Tag Archives: LGBTI rights

Why there MUST be a Senate Inquiry into the Religious Discrimination Bill

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There is a *lot* of news happening at the moment. In the midst of the COVID-19 pandemic, and now during COP26 – and with it humanity’s last best chance to address the existential threat of global heating – it can be difficult to keep track of other serious challenges to our human rights.

In Australia, one of those is the Morrison Liberal/National Government’s proposed Religious Discrimination Bill, which they remain committed to introducing into Commonwealth Parliament before the end of 2021.

While most people outside the Government still don’t know what form the final Bill will take (unlike a select few, like religious fundamentalists including the Australian Christian Lobby, with whom the Government has been negotiating – more on that later), we did learn something new last week:

Attorney-General Michaelia Cash is seeking to avoid the scrutiny of a Senate Inquiry into the Religious Discrimination Bill.

As reported in the Sydney Morning Herald last Sunday (24 October):

‘Attorney-General Michaelia Cash signalled the government would ramp up pressure on Labor to not hold a Senate inquiry because the government “has conducted two rounds of public consultation on draft legislation, and met face to face with over 90 stakeholders in a series of roundtables”.’

This position – Attorney-General Cash wanting to avoid the usual scrutiny of a Senate Inquiry – was then confirmed during Senate Estimates last Tuesday (26 October), via the following exchange with Greens Senator Janet Rice:

Senator Rice: … Given the far-reaching impacts of this proposed legislation, will you commit to having a full and thorough Senate inquiry into the bill once it’s introduced?

Senator Cash: That’s a decision for the Senate.

Senator Rice: Is the government committed and supportive?

Senator Cash: That is a decision for the Senate.

Senator Rice: It will be a decision for the Senate, but will the government be supporting having a Senate inquiry into this legislation?

Senator Cash: Again, that is a decision for the Senate.

Senator Rice: Will the government support that by helping to provide the numbers in the Senate?

Senator Cash: If the Senate determines that there should be an inquiry then there will be an inquiry.

Senator Rice: Do you think that there should be an inquiry?

Senator Cash: That is a decision for the Senate.

Senator Rice: Do you think that there should be an inquiry given it is your legislation?

Senator Cash: The normal process would be that a bill goes to an inquiry.

*****

Count them: that’s six separate opportunities for the Attorney-General to confirm the Government would support a Senate Inquiry into the Religious Discrimination Bill. And six refusals to do so.

The closest Cash came was stating it would be a ‘normal process’ to hold such an inquiry, not that the Government would agree to one.

Why does it matter?

This isn’t just a technical question of whether the Senate follows ‘normal process’ in holding an inquiry. Whether or not the Senate conducts an investigation into the Religious Discrimination Bill really matters, for two key reasons:

First, the Religious Discrimination Bill has the potential to affect the everyday lives of *all* Australians, religious and non-religious alike, including women, lesbian, gay, bisexual transgender and intersex (LGBTI) people, people with disability, divorced people and people in de facto relationships.

Everyone.

We know this because of the content of the first two Exposure Draft Bills, released in August and December 2019 respectively, with the most recent of those including the following features:

  • Allowing health practitioners, including doctors, nurses, pharmacists and psychologists, to ‘conscientiously object’ to providing health services – even where this has disproportionate adverse impacts on particular groups (for example, refusing to provide puberty blockers, to the detriment of trans and gender diverse young people), and
  • Allowing people to make offensive, humiliating, intimidating, insulting or ridiculing comments against women, LGBTI people, people with disability and even people of minority faiths, in all areas of public life, as long as those comments are motivated by religious belief. 

Both the right to access health care, and the ability to go about your daily life – in workplaces, and schools and universities, and community services, and public transport, and other public spaces – without being subjected to vile comments on the basis of who you are, are at risk.

[For more detail on these and other serious problems with the Bill, see: The ‘Bad Faith’ Religious Discrimination Bill Must Be Blocked’.] 

Legislation which carries such serious consequences deserves the highest level of scrutiny, and that must include a Senate Inquiry.

Second, the Religious Discrimination Bill has the potential to be the biggest change to Commonwealth anti-discrimination law for almost four decades.

Since the passage of the Racial Discrimination Act in 1975, and Sex Discrimination Act in 1984, the basic framework of Commonwealth anti-discrimination laws has remained relatively consistent.

This includes the general tests for what constitutes direct and indirect discrimination, and in what circumstances religious organisations are permitted to discriminate. It also includes the ‘complementary’ structure of Commonwealth, state and territory anti-discrimination laws, where they operate alongside each other, without seeking to override the other.

The Disability Discrimination Act 1992, Age Discrimination Act 2004, and even the addition of sexual orientation, gender identity and intersex status as protected attributes in the Sex Discrimination Act in 2013, did not fundamentally alter these arrangements.

However, the Second Exposure Draft Religious Discrimination Bill marks a radical departure from these precedents.

For example, the ability to make offensive, humiliating, intimidating, insulting or ridiculing ‘statements of belief’ is included in a provision (clause 42) which limits the operation of all other anti-discrimination legislation: Commonwealth (including the Fair Work Act 2009), and state and territory (singling out the Tasmanian Anti-Discrimination Act 1998 in particular).

In practice, this would be the first time the Commonwealth Government directly sought to override the anti-discrimination laws of other Australian Governments.

The ‘conscientious objection’ provision (in clause 8) discussed earlier also involves a significant departure from standard practice. That is because it seeks to amend how the test for indirect discrimination operates, in favour of health practitioners who wish to discriminate in the types of services they provide.

One of the Religious Discrimination Bill’s other, more-infamous provisions – the so-called ‘Folau clause’ (also in clause 8) – is similarly-designed, altering the test for indirect discrimination to ‘stack the decks’ in favour of employees who make otherwise discriminatory statements outside core business hours.

Meanwhile, its proposed ‘religious exceptions’ (in clause 11, and scattered elsewhere throughout the Bill) dramatically re-write the existing scope of these special privileges. Not only do they apply to an expanded range of organisations, but the two different tests for whether a ‘religious exception’ applies are *both* far easier for organisations to use than the tests in the Sex Discrimination Act (section 37) and Age Discrimination Act (section 35).

Legislation which seeks to override state and territory anti-discrimination laws for the first time, and which significantly departs from existing practice in the test for indirect discrimination and significantly expands the scope and test for religious exceptions, deserves the highest level of scrutiny. That must include a Senate Inquiry.

What is the Government’s excuse?

Attorney-General Cash did not attempt to either clarify, or justify, the Government’s opposition to sending the Religious Discrimination Bill to an inquiry in her exchange with Senator Rice.

Which means we are left with her quote in the Sydney Morning Herald, namely that she does not support an inquiry: because the government “has conducted two rounds of public consultation on draft legislation, and met face to face with over 90 stakeholders in a series of roundtables”.

This rationale does not withstand the application of even the slightest skerrick of scrutiny.

Yes, the Government released two Exposure Draft Bills, which were open for public submissions. And yes, both the Bills, and associated submissions, have been published (see the Attorney-General’s Department website for the First Exposure Draft Bills here, and for the Second Exposure Draft Bills here.)

However, unlike a Senate Inquiry, there is little transparency about these processes:

  • There is no report document summarising feedback from either process
  • There is no public list of attendees at the roundtables mentioned by Senator Cash, and
  • There is no transcript of the evidence provided by these witnesses to the Government.

Also, unlike a Senate Inquiry, there was a lack of independence to these processes:

  • They were conducted by the Attorney-General’s Department, acting on the instructions of their Minister
  • Attendees of the roundtables were presumably selected by, or with the close involvement of, the Attorney-General, and
  • There was no opportunity for Opposition, Greens and cross-bench Senators to interrogate the evidence being provided to the Government.

In short, Government-run consultation processes are no substitute for the independence and transparency of a Senate Inquiry.

But there is an even bigger problem with Attorney-General Cash’s attempted justification for not supporting a Senate Inquiry into the Religious Discrimination Bill – and that is the First and Second Exposure Draft Bills were released in August and December 2019 respectively. That is more than, and just under, two full years ago.

Indeed, submissions in response to the Second Exposure Draft Bill closed in January 2020, less than a week after the first case of novel coronavirus was detected in Australia. A *lot* has changed in the intervening 21 months, including the Attorney-General (with Michaelia Cash replacing former Attorney-General Christian Porter in March 2021).

It is highly likely some aspects of the Religious Discrimination Bill will have changed in that period too – perhaps for the better, maybe for the worse.

Most members of the Australian community, and the community groups which represent them, will not be aware of those changes until the final Bill is introduced to Parliament. They deserve the opportunity to comment on the Bill’s final provisions, not past versions that have potentially been superseded.

Of course, some groups *are* aware, and have been closely involved in negotiations about the Bill’s contents for the past two years. This includes religious fundamentalists, such as the Australian Christian Lobby (ACL).

Indeed, the same Sydney Morning Herald article in which Cash argued against a Senate Inquiry was primarily about the ACL revealing the final Religious Discrimination Bill will include some version of the ‘Folau clause’.

The article is titled ‘Christian Lobby boasts religious freedom laws will include ‘Folau clause’, and goes on to quote ACL boss Martyn Iles:

‘Mr Iles said the ACL was “very, very strongly applying pressure from a grassroots level and from our lobbying level to ensure the Folau clause remains in the bill. It was fought tooth and nail, it was really at risk for a long time there[. O]ne great win is that the final draft of the bill will contain a Folau clause. It’s not perfect, but it’s not bad. And it does exist within the bill.”’

The Government’s consultations with the ACL were not denied by Attorney-General Cash, once again at Senate Estimates:

Senator Rice: Minister, we’ve seen media reports – and I’m tabling the media report that I was reading last week, that the Australian Christian Lobby say that they’re in the final days of negotiations with the Prime Minister’s office over the bill. The ACL are claiming they are ‘part of a coalition of faith leaders who jointly have been negotiating very closely with the Attorney-General, and with the Prime Minister’s Office’. Is that an accurate summation of what’s been happening with the negotiations on the bill?

Senator Cash: I’ve been negotiating far and wide in relation to the bill.

Senator Rice: Who else have you been negotiating with over the last month, for example?

Senator Cash: I’ve been negotiating with stakeholders across the board. I would take on notice whether or not they want their names provided, though, with all due respect to them. Some actually don’t want their name provided formally.

Senator Rice: Could I take on notice a list of all the stakeholders, as far as they are willing to be named?

