It is two weeks on from the Federal election, in which the Liberal-National Coalition was surprisingly (some might say shockingly) re-elected. It was a disappointing result from an LGBTI rights perspective, given Labor had adopted the most progressive major-party platform on LGBTI issues in history.
The Morrison Government’s position on a range of topics that affect our community is a lot less clear. Now that the dust has settled after the May 18 poll, what does the future hold for LGBTI rights in Australia?
The most immediate issue that confronts the lesbian, gay, bisexual, transgender and intersex community is the potential threat of a Religious Discrimination Bill.
I write ‘potential’ because it remains unclear exactly what type of legislation the Government is proposing to implement its commitment arising from the Ruddock Religious Freedom Review.
On one hand, it could be a Religious Anti-Discrimination Bill, which would add religious belief, including lack of belief, as a protected attribute to Commonwealth anti-discrimination law. This would be welcome, given religious minorities in particular should be protected against discrimination simply because of who they are (something LGBTI Australians have much empathy for).
Indeed, that is what was promised by Attorney-General Christian Porter, in his joint press conference with Prime Minister Morrison in December 2018, when they announced the Government’s response to the Ruddock Review:
“The architecture for discrimination legislation is well-known, it’s not overly complicated. An attribute is defined – such as age or race or sex or disability or, in this case, the adherence to a religion or the right to not adhere to a religion – and then certain prohibitions are placed on people in terms of their treatment of other Australians based on that attribute. So you are protected from discrimination because of that attribute and then there are certain exemptions drafted as is appropriate. I don’t think that that would be a very contentious bill, necessarily, it follows a very standard architecture. But what the Ruddock Report said, is that there is a need for such a bill.
“I would put it to you all this way. In Australia at the moment, if you’re invited to a function at Parliament and at entry to the room of that function, you were denied entry because of the fact that you had a disability or because of your race, or because of your age, or because of your sex, that would be unlawful. But if you were turned away because of your religion, that would not be unlawful in Australia. So this, if you like, is the fifth and final pillar of an overarching architecture that prevents discrimination for Australians, directed to Australians, based on attributes which should never be the basis for discrimination.”
On the other hand, the Government could instead introduce a Religion Pro-Discrimination Bill, which further entrenches the special privileges of religious organisations to discriminate against others, including (but not limited to – see below) LGBTI Australians.
This discriminatory type of legislation was this week publicly-supported by Government MPs Barnaby Joyce and Concetta Fierravanti-Wells (‘Folau’s Law: Coalition MPs push for bolder action in a ‘new dawn’ for religious freedom, Sydney Morning Herald, 29 May 2019). It is also being advocated for by religious fundamentalist groups like the Australian Christian Lobby, while backed by a campaign from The Australian newspaper.
A Religious Pro-Discrimination Bill would present the greatest threat to LGBTI rights in Australia since criminalisation. It is entirely natural for us to feel threatened by this possible development. Indeed, the Government has created the vacuum allowing this fear to arise, given it would not reveal the contents of its proposal before the election (despite Porter saying in December 2018 that: “the Religious Discrimination Bill, which we are well-advanced on the drafting of and which we would have out early next year, so that people can see it”).
Therefore, while it was encouraging that Porter pushed back on the calls from his colleagues (Attorney-General Christian Porter pushes back on ‘Folau’s law’ idea, Sydney Morning Herald, 30 May 2019), we must prepare for either possibility, a Religious Anti-Discrimination Bill or a Religious Pro-Discrimination Bill.
And we must do so as a matter of urgency, with Porter indicating that he wants to introduce the legislation – whichever it is – when Parliament resumes in July.
While it is almost certain the Morrison Government will proceed with a Religious Discrimination Bill (of some kind) in the near-term, the future for LGBT students in religious schools is far less clear.
Despite the Prime Minister himself promising to protect LGBT students against discrimination before the end of 2018, he obviously failed to do so. Instead, the day before the election was called, Attorney-General Porter referred the issue of religious exceptions to the Australian Law Reform Commission for review.
At this stage, “[t]he ALRC is planning to release a Discussion Paper on 2 September 2019 which will set out proposed reforms and ask questions to assist the ALRC to prepare formal recommendations. Submissions on the Discussion Paper will be due by 15 October 2019.” The final report is due by 10 April 2020 (for more details, see the ALRC website).
