Letter to Dominic Perrottet re Mark Latham’s anti-trans kids Bill

The Hon Dominic Perrottet

Premier of NSW

Submitted online

20 February 2022

Dear Premier Perrottet

Please reject the Education Legislation Amendment (Parental Rights) 2020

I am writing to urge you to reject the One Nation Education Legislation Amendment (Parental Rights) Bill 2020 – otherwise known as Mark Latham’s anti-trans kids Bill.

All students in NSW deserve the opportunity learn and grow in a safe and welcoming school environment. That must include lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) students.

The Education Legislation Amendment (Parental Rights) Bill 2020 fails this fundamental principle. It fails LGBTIQ students generally, and trans and nonbinary students in particular, by making them feel invisible, and denying them the same support as other students.

This includes erasing trans and nonbinary students in classrooms and schoolyards across the state via the ban on any discussion of ‘gender fluidity’, which would prevent teachers, principals and counsellors from even acknowledging that trans and gender diverse people exist, and leave students who are already vulnerable feeling even more isolated and alone.

It includes a broader ban on positive references to diversity in sexual orientation and gender identity. This provision – modelled on the notorious ‘section 28’ which harmed a generation of LGBTQ students in the UK in the 1980s and 1990s – would have a chilling effect on all school staff, and would even stop school counsellors from being able to reassure a student struggling with their sexual orientation, by telling them who they are is perfectly normal.

And it includes the insertion of a new offensive and stigmatising definition of people born with intersex variations of sex characteristics in NSW law.

Unfortunately, this is legislation that would harm LGBTIQ children and young people rather than help them. It must be rejected.

I also call on you to reject the recommendations of the Parliamentary Inquiry into the Education Legislation Amendment Bill, through your Government’s response which is due by 7 March 2022.

That Inquiry was flawed from the very beginning, with One Nation Leader Mark Latham chairing the examination of his own legislation.

Nor did it hear from the communities who would be most at risk under the Bill: only one witness out of more than 40 who gave evidence was transgender, and none were current trans or nonbinary students.

Unsurprisingly, given this bias, the Committee’s recommendations would make the problems caused by the Bill worse, rather than better, including Recommendation 8 that would (among other things):

  • Ban trans students from using the bathroom that reflects their gender identity
  • Out trans students to non-supportive parents, even where this puts them in danger
  • Stop trans students from seeking confidential help from school counsellors, and
  • Out trans students to all of the parents of students in their year group.

These recommendations would only compound the harms caused by what was a deeply damaging and divisive Bill to begin with.

The Bill, and Inquiry recommendations, are in direct conflict with the message of unity which you emphasised when you first became Premier on 5 October 2021. You said:

‘Being Premier is a great honour, but I want to be clear that the job I have committed to today is not just to lead NSW, but to serve all the people of our state’ (emphasis added).[i]

Abandoning LGBTIQ children and young people, and especially trans and nonbinary students, would clearly not be serving all the people of NSW.

In those same comments that day, you also said:

‘The true strength of NSW is its people, our working mums and dads, business owners, frontline workers, teachers, workers, doctors, paramedics, firefighters, police, tradies’ (emphasis added).

If you genuinely support teachers, then you will oppose legislation that would place them in the most impossible of circumstances: having to choose between supporting the LGBTIQ students in their classes, or keeping their job.

This is because the Education Legislation Amendment (Parental Rights) Bill 2020 would lead to teachers who acknowledge trans and gender diverse people exist, or make positive references to diversity in sexual orientation and gender identity, having their registration cancelled and therefore being fired.

Any human would choose to support the real-life person in front of them, and to meet their real-life needs, rather than implement discriminatory legislation that is not motivated by the best interests of those students.

As a human, and as Premier, you have the opportunity to reject this legislation, and to remove the threat to teachers for simply doing what teachers do: teach the child in front of them, including making sure they have an inclusive environment in which to learn and grow.

I therefore reiterate my call to you to publicly, and unequivocally, reject the One Nation Education Legislation Amendment (Parental Rights) Bill 2020, and the recommendations of Mark Latham’s Committee which inquired into his own legislation.

In doing so, you would be living up to your words on the day you became Premier, and the message of unity you delivered to the state.

Above all, you would be sending a clear message to LGBTIQ children and young people generally, and to trans and nonbinary students in particular, that who they are is valued, and that they have a place in NSW.

Thank you in advance for considering this correspondence. Please do not hesitate to contact me at the details provided should you require additional information.

Sincerely

Alastair Lawrie

Footnotes:


[i] ‘Dominic Perrottet’s first full speech as leader’, Sydney Morning Herald, 5 October 2021, available here.

For more information on this subject, see: If you thought the Religious Discrimination Bill was bad, wait til you hear about Mark Latham’s anti-trans kids Bill.

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If you thought the Religious Discrimination Bill was bad, wait til you hear about Mark Latham’s anti-trans kids Bill

Last week, we had some rare good news: the Commonwealth Government’s Religious Discrimination Bill stalled in the Senate, and now seems unlikely to pass before the upcoming federal election.

That Bill would have legally protected religiously-motivated anti-LGBT speech in all areas of public life, and potentially overridden state and territory protections for LGBT teachers and other workers in religious schools in Victoria, Queensland, Tasmania and the ACT (among many other problems – for more detail, see: Why the Religious Discrimination Bill must be rejected (In 1,000 words or less)). 

The fact it has been stopped (at least for now), is obviously a welcome relief.

Unfortunately, that relief is short-lived, especially for LGBTIQ people in NSW, because the NSW Government’s response to the Parliamentary Inquiry into Mark Latham’s Education Legislation Amendment (Parental Rights) Bill 2020 – otherwise known as his anti-trans kids Bill – is expected at any point in the next three weeks, and must be delivered by March 7 (the Monday after Mardi Gras).

This legislation is actually worse than the Religious Discrimination Bill, in particular because it so specifically targets the most vulnerable members of our community. For those who aren’t familiar with it, allow me to explain its main features.

What’s in Mark Latham’s anti-trans kids Bill?

The primary purpose of Latham’s legislation is to erase trans and gender diverse children from classrooms and schoolyards across NSW. It does this by inserting the following definition into 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.

It then prohibits not just ‘the teaching of gender fluidity’ (proposed section 17A), but also any ‘instruction, counselling and advice provided by’ teachers, support staff, counsellors, principals, contractors, consultants and even volunteers at any school in the state, public or private (proposed section 17C).

The punishment for teachers who breach this prohibition is immediate de-registration (ie being fired).

In effect, the Bill would impose an official silence on anything to do with transgender people – even the fact that they exist. This includes everything from exclusion from the health and physical education syllabus, through to banning school counsellors from discussing gender identity with struggling students who are at risk of self-harm or suicide.

Trans and gender diverse kids would be made to feel invisible, with nowhere to turn to for help.

The Bill then *also* includes provisions to harm LGBTQ kids more generally. It does this by inserting a definition of matters of parental primacy:

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.

Before introducing a range of provisions to limit the teaching of anything to do with these issues. Chief among them is proposed section 17B:

Teaching to be non-ideological

In government schools, the education is to consist of strictly non-ideological instructions 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.

The impact of this provision is incredibly far-reaching. After all, if some parents believe homosexuality is sinful, then presumably it would be ideological for a school to teach that simply being lesbian, gay or bisexual is okay. As with the ban on the teaching of gender fluidity, this ban also applies in relation to school counsellors (who could not reassure a child struggling with their sexual orientation that who they are is normal).

The use of the phrase ‘advocating or promoting’ reveals this is simply Margaret Thatcher’s infamous section 28 – which harmed a generation of LGBT kids in the UK in the 1980s and 1990s – recycled on the other side of the world for the 2020s.

The outcome would be the same here – teachers and other workers too afraid to mention anything to do with sexual orientation or gender identity at the risk of de-registration, inflicting silence on LGBTQ kids where there should be support.

Finally, Latham’s Bill attacks the ‘I’ part of the LGBTIQ community by including an offensive and stigmatising reference to intersex in NSW law (as part of the definition of gender fluidity – ‘people who are, by their chromosomes, male or female but are born with disorders of sexual differentiation). The use of disorders here is exactly the type of harmful language which encourages the imposition of coercive surgeries and other unnecessary medical treatments on children born with variations of sex characteristics.

For more detail on the Bill, see I Stand With Trans Kids, and Against Mark Latham.

But it’s from Mark Latham. Why can’t we just ignore it?

For those (blissfully) unaware of Mark Latham’s current political status, the failed former federal leader of the Australian Labor Party is now the NSW leader of Pauline Hanson’s One Nation Party. In a normal political environment, fringe extremist legislation from a fringe extremist party could sometimes be ignored.

Sadly, the NSW Legislative Council removed this option when, in its infinite (lack of) wisdom, it decided to refer the Education Legislation Amendment (Parental Rights) Bill 2020 to the Education Portfolio Committee for inquiry – the same Committee chaired by… Mark Latham.

Given this, the inquiry process into Latham’s unbalanced and transphobic Bill was, well, unbalanced and transphobic.

In the two days of hearings last April, 42 witnesses were invited to give evidence. Only one (Teddy Cook, from ACON) was trans or gender diverse. None were trans or gender diverse students, the people whose right to a safe learning environment would be stripped away by passage of this law.

There were multiple instances of disrespectful treatment towards submitters who opposed the Bill (from Latham himself), while he encouraged other witnesses to give evidence about subject matter which was not included in the legislation (such as witnesses who focused on the exclusion of trans girls from bathrooms, and sporting activities).

Unsurprisingly, the entire committee process became a platform for some of the worst examples of transphobia we have seen in any Australian parliament in recent history, perhaps best summed up by this statement from Mark Sneddon of the Institute of Civil Society:

‘What we are trying to do – or what I understand the bill is trying to do – is to reduce the social contagion influence putting more people onto the conveyor belt of gender transition.’

Which, at the very least, is being honest: through this Bill, Latham is attempting to stop trans and nonbinary kids from being trans and nonbinary. Presumably because he thinks being those things is a negative in and of itself.

While the rest of us understand that:

  • Trans and nonbinary people are part of the natural spectrum of human gender identity
  • Trans and nonbinary kids are awesome, and
  • There are really two conveyor belts – one which lets trans and nonbinary kids be themselves and delivers them to health and happiness, and one which tells trans and nonbinary kids that they are wrong and should not exist, and causes them serious harm.

For more on the Inquiry process, see: Surprise!* Mark Latham’s Inquiry is just as unbalanced and transphobic as his Bill.

What did the Inquiry recommend?

Completely unsurprisingly, given the Committee’s lack of impartiality, the Final Report released in September 2021 endorsed core parts of Latham’s anti-trans kids Bill.

This includes Recommendation 2, which supported the section 28-style approach to denying information to lesbian, gay, bisexual and trans students:

That, in recognition of its obligations under the International Covenant on Civil and Political Rights, the NSW Government supports all parental primacy provisions and protections in the Education Legislation Amendment (Parental Rights Bill) 2020 including:

  • the statutory recognition of parental primacy in definition, object and principle within the Education Act 1990 and related statutes;
  • the requirement for teaching to be non-ideological;
  • the enhanced consultation requirements with parents; and
  • the right for parents to withdraw their children from teaching that is inconsistent with their core values and convictions.