Senator Cash: I’m more than happy to do that, absolutely. I need to go to them to get their permission, but-

Senator Rice: Can you name some others, other than those that will be part of this coalition of faith leaders?

Senator Cash: I would prefer not to, in the event they don’t want their names publicly disclosed as having discussions with me, but I’m more than happy to take it on notice for you.

Senator Rice: Have you been negotiating with any of the human rights organisations or LGBTIQ+ organisations?

Senator Cash: Yes. They’re a very important stakeholder.

*****

This exchange is deeply unsatisfactory, for a number of reasons.

The Attorney-General was unwilling to divulge the name of *any* stakeholder with whom she had been negotiating, or even consulting, over the biggest change to Commonwealth anti-discrimination law in almost four decades.

Even though Cash eventually agreed to take this question on notice (meaning she will need to respond in writing in coming months), this will unlikely be revealed until after the Bill itself has been introduced, and even then stakeholders who wish to remain secret will apparently have their names withheld from the public.

Cash’s answers also do not reveal the level of engagement with each group. For example, it is possible for the Government to be ‘negotiating’ with religious fundamentalists about the text of the Bill, but only ‘consulting’ with other groups in high-level or non-specific terms.

The final answer is also worrying; Cash uses the singular form (‘They’re a very important stakeholder’) in response to a question about negotiating with ‘human rights organisations or LGBTIQ+ organisations’.

This could imply she may only be meeting with one such body, and it is unclear who that would be, especially when there is no generalist national LGBTIQ+ organisation that is accountable to the LGBTIQ+ community (LGBTIQ+ Health Australia is the closest there is although, as the name suggests, its primary focus is health).

In fact, there are a wide range of organisations that either represent particular sections of the community (like Intersex Human Rights Australia), or advocate on LGBTIQ+ issues generally (such as Just.Equal Australia and Equality Australia), as well as several state and territory membership-based LGBTIQ organisations. Senator Cash should be ‘negotiating’ with all of them.

All of this is to say that the broader community has almost no idea who has been meeting with Attorney-General Cash about the Religious Discrimination Bill, or how much access and influence each organisation has been able to achieve. Based on her evidence to Senate Estimates last week, it is possible we will never be permitted to know.

Which simply confirms that the *only* way there can be a truly independent, and transparent, consultation process – where the names of witnesses are published, hearings are held in public with everyone able to know who has been advocating for what, as well as an opportunity for all Parties to interrogate those views – is for there to be a Senate Inquiry.

What is Labor’s position?

It remains unclear what Labor’s position is on whether there should be a Senate Inquiry into the Religious Discrimination Bill.

Shadow Attorney-General Mark Dreyfus is quoted in the same Sydney Morning Herald article as Senator Cash, although he does not address this issue (to be fair, he may not have been asked about it, or he may have provided quotes on this topic that were not included).

Of more concern is the lack of public position on this by Labor in the period since then. I am not aware of any criticism from ALP MPs or Senators about Cash’s push to avoid the scrutiny of a Senate Inquiry, nor did any Labor Senators on the Estimates Committee alongside Senator Janet Rice join her in challenging this position.

It is possible the Labor Opposition will push for a Senate Inquiry when the final parliamentary sitting fortnight of the year starts on Monday 22 November (which is presumably when the Government will introduce the Religious Discrimination Bill).

However, it is also possible that the ALP, under Leader Anthony Albanese, does not support referral to a Senate Inquiry. If so, their rationale for doing so would be just as weak as Attorney-General Cash’s.

In the Opposition’s case, they may seek to avoid any criticism they are ‘holding up’ so-called ‘religious freedom’ laws in the lead-up to the federal election, due in the first half of 2022 (even though it is the Morrison Government’s own delays that have led to this timing).

But that cannot be justification for not closely scrutinising the biggest change to Commonwealth anti-discrimination laws in nearly four decades. Nor would it excuse failing to support at least an inquiry into legislation that is a serious threat to the rights of women, LGBTI people, people with disability, divorced people and people in de facto relationships, even people of minority faiths.

If Labor fails to support a Senate Inquiry into the Religious Discrimination Bill in an attempt to avoid being politically ‘wedged’, then it seems highly likely they would subsequently also just ‘wave through’ the Government’s legislation.

That course of events would be reminiscent of the Labor Opposition’s actions under then-Leader (and now One Nation NSW Leader) Mark Latham in supporting John Howard’s Bill banning same-sex marriage in 2004. A ban which took a long and painful 13 years to overturn.

If Albo does not support a Senate Inquiry into the Religious Discrimination Bill, and instead simply votes for the legislation, it would be the biggest display of Labor spinelessness on LGBTI rights since Latham revealed himself to be an invertebrate on marriage equality.

Why there MUST be a Senate Inquiry into the Religious Discrimination Bill

I know that, for some of you, whether or not there is a Senate Inquiry on the Religious Discrimination Bill might seem like a fairly technical discussion. 

I hope I’ve convinced you that’s not the case, and shown why holding a Senate Inquiry is essential to independently and transparently scrutinise the biggest change to Commonwealth anti-discrimination law in 37 years.

And why we need this investigation to shine a light on any proposals that undermine the rights of women, LGBTI people, people with disability, divorced people and people in de facto relationships, and even people of minority faiths.

Of course, a Senate Inquiry is no guarantee this harmful legislation (if that’s what it turns out to be, because most of us have yet to see the final version) is ultimately defeated, or that its worst aspects are amended or at least ameliorated. It may still end up being passed.

But it would be a terrible sign if the Government is successful in avoiding a Senate Inquiry.

Perhaps think of it like this: if the Government was proud of this Bill and its key features, if it thought it could stand up to the rigour of independent and transparent consideration by a multi-partisan Committee, then it would gladly agree to it.

That Attorney-General Cash has publicly argued against doing so, suggests the final Religious Discrimination Bill will be a fundamentally bad law.

Instead, it seems they hope to ram it through Parliament, either late this year, or early next year, while everyone is distracted by other news: COVID-19, COP26 and global heating, the impending election campaign itself, and plenty more besides.

If they are successful, then the first time some people are aware it has even happened will be when they are refused a vital health care service. At their doctor. Or by their nurse. Or pharmacist. Or psychologist.

Or when they are subjected to vile comments about who they are. In their workplace. Or at their school or university. Or at another community service. Or on public transport.

Or any other public space in which making offensive, humiliating, intimidating, insulting or ridiculing comments about other people has been permitted as long as it’s motived by religious belief.

Attorney-General Michaelia Cash came empty-handed to Senate Estimates last week, unwilling to answer whether the Government supports a Senate Inquiry into the Religious Discrimination Bill, and unwilling to disclose who she has been ‘negotiating’ with about this legislation.

NSW MPs can be champions for trans and gender diverse kids. Or bullies.

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This Valentine’s Day, I have written the below letter to NSW Parliamentarians, asking them to show love for trans and gender diverse kids by unequivocally opposing Mark Latham’s proposed legislation which seeks to deny their existence. Please read through to the end of the article to find out what you can do to help fight back against his bullying.

14 February 2021

Dear NSW MPs

I am writing to urge you to immediately and publicly express your opposition to the Education Legislation Amendment (Parental Rights) Bill 2020.

This legislation makes me sick.

This legislation is sick.

This legislation is based on a sick ideology that it is better for trans and gender diverse kids not to exist at all, than for them to be happy and healthy, and to feel safe and supported in NSW schools.

I, and lesbian, gay, bisexual, transgender and intersex (LGBTI) people in this state, are sick and tired of wasting precious time and energy fighting against such ill-intentioned attacks on our community.

Especially when there is still so much progress left to achieve, including on legal rights for trans and gender diverse people, like providing access to birth certificates without the need for surgery or other invasive medical procedures, or ensuring the Anti-Discrimination Act 1977 covers non-binary people (something it currently does not).

Instead, the NSW Legislative Council’s Education Committee is holding an inquiry into a Bill which is nothing short of the worst legislative attack on LGBTI rights in Australia this century.

A Bill that seeks to prohibit any and all teaching that someone’s gender identity can be different to the gender assigned to them at birth.

That weaponises the so-called morality of transphobes to deny the reality of trans people.

A Bill that actually goes much, much further, by banning any ‘teaching, instruction, counselling and advice’ that acknowledges said lived reality, by anybody remotely connected to a school, from principals to parents volunteering in the school canteen.

That compels a school counsellor to remain silent when a suicidal trans student just needs to hear the most basic words of comfort: that they are not alone, and who they are is okay.

A Bill that recycles failed and flawed policies from Thatcher-era Britain, reviving ‘section 28’-style laws which saw a generation of lesbian, gay and bisexual students marginalised and made invisible, without access to safe sex education even at the height of the HIV epidemic.

Policies that were abandoned in the UK almost two decades ago, now being contemplated for LGBT students right here in 2021.

A Bill that seeks to insert an ignorant, inappropriate and incorrect definition of intersex in NSW law for the first time, further stigmatising individuals that still endure the most significant human rights abuses of any group within the LGBTI community.

It does all of this based on misguided claims that the rights of parents are somehow more important than those of their children. Perhaps the best that could be said regarding this stated motivation is that at least they are being transparent.

For decades, opponents of LGBTI rights have argued that we are a serious threat to the rights of children to be themselves. Demands for our equality have frequently been met with the pleas of excitable Helen Lovejoy-types exclaiming ‘won’t somebody please think of the children’.

Well, this legislation pulls back the curtain to reveal where the real danger lies, and it’s not us. The threat to LGBTI kids comes from parents who would prefer their own children not to exist than to be who they are, and from the politicians who wish to empower them.

This legislation is an admission that, if the criteria for assessing policy proposals is whether it is in the best interests of children, then the homophobes, biphobes and transphobes have lost. Because decades of evidence clearly shows the best response to LGBT kids is to offer them love not judgement, support not suppression.

Instead, anti-LGBTI activists have moved the goalposts, so that the rights of children are no longer supreme, but must be made secondary to the perspectives of parents. But even then only the views of some parents are considered paramount.

This legislation, if passed, would mean not only that transphobic parents succeed in ensuring their own children are not taught about gender identity issues, but that no child is, in any class, anywhere. That includes the trans and gender diverse kids of parents who accept them (as any parent should).

Education is, or at least should be, for all, not just for students who are cisgender, heterosexual and endosex. Schools must not be compelled to be participants in and proponents for the prejudices of some parents.

Teachers must be allowed to teach the truth. The undeniable truth is that trans people exist. Gay, lesbian, and bisexual people as well. Intersex people, too. 