The LGBTI community must be heavily involved in this process, to ensure that our interests are appropriately considered at every step. This includes advocating for the full removal of the ability of religious schools to discriminate against LGBT students under the Sex Discrimination Act 1984 (Cth), rather than allowing such discrimination to continue just under a different name. And we must engage politically (see below) to pressure the Government to finally fulfil its commitment to protect LGBT kids.
Unfortunately, the election result makes the removal of similar discrimination against LGBT teachers that much more difficult (although not impossible). Ditto for abolishing the exceptions that allow religious organisations to lawfully discriminate against LGBT Australians in employment generally, and in the provision of services.
But that doesn’t mean we give up. It just means we fight harder. Because LGBTI Australians will not truly be equal until we have the right to learn, the freedom to earn and the ability to access services without fear of discrimination on the basis of our sexual orientation, gender identity or sex characteristics.
As after any election, the personnel in Federal parliament have changed (even if perhaps not as much as many LGBTI Australians would have liked). This means we must adapt the targets of our advocacy regarding the above two issues.
In addition to lobbying (where possible) Prime Minister Morrison and Attorney-General Porter, we should also focus on the growing ‘rainbow’ group within the Liberal Party, with lesbian Angie Bell elected to represent Moncrieff in the House of Representatives, joining Trent Zimmerman, Trevor Evans, Tim Wilson and Senator Dean Smith, plus long-term LGBTI ally Warren Entsch.
The likely composition of the new Senate also means that returning Tasmanian Senator Jacqui Lambie now wields significant power, together with the two Centre Alliance Senators from South Australia, Rex Patrick and Stirling Griff. It is not an exaggeration to say that these three Senators will hold our collective fate in their hands on a large number of Bills.
Finally, following Labor’s election loss, and the election of new Opposition Leader Anthony Albanese, the ALP’s positions on all issues, including LGBTI issues, is now up for grabs. We will need to make sure that they do not back-track on any of the positive positions which they took to the election, including the full removal of discrimination against LGBT students and teachers. In this push, we should also engage with Rainbow Labow MPs, including Penny Wong, Louise Pratt, Julian Hill and the newly-elected Queensland Senator Nita Green.
[I have deliberately not mentioned the Australian Greens here, including bisexual Victorian Senator Janet Rice, because their support on LGBTI issues can usually be relied upon].
Senators Jacqui Lambie, Stirling Griff and Rex Patrick will play a significant role in determining what LGBTI law reforms can be achieved – and whether a Religious Pro-Discrimination Bill can be defeated.
One of the main lessons of the marriage equality campaign was the vital role of allies in achieving progress on LGBTI issues. This is equally important in terms of the push to protect LGBT students and teachers against discrimination and – if necessary – to fight against a Religious Pro-Discrimination Bill.
We have seen that the vast majority of Australians are already onside when it comes to protecting LGBT students against discrimination, with the immense public backlash against these exceptions when the Ruddock Review was leaked in October 2018 (and which prompted Morrison’s promise in the first place).
With regards to protecting LGBT teachers, we must work better together with education unions (including the Australian Education Union, and Independent Education Union). The same applies to building our relationship with the ACTU, and union movement more broadly, to remove all religious exceptions from employment law, including the Fair Work Act 2009 (Cth).
Thinking about the potential Religious Pro-Discrimination Bill, the legislation itself presents us with natural allies – because it is not just LGBTI Australians who would be subjected to discrimination as a result.
A Religious Pro-Discrimination Bill could also increase discrimination against women, especially in relation to their marital or relationship status, and their ability to access reproductive health services. Unmarried/single mothers are at particular risk (alongside divorced people generally). It’s time to build bridges between LGBTI and women’s organisations to respond to this common threat.
Finally, perhaps the most important allies we have in this struggle are good people of faith. We simply cannot afford to let this issue be defined as ‘god versus gays’, especially because the majority of religious people support the equality of their fellow citizens – as demonstrated through the same-sex marriage postal survey.
Instead, our enemies are religious fundamentalist groups, like the ACL and some established churches (the formal organisations – not the followers), and any individuals who are acting in bad faith to impose their religious beliefs on others, including demanding the ability to lawfully discriminate against LGBTI people. They are who we are fighting against, not ordinary Australians.
