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

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.

Submission to NSW Parliament Inquiry into False or Misleading Health Practices re Ex-Gay Therapy and Intersex Sterilisation

Earlier this year, NSW Parliament’s Committee on the Health Care Complaints Commission called for submissions to an inquiry into the promotion of false or misleading health-related information or practices.

I wrote the following submission, looking at two practices in particular which negatively affect the lesbian, gay, bisexual, transgender and intersex (LGBTI) community: the practice of so-called ‘ex-gay therapy’ or conversion therapy, as well as the involuntary or coerced sterilisation of intersex people.

At this stage, while the Committee has chosen to publish 63 of the submissions it has received, it has not published mine, so I am reproducing it here. As always, I would be interested in your thoughts/feedback on the below.

Committee on the Health Care Complaints Commission

Parliament House

Macquarie St

SYDNEY NSW 2000

Friday 7 February 2014

Dear Committee

SUBMISSION TO INQUIRY INTO THE PROMOTION OF FALSE OR MISLEADING HEALTH-RELATED INFORMATION OR PRACTICES

In this submission, I would like to address two areas of ‘health-related practices’ which negatively affect the lesbian, gay, bisexual, trans* and intersex (LGBTI) communities.

Specifically, with respect to term of reference (c) “the promotion of health-related activities and/or provision of treatment that departs from accepted medical practice which may be harmful to individual or public health”, I believe the Committee should examine:

i)              ‘ex-gay’ or ‘reparative’ therapy, and

ii)             the involuntary or coerced sterilisation of intersex people.

Ex-gay or reparative therapy

I can think of few ‘health-related practices’ which so clearly fall within term of reference (c) of this inquiry than so-called ‘ex-gay’ or ‘reparative’ therapy.

This practice, which although more common in the United States is nevertheless still practiced in New South Wales, involves organisations, usually religious, offering ‘counselling’ to help transform people who are lesbian, gay or bisexual into being heterosexual, and in some cases to attempt to transform people who are trans* into being cisgender.

In short, ex-gay or reparative therapy involves attempting to change a person’s sexual orientation or gender identity, based on the belief that being lesbian, gay, bisexual or trans* is somehow ‘wrong’ or ‘unnatural’.

There are three main problems with ex-gay or reparative therapy.

First, there is absolutely nothing wrong or unnatural with being lesbian, gay, bisexual or trans*. Differences in sexual orientations and gender identities are entirely natural, and this diversity should be accepted and celebrated. Any attempts to prevent people from being LGBT simply demonstrate the homophobia, biphobia and transphobia of the people running ex-gay organisations.

Second, there is absolutely no scientific evidence to support these practices. Sexual orientation and gender identity cannot be ‘changed’ through these interventions. Indeed, the Australian Psychological Society, Royal Australian and New Zealand College of Psychiatrists and Pan American Health Organisation all note that reparative therapy does not work, and recommend against its practice.

Third, and most importantly, not only is ex-gay therapy based on homophobia, and discredited ‘pseudo-science’, but it is also fundamentally dangerous. Reparative therapy takes people who are already vulnerable, tells them that they are inherently wrong, and asks them to change something about themselves that cannot be changed. Inevitably, it leads to significant mental health problems, including self-hatred, depression and tragically, in some cases, suicide. The people that run ex-gay organisations are guilty of inflicting psychological and sometimes physical damage on others.

Given the level of harm that is perpetrated by these people, I believe it is incumbent on the NSW Parliament to introduce a legislative ban on ex-gay or reparative therapy. This should include the creation of a criminal offence for running ex-gay therapy, with an aggravated offence for running ex-gay therapy for people under the age of 18. This is necessary to send a signal that these homophobic, biphobic and transphobic practices are no longer tolerated in contemporary society, particularly in the case of minors.

Finally, while at this stage there is no evidence linking registered medical practitioners with these discredited practices in New South Wales, there is evidence overseas that some counsellors, psychologists, psychiatrists or other registered medical practitioners either practice ex-gay therapy themselves, or will refer patients to ex-gay organisations. The Committee should consider additional appropriate sanctions for any practitioners caught doing so in NSW, including potential de-registration and civil penalties.

Involuntary or coerced sterilisation of intersex people

In contrast to ex-gay therapy, which is largely performed by people who are not registered medical practitioners, some abuses perpetrated against intersex people in Australia are undertaken by the medical profession themselves.

As outlined by Organisation Intersex International Australia (OII Australia), in their submission to last year’s Senate Standing Committee on Community Affairs Inquiry into Involuntary or Coerced Sterilisation of People with Disabilities in Australia (dated 15 February 2013, pages 3-4):

“Every individual member of OII Australia has experienced some form of non-consensual medical intervention, including the following:

  • Pressure to conform to gender norms and to be a “real man” or “real woman”.
  • Involuntary gonadectomy (sterilisation) and clitorectomy (clitoris removal or reduction) as an infant, child or adolescent.
  • Medical and familial pressure to take hormone treatment.
  • Medical and familial pressure to undertake genital “normalisation” surgery.
  • Surgical intervention that went outside the terms of consent, including surgery that was normalising without consent.
  • Disclosure of non-relevant medical data to third parties without consent.”

While I understand that the terms of reference state that “[t]he inquiry will focus on individuals who are not recognised health practitioners, and organisations that are not registered health service providers”, given the significant levels of harm involved in these practices against intersex people, I would encourage the Committee to nevertheless examine this subject.

I would therefore recommend the Committee take into consideration the 2nd Report of the Senate Standing Committee on this topic, as well as OII Australia’s submissions to that Inquiry. I have also attached my own submission from that inquiry with this submission (link here: <https://alastairlawrie.net/2013/07/01/submission-to-involuntary-and-coerced-sterilisation-senate-inquiry/ ).

Thank you for considering my submission on these important topics.