These truths might be inconvenient for those who would prefer otherwise. But that is not a good enough reason to pass a law to impose silence where our stories should be.

The Education Legislation Amendment (Parental Rights) Bill 2020 was released more than six months ago. Its discriminatory pillars have been public knowledge for just as long.

Which makes it deeply disappointing, distressing even, that neither the NSW Government nor Opposition have clearly committed to voting against it in the time since then.

Recent events in the United States have served as a stark warning of the profound consequences of playing footsie with fascism.

NSW Parliamentarians should not encourage extremism, by entertaining the exclusion of an entire category of person from education. Make no mistake, that is exactly what this Bill does: it enables the erasure of trans and gender diverse students in every classroom and schoolyard across the state.

I understand that, regrettably, One Nation holds part of the balance of power in the Legislative Council this term. But it is a craven political calculation which concludes two Upper House votes are worth more than the happiness, the childhoods and in some cases even the lives of some of the community’s most vulnerable members.

Surely it is time for you to find your voice and say, finally, you cannot in good conscience stay silent on a proposal that silences trans kids. That you will oppose this harmful and hateful legislation in committee, in debate and whenever it comes up for a vote.

If you are not convinced by the above arguments, then I implore you to do one simple thing: put yourself in the position of a trans child following the potential passage of this Bill.

Imagine realising that, at a fundamental level, you are not like most of the other boys, or girls. You may not have the language yet, yet you know you are different.

But the words you need to express yourself aren’t able to be uttered in the place the Government compels you to attend most days of the first 18 years of your life. A place where you’re supposed to feel safe, but instead are sidelined.

There is nothing in the Personal Development, Health and Physical Education curriculum to say other people like you even exist. They have been excised from the textbooks, just as they’ve been excluded from English, History and other subjects too.

You cannot find any information about who you are in the school library because any books that mention gender diversity have been purged.

You cannot see yourself in any of the trans or gender diverse teachers who might be there either, because they are busy hiding themselves lest they be accused of ‘indoctrination’.

Imagine overcoming these barriers, and, with the support of your family, beginning to affirm who you really are. And then your problems really begin.

Your teacher cannot actively support your transition because to do so could be interpreted as ‘instruction’ to the rest of your class that trans people do, in fact, exist.

They also can’t intervene to stop you from being misgendered and deadnamed by other kids. To some extent, such bullying is inevitable because they’ve never been taught anything about people like you and ‘different’ too-easily, and too-rapidly, becomes ‘wrong’.

You cannot seek advice from the school counsellor, because the moment you start to say anything about gender identity they are forced to shut the conversation down. They’re not even allowed to refer you to the wonderful support service they’re aware of just down the road, but may as well be in a different universe.

And you cannot seek protection from the school principal because of the attitudes of parents and politicians who have never met you, but who hate who you are anyway.

Imagine how you might feel in this situation. How scared. And small. And alone. Even with the backing of a supportive family, it would be difficult. Without it, it would be almost impossible.

I don’t need to imagine very hard. Because there is a lot of similarity in what I described above to the circumstances I confronted as a gay student at a religious boarding school in Brisbane in the early 1990s.

And, if we’re being completely honest, there are still far too many same-sex attracted kids who find themselves in the same scenario in schools all over NSW today.

But it absolutely destroys my heart to think that, even today, NSW Parliament is holding an inquiry into a Bill that would guarantee this mistreatment for trans and gender diverse kids into the future, with the long-term psychological harm that all-too-often goes with it.

It doesn’t need to be this way.

I started this letter by talking about the sickness that lies at the centre of the Education Legislation Amendment (Parental Rights) Bill 2020, and the dangerous views that it espouses. But those views should not be the centre of this debate.

Instead, this discussion is about how we treat people who are not sick, but who are actually beautiful: trans and gender diverse kids.

Kids who deserve the same love, and care, and nurturing, as anybody else. Kids who have the same right to education as anybody else. Kids who should have the same ability to determine for themselves who they are, as anybody else.

As an elected representative in the NSW Parliament, you can be their champion. As part of the debate surrounding this Bill you can stand up and say that trans kids are welcomed and accepted, while transphobia is not.

You can let the people of NSW know, right now, that you will not let this legislation, or any subsequent legislative attacks on trans kids, pass.

Of course, you do have another option. Alternatively, you could choose to progress with consideration of this Bill, through the committee inquiry, and then onto the floor of Parliament for debate. You might even ultimately decide to vote for it.

If you do, then instead of being a champion for trans and gender diverse kids, you would be joining their bullies. And responsibility for the harms caused would be yours to own.

It’s time for you to make your decision about the Education Legislation Amendment (Parental Rights) Bill 2020. Champion. Or bully. The choice is yours.

Sincerely,

Alastair Lawrie

Things you can do:

The NSW Legislative Council Education Committee (chaired by Mark Latham himself) is conducting an online questionnaire about community views towards the Education Legislation Amendment (Parental Rights) Bill 2020, closing on Sunday 28 February 2021.

Unfortunately, many of the questions asked are (mis)leading. Nevertheless, organisations like the NSW Gay and Lesbian Rights Lobby and Equality Australia recommend completing the survey in the following way:

  • Go to the survey on the Committee’s website 
  • Fill in your details in response to the first question
  • At question 2 click ‘oppose’
  • Skip through the other questions
  • At question 8 share a story of a teacher who made an impact on your life
  • Identify yourself only to the extent you feel comfortable.

If you feel comfortable, you should also raise this issue directly with your local member of parliament (you can find a list of MPs here) and let them know you expect them to stand up for the right of everyone to an education, and that includes trans and gender diverse kids.

If you would like more information about the Bill itself, you can read my original post summarising the proposed legislation from August 2020, ‘I Stand With Trans Kids, and Against Mark Latham’.

Finally, 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 week – 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].

*****

Update 28 February 2021

I received the following correspondence on Thursday:

Dear Mr Lawrie

I write in response to your email of 14 and 15 February 2021, to the Hon Gladys Berejiklian MP, Premier and the Hon John Barilaro MP, Deputy Premier and Minister for Regional New South Wales, Industry and Trade, and Hon Sarah Mitchell MLC, Minister for Education and Early Childhood Learning regarding the Education Legislation Amendment (Parental Rights) Bill 2020. The Premier and Deputy Premier referred your correspondence to the Hon Sarah Mitchell MLC, Minister for Education and Early Childhood Learning. The Minister has asked me to respond on her behalf.

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

The Department of Education is committed to providing safe and supportive learning environments that respect and value diversity and are free from violence, discrimination, harassment and vilification. NSW public schools have legal obligations to protect and support their students.

We thank you for taking the time to express your concerns over the proposed bill. The NSW Government is working through the formal parliamentary process to address the matter and will communicate this once the process is finalised.

Should you require any further information you are welcome to contact [name and contact details omitted].

Yours sincerely

[Name omitted]

A/Director, Curriculum Secondary Learners

25 February 2021

Upon receiving this correspondence, I had three main thoughts:

First, it is disappointing that none of the Premier, Deputy Premier or even the Minister for Education responded directly to my original letter, instead delegating it to the Department of Education.

Second, it is frankly pathetic for the NSW Government to hide behind the committee inquiry process, as if this is an ordinary bill. It is not. It is an extreme proposal that seeks to erase an entire group of students from schools across the state. How much worse must a law be before NSW’s leaders show some leadership and declare that this type of legislation will not be tolerated, let alone considered?

Third, it reinforces the need for everyone who believes in an inclusive education, where all students have the right to learn irrespective of their sexual orientation, gender identity or sex characteristics, to make their voices heard. If you are reading this on Sunday 28 February 2021, please, please, please complete the parliamentary survey expressing your opposition to this Bill in question 2.

Stonewall 50: Bouquets & Bricks

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Today marks 50 years since the Stonewall Riots, a key moment in the history of LGBTI rights activism, both in the United States and around the world.

In a different world I had hoped to be in New York, attending the World Pride celebrations marking this significant anniversary – although unfortunately sometimes the more mundane parts of life, like mortgage payments, have other plans.

I wanted to be there to pay my respects to the activists who have come before us, and on whose shoulders we stand, who have paved the way towards the improved rights and increased acceptance many of us enjoy today.

Even though I may not be there in person I can still honour their achievements in my own small way, on this somewhat niche LGBTI rights blog, on the other side of the globe.

Thank you to the brave people at the Stonewall Inn who, in the early hours of June 28 1969, fought back against police oppression, and fought to end the injustice that was ubiquitous in the lives of queer people at that time.

Thank you to the trans and gender diverse people, the drag queens and the people of colour who have been at the forefront of this battle from the very beginning.

Of course, the Stonewall Riots was not the first instance of LGBTI people fighting back against abuse and mistreatment. Thank you too to the people at Compton’s Cafeteria, and Cooper Do-nuts, and likely other instances of queer rebellion that have been lost to history, because we were not the ones who were writing it.

Nor was Stonewall the starting point for LGBTI rights within the United States, with groups like the Mattachine Society and Daughters of Bilitis undertaking the comparatively-boring legal reform work – but who, in doing so, took far greater risks than we could possibly appreciate today.

Obviously, the story of LGBTI activism did not begin and does not end with the US either (a mistake we make all-too-often, especially on anniversaries like this).

Thank you as well to the countless campaigners for our rights around the world, from the advocates for homosexual recognition in Germany in the second half of the 19th century, to the courageous people fighting for decriminalisation in the 68 UN Member States where homosexuality remains criminalised today.

Looking closer to home, Australia’s most-famous instance of queer people celebrating amidst the spectre of police brutality had its own 40th anniversary just last year. Thank you to the 78ers, whose courage at that first Sydney Gay Mardi Gras helped inspire the generations here that followed.

Just as in the US, however, Mardi Gras was not the starting point for LGBTI rights in Australia.

Thank you to the people who stood up in the preceding decade, from the formation of the Homosexual Law Reform Society of the ACT in July 1969 (just one month after Stonewall, and who will celebrate their own 50th anniversary in four weeks’ time), through the early 70s activism of groups like Campaign Against Moral Persecution (CAMP for short), to the decriminalisation advocates in South Australia and elsewhere.

Thank you to the people who responded to the HIV/AIDS crisis in the 1980s, which decimated our community when it had only just begun to emerge from the darkness. You fought for your lives – and for all of us – and in doing so you kept the (candle)light alive.

Thank you to the HIV activists today, who understand that this struggle is not over.