And while there was a brief glimmer of hope when I first read Recommendation 7 (‘That the Legislative Council amend the Education Legislation Amendment (Parental Rights) Bill 2020 to remove the proposed legislative provisions concerning gender fluidity’), this was immediately undone by Recommendation 8, which starts:

‘That the NSW Government update Bulletin 55: Transgender Students in Schools based on the following principles:

  1. The Safe Schools program and Gayby Baby movie are prohibited in NSW Government schools. Gender fluidity is not part of the NSW school curriculum and therefore, should not be taught or promoted, either in classrooms, teacher professional development, by external consultants, special school activities or through the distribution of material to teachers or students. This prohibition also applies to the teaching of gender as a ‘social construct’.’

In practice, the Committee still endorsed the erasure of trans and gender diverse kids from classrooms and schoolyards, they simply thought it could best be achieved via Bulletin, not Bill.

But there are other parts of Recommendation 8 which are *far* worse, and would not be out of place in regressive and repressive, redneck Republican USA. This includes (but is definitely not limited to):

  • A ban on trans students using the bathroom that reflects their gender identity (Recommendation 8.9: ‘Other than in circumstances of a full medical gender transition,[i] students born biologically male shall not be allowed in female toilets, change rooms, dormitories and excursion accommodation; and vice versa for students born biologically female. Third options shall be made available for these students, such as administrative block toilets and change rooms’)
  • Outing trans students to non-supportive parents, even where this puts the student in danger (Recommendation 8.4: ‘No school or school staff can withhold information from parents about the gender or gender transition of a student at the school, other than by court order or acting with the advice of a government child protection agency’ and Recommendation 8.5: ‘No student has the right or capacity to stop the school telling their parents information about their gender, where the school is obliged to do so’)
  • Stopping trans students from seeking confidential help from school counsellors (Recommendation 8.11: ‘For students aged under 18 years, school counsellors should not involve themselves in questions of gender fluidity and transition without prior reference to parents and any medical professionals advising the student and parents on this matter. Parents have the right to know if gender fluidity and transition are being discussed at a school. School counsellors must liaise with parents and relevant medical professionals as much as possible’), and
  • Outing trans students to all of the parents of students in their year group (Recommendation 8.12: ‘If a student has changed their gender, their parents shall be consulted about the best way of communicating this to the school community. Parents of other children in the same year group should be notified of the change, allowing them to talk to their children in advance’).

The full Committee report, and other harmful parts of Recommendation 8, can be read here.

In short, the adoption of Recommendation 8 in full would cause significant harm for thousands of trans and nonbinary children and young people in NSW.

Which makes it disturbing to realise that not only was this recommendation (and all of the others, including implementing section 28) made by Committee Chair Mark Latham, they were endorsed by all three Coalition members of the Committee, as well as one of the two Labor Opposition members.

Only Labor MLC Anthony D’Adam and Greens MLC David Shoebridge stood up for trans and gender diverse kids against this harmful and hateful Bill.

So, what happens next?

What happens next comes down to the NSW Government, and in particular to new(ish) Premier Dominic Perrottet.

As I indicated in the introduction, they must respond to the Final Report of Mark Latham’s Committee’s Inquiry into Mark Latham’s anti-trans kids Bill by 7 March 2022 at the latest.

The simplest approach would be for Perrottet to reject both the Committee Report, and the Education Legislation Amendment (Parental Rights) Bill 2020, outright, and to instead stand up for the rights of all students – including all lesbian, gay, bisexual, trans and nonbinary, intersex and queer students – to a safe learning environment.

But that outcome is by no means guaranteed. There are obviously some members within the Government who support Latham’s agenda attacking trans and gender diverse kids (starting with the three MLCs on his Committee).

Indeed, the Liberal Party Parliamentary Secretary for Education, Kevin Conolly, expressed his personal support for the Latham anti-trans kids Bill in his response to my letter to NSW MPs this time last year, asking them to reject the Bill (my original letter is here: NSW MPs can be champions for trans and gender diverse kids. Or bullies while I published Conolly’s response here: NSW Liberal Parliamentary Secretary for Education Supports Bill to Erase Trans Kids).

It is therefore entirely possible that Premier Perrottet, and the NSW Government, endorse some parts, or even all, of Mark Latham’s Education Legislation Amendment (Parental Rights) Bill 2020 before Monday March 7.

We could also see them introduce their own legislation on this subject, similar to and possibly inspired by the Latham Bill, in the following weeks or months.

If that happens, then it will take a collective effort just as strong, and just as broad-based, as the campaign against the Religious Discrimination Bill to ensure it is defeated.

We will need to fight like lives depend on it. Because they will. The lives of some of the most vulnerable members of our community: trans and nonbinary kids.

*****

For LGBTIQ+ people, if this post has raised issues for you, please contact QLife on 1800 184 527, or via webchat: https://qlife.org.au/ (between 3pm and midnight, every day)

Or contact Lifeline Australia on 13 11 14.

All eyes will be on Education Minister Sarah Mitchell (front), and Premier Dominic Perrottet (back), in coming weeks as they announce the NSW Government’s response to Mark Latham’s Committee’s Inquiry into Mark Latham’s anti-trans kids Bill.

If you have enjoyed reading this post, you can sign up to receive updates about this and other issues from this blog, via the right-hand scroll bar on desktop, or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus

Footnotes:


[i] Noting that, for the vast majority of trans and gender diverse young people, they do not access what is referred to here as ‘full medical gender transition’ until they are 18.

5 things we learned from the Senate Hearings into the Religious Discrimination Bill

The Senate Legal and Constitutional Affairs Committee has been conducting an inquiry into the Religious Discrimination Bill 2021 over summer.

As part of that inquiry, it held two days of public hearings, on Thursday 20 and Friday 21 January, with a range of witnesses from religious organisations, civil society, business, legal groups, the Australian Human Rights Commission and Attorney-General’s Department.

Here are five things we learned from those hearings, ahead of the Committee’s final report, which is due to be tabled this afternoon (Friday 4 February), prior to debate on the Bill resuming in the House of Representatives next Tuesday (8 February).

  1. Citipointe’s conduct is not an outlier – in fact, it’s exactly the point

By now, most people will be familiar with the situation at Citipointe Christian College in Brisbane, which this time last week, issued a new enrolment contract seeking to discriminate against LGBT students generally, and trans and gender diverse students in particular.

What is also important to note is the way in which they sought to justify this discrimination. Clause 26 of their contract in particular tries to dress it up as discrimination on the basis of religious belief about gender identity, rather than on the basis of gender identity itself:

‘The Parents acknowledge and accept that, should I/we not share the College’s commitment to fostering these fundamental doctrinal precepts, this will constitute a serious departure from the religious precepts upon which Citipointe Christian College is based and will afford Citipointe Christian College the right to exclude a student from the College who no longer adheres to the College’s doctrinal precepts including those as to biological sex, which constitute an important tenet of the College’s Christian religion (emphasis added).’

Now, it is highly likely that Citipointe’s actions would be unlawful under the Queensland Anti-Discrimination Act 1991, not just because that legislation does not allow religious schools to discriminate against students on the basis of gender identity, at all, but also because neither does it allow them to discriminate against students on the basis of religious belief beyond the point of initial enrolment.

Therefore, even if the school was successful in arguing this was indeed discrimination on the ground of religious belief about gender identity, it still couldn’t lawfully discriminate against existing trans and gender diverse kids.

Unfortunately, the same safeguard does not exist in the Religious Discrimination Bill, which allows religious schools to discriminate against students on the basis of religious belief not just at the point of enrolment, but throughout their education.

And this right will exist, even if Liberal moderates are successful in amending the Sex Discrimination Act 1984 (Cth) to remove specific exceptions allowing religious schools to discriminate under that law.

Which means, if the Religious Discrimination Bill is passed in its current form, religious schools will continue to discriminate against LGBT students, ‘under the guise of religious views’, rather than sexual orientation and gender identity.

But the outcome will still be the same: LGBT kids mistreated because of who they are.

Above all, the attempted actions by Citipointe on this issue are not an outlier – in fact, multiple religious organisations at the Senate hearings told us this is what they would do.

For example, there was this exchange involving Mr Mark Spencer, Director of Public Policy, Christian Schools Australia:

Senator Andrew Bragg (Liberal): Finally – I’m just conscious of time – on the issue of children in schools, I understand that there was some discussion earlier about the different clauses that may or may not be considered by this parliament. My question is really more on the principle here, which is: do you want to have a right in the law to expel gay kids?

Mr Spencer: Again, you’re making a sweeping statement there that needs a bit more nuance. For a start, you talk about gay kids. Are you talking about same-sex attracted kids who might be committed to living a biblical authentic life? Are you talking about young people who may be, by their behaviour, not meeting the conduct standards of the school? There are a whole range of difference scenarios in there that you need to be unpacking and considering. The short answer is: no, no child has been, and no child do we want to sack simply because they might be same-sex attracted.

Senator Bragg: So your answer is no?

Mr Spencer: The answer is: no child do we want to expel simply because they’re same-sex attracted (emphasis added).

Translation: Christian Schools Australia reserve the right to discriminate against, and even expel, any gay student who is not ‘committed to living a biblical authentic life’. Which means affirming statements like ‘homosexuality is intrinsically disordered’, and pledging to be celibate for life.

In other words (or my words in fact): If a gay kid hates themself enough, they can stay. But if they do not believe who they are is inherently wrong, they can be lawfully mistreated.

Or this exchange with Right Reverend Dr Micheal Stead, Bishop of South Sydney, Anglican Church Diocese of Sydney:

Senator Bragg: I guess the question is: should you be allowed to discriminate against someone based on their sexual preference if they are teaching in accordance with the ethos of the school?

Bishop Stead: No – sorry, I may have misunderstood your question. None of the religious bodies are arguing for the right to discriminate on the basis of sexuality or gender. What we’re arguing for is the right to be able to discriminate on the basis of religious belief. If it happens that somebody’s religious belief also reflects their sexuality or their gender in a way which is inconsistent with the belief of the organisation-

Bishop Stead: Yes. The religious institutions are not seeking the right to discriminate on the basis of sexuality, gender or any of the other protected attributes-

Senator Deb O’Neill (ALP): Race, disability, age-

Bishop Stead: Thank you. They’re looking for the right to, in the wrong language, ‘discriminate on the basis of religion’. We would say ‘to preference on the basis of religion’ – to act in accordance with their religious belief. It’s only at the point at which somebody’s religious belief has changed to reflect their sexuality or gender that makes it inconsistent with the school that we’re into this area of intersectionality (emphasis added).

Again, they might say it’s discrimination on the basis of religious belief (or ‘preferencing’, to use their term), but it’s clear that in practice LGBT students and teachers will be the victims.

Or this exchange with Mrs Moira Deeming, Researcher, Church and Nation Committee, Presbyterian Church of Victoria:

Mrs Deeming: There are gay Christians and teachers – I am a teacher – who are Christians first and the way that they deal with whatever their sexuality feels like is expressed in a Christian manner. It’s about religious freedom and it’s about religious association. It’s not about finding out if someone is gay and cutting them out. It’s about working out: are you like minded with us? If you are like minded, join with us. Then there shouldn’t be an issue.

Senator Bragg: That wasn’t my question, but I know I am out of time. On notice, can you come back with exactly what your position is because, frankly, it’s a bit murky.

Mrs Deeming: Would you mind restating your question clearly just one more time?

Senator Bragg: The question is: do you want to be able to discriminate based on sexual orientation or preference in the hiring of your staff?

Mrs Deeming: That’s a corollary to preferencing based on religious belief. We’re not targeting anybody- (emphasis added)

All three witnesses appear to be saying: we reserve the right to discriminate against LGBT people, we’ll just call it discrimination on the basis of religious belief.