Sincerely,

Alastair Lawrie

10 Things I Hate About Marriage Inequality. #10: Because it makes me embarrassed to be Australian

[Updated 4 August 2016]

On Friday 13 August 2004, the Senate passed the Howard Government’s shameful amendments to the Commonwealth Marriage Act 1961. These amendments included a new definition of marriage – “marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life” – thus confirming the second-class legal status of same-sex relationships in Australian law.

In mid-2014, in the lead-up to the 10th anniversary of the passage of that homophobic law, I wrote a series of posts on the top ten things which I hate about marriage inequality, to ‘celebrate’ (or, more accurately, to vent). Sadly, as we approach the 12th anniversary on 13 August 2016, the list remains all-too-relevant today.

As you would expect, given how much this ongoing discrimination against LGBTI-inclusive couples pisses me (and, let’s be honest, most of us) off, there are some things which I had to leave out. But I hope you will nevertheless enjoy reading the ten reasons that did end up making the cut. Anyway, on with the list:

#10: Because it makes me embarrassed to be Australian

The 1st marriage equality laws came into effect in the Netherlands on 1 April 2001. In the now 15 years since, it has been joined by 19 other countries, namely:

  • Belgium (2003)
  • Spain (2005)
  • Canada (2005)
  • South Africa (2006)
  • Norway (2009)
  • Sweden (2009)
  • Portugal (2010)
  • Iceland (2010)
  • Argentina (2010)
  • Denmark (2012)
  • Brazil (2013)
  • France (2013)
  • Uruguay (2013)
  • New Zealand (2013)
  • Luxembourg (2015)
  • Ireland (2015)
  • United States (nationwide 2015)
  • Colombia (2016)
  • Finland (from 2017)

Marriage equality is also recognised in some parts of Mexico and the United Kingdom (England, Wales & Scotland, although it remains unlawful in Northern Ireland).

I think most lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians probably accepted lagging behind the Netherlands on this particular reform (well, most social changes actually), and trailing their Southern neighbours Belgium too. Although it was perhaps a little bit of a surprise that highly-Catholic Spain would get there so quickly – but I guess we got used to that.

Canada was less of a surprise. Meanwhile, no-one could begrudge South Africa, especially given it was achieved, in part, as a consequence of the inclusive Constitution adopted in the post-apartheid era. And I suppose we probably couldn’t expect to get there ahead of most of the Scandinavian countries either.

But the longer this list has become – and, sadly, it will likely be longer still by the time we eventually get there – the more embarrassing it has become to be an Australian, and that embarrassment stings whether you are an LGBTI individual, or couple, or simply someone who believes in the equality of all people irrespective of sexual orientation, gender identity or intersex status.

It didn’t need to be this way. I am old enough to remember a time, in my youth, when, at least at the Commonwealth level, Australia was capable of doing some things better than most of the world. When we adopted a world-leading response to the emergence of HIV/AIDS. When we were one of the first countries to recognise same-sex couples for the purposes of immigration. When we allowed ‘gays in the military’ ahead of, or at the same time as, the majority of our peers.

Alas, no more. On what has become one of the signature issues for progressive reform, not just for LGBTI rights but for social justice more generally, we have fallen, and are falling further, behind.

It has to stick in the craw of most decent Australians that the New Zealand Parliament managed to pass marriage equality, even with a Conservative Government, while at the same time our Parliament, with a then-Labor Government, could not. And thinking about the fact that LGBTI couples have been able to get married in the cornfields of the American mid-West (Iowa) for more than seven years (and can now marry everywhere in the US, from Alabama to Alaska), while we cannot, is enough to make one cringe.

My fiancé, Steve, likes to talk about how ‘his’ country (Portugal) has had marriage equality for six years – even though his parents left there in the 1970s. In recent years my response to that argument has been to point out that ‘my’ country (Scotland) has it, too – but then, my ancestors have been in Australia for more than two centuries, so it is even more difficult for me to stake that claim.

We only talk about our respective ancestral countries in that way because the one where we were both born, and where we are (second-class) citizens, refuses to acknowledge that our love can be the same as any other adult couple. In truth, at times we would prefer to identify with another country – even one where our links might be more (mine) or less (his) tenuous – because being a citizen of Australia is, and there isn’t really a nicer way of putting it, downright embarrassing.

There are, of course, many other reasons for Australians to feel embarrassed (including our shameful treatment of Aboriginal and Torres Strait Islander people and also our, frankly, criminal abuse of people seeking asylum). But the ongoing failure of our country to recognise marriage equality must also take its very own place on that ignominious list. Shame, Australia, shame.

Abbott-Turnbull-Gillard-Rudd-750x393

The four Australian Prime Ministers since John Howard was defeated have all failed to overturn his 2004 ban on marriage equality.

2014 GLORIAs Form Guide

The 2014 annual GLORIAs (standing for Gay & Lesbian Outrageous, Ridiculous and Ignorant comment Awards) are coming up next week – Wednesday 14 May.

I enjoy the GLORIAs for a few reasons, not the least of which is host David Marr’s dry wit. The awards are also an important reminder that, no matter how much progress we have made, and continue to make, towards legal equality, the battle against homophobia, transphobia, biphobia and anti-intersex prejudice in social and cultural life goes on.

The GLORIAs, like the Ernies (for misogyny), are a way to hold bigots to account for the awful things that they say – it is a chance for our community to ‘take revenge’ and tell them that enough is enough. Oh, and did I mention that it is usually quite a fun night? Tickets are available here: <http://www.trybooking.com/Booking/BookingEventSummary.aspx?eid=83377

Voting for the worst comment in each of the six categories (International, Media, Politics/Law, Religion, Silliest comment within the LGBTI community, and Sport) is also open online until 5pm on the evening of the 14th: <http://www.theglorias.com.au/home So, get voting.

I have reproduced the nominees from the 6 categories below, along with the person I voted for, who I think will win, and a space to update with the name of each winner after the event. I would love to hear your thoughts on whether you agree or disagree with my reasoning.