This means that throughout this debate, no matter how ugly it may become, we should strive to be respectful of people’s faith, or lack of faith, in the same way we are fighting for the right to be treated fairly, with decency and respect (some might even say at this point ‘Do unto others…’).
It may seem strange, given the current political environment in which we are operating and the threat of a Religious Pro-Discrimination Bill, to talk about opportunities for progress on LGBTI rights but there are several.
The first is for action to (finally) be taken to stop coercive and invasive surgeries and other medical interventions on intersex children. These human rights violations continue unabated, despite a bipartisan 2013 Senate Inquiry recommending that such surgeries and/or treatments be stopped.
In 2017-18, the Australian Human Rights Commission initiated a new project focusing on ‘Protecting the human rights of people born with variations in sex characteristics in the context of medical interventions’, with a final report expected shortly.
This will be an opportunity for non-intersex LGBT individuals and for LGBT/I organisations to support the work of groups like Intersex Human Rights Australia and their campaign to end these practices once and for all (noting that there is no right-wing, or left-wing, justification for such interventions, so there is no political rationale for the Government not to intervene).
The second opportunity is on ex-gay or ex-trans therapy, with the Morrison Liberal-National Government providing the following response to Equality Australia’s pre-election survey:
“As the Prime Minister has said, the Morrison Government does not support LGBTIQ+ conversion therapy. The use of conversion therapy has long been discredited with no scientific or medical evidence to support its use.
“The Morrison Government remains committed to addressing the mental health of all Australians, including the LGBTI community, and this also relates to opposition to gay conversion therapy. The Government will work with the states, which have legal responsibility in this area, to ensure such practices are not supported or occurring” [emphasis added].
We should take them at their word and seek to make urgent progress to end this psychological torture.
The other main opportunities lie at state and territory level. This includes the ongoing campaign to provide trans and gender diverse people with better access to appropriate identity documentation.
With Tasmania recently passing best practice laws that allow individuals to update their birth certificate on the basis of self-identification – without the need for surgery, other treatment or medical approval – we must pressure the seven other jurisdictions to quickly follow suit.
It also includes working towards reform of state and territory anti-discrimination laws. Because, while the Sex Discrimination Act 1984 allows discrimination against LGBT students and teachers under Commonwealth law, some states and territories have adopted preferable provisions.
For example, last year the ACT amended its Discrimination Act 1991 to protect both LGBT students and teachers in religious schools against discrimination. Queensland and the Northern Territory already protected LGBT students against discrimination, while once again Tasmania has best practice laws in this area (their Anti-Discrimination Act 1998 only allows religious organisations to discriminate on the basis of religious belief, and not on the basis of sexual orientation, gender identity or intersex variations of sex characteristics).
Given the vulnerability of LGBT kids in particular, there is no reason why we should not pressure state and territory governments to amend their own laws, even before the ALRC completes its report.
I have written about the threats we potentially face, as well as some of the uncertainty that now confronts us. But there is one thing that is absolutely sure: nothing will get better unless we act to make it better.
The Government won’t make changes on our behalf out of the kindness of its heart. Just like with countless LGBTI law reforms in the past, the only way to improve our situation – especially for vulnerable members of our community – is to get involved and collectively force them to do it.
This will be especially important if the Morrison Government decides to introduce a Religious Pro-Discrimination Bill. We will need all hands on deck, including people who (completely understandably) needed to take time away after the horrific experience that was the same-sex marriage postal survey.
And so I would conclude by encouraging you to join one or more of the many LGBTI advocacy organisations that will be fighting on our behalf in the coming months and years. This includes:
NSW Gay & Lesbian Rights Lobby
Victorian Gay & Lesbian Rights Lobby
A Gender Agenda
Intersex Human Rights Australia
Rainbow Families Victoria
(as well as plenty of others I have inadvertently omitted, including in the other states and territories).
You can also stay up to date with latest developments by following LGBTI Rights Australia on Facebook.
Finally, I will continue writing regular articles about the campaign to protect LGBT students and teachers in religious schools against discrimination, as well as key developments surrounding the Religious Anti- or Pro-Discrimination Bill. To receive these posts direct to your email, please sign up via the right-hand scroll bar on the desktop version of this blog, or near the bottom of the page on mobile. Thanks.