Thank you to the law reformers, who over decades have secured the building blocks of legal equality, from anti-discrimination protections, to relationship recognition and most recently the right to marry the person we love.

Thank you to the trans and gender diverse activists, who have been fighting – against even greater resistance – for the right to live the lives you were always meant to. The battles for access to birth certificates and identity documentation, and health care, are not over.

Thank you to the intersex activists whose struggles seem bigger still. Many of whom are survivors of gross violations of the human right to bodily autonomy, but who speak out to stop those same coercive surgeries and treatments from being inflicted on others. And who must fight against the indifference of politicians, the arrogance of medical professionals and too-often the ignorance of other members of the LGBTI community.

Thank you to the queer people of colour, and especially to Aboriginal and Torres Strait Islander LGBTI people, who fight not just against homophobia, biphobia, transphobia and intersexphobia, but also against the racism that lies at the heart of our country (and, sadly, within our own community too).

As can be seen from the above, the incredible progress made so far on LGBTI rights has been achieved because of the work of more than any one particular individual or organisation. We have all played a role.

From the brave people who threw the first bricks at Stonewall. To others who have thrown bricks through the legal, social and cultural discrimination which LGBTI people all-too-commonly faced. And everyone who has thrown their own bricks through the closet of invisibility and shame that too many people have endured.

With those bricks we have built ourselves a community, and a home, where more people than at any point in history can feel accepted for who they are, no matter their sexual orientation, gender identity or sex characteristics.

But, as we all know, the house of LGBTI rights remains incomplete – there is still much unfinished business, in Australia, the United States and around the world, before all lesbian, gay, bisexual, transgender and intersex people can finally be considered ‘free & equal’.

Which means we need more (metaphorical) brick-throwers, to smash down the walls of homophobia, biphobia, transphobia and intersexphobia that keep many LGBTI community members imprisoned.

So today, as we celebrate Stonewall 50, and give thanks to the LGBTI activists who have made our world a better place, we should take a moment to reflect on what each of us can do, what we should do, and what we must do, to carry on their work.

the_stonewall_riots_didnt_start_the_gay_rights_movement_1050x700

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Submission re Foreign Policy White Paper

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Update:

 

The Foreign Policy White Paper was released in November 2017 (under then Foreign Minister Julie Bishop, and then Prime Minister Malcolm Turnbull).

 

While in all four areas raised in my submission there were improvements from the call for submissions, in each the final outcome remains unsatisfactory.

 

First, after having not even mentioned climate change in the original call for submissions, the White Paper at least discusses climate change and some of the implications it raises for Australia, both here and internationally. This includes from page 33 and again from page 84.

 

However, there is little indication that climate change will be THE international policy challenge facing Australia in the 21st century, and very little discussion about what we will do to avoid it (although perhaps that has more do to with the complete lack of domestic commitment to combatting climate change).

 

Second, and again after not mentioning refugees, people seeking asylum and displaced persons as an issue in the call for submissions, the White Paper does at least discuss the challenge posed by more than 60 million displaced people around the world – albeit in a somewhat cursory fashion on pages 92 and 93 (and with little indication how we will play our role in helping to stop that number from growing even further).

 

Third, there is now some discussion of Australian aid, and the role that it can (and should) play, particularly in the Asia-Pacific region (including a commitment on page 97 that: “Australia will continue to work with international institutions such as the World Health Organization to help prevent, detect and respond to health emergencies and to combat antimicrobial resistance. Australia will invest a further $220 million in the Global Fund to Fight AIDS, Tuberculosis and Malaria, which as saved more than 20 million lives since 2002.”)

 

Although, perhaps unsurprisingly, there is no discussion of how Australia intends to restore our foreign aid budget to at least the 0.50% of GDP target which used to have bi-partisan support, let alone reach the 0.70% United Nations target.

 

Fourth, and finally, the term human rights also makes a belated and welcome appearance in the Foreign Policy White Paper. In particular, there is a pleasing focus on gender equality, and improving the situation for women and girls, both in our region and around the world.

 

However, despite the fact that up to 72 countries continue to criminalise homosexuality (source: ILGA 2017 State-Sponsored Homophobia Report), including our nearest neighbour Papua New Guinea, there is exactly zero reference to support for LGBTI rights around the world.

 

In contrast, there are multiple references of support for freedom of religion (reflecting the same disproportionate attention given to that right, over and above the rights of LGBTI people, that has dominated the Liberal-National Government during the Abbott, Turnbull and now Morrison leaderships).

 

Original Post:

 

 

Below is my personal submission regarding the development of the Australian Government’s Foreign Policy White Paper. Submissions close Tuesday 28 February 2017. For more details, please see the Department of Foreign Affairs & Trade’s website.

**********

Foreign Policy White Paper Submission

c/- whitepaper@dfat.gov.au

 

To whom it may concern,

 

Submission re Foreign Policy White Paper

 

Thank you for the opportunity to provide a submission to inform the Australian Government’s development of its Foreign Policy White Paper.

 

This is a personal submission, prompted by the four-page Call for Submissions, published on the Department of Foreign Affairs and Trade website.

 

In this submission, I will address four main issues that I believe must be addressed in any responsible Foreign Policy White Paper: climate change; refugees; foreign aid; and human rights.

 

Which is why it was so disappointing to note that three of these four issues were not mentioned, at all, in that four-page document.

 

There was not even a single mention of the threat posed by global warming, the humanitarian challenge of the growth in displaced persons and people seeking asylum, or the need to promote the human rights of all people, including lesbian, gay, bisexual, transgender and intersex (LGBTI) people, around the world.

 

Admittedly, there was at least one cursory reference to “our overseas development assistance program”, although, as we shall see below, even that was inadequate.

 

In any event, please see below my explanation of why each of these four policy areas must form a central part of the Foreign Policy White Paper that is expected to be released in late 2017.

 

  1. Climate Change & Global Warming

 

I find it extraordinary that the White Paper call for submissions completely failed to mention[i] what must be the most important challenge facing the world in the 21st century: climate change, and specifically accelerating global warming.

 

In 2017, there is no doubt that the actions of humans have contributed to a rapidly warming planet. Indeed, the Government’s own Bureau of Meteorology confirmed, in its most recent Annual Climate Statement[ii], that:

 

  • 2016 was Australia’s fourth warmest year on record, 0.87 degrees above the long-term average
  • It was also the warmest year on record for ocean temperatures in the Australian region, with an annual mean sea surface temperature 0.73 degrees above average, and
  • Our three most populous states, NSW, Victoria and Queensland, also had the highest average minimum temperatures on record during the past 12 months.

 

Globally, the news is even more confronting. The same report confirmed that:

 

  • 2016 was the warmest year on record around the world, 0.83 degrees above the long-term average
  • “This surpasses the previous record set in 2015, and is the third year running that the new record has been set” [emphasis added]
  • January, February, March, April, July, August and December 2016 were all the warmest respective months on record, and
  • “The global ocean surface temperature for the calendar year was also the warmest on record in 2016, surpassing the record set in 2015.”

 

This is nothing short of a climate emergency. And it is a situation that will directly affect Australia, and its people, just as it affects every other country and people in the world (after all, if the planet cooks, we will all cook with it).

 

The threat of climate change is an international problem – consequently, the response to it must be international in nature too. That includes a response from Australia, both through domestic policy (with the introduction of an effective price on carbon), but also in its foreign policy settings.

 

Climate change generally, and global warming specifically, may well be the most significant challenge we, as a species, have ever faced. I believe responding to this threat must be the number one priority of any new Foreign Policy White Paper that the Australian Government produces.

 

170227-climate-change-final

Climate change is real, and it cannot be ignored (source: Bureau of Meteorology).

 

  1. Refugees and People Seeking Asylum

 

A second issue that, almost as bizarrely, is not even mentioned in the Foreign Policy White Paper call for submissions is the growing number of displaced people around the world, including refugees and people seeking asylum.

 

This is despite the fact that the most recent Global Trends: Forced Displacement report by the United Nations High Commissioner for Refugees (UNHCR)[iii] noted that “[g]lobal forced displacement has increased in 2015, with record-high numbers.”

 

Indeed, that same report revealed there were:

 

  • 65.3 million forcibly displaced persons worldwide, including
    • 21.3 million refugees
    • 40.8 million internally displaced persons, and
    • 3.2 million asylum seekers
  • 12.4 million people newly displaced due to conflict or persecution in 2015 alone, and
  • 2.0 million asylum applications submitted (a new record-high) with 441,900 asylum claims just in Germany as a result of the war in Syria.

 

It should not have taken widely-shared, tragic photographs of Alan Kurdi in September 2015 to make us realise this is truly a global humanitarian crisis.

 

The numbers alone confirm that this is an international issue of the highest order, and addressing its causes, while responding to the consequences, must be a foreign policy priority for all countries, including Australia.

 

One of the many depressing statistics found in the UNHRC’s report confirms that it currently is not: “[d]uring 2015, the total number of refugees admitted for resettlement stood at 107,100”[iv]. That’s 107,100 out of a total of 21.3 million.

 

Of course, the Australian Government may claim that, given 9,400 of those refugees were resettled here (the third-highest of any country), we do not need to do more.

 

But that ignores the fact we benefit from our location, and isolation, and therefore do not have the same number of in-country applications for asylum as other places. And it also overlooks the wealth and privilege we currently enjoy.

 

As a country we can, and must, do more in response to the growing number of displaced persons around the world, and that should be reflected in our new Foreign Policy White Paper.

 

170227-unhcr-forced-displacement-2015-final

Source: UNHCR

 

  1. Foreign Aid

 

The one issue, out of the four priority areas highlighted above, that is at least touched on in the call for submissions is foreign aid. Topic 5: Australia confronts a range of strategic, security and transnational challenges on page 3 includes the following question:

 

“How can our foreign policy, including our overseas development assistance program, support a more prosperous, peaceful and stable region?”

 

However, while this question at least acknowledges the importance of foreign aid (or in this case ‘overseas development assistance’), it does so largely within the framework of Australia’s national interest, rather than in the context of our common humanity.

 

Irrespective of this broader ‘framing’, one of the main answers to this question is actually to increase our foreign aid spending.

 

Drastic budget cuts to Australia’s foreign aid budget in recent years – with $1 billion, or 20%, cut in 2015-16, and a further $224 million reduction in 2016-17 – have seen foreign aid as a share of Gross Domestic Product (GDP) fall to an estimated 0.23%[v].