And one final thing, thanks should go to lesbian Labor MLC Penny Sharpe, and her staff, for organising the event (which, it should be pointed out, especially after recent events at ICAC, is NOT a political fundraiser).

1. The worst INTERNATIONAL Comment of the year:

Mary Baker, Tea Party activist and leader of Conservative Moms for America: “Gay Supremacy is becoming a monster that carries greater evils than white supremacy ever did.”

Guido Barilla (of Barilla pasta fame): “For us the concept of the sacred family remains one of the fundamental values of the company… I have no respect for adoption by gay families because this concerns a person who is not able to choose”.

Brunei for adopting a new penal code that calls for death by stoning for consenting same-sex sexual activity, adultery, rape, extramarital sexual relations, and for declaring oneself to be non-Muslim.

India’s Supreme Court has refused to review the ban on gay sex it imposed last month, rejecting arguments from civil rights campaigners and the Indian government that the move was unconstitutional.

Delta County School Board member Katherine Svenson said she opposed the recently passed laws in California and Massachusetts that allow transgender students equal access to school facilities such as locker rooms and bathrooms: “I just want to emphasise: not in this district. Not until the plumbing’s changed. There would have to be castration in order to pass something like that around here.”

Nigerian President Goodluck Jonathan signed a bill on Monday that criminalizes same-sex relationships, contains penalties of up to 14 years in prison and bans gay marriage, same-sex “amorous relationships” and membership in gay rights groups.

Zimbabwe President Robert Mugabe described homosexuals as “worse than pigs, goats and birds” and “If you take men and lock them in a house for five years and tell them to come up with two children and they fail to do that, then we will chop off their heads.

Gambian President Yahya Jammeh: “We will fight these vermins called homosexuals or gays the same way we are fighting malaria-causing mosquitoes, if not more aggressively… As far as I am concerned, LGBT can only stand for Leprosy, Gonorrhoea, Bacteria and Tuberculosis; all of which are detrimental to human existence.”

Ugandan President Yoweri Museveni: “Homosexuals are actually mercenaries. They are heterosexual people but because of money they say they are homosexuals. These are prostitutes because of money”

Ugandan Ethics & Integrity Minister Simon Lokodo: “It is a social style of life that is acquired… They chose to be homosexual and are trying to recruit others. … If they were doing it in their own rooms we wouldn’t mind, but when they go for children, that’s not fair. They are beasts of the forest…. Homosexuality is unnatural, abnormal and strange to our cultures… It has no output whatsoever; it only does damage and destruction. You cannot have a right to be a sick human being. There is no right in homosexuality. It must be cured…. Excretion is through the anus, like the exhaust of an engine. The human body receives what it takes from the mouth. They’re twisting nature the wrong way. Homosexuality will destroy humanity because there is no procreation; it will destroy health because the backsides will not hold.”

Michelle Bachmann: “… the gay community, they have so bullied the American people, and they’ve so intimidated politicians. The politicians fear them, so that they think they get to dictate the agenda everywhere.”

Russian President Vladimir Putin: “We do not have a ban on non-traditional sexual relationships. We have a ban on the propaganda of homosexuality and paedophilia… You can feel relaxed and calm [in Russia], but leave children alone please”

Who I voted for: Simon Lokodo, for demonstrating in one long quote just how ‘anally-focused’ many homophobes tend to be.

Who I think will win: This has to be the toughest category to predict. Each of Ugandan President Yoweri Museveni, Gambian President Yahya Jammeh (and his acronym) and perennial nominee Zimbabwean President Robert Mugabe has a strong claim but, simply given the attention his position attracted in the lead-up to Sochi, I suspect Russian President Vladimir Putin might ice-skate his way across the line.

Who did win: In a pleasant surprise (and possibly because of he extremely unpleasant nature of the comments) Simon Lokodo.

2. The worst MEDIA comment of the year:

A poster advertising the Brisbane Queer Film Festival that featured two men kissing was deemed too explicit and banned by Brisbane City Council.

Des Houghton columnist for the Courier Mail for the column ‘Dangers Lurk on Queer Street’: “Is the push for gay marriage just another fad like chai latte with Mt Kosciuszko yak milk, fixed-wheel bicycles and Vietnamese pork belly buns?” (read it here http://www.couriermail.com.au/news/opinion/opinion-dangers-lurk-on-queer-street/story-fnihsr9v-1226703120375).

This ad for The Yellow Pages: http://www.youtube.com/watch?v=NHVjKta5FTk&feature=youtu.be&noredirect=1

Andrew Bolt: “ABC staff must call Manning a woman even when he’s still a man, just because he says so. Just like I must call a white… No. Best not go there.”

Editorial in the Bairnsdale Advertiser ‘Trans-genderism is the enemy of healthy childhood development’.

Who I voted for: Des Houghton, because if you read the entirety of his column, you get an insight into how unhappy his world must be now that the LGBTI community has the temerity to demand genuine equality.

Who I think will win: The explicitly transphobic nature of Andrew Bolt’s column must make him a strong contender.

Who did win: The Bairnsdale Advertiser.

3. The worst POLITICS / LAW comment of the year:

Tasmanian “True Green” party representative Andrew Roberts’s election leaflets: “Most parents will admit that they do not want their kiddies growing up to be more and more corrupted, as they will witness an ever increasing sodomite and lesbian behaviour in public like it’s ‘the norm,’” says the flyer, which associates gay people with disease, child abuse and drug abuse, and calls for the recriminalisation of homosexuality in Tasmania.

