Anti-Discrimination Act 1977 (NSW), and Equal Opportunity Act 1984 (WA) in particular have fallen far, far below community standards.

Victoria, Western Australia, South Australia and the Northern Territory also need to introduce their own LGBTI anti-vilification laws (in addition to the Commonwealth), while it is probably fair to say all Governments could be doing more to combat homophobia, biphobia, transphobia and intersexphobia in their respective jurisdictions.

Nevertheless, I would argue that the sheer size of the challenge which confronts us, as so disturbingly revealed in the ‘Discrimination, harassment and feelings of acceptance’ pages of Private Lives 3, demonstrates a national approach is desperately needed.

That obviously means stopping those things which would simply make the problem worse – including by abandoning any Religious Discrimination Bill that would undermine the rights of LGBTIQ Australians. But it also requires positive steps to make things better.

We’ll find out in 2021 whether the Commonwealth Government, and Parliament more broadly, is willing to do that which is necessary – or allow anti-LGBTIQ prejudice to rage on.

Footnotes:


[i] The rates of acceptance at health services were even lower, showing a significant drop-off for cisgender women. Specially, while 55.5% of cisgender men felt accepted ‘a lot/always’, this fell to 42.4% for cisgender women, 46.5% for trans women, 30.1% for trans men and just one in five non-binary people (21.5%).

[ii] The rates of acceptance at health services were even lower. Only gay respondents felt accepted ‘a lot/always’ more often than not (54.8%), compared to just 40.1% of lesbian, 43.8% bisexual, 37.3% pansexual, 26.7% queer and 33.3% asexual respondents. 

[iii] Check out the full list on page 40 of the Private Lives 3 Report.

[iv] See also: ‘Did You Know? Most Australian Jurisdictions Don’t Prohibit Anti-LGBTI Vilification‘.

[v] For a comprehensive discussion of LGBTI anti-discrimination protections around the country, see: A Quick Guide to Australian LGBTI Anti-Discrimination Laws

An Incomplete History of Marriage Equality in Wollongong

Wollongong, a regional city in NSW, is home to around 200,000 people, or less than 1% of the Australian population. However, despite its small size, Wollongong has played a significant role in the history of marriage equality in Australia. That includes political trailblazers in support of, as well as staunch advocates against, change, plus influential grass-roots community campaigners.

This article seeks to give recognition to those involved in the long and arduous struggle for marriage equality who called Wollongong home. And yet, for at least two reasons that will explained in detail later, this history can only ever be an incomplete one – deliberately leaving space for other stories, and voices, to be heard on this subject.

Political trailblazer #1: Michael Organ

The first political trailblazer was an MP who served less than two years in office: the former Greens Member for Cunningham, Michael Organ. Having somewhat unexpectedly won a by-election on 19 October 2002, Mr Organ was responsible for representing constituents in the Wollongong CBD and its Northern suburbs when Prime Minister John Howard first sought to ban same-sex marriage in 2004.

With the Labor Opposition supporting the Liberal/National Government’s amendments to the Marriage Act 1961 (Cth), Organ was the only member of the House of Representatives to speak out against the prohibition on same-sex marriage. In fact, as the only MP to oppose the ban, there was no formal division on the Marriage Amendment Bill 2004 when it was debated on 24 June,[1] given calling for a division requires a minimum of two members. Nevertheless, Organ made his passionate views against the Bill known on the floor of the chamber:[2]

The Marriage Amendment Bill 2004 is a disgrace. It is quite clearly discriminatory. It discriminates against those 20,000 couples in Australia that the ABS has recently told us want to be married, who are living as married couples and who are not heterosexual – they are part of the lesbian, gay and transgender community.

This is 2004 we are talking about. The government seems to be living in the fifties and seems to deny everything that has happened in regard to so-called gay liberation and rights for people of other sexuality. The government has its head in the sand on this matter.

In this day and age in Australia … there are gay and lesbian couples living in loving relationships as married couples. We cannot deny this. It is not going to change. It is part of our society and we have to embrace it. It is disgraceful for the government to come into this place – and for the opposition to support them – and to blatantly discriminate against those people.

It is a sad day for this parliament to be introducing such discriminatory legislation.

… 

We have heard the Prime Minister come into this place and say, ‘I’m not going to discriminate against anyone based on their sexuality,’ yet here we have a blatant example of the government and the opposition supporting discrimination against ordinary individual Australians based on their sexuality. This simply cannot be condoned.

Thirteen years before the same-sex marriage postal survey, Organ was foreshadowing the arguments that would ultimately lead to a majority of Australians supporting marriage equality: that as well as being an issue of fundamental equality before the law, it was essentially about recognising the equal love between two people irrespective of sexual orientation and gender identity.

Organ had also been the only House of Representatives MP to speak against the Howard Government’s first attempt to ban same-sex marriage, earlier that month, legislation which did not progress because the Labor Opposition would not support provisions against overseas same-sex adoption. On 17 June 2004, he stated:[3]

The Greens do not believe that allowing members of the LGBTI community to marry fundamentally undermines marriage. Indeed, such a desire can surely only strengthen it. If two people wish to make a public declaration of their love and longterm commitment, then their gender is irrelevant. We should remember that we are dealing here with the emotions, feelings and relationships of ordinary Australians.

Interestingly, one of the examples of legal discrimination against same-sex couples cited by Organ in that speech was the Howard Government’s refusal to subsidise the expenses of the former Member for Throsby, Colin Hollis’, long-term same-sex partner when Hollis represented the Australian Parliament at the United Nations, despite mixed-sex partners receiving this entitlement without question:[4]

Hollis took his case to the Human Rights and Equal Opportunity Commission in 2001 but lost on the strict definition of ‘spouse’ in the legislation. Again, the government fought Hollis all the way. This blatant discrimination is an affront to fair-minded people everywhere.

During both of the Howard Government’s legislative attempts to prohibit same-sex marriage, the Member for Cunningham was the only voice in the lower house calling for full equality for lesbian, gay, bisexual, transgender and intersex (LGBTI) couples. Consequently, the citizens of the Wollongong CBD and Northern suburbs were the only people in the country whose local member supported their right to determine for themselves who they should marry.

This does not mean the local community fully supported his decision to take such a stand. Nationally, a June 2004 survey conducted by Newspoll found only 38% of respondents were in favour of same-sex marriage, while 44% were against.[5]

As Organ himself conceded to Parliament, local views on the issue were also divided: [6]

I have certainly been made aware of the homophobia that has existed in the community in my electorate of Cunningham. Vile letters to the editor on this issue have appeared in the Illawarra Mercury since the Prime Minister raised the issue last year, and recently in response to my same-sex relationships bill – though I should point out to the House that the letters in support of gay marriage and gay rights have far outweighed the homophobic.

The reference to his ‘same-sex relationships bill’ actually represents another first for the Commonwealth Parliament: Organ’s Same Sex Relationships (Enduring Equality) Bill 2004 was the first Bill introduced that sought to permit same-sex marriage in Australia, out of a total of 23 such Bills introduced between 2004 and 2017.[7] Sub-clause 5(2) of his Bill provided:

5 Discrimination on the basis of sexuality to be unlawful

(2) To avoid doubt this Act makes any distinction, exclusion, restriction or preference based on a person’s sexuality as it relates to;

(a) Marriage;

(b) Adoption;

(c) Superannuation;

(d) Employment Entitlements;

(e) Access to reproductive or health services;

(f) The lawful age of consent to sexual activity;

unlawful.

While the Bill was never debated in Parliament, and he went on to lose the seat of Cunningham at the election on 9 October 2004, in his short time in office Michael Organ was undeniably a trailblazer on the issue of marriage equality – a torch that was picked up six years later by a member of a different political party, representing the other electorate covering parts of the Wollongong community.

Political trailblazer #2: Stephen Jones

Stephen Jones was elected in the seat of Throsby at the federal election on 21 August 2010. Throsby – which was re-named Whitlam at the 2016 election – represents the southern suburbs of the Wollongong Local Government Area (LGA), as well as Shellharbour and parts of Wingecarribee Shire in the Southern Highlands. Less than three months later, Jones first used his position to speak out in favour of marriage equality, telling Parliament that:[8]

[M]arriage is an important institution in our society. It is a special relationship where two people say to each other and to the rest of the world that they agree to be bound together in love, exclusive of all others, for life. I believe it would diminish us all as a society if we were to say that we may exclude gay and lesbian couples from this celebration. That marks them as somehow less worthy or even as biological oddities. I respect the right of religious organisations and others in our community to disagree with this view and to continue to practise in accordance with their beliefs. Indeed, no motion or act of this place can of itself change those beliefs. But it is an entirely different thing to ask of the state to enforce it.

Looking back on his history of engagement on the issue, Mr Jones reiterated that the principles of equally and fairness were motivating factors for his stand:[9]

I was always on side, a supporter of marriage equality, even before I entered parliament. Going into my first election campaign, I was clear that, if there was a Bill, I would vote for it. But as is so often the case, issues can become more salient or important over time. As I thought more about the issue, I realised this was not something that could be ignored, or delayed. This was an issue of fairness, and equality, and I thought Labor should take a stand on it.

In 2020, it can be easy to underestimate how courageous this step was. Jones, a first-term MP, was speaking against not only the platform position of his party – the ALP remained officially opposed to marriage equality until its December 2011 national conference – but also of his then-Prime Minister, Julia Gillard.

In this context, it was inevitable that Jones’ stance would attract criticism – and it did, particularly from some right-wing figures within the Labor Party itself. Within days, Bob Harrison, former Labor MP for the state seat of Kiama, had written to the Illawarra Mercury that ‘Marriage must be defended’:[10]

The Government must fearlessly and without diffidence defend the institution of marriage as involving vows between one man and one woman, while rejecting out of hand illogical and ideologically driven demands of social engineers and politicians who conspire with the Greens for unprincipled preference deals.

This opposition continued in the following year, with then-state Labor MP for Wollongong, Noreen Hay, leading what was described as:[11]

a rebellion against Labor federal counterpart Stephen Jones, winning a key motion in his seat of Throsby which undermines his public stance on same-sex marriage. The humiliating defeat reflects widespread anger among ALP members in Mr Jones’ electorate, who feel they were not consulted about his position on the issue.

Mr Harrison again attacked Jones through the media in early 2012, writing that:[12]

Heterosexual marriage involving one man and one woman, in any case, must be preserved and recognised as a unique institution among all human relationships, predicated on the creation of new life and the preservation of family life Australians have always known. Australian children have a right to know, bond with and share the love and protection of both a mother and a father. No other form of human or social relationship can hold out the promise of this benefit to future generations.

Reflecting on this internal backlash almost a decade later, Jones remains convinced his pro-equality approach was the correct one:[13]

I was copping a whole heap of shit from some people for the stand I was taking. People in the Party who were strongly against it were using it to campaign against me. I had an opponent who was knocking on doors telling people I was supporting same-sex marriage and that was a reason people shouldn’t support me. I was initially a little bit worried about the fall-out, but once you take the first step, and the second – especially on an issue of principle – then you just keep walking towards the outcome you think is the right one. Overall, I guess I did lose a little bit of support in some quarters, but I did what I thought was right.

In fact, despite these prominent local opponents, in February 2012 Jones would go on to introduce the first private members bill to legalise same-sex marriage to come from a major party MP (Labor, Liberal or National Party) – which also meant it was the first marriage equality bill that had a realistic chance of succeeding.

His first reading speech on the Marriage Amendment Bill 2012 had echoes of the earlier parliamentary contributions of Michael Organ in 2004:[14]

I believe that God made us all equal but different-not differently equal. The object of the bill is to remove discrimination and advance equality. It will ensure that when same-sex couples make a voluntary commitment to be together for life, to the exclusion of all others, and they choose to have that relationship solemnised, it will be recognised at law in the same way that my marriage is…

I believe there is a stronger force which guides us in matters like this. It is the right to equality-the human right not to be discriminated against on the grounds of sexuality. Human rights are inalienable rights, recognised and protected by governments, not created by them. They should never be qualified by fear or prejudice.

Debate about Jones’ Bill, both inside and especially outside Parliament, dominated national discussion for the following six months. Ultimately, it became the first same-sex marriage bill to be debated by both chambers of Parliament since Howard’s original ban on same-sex marriage in August 2004. Jones continued to push for equality before the law as the Bill was debated in September 2012, in his summing-up speech:[15]

The case for the bill is simple. It is about equality, it is about recognition of relationships-the validation of those relationships-and it is about saying to people who are often excluded, alienated or discriminated against: ‘You know what? You are okay. What’s more, you are better than okay: your relationship is just as valid as mine is in my marriage to my wife. And if you seek to have that relationship described as a marriage and recognised by the state as a marriage then who are we to stand in your way?’

Unfortunately, at least for supporters of marriage equality, his efforts were not successful, primarily because the Liberal/National Opposition, led by Tony Abbott, would not grant a conscience vote to its members, unlike the Gillard Labor Government. The result: it was comprehensively defeated by 98 votes to 42 votes in the House of Representatives[16] (although Labor MPs did vote in favour by a margin of 38 to 26).[17]

Following this defeat, it would have been understandable had Jones decided to appease his internal critics and instead focus his energies on other matters. Perhaps even more following the defeat of the Rudd Labor Government on 7 September 2013, and consequent relegation to the opposition benches. However, Jones remained steadfast in his support of marriage equality, including his criticisms of the recalcitrance of the then-Abbott Liberal/National Government.

For example, in December 2013, Jones spoke out following the High Court’s decision to invalidate the ACT’s same-sex marriage legislation, and therefore invalidate 31 marriages of same-sex couples:[18]

I believe that on this issue members of this place are lagging behind public opinion. I believe we are different but equal and we should not be differently equal before the laws of this place. I call on members opposite and I call on the government to allow its members to have a conscience vote on this issue when a bill is next brought before us.

Jones also reflected the views of the community, and especially of LGBTI Australians in opposing the proposed plebiscite on same-sex marriage, first put forward by Prime Minister Abbott in August 2015, and adopted by his successor, Malcolm Turnbull. In the February 2016 debate on another unsuccessful marriage Bill,[19] Jones stated:[20]

I am not opposed to referendums, but we do have to wonder why this matter is proposed to be put to a referendum, given that it is our job, as parliamentarians, to vote on matters that are put before us, and we have a matter put before us. We are told that the cost of that referendum is going to be $160million-only for it to have a non-binding outcome…

After his re-election at the July 2016 federal election, and now representing the renamed seat of Whitlam, Jones continued his fight against this unnecessary public vote, in-part because of its detrimental impact on the LGBTI community:[21]

I spoke to them about their very real concerns. I think it would have been an abrogation of my responsibility for me-as I have said, as a privileged, white, heterosexual male-to say, ‘C’mon, we can toughen up; we need not be concerned about these issues,’ and not listen to their concerns and their lived experiences. To a person, they were concerned about the impact of the plebiscite on their children or on young LGBTI people.

If this plebiscite bill gets up, if the vote goes ahead, we will spend the next nine months talking about nothing more than the sexuality of people who choose a different partner to me, and that is not what the Australian people are after. That is not why we were sent here to Canberra.

More simply, he told the Illawarra Mercury “It’s not like these issues are complex, this is something the Parliament should just get on with and deal [with].”[22]

Predictably, Jones strongly criticised the Government’s decision to hold a same-sex marriage postal survey, via the Australian Bureau of Statistics, after their plebiscite bill had been defeated:[23]

The third envelope is going to be the one that is the most expensive of all. That is the envelope that is costing Australians $122million, the envelope which shows how out of touch this Prime Minister and this government really are: the unnecessary and expensive envelope which will have a postal vote on same sex marriage.

As we now know, that postal survey recorded a solid Yes vote nationally, and the Commonwealth Parliament subsequently debated Liberal Senator Dean Smith’s Marriage Amendment (Definition and Religious Freedoms) Bill 2017 – as well as a number of amendments from conservative MPs seeking to undermine it through extensive new ‘religious exceptions’. Jones continued to fight for the principle of full equality, and against these special privileges, in the House of Representatives:[24]

[W]hen you act as a civil celebrant, you’re performing a civil ceremony, not a religious ceremony, and you are exercising a function under our law. It should be that the people who are exercising the function under our law are equally bound by it. There should be no basis in relation to civil celebrants which permits discrimination.