 

Indeed, “[b]etween 2012 and 2016, Australia’s foreign aid as a share of national income has fallen steeply from 0.36% to 0.23%.”[vi]

 

This leaves our foreign aid allocation at less than half the previous bipartisan goal of reaching 0.5% of GDP by 2015.

 

And, significantly, it is less than one third of the United Nations target that countries provide at least 0.7% of their national income as foreign aid.

 

The cuts to foreign aid have the potential to cause real and lasting damage across our region, and around the world, to countries and people that can least afford it.

 

As a result, I believe that the Foreign Policy White Paper should feature both a recommitment to the United Nations target, as well as a de-coupling of our foreign aid budget from an almost-exclusive focus on Australia’s national interest.

 

If we fail to do either, then we are at grave risk of changing from the land of ‘the fair go’ to the country of ‘what’s in it for us?’

 

170227-foreign-aid-gdp

Foreign aid as a share of GDP is plummeting, according to the Government’s own figures (source: The Conversation).

 

  1. Human rights, including LGBTI rights

 

There is one final issue that is completely omitted from the four-page Call for Submissions regarding the Foreign Policy White Paper: international human rights.

 

As a long-term LGBTI advocate and activist, I would like to focus on one specific sub-set of international human rights – the rights of lesbian, gay, bisexual, transgender and intersex people around the world.

 

In June 2016, the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) estimated that same-sex sexual acts were illegal in 72 states, or a full 37% of United Nations members[vii]. This includes 13 States (or part thereof) where same-sex sexual acts attract the death penalty.

 

The criminalisation of homosexuality is also a particular problem in our own region of Oceania, with prohibitions in our nearest neighbour Papua New Guinea, as well as Kiribati, Samoa, Solomon Islands, Tonga and Tuvalu (plus Cook Islands who are associates to New Zealand).

 

There are an additional four countries in South-East Asia where same-sex acts remain illegal (Brunei Darussalam, parts of Indonesia, Malaysia and Singapore).

 

Long-standing LGBTI advocate Peter Tatchell last week actually stated that “[t]here remain 75 countries and dependent territories that still criminalise same-sex relations – with nearly half of these jurisdictions outlawing both male and female homosexuality”.[viii]

 

And, in a specific challenge to countries like the United Kingdom and Australia, he observed that “[h]omosexuality remains criminalised in 36 out of the 52 Commonwealth member states” where “[m]ost of these anti-gay laws were imposed by Britain during the colonial era.”[ix]

 

The ongoing criminalisation of people on the basis of their sexual orientation, as well as other anti-LGBTI human rights abuses such as the involuntary sterilisation of intersex infants and the failure to recognise and accept trans and gender diverse people, is a major problem in the early 21st century.

 

I believe Australia should adopt a pro-active role in supporting groups that are working to address these human rights violations, both in our region (where, as we have seen above, there is plenty of work still to do) and around the world.

 

We should also seek, wherever possible, to progress the positive recognition and acceptance of LGBTI human rights in international forums, including the United Nations as well as other groups such as the Commonwealth Heads of Government Meeting (CHOGM).

 

Finally, both of these activities – support for the work of LGBTI rights organisations in our region and globally, as well as the pursuit of LGBTI human rights internationally – should be reflected in the Foreign Policy White Paper.

 

170227-ilga-sexual-orientation-criminalisation-map

Same-sex sexual activity remains criminalised in far too many countries around the world (source: ILGA).

 

**********

 

Obviously, in each of the four issues outlined in this submission – climate change, refugees, foreign aid and LGBTI rights – the Australian Government can be legitimately criticised for not doing enough to achieve progress domestically.

 

We can and must do better in terms of reducing our own carbon emissions, of adopting a more humane approach to refugees and people seeking asylum, of increasing our foreign aid budget and of respecting the rights of lesbian, gay, bisexual, transgender and intersex Australians.

 

But, at the same time as addressing these ourselves, I believe we can – and above all must – help to achieve progress on these issues globally, because the rise of global warming, the growth in the number of displace persons, the unmet need for foreign aid, and discrimination against LGBTI people, are problems that transcend state borders.

 

Which means the solutions cross state borders too – and that therefore Australia has a role to play in fixing them.

 

Thank you in advance for taking this submission into account as the Australian Government develops its Foreign Policy White Paper.

 

Please do not hesitate to contact me, at the details provided, should you require additional information.

 

Sincerely,

Alastair Lawrie

 

Footnotes:

[i] Question 2, on page 3 of the call for submissions, refers to ‘environmental degradation’, a phrase that is so vague it can be interpreted in multiple ways, and does not begin to capture the urgency of the climate emergency we currently face.

[ii] Bureau of Meteorology Annual Climate Statement 2016.

[iii] UNHRC, Global Trends: Forced Displacement in 2015.

[iv] Ibid, page 26.

[v] The Conversation, Savage budget cuts pull Australia down in foreign aid rankings, May 4, 2016.

[vi] Ibid.

[vii] See ILGA, State-Sponsored Homophobia 2016 report here.

[viii] Guardian, There are reasons to be cheerful… LGBTI rights gains in unlikely countries, February 20, 2017.

[ix] Ibid.

Submission to Alex Greenwich Discussion Paper re Removing Surgical Requirement for Changes to Birth Certificate

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Alex Greenwich MP

58 Oxford St

PADDINGTON NSW 2021

sydney@parliament.nsw.gov.au

Friday 21 August 2015

Dear Mr Greenwich

SUBMISSION ON DISCUSSION PAPER RE REMOVING SURGICAL REQUIREMENT FOR CHANGES TO BIRTH CERTIFICATE

Thank you for the opportunity to provide this short submission in response to the above-mentioned Discussion Paper, and for highlighting what is clearly an important issue for transgender people in NSW.

I should begin by noting that I am writing this from the perspective of a cisgender gay man and that, if this submission is contrary to the views expressed by trans* individuals and organisations, then those submissions should obviously be preferred.

Nevertheless, as a long-term advocate and activist within the lesbian, gay, bisexual, transgender and intersex (LGBTI) community, I find it hard to disagree with the premise of the Discussion Paper which is that trans* people should not be required to undergo irreversible sex affirmation surgical procedures before being able to apply to amend their birth certificate.

Similarly, I can see no valid reason why the approach which has been adopted by Ireland – and which is described in the Discussion Paper as ‘world’s best practice’ – should not be adopted here.

This approach – allowing transgender individuals to legally change their birth certificate through a statutory declaration process without any need for medical documentation – has a number of significant advantages.

These include:

  • Recognising the diversity of experience within the transgender community
  • Respecting the personal autonomy of people to identify themselves and
  • Removing the unnecessary ‘medicalisation’ of this process.

Above all, adopting the Irish approach would make it easier for trans* people to obtain documentation which reflects their gender identity, which is a positive outcome in and of itself.

I look forward to seeing the Final Report of this consultation later in 2015, and to the ongoing work of yourself and the NSW Cross-Party LGBTI Working Group on a wide range of other, related issues, including (but not limited to):

  • The abolition of incredibly unjust ‘forced trans* divorce’ laws
  • The removal of exceptions to the NSW Anti-Discrimination Act 1977 which allow private schools to discriminate against trans* students and teachers[i] and
  • The abolition of the unjustifiably broad exceptions granted to religious organisations in sub-section 56(d)[ii] of the same Act.

Thank you in advance for taking this submission into account. Please contact me at the details provided below if you would like clarification or further information about any aspect of this submission.

Sincerely,

Alastair Lawrie

[i] Section 38K of the NSW Anti-Discrimination Act 1977, which covers education, provides that “[n]othing in this section applies to or in respect of private educational authorities”.

[ii] “Nothing in this Act affects: … (d) any other act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.”

State Member for Sydney Alex Greenwich (source NSW Parliament website).

State Member for Sydney Alex Greenwich (source: NSW Parliament website).

Submission to South Australian Law Reform Institute Consultation on Removing LGBTIQ Discrimination

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South Australian Law Reform Institute

c/- salri@adelaide.edu.au

Monday 6 July 2015

 

To whom it may concern,

Submission to South Australian Law Reform Institute Consultation on Removing LGBTIQ Discrimination from South Australian Laws

Thank you for the opportunity to provide this submission to the South Australian Law Reform Institute (SALRI) public consultation on removing discrimination against lesbian, gay, bisexual, transgender, intersex and queer people from South Australian laws.

While I am not a resident of South Australia, I am a passionate advocate for LGBTI rights, and I provide the following comments on possible ways to improve the legal situation of LGBTI people in South Australia, especially in terms of their protections under anti-discrimination law.

Specifically, I would like to suggest three major reforms to the South Australian Equal Opportunity Act 1984 (the ‘Act’), namely:

  1. Amend protected attributes to:
    1. Modernise wording around gender identity, and
    2. Genuinely include intersex status.

The Equal Opportunity Act 1984 currently provides protection to lesbian, gay and bisexual people through section 29 (and subsequent provisions of the Act), because of the definition of ‘sexuality’ in section 5: “sexuality means heterosexuality, homosexuality and bisexuality.”

While the SALRI may wish to consider whether to recommend amendments to the wording of these attributes (potentially to ‘sexual orientation’, to ensure consistency with the provisions of the Commonwealth Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013), the primary concerns around protected attributes, and how they are drafted, are in respect of transgender and intersex individuals.

For example, protections for transgender people are based on the term ‘chosen gender’, which is defined under sub-section 5(5) of the Act as: “a person is a person of a chosen gender if –

  • the person identifies on a genuine basis as a member of the opposite sex by assuming characteristics of the opposite sex (whether by means of medical intervention, style of dressing or otherwise) or by living, or seeking to live, as a member of the opposite sex…”

Based on my understanding of transgender activism, and through recent developments of anti-discrimination law within Australia, it is highly likely that using the term ‘chosen gender’, and then defining it in this way, is not best practice.

For example, the Commonwealth Sex Discrimination Act 1984 protections are instead based on ‘gender identity’, which is defined in section 4 of that Act as: “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.”

The Commonwealth definition appears to be significantly more inclusive, especially because it does not use descriptors such as ‘opposite sex’ and therefore avoids strict gender binaries, allowing people who do not identify as either male or female to also be protected.

I suggest the SALRI consider recommending the South Australian Equal Opportunity Act 1984 be amended to incorporate the term, and definition of, ‘gender identity’ from the Commonwealth Sex Discrimination Act 1984.