Dennis Jensen MP for Tangney WA, speaking on the Marriage Equality Amendment Bill 2013: “This bill is a piece of enabling legislation: it enables the dismantling of society as we know it. In essence, this bill is the apotheosis of a movement bent on legislating a social experiment. Gay marriage is a social experiment. Social experiments have poor results when viewed historically. One need only think of phrenology and eugenics, both of which, thankfully, have been consigned to the dustbins of history but not before having damaging social consequences…”

Federal election campaign flyer in Moreton, QLD with a picture of a crying child stating “I want my mum and dad … Loving kids and respecting their rights means keeping marriage laws that put kids first” (source unknown), https://www.facebook.com/TheGLORIAs/posts/508063229281606

Joe Bullock (Labor Senator-Elect) on running mate Senator Louise Pratt: “she’s a lesbian I think, although after her partner’s sex change I can’t be sure”.

Fred Nile’s (#3) speech in Parliament in support of Reparative Therapy (gay cure therapy). Hansard 14 November 2013.

NSW Premier Mike Baird for his views on “choosing to live a homosexual lifestyle” and his refusal to answer questions about this statement at a press conference after he became Premier.

George Brandis for this on QandA: TONY JONES: But just on principle, you are saying that religious freedom supersedes the freedom of your sexuality? GEORGE BRANDIS: Yes, I am, as a matter of fact. Yes, I am.

Fred Nile (#2) on the NSW Same-Sex Marriage Bill: The so-called marriage between two males is unnatural. Homosexual relations between a male and a male are strongly forbidden in both the Old Testament and the New Testament—in the New Testament particularly by Apostles Paul and Peter and, by implication, by the moral teachings of Jesus Christ. I believe that God’s creative purpose for planet Earth—which is a sensitive issue to discuss—is that the basis for the foundation of the family and the continuation of the human race is the institution of marriage.

Tony Abbott, discussing marriage equality: “I’m not saying our culture, our traditions are perfect but we have to respect them… … I’m not someone who wants to see radical change based on the fashion of the moment.”

A fundraising event for the Liberal Party hosted by Victorian Premier Denis Napthine has seen independent Frankston MP Geoff Shaw ridiculed as a “poofter bastard” by comedian Nick Giannopoulos in front of more than 300 guests.

Fred Nile (#1) for this section of Christian Democratic Party’s National Charter: (c) GOD’S GIFT OF SEX: We believe that God has established laws of sexual morality for the well-being of society prohibiting pornography, adultery, incest, homosexuality, and other sexual aberrations which debase man, as well as defile and pollute our nation. (Note that ‘homosexuality’ is listed after ‘incest’).

Alby Schultz: “I think it is abominable that gay activists continue to focus on and manipulate civil rights strategies to justify claims for same-sex marriage and keep using accusations of discrimination, inequality and homophobia to intimidate politicians and the general public.”

Cory Bernardi’s book ‘The Conservative Revolution’.

WA Liberal Upper House Member Nick Goiran for linking gay marriage to incest in a speech in Parliament.

Federal election campaign flyer in Jagajaga, VIC: “Jenny Macklin voted for same-sex marriage. Same-sex marriage WILL MEAN same-sex education in kindergartens and schools” (source unknown): https://www.facebook.com/photo.php?fbid=5080622 “92615033&set=a.358377574250173.91788.274008212687110&type=1&theatre

Who I voted for: George Brandis (and not just because it was my question on #QandA which precipitated the exchange between Tony Jones and him). Despite other comments being more overtly ‘offensive’, the fact that the then shadow/now Commonwealth Attorney-General was prepared to say, without any qualification whatsoever, that religious rights automatically trump LGBTI rights is, when you think about it, actually pretty outrageous.

Who I think will win: While I’m not confident of this prediction, the combination of the popularity or marriage equality, and current lack of popularity of our Prime Minister, makes me think Tony Abbott could take home the gong.

Who did win: As predicted Tony Abbott took out the gong (better luck next year Senator Brandis).

4. The worst RELIGION comment of the year:

Pastor Kevin Swanson of the Colorado based Reformation Church, thinks that the Disney movie ‘Frozen’ indoctrinates five-year-olds into lesbianism and bestiality: “You wonder sometimes if maybe there’s something very evil happening here … I wonder if people are thinking: ‘You know I think this cute little movie is going to indoctrinate my 5-year-old to be a lesbian or treat homosexuality or bestiality in a light sort of way.’”

Far-right American Christian author Linda Harvey blames gay teens for running away from ‘heart-broken’ homophobic parents who want to control their lives – saying they only have themselves to blame for their homelessness.

Australian Christian Lobby/Lyle Shelton for the Media Release ‘Rudd’s change on marriage sets up a new stolen generation’: “Australian Christian Lobby Managing Director Lyle Shelton said Kevin Rudd’s overnight change of mind on redefining marriage ignored the consequence of robbing children of their biological identity through same-sex surrogacy and other assisted reproductive technologies”.

Ex-Anglican Archbishop Peter Jensen: ”How do two men have sexual union? …You have joined a couple of people together at a spot where they shouldn’t be joined together, really.”

Penrith Christian School’s statement which includes the following: “We believe that homosexuality and specific acts of homosexuality are an abomination unto God, a perversion of the natural order and not to be entered into by His people.” And “We believe the practice of attempting to or changing ones gender through surgical and/or hormonal or artificial genetic means is contrary to the natural order ordained by God.”

Who I voted for: Peter Jensen. In Australia we often judge religious (and political – see Simon Lokodo’s comments, earlier) leaders in other countries for making anal sex-obsessed homophobic comments. Last year, we had the leader of the Anglican Church right here in Sydney saying basically the same thing. The fact he has now retired and may not be nominated again provided another incentive for this vote.

Who I think will win: It’s hard to look past the ACL media release equating Kevin Rudd’s support for marriage equality with the stolen generations as a ‘winner’. Which reminds me: can we officially make an Australian version of Godwin’s Law that the first person to bring up the stolen generations in an unrelated argument automatically loses?

Who did win: Penrith Christian School (NB I also collected the GLORIA for the person who nominated them, even though I still would have preferred Peter Jensen to have won).