The detailed account of Stephen Jones’ actions in support of same-sex marriage, outlined above, reflects the often complex, sometimes tortuous, unacceptably lengthy process it took Commonwealth Parliament to make marriage equality a reality. Throughout, his support for this reform was steadfast – indeed, there were few better friends to the cause of LGBTI rights, from any political party, during the past decade than the ALP member for Throsby/Whitlam.

Asked to nominate personal highlights of the long fight for marriage equality, Jones spoke, in magnanimous terms, about the day it was finally passed by parliament:[25]

[I]n particular seeing close to 150 people on one side of the chamber, and just a small handful of people opposed (plus a few who ran from the chamber…) It was a genuine moment of unanimity. It was a good thing, for the country’s representatives to come together in that way. As a Labor person, I would have obviously preferred for us to have achieved it earlier as the Government. But as an Australian I was delighted to see it finally happen.

He also raised the positive legacy of marriage equality for Australia:[26]

I felt proud for the country on this issue. That we had actually done something, achieved something. So many issues currently are dominated by intractable conflict – social, economic, environmental issues – that we seem incapable of achieving systemic change. Here was an issue which showed that positive change can still happen, that we can still resolve issues that are contentious.

If that assessment is correct, then the Member for Throsby/Whitlam played a key role in making it happen – something he can forever be proud of, and which again reflects the oversized contribution of the city of Wollongong in the history of marriage equality in Australia.

2017: Wollongong Says Yes in the Same-Sex Marriage Postal Survey

The announcement of the results of the same-sex marriage postal survey, by Australian Statistician David Kalisch on Wednesday 15 November 2017, confirmed that the local Wollongong community strongly supported marriage equality.

While Australia ‘voted’ yes by a margin of 61.6% yes to 38.4% no,[27] both electorates which include parts of the Wollongong LGA voted yes at higher rates than the national average:[28]

  • Cunningham: 65.7% yes versus 34.3% no, and
  • Whitlam: 62.3% yes versus 37.7% no.

These results were also significantly higher than the NSW average as a whole: 57.8% yes against 42.2% no,[29] an impressive achievement for a regional city. Indeed, Stephen Jones highlighted this aspect of the postal survey vote in his speech on the Smith Bill:[30]

If you applied the common prejudice that says that regional folk are less progressive than are their city cousins, you’d conclude that the city overwhelmingly voted in favour and the regions overwhelmingly voted against. Well, you’d be wrong. Of the 62 regional seats, only three voted against marriage equality. This confounds those views that regional Australia is somehow less progressive on these sorts of issues and less welcoming of diversity than people in the inner city. Regional electorates like mine have shown themselves to be open places that are willing to embrace same-sex couples.

The high yes vote is even more impressive considering the demography of Wollongong, as reflected in the 2016 Census. One of the factors associated with higher levels of support for marriage equality traditionally has been university education – however, Wollongong reported lower-than-average rates of holding a ‘Bachelor Degree level and above’ (19.9%, compared to 23.4% for NSW and 22.0% nationally).[31]

Even more significantly, Wollongong LGA reported higher rates of religiosity in the 2016 Census than elsewhere, including:[32]

  • 25.6% Catholic, compared to 24.7% (NSW) and 22.6% (Australia)
  • 16.6% Anglican, compared to 15.5% (NSW) and 13.3% (Australia), and
  • 4.3% Eastern Orthodox, compared to 2.5% (NSW) and 2.1% (Australia).

It is tempting to say that, despite this religiosity – and the views of major church leaders – the people of Wollongong voted yes. However, in the postal survey the congregations showed they were in fact ahead of their respective church positions. When asked about this discrepancy, Jones made the following observation:[33]

[T]he paradox is that the Wollongong community is also quite a religious, and multicultural, community and there were obviously some people who were strongly opposed [to marriage equality] too. But many people of faith supported marriage equality as well, even though the church leaders were opposed. To some extent, the congregation were no longer listening to the church leadership on questions of sexual morality, after the church scandals of the 1980s and 90s.

The obvious question is why the Wollongong community as a whole, religious and non-religious folk alike, was so willing to embrace full legal equality for LGBTI relationships. And it is possible that having political trailblazers like Michael Organ and Stephen Jones helped to move the debate forward here more rapidly than in other places.

However, it is far more likely that progress was achieved because of the tireless work of community campaigners, over many years, to persuade their family members, friends, neighbours and wider community that LGBTI relationships were just like any other relationship, and should therefore be entitled to the same legal recognition as any other relationship.

Community Campaigners: Evelyn Gray

Lead marriage equality campaigner at GetUp! during the 2010s, Sally Rugg, has written that:[34]

Every inch of LGBTIQ progress has been fought for, and won, on a foundation of [our] community’s personal stories. We tell stories to connect, to resist, and in the hope that those listening might see their own history reflected in ours.

Some of the most powerful of those stories have come from parents of LGBTI Australians, speaking up for the equal treatment of their children under the law. While nationally that role was filled (more-than-capably) by Shelley Argent, the Australian President of PFLAG (Parents and Friends of Lesbians and Gays), in NSW one of the leading ‘proud mums’ was Wollongong local Evelyn Gray.

Asked in 2020 ‘why marriage equality was so important to [her] personally?’, Ms Gray answered:[35]

My husband and I have two daughters, one gay and one straight. Our story was a very common one – wanting our gay child to have exactly the same rights as her straight sibling. I was incensed when John Howard amended the Marriage Act in 2004 to specifically exclude same-sex couples, and so began my marriage equality journey.

That journey was both lengthy, and incredibly active, including being the admin for the Facebook page ‘Wollongong for Marriage Equality’ (now LGBTI Equality Wollongong)[36] for 8 years and counting, a site she used for publicizing marriage equality rallies, sharing petitions and other calls to action, and for co-ordinating local media requests. Coincidentally, Gray was asked to create the page on a 2011 lobbying trip to Canberra with Shelley Argent and other PFLAG mums.[37]

That trip was one of many activities in lobbying politicians to support change, both locally (Gray recalls emailing and visiting the offices of local MPs Stephen Jones and Cunningham MP Sharon Bird multiple times in 2011 and 2012)[38] and nationally. Indeed, on one trip to Parliament House Gray was told by one Senator that “It’s about time homosexuals stopped playing the victim card and trying to bring down the institution of marriage”.[39]

Gray wasn’t afraid of speaking truth to power either, garnering publicity for her response to a 2016 ‘Valentine’s Day’ social media post from then-Prime Minister Malcolm Turnbull to his wife Lucy:[40]

Congratulations on your happy marriage. I’m very lucky also to have been married for over 40 years. However, my husband and I are saddened that our gay daughter is still waiting for the same right as her sister; the right to marry the love of her life. No plebiscite please – a free vote in Parliament is all it will take!

Like many other marriage equality campaigners, Gray regularly exercised her writing skills, including letters to the editor of the Illawarra Mercury,[41] as well as composing ‘many letters, emails [and] submissions to Federal MPs and Senators re amending [the] Marriage Act, allowing [a] conscience vote, against a plebiscite, telling [a] personal story’, while persuading ‘family and many friends to do the same.’[42] Gray even contributed a chapter to the 2011 essay collection Speak Now: Australian Perspectives on Same-Sex Marriage.[43]

In addition to more traditional lobbying tactics, Gray engaged in more direct, grass-roots action, attending and marching in countless rallies. She recalls the final poster she demonstrated with proclaimed ‘How many more bloody posters do I have to make before my gay daughter can marry?’[44] Gray also marched in five marriage equality floats in the Sydney Gay & Lesbian Mardi Gras Parade between 2013 and 2018, including in 2015 with a poster thanking Sharon Bird for her support.[45]

Her activism continued during the 2017 postal survey, including making and distributing posters which said ‘This small business is big enough to support marriage equality – Vote’, using the Wollongong for Marriage Equality page to drive both enrolment and voting (one post featured her ’90-year old mum proudly holding her survey’)[46], door-knocking, letterboxing, ‘placing stickers around town’, literally flying the rainbow flag from her house and attending the ‘Yes to Marriage Equality’ rally at the University of Wollongong[47].[48]

Evelyn Gray was indefatigable in advocating for her daughter’s right to marry. It is no surprise that, when writing their history of the marriage equality campaign, Australian Marriage Equality (AME) convenor Alex Greenwich and LGBTI historian Shirleene Robinson observed the following:[49]

Evelyn Gray, the mother of two daughters, one straight and one gay, who was one of the movement’s strongest and most dedicated allies…

For her part, Gray remembers many highs, and lows, along the path towards equality. Among the former were being in Prince Alfred Park in Sydney for the announcement of the postal survey results and ‘seeing the joy and relief on the faces of the crowd’ while ‘dancing for joy with another parent activist’, the passage of marriage in Commonwealth Parliament a few weeks later, and working with long-time activists like Shelley Argent and Rodney Croome.[50] Personal lowlights included Tony Abbott denying a conscience vote to Coalition MPs on Stephen Jones’ Marriage Amendment Bill in 2012, causing that legislation to be defeated.[51]

Of course, Gray was only one of many voices in the Wollongong community who pushed for marriage equality over many years. When asked now ‘Why do you think the Wollongong community responded so positively to marriage equality?’ she was quick to nominate a range of people who helped make change happen:[52]

  • ‘Stephen Jones was always very public about his views, advocating for the principles in which he believed, spoke up against hate speech in the community, spoke on local radio using common sense arguments, organised a marriage equality workshop in his electorate to teach how to effectively advocate for marriage equality.
  • ‘Sharon Bird, although initially sat on the fence on marriage equality, declared her support after gauging her constituents’ views on same-sex marriage’ and
  • ‘Strong campaigning from: Illawarra Rainbow Labor, Paul Scully, Labor councillors, Young Labor, The Greens, and Simon Zulian.’

Gray also praised the role of the Illawarra Mercury in ‘featur[ing] personal stories of local gay couples and families, publish[ing] letters from supportive readers, survey[ing] Wollongong Council election candidates on their stance on the postal survey.’[53]

Stephen Jones was similarly keen to highlight local voices in favour of marriage equality throughout the campaign. After introducing his Marriage Amendment Bill 2012, he spoke about a Wollongong couple denied the right to marry:[54]

Peter [Bearman] is a diesel mechanic and James [Pollack] is a university student. It is their fervent hope and the hope of their mother, whom I met last weekend, that one day they will be able to get married here in Australia. It is with that story in mind that I moved in the House today a private member’s bill that would amend the Marriage Act 1961 to permit couples like Peter and James to get married here in Australia.[55]

And in his speech on the Smith Bill five years later, Jones acknowledged:[56]

In my own region, there was Illawarra Rainbow Labor. I want to recognise Caitlin Roodenrijs and my dear friend Simon Zulian, who dedicated his tireless campaign work to his deceased partner, Kane-the love of his life who he never had the opportunity to marry. I salute you, Simon, for your tremendous work.

The names cited by Evelyn Gray and Stephen Jones are just some of the locals who contributed to the fight for marriage equality from the time it was banned by the Howard Liberal/National Government until it was finally legalised in December 2017.

This history is and will forever be incomplete. Not just because of space constraints – even if this were a book, rather than a 10,000-word article, it would not be possible to do justice to all of the community campaigners on this issue.

It is also because of the nature of the marriage equality movement itself. In the words of then-AME convenor Rodney Croome:[57]

“Real change takes time. It’s rare that a single conversation will make the difference,” he said.

“It’s an accumulation of conversations and then there will come a point where… the penny will drop.”

But the principles of sharing personal stories and engaging emotionally were still vitally important to the marriage equality campaign, Mr Croome said.

Which means that support for marriage equality in Wollongong was driven by thousands of people, having tens of thousands of conversations, over many years, until 60,906 people in Cunningham, and 57,562 people in Whitlam,[58] answered the question ‘Should the law be changed to allow same-sex couples to marry?’ with an unequivocal yes in September and October 2017.

Wollongong Opponents: Concetta Fierravanti-Wells

While the preceding sections might paint the picture that the entire Wollongong community supported marriage equality, that is obviously not the case – after all, 31,840 people in Cunningham, and 34,879 people in Whitlam,[59] responded no in that same-sex marriage postal survey.

Chief among the opponents to marriage equality, not just in the Illawarra but also nationally, was Liberal Senator Concetta Fierravanti-Wells. A Wollongong local, Fierravanti-Wells was one of the most vocal figures in Parliament against full equality for LGBTI relationships.

During a 2008 debate on the Same Sex Relationships (Equal Treatment in Commonwealth Laws – Superannuation) Bill, Senator Fierravanti-Wells spoke out against marriage equality, even though it was not being proposed:[60]

Marriage is a unique institution in our society and it is one that we… should do everything in our power to protect, and ensure that it is supported, encouraged and backed up in every way, shape and form… Marriage is a very important institution not only for the traditional Anglo-Saxon culture in this country but also for so many others in our culturally diverse community. It is the important umbrella institution which helps to nurture children in an environment where they can grow and prosper. Indeed, the traditional form of marriage in my view provides the best form of security in our society… Often people talk about the silent majority in this country. I think that the silent majority in this country would agree about the sanctity of marriage and the sanctity of what is the traditional family.

It was a position Senator Fierravanti-Wells would not deviate from over the following decade, including using colourful, and at times controversial, language against the Senate version of Stephen Jones’ Bill in September 2012:[61]

I doubt that most people who are pushing these amendments are overly religious or even intend on staying in a monogamous relationship, which begs the question: why do they want to get ‘married’? The chattering classes do not want to concede that, by amending the Marriage Act, they are in fact denying the rights of the silent majority who want to uphold the sanctity and true meaning of marriage and who want to keep some tradition going in a world that seems to be forever throwing out the old and bringing in the new.

One must ask: where will this all end? You do not have to look very far to find the answer. There are already legal challenges in Canada and Utah that have been brought forward by polygamists who claim they have a right to polygamous marriage, and polyamorous activists are relentlessly campaigning for legal recognition of their relationships.

It is perhaps unsurprising that the more inflammatory parts of this speech were picked up in local media.[62]Equally predictable is the fact Fierravanti-Wells used the speech to criticise Stephen Jones for introducing his legislation:[63]

Same-sex marriage is a 10th order issue. It galls many in the Illawarra, where I was born and where my electorate office is located, to see their local member for Throsby, Stephen Jones, championing this cause above more pressing issues for his constituents.

As a Minister in the Turnbull Liberal/National Government in 2016 and 2017, Fierravanti-Wells supported holding a plebiscite on same-sex marriage, and when that was defeated, the same-sex marriage postal survey. Indeed, she actively campaigned for a no vote in the ABS’ statistical survey:[64]

“I believe marriage is between a man and a woman; two different genders coming together in one unique union,” Senator Fierravanti-Wells told the Coalition for Marriage launch on Saturday. “This is what it has been for every culture, every ethnicity, every faith, in every corner of the world for thousands and thousands of years. I am so proud to stand with you and millions of my fellow Australians who will be voting ‘no’.”

However, when the nation, NSW and both electorates in the Illawarra voted yes in her own government’s postal survey, Fierravanti-Wells still refused to concede defeat, including this attempt at mathematical sophistry when Senator Smith’s Bill was considered by the Senate:[65]

A conveniently overlooked statistic is that 16 million voters were eligible to participate and of those just 7.8 million returned a ‘yes’ vote on this survey form. This represents 48 per cent of the voting population. This is not the enormous majority that the elites are spinning. Indeed, it is not a majority at all. In fact, 52 per cent of the voting population either voted no or did not vote at all…

As that legislation progressed through detailed consideration by the Senate, Fierravanti-Wells spoke in favour of a wide range of amendments to insert ‘religious freedom’ clauses, including the adoption of separate definitions of marriage in the Marriage Act 1961 (Cth) itself, as well as to allow all civil celebrants to refuse service to LGBTI couples.[66] Each proposal was, thankfully, ultimately defeated.

On the final vote, despite being part of a Government which imposed the postal survey on a community, and especially an LGBTI community, which did not want it, Senator Fierravanti-Wells did not honour the yes vote of the Australian electorate:[67]

For many people of different backgrounds and religions, this will be a very difficult day. This will be a difficult day in Australia. As we talk about respect, I think it’s very important to remember this respect across this divide… I cannot support this bill in its current form for these reasons, because there are many people-like my parents, who came to this country-who just cannot. For them, it’s very difficult, and I think that they deserve our respect as well.