Which is exactly what Citipointe Christian College was trying to do with its contract. Fortunately, that was unlawful because of the much stronger anti-discrimination laws in Queensland.

But, discrimination protections for students and teachers under the Religious Discrimination Bill are much, much weaker, because of the excessive and extreme exceptions provided to religious organisations under this legislation, allowing them to lawfully discriminate.

As a result, there will be plenty more Citipointes around the country in future. And that’s not ‘murky’, it’s perfectly clear.

2. Workers from minority faiths are left unprotected by the Bill

The excessive and extreme religious exceptions contained in the Religious Discrimination Bill 2021 don’t just affect LGBT people.

In fact, one of the groups who stand to lose the most are workers from minority faiths. This is because large, usually-Christian, publicly-funded service delivery organisations – including hospitals, aged care facilities, accommodation providers and disability service providers – will be able to lawfully discriminate on the basis of religious belief in employment. 

That means hiring (and firing), and providing (or denying) training, promotion, and other benefits, on the basis of faith rather than ability. Workers who are Muslim, Jewish, Hindu, Buddhist, agnostic and atheist can be treated less favourably than Christians, just because of who they are.

But don’t take my word for it. Here’s Mr Surinder Jain, National Vice President of the Hindu Council of Australia, explaining the Bill’s impact on his community:

‘We have a lot of Hindus who work in aged-care services and disability services, predominantly being run by religious organisations. We have doctors working in private hospitals. We have IT people. Their jobs would be questionable. There is another category of people who are new migrants, who come here and who are desperately looking for a job and they find a job in a religious organisation. There is unsaid pressure on them that they should adapt to the religion of the organisation that they are in. This way the religious freedom [Bill] would actually be taking away their freedom of ideology and religion in declaring their faith and practising their faith and in not being pressured into adopting another faith.’

In short, the Religious Discrimination Bill privileges larger faiths at the expense of smaller ones, and especially employees of the latter.

3. A ‘mask off’ moment revealed what the statement of belief provision is really about

Through much of the hearings, and especially during the appearance by the Attorney-General’s Department on the Friday afternoon, defenders of the Bill attempted to downplay the impact of the unprecedented statement of belief override of all other Commonwealth, state and territory anti-discrimination laws that protects religiously-motivated comments that offend, humiliate, insult and ridicule others.

They tried to make it seem like it was all very reasonable, rather than an extraordinary legal privilege to allow people to make demeaning and derogatory comments about women, LGBT people, people with disability and people of minority faiths in all areas of public life.

Well, not all of them – one witness on the Thursday afternoon let the ‘reasonable’ mask slip, confirming the statement of belief provision will provide a platform for transphobia: Mrs Moira Deeming, Researcher, Church and Nation Committee of the Presbyterian Church of Victoria.

I’ll reproduce the relevant part of the transcript below, but for context, remember that Greens Senator Janet Rice’s late wife was a trans woman:

Senator Janet Rice (Greens): We’re talking about, particularly, clauses 11 and 12 of this bill and, particularly, the statements of belief. The Australian Human Rights Commission say that statements of belief that will be legal under this legislation, which will override state and territory legislation, are currently considered discrimination, and they will no longer be considered discrimination.

Mrs Deeming: Multipartisan support – let’s get a controversial statement. ‘Trans women are men’. Would you consider that, in and of itself, a discriminatory statement that should never be uttered?

Senator Rice: If that were being stated in a workplace to a trans woman, absolutely.

Senator Rice: Do you believe that’s not discrimination?

Mrs Deeming: I just think it’s a statement of belief, and I don’t think it’s necessarily a religious belief.

Senator Rice: And, if it’s offensive to that trans woman, you that it’s acceptable?

Mrs Deeming: I think-

Senator Rice: It’s deeply offensive and potentially causing that trans woman to have severe mental health illness… to not be accepted in their gender identity.

Chair: Senator Rice, I’m just going to ask you to pause here.

Senator Louise Pratt (ALP): But, in the same workplace, someone won’t have the right to call the person who said that a bigot.

Chair: Senator Pratt, I’m just going to ask you to pause as well. Senator Rice has put a question to Mrs Deeming. Mrs Deeming, please answer the question. I don’t want any witness being interrupted, please.

Mrs Deeming: I pose that question because it’s obviously the most controversial one at the moment. It’s not specifically a religious view that biological sex cannot be altered. It’s not. There are many, many people – lesbians, in fact, and homosexual men and people from across the political spectrum, people in every single party here – that would agree with the statement that trans women are, by definition, male. They wouldn’t be making it on the basis of hate. What I’m interested her is finding out whether you’re going to try and take statements like that and class them as inherently harmful, where no offence was intended. It’s just a difference of belief. It’s a belief we don’t subscribe to.

Senator Rice: A difference of belief?… In that sort of instance, in a workplace, if that statement has been given to a young person who is attempting to affirm their gender, it leads to severe mental unwellness and severe impact on them – not being able to affirm their gender. It leads to suicidal ideation. It leads to potential suicide. That is the reality for trans and gender diverse people. So I put it to you that that is, in and of itself, a discriminatory and hateful statement if it is being made to those people.

Mrs Deeming: And I put it to you that it is psychologically abusive to coerce students and other people to say things that they do not believe, especially about the nature of biological-

*****

There’s a lot to take in there obviously, but some things stand out:

  • Deeming pro-actively chose to raise the statement ‘trans women are men’ – during an exchange with a Senator whose late wife was a trans woman
  • She argued that it’s ‘just a statement of belief’, and therefore should be legally protected
  • She did not agree with Rice’s comments about the harm caused by such statements to trans and gender diverse people
  • Instead, Deeming claimed it is ‘psychologically abusive’ to require students and other people to effectively treat trans and gender diverse people with respect.

In this exchange, Deeming confirmed that the statement of belief provision is not about providing protection for people who simply state ‘marriage is between a man and a woman’ – it is instead really about allowing people to make deeply transphobic comments to others, even to fellow employees in the workplace who are simply trying to do their job.

4. ‘The limit does not exist’ to the religious freedom agenda

There was another development over the course of the hearings which reveals a helluva lot about the ever-growing demands of the ‘religious freedom’ movement – and how it will continue to strip away the rights of others, with little care for the consequences it creates.

This relates to proposals to redraft clause 12 of the Bill – which is the ‘statement of belief’ provision – ostensibly to ensure it is constitutional. These changes were put forward by Professor Nicholas Aroney, who had previously served as a member of the Ruddock Religious Freedom Review (which helped to create the mess we are now in).

Anyway, from Mr Aroney’s submission to the Committee:

‘To maintain this policy objective while addressing any doubts about the effectiveness of clause 12 under section 109 of the Constitution it would be sufficient to amend the clause so that it reads:

(1) A statement of belief, in and of itself, does not constitute discrimination for the purposes of this Act.

(2) Notwithstanding any of the following State of Territory laws, it is not unlawful to make a statement of belief, in and of itself:’

The redrafted amendment then lists all four of the Commonwealth anti-discrimination Acts (Racial, Sex, Disability and Age), and each of the primary state and territory anti-discrimination laws (such as the NSW Anti-Discrimination Act 1977).

Now, I am not a constitutional lawyer, so I can’t tell you whether it has made the provision more, or less, constitutional.

However, I am an expert on the Religious Discrimination Bill and I can tell you that with this drafting Mr Aroney has made sure the ‘statement of belief’ clause would explicitly override section 18C of the Racial Discrimination Act 1975 (Cth).

As well as all state and territory anti-vilification provisions found in their primary Acts (like the prohibitions on racial, homosexual, transgender and HIV/AIDS vilification in the NSW Anti-Discrimination Act 1977).

This is because his version of clause 12 overrides all parts of these laws (by using the general phrase ‘it is not unlawful’), whereas even the current version of the Religious Discrimination Bill applies to discrimination only (it uses the phrase ‘does not constitute discrimination’ instead).

I can’t speak for Mr Aroney, so I don’t know whether this drafting is deliberate – and he meant to ensure religiously-motivated comments that breach laws like s18C should be protected – or whether it is simply careless.

But even if it was the latter, I think it is symptomatic of the overall ‘religious freedom’ agenda – and that is it is only ever concerned with securing more, and more, and more, rights for religious fundamentalists, like the right to be a bigot towards women, LGBT people, people with disability and people of minority faiths.

And rarely, if ever, do religious freedom advocates bother to step back to consider what is being stripped away from other groups in society. Such as, in this instance, racial minorities.

My view is reinforced by the fact, on Thursday 20 January, multiple witnesses, from a variety of different religious organisations, were asked whether they supported Mr Aroney’s changes. Those that offered their support for his drafting include:

  • Mr John Steenhof, Principal Lawyer, Human Rights Law Alliance
  • Mr Mark Sneddon, Executive Director, Institute for Civil Society
  • Professor Patrick Parkinson, Director, Freedom for Faith
  • Right Reverend Dr Michael Stead, Bishop of South Sydney, Anglican Church Diocese of Sydney
  • Reverend Christopher Duke, Convener, Church and Nation Committee, Presbyterian Church of Victoria
  • Pastor Michael Worker, General Secretary and Director, Public Affairs and Religious Liberty, Seventh-day Adventist Church in Australia, and
  • Pastor Mark Llewellyn Edwards, Australian Christian Churches.

Again, I have no idea if they each consciously support overriding s18C of the Racial Discrimination Act 1975 (Cth), and other state and territory anti-vilification laws. But they absolutely supported amendments that have this practical effect. And at the very least it seems nobody even stopped to think about who was going to lose out as a result.

That is the insatiable religious freedom agenda in action. And you had best believe that, even if the Religious Discrimination Bill is passed, it will not stop eating away at the rights of others to live their lives free from discrimination.

5. Government Senators still haven’t grasped the full dangers of the Religious Discrimination Bill

It is fair to describe the Religious Discrimination Bills as complex, particularly because it contains a number of unique provisions that do things no other Australian anti-discrimination law has ever done before (like clauses 11 and 12, which specifically override, and undermine, anti-discrimination protections in other jurisdictions).

Nevertheless, it was disheartening when, on the final afternoon of two Senate hearings – which followed another three days of hearings into the Bill by the Joint Committee on Human Rights – the Chair of the Committee (Senator Sarah Henderson), was involved in the following exchanges, demonstrating she still hadn’t fully understood one of the Bill’s main problems:

Chair: Do you have to believe that it’s part of the doctrines and tenets of that religion? There has got to be a factual basis for that. You can’t just subjectively believe that.

Mr Walter [from the Attorney-General’s Department]: It’s a test of whether the individual believes it or not…

Chair: Does it have to be genuinely held in relation to you’ve got to factually be able to demonstrate that what you hold as your genuine belief reflect the doctrines and tenets of that religion? Your so-called relationship with God can’t be separated from, or not connected with, the doctrines and tenets of that religion. In other words, you can’t just make something up.

Senator Rice: You can. If you genuinely believe that your religion says so, you can.

Chair: That’s what I’m seeking to clarify. There’s been a genuine concern that many have expressed during these two days of hearings.

Mr Walter: Yes. What it doesn’t do is it doesn’t apply an objective text of saying, for example, ‘I believe X’…

Chair: Just to give you an example, could someone who is pro-euthanasia and has made some comments in relation to that issue genuinely consider that such a position is in accordance with the doctrines and tenets of Catholicism, for instance? The concern is that when you start to rely on the individual’s-

Senator Rice: It’s how it’s drafted.