5. The SILLIEST GLBTI comment from someone within the GLBTI community

Openly Gay Federal Election Liberal candidate for Sydney Sean O’Connor for preferencing the Christian Democratic Party (CDP) on his How To Vote card above Tanya Plibersek for Labor and The Greens (See:http://www.starobserver.com.au/news/local-news/new-south-wales-news/gay-liberal-candidate-prefers-reverend-fred-niles-party-for-sydney/108672).

Brian Coleman, the gay former Conservative London Assembly Member and ex-mayor of Barnet who described the Marriage (Same Sex Couples) Act as a “silly” and “dreadful” piece of legislation.

Gay CNN host Don Lemon talking about ex-figure skater Johnny Weir: “No one likes a gay minstrel show … so let’s just put that out there. About some of his flamboyant and over the top and all those, it seems those are the people who get the attention, but they don’t represent all of gay America.”

Who I voted for: Don Lemon. The idea of calling someone else who could be described as camp (possibly something of an understatement) as a ‘gay minstrel’ reveals much more about Don Lemon than it does about Johnny Weir. We need to accept people for whoever they are, and however they choose to express themselves. At the same time, it is not the responsibility of each and every gay man in public life to be the sole representation or role model of gay life, either in America or elsewhere.

Who I think will win: Don Lemon.

Who did win: Sean O’Connor (who, like Duncan Gay last year, had the good grace – and PR advice – to attend and collect the award in person).

6. The worst SPORT comment of the year:

Newcastle Knights NRL footballer Ryan Stig who posted a long message to Facebook and Twitter titled ‘Homosexuality demonic work’ about his opposition to marriage equality: “Homosexuality is a fairly good example of distortion of design for fairly obvious reasons. When laws such as this … are created it makes covenant with unseen realms of the demonic which work to infiltrate and come against the thought lives of our cities states [sic] and nations”.

Anthony Mundine for this comment about Redfern Now: “Watching redfern now & they promoting homosexuality! (Like it’s ok in our culture) that ain’t in our culture & our ancestors would have there head for it! Like my dad told me GOD made ADAM & EVE not Adam & Steve,” he wrote.

Alex Rodrigo Dias da Costa, former Chelsea player: “We love everyone but do not like those who do not stand for what the Bible says. But this is not homophobia…. I don’t agree that it is OK that a man lives with another man and a woman with a woman.”

PGA Golfer Steve Elkington for this tweet regarding openly gay NFL hopeful, Michael Sam: “ESPN reporting Michael Sam is leading the handbag throw at NFL combine …. No one else expected to throw today”.

Who I voted for: Anthony Mundine, not just because the comment was idiotic, or because of his repetition of the immensely stupid catch-phrase ‘Adam & Steve’, but because he disparaged the wonderful Redfern Now. At least his ignorant twitter outburst had the positive outcome of helping to inspire the creation of the Black Rainbow facebook community.

Who I think will win: Anthony Mundine, although the long-on-content but short-on-intelligence rant from Ryan Stig could be a very close second.

Who did win: Anthony Mundine (in a well-deserved effort).

Stand-in host Barbara Blacksheep, performing the now-accustomary lip-synch of 'Gloria'.

Stand-in host Barbra Blacksheep, performing the now-accustomary lip-synch of ‘Gloria’.

The Golden GLORIA

This is particularly difficult to predict, given the winner must come from the 6 winners of the above categories, and is then decided by a ‘boo-off’ on the night. Still, I will put forward my preference, and hazard a guess who the community might help ‘elect’ as the prestigious title-holder for the next 12 months, replacing the outgoing winner, NSW Roads Minister The Hon Duncan Gay.

Who I want to win: George Brandis. As explained above, I find his elevation of the religious ‘freedom to discriminate’ above the LGBTI community’s right not to be discriminated against offensive in the extreme. For more on why, feel free to read my earlier column: The last major battle for gay & lesbian legal equality in Australia won’t be about marriage, here: <https://alastairlawrie.net/2014/02/26/the-last-major-battle-for-gay-lesbian-legal-equality-in-australia-wont-be-about-marriage/

Who I think will win: Perhaps Vladimir Putin, or maybe Yahya Jammeh.

Who did win: Well, after winning his category, and in a decision which is possibly somewhat related to the unpopularity of last night’s Federal Budget, the winner of the 2014 Golden GLORIA, was Prime Minister Tony Abbott.

One final category, which wasn’t in the program, but which was awarded for the first time on the night, was the inaugural ‘good’ GLORIA, for people or organisations which have shown the most improvement in terms of accepting LGBTI people. The winner was the anti-homophobia initiative in April involving the leaders of major Australian sporting codes, and the #YouCanPlay campaign alongside it. Fittingly, ex-NRL trailblazer Ian Roberts was on hand to accept the award on their behalf.

So, that’s the GLORIAs done for another year. Thanks again to Penny Sharpe for another fabulous event – and I understand that nominations for next year’s event should open by the weekend (there is already an early frontrunner, given Miranda Devine’s recent efforts, but there’s still plenty of time left for more ridiculous, outrageous and ignorant comments to be made).

Don’t Limit Racial Vilification Protections, Add Vilification Protections for LGBTI Australians

The following is my submission to the Attorney-General’s Department’s Review of the Freedom of speech (repeal of s.18C) Bill 2014 – Exposure Draft (aka the Bill to significantly limit the scope of racial vilification protections under the Racial Discrimination Act 1975).

Submissions close on Wednesday 30 April, and more details can be found here: <http://www.ag.gov.au/Consultations/Pages/ConsultationsonamendmentstotheRacialDiscriminationAct1975.aspx

I strongly encourage you to make a submission, and include in it the call for the Commonwealth to focus on expanding protections for the benefit of all lesbian, gay, bisexual, transgender and intersex Australians, rather than limiting the operation of s18C for one Melbourne-based News Ltd columnist. Thanks.