Inevitably, Fierravanti-Wells’ lack of respect for the outcome of the postal survey was the subject of a critical editorial in the Illawarra Mercury:[68]

The 12 senators sitting on the ‘No’ side of the house included Wollongong-based Senator Concetta Fierravanti-Wells. This was despite a resounding Yes vote right across the Illawarra and South Coast. Senator Fierravanti-Wells was sitting alongside Senator Eric Abetz, one of the most passionate and prominent supporters of the ‘No’ campaign… Their votes will be recorded for history and only history and their voters will judge them.

To some extent, Fierravanti-Wells’ actions on this issue are the mirror image of Stephen Jones’ – a passionate, and unrelenting, advocate for her view. The two primary differences being that he was advocating for the equality of all residents of Wollongong, while she campaigned against the rights of a minority, and that her position ended up on the wrong side of history, both nationally and in her community.

Of course, she was not alone in advocating against marriage equality in the Wollongong area. Fierravanti-Wells was joined by key religious leaders, including Bishop Peter Ingham who issued the following statement to be read at all Catholic masses on the weekend of 2 and 3 September 2017 – the start of the postal survey period:[69]

[A]cross the breadth of human cultures and religious faiths, we contend for the truth that our society is best-served by retaining the traditional understanding of marriage as the union of a man and a woman, voluntarily entered into for life, and provides the basis for the creation of a family in which, wherever possible, children can be raised in a loving and stable environment by their own mother and father. In human terms, there is nothing more powerful than the union of a man and a woman, which is the only relationship that can bring about new life. It has no equal.

St Michael’s Anglican Reverend Sandy Grant also made the following ill-informed and frankly prejudiced remarks during the same-sex marriage postal survey:[70]

Mr Grant spoke of a ‘slippery slope’ that could occur when same-sex marriage is legalised. For instance, he believed removing the need for people of the opposite sex to marry could lead to polygamy or under-age marriage. 

“Some Muslims are already pushing this… the legalisation of marriage in Australian [sic] to allow polygamy,” he said.

“This shows the sheer inadequacy of the love is love slogan. Do you think a 30-year-old man should be able to marry a 12-year-old girl if they both consent and say they love each other?”

However, as we saw earlier, despite their concerted efforts – and the higher rates of people identifying as Catholic and Anglican in the Wollongong LGA – local congregations clearly did not follow this instruction, voting yes at a higher rate than both the national and NSW figures.

Evelyn Gray thinks this was in part because ‘they were able to see the distinction between religious and civil marriage’:[71]

I remember bringing up the subject of same-sex marriage about 10 years ago with a very good (religious) friend of mine, whose immediate reaction was to strongly oppose the idea, but changed her mind in about 30 seconds when I explained that it was about civil marriage, not holy matrimony.

Finally, there is one more intervention for the no campaign which warrants particular mention: Wollongong provided arguably the highest profile intervention by a same-sex couple arguing against marriage equality during the postal survey.

On 4 September 2017, local couple Ben Rogers and Mark Poidevin appeared on the ABC’s 7:30 Report to advocate for a no vote.[72] As later reported by ABC News:[73]

Ben said while he respects that other couples might want to wed, he is committed to preserving traditional marriage…

“When I first came out I think one of the consequences was giving up marriage and children and things like that.”

Mark, a committed Catholic, has changed his stance on same-sex marriage since he proposed to Ben five years ago.

“If we make one exception for one community, that being the same-sex couples, where does it stop?” Mark said.

“Do we then see other cultures being allowed to have multiple marriages? Do we see the age of consent being lowered for another group of minorities? That is my concern, of where it would lead.”

It was an unusual contribution to the debate, and the local community was not persuaded by their arguments, but given its prominence their perspective nonetheless deserves to be part of the history of marriage equality in Wollongong, alongside other local opponents like Concetta Fierravanti-Wells and church leaders.

The (Limited) Role of Wollongong Council Pre-Marriage Equality

While MPs and Senators representing the Wollongong area played a leading role in arguments both for and against marriage equality, Wollongong Council itself did not. Unlike a number of Local Governments around Australia, including both Kiama and Shoalhaven Councils,[74] Wollongong Council did not formally endorse marriage equality in the years leading up to the postal survey.[75]

Following the announcement of the postal survey in August 2017, there was a concerted push to have Wollongong Council fly the rainbow flag during the voting period, with a public protest outside council chambers on 21 August:[76]

Among those who attended was Figtree mum Evelyn Gray, who held a placard saying she was ‘waiting to be mother-of-the-bride for my gay daughter”. Ms Gray said her two adult daughters had found “the loves of their lives”, but only one of them was able to marry.

However, with the Council elections scheduled to be held on 9 September 2017, there was no opportunity to hold a meeting before then – and it was not on the agenda for the extraordinary council meeting on 9 October 2017.[77] This meant any motion to raise a rainbow flag in support of the local LGBTI community would not be passed in time for the voting period.

Nevertheless, at the Ordinary Council Meeting on 30 October 2017, Greens Councillor Mithra Cox moved, and Labor Councillor Tania Brown seconded, a motion that:[78]

Council fly a rainbow flag on the flagpole outside Council’s Burelli Street Administration Building until 17 November 2017 as-

  1. Recognition of the diversity of the people in our City and that this diversity is shown in many forms; and
  2. Flying the flag can stand as a symbol of Council’s support for this diversity.

Following what was described as ‘a tense and at times tearful debate’,[79] the motion was passed by 8 votes to 4, with Lord Mayor Gordon Bradbery falling into the latter category[80] (although he nevertheless supported marriage equality overall).[81]

The Positive Legacy of Marriage Equality in Wollongong #1: A Cosmopolitan City

While Wollongong Council did not play a leading role during the marriage equality debate, it has subsequently sought to build on its outcome – in particular, by emphasising the inclusive nature of the local community. In July 2019, the Council unanimously moved a resolution proposed by Councillor Tania Brown that:[82]

Wollongong City Council install a permanent Rainbow Crossing, in a prominent Wollongong foreshore location, to show our ongoing support for the LGBTQIA+ community and reflect Wollongong’s status as an inclusive and welcoming city. Staff to report back on suitable locations via an information note within one month.

The rainbow crossing was developed within a matter of months, and unveiled before the end of 2019:[83]

Acting lord mayor Tania Brown – who led the charge to have the crossing painted earlier this year to counteract homophobia and hate speech – said the new pride symbol, which appeared overnight outside the Novotel Northbeach [on Cliff Parade], would become a popular photo spot at Wollongong’s busiest beach.

However, while the rainbow crossing is a tangible sign of inclusivity post-marriage equality, it is arguably not as important as the outcome of the postal survey itself, in which the Wollongong community showed itself to be a cosmopolitan city, willing to warmly embrace their neighbours irrespective of their sexual orientation and/or gender identity.

That outcome remains one of the positives of the marriage equality movement cited by Stephen Jones:[84]

Although I opposed the postal survey, I remember when the result came in and returns from the Illawarra community were on par with, or even a bit better than, the NSW average and the national average, that was really satisfying to see. That our community was not out of step with the rest of the country, but was actually part of the vote for change.

It was a really great outcome in a lot of ways, including economically. There is a lot of research (including by economists like Richard Florida),[85] that the acceptance of sexual diversity is closely linked to economic growth. The result showed that the Illawarra accepted difference.

For Evelyn Gray, the benefits of the high yes vote in the postal survey, and passage of marriage equality, are more personal:[86]

I think it’s resulted in a more caring and accepting community as a whole, with couples more likely to be seen holding hands in public, [with] drag storytime at the library becoming increasingly accepted, [and] more local groups accepting young LGBTI people, [as well as] rainbow family playgroups.

Wollongong’s Rainbow Crossing

The Positive Legacy of Marriage Equality in Wollongong #2: Happy Couples

Obviously, the most tangible – and, in the author’s view, most important – positive legacy of marriage equality in Wollongong is the fact local LGBTI couples are now permitted to marry under Australian law, or for couples who were not prepared to wait for the law to change, to have their overseas marriages legally recognised.

It is not possible to determine the exact number of same-sex couples currently living in the Wollongong LGA. However, with 46,770 same-sex couples recorded nation-wide in the 2016 Census,[87] and Wollongong LGA constituting just under 1% of the Australian population,[88] it is likely that the number is somewhere between 300 and 500. And with 6,538 same-sex marriages registered in the first year after marriage equality took effect,[89] that means dozens of same-sex couples marrying in Wollongong in 2018 alone.

Far more important than these numbers, however, is the fact each of these couples has their own unique story, like the first reported couple in the Illawarra who took advantage to the change in the law at the start of 2018:[90]

On Tuesday morning, two months after the ‘yes’ vote was delivered but just nine hours after their union became legally allowable, Michael [Hobbs] wed his long-time partner Edward [Kwok-Hobbs] at a ceremony at Wollongong’s Lagoon restaurant.

Michael reflected on what being married meant to him: ‘It gives us security, a feeling of acceptability. Our civil rights have been met now. It’s way overdue, but this is a lot to us.’[91] However, in a sad reflection on the considerable delay which LGBTI couples in Australia endured on the walk down the aisle:[92]

The men say their nine-year relationship has long had the support of their families. Michael’s father attended their commitment ceremony, but didn’t live to see the day his son could marry. 

“He would have been over the moon,” Michael said.

“My mum can’t come today because she’s housebound but she’ll be waiting for all the gossip when we get home.”

The passage of time – and the delay in Australia achieving marriage equality – was also a theme of another local Tonina Harvey, when describing the challenging path to her wedding to now-wife Kt Harvey:[93]

We were going to go to NYC to get married in 2016 but unfortunately I got breast cancer and all plans were put on hold. Getting sick we were faced with my mortality and the lack of legal standing of our relationship. When the plebiscite was announced – we had a feeling of disbelief that after 38 years of life together, the country had our destiny in their hands. Therefore the outcome was a relief!

We had a large wedding (150) on the 4th [of] August [2018] and it was the first time in our lives that we had all of our family in the same room as our friends – we thought it would either be a disaster or ok. It turned out to be fabulous!! The amount of happiness and acceptance in the room was overwhelming. We had an absolutely wonderful day and feel that we would love to do it all over again!

[O]n the 4th August we will celebrate our 2nd wedding anniversary and on 11th August our 40th year together! As we have aged having the legal security of a marriage certificate is reassuring.

There are already literally dozens of stories like Michael and Edward, and Tonina and Kt, of same-sex couples who have finally had the opportunity to wed following the passage of marriage equality in late 2017. And there will be hundreds more in the years, and decades, to come – which is the second reason why this article is necessarily ‘An Incomplete History of Marriage Equality in Wollongong’ – because that history is being written with each and every wedding of a local LGBTI couple.

Tonina Harvey (left) with wife Kt Harvey on their wedding day, 4 August 2018.

Conclusion: An Oversized Role, but a Story that Continues

In the preceding sections, we have seen how MPs for Cunningham Michael Organ and Throsby/Whitlam Stephen Jones were among leading parliamentary voices for change. And how Senator Concetta Fierravanti-Wells was one of its ardent opponents. In the local community, Evelyn Gray was one of many influential campaigners for marriage equality – although, as discussed, this article could have just as easily highlighted several others.

Based on the passionate advocacy of Organ, Jones, Gray et al, the small, regional city of Wollongong played an oversized role in the history of marriage equality in Australia. A history that is still being written in the stories of LGBTI couples who finally have the opportunity to walk down the aisle and wed the person they love.

Bibliography

Interviews

Stephen Jones MP, via telephone, 22 June 2020

Evelyn Gray, written interview, 9 July-28 July 2020

Tonina Harvey, written interview, 19 July-28 July 2020

[NB Senator Concetta Fierravanti-Wells, Catholic Bishop Peter Ingham and Anglican Bishop Peter Hayward were all provided with interview questions in June 2020, however none responded.]

Books/Articles

Alex Greenwich and Shirleene Robinson, Yes Yes Yes: Australia’s Journey to Marriage Equality, NewSouth Publishing, 2018

Victor Marsh and Michael Kirby, Speak Now: Australian Perspectives on Same-Sex Marriage, Port Campbell Press, 2011 (e-book)

Deirdre McKeown, Chronology of same-sex marriage bills introduced into the federal parliament: a quick guide, updated 15 February 2018, Parliament of Australia Library, available at: https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1718/Quick_Guides/SSMarriageBills

Janet Phillips, Attitudes to same-sex marriage, 17 November 2010, Parliament House Library, available at: https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/FlagPost/2010/November/Attitudes_to_same-sex_marriage

Sally Rugg, How Powerful We Are: Behind the scenes with one of Australia’s leading activists, Hachette, 2019

Hansard

Michael Organ MP, House of Representatives: 17, 24 June 2004 

Stephen Jones MP, House of Representatives: 15 November 2010; 13 February 2012; 19 September 2012; 12 December 2013; 29 February 2016; 13 October 2016; 10 August 2017; 5, 7 December 2017.

Senator Concetta Fierravanti-Wells, Senate: 14 October 2008; 19 September 2012; 27, 28, 29 November 2017

Australian Bureau of Statistics

2016 Census QuickStats: Wollongong, available at:https://quickstats.censusdata.abs.gov.au/census_services/getproduct/census/2016/quickstat/LGA18450

Australian Marriage Law Postal Survey: National Results, 15 November 2017, available at: https://www.abs.gov.au/ausstats/abs@.nsf/mf/1800.0

Australian Marriage Law Postal Survey: Results for NSW, 15 November 2017, available at: https://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/1800.0~2017~Main%20Features~New%20South%20Wales~9

2071.0 – Census of Population and Housing: Same-Sex Couples inf Australia, 2016, published 18 January 2018. Available at: https://www.abs.gov.au/ausstats/abs@.nsf/Lookup/2071.0main+features852016

3310.0 – Marriages and Divorces, Australia, 2018, published 27 November 2019. Available at: https://www.abs.gov.au/ausstats/abs@.nsf/7d12b0f6763c78caca257061001cc588/41346a2832051929ca25835100100a89!OpenDocument

Wollongong Council Documents

Agenda – Extraordinary Meeting of Council: 9 October 2017. Available at: https://wollongong.nsw.gov.au/__data/assets/pdf_file/0026/38546/Council-Agenda-9-October-2017.pdf

Minutes – Ordinary Meeting of Council 30 October 2017. Available at: https://wollongong.nsw.gov.au/__data/assets/pdf_file/0018/38520/Council-Minutes-30-October-2017.pdf

Minutes – Ordinary Meeting of Council 22 July 2019. Available at: https://wollongong.nsw.gov.au/__data/assets/pdf_file/0033/38877/Council-Minutes-22-July-2019.pdf

Other Web Sources

Diocese of Wollongong, Statement from Bishop Peter Ingham, Change in the Definition of Marriage, 1 September 2017. Available at: https://www.catholic.org.au/acbc-media/downloads/all-downloads/bishops-statements-on-marriage-plebiscite/1969-pastoral-letter-bishop-ingham-change-in-the-definition-of-marriage/file

Australian Marriage Equality, ‘Join 54 Councils that Support Marriage Equality’, accessed 27 July 2020. Available at: https://www.australianmarriageequality.org/local-council-motion-of-support/

Wollongong for Marriage Equality/LGBTI Equality Wollongong Facebook page: https://www.facebook.com/LGBTI-Equality-Wollongong-232020430221206/

Individual Footnotes:


[1] Deirdre McKeown, Chronology of same-sex marriage bills introduced into the federal parliament: a quick guide, updated 15 February 2018, Parliament of Australia Library.

[2] Michael Organ MP, House of Representatives Hansard, 24 June 2004.

[3] Michael Organ MP, House of Representatives Hansard, 17 June 2004.

[4] Ibid.

[5] Janet Phillips, Attitudes to same-sex marriage, 17 November 2010, Parliament House Library.

[6] Michael Organ MP, House of Representatives Hansard, 17 June 2004.

[7] Deirdre McKeown, Chronology of same-sex marriage bills introduced into the federal parliament: a quick guide, updated 15 February 2018, Parliament of Australia Library.

[8] Stephen Jones MP, House of Representatives Hansard, 15 November 2010.

[9] Interview with Stephen Jones MP, via phone, 22 June 2020.