Chair: genuine belief, which might not be connected in any way with the doctrine or tenet of that particular religion, isn’t there an issue with an objective test not applying?

Mr Walter: In that particular example, in theory, yes. However, that person needs to establish that they genuinely believe that. You’re going to be looking for a pattern of evidence that they’ve held that belief for a long time or they’ve expressed it in many ways-

Chair: Surely that doesn’t make sense, because that’s not consistent with the Catholic doctrine. How can they genuinely believe that that’s part of a tenet of that faith when it clearly, on its face, does not accord with the doctrines or tenets of Catholicism? How could that-

Senator O’Neill (ALP): That’s before we get to the religions that are new and don’t have such a body of evidence.

Senator Rice: Exactly.

Chair: That’s what makes this very complicated. Is there not a difficulty because there’s not an objective text; it’s a subjective test?

*****

At the very end, Senator Henderson was finally at least starting to ask the right question – because yes, there is a massive difficulty in that the definition of statement of belief is entirely subjective (with clause 5 of the Bill stating that only the person making the statement needs to ‘genuinely consider’ it to be in accordance with the religion).

That’s why this provision will protect an almost unlimited array of fringe beliefs – including white supremacist speech, as long as the person making it ‘genuinely considers’ it relates to their particularly-warped views of Christianity. It would not matter if every single church in Australia disagreed with them.

And the Attorney-General’s Department’s response – You’re going to be looking for a pattern of evidence that they’ve held that belief for a long time or they’ve expressed it in many ways – only makes things worse.

Apparently, if you can show you’ve made white supremacist comments, dressed up as religious belief, many times before, then it makes it more likely your comments will be protected from discrimination claims under Commonwealth, state and territory law.

The statement of belief provision is a mess. The whole Religious Discrimination Bill is a mess. And it must be rejected.

Conclusion

The above are just five of the issues which arose during the two days of hearings by the Senate Legal and Constitutional Affairs Committee into the Religious Discrimination Bill. There were many more I could have chosen to highlight here.

Despite this, based on media reports this morning, it seems likely that both Liberal and Labor Senators will recommend that the legislation be passed.

Which gives us just a matter of days to help stop this extreme, radical and unprecedented assault on the human rights of everyday Australians.

The best thing you can do at this point is to:

And if you need any further convincing of why this legislation should be defeated, try this: Why the Religious Discrimination Bill must be rejected (in 1,000 words or less).

The Religious Discrimination Bill might have been introduced by PM Scott Morrison, but it is just as big a test for Opposition Leader Anthony Albanese: will he support legislation that takes away rights from women, LGBT people, people with disability and people from minority faiths?

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

[NB This article is written in a personal capacity and does not represent the views of employers, past or present.]

Why the Religious Discrimination Bill must be rejected (in 1000 words or less)

The Morrison Government’s Religious Discrimination Bill is a serious threat to the rights of women, LGBT people, people with disability, people of minority faiths and many other Australians.

However, because anti-discrimination law is already highly technical, and the proposed Bill is both incredibly complex, and contains a range of provisions that are completely unprecedented, it can be difficult to understand exactly what is at stake.

The following, then, is my attempt to explain the major problems contained in the Religious Discrimination Bill in 1000 words or less:

*****

The statement of belief’ provision protects offensive, humiliating, insulting and ridiculing comments against women, LGBT people, people with disability, people of minority faiths and others on the basis of who they are.

It does this by taking away existing protections against discrimination under all Commonwealth, state and territory anti-discrimination laws, including targeting the best practice provisions of Tasmania’s Anti-Discrimination Act.

As long as they are motivated by religious belief, people will be empowered to make demeaning and derogatory comments in all areas of public life: in workplaces, schools and universities, hospitals, aged care, public transport, cafes, restaurants and shops. Everywhere.

And because the definition of statement of belief depends only on the subjective interpretation of the person making them, it protects fringe or radical views, including religiously-motivated anti-Semitism, Islamophobia and even racism.

By overriding all other anti-discrimination laws, the ‘statement of belief’ provision also denies access to justice to victims of discrimination.

This is because it effectively introduces a Commonwealth ‘defence’ to state laws, meaning state tribunals – which hear the majority of anti-discrimination cases – will be unable to resolve complaints where this issue is raised.

These cases will instead need to be heard by state supreme courts, or federal courts, at massively-increased costs to complainants.

The groups most likely to experience religiously-motivated discrimination – women, LGBT people, people with disability and people of minority faiths – will lose the most.

The ‘statement of belief’ provision also grants extraordinary powers to the Commonwealth Attorney-General to take away existing rights in other areas, by ‘prescribing’ additional laws that will be undermined.

Laws that are at risk include:

  • ‘Safe access zone’ protections covering pregnant people seeking lawful terminations
  • Bans on sexual orientation and gender identity conversion practices, and even
  • Section 18C of the Racial Discrimination Act, which prohibits racial vilification.

The ‘religious exceptions’ in the proposed Bill are just as dangerous.

While many anti-discrimination laws contain ‘religious exceptions’, the special privileges allowing religious organisations to discriminate under the Religious Discrimination Bill are far broader than any other Commonwealth, state or territory anti-discrimination law.

This is both because it adopts a much more lenient test than other laws to determine when this discrimination is permitted (only requiring that one other person of the same religion could reasonably consider the discrimination to be justified).

And because it applies to a much wider range of organisations than other laws, covering charities, hospitals, aged care facilities, accommodation providers, disability service providers, camps and conference sites and even religious organisations undertaking some commercial activities.

Unlike the Sex Discrimination Act and similar laws, the Bill does not require these bodies to have been ‘established for religious purposes’, imposing the much easier test of ‘conducted in accordance with’ religious beliefs.

The people who stand to lose most from these exceptions are Muslim, Jewish, Buddhist, Hindu, agnostic and atheist workers denied jobs, promotions and training they are qualified for simply because of their religious beliefs (or lack thereof).

These exceptions also apply to ‘religious educational institutions’, covering everything from child-care and early learning centres, through to schools, colleges and universities.

However, unlike best practice provisions in Tasmania, Queensland, the ACT and NT which limit these exceptions to enrolment only, the proposed Bill permits discrimination against students on the basis of religious belief throughout their education.

In this way, the Religious Discrimination Bill allows discrimination against children and young people, denying them their religious freedom to question, explore and develop their own faith as they learn and grow, without fear of punishment.

The same provisions could also be used by religious schools to discriminate against LGBT kids, not on the basis of their sexual orientation or gender identity itself, but on whether they affirm statements like ‘homosexuality is intrinsically disordered’ or ‘God created man and woman, therefore being transgender is sinful’. The outcome would nevertheless be the same: LGBT kids being mistreated because of who they are.

This means that, even if the Morrison Government finally implements its promise to amend the Sex Discrimination Act to protect LGBT students, religious schools could still discriminate against them via alternative means.

The Bill also allows discrimination against teachers and other employees of religious educational institutionsmeaning they can be hired and fired on the basis of their faith, not their skills.

In addition, it grants extraordinary powers to the Commonwealth Attorney-General, allowing them to take away existing rights from teachers under state and territory anti-discrimination laws.

This includes recently-passed laws in Victoria which only permit discrimination where it is an inherent requirement of the role, and ‘reasonable and proportionate in the circumstances’, as well as similar laws in operation in Queensland for two decades, and in Tasmania and the ACT.

As with students, these provisions could also provide an alternative means to permit discrimination against LGBT workers ‘under the guise of religious views’. LGBT teachers and other staff are potentially at risk in Victoria, Queensland, Tasmania and the ACT.

Finally, the Bill includes a range of other significant problems:

  • Removing the ability of qualifying bodies to take appropriate action about harmful ‘statements of belief’ made by professionals outside the workplace (for example, protecting repeated homophobic and transphobic comments by a doctor in a small town, even where this makes it unsafe for LGBT people to access essential healthcare)
  • Providing an unprecedented ability for religious organisations to make discrimination complaints in their own right, including allowing faith bodies to take legal action to prevent Commonwealth, state and territory governments from requiring organisations that receive public funding not to discriminate against LGBT people
  • Preventing local governments from passing by-laws to address harmful anti-LGBT ‘street preachers’
  • Introducing a totally unnecessary amendment to the Charities Act to ‘protect’ charities advocating a ‘traditional view of marriage’ (and those charities only), and
  • Expanding ‘religious exceptions’ in the Marriage Act to allow religious educational institutions to deny the use of their facilities for LGBTI-inclusive weddings, even where these facilities are offered to the public on a commercial basis.

Overall, the Religious Discrimination Bill promotes rather than prohibits discrimination. It must be blocked.

(999 words)

*****

The above summary does not even cover all of the many problems created by the Religious Discrimination Bill. If you would like to know more of the technical details, I encourage you to read the public submissions made by:

  • the Public Interest Advocacy Centrehere;

and

  • the Australian Discrimination Law Experts Grouphere

to the two Parliamentary committees (Joint Committee on Human Rights, and Senate Committee on Legal and Constitutional Affairs) which have been holding inquiries into this legislation over summer.

Both Committees are due to table their final reports to Parliament on Friday 4 February, meaning the Religious Discrimination Bill could be debated, and passed, in the sitting weeks beginning on Tuesday 8 February.

There is, however, still time to stop this extraordinary and extreme, radical and unprecedented – and downright dangerous – law, but only if you make your opposition to it known right now.

There are a number of actions you can take, today:

  • Contact the following list of moderate and/or lesbian and gay Liberal MPs and Senators, expressing your serious concerns about the Bill and asking them to cross the floor to protect the rights of all Australians (using their contact details from Parliament House):
    • Angie Bell (Member for Moncrieff)
    • Dave Sharma (Wentworth)
    • Katie Allen (Higgins)
    • Fiona Martin (Reid)
    • Trevor Evans (Brisbane)
    • Tim Wilson (Goldstein)
    • Trent Zimmerman (North Sydney)
    • Warren Entsch (Leichhardt)
    • Bridget Archer (Bass)
    • Andrew Bragg (Senator for New South Wales)
    • Richard Colbeck (Senator for Tasmania), and
    • Dean Smith (Senator for Western Australia).

Together, we can ensure the Religious Discrimination Bill is rejected, for the benefit of women, LGBT people, people with disability, people of minority faiths and many, many other Australians whose rights would be at risk if this divisive law was allowed to pass.

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

[NB This article is written in a personal capacity and does not represent the views of employers, past or present.]

LGBT kids don’t need more hollow promises

On Thursday, it was reported that Attorney-General Michaelia Cash has written to the Australian Law Reform Commission, asking for ‘detailed drafting’ to protect LGBT children from discrimination in faith-based schools.  

‘It is … the government’s position that no child should be suspended or expelled from school on the basis of their sexuality or gender identity,’ wrote Cash.

There are at least six reasons why this seemingly positive expression of support for LGBT kids is a bitterly disappointing statement of hollow nothingness.

First, we’ve heard this all before.  On 11 October 2018 the Prime Minister, Scott Morrison, stated unequivocally: ‘We do not think that children should be discriminated against’. He promised to amend the Sex Discrimination Act to protect LGBT students in religious schools against discrimination before the end of that year.

That was more than 3 years ago. 1,137 days to be exact (and yes, I’m counting). In that time, the Morrison Government has failed to do anything concrete to implement its promise.

Second, the Attorney-General was writing to ask the ALRC to do what it was already tasked to do by her predecessor, Christian Porter, back in April 2019. His original terms of reference requested the Commission to review religious exemptions, ‘having regard to… the importance of protecting the rights of all people, and children in particular, to be free from discrimination in education.’