Human Rights Policy Branch

Attorney-General’s Department

3-5 National Circuit

BARTON ACT 2600

s18cconsultation@ag.gov.au

Thursday 24 April 2014

To whom it may concern,

SUBMISSION ON RACIAL VILIFICATION AMENDMENTS

Thank you for the opportunity to make a submission on the proposed changes to the racial vilification provisions of the Racial Discrimination Act 1975, as contained in the Freedom of speech (repeal of s.18C) Bill 2014 Exposure Draft.

For the reasons explained below, I do not support the replacement of existing sections 18B, 18C, 18D and 18E with the new clauses of the Exposure Draft Bill.

However, I do believe that significant changes should be made to vilification provisions in Commonwealth law: namely, that vilification protections should be expanded to cover sexual orientation, gender identity and intersex status.

The absence of such protections leaves lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians vulnerable to the same types of adverse public conduct experienced by people of different racial backgrounds, but without recourse to the same complaint resolution mechanisms.

I will now turn to these two issues – the proposed reforms, and the case for introducing LGBTI vilification protections – in more detail.

Proposed Reforms to Section 18C

In considering any potential reforms to section 18C of the Racial Discrimination Act 1975, it is useful to start at the particular sub-section which features in most debate. Sub-section 18C(1)(a) makes it “unlawful for a person to do an act, otherwise than in private, if: the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people.”

I am of the view that the drafting of this sub-section is probably not ideal, and, arguably, is too broad in terms of the types of conduct that at least theoretically could be captured. I do not believe that, were provisions regarding racial vilification to be drafted today, they would include the terms ‘offend’ or ‘insult’ (or at least not without aggravating factors or considerations).

However, it is one thing to suggest that the drafting of a provision is something less than ‘ideal’ – it is another to suggest that poor drafting has directly caused problems that mean it must be amended. And even if that test is satisfied, any proposed reforms to the law should be an improvement, and not worsen any potential harm.

Turning to the question of whether the drafting of section 18C has directly led to, or caused, any significant problems, I am not convinced that it has. Racial vilification protections under the Racial Discrimination Act 1975 appear to be widely supported by the community, and, for the most part, appear to be working well, both with the oversight of the Australian Human Rights Commission and in the Courts.

There is, of course, one case which is frequently cited as necessitating change to section 18C, and its related provisions, and that is the case of Eatock v Bolt [2011] FCA 1103.

Even ignoring the old legal maxim that hard cases make bad law (“Hard cases, it has frequently been observed, are apt to introduce bad law”, from Judge Rolfe in Winterbottom v Wright in 1842), it is not clear that the outcome of the “Bolt case” makes any persuasive case for change.

In the summary of that decision, Justice Mordecai Bromberg explained that “I am satisfied that fair-skinned Aboriginal people (or some of them) were reasonably likely, in all the circumstances, to have been offended, insulted, humiliated or intimidated by the imputations conveyed by the newspaper articles” of Mr Bolt (para 17).

Justice Bromberg also explained that Mr Bolt’s conduct could not fit within what are, to be frank, extremely generous exemptions in section 18D, writing that “I have not been satisfied that the offensive conduct that I have found occurred, is exempted from unlawfulness by section 18D. The reasons for that conclusion have to do with the manner in which the articles were written, including that they contained errors of fact, distortions of the truth and inflammatory and provocative language” (para 23, emphasis added).

In his summary, Justice Bromberg also articulates at least one of the reasons why laws should exist to prohibit writings such as those of Mr Bolt: “People should be free to fully identify with their race without fear of public disdain or loss of esteem for so identifying. Disparagement directed at the legitimacy of the racial identification of a group of people is likely to be destructive of racial tolerance, just as disparagement directed at the real or imagined practices or traits of those people is also destructive of racial tolerance” (para 22).

In short, there appears to at least be an arguable case that not only was the “Bolt case” decided correctly on the existing law, but also that the current provisions are operating as intended to limit the negative effects of racial intolerance. Conversely, I believe it is difficult to argue, solely on the basis of Eatock v Bolt, that section 18C is so deficient that it should be amended, and amended as a matter of high priority.

Even if the argument that change was, indeed, necessary was accepted, I do not support that changes proposed in the Freedom of speech (repeal of s.18C) Bill 2014 Exposure Draft.

I believe that the replacement of ‘offend, insult, humiliate or intimidate’ with to vilify (defined as “to incite hatred against a person or a group of persons”) or to intimidate (meaning “to cause fear of physical harm; to a person; to the property of a person; or to the members of a group of persons”), would arbitrarily and unduly limit the effectiveness of these protections.

I agree with the Australian Human Rights Commission, in their statement of Tuesday 25 March 2014, that: “the bill reduces the level of protection by providing a narrow definition of vilification and by limiting intimidation to causing fear of physical harm. It is not clear why intimidation should not include the psychological and emotional damage that can be caused by racial abuse.”

I also agree with the Australian Human Rights Commission in their concerns about the breadth of the exemptions proposed in new clause (4). As the Commission notes “[t]his provision is so broad it is difficult to see any circumstances in public that these protections would apply.”

This is at least in part because the previous limitations of section 18D – that words or conduct must be done “reasonably and good faith” to be exempted – have been removed, again without a clear explanation or motivation. In my opinion, the proposals contained in the Exposure Draft Bill would not improve the operation of racial vilification protections generally, but instead have the capacity to make things substantially worse.

Overall, while I concede that the current drafting of section 18C is not ‘ideal’, I do not believe that there are sufficient problems in practice for it to be amended. I also strongly oppose the replacement of sections 18B, 18C, 18D and 18E of the current Racial Discrimination Act 1975, with the clauses contained in the Freedom of speech (repeal of s.18C) Bill 2014 Exposure Draft.

Recommendation 1. The Freedom of speech (repeal of s.18C) Bill 2014 – Exposure Draft should not be introduced into or passed by the Commonwealth Parliament.