In a similar way, it is possible that the drafters of subsection 5(5) of the South Australian Equal Opportunity Act 1984 believed that they were including people with intersex variations, when they wrote: “a person is a person of a chosen gender if – …

  • the person, being of indeterminate sex, identifies on a genuine basis as a member of a particular sex by assuming characteristics of the particular sex (whether by means of medical intervention, style of dressing or otherwise) or by living, or seeking to live, as a member of the particular sex.”

However, once again based on my understanding of intersex activism, and on recent developments in anti-discrimination law (particularly at the Commonwealth level, and more recently in Tasmania), it is clear that this definition is not best practice – and is, in fact, inadequate to ensure protection for people on the basis of intersex status.

For this reason, the SALRI should consider recommending that South Australia adopt the provisions of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, which was the first anti-discrimination legislation in the world to include ‘intersex status’ as a stand-alone protected attribute.

As a result of those reforms, ‘intersex status’ is now defined in section 4 of the Commonwealth Sex Discrimination Act 1984 as: “intersex status means the status of having physical, hormonal or genetic features that are:

  • neither wholly female nor wholly male; or
  • a combination of female and male; or
  • neither female nor male.”

Adopting this definition would ensure a far larger proportion of people with intersex variations would have protection under South Australia’s anti-discrimination laws.

Obviously, as a cisgender gay man, I am not an expert on either of the grounds of gender identity or intersex status. That is why these issues have been framed as suggestions – and if this is something that the SALRI wishes to take up in more detail, it should do so in close collaboration with South Australian and/or national transgender and intersex advocacy organisations to ensure that whatever language is ultimately adopted is the best, and most inclusive, possible.

  1. Remove broad exceptions granted to religious organisations

The current exceptions which are offered to religious organisations in the Equal Opportunity Act 1984 are overly generous, and their scope should be significantly narrowed.

Section 50 of the Act provides:

“Religious bodies

1. This Part does not render unlawful discrimination in relation to –

a. the ordination or appointment of priests, ministers of religion or members of a religious order; or

b. the training or education of persons seeking ordination or appointment as priests, ministers of religion or members of a religious order; or

ba. the administration of a body established for religious purposes in accordance with the precepts of that religion; or

c. 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.”

While both subsections 50(1)(a) and (b) appear to be necessary to protect the genuine exercise of freedom of religion, subsection 50(1)(ba) would only be justified on this basis if it was limited to the operation of explicitly or overtly religious bodies (like churches) and should not apply to other institutions which may be operated by religions but which have a different primary purpose (for example, schools, hospitals, aged care services or other community services).

Subsection 50(1)(c) is also completely unjustifiable given it provides what amounts to essentially a ‘blank cheque’ to organisations that are operated by religious groups to discriminate against lesbian, gay, bisexual or transgender (LGBT) South Australians, both in employment and in service delivery.

There should not be a general right to discriminate against LGBT people, across multiple areas of public life like education, health, aged care or community services, simply because of the religious beliefs of certain individuals or organisations. LGBT South Australians deserve the right to access services, and to apply for or undertake employment, in the public sphere without the threat of being discriminated against solely on the basis of who they are.

The Commonwealth Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, which specifically excluded religious exceptions from applying to LGBT people accessing aged care services operated by religious organisations, has successfully demonstrated that:

  1. It is possible to restrict these religious exceptions in law, and
  2. After two years of operation, there have been no practical problems in the application of such provisions.

Even more relevantly, the Tasmanian Anti-Discrimination Act 1998 has not granted explicit exceptions to protections on sexual orientation, gender identity or intersex status to religious organisations – and this approach has also worked well over the past decade.

For example, under the Tasmanian legislation, religious organisations have traditionally only been allowed to discriminate in terms of:

  1. Employment based on religion (section 51)[1] or
  2. Participation in religious observance (section 52)[2].

I suggest that the SALRI consider the long-standing Tasmanian exceptions, which do not allow for general discrimination against LGBTI people on the basis of their sexual orientation, gender identity or intersex status, but only on the grounds of religious belief or activity, as a ‘best practice’ guide to help reform the South Australian Equal Opportunity Act 1984 and therefore improve the anti-discrimination protections which are offered to LGBTI South Australians.[3]

  1. Introduce anti-vilification protections for LGBTI South Australians

The final suggestion relates to the issue of anti-lesbian, gay, bisexual, transgender and intersex vilification.

Specifically, it is to recommend the creation of anti-vilification laws, on the basis of sexual orientation, gender identity and intersex status, which are equivalent to the race-based anti-vilification provisions of the South Australian Racial Vilification Act 1996[4].

To put it bluntly, there is no justification whatsoever to have anti-vilification laws which protect people from racist vilification, but to simultaneously not have anti-vilification laws which apply to homophobia, biphobia, transphobia and intersexphobia.

Homophobia, biphobia, transphobia and intersexphobia are just as unacceptable, and, most importantly, just as harmful, as racism – with significant impacts on the mental health of young LGBTI people in particular. If, as a community, we have (or in this case, South Australia, has) resolved to outlaw racist vilification, then similar laws should also be used to outlaw homophobic, biphobic, transphobic and intersexphobic vilification.

Currently, four Australian jurisdictions (NSW, Queensland, the ACT and Tasmania) have anti-vilification laws which cover (at least some of) the lesbian, gay, bisexual, transgender and intersex communities.

However, given neither the Commonwealth Sex Discrimination Act 1984, nor South Australian law, have any vilification protections on these grounds, none of the LGBTI communities in South Australia have any legal protection from similar conduct.

This situation should change – and I suggest the SALRI recommend the creation of new anti-vilification laws which prohibit vilification on the basis of sexual orientation, gender identity and intersex status.

The past 18 months have seen an extensive community conversation about race-based vilification laws at the Commonwealth level, and specifically whether section 18C of the Racial Discrimination Act 1975 should be repealed, amended or retained.

The outcome of this debate appears to be relatively strong community support for the retention of section 18C. As such, I believe the SALRI should take advantage of this moment to recommend that another marginalised group within Australian society should be offered the same shield against conduct which is similarly destructive.

Thank you again for the opportunity to make a submission to the South Australian Law Reform Institute (SALRI) public consultation on removing discrimination against lesbian, gay, bisexual, transgender, intersex and queer people from South Australian laws.

I look forward to the outcome of this consultation, and to the consequent improvements to South Australia’s laws – hopefully including the reforms to the Equal Opportunity Act 1984 recommended in this submission.

Sincerely,

Alastair Lawrie

[1] “Section 51: Employment based on religion.

(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 observance or practice of a particular religion 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 or 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.”

[2] “Section 52: Participation in religious observance.

A person may discriminate against another person on the ground of religious belief or affiliation or religious activity in relation to –

  • the ordination or appointment of a priest; or
  • the training and education of any person seeking ordination or appointment as a priest; or
  • the selection or appointment of a person to participate in any religious observance or practice; or
  • any other act that –
    • is carried out in accordance with the doctrine of a particular religion; and
    • is necessary to avoid offending the religious sensitivities of any person of that religion.”

[3] However, I do not believe there is any reason to include the recently added, unnecessary – and unnecessarily discriminatory – provisions included in section 51A of the Tasmanian Act which state: “Section 51A. Admission of person as student based on religion.

(1) A person may discriminate against another person on the ground of religious belief or affiliation or religious activity in relation to admission of that other person as a student to an educational institution that is or is to be conducted in accordance with the tenets, beliefs, teachings, principles or practices of a particular religion.

(2) Subsection (1) does not apply to a person who is enrolled as a student at the educational institution referred to in that subsection.

(3) Subsection (1) does not permit discrimination on any grounds referred to in section 16 other than those specified in that subsection.

(4) A person may, on a ground specified in subsection (1), discriminate against another person in relation to the admission of the other person as a student to an educational institution, if the educational institution’s policy for the admission of students demonstrates that the criteria for admission relates to the religious belief or affiliation, or religious activity, of the other person, the other person’s parents or the other person’s grandparents.”

[4] Section 4 of the SA Racial Vilification Act provides: “Racial vilification. A person must not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of their race by –

  • threatening physical harm to the person, or members of the group, or to property of the person or members of the group; or
  • inciting others to threaten physical harm to the person, or members of the group, or to property of the person or members of the group.

Maximum penalty:

If the offender is a body corporate – $25 000.

If the offender is a natural person – $5 000, or imprisonment for 3 years, or both.”

10 Things I Hate About Marriage Inequality. #1: Because I can’t marry the man I love

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The number one reason why I hate marriage inequality in Australia is because it means that I cannot marry the man who I love.

Me (on the left) and Steven (aka the handsome guy with the sunnies).

Me (on the left) and Steven (aka the handsome guy with the sunnies).

I was half-tempted to leave it at that because, really, what more do I need to say?

There can be few things more beautiful than the desire to celebrate the love that you have for your partner, in front of your family and friends. I want to experience that with Steve, the person I care about most in the world, and who brings me more happiness than I ever thought possible.

At the same time, there can be few things uglier than a Government intervening to tell you “No”, you cannot experience that, simply because of your sexual orientation (or, for others, gender identity or intersex status). Especially when there is absolutely no legitimate reason why the Marriage Act 1961 should discriminate against LGBTI-inclusive couples, something that is incredibly frustrating, to Steve and me, and to the thousands of other Australian couples in the same situation.

Obviously, the issue of marriage equality is very personal for all of the people that it directly affects. And, in that, I am no different. It does affect me personally and, as the people closest in my life can attest (and as this countdown has made exceptionally clear) I take its denial very personally.

How could I not? When you celebrate wedding after wedding, of your sister, and your brother, and your cousins, and your partner’s extended family, and your friends and his friends as well, and you just want to do the same, yet you cannot because 139 Senators and Members of the House of Representatives back in September 2012 decided that you are ‘unworthy’ simply because you’re gay, well, how could that not feel like a knife right through your heart?

In fact, there are very few contemporary public policy issues for which the old maxim – that the personal is political – could be more accurate. The recognition of our relationships is obviously immensely personal, and it is impossible to deny that whether they are recognised or not, or recognised but with a lesser value than cisgender heterosexual relationships, is inherently political.

That particular saying works the other way, too. The position that each of our parliamentarians adopts on this political issue reflects something profound about who they are as a person as well.

And I’m not just talking about the Cory Bernardis or Helen Polleys of this world, either – Senators who thought it appropriate to link the prospect of marriage equality with bestiality and the Stolen Generation, respectively – although their parliamentary speeches certainly revealed their utter contempt for LGBTI Australians.