[10] Bob Harrison, ‘Marriage must be defended’, Illawarra Mercury, 24 November 2010. Available at: https://www.illawarramercury.com.au/story/632537/marriage-must-be-defended/

[11] Mario Christodoulou, ‘Gay marriage battle in Throsby’, Illawarra Mercury, 11 December 2011. Available at: https://www.illawarramercury.com.au/story/638329/gay-marriage-battle-in-throsby/

[12] Bob Harrison, ‘Jones ignores party stance’, Illawarra Mercury, 31 January 2012. Available at:https://www.illawarramercury.com.au/story/639043/jones-ignores-party-stance/

[13] Interview with Stephen Jones MP, via phone, 22 June 2020.

[14] Stephen Jones MP, House of Representatives Hansard, 13 February 2012.

[15] Stephen Jones MP, House of Representatives Hansard, 19 September 2012.

[16] Deirdre McKeown, Chronology of same-sex marriage bills introduced into the federal parliament: a quick guide, updated 15 February 2018, Parliament of Australia Library. 

[17] An equivalent Bill in the Senate, introduced by Labor Senators Carol Brown, Trish Crossin, Gavin Marshall and Louise Pratt, was also voted down, by 41 votes to 26.

[18] Stephen Jones MP, House of Representatives Hansard, 12 December 2013.

[19] Marriage Legislation Amendment Bill 2015.

[20] Stephen Jones MP, House of Representatives Hansard, 29 February 2016.

[21] Stephen Jones MP, House of Representatives Hansard, 13 October 2016, speaking on the Plebiscite (Same-Sex Marriage) Bill 2016.

[22] Andrew Pearson, ‘Same-sex marriage plebiscite an ‘absolute joke’, Illawarra Mercury, 14 September 2016. Available at: https://www.illawarramercury.com.au/story/4163361/same-sex-marriage-plebiscite-an-absolute-joke/

[23] Stephen Jones MP, House of Representatives Hansard, 10 August 2017.

[24] Stephen Jones MP, House of Representatives Hansard, 7 December 2017.

[25] Interview with Stephen Jones MP, via phone, 22 June 2020.

[26] Ibid.

[27] Australian Bureau of Statistics, Australian Marriage Law Postal Survey, National Results, 15 November 2017.

[28] Australian Bureau of Statistics, Australian Marriage Law Postal Survey, Results for NSW, 15 November 2017.

[29] Ibid.

[30] Stephen Jones MP, House of Representatives Hansard, 5 December 2017.

[31] Australian Bureau of Statistics, 2016 Census QuickStats: Wollongong

[32] Ibid.

[33] Interview with Stephen Jones MP, via phone, 22 June 2020.

[34] Sally Rugg, How Powerful We Are: Behind the scenes with one of Australia’s leading activists, 2019, p xiv.

[35] Written interview with Evelyn Gray, 9 July-28 July 2020.

[36] A page with 1,195 followers as at 30 July 2020.

[37] Written interview with Evelyn Gray, 9 July-28 July 2020.

[38] Ibid.

[39] Ibid.

[40] As quoted in Kaitlin Thals, ‘PM’s V-Day message slammed by gay marriage advocates’, The New Daily, 15 February 2016. Available at: https://thenewdaily.com.au/news/national/2016/02/15/pms-v-day-message-slammed-gay-marriage-advocates/

[41] ‘Thanking Stephen Jones MP for his efforts to bring about equality for same-sex couples, replying to his critics, [and] correcting falsehoods about public support for marriage equality’: Written interview with Evelyn Gray, 9 July-28 July 2020.

[42] Written interview with Evelyn Gray, 9 July-28 July 2020.

[43] Victor Marsh and Michael Kirby, Speak Now: Australian Perspectives on Same-Sex Marriage, 2011 (e-book).

[44] Written interview with Evelyn Gray, 9 July-28 July 2020.

[45] Ibid.

[46] Ibid.

[47] Ibid.

[48] The rally was covered in Agron Latifi, ‘Supporters of marriage equality speak up at University of Wollongong rally’, Illawarra Mercury, 30 August 2017. Available at: https://www.illawarramercury.com.au/story/4891454/activists-push-for-marriage-equality-at-wollongong-rally/

[49] Alex Greenwich and Shirleene Robinson, Yes Yes Yes: Australia’s journey to marriage equality, 2018, p 92.

[50] Written interview with Evelyn Gray, 9 July-28 July 2020.

[51] Ibid.

[52] Ibid.

[53] Ibid.

[54] Stephen Jones MP, House of Representatives Hansard, 13 February 2012.

[55] The couple were also featured in a supportive article the previous day in the local paper: Shannon Tonkin, ‘Gay marriage struggle at a turning point’, Illawarra Mercury, 12 February 2012. Available at: https://www.illawarramercury.com.au/story/639342/gay-marriage-struggle-at-a-turning-point/

[56] Stephen Jones MP, House of Representatives Hansard, 5 December 2017.

[57] Michael Koziol, ‘The study on gay marriage that was too good to be true’, Sydney Morning Herald, 21 May 2015. Available at: https://www.smh.com.au/world/the-study-on-gay-marriage-that-was-too-good-to-be-true-20150521-gh6fi7.html

[58] Australian Bureau of Statistics, Australian Marriage Law Postal Survey, Results for NSW, 15 November 2017.

[59] Ibid.

[60] Senator Concetta Fierravanti-Wells, Senate Hansard, 14 October 2008.

[61] Senator Concetta Fierravanti-Wells, Senate Hansard, 19 September 2012.

[62] Kate McIlwain, “Gay couples ‘not interested in monogamy’, Illawarra Mercury, 21 September 2012. Available at: https://www.illawarramercury.com.au/story/348839/gay-couples-not-interested-in-monogamy/

[63] Senator Concetta Fierravanti-Wells, Senate Hansard, 19 September 2012.

[64] Andrew Pearson, ‘How Illawarra MPs will vote in same-sex marriage postal survey’, Illawarra Mercury, 18 September 2017. Available at: https://www.illawarramercury.com.au/story/4932336/how-illawarra-mps-will-vote-in-same-sex-marriage-postal-survey/

[65] Senator Concetta Fierravanti-Wells, Senate Hansard, 27 November 2017.

[66] Senator Concetta Fierravanti-Wells, Senate Hansard, 28 November 2017.

[67] Senator Concetta Fierravanti-Wells, Senate Hansard, 29 November 2017.

[68] Editorial, Illawarra Mercury, 30 November 2017. Available at: https://www.illawarramercury.com.au/story/5090253/editorial-november-30-historic-moment-as-our-senate-says-yes/

[69] Diocese of Wollongong, Statement from Bishop Peter Ingham, Change in the Definition of Marriage, 1 September 2017.

[70] Kate McIlwain, Wollongong Anglican church leader’s public lecture on ‘no’ case, Illawarra Mercury, 14 September 2017. Available at: https://www.illawarramercury.com.au/story/4923444/wollongong-anglican-church-leaders-public-lecture-on-no-case/

[71] Written interview with Evelyn Gray, 9 July-28 July 2020.

[72] ‘The gay couple who oppose same-sex marriage’, ABC 7:30 Report, 4 September 2017, available at: https://www.abc.net.au/7.30/the-gay-couple-who-oppose-same-sex-marriage/8871286

[73] Julia Holman and Paige Mackenzie, ‘The gay couple who oppose same-sex marriage’, ABC News online, 4 September 2017. Available at: https://www.abc.net.au/news/2017-09-04/the-gay-couple-who-oppose-same-sex-marriage/8871118

[74] Brendan Crabb, ‘Kiama council pledges support for marriage equality’, Illawarra Mercury, 16 February 2017. Available at: https://www.illawarramercury.com.au/story/4473714/marriage-equality-support/

[75] Australian Marriage Equality, ‘Join 54 Councils that Support Marriage Equality’, accessed on 29 July 2020.

[76] Kate McIlwain, ‘Push to highlight marriage equality by flying rainbow flag at Wollongong City Council chambers’, Illawarra Mercury, 21 August 2017. Available at: https://www.illawarramercury.com.au/story/4868941/wollongong-council-should-fly-the-rainbow-flag-labor-candidates/

[77] Wollongong Council, Agenda – Extraordinary Meeting of Council: 9 October 2017.

[78] Wollongong Council, Minutes – Ordinary Meeting of Council 30 October 2017.

[79] Kate McIlawain, ‘Wollongong council will fly the rainbow flag until November 17’, Illawarra Mercury, 30 October 2017. Available at: https://www.illawarramercury.com.au/story/5023114/wollongong-council-will-fly-the-rainbow-flag-until-november-17/

[80] Wollongong Council, Minutes – Ordinary Meeting of Council 30 October 2017.

[81] Kate McIlawain, ‘Wollongong council will fly the rainbow flag until November 17’, Illawarra Mercury, 30 October 2017. Available at: https://www.illawarramercury.com.au/story/5023114/wollongong-council-will-fly-the-rainbow-flag-until-november-17/

[82] Wollongong Council, Minutes – Ordinary Meeting of Council 22 July 2019.

[83] Kate McIlwain, ‘Wollongong council’s beach-side rainbow crossing spreads the Christmas love’, Illawarra Mercury, 24 December 2019. Available at: https://www.illawarramercury.com.au/story/6556098/wollongongs-beach-side-rainbow-crossing-spreads-the-christmas-love/

[84] Interview with Stephen Jones MP, via phone, 22 June 2020.

[85] Author of influential 2002 book The Rise of the Creative Class.

[86] Written interview with Evelyn Gray, 9 July-28 July 2020.

[87] Australian Bureau of Statistics, 2071.0 – Census of Population and Housing: Same-Sex Couples in Australia, 2016, published 18 January 2018.

[88] Australian Bureau of Statistics, 2016 Census QuickStats: Wollongong, which showed a population of 203,630 out of the total Australian population of 23.4 million.

[89] Australian Bureau of Statistics, 3310.0 – Marriages and Divorces, Australia, 2018, published 27 November 2019.

[90] Angela Thompson, ‘Illawarra’s first same-sex marriage sealed with a kiss’, Illawarra Mercury, 9 January 2018. Available at: https://www.illawarramercury.com.au/story/5159204/michael-edward-seal-illawarras-first-same-sex-marriage-with-a-kiss/

[91] Ibid.

[92] Ibid.

[93] Written interview with Tonina Harvey, 19 July-28 July 2020.

Submission re 2020 ALP National Platform – Consultation Draft

30 November 2020

ALP National Policy Forum

Lodged online: https://www.alp.org.au/platform-consultation-draft/

To members of the ALP National Policy Forum

Submission re 2020 ALP National Platform – Consultation Draft

I am writing to provide my individual feedback on the 2020 ALP National Platform, as released for public consultation.

I do so as a long-term advocate for the rights of the lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) community, and as someone who was responsible for providing wording on multiple policy issues which were included in the 2015 National Platform (many of which were retained in the 2018 National Platform, although most have subsequently been excluded from the current version).

I acknowledge the intent of the Consultation Draft: ‘A Platform of this kind would be much more significant and carry much more weight. But it also needed to be much shorter’ [emphasis added]. This is reflected in the abbreviated document released this year: at 96 pages, it is just over one-third the length of the 2018 version (which was 268 pages, plus the Party’s constitution).

However, Labor’s LGBTIQ policy commitments have been reduced by much more than this ratio. Indeed, it would not be an exaggeration to say that the LGBTIQ content of the 2018 National Platform has been gutted in the 2020 Consultation Draft.

At a simplistic level, this can be seen in the decline in usage of the term LGBTIQ itself: from 45 times in the 2018 National Platform, to just six times in the 2020 consultation draft. This is a massively disproportionate reduction.

But this decline is much more than just the use of fewer words. This reduction represents large, and substantive, cuts to the ALP’s policy commitments to achieving LGBTIQ equality. The LGBTIQ community should be alert and alarmed about the potential for the Labor Party to walk away from its previous policies to improve the lives of LGBTIQ Australians.

In this submission, I will start by focusing on four particular, and particularly-important, issues (three where previous commitments have been abolished entirely, and one where the proposed commitments are seriously inadequate) before providing comments on the specific chapters of the Consultation Draft, as well as the statements in detail.

  1. Ending Coercive Medical Interventions on Intersex Children

In my view, the most egregious human rights abuses against LGBTIQ people in Australia are the ongoing coercive medical interventions, including surgical and hormonal interventions, to alter the sex characteristics of children born with intersex variations.[i]

For this reason, the inclusion of this commitment, on para 75 on page 144 of the 2018 National Platform, was welcome:

‘Parents of intersex children can be pressured to hormonally or surgically intervene on their children if they don’t receive medically correct advice, information or support about how to parent an intersex child. Labor will ensure deferral of non-necessary medical intervention on infants and children with intersex variations until such time as the person concerned can give their informed consent is supported. Labor commits to promote and support a human rights-based patient consent model for accessing lifetime medical treatments and procedures. Labor will prohibit modifications to sex characteristics undertaken for social rationales without informed consent and ensure intersex persons’ right not to undergo sex assignment treatment is respected.’

Conversely, the removal of this policy, and the total absence of any equivalent commitment to preventing involuntary medical treatments on intersex kids in the 2020 Consultation Draft, are deeply worrying.

I strongly urge the National Policy Forum, and ALP generally, to recommit to ending these abhorrent and harmful practices, by including the following statement (as proposed by leading intersex advocate Morgan Carpenter):

Recommendation 1.

‘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.’

2. Removing out-of-pocket costs for trans and gender diverse healthcare

Another significant issue for Australia’s LGBTIQ community where the 2020 Consultation Draft represents a backwards step compared to the 2018 National Platform is removing out-of-pocket costs for trans and gender diverse healthcare. Paragraph 74 on page 144 of the 2018 document previously provided that:

‘Labor acknowledges the right of all Australians, including transgender and gender diverse people, to live their gender identity. For many, this includes accessing specialist health services and for some people can involve gender affirming medical technologies. Costs should not be a barrier to accessing these services. Labor commits to removing, wherever possible, barriers to accessing these services and consulting with experts in government. This should materialise in a focus on creating fair, equal and affordable access to medical care and treatments relevant to trans and gender diverse Australians.’

Once again, there is no equivalent commitment in the 2020 Consultation Draft. Instead of axing this policy, I believe the Labor Party should be strengthening its commitment, by including a modified version of the above paragraph:

Recommendation 2.

‘Labor supports the rights of trans and gender diverse people to live their gender identity. For many, this includes accessing specialist health services and for some people can involve gender affirming treatment, including surgery. Costs should not be a barrier to accessing these services. Labor commits to overcoming these barriers by removing out-of-pocket costs for trans and gender diverse healthcare.’[ii]

3. Restate commitment to ending the HIV epidemic

Perhaps the most surprising omission in the 2020 Consultation Draft is the complete exclusion of any and all references to HIV, likely for the first time in decades. In the midst of the coronavirus pandemic, it seems strange to remove commitments to addressing the HIV epidemic, especially when lessons from our best practice approach to HIV are valuable in responding to COVID-19 – and, above all, when the HIV epidemic is ongoing.

I note that paragraphs 103 and 104 on page 150 of the 2018 National Platform included the following:

‘Labor has a proud record in HIV policy. Bipartisan national leadership in partnership with affected communities and other organisations, clinicians and researchers has prevented a generalised epidemic.

‘HIV notifications, however, remain too high. Labor is especially concerned that HIV notifications have steadily increased among Aboriginal and Torres Strait Islanders and are now double the rate of other Australians. Notwithstanding these challenges, Australia has an unprecedented opportunity to end HIV transmission. Labor commits to the United Nations Political Declaration on HIV and AIDS, which provides the global framework for action on HIV, including through the UNAIDS Fast-Track 95-95-95 targets to end the HIV epidemic. Labor’s commitment to making HIV history will include restoring the capacity that the Liberals have cut from HIV peak organisations; funding new efforts to promote HIV prevention, testing, and treatment in ‘hidden populations’; and ensuring affordable access to pre-exposure prophylaxis (PrEP) via the PBS.’

Recommendation 3.

The National Policy Forum should restate the ALP’s commitment to ending the HIV epidemic, and consult with the Australian Federation of AIDS Organisations (AFAO), National Association of People with HIV Australia (NAPWHA), and leading HIV advocates and experts, on what specific policy proposals are required to achieve this in the 2020s.

4. Improving LGBTI anti-discrimination protections

One area where the ALP’s commitments have not been completely removed (although some have nevertheless been excised) – but where the 2020 Consultation Draft remains highly deficient – is the issue of LGBTI anti-discrimination law reform.