Need to expand vilification protections to cover sexual orientation, gender identity and intersex status

While I do not believe a case has been made to reform the racial vilification provisions of the Racial Discrimination Act 1975, I do believe there is a strong case for expanding vilification provisions under Commonwealth law to offer additional protection to LGBTI Australians.

In a similar way to their ongoing problems with race, some extreme elements within Australian society continue to demonstrate their difficulty in accepting people, and treating them equally, irrespective of sexual orientation, gender identity or intersex status.

Both groups – Australians of diverse racial backgrounds, and LGBTI people – are regularly subject to vilification in public contexts, whether that be in political or media debates, or in harassment and abuse in public spaces.

Significantly, while LGBTI Australians finally achieved anti-discrimination protections under Commonwealth law in 2013 (a mere 38 years after the passage of the Racial Discrimination Act), the Sex Discrimination Act amendments did not include protections from homophobic, biphobic, transphobic and anti-intersex vilification. Unlike people of diverse races, LGBTI people still cannot launch complaints about vilification under Commonwealth law.

There is no philosophical or conceptual reason why this should be the case – both are vulnerable groups, subject to vilification against which they deserve to be protected.

The vilification of LGBTI people can take many forms. A 2003 NSW Attorney-General’s Report found that, in the previous 12 months, 56% of gay men and lesbians had been subject to one or more forms of homophobic abuse, harassment or violence.

This violence can also be extreme – as demonstrated by the disturbingly high number of gay men violently murdered in Sydney during the 1980s and 1990s, but whose tragic deaths are only now being properly investigated.

In terms of vilification in public debate, there are almost too many examples of homophobia, biphobia, transphobia and anti-intersex discrimination to choose from (and certainly enough to hold an annual event ‘celebrating’ the worst of these comments in a range of different areas of public life, aka The GLORIAs).

One notorious example from recent years was the homophobic comment of a religious figure, addressing a ‘National Marriage Day’ rally outside Parliament House in 2012, who said “I’m convinced that homosexuals (re)produces (sic) themselves by molesting children.”

Unfortunately, heading inside Parliament House, the tenor of public debate is sometimes not much better. Over the past 12 years we have seen Senators argue that allowing two men or two women to marry could lead to humans having sex with animals, arguing that enacting marriage equality would potentially result in another ‘Stolen Generations’, and abusing parliamentary privilege to smear an openly-gay High Court Justice with unfounded allegations of paedophilia (apparently solely because of his homosexuality).

This is not to say that all, or even any, of those comments would necessarily qualify as vilification under an equivalent provision to section 18C, but, the fact those comments are able to be made in our National Parliament provides a small insight into the type of abuse and vitriol which continues in other forums, day-in, day-out, which are not subject to the same levels of scrutiny.

That includes street-level harassment and abuse which my fiancé Steven and I, like many thousands of other LGBTI Australians, experience all-too-frequently. Anyone who is ‘visibly’ identifiable as lesbian, gay, bisexual, transgender or intersex, including non-LGBTI people who are perceived as being LGBTI by others, and anyone who simply wants to engage in the tender act of holding one’s same-sex partner’s hand, knows the risks that being or expressing who you are in public can bring, from being yelled at from passing cars, to the very real threat of much, much worse.

Of course, the introduction of s18C-style protections on the basis of sexual orientation, gender identity and intersex status will not automatically lead to a reduction in such abuse, but it will allow for people to contest the most egregious examples of homophobic, biphobic, transphobic and anti-intersex vilification in public life.

Over time, the introduction of vilification protections for LGBTI Australians, on top of the recently passed anti-discrimination laws, would help to send a strong signal to the wider community that such conduct was no longer tolerated.

The impetus for sending such a signal can be found in figures which show that lesbian, gay, bisexual, transgender and intersex Australians continue to experience disproportionately high rates of mental health issues, including depression, attempted suicide and suicide.

This problem is especially pronounced amongst younger LGBTI people, with young same-sex attracted people estimated to be 6 times more likely to attempt suicide than their heterosexual counterparts (source: National LGBTI Health Alliance). Young people’s experience of discrimination and homophobia has been found to play a key role in this huge, and sadly persisting, health disparity.

Not only is public vilification in the form of homophobia, biphobia, transphobia and anti-intersex discrimination wrong in and of itself, it has serious consequences, including in negative mental health outcomes for LGBTI people.

I believe that anti-LGBTI vilification must be prohibited under the Sex Discrimination Act, in the same way that racial vilification was in 1995 when the Racial Hatred Act amended the Racial Discrimination Act, and that it should be done as soon as possible.

Recommendation 2. The Sex Discrimination Act 1984 should be amended to prohibit vilification on the basis of sexual orientation, gender identity and intersex status.

Obviously, there are other potential attributes which could also be aided by the introduction of vilification protections, including those grounds which already have Commonwealth anti-discrimination laws (sex, disability and age), but, as I am not an expert in any of those issues, I am not in a position to argue for or against their inclusion in this submission.

Nevertheless, I strongly believe that these questions – whether vilification protections should be expanded, and which additional groups they should cover – are the ones which should be occupying the mind of our Commonwealth Attorney-General, and indeed all MPs, rather than working out how to restrict the protections offered by the racial vilification provisions contained in the Racial Discrimination Act 1975.

I sincerely hope that this submission assists in helping to turn that conversation around, and that we, as a community, start to focus on enhancing instead of undermining human rights.

Thank you for taking these comments into consideration. Should you require clarification or further information, I can be contacted at the details below.

Sincerely,

Alastair Lawrie

The last major battle for gay & lesbian legal equality in Australia won’t be about marriage

[Updated March 4th 2015]

This Saturday, the 37th annual Sydney Gay & Lesbian Mardi Gras Parade will work its way up Oxford St with its now traditional mix of politics, colour and movement, and above all, pride. Pride in who we are, pride in our community, and pride in what we have managed to achieve.