More than 30 months later, the new Attorney-General is trying to spin a request for ‘detailed drafting’ as being something new. Exactly how that varies from ordinary ALRC recommendations is a distinction without a difference.

Third, we don’t need ‘detailed drafting’. We know how to protect LGBT students in religious schools against discrimination.  Four jurisdictions – Queensland, Tasmania, the ACT and NT – have already done so. Tasmania has been protecting LGBT kids, successfully, for more than 23 years. The amendments required are simple. There’s no need to reinvent the wheel.

Fourth, there’s not even a need to invent a new Bill. In response to the Prime Minister’s promise to protect LGBT kids in October 2018, the Labor Opposition introduced their own legislation the following month (the Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018). The schedule of substantive amendments came to a grand total of 70 words.

If the ALRC reports in 2023, and the Government finally takes action that same year (both of which remain big ifs), it could end up taking them 5 years to draft 70 words. At just over one word per month, they’re certainly pacing themselves.

Fifth, we can see from the time and energy expended on the Religious Discrimination Bill where the Government’s real priorities lie. 

We’ve already gone through two rounds of public exposure drafts on the ‘religious freedom’ Bills package (which actually comprises three separate Bills). We’ve had 157 pages of draft legislation, before we even get to the third and final version(s) next week.

The drafting effort that has gone into the Religious Discrimination Bill demonstrates what happens when a Government wants to get something done. The comparative lack of effort in drafting straight-forward amendments to protect LGBT kids reveals what happens when they don’t.

Sixth, based on Senator Cash’s correspondence, it’s not even clear whether the Government supports ending all discrimination against LGBT students, or only removing the ability of religious schools to suspend or expel them. If it’s just the latter, then other forms of mistreatment would continue to be permitted, and the harm they experience will go on.

A child who was in Year 7 when the Prime Minister first promised to protect them from discrimination is on track to finish high school before he keeps that promise. That’s an entire generation of LGBT kids abandoned because they’re not considered a priority by their own Government.

LGBT kids don’t need more ‘detailed drafting’. They need action. What do we have instead? The Attorney-General sending the emptiest of gestures to the Australian Law Reform Commission, asking them to do something they’ve already been tasked to do.

It is a fig-leaf trying to cover up years of the Morrison Government’s inaction. But nothing can hide their lack of care about this issue. Because if they cared, it would have been fixed years ago.

The tragedy of it all is that, for as long as the Government prevaricates and obfuscates, vulnerable children are left exposed to abuse and mistreatment, discrimination, suspension and even expulsion, just because of who they are.

LGBT students deserve the right to learn in safety. Instead, Commonwealth anti-discrimination laws grant religious schools extraordinary special privileges to discriminate against them.

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

It’s time Scott Morrison stopped running away from his promise to LGBT kids

Today marks an unhappy milestone for LGBT Australians: 1,000 days since Scott Morrison first committed to ending discrimination against LGBT students by religious schools, saying ‘We do not think that children should be discriminated against.’

It was a promise made amidst the significant backlash following the leaking of the Religious Freedom Review recommendations, from a public who were surprised to learn taxpayer-funded faith schools could mistreat, and even expel, kids just because of who they are. And it was made in the middle of the Wentworth by-election campaign.

In committing to remove these special privileges before the end of 2018, Morrison said what he needed to say to get himself out of a tricky political situation. But he never did what was needed to be done to ensure LGBT students were finally protected under the Sex Discrimination Act.

Instead, Morrison has been running away from his promise ever since. If only he ran the national vaccine rollout as quickly, maybe I wouldn’t be writing this from lockdown.

Morrison never even introduced amendments to Parliament to give effect to his commitment, let alone tried to pass them. And refused to support Labor legislation which would have achieved the same goal.

By April 2019 – on the day before the writs were issued for the federal election – Morrison’s then-Attorney-General Christian Porter referred the broader issue of ‘religious exceptions’ to anti-discrimination law to the Australian Law Reform Commission (ALRC) for review.

After his re-election, Morrison preferred to prioritise granting even more special privileges to religious organisations through the ‘Religious Freedom Bills’, and put the fate of LGBT students on hold. Literally. In March 2020, Porter amended the ALRC reporting deadline to be ’12 months from the date the Religious Discrimination Bill is passed by Parliament.’

With the Religious Discrimination Bill delayed by the pandemic, the earliest it could be passed is the end of 2021, meaning the ALRC won’t report until at least late 2022.

And, of course, given the serious problems of the first two exposure draft Religious Discrimination Bills – including undermining inclusive workplaces and access to healthcare – there are many who will be trying to stop it from passing (myself included).

Either way, based on current ALRC timelines, and assuming both that Morrison wins re-election and still feels bound by a promise first made in October 2018, he will not even start drafting legislation until 2023. LGBT students in religious schools would not be protected against discrimination until 2024. At the earliest.

Put another way, LGBT students in year 7 when Scott Morrison first promised to protect them will have finished school before he finally gets around to doing it. If he ever does.

Today might mark 1,000 days since Morrison’s broken promise, but I am more concerned about a larger number: the thousands, and perhaps even tens of thousands, of LGBT students who have been, and are still being, harmed because of his inaction.

For many, that harm will be long-lasting, scarring them far beyond the school gates. I know, because that’s what happened to me.

Not only was my religious boarding school in 1990s Queensland deeply homophobic, from rules targeting same-sex students to a pastor implying gay kids should kill themselves, it helped create a toxic environment which encouraged verbal, and physical, abuse by students against any kid who exhibited any kind of difference. I suffered both.

Like Scott Morrison, I attempted to run away; I spent more than a decade trying to outrun the depression caused by those experiences. But it eventually caught up to me, and age 29 I almost succeeded in what that pastor had hinted I should do.

I was extremely lucky to survive, and even luckier that, with self-care, plenty of support and the love of a good man, I finally managed to thrive.

But whether LGBT kids are able to survive their childhoods should not be a matter of chance. Every LGBT student, in every school, deserves the right to thrive.

As dark as my story is, there is also hope. Because in 2002, the Queensland Government amended their Anti-Discrimination Act to remove the ability of religious schools to discriminate against LGBT students. And I am reliably informed, by multiple sources, that my boarding school is now vastly more accepting of diversity of sexual orientation.

All it takes is a commitment to actions, not just words. Indeed, the ACT Government also responded to the 2018 Religious Freedom Review with a promise to protect LGBT students, and teachers, in religious schools – something they passed before the end of that year.

In contrast, Prime Minister Morrison is still running. Running away from his October 2018 promise. And running away from his obligation to ensure all students have the right to learn in a safe environment. It’s time Morrison stopped running, and allowed LGBT kids to thrive.

*****

Take Action

It is clear from the history of this issue that Prime Minister Morrison 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

Facebook: https://www.facebook.com/scottmorrison4cook

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

Don’t forget to add a personal comment explaining why this issue is important to you.

Oh, and just in case Opposition Leader Anthony Albanese feels like he can avoid this issue, we also need the ALP to be much clearer on where it stands. In particular, we should be asking ‘Albo’:

  • Do you publicly commit to protecting LGBT students in religious schools against discrimination on the basis of who they are? and
  • Will you pass legislation giving effect to this commitment in the first six months of your term if you win the next federal election?

Anthony Albanese’s contact details include:

Twitter: https://twitter.com/AlboMP

Facebook: https://www.facebook.com/AlboMP

Email: A.Albanese.MP@aph.gov.au

Mail: The Hon Anthony Albanese MP PO Box 6022 House of Representatives Parliament House Canberra ACT 2600

Telephone (Parliament House Office): (02) 6277 4022

So, readers, it’s time to get writing/calling. Thanks in advance for standing up for LGBT kids.

*****

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 with Member for Wentworth, Dave Sharma]. Morrison first committed to protecting LGBT students in religious schools against discrimination during the October 2018 Wentworth by-election – a promise he has been running away from ever since.

Finally, if you have appreciated reading this article, please consider subscribing to receive future posts, via the right-hand scroll bar on the desktop version of this blog or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus

A Pride Flag for NSW

Today (26 March 2021) marks exactly ten years since the election of the NSW Liberal/National Government.

In that decade, and especially in their early years, they have passed a few important LGBT law reforms, including the long-overdue abolition of the homosexual advance defence (or ‘gay panic’ defence) in 2014 and establishing a scheme to expunge historical criminal records for same-sex intercourse in the same year.

However, the pace of reform has slowed markedly in recent times. The last new LGBTI laws were both passed in 2018, with the removal of ‘forced trans divorce’ (although this was necessitated by the passage of marriage equality in Commonwealth law, while NSW failed to seize the opportunity to amend identity laws more generally) and the introduction of an offence for publicly threatening or inciting violence against others, including on the basis of sexual orientation, gender identity and intersex status (although it replaced existing criminal vilification offences on the basis of homosexuality and transgender status, and as far as I am aware has not been enforced since it commenced).

Indeed, with this week also marking the halfway point of the Liberal/National Government’s third term, there have been no new laws passed addressing LGBTI issues since then, and none appear to be on the horizon.

This is not because the job of LGBTI law reform in NSW is complete. Far from it. As I have written previously, NSW now has the worst LGBT laws in Australia, and is only saved from that title with respect to intersex issues because some other jurisdictions are similarly appalling.

At least part of the problem is that many people, both inside and especially outside our communities, erroneously believe the struggle is over. Which is where my idea for a pride flag for NSW comes in.

From my perspective, the pride flag is inherently political. A symbol of our strength and resilience in overcoming anti-LGBTI prejudice and abuse, as well as a reminder to continue fighting until all lesbian, gay, bisexual, transgender and intersex people are truly ‘free and equal’.

With that in mind, here is what I think the six colours of the ‘traditional’ pride flag[i] could stand for in NSW today, as a way of bringing attention to at least some of the essential reforms which are still yet to be won here.

Red: Ban conversion practices

Anti-gay and anti-trans conversion practices (sometimes described as ‘ex-gay’ or ‘ex-trans’ therapy) continue in Australia today. Several jurisdictions have already taken steps to ban these practices, with general prohibitions, including in religious environments, now law in Victoria and the ACT, and a more limited ban, only covering health settings, in Queensland. Other states, including Tasmania, are actively considering their own legislation.

To date, the Berejiklian Liberal/National Government has given no firm indication they are considering laws to outlaw these destructive practices. They need to be pressured into taking urgent action to stop them.

Amber/Orange: Protect LGBT students & teachers

By now, we are all familiar with ‘amber alerts’ in the media to draw attention to vulnerable children in danger. Well, every day in NSW there should be an amber alert for LGBT kids – because, in 2021, religious schools are still legally permitted to discriminate against them on the basis of their sexual orientation and/or gender identity.

That is in part because of Scott Morrison’s broken promise from 2018 to amend the Sex Discrimination Act 1984(Cth) to remove the special privileges allowing religious schools to abuse, mistreat, suspend or even expel students just because of who they are.

But it is also because the Berejiklian Liberal/National Government refuses to repeal the special privileges contained in its own law, the Anti-Discrimination Act 1977 (NSW). Indeed, the exceptions in NSW are actually worse, because they permit all private schools, colleges and universities to discriminate, not just those that are religious (making NSW the only jurisdiction in Australia to do so).

Of course, LGBT students are not the only victims of such discrimination. The same provisions also allow private educational authorities to discriminate against LGBT teachers.