Paragraph 30(b) on page 53 includes the following, general and very high-level statement: ‘Labor will work closely with LGBTIQ Australians to develop policy to… strengthen laws and expand programs against discrimination and harassment on the basis of sexual orientation, gender identity, sex characteristics and queer status.’

While obviously welcome, the lack of specificity in this paragraph means it is unclear what position a future Labor Government would take on a range of important measures that fall within this over-arching statement, including:

  • Protecting LGBT students, teachers and other staff against discrimination by religious schools, colleges and universities
  • Protecting LGBT employees and people accessing services in relation to other religious organisations delivering public services like healthcare, housing and accommodation, and other welfare services (including removing the ability of religious aged care services to discriminate against LGBT employees)
  • Updating terminology in anti-discrimination legislation, including replacing the protected attribute of intersex status with ‘sex characteristics’, as advocated by Intersex Human Rights Australia and in the March 2017 Darlington Statement
  • Introducing prohibitions on vilification on the basis of sexual orientation, gender identity and sex characteristics, on an equivalent basis to existing racial vilification prohibitions in the Racial Discrimination Act 1975 (Cth) (with the necessity of this reform highlighted by the homophobia, biphobia, transphobia and intersexphobia whipped up by the Liberal/National Government’s unnecessary, wasteful and harmful 2017 same-sex marriage postal survey),[iii] and
  • Appointing an LGBTIQ Commissioner within the Australian Human Rights Commission (noting that paragraph 90 on pages 213-214 of the 2018 National Platform included a commitment that: ‘Labor will… [e]stablish under the Australian Human Rights [Commission] Act 1986 a new Commissioner for Sexual Orientation, Gender Identity and Intersex Status issues, to work across government and the private sector to reduce discrimination’).[iv]

Another LGBTI discrimination-related issues which is not addressed in the 2020 Consultation Draft is the fact neither gender identity nor sex characteristics are explicitly included as protected attributes in the Fair Work Act 2009 (Cth), leaving trans, gender diverse and intersex employees with uncertain workplace rights, including unclear protections against adverse action and unlawful termination.[v]

Perhaps most concerningly, at least in the short term, the 2020 Consultation Draft does not express a position on the Commonwealth Government’s proposed Religious Discrimination Bill, legislation that would significantly undermine the rights of lesbian, gay, bisexual, transgender, intersex and queer Australians to engage in public life without fear of discrimination.

I strongly urge the National Policy Forum to take a stand on this issue, and in particular to commit to only supporting anti-discrimination laws covering religious belief and activity where they do not undermine the rights of others, including women, LGBTIQ people, people with disability, single parents, divorced people and even people of minority faiths.[vi]

Recommendation 4.

‘Labor will work closely with LGBTIQ Australians to develop policy to strengthen laws and expand programs against discrimination, harassment and vilification on the basis of sexual orientation, gender identity, sex characteristics and queer status, including by:

Amending the Sex Discrimination Act 1984 (Cth), Australian Human Rights Commission Act 1986 (Cth) and related laws to:

  • Protect LGBT students, teachers and other staff against discrimination by religious schools, colleges and universities
  • Protect LGBT employees and people accessing services against discrimination by religious organisations delivering public services including healthcare, housing and accommodation and other welfare services (including removing the ability of religious aged care services to discriminate against LGBT employees)
  • Update the protected attribute of intersex status to sex characteristics
  • Introduce vilification protections on the basis of sexual orientation, gender identity and sex characteristics, and
  • Appoint a Commissioner for Sexual Orientation, Gender Identity and Sex Characteristics within the Australian Human Rights Commission.

Amending the Fair Work Act 2009 (Cth), to explicitly include gender identity and sex characteristics as protected attributes, including for the purposes of adverse action and unlawful termination provisions.

Only supporting the introduction of Commonwealth anti-discrimination legislation covering religious belief and activity where it does not undermine the rights of women, LGBTIQ people, people with disability, single parents, divorced people, people of minority faiths and others to live their lives free from discrimination.

**********

I will now provide specific comments in relation to the individual Chapters of the Consultation Draft (where relevant), as well as the Statements in Detail.

Chapter 1: Building Australia’s Prosperity

No comments.

Chapter 2: Developing Our People

On page 22, at paragraph 8, the sentence ‘Labor will continue to support policies that aim to remove remaining barriers, including those based on gender, age, race, ethnicity, sexuality or disability status’, should be amended to also include gender identity and sex characteristics.

On page 23, at paragraph 19, I note this would be an appropriate place to include the commitment to explicitly protect gender identity and sex characteristics in the Fair Work Act 2009 (Cth) (as outlined as part of recommendation 4, above).

I also suggest the National Policy Forum include a commitment here that the ALP will work with trans and gender diverse communities to introduce workplace entitlements to paid transition leave, to help support increased participation by trans and gender diverse Australians in the workforce.

On page 29, at paragraph 63, I note the detailed commitments around the national curriculum no longer include the following policy from page 150, paragraph 109 of the 2018 National Platform:

‘Labor will ensure sex education includes all sexualities and gender identities. Labor will ensure the sex education curriculum is kept up-to-date and reviewed regularly by both non-government organisations and experts working in LGBTI health.’

I urge the National Policy Forum to reinstate a commitment to ensuring the national curriculum, including the health and physical education curriculum, is inclusive of LGBTI students and has content relevant to their needs.

Chapter 3: Climate Change, Energy and the Environment

No comments.

Chapter 4: A Strong and Healthy Society

On page 42, after paragraph 21, I note this would be an appropriate place to include a restated commitment to ending the HIV epidemic, and associated policy proposals as agreed with AFAO, NAPWHA and others (as detailed at Recommendation 3, above).

Chapter 4 would also be an appropriate location for a strengthened policy to remove out-of-pocket costs for trans and gender diverse healthcare (as outlined at Recommendation 2).

Finally, I note the 2018 National Platform included a commitment to ‘develop a national LGBTIQ health plan, to [among other things] address the particular health needs of LGBTIQ people, working in partnership with these communities and LGBTI health bodies.’

I believe the National Policy Forum should reinstate this commitment, given ongoing health issues across the LGBTIQ community, including in relation to mental health. 

Chapter 5: An Equal and Inclusive Nation

I note the section ‘Equal rights for LGBTIQ Australians’ would be an appropriate place for the contents of Recommendation 4 described above to be included (and in particular replacing paragraph 30(b) on page 53).

I further note the LGBTIQ health-related commitments in paragraph 30(c) are not a substitute for a national LGBTIQ health plan (mentioned in relation to the previous chapter), while policies to support national intersex-led organisations in paragraph 30(d) do not obviate the need for specific policies to end involuntary medical interventions on intersex children (as called for in Recommendation 1 of this submission).

In terms of paragraph 30(e), and its commitments in relation to trans and gender diverse identity documentation, I note major problems still exist at state and territory level, and especially in NSW, Queensland and Western Australia.[vii]

The National Policy Forum should be urging Labor Governments in Queensland and Western Australia to urgently amend their respective births, deaths and marriages laws to allow trans and gender diverse people to update their identity documents on the basis of self-identification, without the need for surgery or other medical approval or ‘gate-keeping’.

Similarly, the NSW Labor Opposition should be encouraged to support equivalent reforms there – and, if the NSW Liberal/National Government does not progress these changes, for Labor to introduce them in the first 100 days of any incoming administration.

I have two particular concerns about paragraph 31 on page 53, which currently reads:

 ‘Labor will ensure schools are welcoming and supportive environments for all students and teachers, regardless of their gender identity and sexuality. We will support programs that promote understanding, tolerance and respect for every student.’

First, this commitment could be strengthened to provide absolute certainty that it applies to all schools: government, private and/or religious.

Second, the commitment in the second sentence is a significantly watered-down version of the position in the 2018 National Platform (paragraph 60 on page 119):

‘Schools must be safe environments for students to learn and for teachers to teach – including same sex attracted, intersex and gender diverse students and teachers. Labor will continue working with teachers, students and schools to stop bullying and discrimination, ensuring a safe place for LGBTI students to learn by properly resourcing inclusion and anti-bullying programs and resources for teachers. Labor will continue to support national programs to address homophobia, biphobia, transphobia and anti-intersex prejudice in schools. This includes ensuring gender diverse students are able to express the gender they identify with.’

I believe the 2020 version, and its absence of specific support for targeted programs addressing homophobia, biphobia, transphobia and intersexphobia, underestimates the prevalence of such discrimination, and the harms that continue to be caused to LGBTI students.

Recommendation 5.

Paragraph 31 on page 53 be replaced with the following:

‘Labor will ensure all schools are welcoming and supportive environments for all students, teachers and other staff, regardless of their sexual orientation, gender identity and sex characteristics. We will support programs that promote understanding, acceptance and respect for every student, including programs to specifically address homophobia, biphobia, transphobia and intersexphobia.’

In my view, paragraph 32 on page 54, is also deeply flawed, this time for three reasons. First, as survivors have consistently advocated, bans on ‘reparative’ or conversion practices must be exactly that – aimed at practices, rather than the much more limited, and potentially only health-related, ‘therapies’.

Second, it must capture both sexual orientation and gender identity conversion practices (rather than just ‘gay conversion’).

Third, I am concerned that the wording ‘will work with advocates to ensure people are not coerced into undergoing such therapies’ potentially misses the point – it is not just ‘coercion’ that is the problem, it is the practice itself. Policies in this area should be aimed at banning sexual orientation and gender identity-change practices broadly, not just ‘coercion’ into undergoing these practices.

Recommendation 6.

The National Policy Forum consult with survivors of conversion practices in relation to the commitments in paragraph 32 on page 54, and in particular to ensure that:

-It applies to conversion practices (and not just therapies)

-It includes both sexual orientation and gender identity conversion practices, and

-It bans the practices themselves, rather than preventing ‘coercion’ into undergoing such practices.

I am also concerned at the wording on paragraph 33 on page 54, which is an abbreviated form of the commitment at paragraph 105 on page 233 of the 2018 National Platform. In particular, in my view the abbreviation has omitted the more important part of that policy, namely:

‘Labor will work first with our Pacific neighbours, our Indo-Pacific region and the nations of the Commonwealth to encourage the repeal of discriminatory laws, especially criminal laws against homosexual sexual conduct and most urgently against such laws where they impose the death penalty, and will encourage steps to implement the actions required by the Yogyakarta Principles. Labor will work strategically to support and assist both local and international civil society organisations in promoting LGBTIQ human rights.’

I encourage the National Policy Forum to amend the abbreviated commitment in the Consultation Draft to capture these elements, and especially supporting the push for decriminalisation in the Pacific, Indo-Pacific and Commonwealth.

My final comment in relation to the section ‘Equal rights for LGBTIQ Australians’ on pages 53 and 54 is to highlight that it does not include support for any formal mechanisms to consult with, and represent the interests of, LGBTIQ communities. For example, the National Policy Forum should consider expressing support for both:

  • A Commonwealth Minister for Equality, and
  • An LGBTIQ Ministerial Advisory Committee, including sub-committees in relation to health, education, justice and other portfolios as required.

I have a further, important comment to make about the section ‘Freedom of thought, conscience and religion’ on page 55 of the 2020 Consultation Draft.

Specifically, paragraph 41 states:

‘Labor believes in and supports the right of all Australians to manifest their religion or beliefs, and the right of religious organisations to act in accordance with the doctrines, tenets, beliefs or teachings of their faith. Such rights should be protected by law. Labor recognises that the freedom to have or adopt a religion or belief, or not to have or adopt a religion or belief, is absolute.’

While elements of this commitment are appropriate, the way in which it is worded is dangerous. In particular, the right to manifest religion or beliefs must always be limited by the need to protect the fundamental human rights of others, including the right to be protected against discrimination.

As the International Covenant on Civil and Political Rights itself notes, at Article 18.3:

‘Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.’

This vital nuance is currently missing from paragraph 41. In its absence, people of faith and especially religious organisations would be given a blank cheque to discriminate against others, including LGBTIQ Australians.

Recommendation 7.

Paragraph 41 on page 55 be redrafted such that the right to manifest religion or beliefs is limited by the need to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, including the right to participate in public life free from discrimination.

Chapter 6: Strengthening Australian Democracy

No comments.

Chapter 7: Australia’s Place in the World

On page 68, at paragraph 41, I suggest the inclusion of an additional dot point, to the effect that ‘Labor will ensure Australian international development addresses… the empowerment of people with diverse sexual orientations, gender identities and sex characteristics.’

Statements in Detail

On page 82, under the hearing ‘Public sector industrial relations’, where it says ‘Labor will… [l]ead by example on addressing the ill effects of family and domestic violence by introducing public-sector wide standards of paid leave and other supporting entitlements for workers who are affected by family and domestic violence’, I suggest the inclusion of the following:

‘Labor will lead by example on addressing the disadvantage and exclusion experienced by trans and gender diverse people in the workforce by supporting public-sector wide entitlements to paid transition leave.’

Finally, I express my strong personal support for the retention of explicit commitments in the Statements in Detail in relation to LGBTIQ refugees and people seeking asylum. This includes paragraph 24 on page 93:

‘Labor will ensure asylum seekers who self-identify as lesbian, gay, bisexual, transgender, intersex and queer will be assessed by officers who have expertise and empathy with anti-discrimination principles and human rights law. Officers, translators and interpreters at all levels of the assessment process will have specific lesbian, gay, bisexual, transgender, intersex and queer cultural awareness training to ensure the discrimination asylum seekers face in their country of origin or transit are not replicated.’

And paragraph 13 on page 95:

‘Labor will not detain, process or resettle lesbian, gay, bisexual, transgender or intersex refugees or asylum seekers in countries which have criminal laws against any of these communities as it makes these places unsafe environments for all of them.’

**********

In conclusion, I acknowledge even this detailed submission is unable to substantively address all of the many LGBTIQ policy commitments that were included in the 2018 National Platform, but which have subsequently been excluded from the 2020 Consultation Draft.

Some of these now-omitted policies covered:

  • Providing LGBTIQ-inclusive aged care (paragraph 34 on page 110)[viii]
  • Addressing LGBTIQ housing and homelessness issues (paragraphs 166-167 on page 171,[ix] and paragraph 90, on page 214)
  • Ensuring LGBTIQ statistics are collected by the Australian Bureau of Statistics (paragraph 85 on page 213)[x]
  • Establishing a National Gender Centre ‘to provide support and advocacy for transgender Australians, which could have an education and training role to promote awareness about transgender issues to the wider public’ (paragraph 88 at page 213), and
  • Supporting programs to make sport inclusive for LGBTIQ participants (page 195).

To some extent, it is perhaps inevitable that, by choosing to reduce the length of the Platform from 268 pages to 96, the Australian Labor Party’s 2020 Consultation Draft would include fewer detailed commitments in support of LGBTIQ equality and human rights.

What is not inevitable, however, is that these commitments should be cut in such a disproportionate way, as I have demonstrated through this submission. Or that it now excludes important policies around ending coercive medical interventions on intersex children, removing out-of-pocket costs for trans and gender diverse healthcare, restating a commitment to ending the HIV epidemic, or making much-needed improvements to Commonwealth LGBTI anti-discrimination laws.

I strongly urge the National Policy Forum to consider amending the draft Platform to strengthen the Party’s policy commitments in these four areas, and in other ways suggested in my comments on specific chapters and the statements in detail.

Nevertheless, irrespective of what happens in the redrafting process, or at the National Conference in early 2021, it seems highly likely that the Platform adopted next year will be the first in at least a decade, and perhaps the first in a generation, to include fewer commitments in support of LGBTIQ equality and human rights than its predecessor.

In which case, the onus will be on the Leader of the Opposition Anthony Albanese, Shadow Ministry and Federal Parliamentary Labor Party generally to work with the LGBTIQ community in the lead-up to the next election to make detailed policy commitments outside of the Platform so that urgent community needs are still addressed.

Thank you in advance for taking these comments into consideration. Please do not hesitate to contact me at the details provided should you require additional information.

Sincerely

Alastair Lawrie

Opposition Leader Anthony Albanese is highly likely to release the first ALP National Platform in a generation which contains fewer commitments in support of LGBTIQ equality and human rights than its predecessor.

Footnotes:


[i] For background on this issue, please see my Submission to AHRC Consultation re Medical Interventions on People Born with Variations of Sex Characteristics.