I am talking about the MPs who might not say anything ‘overtly’ homophobic during Parliamentary debates about marriage, but who cast their vote against equality nonetheless. In doing so, they indicate that they choose discrimination and inequality over love and inclusion. They stand up against the idea that all Australians deserve equal treatment under the law, instead supporting the notion that some people are ‘more equal’ than others.

Those who vote against marriage equality devalue our relationships, telling us that they are less worthy of recognition than those of other people. And they devalue us as individuals too, subtly (or in some cases, not so subtly) sending the signal that we are less than full citizens of our own country. Even if they do not say the words, their position reveals, loud and clear, that they believe LGBTI people are – and should be – second class.

At its most personal, an MP who votes against marriage equality is saying that they themselves are more deserving of certain rights, that their own relationships are more worthy of recognition, that they as individuals are simply better than LGBTI Australians.

To them I say, “How dare you”. How dare you suggest that, because I am gay and you are heterosexual, you are more deserving of certain rights than I am. And how dare you deny us the rights that you currently enjoy (whether you choose to exercise them or not) simply because we are in a same-sex relationship and you are not.

The love that Steve and I share is not better or worse, more valuable or less valuable, or more deserving or less deserving, than the love between cisgender heterosexual couples. It’s all just love. The law should not make a distinction between the love that Steve and I have for each other, and that between my sister and her husband, or my brother and his wife.

Sadly, because of the amendments made under the Howard Government in August 2004, and the failure of our MPs since then to remedy this discrimination, the law does make such a distinction.

Today, Wednesday 13 August 2014, those amendments, that legal distinction, this ongoing and unjustified discrimination against LGBTI Australians, ‘celebrates’ its own ten year anniversary.

The traditional gift for a ten-year wedding anniversary is tin. I’m sure you’ll forgive me for not wanting to buy anything special to mark the occasion.

What I will do, what I feel compelled to do on this day, is say to all of those MPs who voted against equality in 2004, and continue to do so now, you truly are the tin men and tin women of Australian politics. You have forgotten that you have hearts, or, at the very least, you have forgotten how to use them. Indeed, it seems you have forgotten what hearts are even there for.

Well, now is the time to rediscover their purpose. And now is also the time to rediscover your purpose as our elected representatives – that it is your responsibility to act for the betterment of Australia, and the welfare of its people, all of its people, not just the cisgender heterosexual ones.

On this, the 10th anniversary of the ban, it’s time to support marriage equality, and in so doing to support the full and equal citizenship of all Australians, irrespective of sexual orientation, gender identity and intersex status. If you do, if you finally agree to pass marriage equality, then you should rest assured that nothing bad will happen. The sky will not fall in. There will be no negative consequences whatsoever.

The only outcome will be overwhelmingly positive. Thousands, indeed tens of thousands, of couples will finally be able to express their love and commitment in front of their family and friends. Couples like Steve and me. We are ready and waiting to say those two small words to each other, “I do”. We just need you to say two other words first, “You can.”

10 Things I Hate About Marriage Inequality. #2: Because we’ve been waiting so damn long

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Updated 12 August 2016:

The twelve year anniversary of Australia’s ban on marriage equality is now only 24 hours away. Unfortunately, the long-awaited repeal of the ban is still some time off.

The best-case scenario: Malcolm Turnbull and his Liberal-National Government abandon their unnecessary, wasteful and harmful plebiscite, hold a free vote and marriage equality becomes law before the 13th anniversary. Alternatively, we could see marriage equality passed later this term, after the plebiscite has wreaked its havoc on young and vulnerable LGBTI people. We could even see marriage equality delayed beyond this term, until sometime in the 2020s (yes, you read that right – 2020s).

No matter when it (eventually) happens, there will be thousands upon thousands of Australian LGBTI-inclusive couples who have been waiting, and waiting, and then waiting some more, simply to exercise the same rights that our cisgender heterosexual counterparts enjoy without question. And, to me at least, the waiting itself has become both seemingly interminable, and insufferable.

Australian Marriage Equality effectively tapped into that sentiment with one of its main campaigns of 2014, with stories and images of couples with the ‘We’re Waiting’ message. That campaign was both an accurate reflection of the feelings of many within the LGBTI community, and a reminder to decision-makers that this policy choice is not abstract, but affects ‘real people’ in all-too-real ways [Alas, two years later that wait continues].

It is the human element of the ongoing ban, the costs of being forced to wait, that I want to concentrate on here. Because the delay of being able to get married, for years or even decades, carries with it very real consequences for the couples involved.

The first consequence is that it directly affects the ability of couples to celebrate their wedding with all of the family members and friends who they would like to be there for their special day. For those couples that do not choose to travel overseas (which itself obviously limits who is able to attend), by forcing LGBTI-inclusive couples to wait to marry within Australia the Parliament is effectively interfering with the ‘guest list’ of many couples.

From Steve and my perspective, as I have written before, we are both very conscious of the fact that, the longer the ban on marriage equality goes on, the less likely it is we will be able to have our remaining grandmothers there for the occasion (either for reasons of ill-health, or worse). They certainly could have been there had we been married four or five years ago (ie after an engagement of 12 or 24 months), but even today it is becoming doubtful [In 2016, it is now clear my grandmother won’t be able to travel to our wedding due to declining health].

I often imagine how ‘traditional marriage’ or ‘family values’ or even ‘small government’ campaigners would react if the Commonwealth Parliament intervened to tell them who they could, or could not, invite to their wedding. I suspect they would probably have a pretty spectacular hissy fit. And yet that is exactly what they are seeking to impose on us – stealing from us our ability to celebrate our weddings with who we choose.

The second consequence is another ‘theft’, but the effects of it won’t become apparent for most of us for many years, long after the ban on marriage equality is lifted. And that is they are stealing from us future ‘significant’ wedding anniversaries. Because, the longer our entry to marriage is delayed, the less likely it is that current LGBTI-inclusive couples will reach our 60th, 50th or even 40th or 30th wedding anniversaries.

Now, to some that might seem like a petty argument. After all, we will still have ‘anniversaries’ for the significant events of our relationships (for example, Tuesday was the 8th anniversary of when Steve and I first met, and we celebrated the occasion).

But it is impossible to deny that significant cultural value is still placed on long-lasting marriages, perhaps even an increasing value when so many marriages do not last that long (for whatever reason). How many of us experience an ‘awww, that’s sweet’ moment when we see the 60th or 50th wedding anniversaries of older couples, either family members or friends, or even reported on the news?

Well, far fewer of our relationships will reach those moments in the decades to come because of the actions of Commonwealth parliamentarians in 2004, 2012 and today. Once again, imagine the outcry from ‘traditional marriage’ (aka anti-LGBTI equality) campaigners if the Government were to intervene to effectively steal those anniversaries from them. They need to be reminded that it is just as unacceptable when it is done to LGBTI Australians.

However, it is the third consequence, yet another theft, which is the most offensive, and most objectionable. And that is that there are countless couples who wanted to marry but where one or both have died since the original ban on equality was introduced in 2004, and many more who will continue to die before being able to wed while this homophobic discrimination remains in place.

These are couples who have had the right to marry stolen from them, now and for all time, merely because of their sexual orientation, gender identity or intersex status. For most, they grew up at a time when homosexuality was criminalised, and when trans and intersex people were ‘invisibilised’ and subject to the worst forms of abuse, but who have then suffered one final indignity at the hands of the Australian Government – the denial of the equal recognition of their relationships during their lifetimes.

The worst thing, the most frustrating part, about this entire situation is that everyone knows marriage equality is inevitable. I know it. You know it. Julia Gillard knew it. Tony Abbott knew it. Malcolm Turnbull does too – even if he won’t grant the free vote to make it happen. In fact, all MPs, certainly since 2011 or 2012, if not before, must have recognised that marriage equality will eventually be passed in Australia, and that the only remaining question is whether that happens now, or in five or even ten years time.

And, while there is absolutely nothing that is ‘gained’ from this delay, as I have shown above there is plenty that is lost, not least of which is the undeniable loss of those couples who were never able, and will never be able, to wed.

Which makes the ongoing failure of Commonwealth Parliamentarians to pass marriage equality one of the most petty and vindictive acts – or omissions – in recent political history.

It is, frankly, unforgiveable that our MPs are not only stubbornly opposing what is right, and standing firm against the overwhelming tide of history and progress, they are rejecting the rights of Australian couples, including members of their own electorates, when they know in their hearts that all they are doing is delaying the inevitable, and making those couples pay the cost in the meantime.

This outcome, the price that is being paid by couples around the country because of this interminable ‘wait’, is definitely one of the things I hate most about marriage inequality.

10 Things I Hate About Marriage Inequality. #6: Because it Lets MPs Off the Hook

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This reason is closely related to number 7 (“Because Sometimes it Overshadows Other Important LGBTI Issues”), because it too derives from the fact that marriage equality now dominates the Australian LGBTI policy landscape.

As a result of this dominance, the position that Members of Parliament – indeed, all candidates for elected office – take on marriage equality has come to be the ‘primary’ LGBTI question which they are asked during election campaigns. Of course, in many ways that makes sense, given the high level of interest in this issue, both in our community and across society.

The answer that each MP gives can also be a useful pointer to how they may vote on other issues. An MP who says they support marriage equality is assumed to be more likely to support LGBTI anti-discrimination laws, or inclusive aged care services, or safe schools.

In this way, the simple yes/no, good/bad answer on marriage equality has the potential to serve as ‘shorthand’ for whether they are likely to vote yes or no on other reforms important to our community. In fact, I used this approach (analysing past votes on marriage equality) just this week in helping to estimate whether particular MPs might be more or less sympathetic on an education-related initiative.

But we run into significant difficulties when this question becomes the only question that we ask of our MPs, when the only calculation that we make about whether an MP is ‘good’ or ‘bad’ on LGBTI issues is whether they support marriage equality or not.

First and foremost, if we only ask about marriage equality, then we are letting our MPs ‘off the hook’ in terms of their responsibilities to deal with the full range of issues which are important to and affect the LGBTI community.

If the only LGBTI topic they ever have to talk about is whether or not we can get married, then we are not making them talk about how to achieve equality of outcomes in health, in education and employment, we are not making them discuss how the state should support diversity in sexual orientation, gender identity and intersex status.