If we genuinely want our schools to be safe learning environments where all people are encouraged to reach their full potential, then the NSW Government must protect both LGBT students and teachers from discrimination.

Yellow: End coercive intersex surgeries

As I have written elsewhere, the worst human rights abuses currently affecting any part of the Australian LGBTI community are coercive medical treatments, including surgeries and other interventions, on children born with intersex variations of sex characteristics.

These egregious human rights violations carry lifelong consequences which is why they must be deferred until intersex people can consent, or not consent, to them. Some jurisdictions, including Tasmania and the ACT, appear to be moving in that direction. As yet, there is no sign of similar progress in NSW.

[NB The yellow comes from the intersex pride flag, which is yellow and purple.]

Green: Improve birth certificate access

NSW now has the equal worst birth certificate laws in Australia, alongside Queensland. 

Under the Births, Deaths and Marriages Registration Act 1995 (NSW), trans and gender diverse people must undergo ‘a surgical procedure involving the alteration of a person’s reproductive organs… for the purpose of assisting a person to be considered a member of the opposite sex’ before being allowed to update their birth certificate to reflect their gender identity.

This requirement is both unnecessary and inappropriate, especially when some people may not wish to undergo such surgeries, while others cannot afford to do so given the prohibitive costs involved.

NSW has fallen behind the majority of other Australian jurisdictions which have updated their birth certificate laws to allow access based on self-identification only (which is best practice), or at least without physical medical interventions. It is time the Government gave the green light to trans and gender diverse people here to access birth certificates without any medical gate-keeping.

Blue[ii]: Trans discrimination law reform

Trans and gender diverse people in NSW are also let down by confusing and outdated anti-discrimination protections, as amply demonstrated by the controversy surrounding discriminatory efforts to prevent trans women who have not undergone surgery from accessing McIver’s Ladies Baths in Coogee.

On one hand, there is a definition of ‘recognised transgender person’ in section 4 of the Anti-Discrimination Act 1977 (NSW) which some people might, mistakenly, try to use to justify limiting access on the basis of surgery:

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

Except the substantive protections against transgender discrimination apply irrespective of whether the person has had surgery. According to section 38A:

‘A reference in this Part to a person being transgender or a transgender person is a reference to a person, whether or not the person is a recognised transgender person

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

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

and includes a reference to the person being thought of as a transgender person, whether the person is, or was, in fact a transgender person’ [emphasis added].

Which means discriminating against transgender women who have not had surgery would probably be found to be unlawful.

Given this, the misleading definition of ‘recognised transgender person’ should be removed from section 4.

However, that would still not address a far bigger problem, including with the broader definition in section 38A: it likely only applies to people with ‘binary’ gender identities, because of its use of the outdated concept of ‘opposite sex’.

In other words, non-binary people in NSW are not explicitly covered by the Anti-Discrimination Act 1977. The NSW Government must remedy this by replacing ‘transgender’ with ‘gender identity’, potentially based on the definition in the Sex Discrimination Act 1984 (Cth):

‘gender identity means the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth’.

Lavender/Purple: Bisexual discrimination law reform

The definition of transgender is not the only outdated terminology in the Anti-Discrimination Act 1977 (NSW). The other protected attribute covering (some parts) of the LGBTI community is currently ‘homosexual.’ Section 4 of the Act defines that term to mean ‘male or female homosexual.’

That narrow definition means NSW’s anti-discrimination laws are the only such laws in Australia that fail to protect bisexuals against discrimination.

This omission is truly appalling. It is well beyond time for the NSW Government to update the Anti-Discrimination Act to cover sexual orientation generally, in line with other jurisdictions including the Commonwealth Sex Discrimination Act 1984:

‘sexual orientation means a person’s sexual orientation towards:

(a) persons of the same sex; or

(b) persons of a different sex; or

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

[NB The lavender comes from the bisexual pride flag, which is pink, lavender and blue.]

The six issues discussed above are of course not an exhaustive list. There are plenty of other LGBTI laws and policies which also need to be amended by NSW to provide genuine equality to its citizens irrespective of sexual orientation, gender identity and sex characteristics.[iv]

But, in my opinion, these are some of the most essential reforms in order for people to feel pride that we are making real progress in overcoming homophobia, biphobia, transphobia and intersexphobia.

I started this article by highlighting the fact today is the 10th anniversary of the election of the NSW Liberal/National Government.

Coincidentally, today also marks 100 weeks until the planned opening ceremony of World Pride 2023 in Sydney.

That means Premier Gladys Berejiklian has exactly 100 weeks to deliver on each of the six issues identified here.

If her Liberal/National Government fails to make these long-overdue and much-needed changes in that time, then I suggest we fly this ‘pride flag for NSW’ at half-mast during that opening ceremony to acknowledge the damage inflicted and pain caused by their ongoing inaction.

If you have enjoyed reading this post, you can sign up to receive updates about this and other issues from this blog, via the right-hand scroll bar on desktop, or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus [NB Given the events of the past month – with this website being blocked by Facebook for being ‘news’ – it is more important than ever to sign up if you want to receive updates, especially with the possibility of further disruptions].

Footnotes:


[i] I also personally support the newer ‘Progress’ version of the pride flag, incorporating both elements of the trans flag, and black and brown stripes to represent people of colour.

[ii] The blue here could either represent part of the trans pride flag – which is blue, pink and white – or the blue of the Pacific Ocean at McIver’s Ladies Baths.

[iii] Which, as we have seen, only allows the granting of new identity documentation following invasive surgeries.

[iv] Indeed, the Anti-Discrimination Act 1977 (NSW) also needs to be updated to include a new protected attribute of ‘sex characteristics’ covering intersex people, and to remove the general exception in section 56(d) which allows a wide range of religious organisations to discriminate against LGBT employees and people accessing their services.

What for art thou Albo?

Anthony Albanese became Leader of the Australian Labor Party in May 2019. It’s now March 2021, and we still don’t know where he stands on key issues affecting the lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) community.

In his 22 months as Opposition Leader, Mr Albanese (commonly referred to as ‘Albo’), has only explicitly referred to LGBTIQ rights once in Parliament. On 2 July 2019, he made the following statement:

‘In an article in the NewDaily and in a number of other articles reporting on that article, it’s been suggested that I supported watering down Labor’s commitment to LGBTIQ rights. As someone who in their first speech in parliament mentioned removing discrimination on the basis of sexuality and is a strong advocate for the rights of gay and lesbian people, that is not true; it did not happen.’

Despite this, and unfortunately for LGBTIQ Australians, that article foretold what appears to have occurred in the period since.

As happens every term, the Labor Party is engaged in updating its National Platform, the document setting out its core principles.

As part of this process, Albo has expressed a clear desire for the Platform to be streamlined. The current draft, which will be considered at an online Special Platform Conference on 30 and 31 March 2021, stands at 111 pages – compared to 268 pages of policy detail in former Leader Bill Shorten’s 2018 version.

Based on that level of reduction, you might expect that LGBTIQ policy commitments would have decreased by a similar ratio (to be two-fifths of the previous document).

However, the axe seems to have fallen disproportionately on issues affecting our communities. From 46 separate mentions of LGBTIQ issues in 2018, there are just nine in the 2021 draft Platform.

Admittedly, that is a somewhat superficial criterion. Nevertheless, looking at the substantive policy commitments in closer detail, and the cuts are just as bad. Worse, in fact, with Labor’s Platform now missing in action on some of the most important challenges we face.

That includes what I consider to be the worst human rights abuses affecting any part of the LGBTIQ community today: coercive medical interventions, including surgeries, on children born with intersex variations of sex characteristics.

The 2015 and 2018 ALP Platforms included clear commitments to address these abuses. From the 2018 version:

‘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.’

In contrast, the draft 2021 ALP National Platform is completely silent on this issue. That is simply not good enough.

Another important policy commitment from 2015 and 2018 that has disappeared relates to the out-of-pocket costs which far-too-frequently prevent trans and gender diverse people from being able to access gender-affirming health care. Again, from the 2018 Platform:

‘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. Cost 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.’

In 2021, Labor has so far found no room in its core principles document to address one of the biggest challenges affecting the everyday lives of trans and non-binary Australians.

A third major omission from the draft Platform is HIV – and that omission is total. If passed in its current state, the 2021 Australian Labor Party Platform would be the first in at least a generation not to even mention the term HIV.

I would argue the middle of a global pandemic is possibly the worst time to abandon commitments relating to another epidemic that, despite popular misconceptions, remains far from over. Instead, I believe the Platform should (at a minimum):

  • Highlight that lessons learned from HIV have assisted Australia in dealing with COVID-19
  • Emphasise the fundamental importance of working in partnership with affected communities, including people living with HIV and those at risk, and
  • Recommitting to ending the HIV epidemic in Australia, and globally.

The fourth and final major problem I would like to focus on is the lack of clarity around much-needed improvements to LGBTIQ anti-discrimination and anti-vilification protections. On this issue at least the draft 2021 Platform includes some detail:

‘Labor will work closely with LGBTIQ Australians to develop policy to:

(a) ensure they enjoy equality before the law and have access to public services without discrimination; [and]

(b) strengthen laws and expand initiatives against discrimination and harassment on the basis of sexual orientation, gender identity, sex characteristics and queer status’.

However, these commitments do not go nearly far enough. It is possible (although by no means certain) that para (a), above, means Labor will remove anti-discrimination exceptions which allow religious schools to discriminate against students on the basis of sexual orientation and gender identity. But there is no equivalent commitment to protect the employees of religious organisations, including teachers and other staff in religious schools.

As with the other three areas identified earlier, these anti-discrimination principles are also a significant step backwards from their 2015 and 2018 equivalents. There is no longer a commitment to introduce a stand-alone Commissioner for LGBTIQ issues within the Australian Human Rights Commission.

Nor is there a policy to introduce long-overdue LGBTIQ anti-vilification protections in Commonwealth law (despite the draft 2021 Platform twice committing to address religious vilification). Or a commitment to finally include gender identity and sex characteristics as protected attributes in the Fair Work Act 2009 (Cth) on the same basis as sexual orientation.

There are plenty of other problems with the draft Platform – perhaps most notably a policy to ensure schools are ‘welcoming and supportive environments for all’ which has removed previous explicit references to gender identity and sexuality, and added a qualifier (‘initiatives… as selected by schools’), thus rendering it close to meaningless.

Nevertheless, if the ALP wishes to demonstrate it is still committed to improving the rights of LGBTIQ Australians then I suggest the four main issues described above (ending coercive surgeries on intersex children; reducing out-of-pocket costs for gender-affirming health care; including policies addressing HIV; and improving commitments to LGBTIQ anti-discrimination and anti-vilification laws) would be a good place to start.

The defence of the Australian Labor Party to these criticisms has been to reiterate that the draft 2021 National Platform is intentionally a high-level, principles-based document, and to explain that more-specific LGBTIQ policies will be released closer to the election.

The problem with that defence, from my perspective, is that the clear message the ALP sent to all stakeholders back in 2019 was that all policies were under review, that in effect ‘everything is up for grabs’. Since then, as far as I can ascertain, there have been exactly zero policy announcements explicitly relating to LGBTIQ issues.

At the same time, the rights of LGBTIQ Australians have come under sustained attack at both Commonwealth level (including through the proposed Religious Discrimination Bill which Labor has not, to date, unequivocally opposed) and in the states and territories (including Mark Latham’s own ‘Religious Freedom’, and anti-trans kids, Bills in NSW).