[ii] For more, see Trans Out-of-pocket Medical Costs

[iii] Noting that the 2018 National Platform included a commitment to provide effective sanctions against anti-LGBTIQ hate-speech (at paragraph 137, on page 218):

‘When prejudice against LGBTIQ people contributes to harassment by the written or spoken word, such harassment causes actual harm, not simply mere offence, to people who have suffered discrimination and prejudice, and causes particular harm to young same-sex attracted, gender-questioning or intersex people. Labor considers such harmful harassment is an unacceptable abuse of the responsibilities that come with freedom of speech and must be subject to effective sanctions. Labor will ensure that anti-discrimination law provides such effective sanctions.’

[iv] For more on these proposed reforms, see:

What’s Wrong With the Commonwealth Sex Discrimination Act 1984? and

5 Years of Commonwealth LGBTI Anti-Discrimination Law Reforms. 5 Suggestions for Reform.

[v] For more, see Unfairness in the Fair Work Act.

[vi] For more, see The ‘Bad Faith’ Religious Discrimination Bill Must Be Blocked

[vii] For more, see Did You Know? Trans People in NSW and Queensland Still Require Surgery to Update Their Birth Certificates

[viii] ‘As they age, LGBTIQ deserve care and support that reflects their diversity. Labor will ensure policies in relation to ageing take into account the needs of people with different sexual orientations, gender identities and sex characteristics by building on Labor’s previous LGBTIQ Ageing and Aged Care Strategy.’

[ix] ‘There is a significant connection between homelessness and people being subjected to discrimination and harassment for being same-sex attracted or transgender and specifically understands the discrimination and exclusion affecting transgender people seeking to access support. Accordingly, Labor will work with affected communities to enhance housing support for LGBTIQ Australians.’

‘Labor acknowledges that young lesbian, gay, bisexual and transgender people are at significantly higher risk of homelessness, and commits to support dedicated services aimed at addressing this issue.’

[x] An especially significant omission given the decision of the current Liberal/National Government to not include LGBTI questions as part of the 2021 Census. For more on this topic see Census 2021 – Count Me In.

Finally, the 2020 ALP National Platform – Consultation Draft:

And, for comparison, the 2018 ALP National Platform:

Scott Morrison’s Broken Promise to Protect LGBT Students is Now Two Years Old

Two years ago today, Prime Minister Scott Morrison promised to protect lesbian, gay, bisexual and transgender (LGBT) students in religious schools against discrimination. He stated, unequivocally: ‘We do not think that children should be discriminated against.’ 

This promise was made following the leaking of the Ruddock Religious Freedom Review’s recommendations, which sought to clarify but not repeal the existing ability of religious schools to discriminate against LGBT kids just because of who they are, and the significant public backlash it received from people who did not realise these schools already enjoyed this extraordinary special privilege under the Commonwealth Sex Discrimination Act 1984.

Morrison further committed to introducing amendments to prevent religious schools mistreating LGBT students in this way before the end of 2018, saying: ‘I believe this view is shared across the Parliament and we should use the next fortnight to ensure this matter is addressed.’ 

Scott Morrison has reneged on his promise to protect LGBT students in religious schools against discrimination. Brazenly. Deliberately. And without any apparent consideration of the serious harms his broken promise will cause to a generation of LGBT kids.

Morrison’s Government never even bothered to introduce a Bill into Parliament to attempt to implement his commitment, let alone tried to have it passed.

When the Greens, with the Discrimination Free Schools Bill 2018, and then Labor, with the Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018, both sought to do so themselves, the Liberal/National Government referred these Bills to Senate inquiries rather than debating them.

Even after those inquiries, which took place in late 2018 and over the summer of 2018/19 respectively, handed down their reports, the Morrison Government failed to support those proposals and still did not propose a Bill of their own. Instead, they stalled and effectively counted down the clock until the 2019 Federal election. 

On the very last day before the writs were issued for that election, Attorney-General Christian Porter referred the issue of ‘religious exceptions’ generally to the Australian Law Reform Commission (ALRC) for a detailed, 12-month review. 

After the Morrison Government was re-elected on 18 May 2019, they returned to power with even less sense of urgency to give effect to his promise from October 2018. Instead, they gave priority to preparing two Exposure Drafts of the Religious Discrimination Bill, in late 2019 and early 2020, legislation that would

  • Make it easier to make comments that ‘offend, humiliate, intimidate, insult or ridicule’ minorities, including LGBTI people
  • Make it easier for health practitioners to refuse to provide services that benefit minorities, including LGBTI people
  • Make it easier for religious organisations to discriminate against others, and
  • Make it more difficult for big business to promote diversity and inclusion, including for LGBTI people.

On the other hand, they first delayed the ALRC’s reporting timeline until December 2020. And then, on 2 March 2020, the Attorney-General amended the ALRC’s reporting deadline to be ‘12 months from the date the Religious Discrimination Bill is passed by Parliament.’ 

That change alone is enough to guarantee Morrison’s promise – which, let’s remember, was to protect LGBT students before the end of 2018 – will not happen this term.

First, the Religious Discrimination Bill may not pass (and, in its current form, it most definitely should not). Second, even if it passes, it will not happen until the first half of 2021 at the earliest. At a minimum, that makes the ALRC’s new reporting deadline the first half of 2022, which is when the next federal election is due (by May 2022, although there is increasing speculation it will instead be held in late 2021).

Even after the ALRC ultimately delivers its report, it usually takes a Government at least six months to prepare a formal response, and six months again to introduce legislation based on its response. 

Which means, even if the Government still feels bound by Morrison’s original promise from October 2018, even if the Liberal/National Government is re-elected, even if Morrison remains Prime Minister, even if the ALRC recommends how to implement his commitment, even if the Government accepts the ALRC recommendation, even if the Government prepares and introduces legislation to make this change and even if Parliament passes it, that legislation will not happen until 2023, and will likely not take effect until 2024.

A student in Year 7 when Scott Morrison first promised to urgently protect LGBT kids in religious schools against discrimination will finish Year 12 before his Government gives effect to it – if they ever do.

This isn’t just any ordinary broken promise either. In raising hopes that some of the most vulnerable members of our community might finally be legally protected, and then comprehensively dashing them, Morrison has broken hearts, while leaving a trail of broken lives in his wake.

That’s because anti-discrimination exceptions allowing religious schools to mistreat LGBT students just because of who they are inflict serious, real-life harm on those kids.

Religious schools can harm LGBT kids through the hateful things they say to them. And they can harm LGBT kids by not saying anything positive at all, leaving children who are struggling to figure out who they are to suffer, alone, in the all-enveloping silence of the closet.

Religious schools can harm LGBT kids by expelling them because of their sexual orientation or gender identity. But, generally, they don’t need to – the threat alone is enough. Where a student does bravely decide to come out despite that school’s prejudiced views, the school can ‘encourage parents to find a more suitable environment for their child’ (and what parent would force a school to expel their child in such circumstances?).

Religious schools can harm LGBT kids in myriad ways that fall short of expulsion too, from special rules targeting same-sex attraction, and erasing gender diversity.

Above all, religious schools can harm LGBT kids by creating a toxic environment, where those students know they will not receive safety and protection if they need it – something other kids figure out all too quickly, and take advantage of with impunity. 

I know the above from bitter personal experience – barely surviving five years at a religious boarding school in Brisbane in the early 1990s.

When they weren’t saying hateful things about my sexual orientation (like the pastor who suggested that, for kids struggling with ‘confusion’, killing themselves was not the worst possible outcome), they said nothing at all, leaving a dangerous void in which homophobia can, and did, flourish.

Their explicit rules against same-sex attraction didn’t need to be enforced either – all students knew being ‘out and proud’ simply wasn’t an option. Worst of all, the school’s anti-LGBT stance meant other boarders were free to ‘police’ any students who displayed even the subtlest signs of difference: I was subjected to both verbal, and at times physical, abuse.

The most depressing part of all is the realisation that, in many parts of Australia, little has changed in the past 25 years. While, thankfully, Queensland, Tasmania, the ACT and Northern Territory have all legislated to remove the special privileges allowing religious schools to discriminate against LGBT kids, other jurisdictions have not. 

In 2020, it is appalling and infuriating that religious schools in NSW, Victoria, Western Australia and South Australia can still legally mistreat LGBT students simply because of who they are. 

And they still do, too. As Oliver Griffith wrote, in 2018, about his own, more-recent experiences at a religious school (in an article called Growing up gay in a Christian school had lasting effects on my life’):

‘Growing up gay in an environment like this is a challenge because you are faced with your realisation of your own identity and at the same time are taught by people you trust that you are a deviant, a danger to society, and otherwise should be shunned from the community… the open criticism of homosexuality meant that I was always aware that revealing who I was to the people around me could result in being ostracised from my friends and the teachers I had learnt to respect. Despite becoming aware of my sexuality at the age of 14, I never revealed this publicly until I was in my 20s.’

My, and Oliver’s, stories of survival are by no means unique. And, of course, there are the countless stories we will never get to hear, because those students took their own lives as a direct consequence of the homophobia, biphobia and transphobia of religious schools, all legally supported by our Commonwealth Government.

The serious harms caused by the special exceptions provided to religious schools is backed up by the evidence. As expert in this area, Dr Tiffany Jones, wrote in the conclusion of their submission to the 2018 Senate inquiry titled ‘The Wrong of ‘Discrimination Rights’:

The data outlined in this submission adds to the author’s past submissions on [Sex Discrimination Act] Drafts citing evidence showing that the majority of LGBT students who attended religious schools rated them as homophobic spaces and that many LGBT students in religious schools suffered attempts to be ‘converted to heterosexuality’ or were forced out of their schools (eg in 2012). This submission shows new evidence that this trend continues in Australian religious schools, especially for people on the trans-spectrum. This is despite the fact that conversion attempts are widely and strongly denounced by peak psychology bodies.

Past submissions from the author showed there are significantly fewer policy-based protections for LGBT students in religious schools, which is highly problematic as policy protections are associated with decreased risks of experiencing homophobic and transphobic violence and decreased risks of self-harm and suicide rates for the group. However, the 2018 data shows that anti-LGBT conversion approaches contribute to harm the wellbeing of not only LGBT students, but most people attending those schools – who are significantly more likely to consider self-harm and suicide, and attempt self-harm and suicide.

The 2018 data show ‘gay’ is still the top insult in Australian schools. Trans-spectrum people suffer from more staff targeting just attending school as legally enforced. If our nation requires youth to attend school, and insists on funding religious schools, then those schools must be safe. The small portion of extremist conservative religious schools of Australia (not all religious schools, but those taking advantage of the SDA’s exemptions which effectively endorse anti-LGBT approaches) provide an educational environment lacking in basic social competencies for entering a modern diverse Australia and following its laws outside of the unrealistic ‘bubble’ of these schools. We need to ensure safety and better citizenship education at these schools. Not only for LGBTs, but for all students experiencing the wellbeing and educational deficits of discrimination on gender identity, gender expression and sexual orientation. [emphasis in original]

Dr Jones is correct – if we compel students to attend school, then we must ensure that all school environments are safe for all students, including lesbian, gay, bisexual and transgender kids.

Currently, they are not. Religious schools are legally allowed to harm LGBT students, by what they say, and what they don’t say. By what they do (in enforcing anti-LGBT policies and rules), and what they don’t need to (because of the threat hanging over the heads of LGBT kids). And most of all, religious schools are legally permitted to harm LGBT students by creating toxic cultures in which homophobic, biphobic and transphobic bullying and violence can thrive.

Two years ago today, Prime Minister Scott Morrison promised to protect LGBT students in religious schools against discrimination. He has done nothing in the two years since to give effect to this commitment.

While Scott Morrison might be able to walk away from his words, he cannot walk away from his responsibility for the serious harm being inflicted, needlessly, on another generation of LGBT kids because of his inaction. Harm that will still be felt by too many long after his time as Prime Minister comes to an end.

**********

Update: 7 July 2021

It is now 1,000 days (and counting) since Scott Morrison first committed to protecting LGBT students against discrimination.

It is clear from the history of this issue that the PM is not going to take action just because it is the right thing to do. He will only make this change if we put enough pressure on him. On that basis, it’s up to all of us to tell Morrison that:

  • It’s time to honour your October 2018 promise to protect LGBT students in religious schools against discrimination on the basis of who they are
  • It’s time to help LGBT kids thrive no matter which school they attend, and
  • It’s time to stop delaying this much-needed reform and just get it done already.

There are a variety of ways you can let him know your thoughts:

Twitter: https://twitter.com/ScottMorrisonMP

Email webform: https://www.pm.gov.au/contact-your-pm

Mail: The Hon Scott Morrison MP Prime Minister Parliament House Canberra ACT 2600

Telephone (Parliament House Office): (02) 6277 7700

Most importantly, don’t forget to add a personal explanation of why this issue is important to you. Thanks!

**********

For LGBTI people, if this post has raised issues for you, please contact QLife on 1800 184 527, or via webchat: https://qlife.org.au/ or contact Lifeline Australia on 13 11 14.

Scott Morrison’s broken promise to protect LGBT students in religious schools against discrimination turns two years old today (11 October 2020).

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Welcome to Sydney: Australia’s Capital of Homophobia, Biphobia and Transphobia

Over the past week, the Australian media has been busy re-living the Sydney 2000 Olympics during its 20thanniversary. While this trip down nostalgia lane has been a welcome distraction from the living nightmare that is 2020, it has also been a reminder of the lost opportunity to build on that brief moment of unity.

To borrow from a certain fracking drag queen reality TV host, in the two decades since the Olympics Sydney[i] has been ‘resting on pretty’.

In terms of the lesbian, gay, bisexual, transgender and intersex (LGBTI) community, the situation could just as easily be described as ‘resting on party’.

Known around the world for the Gay & Lesbian Mardi Gras Parade, Party and Festival, Sydney’s reputation as an LGBT-inclusive city is not reflected in the reality of its laws, politics and media.

Indeed, in terms of legal rights, Sydney and the state of NSW now have the worst LGBTI laws of any jurisdiction in Australia. If that sounds like a hyperbolic claim, consider this:

For lesbians and gay men, the NSW Anti-Discrimination Act 1977 (ADA) offers the weakest protections against discrimination of any state and territory anti-discrimination law.

That is because the exceptions in section 56(d) – allowing religious organisations to lawfully discriminate against us – are the equal-broadest in the country (and a long way behind the best practice laws in Tasmania), while NSW is the only place to allow all private schools, religious and non-religious alike, to discriminate against students, teachers and other staff on the basis of their sexual orientation and gender identity.

For bisexuals, the situation is even worse. The ADA is the only anti-discrimination law in Australia that does not actually protect bisexual people against discrimination. At all. 

For trans and gender diverse people, NSW’s laws – covering multiple areas of life – are also the worst in the country.

The ADA only protects transgender people with binary gender identities (‘male-to-female’ or ‘female-to-male’), while excluding people who identify as non-binary (although, sadly, it is not the only jurisdiction to do so: Victoria, Queensland, Western Australia, South Australia and the Northern Territory also offer limited protection). 

As with lesbians and gay men, however, the ADA allows all private schools, even those that are non-religious, to discriminate against transgender students, teachers and other staff.

NSW also has the equal-worst framework for trans and gender diverse people to access birth certificates reflecting their gender identity: alongside Queensland, it still requires surgery in order to obtain new identity documents. Unlike Queensland, however, there has been zero indication the NSW Government is interested in removing this unjust and unnecessary hurdle.[ii]

Intersex people might be the only LGBTI group in respect of which NSW does not have the outright worst laws in Australia. Sadly, that’s more due of the lack of progress in the majority of states and territories, than it is because of any particular progress on intersex law reform here.

The ADA does not provide anti-discrimination protection on the basis of ‘intersex status’[iii] or ‘sex characteristics’[iv] – although neither does Victoria, Queensland, Western Australia or the Northern Territory.[v]

Meanwhile, no Australian jurisdiction has prohibited the ongoing human rights abuses that are unnecessary surgeries and other involuntary medical treatments on children born with intersex variations of sex characteristics.

In encouraging news, the Tasmanian Law Reform Institute recommended criminalisation of non-consensual, deferrable medical interventions on children in June 2020, while the Australian Human Rights Commission is currently also engaged in a project on this issue. However, as far as I am aware, there is no equivalent work being undertaken by the NSW Government.

Finally, Queensland recently introduced prohibitions on sexual orientation and gender identity conversion practices (albeit only within healthcare settings), while the ACT passed more comprehensive reforms which targeted conversion practices more broadly, including in religious environments.