Second, we are letting our MPs off the hook because answering yes to marriage equality is, when you think about it, actually fairly easy. As the long and drawn out debate over the past 12 years has demonstrated, there really isn’t much of a debate to be had at all – either you support the equal recognition of our relationships, or you do not (for more on that particular issue, see 10 Things #5).

There are many other LGBTI issues which are either more complex (for example, what are the best or most effective ways to reduce the over-representation of LGBTI young people in terms of mental health issues, depression and suicide), or which many of our MPs have never had to genuinely turn their minds to (such as where limits on religious exceptions to anti-discrimination laws should be drawn). To say yes to marriage equality is simple – we should be making our MPs work a little bit harder than that in order to get our support.

Third, by not asking about a range of issues, we run the risk of letting off the hook those MPs who are supportive of marriage equality but who do not support other LGBTI issues. For example, it is possible to support inclusive marriage laws but also to support the exclusion of same-sex couples from the right to adopt or to access assisted reproductive technology (just ask Portugal, where gay couples can marry but not adopt or use ART).

It is also possible (and in practice it is far too common) for MPs to support marriage equality, but to simultaneously believe that religious organisations should be able to discriminate against lesbian, gay, bisexual and trans* people, in schools, in health care, in employment, in pretty much any context. In this light, the simple yes/no, good/bad ‘shorthand’ fails us – because it is possible to support marriage equality, but not support LGBTI equality more broadly.

Conversely, it is possible to oppose marriage equality but be supportive on other LGBTI reforms. The best example of this was former Prime Minister Julia Gillard. Her position on marriage equality – to oppose it, while also supporting a conscience vote inside the Labor Party, thereby ruining any chance of its passage in the last parliament – was unconscionable, and, from my perspective at least, can never be forgiven (for more on that particular issue, see 10 Things #4).

And yet, Gillard’s period of leadership saw more pro-LGBTI reforms than most, if not all, of her predecessors. The introduction of LGBTI anti-discrimination protections in Commonwealth law for the first time, progressive Guidelines on the Recognition of Sex and Gender, funding for the QLife counselling initiative, PBS listing for Gardasil vaccinations for boys and a national LGBTI Ageing and Aged Care Strategy, among other things, all happened during her (brief) tenure.

All of which goes to show that the position of our MPs on LGBTI issues is much more complicated than a single question, and much more layered than any simple yes/no answer could hope to capture. Marriage equality supporters can be poor on other reforms. Alternatively, MPs who oppose marriage equality can be supporters on other important issues.

Which means we do ourselves a great disservice if the only thing we ever talk about with MPs is whether they support our equal right to get married. We cannot, we must not, let them off the hook by allowing them to ignore the full breadth of LGBTI issues. We need to be better at putting more questions to them, and above all, we need to be better at asking more of them.

10 Things I Hate About Marriage Inequality. #7: Because Sometimes it Overshadows Other Important LGBTI Issues

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In a similar way to reason #9 (“Because sometimes I feel guilty for having #firstworldproblems”), one of the things that frustrates me about marriage equality is that this issue has come to dominate domestic LGBTI politics to such an extent that it can, and has, overshadowed other important issues.

Now, that is not necessarily a criticism of marriage equality campaigners, including Australian Marriage Equality. They have done a fantastic job of promoting marriage equality and ensuring that, over the past 12 years, it has gone from what could be described as a ‘minority concern’, to one of widespread acceptance across the Australian population (even if our parliamentarians are taking far too long to catch up).

It is also not to dismiss the fact marriage equality is an important issue in and of itself – obviously, as someone who is engaged themself, I understand the emotional pull at the heart of this issue which compels so many people to take action (and any regular reader of this blog would note the high volume of posts which relate to the denial of this right, not just in Australia but around the world).

But, and this is a big but, I am not sure that this completely justifies the disproportionate attention, and in some cases, disproportionate energy, which has been given to the issue of marriage equality by our community, especially over the past four or five years.

That statement might be a little bit controversial, so allow me to provide some context before you make up your mind. Let’s compare, for example, the community response (both our own, and the broader Australian community) to marriage equality with that regarding three other important LGBTI issues.

In April 2012, the House of Representatives Standing Committee on Social Policy and Legal Affairs inquiry into two marriage equality bills conducted an online survey – to which 276,437 Australians responded (including more than 177,000 people in favour).

In subsequent months, the related Senate Standing Committee on Legal and Constitutional Affairs Inquiry received a record number of formal submissions – approximately 79,000, with roughly 46,400 people taking the time to write in support of a Marriage Act that does not discriminate on the basis of sexual orientation, gender identity and intersex status.

Around the same time, the Gillard Government was preparing legislation which would, for the first time ever, provide anti-discrimination protections under Commonwealth law on those exact same grounds.

These protections were contained, along with a range of other measures, in the Human Rights and Anti-Discrimination (HRAD) Bill 2012. The Exposure Draft of that legislation was considered by the same Senate Committee, and a still ‘healthy’ 3000 submissions were made (although, it has to be pointed out, many did not address the specific issue of LGBTI anti-discrimination but were in fact about other aspects of the Bill).

The HRAD Bill was eventually replaced by the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013, which, as the name suggests, focused exclusively on LGBTI protections. When it too was considered by the Senate Standing Committee on Legal and Constitutional Affairs, in June 2013, just 90 standalone submissions were made. Nine. Zero. Or about 0.11% of the total submissions on marriage equality, to the same Committee, just 12 months prior.

To choose another example – during 2012 and 2013 the Australian Curriculum, Assessment and Reporting Authority (ACARA) drafted the national Health & Physical Education curriculum, something which had the potential (or should have anyway) to help young lesbian, gay, bisexual, transgender and intersex students in classrooms around the country.

Except, as I have written previously, the first draft of that curriculum did not even mention the words lesbian, gay or bisexual, erroneously included trans* and intersex in the same definition (and even then only referred to them in the glossary!) and essentially ignored sexual health and HIV.

That draft was open for public consultation from December 2012 to April 2013. In four months, 279 online surveys were completed, as well as 99 formal written submissions. Removing submissions from organisations (mostly from non-LGBTI health and education groups), there were exactly 14 submissions from individuals to that public consultation. One. Four.

In 2014, the HPE curriculum, together with all other subject areas, were referred by the then Commonwealth Education Minister, the Hon Christopher Pyne MP, to homophobe Kevin Donnelly for yet another review. The grand total number of written submissions to that inquiry – of which only a small number would have focused on LGBTI exclusion from Health & Physical Education – was approximately 1,500.

One final example. Again, at the same time as the marriage equality parliamentary debates and the Sex Discrimination Act inquiry were going on, the Senate Standing Committee on Community Affairs was holding its own inquiry on the involuntary or coerced sterilisation of people with disabilities in Australia. One of the key issues examined by that inquiry – perhaps not to begin with, but certainly by the end, primarily as a result of the hard work of groups like OII Australia – was the involuntary or coerced sterilisation of intersex people.

Now, the intersex community might be small in number, even within our own community (see Notes) – but there is no denying this issue looms large in terms of all of the human rights abuses perpetrated against any member of the LGBTI community in Australia, at any point in our history. So, it was perhaps disappointing that the entire Senate inquiry – and not simply for the Report focusing on intersex issues – received just 91 standalone submissions.

But, as we have seen above, that is simply one part of a frustrating overall trend. The entire number of submissions to two LGBTI anti-discrimination inquiries, two reviews of the HPE curriculum, and an inquiry examining the coerced sterilisation of intersex people, is less than the number of submissions to one state-based same-sex marriage inquiry (NSW, in March 2013, received 7,586 submissions), let alone the 79,000 submissions to the 2012 Senate marriage inquiry.

Of course, simply counting submissions in this way doesn’t necessarily reflect other work undertaken, by a range of groups, with respect to anti-discrimination protections, the curriculum or intersex rights – much of which happens behind the scenes.

As indicated above, the high volume of submissions to marriage equality inquiries is also a testament to the hard work of groups like Australian Marriage Equality (and others, including GetUp!), in terms of mobilising the community.

There are also other advantages enjoyed by the issue of marriage equality (it is part of a clear, single-issue global movement, in recent years at least has emerged as part of the cultural zeitgeist, it is a much simpler yes/no policy question), not enjoyed by some of the other issues identified.

And it is much easier to report on – the images of brides and grooms either being denied legal equality, or enjoying newly-won rights, makes marriage equality a very ‘photogenic’ issue. The fact our opponents have given consistently outrageous comments also makes reporting on ‘conflict’ in this area much more straightforward for journalists.

It is even arguable that the disproportionate focus on marriage equality may actually be necessary in order to achieve such a significant and, until recently, almost unimaginable, social change.

And yet, when I reflect on the level of commitment which goes into marriage equality, compared to other important LGBTI issues, I find myself sometimes lamenting that we do not put the same level of energy, and dedicate the same level of time and resources, into the latter.

So, by all means I encourage you to support – or continue to support – the important work that Australian Marriage Equality does (to find out how to get involved, go here).

But, at the same time, it would be great if more people would also support some of the other organisations that, in addition to working on marriage equality, also advocate on a range of other LGBTI issues, which are no less important to the long-term health and well-being of our community. They include:

The NSW Gay & Lesbian Rights Lobby

The Victorian Gay & Lesbian Rights Lobby (<http://www.vglrl.org.au )

Transgender Victoria (<http://www.transgendervictoria.com ) and

OII Australia – Intersex Australia (<http://oii.org.au )

Those are four groups that I am or have been involved in, or have worked with – but there are a range of other LGBTI advocacy groups in states and territories around the country worthy of your support. Because, while marriage equality might be an important thing, it is not and never has been the only thing.

The national Health & Physical Education curriculum will have an impact on young LGBTI people for years, if not decades.

The national Health & Physical Education curriculum will have an impact on young LGBTI people for years, if not decades.

Notes

  • The reference to the comparative size of the intersex population is absolutely not meant to suggest that the issues it confronts does not count (as a member of another, albeit slightly larger, minority group, that is obviously not a rational position to hold), but it has been included here because it could partly explain why less people would have made a submission to this inquiry. Nevertheless, the scale of injustice involved in the sterilisation (and other unnecessary medical interventions) of intersex people without consent, in Australia, TODAY, means it is something we all should be concerned about.
  • It should also be noted that, when people were presented with a simple way of expressing their concern about the national Health & Physical Education curriculum – via a Change.org petition – at least 6000 people added their signature in less than a month. Obviously, people do care about other issues, including those listed above, so different groups also need to learn better how to engage on these issues, and translate that innate or latent support into concrete actions.