In this context, it is only natural for the LGBTIQ community to closely examine the words and actions coming from the Leader of the Opposition and the Party he represents. So far, the only substantive document which we can scrutinise is the draft Platform and, particularly when compared to its 2015 and 2018 iterations, it is a disappointment.

The good news is that its deficiencies can still be fixed. The Special Platform Conference is not for another nine days, and the Leader of the Opposition, Shadow Ministers and conference delegates all have the opportunity to reinsert genuine commitments around intersex surgeries, trans health costs, HIV, and anti-discrimination and anti-vilification laws.

The bad news is that, more broadly, time is running out. We are nearly two years into a three-year term. Indeed, Prime Minister Morrison has the option of holding the next election as early as August, just five months away. There is little time left for Albo and the ALP to show us where they stand on key issues affecting the LGBTIQ community.

And I use that phrase deliberately – show us your current policies, don’t tell us about your past public positions.

Which brings me back to Albanese’s statement to Parliament in July 2019. It is interesting that, in defending his approach to LGBTIQ rights as Leader, he directly referred to his first speech which he gave on 6 May 1996.

To be fair, Albo’s comments then (‘The bigots who criticise programs aimed at the special needs of sections of our community ignore the fact that there is not equality of opportunity across class, gender, sexual preference and ethnicity’) were undoubtedly progressive for the time.

But times change. As does terminology (thankfully), as well as the needs of the LGBTIQ community which are much more complex and diverse than a general commitment to ‘equality of opportunity’.

Frankly, I am far less interested in what Anthony Albanese said as a new backbencher 25 years ago than I am in what he has to offer the country as its alternative Prime Minister for the next three years.

From my position as an advocate for LGBTIQ rights, I believe it’s time for Albanese to outline what a Government he leads would do for our community. Clearly, and in detail.

It’s time for him to answer the question ‘What for art thou Albo?’ Because, as of today, I and other LGBTIQ Australians genuinely don’t know.

Caption: It’s great that Albo is a regular participant in the Sydney Gay & Lesbian Mardi Gras Parade, including this year’s event (pictured). It would be even better if he could articulate, clearly and in detail, what he will do for LGBTIQ Australians if he becomes our Prime Minister for the next three years.

If you have enjoyed reading this post, you can sign up to receive updates about this and other issues from this blog, via the right-hand scroll bar on desktop, or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus [NB Given the events of the past month – with this website being blocked by Facebook for being ‘news’ – it is more important than ever to sign up if you want to receive updates, especially with the possibility of further disruptions].

NSW Liberal Parliamentary Secretary for Education Supports Bill to Erase Trans Kids

Last weekend was the first Sydney Gay & Lesbian Mardi Gras Parade and/or Party I have missed since 2003. Although I think I had a pretty good reason not to be there – I was attending my grandma’s 100th birthday party in Rockhampton, Queensland (near where I grew up).

Nevertheless, the day before Mardi Gras I received a letter reminding me of just how far there is left to go before we achieve genuine, substantive equality for LGBTI Australians, and especially for trans and gender diverse children and young people.

But, first, some context. In August last year, NSW One Nation Leader Mark Latham introduced the Education Legislation Amendment (Parental Rights) Bill 2020. As I wrote at the time, this proposed law is the worst attack on LGBTI rights in this country this century.

If passed, the Education Legislation Amendment (Parental Rights) Bill 2020 would:

  • Prohibit any ‘teaching, instruction, counselling and advice’ that gender identity can be different to sex assigned at birth, effectively erasing and invisibilising trans and gender diverse students in schools across NSW
  • Introducing a UK section 28-style clause making it difficult for teachers, principals and counsellors to support lesbian, gay and bisexual students, and
  • Enacting an inaccurate and offensive definition of intersex in NSW law for the first time.

The NSW Legislative Council Education Committee is currently conducting an inquiry into this Bill. Unfortunately, the Chair of that inquiry is… Mark Latham. In which case, I decided to bypass the Committee and instead write directly to the majority of MPs calling on them to be champions for trans and gender diverse kids, rather than their bullies.

I have received a small number of responses to date, but the most significant so far arrived in my inbox last Friday, March 5 2021. It came from the Member for Riverstone, Mr Kevin Conolly – who, incidentally, is also the NSW Government Parliamentary Secretary for Education (and therefore a direct adviser to and influencer of the Minister for Education, the Hon Sarah Mitchell).  Here is what he wrote:

Dear Mr Lawrie,

Thank you for contacting me to express your view about the Education Legislation Amendment (Parental Rights) Bill 2020.

You appear to have misunderstood the intent and effect of the Bill on a number of levels.

The first thing to state about the Bill is that it gives effect to internationally recognised human rights explicitly stated in international agreements to which Australia (like nearly all nations) is a signatory:

Article 18, part 4 of the International Covenant on Civil and Political Rights states:

‘The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.’

Article 5 of the Convention on the Rights of the Child:

‘Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognised in the present Convention.’

Article 26(3) of Universal Declaration of Human Rights:

‘Parents have a prior right to choose the kind of education that shall be given to their children.’

I do not agree that the Bill is based on a sick ideology, as you assert. It is based, in my view, on the common sense proposition that it is parents who are best placed and most likely to focus on the best interests of their child, rather than teacher unions, academics or activists with their own political agenda.

In prohibiting the teaching of ‘gender fluidity’ the Bill would preclude the teaching of the false and unscientific proposition that gender is something other than biologically determined.

To state this does not in any way suggest that it is better for young people experiencing gender dysphoria to ‘not exist at all’. I’m sure that Hon. Mark Latham would wholeheartedly agree with you that young people in this situation should be ‘happy and healthy, … safe and supported.’ This is far more likely to be the case if they are in the care of their parents and avoid premature chemical or surgical interventions while they grow and mature.

It is a fact that the great majority of cases of young people with gender dysphoria are resolved in time without any such interventions if children and adolescents are supported by loving families and allowed to make their own decisions when older. Most are resolved with the person coming to terms with their biological gender.

I note that you have mentioned ‘LGBTI’ a number of times in your email. However the Bill has no impact whatsoever on questions of homosexuality, only on the specific issue of so-called ‘gender fluidity’.

In my view, quite contrary to your assertion, the Bill would facilitate a school counsellor or teacher to help a child or young person by allowing counselling to consider all the future options available to the person rather than requiring only one predetermined option (i.e. ‘transition’) to be discussed.

The Bill is a positive step forward because it provides the opportunity for parents to provide genuine selfless care to young people rather than leave them at the mercy of activists whose ‘care’ is far more for their ideological cause than it is for the young person facing difficult challenges. In doing so it upholds universally recognised basic human rights, and responsibilities of parents towards their children.

Yours sincerely

Kevin Conolly MP

Member for Riverstone

*****

There is obviously a lot to unpack here. First of all, it is clear that Mr Conolly is selectively quoting from some international human rights instruments, while ignoring other key principles. This includes Article 26 of the ICCPR, which states:

‘All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property or other status.’

There is no doubt that a Bill which seeks to erase trans and gender diverse students, make life much more difficult for LG&B kids, and stigmatise intersex children, is discriminatory against LGBTI people.

Indeed, as others have written, it is likely that the Education Legislation Amendment (Parental Rights) Bill 2020 will ultimately be found to be unlawful because it contravenes the provisions of the Sex Discrimination Act 1984 (Cth).

But misinterpreting international human rights law is the least of the problems in Mr Conolly’s correspondence.

He also doesn’t seem to understand the Bill itself. The Education Legislation Amendment (Parental Rights) Bill 2020 establishes strict limits on any teaching or counselling of anything to do with what it describes as ‘matters of parental primacy’ – which is defined very broadly to explicitly include ‘matters of personal wellbeing and identity including gender and sexuality’.

Therefore, his protestation that ‘the Bill has no impact whatsoever on questions of homosexuality’ is not only patently false, but makes me question whether he has even read the legislation he is so ardently defending.

On that note, I find it incredibly curious that a member of the NSW Government – and a Parliamentary Secretary at that – is not only publicly supporting One Nation legislation (‘The Bill is a positive step forward…’), but also defending and apparently speaking on behalf of the NSW One Nation Leader (‘I’m sure that Hon. Mark Latham would…’).

But, of course, the worst aspects of Mr Conolly’s letter relate to his views about gender identity.

On this topic, he appears to assert that there is actually no such thing as trans and gender diverse people (‘In prohibiting the teaching of ‘gender fluidity’ the Bill would preclude the teaching of the false and unscientific proposition that gender is something other than biologically determined’). I’m sure that revelation would be surprising to trans and gender diverse people across NSW.

Nevertheless, the most offensive aspect of Mr Conolly’s correspondence arrives near its conclusion, where he argues ‘the Bill would facilitate a school counsellor or teacher to help a child or young person by allowing counselling to consider all the future options available to the person rather than requiring only one predetermined option (i.e. ‘transition’) to be discussed’.

Except that, given those same counsellors and teachers will be explicitly prohibited from even mentioning that gender identity can be different to sex assigned at birth, the only option they will be permitted to present to struggling children is that they simply not be trans or gender diverse.

It is at least arguable that what Mr Conolly is calling for is for counsellors and teachers to provide anti-trans conversion practices in every school across NSW.

It is extraordinary this letter was written by a member of the NSW Liberal/National Government. It is deeply troubling that it was done so by the Parliamentary Secretary for Education, commenting on and explicitly supporting legislation within his portfolio.

This stands in marked contrast to the failure of the NSW Premier, Gladys Berejiklian, Deputy Premier, John Barilaro, and Education Minister, Sarah Mitchell, to take any position on the Bill whatsoever. Indeed, they collectively delegated their reply to my letter to a bureaucrat in the Department of Education, who wrote:

‘The NSW Government will respond to the proposed bill after careful consideration to ensure all relevant legislation and protections are considered.’

Now that the Parliamentary Secretary for Education has declared his personal support for the Education Legislation Amendment (Parental Rights) Bill 2020, I believe this studious refusal to adopt a position is no longer tenable. At a certain point, being non-committal ends up being complicit.

The failure of the NSW Premier to oppose Mark Latham’s awful legislative assault on trans and gender diverse kids is particularly untenable given another development last weekend: Ms Berejiklian’s attendance at the SCG for the Mardi Gras Parade (as tweeted by Commonwealth Liberal MP, Dave Sharma – pictured below).

In my view, if you are prepared to come and celebrate diversity with us – diversity of sexual orientation, gender identity and sex characteristics – then you must be prepared to defend that diversity.

Against attacks by fringe extremist parties in the NSW Legislative Council.

And against support for those attacks by prominent members of your very own Government.

As I wrote previously, ‘It is time for [NSW Parliamentarians] to make your decision about the Education Legislation Amendment (Parental Rights) Bill 2020. Champion. Or bully. The choice is yours.’

Right now, that choice belongs to the NSW Premier, Gladys Berejiklian.

Berejiklian must understand the extremely serious consequences if she makes the wrong decision. Because instead of being able to celebrate their own 100th birthdays early in the 22nd century, some trans and gender diverse students in NSW schools will struggle to reach their 18th.

*****

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 post, you can sign up to receive updates about this and other issues from this blog, via the right-hand scroll bar on desktop, or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus [NB Given the events of the past month – with this website being blocked by Facebook for being ‘news’ – it is more important than ever to sign up if you want to receive updates, especially with the possibility of further disruptions].