Bans on gay and trans conversion practices are also seriously being considered in South Australia, Tasmania and Victoria. However, once again, there have been no signs whatsoever that the NSW Government, or Parliament, are interested in ending this psychological torture.

Overall, then, it is clear that on contemporary LGBTI law reform issues – from expanding anti-discrimination protections, enacting birth certificate reform, ending non-consensual medical interventions on intersex children, to eradicating gay and trans conversion practices – NSW is a laggard.

Sydney might be a beautiful city, but on LGBTI rights NSW is undeniably backward.

Some people might argue that the people of Sydney are more accepting of the LGBTI community than their politicians. And that may be partly true, especially in pockets of the city. However, the outcome of the 2017 same-sex marriage law postal survey contradicts that view.

NSW was the only state or territory in Australia where the Yes vote for marriage equality was lower than 60%: just 57.8% of people in NSW supported removing anti-LGBTI discrimination from the Marriage Act 1961(Cth). The next lowest state was Queensland, but its result was nearly 3 points higher (60.7%).

More damningly, only 17 electorates around Australia did not record a majority Yes vote. 12 of those were found in metropolitan Sydney,[vi] including the seven electorates with the highest No vote (reaching up to 73.9% No in Blaxland).

Based on this (admittedly context-specific) example, Sydney has the highest rates of homophobia, biphobia and transphobia in the entire country.

The history of marriage equality in Australia is just as illustrative of the corrosive impact politicians from Sydney have had on the rights of all LGBTI Australians.

The Liberal Prime Ministers who first banned marriage equality (John Howard), first proposed to hold an unnecessary, wasteful, divisive and harmful public vote on our rights (Tony Abbott),[vii] actually held that vote (Malcolm Turnbull) and paid for it (Scott Morrison, as Treasurer), were all from Sydney.

Morrison in particular is on track to be the worst Prime Minister on LGBTI issues in Australia’s history, from his ‘gender whisperer’ comments, to his broken promise to protect LGBT students against discrimination, and the proposed Commonwealth Religious Discrimination Bill which overrides, and undermines, existing LGBTI anti-discrimination protections. 

It is likely no coincidence Sydney is the home of News Corp Australia, where it publishes Bernard Lane’s campaign against trans-affirming healthcare (in The Australian) and Miranda Devine’s columns targeting LGBTI-inclusive education (in the Daily Telegraph).

Perhaps the most depressing realisation of all is that, in September 2020, there is more chance things will get worse rather than better.

As we have already seen, there are no public signs the NSW Government is interested in reforming trans and gender diverse access to birth certificates, ending non-consensual medical interventions on intersex children, or banning gay and trans conversion practices.

Nor is there any current indication they will act to modernise the nation’s worst LGBTI anti-discrimination law, to include bisexuals, non-binary people and intersex people, and repeal the exceptions which allow religious organisations, and private schools, to lawfully discriminate against our community.

Even at a procedural level, the NSW Government does not have a formal LGBTI consultative mechanism, unlike the Victorian LGBTIQ Taskforce, Queensland LGBTI Roundtable, ACT LGBTIQ+ Ministerial Advisory Council, and a range of long-standing Tasmanian LGBTIQ+ Government working groups.

On the other hand, while there are no legislative proposals to improve the rights of LGBTI people currently before NSW Parliament, there are several Bills which, if passed, would set our legal rights back even further.

That includes the Mark Latham/One Nation Anti-Discrimination (Religious Freedoms and Equality) Bill 2020, that would undermine our existing, limited protections against discrimination, which the Government and Opposition nevertheless saw fit to refer to a Joint Select Committee for consideration.

And then there’s the truly awful Education Legislation Amendment (Parental Rights) Bill 2020 – also from Latham/One Nation – which not only seeks to erase trans and gender diverse students and teachers entirely from all NSW schools, but also attempts to introduce a UK ‘section 28’-style provision making life difficult for all LGBTI kids, while introducing an erroneous and stigmatising legislative definition of intersex, too.

That Bill has also been referred to a Parliamentary Committee for inquiry – with the Committee chaired by Mark Latham himself.

We are now 18 months into the Berejiklian Liberal/National Government’s term. It is time for them to step up – not just to defend LGBTI people in NSW against Mark Latham’s, and One Nation’s, attacks on our community, by rejecting outright his deeply flawed ‘religious freedom’ and anti-trans kids legislative proposals.

But also to make long-overdue progress on other important issues, including birth certificate changes, protecting intersex kids, ending conversion practices and engaging in broader anti-discrimination reforms.

As of this week, they have 30 months left until the next State election. How they use their time between now and 25 March, 2023, will determine whether NSW will continue to have the worst LGBTI laws in Australia, or at least something closer to the national average.

There is another significant event in Sydney from mid-February to early March in 2023 which is highly relevant to this conversation: World Pride will be hosted by the Sydney Gay & Lesbian Mardi Gras.

Assuming it is not cancelled because of coronavirus, large numbers of LGBTI eyes from around the globe will be focused squarely on us. The world already knows Sydney puts on a good party, Olympics, Mardi Gras or otherwise. But during World Pride they will also be looking at the State of our rights.

If the NSW Government doesn’t undertake essential, and long overdue, reforms in the next two-and-a-half years, we will be greeting our international guests by saying ‘Welcome to Sydney: Australia’s capital of homophobia, biphobia and transphobia’.

**********

Take Action

Of course, it doesn’t have to be this way. There are at least three things you can do to avoid that potential embarrassment (a good outcome) and make the lives of LGBTI people in NSW better on a day-to-day basis (a great one):

  1. Get involved

For too long, the burden of fighting for our rights has been borne by too few. There are a range of different organisations you can join or support to help make a difference, including:

And there are plenty of others too (including Union Pride, as well as LGBTI advocacy groups within political parties). 

2. Defend our community against attacks

As the above article (hopefully) makes clear, LGBTI rights in NSW are currently under attack by Mark Latham.

You can help the campaign against One Nation’s Education Legislation Amendment (Parental Rights) Bill, aka the anti-trans kids Bill, in the following ways:

  • Sign the Gender Centre, just.equal and AllOut petition 
  • Sign Sam Guerra’s individual Change.Org petition (which is already over 80,000 signatures), and
  • Use Equality Australia’s platform to write to the Premier, Deputy Premier, Education Minister, Opposition Leader and Education Minister here.

You can also find out about, and take action against, the One Nation Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020 on the Equality Australia website here.

3. Support campaigns for positive change

A lot of our time, at both NSW and Commonwealth level, is currently being spent fighting against proposals that would take our rights backward. That is necessary and important work – but we won’t achieve progress without campaigns which seek to make our existing laws better.

Whether it is anti-discrimination law reform, improving birth certificate access, ending non-consensual medical interventions on intersex children, or banning gay and trans conversion practices – or a wide range of other important LGBTI issues – find a campaign and help drive it forward.

Positive change doesn’t happen in a vacuum, it happens when we use our voice.

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Footnotes:

[i] I should clarify here that this post is about the small ‘c’ city of Sydney (meaning the large metropolitan area of 5 million people), and not the capital ‘C’ City of Sydney Council, which is largely progressive.

[ii] Disappointingly, the Queensland Government has failed to make progress on birth certificate reform since its 2018 Discussion Paper, and, as far as I am aware, have not promised to take action on this issue even if they are re-elected on 31 October.

[iii] Which is a protected attribute in both the Sex Discrimination Act 1984 (Cth) and Equal Opportunity Act 1984 (SA).

[iv] Which is the preferred protected attribute for intersex advocates, as per the March 2017 Darlington Statement, and was recently included in the Discrimination Act 1991 (ACT), while the Tasmanian Anti-Discrimination Act 1998 covers ‘intersex variations of sex characteristics’.

[v] ‘Intersex status’ was included in the 2018 amendments to the Crimes Act 1900 (NSW), which prohibited ‘public threats of violence on grounds of race, religion, sexual orientation, gender identity or intersex or HIV/AIDS status’, although to date this legislation has still not been used.

[vi] Of the other five, three were in regional Queensland, and two were in suburban Melbourne. Zero electorates in Western Australia, South Australia, Tasmania, the ACT and the Northern Territory voted No.

[vii] Tony Abbott’s decision, as Opposition Leader, to deny Coalition MPs and Senators a conscience vote also cruelled any chance of Stephen Jones’ 2012 marriage equality legislation being passed.

I Stand With Trans Kids, and Against Mark Latham

Wednesday 5 August 2020 saw the introduction of the most damaging legislative attack on lesbian, gay, bisexual, transgender and intersex (LGBTI) rights in Australia this century: Mark Latham’s Education Legislation Amendment (Parental Rights) Bill 2020.

Don’t let the innocuous title fool you. This Bill seeks nothing less than the total erasure of any and all trans and gender diverse content, inclusion programs and even counselling from every school in NSW, government and non-government alike. In doing so, it seeks to completely erase trans and gender diverse kids, too.

It does this by adding the following definition to the Education Act 1990 (NSW):

gender fluidity means a belief there is a difference between biological sex (including people who are, by their chromosomes, male or female but are born with disorders of sexual differentiation) and human gender and that human gender is socially constructed rather [than] being equivalent to a person’s biological sex.

This definition effectively excludes the very existence of trans and gender diverse people.

Latham’s Bill then prohibits the inclusion of anything to do with ‘gender fluidity’ from all courses approved for use in schools across NSW.

And it prohibits not just ‘the teaching of gender fluidity’ (proposed section 17A), but also any ‘instruction, counselling and advice provided to students by:

  • non-teaching school executives;
  • non-teaching school counsellors,
  • non-teaching staff, contractors, advisors and consultants of a school,
  • non-school based staff, contractors, advisors and consultants of a school, and
  • volunteers at a school’ (proposed section 17C).

Everyone – from teachers, to principals, counsellors, and parents volunteering in the classroom or the tuckshop – must adopt an official silence on anything to do with trans and gender diverse people.

The consequences for teachers breaching this silence are severe: the Bill proposes amendments to the Teacher Accreditation Act 2004 (NSW) that would cancel the accreditation of any teacher who even acknowledges that trans and gender diverse people are a thing.

As Latham stated in his Second Reading Speech:

My bill outlaws gender fluidity teaching, course development and teacher training and ends the accreditation, and thus the employment, of any individual breaking that law.

Of course, the consequences for trans and gender diverse students are far worse. They will be made to feel completely invisible, with no information about who they are, let alone reassurance who they are is okay.

There will be no trans and gender diverse content in health and physical education classes, at any age, or in any other subject, either. History, literature, indeed all of the social sciences, must be purged of any reference to trans and gender diverse characters and people. As Penny Sharpe MLC interjected during Latham’s speech, this is book-banning writ large.

Trans and gender diverse students will have nowhere to turn for assistance. School counsellors, who are supposed to help all students, will be prohibited from even talking about gender identity issues with them.

Even sympathetic teachers will feel compelled to pretend that the trans and gender diverse kids in their classrooms, sitting right in front of them, do not exist. They will be encouraged to misgender and deadname them, or jeopardise their careers. They would likely be unable to intervene to stop transphobic bullying and harassment of these kids as well.

Because to acknowledge that trans and gender diverse kids exist would be to acknowledge that sex is different to gender, and that gender exists on a spectrum.

Tragically, the purging of all trans and gender diverse content from courses, the invisibilisation of trans and gender diverse kids themselves, and the removal of all support from teachers, counsellors and others, will inevitably lead to trans and gender diverse kids killing themselves.

But then that’s possibly the point. The Education Legislation Amendment (Parental Rights) Bill 2020 appears to be built on the ideology that it is better for a child to be dead than to be happy, well-adjusted and trans or gender diverse.

Before moving on, we should also highlight the serious problems this legislation will cause for trans and gender diverse employees. It seems likely that identification as non-binary will be prohibited – teachers, and other staff, would not be able to insist on the use of they/them pronouns, or other non-gendered language. They would be forced to deny who they are.

The situation for binary trans teachers and other staff would be nothing short of horrifying. If anyone in the school community, from students to other staff and even parents, became aware of their gender identity, and decided to weaponise it against them, they would be unable to defend themselves, because again to do so would be to affirm sex is not gender. They too would be powerless to stop themselves from being deadnamed and misgendered.

The attack on trans and gender diverse people, and especially trans and gender diverse kids, in this legislation is brutal. But other parts of the LGBTI community aren’t spared either.

That’s because the Bill also establishes a new framework in the Education Act 1990 (NSW) which restricts teaching around a wide range of issues. These are framed as ‘matters of parental primacy’, and defined as:

in relation to the education of children, moral and ethical standards, political and social values, and matters of personal wellbeing and identity including gender and sexuality.

It would then allow parents and guardians to remove their child from any course that even mentions sexuality (proposed section 17D) – meaning any class, from health and physical education, through any of the social sciences, which dares to state that lesbian, gay and bisexual people exist.

It would also compel schools to consult with parents and guardians at the start of each year about any course which includes anything to do with sexuality (proposed section 17E) and then attempt to teach that course consistently with ‘the moral and ethical standards and the political and social values of parents of students’ (proposed section 6(o)).

Of course, given it is impossible to teach any course consistent with the political and social values of all parents, and the significant administrative hurdles involved, most schools will simply jettison all courses that mention anything to do with same-sex attraction. Lesbian, gay and bisexual content will be purged just like trans and gender diverse information before it.

Even where schools do decide to include this information, proposed section 17B would intervene to limit its effectiveness:

17B Teaching to be non-ideological

In government schools,[i] the education is to consist of strictly non-ideological instruction in matters of parental primacy. The words non-ideological instruction are to be taken to include general teaching about matters of parental primacy as distinct from advocating or promoting dogmatic or polemical ideology.[ii]

The impact of this clause is potentially far-reaching. After all, if some parents believe homosexuality is ‘sinful’, then presumably it would be ‘ideological’ for a school to teach being lesbian, gay or bisexual is okay. And if some parents assert all sex outside marriage is prohibited, and that LGB people must be celibate, then it could be ‘ideological’ to provide safer sex education at all, but especially about non-heterosexual intercourse.

The use of the words ‘advocating or promoting’ is especially concerning. This provision is, in effect, an Australian equivalent of the UK’s notorious section 28, which was introduced by the Thatcher Government in 1988, and persisted until 2003 when it was finally repealed.

Section 28 of the Local Government Act 1988 (UK) stated that a local authority ‘shall not intentionally promote homosexuality or publish material with the intention of promoting homosexuality’ or ‘promote the teaching in any maintained school of the acceptability of homosexuality as a pretended family relationship.’

The word ‘promotion’ was interpreted broadly, meaning many teachers and schools simply refused to discuss anything to do with same-sex attraction, lest they be accused of ‘promoting’ it. This clause caused a generation of same-sex attracted students to be abandoned, left alone, scared and confused, and without access to safer sex education at the height of the HIV epidemic.

Mark Latham’s section 17B would have the same chilling effect as section 28 – teachers, principals, counsellors and volunteers (including parents) would fear telling a struggling lesbian, gay or bisexual student that who they are is perfectly okay, because it could be seen as promoting an ‘ideological’ view.

While on first glance the provisions of the Education Legislation Amendment (Parental Rights) Bill 2020 which apply to sexuality appear to be less harsh than the more direct attack on trans and gender diverse kids, the outcome could nevertheless be the same – silence, invisibility and lack of support, leading to dead children.

Finally, it should be noted that the provisions of this Bill are damaging to intersex kids too.

The definition of ‘gender fluidity’, reproduced above, includes this phrase: ‘including people who are, by their chromosomes, male or female but are born with disorders of sexual differentiation’, which is presumably a reference to people born with intersex variations of sex characteristics.

Except intersex variations of sex characteristics are not *disorders*, and the use of this terminology is particularly destructive, reinforcing stereotypes that these differences are wrong and something to be ‘corrected’. This term therefore increases the stigmatisation of intersex children, and will lead to further unnecessary and harmful medical and surgical interventions – an ongoing human rights abuse that must be ended, not perpetuated.

Mark Latham’s Education Legislation Amendment (Parental Rights) Bill 2020 is a direct assault on all parts of the LGBTI community, and especially LGBTI children. Above all, it seeks to completely erase trans and gender diverse content, inclusion programs and counselling from every school in NSW – and thereby erase trans and gender diverse kids themselves.