Submission re: South Australia’s Equal Opportunity (Religious Bodies) Amendment Bill 2020

22 November 2020

Attorney-General’s Department

Legislative Services

GPO Box 464

Adelaide SA 5001

Via email: LLPSubmissions@sa.gov.au

To whom it may concern

Submission re: Equal Opportunity (Religious Bodies) Amendment Bill 2020

Thank you for the opportunity to provide a submission on the draft Equal Opportunity (Religious Bodies) Amendment Bill 2020.

I do so as a long-term advocate for the rights of the lesbian, gay, bisexual, transgender and intersex (LGBTI) community, and as someone with particular expertise in anti-discrimination legislation, including comparative analysis of LGBTI anti-discrimination protections across Australia.[i]

First, I welcome the intention of the draft legislation, which is to narrow the scope of the excessive and extreme religious exceptions currently found in section 50 of the Equal Opportunity Act 1984 (SA). These exceptions allow religious organisations to discriminate against LGBTI South Australians in a wide range of everyday situations, causing direct and significant harm to a vulnerable population.

Second, I particularly welcome proposed section 50(1)(c)(ix), which would have the effect of protecting LGBTI students in religious schools against discrimination on the basis of who they are. This protection is long overdue, with change in South Australia made necessary because of the failure of the Morrison Government to deliver on his October 2018 promise to prohibit such discrimination under the Sex Discrimination Act 1984 (Cth).[ii]

However, while passage of this legislation would represent an improvement in terms of the rights of LGBTI South Australians to participate in public life without fear of discrimination, I would like to highlight three major problems with the Bill as drafted:

  1. The scope of areas where LGBTI people will be protected – or not

The draft Equal Opportunity (Religious Bodies) Amendment Bill 2020 effectively creates a ‘carve-out’ from the general religious exception found in section 50(c)[iii] of the Equal Opportunity Act 1984 (SA) so that it does not apply in relation to certain areas of public life.

This approach appears to be based on section 37(2) of the Sex Discrimination Act 1984 (Cth), which provides that the general religious exception in section 37(1) of that Act does not allow aged care services operated by religious organisations to discriminate against LGBT people accessing those services (although, disappointingly, it continues to allow religious aged care services to discriminate against LGBT employees).

It is encouraging that the draft South Australian Bill extends this carve-out to a wider range of areas of public life, including:

  • Children’s education
  • Health care and disability support
  • Aged care
  • Emergency accommodation
  • Public housing, and
  • Foster care placement.

In another welcome development, the carve-out also applies to employees in these areas (other than in relation to educational institutions, an issue which is discussed further below).

However, the carve-out approach has inherent limitations. In particular, the boundary between areas of public life where LGBTI people will be protected, and those where they will not, may appear arbitrary and difficult to justify.

For example, while proposed sections 50(1)(c)(ix) and 50(1)(c)(x) mean that religious pre-schools, primary schools and secondary schools will not be able to discriminate against LGBTI students, the absence of a similar carve-out for tertiary education means that religious universities will nevertheless still be able to discriminate against LGBTI students.

In an environment when many university-age students are exploring and ultimately affirming their sexual orientation and/or gender identity, I do not believe it is acceptable to allow religious universities to discriminate against those students simply because of who they are (and especially where religious universities use public funds to do so).

In a similar way, while it is pleasing that emergency accommodation services operated by religious organisations will not be able to turn away LGBTI people in need of their assistance, it seems arbitrary that other essential service providers (such as food services or other forms of welfare support)[iv] will be able to reject people on the basis of their sexual orientation, gender identity or intersex status.[v]

Finally, proposed section 50(1)(c)(i) would ensure that religious foster care agencies will not be able to discriminate against LGBTI people (including employees, potential foster carers and children being placed). However, the absence of a similar provision in relation to adoption agencies presumably means that religious organisations providing that particular service will be able to discriminate in this way.

This double-standard – where rainbow families are ‘good enough’ to be foster carers, but can still be rejected as adoptive parents just because of who they are – cannot be justified.

Therefore, if the carve-out approach is retained, in my view it should at a minimum be extended to include tertiary education, broader welfare services and adoption agencies.

Recommendation 1: If the ‘carve-out’ approach in section 50(1)(c) of the draft Bill is retained, the following areas of public life should be added:

  • Tertiary education
  • Welfare services generally, and
  • Adoption agencies.

2. The ongoing ability of religious organisations to discriminate on the basis of gender identity, sexual orientation and intersex status

I have framed the above recommendation in a qualified manner because I believe the ‘carve-out’ approach is itself problematic. That is because, in any area of public life that is not listed in section 50(1)(c), religious organisations will continue to be permitted to discriminate on the basis of gender identity, sexual orientation and intersex status, including in terms of who they employ and who they provide their services to.

This will obviously have a negative impact on LGBTI South Australians by restricting their ability to participate in public life without fear of discrimination. And it falls well below the best practice approach to religious exceptions, which has been adopted in the Anti-Discrimination Act 1998 (Tas), and in a more limited way the Discrimination Act 1991 (ACT).[vi]

The Tasmanian ‘gold standard’ allows religious organisations to discriminate – but only on the basis of religious belief or activity, and not on other grounds, such as sexual orientation, gender identity or intersex variations of sex characteristics.

For example, section 51 allows religious organisations to discriminate in employment in the following way:

(1) A person may discriminate against another person on the ground of religious belief or affiliation or religious activity in relation to employment if the participation of the person in the teaching, observance or practice of a particular religious is a genuine occupational qualification or requirement in relation to the employment.

(2) A person may discriminate against another person on the ground of religious belief or affiliation or religious activity in relation to employment in an educational institution that is or is to be conducted in accordance with the tenets, beliefs, teachings, principles or practices of a particular religion if the discrimination is in order to enable, or better enable, the educational institution to be conducted in accordance with those tenets, beliefs, teachings, principles or practices.

Section 51A then allows discrimination on the ground of religious belief or affiliation or religious activity in relation to enrolment at religious educational institutions (although not after the point of admission), while section 52 allows discrimination by religious organisations on the ground of religious belief or affiliation or religious activity in relation to ‘participation in religious observance’.[vii]

From my perspective, this is a fairer way in which to allow religious organisations to prioritise people from their own faith, while not infringing upon the rights of others – including LGBTI people – to live their lives free from discrimination.

I strongly urge the South Australian Government to improve the proposed Equal Opportunity (Religious Bodies) Amendment Bill 2020 by moving to a model where religious organisations are only allowed to discriminate on the basis of religious belief or activity, and not in relation to other protected attributes, including gender identity, sexual orientation and intersex status.

Recommendation 2: The South Australian Government should consider adopting the Tasmanian best practice approach to religious exceptions, allowing religious organisations to discriminate on the basis of religious belief and activity, but not in relation to other protected attributes including gender identity, sexual orientation and intersex status.

3. The ongoing ability of religious schools and universities to discriminate against LGBTI teachers, lecturers and other staff

The final, and arguably most important, problem with the Equal Opportunity (Religious Bodies) Amendment Bill 2020 is something it does not do – it does not remove the ability of religious education institutions (including schools and universities) to discriminate against LGBTI teachers, lecturers and other staff (which is currently permitted under section 34(3) of the Equal Opportunity Act 1984 (SA)).

In my view, this exception is unacceptable, for several reasons.

First, it is unfair on LGBTI teachers, lecturers and other staff. They may be the best qualified person for a job, but they can be denied employment (or, where they already work for a religious school or university, fired), on the basis of something which has no connection to their ability to perform the role. This is especially egregious given the large amounts of public funding provided to these institutions.

Second, it is unfair to students generally – who are denied being taught by the best possible teacher or lecturer for their class.

Third, it is unfair on LGBTI students in particular. Not only are they denied positive role models, they are also enrolled in an educational institution which has adopted a hostile attitude towards LGBTI teachers, lecturers and other staff, something which will inevitably influence the broader culture of the school or university.

Fourth, I do not believe the supposed ‘safeguard’ contained in sections 34(3)(b), (c) and (d) – which requires educational institutions wishing to rely on this exception to have a written policy stating its (discriminatory) position, that is provided to employees and potential employees, and on request to students, their families and members of the public – is sufficient.[viii]

Transparency doesn’t make prejudice any less real, or any more acceptable. LGBTI teachers, lecturers and other staff members can still be denied employment simply because of their gender identity, sexual orientation or intersex status – attributes which have absolutely nothing to do with their ability to perform the role.

Further, and even more damagingly, LGBTI students at these institutions who are aware of such policies will be acutely aware their presence there is only ‘tolerated’ because the institution is legally prohibited from discriminating against them (in other words, they would discriminate against these students if they could). They will know that they will never be truly accepted for who they are.

This last reason alone justifies removal of the exception for religious educational institutions in section 34(3) of the Equal Opportunity Act 1984 (SA) and instead prohibit all religious schools and universities from discriminating against LGBTI employees.

Recommendation 3: The exception allowing religious education institutions to discriminate against LGBTI teachers, lecturers and other staff in section 34(3) of the Equal Opportunity Act 1984 (SA) must be repealed, with these institutions prohibited from discriminating against employees on the basis of gender identity, sexual orientation and intersex status.

In conclusion, I should reiterate that, despite the problems identified above, the draft Equal Opportunity (Religious Bodies) Amendment Bill 2020 would, if passed in its current form, still significantly improve the rights of LGBTI people in South Australia to go about their lives free from discrimination.

In particular, I welcome the commitment of the South Australian Government to protect LGBTI students at religious schools against discrimination. This is much needed, and would have an immediate and appreciable benefit for vulnerable students across the state.

Nevertheless, I firmly believe the proposed legislation can be substantially strengthened, including by extending the scope of areas in which LGBTI people are protected to include tertiary education, welfare services and adoption agencies – or, even better, to adopt the best practice Tasmanian approach to religious exceptions (as discussed earlier).

Above all, I strongly encourage the South Australian Government to remove the ability of religious educational institutions to discriminate against LGBTI teachers, lecturers and other staff members, so that these places can become welcoming and inclusive places for all people seeking to learn, or impart knowledge, irrespective of their gender identity, sexual orientation or intersex status.

Thank you in advance for your consideration of this submission. Please contact me at the details provided should you wish to clarify any of the above, or for further information.

Sincerely,

Alastair Lawrie

Footnotes:


[i] See: A Quick Guide to Australian LGBTI Anti-Discrimination Laws.

[ii] For more information, see: Scott Morrison’s Broken Promise to Protect LGBT Students is Now Two Years Old

[iii] ‘This Part does not render unlawful discrimination in relation to- any other practice of a body established for religious purposes that conforms with the precepts of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.’

[iv] In many cases, these services will be using local, state and/or Commonwealth funding to do so. In nearly all cases, they will be relying on tax exemptions supporting them to carry out this work.

[v] Intersex status is the protected attribute currently included in the Equal Opportunity Act 1984 (SA). However, I support the replacement of intersex status with ‘sex characteristics’, as called for by Intersex Human Rights Australia, as well as intersex advocates in the March 2017 Darlington Statement.

[vi] The ACT has adopted the Tasmanian approach in relation to religious schools (only allowing discrimination on the basis of religious conviction, and not on the ground of sexuality, gender identity or sex characteristics), but not for other religious organisations.

[vii] Noting that section 52(d) of the Anti-Discrimination Act 1998 (Tas) is quite generous: ‘A person may discriminate against another person on the ground of religious belief or affiliation or religious activity in relation to- (d) any other act that- (i) is carried out in accordance with the doctrine of a particular religion; and (ii) is necessary to avoid offending the religious sensitivities of any person of that religion.’

[viii] Even if, in some circumstances, it may be useful in applying external pressure on religious educational institutions whose employment practices fall short of community standards.