That’s why, in my view, it is the most damaging attack on the LGBTI community this century. Worse than John Howard’s original ban on same-sex marriage. Worse than the Morrison Government’s proposed Religious Discrimination Bill (although it also has far-reaching negative consequences for LGBTI Australians). Worse even than Latham’s own Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020.

Because it is a calculated and deliberate campaign against the most vulnerable among us.

It is a transphobic (and homophobic, and biphobic, and intersexphobic) agenda that we must resist with all our resources.

Unfortunately, we are already off to a bad start, with the NSW Legislative Council also voting on Wednesday to refer this legislation to Portfolio Committee No. 3 – Education, for inquiry. For those who are not aware, the chair of that Committee is … Mark Latham himself.

Which means we will need to appeal directly to the other members of the Committee to reject his proposal:

  • Matthew Mason-Cox (LIB, Deputy Chair)
  • Anthony D’Adam (ALP)
  • Wes Fang (NAT)
  • Scott Farlow (LIB)
  • Courtney Houssos (ALP), and
  • David Shoebridge (GRNS).

Ultimately, and perhaps somewhat ironically, the debate surrounding a Bill which explicitly mentions ‘moral and ethical standards, political and social values’ is a test of character for the Members of the NSW Parliament.

The question is one for NSW Premier Gladys Berejiklian, and Opposition Leader Jodi McKay: do you stand with trans and gender diverse kids, and LGBTI kids generally, or do you support a Bill that purges LGBTI content from classes, removes support from teachers, counsellors and others, and renders LGBTI kids themselves invisible?

Most importantly, they must make their decision quickly, and rule out supporting the Education Legislation Amendment (Parental Rights) Bill 2020, before the inevitable toxic debate, inside and outside Parliament, led by Latham and backed by his cheerleaders in the right-wing media.

I stand with trans kids, and against Mark Latham. What about you Gladys and Jodi?

For LGBTI people, if this post has raised issues for you, please contact QLife on 1800 184 527, or via webchat: https://qlife.org.au/ or contact Lifeline Australia on 13 11 14.

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Mark Latham’s Education Legislation Amendment (Parental Rights) Bill 2020 is a worse attack on the LGBTI community than John Howard’s 2004 ban on same-sex marriage.

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] Presumably, non-government schools will be able to be ‘ideological’ and provide instruction which condemns same-sex attraction.

[ii] Section 17B ends with: ‘For the avoidance of doubt, this section does not apply to special religious education provided under section 32 of this Act’, which leaves open the possibility that homophobic materials will be able to be distributed in special religious education in government schools.

Opening Statement to Victorian Inquiry into Anti-Vilification Protections

On 25 June, I was invited to give evidence to the Victorian Parliamentary Inquiry into Anti-Vilification Protections. My opening statement, highlighting the need to introduce prohibitions on vilification on the basis of sexual orientation, gender identity and sex characteristics, is published below (the full transcript of my evidence, including answers to questions from members of the Legislative Assembly’s Legal and Social Issues Committee, can be found here).

This evidence builds on my submission to the inquiry in December 2019. The Committee’s original timeline requires them to report by 1 September 2020, although given current circumstances it would of course be understandable for this deadline to be extended. Hopefully, whenever the Committee reports, they recommend that LGBTI Victorians are finally provided with legal protections against vilification.

**********

“Thank you very much for the opportunity to appear today and give evidence on this important topic. I do so as an advocate for LGBTI anti-discrimination law reform for close to two decades. This includes previously serving as the chair of the policy working groups of both Victorian and New South Wales gay and lesbian rights lobbies, although I appear here in a personal capacity. In my comments I will focus on terms of reference 4, ‘comparisons in the operation of the Victorian Act with legislation in other jurisdictions’, and 8, ‘possible extension of protections or expansion of protection to classes of people not currently protected’.

Starting with the comparative approach, it is clear that Victoria has fallen behind the standards set by several other Australian jurisdictions. In my own state of New South Wales protections against vilification on the basis of homosexuality were first added to the Anti-Discrimination Act in 1993, just four years after racial vilification was first prohibited and before passage of the commonwealth Racial Hatred Act 1995. Transgender vilification protections were then added in 1996. While there are limitations to these protections, such as the exclusion of bisexual, non-binary and intersex people, many LG and T people here have enjoyed anti-vilification coverage for close to a quarter of a century.

LGBT people have also been protected against vilification in Queensland for almost 20 years following the inclusion of both sexuality and gender identity in their vilification provisions in 2002. The ACT Discrimination Act has included prohibitions on vilification on the basis of sexuality and transsexuality from 2004, with gender identity replacing transsexuality in 2010 and intersex added in 2016, meaning the ACT’s vilification provisions cover the entire LGBTI community, one of two such laws in the country.

The other jurisdiction to cover all of lesbians, gay men, bisexuals, transgender and intersex people is Tasmania, which has the most extensive anti-vilification laws in Australia. These protections have two parts. Section 19 of the Tasmanian Anti-Discrimination Act prohibits public acts that:

incite hatred towards, serious contempt for, or severe ridicule of, a person or a group of persons …

That section has included sexual orientation from its commencement in 1999, and it included transsexuality within sexual orientation from that time until 2014. Gender identity and intersex variations of sex characteristics were both added in May last year. Section 17 separately prohibits:

conduct which offends, humiliates, intimidates, insults or ridicules another person on the basis of an attribute …

Those provisions have covered sexual orientation, gender identity and intersex status, or intersex variations of sex characteristics, since 2014. From a comparative approach alone, it is disappointing the Victorian Racial and Religious Tolerance Act has not been extended beyond racial and religious vilification since it commenced in 2002.

Turning now to the second issue—the possible extension of protection to classes of people not currently protected—I think the preamble to the Act is quite instructive. Paragraph 3 in particular reads:

… some Victorians are vilified on the ground of their race or their religious belief or activity. Vilifying conduct is contrary to democratic values because of its effect on people of diverse ethnic, Indigenous and religious backgrounds. It diminishes their dignity, sense of self-worth and belonging to the community. It also reduces their ability to contribute to, or fully participate in, all social, political, economic and cultural aspects of society as equals, thus reducing the benefit that diversity brings to the community.

From an LGBTI advocate’s perspective, it seems obvious to me that the exact same description could be applied to my community. Some people are vilified on the ground of their sexual orientation, gender identity or sex characteristics. This conduct is contrary to democratic values because of its effect on us. Homophobia, biphobia, transphobia and intersex phobia diminish our dignity, sense of self-worth and belonging to the community. It also reduces our ability to contribute to or fully participate in all aspects of society as equals and reduces the benefits of diversity.

Explaining this to you in a more structured or systematic way, I would submit (1) sexual orientation, gender identity and sex characteristics are fundamental or inherent human characteristics; (2) lesbian, gay, bisexual, transgender and intersex people are frequently subjected to vilification on the basis of who they are; and (3) that vilification can cause serious harm and should therefore be legally prohibited.

In 2020 the first point is obviously not up for serious debate. In terms of points 2 and 3, I would draw the committee’s attention to a community survey which I conducted at the end of 2016 with 1672 LGBTIQ respondents from around Australia, including 386 in Victoria [*see below]. One of the questions asked, ‘Have you ever experienced verbal harassment or abuse because of your sexual orientation, gender identity or intersex status?’. Overall 74 per cent of respondents answered yes, with 48 per cent of all respondents then reporting at least one instance of verbal harassment or abuse in the previous 12 months.

That is one in two LGBTIQ Australians indicating they were verbally abused in the year 2016 alone, which I should note was before the postal survey. Perhaps unsurprisingly but nevertheless disappointingly, these rates were even higher amongst transgender respondents: 68.3 per cent reported abuse in the previous 12 months. And intersex respondents, 82.2 per cent in the previous year. The rates in Victoria were average for the country, 74.1 per cent reporting abuse or harassment ever and 49.8 per cent in the previous 12 months.

Now I acknowledge that many—indeed, likely most—of these responses would fall short of the legal standard for vilification, but no doubt some would meet it. Taking just one respondent’s experience:

I have been referred to as a tranny and had both my sexuality and gender identity mocked and invalidated repeatedly. I have been told to kill myself an innumerable number of times, including being told to ‘get my teeth and gender straight or kill myself’, and that my gender is ‘cancer’. This is just a short list of the abuse I’ve suffered.

When asked for the location for anti-LGBTI comments in the previous 12 months, 92 per cent of respondents said social media, 83 per cent said politics, 81 per cent religion, 80 per cent media and 67 per cent in a public space. Finally, when asked to explain the impact that witnessing homophobic, bi-phobic, transphobic and intersex-phobic comments had on him, here are just two of the comments received:

They make me feel worthless, like a freak, like I don’t deserve to live, like I don’t deserve anything, like I will be alone forever, like no-one will love me, like I should just kill myself because it would be easier.

And:

… disgust and shame at both myself and Australia. I feel marginalised, oppressed, fearful, frustrated and in some cases terrified of the country I live in.

This brings me back to the preamble of the Racial and Religious Tolerance Act and the benefit that including sexual orientation, gender identity and sex characteristics as protected attributes would bring. In my view it would not only reflect Victoria’s democratic values but enhance the dignity, self-worth and belonging of a significant cohort of Victorians. That would be a positive outcome, and I hope the committee, and the Parliament ultimately, agrees. Thank you.”

*These figures, and quotes, are taken from my 2016 research survey ‘The State of Homophobia, Biphobia and Transphobia’.

No Homophobia No Exceptions (1)

For LGBTI people, if this post has raised issues for you, please contact QLife on 1800 184 527, or via webchat: https://qlife.org.au/ or contact Lifeline Australia on 13 11 14.

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

Submission re Aged Care Worker Regulation Scheme – Consultation Paper

Department of Health

Submitted online

Monday 29 June 2020

 

To whom it may concern

Submission re Aged Care Worker Regulation Scheme – Consultation Paper

Thank you for the opportunity to provide a submission on this important topic. In this submission, I will respond to the information presented in the Consultation Paper, while highlighting a fundamental issue that is not addressed in its 56 pages.

Specifically, in discussing existing screening of aged care workers, as well as options for increased screening and/or registration, the Consultation Paper fails to mention a de facto form of screening which already takes place – the lawful exclusion of lesbian, gay, bisexual and transgender (LGBT) employees by some government-funded aged care services operated by religious organisations.

This discrimination is permitted because of the religious exceptions included in the Sex Discrimination Act 1984 (Cth).

While sub-section 37(2)(a) provides that government-funded aged care services operated by religious organisations are not able to discriminate against lesbian, gay, bisexual and transgender people accessing their services, sub-section 37(2)(b) allows those same organisations to fire, or refuse to hire, LGBT employees simply because of who they are.

Such workplace discrimination is unacceptable in principle. But it is also unacceptable in the context of issues confronting the aged care sector, as articulated in the Consultation Paper.

For example, one of the three problems highlighted on pages 7 and 8, under the heading ‘What are the limitations of the existing approach?’ is the following:

Concern that some critical workers (such as personal care workers) may not have adequate qualifications or skills, English proficiency and/or access to continuous professional development (CPD) to support the delivery of safe and high-quality consumer-centred care

-As noted above, PCWs comprise approximately 70 per cent of the aged care workforce. Over the coming years, there will be an increasing demand for PCWs with industry estimates suggesting that an additional 980,000 workers will need to be recruited to perform roles such as those of PCWs.

In a system with concerns about workforce skills, and a looming shortage of personal care workers (as identified in the quote above), it makes absolutely zero sense to allow a significant proportion of aged care services to legally discriminate against employees on the basis of their sexual orientation and/or gender identity.

This discrimination has a range of negative consequences, both for the individual aged care service, as well as for the system as a whole.

For individual services, by limiting the pool of applicants to cisgender, heterosexual people, it is inevitable that in some circumstances better qualified applicants will be rejected because of personal attributes that have no connection to their ability to perform the role.

In other words, where services only hire the best cisgender, heterosexual person for the job, rather than the best person full stop, the overall quality of care provided will be adversely affected, to the detriment of people accessing that service.

However, the systemic outcomes of such discrimination are even worse.

LGBT people considering a career in aged care may decide against entering the industry entirely if they are aware that a substantial proportion of aged care services can refuse to hire them solely on the basis of their sexual orientation and/or gender identity.

Further, LGBT people who are already in the industry and experience discrimination because of who they are may be more likely to exit the industry prematurely rather than risk being confronted by additional mistreatment.

In this way, the ability of government-funded aged care services operated by religious organisations to discriminate against LGBT employees both limits the number of people considering working in aged care in the first place, and accelerates current employees leaving – at the exact same time the Consultation Paper suggests there is a growing demand for more aged care workers.

Sub-section 37(2)(b) of the Sex Discrimination Act 1984 is therefore a structural barrier to an expanded, and better-qualified, aged care workforce, and one that must be removed as a matter of priority.

This view is reinforced by examining the ‘Objectives of an aged care worker screening or registration scheme’, as outlined on pages 13 and 14 of the Consultation Paper.

All six of these objectives are compromised by the ability of government-funded aged care services operated by religious organisations to discriminate against LGBT employees.

  1. Improve the quality and safety of aged care and enhance protections for consumers

As seen in the above discussion, allowing individual aged care services to hire the best cisgender, heterosexual person for the job, rather than the best person overall irrespective of their sexual orientation and/or gender identity, inevitably means that centre is not able to provide the best possible care to consumers.

This problem is amplified for LGBT employees who are currently employed in government-funded aged care services operated by religious organisations and who must constantly worry about the potential of being discriminated against by current, or future, service operators. Every extra second employees spend hiding who they are for fear of mistreatment is one less second they are able to devote to providing the best possible care to consumers.

  1. Avoid unnecessary barriers to workforce entry and facilitate the attraction and retention of aged care workers

Allowing discrimination against current and potential employees simply because they are lesbian, gay, bisexual and transgender seems to be the definition of unnecessary.

  1. Promote consumer-directed care

This is an often-overlooked problem created by the current inconsistent approach adopted in sub-section 37(2) of the Sex Discrimination Act: while LGBT people accessing government-funded aged care services operated by religious organisations have the right to be out, employees of the same services do not.

The absence of ‘out’ LGBT employees – and the (understandable) reluctance of LGBT workers to disclose their sexual orientation and/or gender identity in the workplace, even to LGBT residents – actually heightens the isolation LGBT residents may feel, at a time when they are already facing increased loneliness.

  1. Avoid duplicative regulatory requirements for providers and workers operating across sectors

It is inconsistent to determine that an employee is capable to provide aged care services in one government-funded facility, but not another, simply because of their sexual orientation and/or gender identity. The role is essentially the same. The qualifications for performing it should be, too.

  1. Protect the rights of workers

This is perhaps the most obvious of the objectives – a person’s sexual orientation and/or gender identity is irrelevant to their ability to perform the role of an aged care worker. It is unnecessary, and above all unjustified, discrimination to allow these workers to be fired, or refused to be hired, just because of who they are.

  1. Minimise the cost to workers, providers, consumers and governments

Encouraging more people to train to be aged care workers, but then allowing them to be discriminated against because they are lesbian, gay, bisexual and transgender, is inherently wasteful.

It is a waste of the individual’s time, and in many cases, money (both spending to obtain the necessary qualifications, and lost income because of discrimination). It is wasteful for governments, who subsidise their training and must train even more people to replace those who may be lost to the industry because of discrimination. And it is wasteful for consumers, who miss out on the best possible care because of an irrelevant attribute.

Based on all of these arguments, and while I acknowledge the Consultation Paper’s arguments in favour of enhanced screening and/or registration requirements for aged care workers, I submit that the first step to improve the quality of the aged care workforce should be to remove an existing, unnecessary and harmful de facto screening process.

That is to remove the ability of government-funded aged care services operated by religious organisations to discriminate against employees and potential employees on the basis of their sexual orientation and/or gender identity.

This would obviously have a positive outcome for LGBT aged care workers, including making their retention in the overall industry more likely.

Above all, it would improve the quality of aged care provided in Australia – and that would meet the objectives of any aged care worker regulation scheme.

Recommendation: That sub-section 37(2) of the Sex Discrimination Act 1984 (Cth) be amended to remove the ability of government-funded aged care services operated by religious organisations to discriminate against LGBT employees and potential employees.

Thank you in advance for considering this submission. Please do not hesitate to contact me at the details provided if you require additional information.

Sincerely

Alastair Lawrie

Richard Colbeck

Minister for Aged Care and Senior Australians, Senator the Hon Richard Colbeck