Because life is unarguably better for the vast majority of Australia’s lesbian, gay, bisexual, transgender and intersex (LGBTI) population in 2015 than it has ever been before. And that indeed is something to be proud about.

Following the first Mardi Gras on 24 June 1978, many of the barriers to legal equality have been removed. NSW passed anti-discrimination laws in 1982, followed by the decriminalisation of gay sex in 1984. Same-sex couples have since achieved de facto relationship recognition, and there is now equal access to assisted reproductive technology and adoption in most Australian jurisdictions.

It is likely that one area where legal rights have yet to be achieved will, once again, be the dominant theme of many of the more politically-oriented floats in this year’s parade – the Australian Parliament’s ongoing refusal to recognise marriage equality between all couples.

As someone who is engaged to be married, and who has been for more than four years but is currently prohibited from doing so, I understand why marriage equality is an issue which arouses such intense passion, and an admirable level of commitment from many activists around Australia.

But marriage equality is also something which most of us know is probably, some might say almost inevitably, going to be achieved at some point in the next five, at most 10, years.

When that day comes, when the first couples legally married under federal law have shared their vows and celebrated their commitments to each other in front of their families and friends, there will still be a major outstanding issue of legal inequality confronting lesbian, gay, bisexual and transgender (LGBT) Australians.

It appears just as inevitable that, long after those couples dance their waltzes and cut their wedding cakes, the anti-discrimination protections which are offered to LGBT Australians under most state and federal laws will continue to be seriously undermined by the wide-ranging exceptions which are offered to religious organisations (NB Intersex is not included here because religious exemptions under the Commonwealth Sex Discrimination Act 1984 do not apply on those grounds).

These exceptions allow religious schools to actively discriminate against LGBT teachers and students. Religious hospitals and community welfare organisations can utilise these loopholes to discriminate against LGBT employees, as well as patients and clients. And, while the historic federal reforms passed via the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 do not allow religious-operated aged care facilities to discriminate against LGBT people accessing their services, LGBT people can still be denied employment in those facilities simply because of who they are.

All of these services – education and health, community welfare and aged care – are located firmly and squarely in the public sphere, and address some of the most fundamental human needs in life. It is these same characteristics, that they are public services meeting public needs, that are used to justify the substantial amounts of public funding which subsidise the religious organisations running them, money which comes from all taxpayers, religious and non-religious, LGBTI and non-LGBTI alike.

Yet, despite operating in the public sphere, almost always using public money, these organisations are granted exceptions from the same legal obligations that are imposed on any other group, namely the responsibility not to discriminate on the basis of sexual orientation and gender identity.

The justification for these ‘special rights’? Basically, that the ability to discriminate against lesbian, gay, bisexual and transgender people is so fundamental to the exercise of religious freedom that it cannot be limited.

Note that we are not here talking about who is appointed as office-holders, including ministers, within a religion itself, what a particular religion may or may not believe in terms of morality, how religious ceremonies are undertaken, or even who can attend a religious ceremony. These are things that are central to religious freedom, and most people would not advocate the imposition of limits on the ability of religious organisations to discriminate in these areas.

Instead, some religious organisations (and we must say some, because not all groups hold these views) believe that they should have the right to fire a gay teacher, to expel a bisexual school student, to refuse to employ a lesbian aged care worker, or to deny services to someone who is transgender, even when all of the above is clearly done in the public sphere.

This is a much more substantive denial of rights than simply being denied access to marriage rites. Religious exceptions to anti-discrimination laws can affect LGBT people in multiple areas of their lives, including times and places when they are at their most vulnerable. In practical terms, I believe it is religious exceptions and not marriage inequality that is the biggest battle left to be won for full gay and lesbian legal equality.

It is also a battle that looks set to be fought more ferociously than that over marriage equality. Some of the largest religious organisations in the country don’t just support these exceptions, they are prepared to wage cultural war to defend them.

The Wesley Mission recently spent eight years, and went all the way to the NSW Court of Appeal, defending their right to deny allowing a male same-sex couple to become foster carers to children in need. Wesley did so on the basis that: “[t]he biblical teaching on human sexuality makes it clear that monogamous heterosexual partnership within marriage is both the norm and ideal” (OW & OV v Members of the Board of the Wesley Mission Council [2010] NSWADT 293 (10 December 2010).

Further, they submitted that: “Wesley Mission’s tradition views a monogamous heterosexual partnership in marriage as the ideal family role model for the vulnerable and sometimes damaged children we foster. Other understandings fall short of that norm.” And finally that “[t]he proposition that we should provide a framework for children to be cared for and nurtured within the context of a homosexual lifestyle is fundamentally unacceptable to our evangelical teaching and practice.”

The irony, some might say hypocrisy, of these statements is that, in the same case, Wesley Mission admitted that single people could themselves become foster carers through their service. Apparently they believed that two dads or two mums had less to offer foster children than one.

The net effect of the Wesley Mission case was to provide judicial confirmation of the breadth of the religious exceptions offered under section 56(d) of the NSW Anti-Discrimination Act 1977. That section reads: “[n]othing in this Act affects: 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.”

In short, if you are lesbian, gay, bisexual or transgender, then you have no legal right or expectation to be treated fairly and without discrimination by a religious employer, or religious-operated service, in NSW.

It is no surprise then that, when the Federal Parliament was considering the Exposure Draft Human Rights and Anti-Discrimination (HRAD) Bill 2012, the precursor of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, key NSW religious organisations would argue for religious exceptions to be established in Commonwealth law, too.

What is perhaps surprising is that some churches made submissions to the Senate inquiry considering the HRAD Bill that these exceptions do not go far enough.

The Standing Committee of the Synod of the Anglican Church Diocese of Sydney, and the Catholic Archdiocese of Sydney (including the Diocese of Parramatta and the Catholic Education Commission of NSW), both argued that the concept of exceptions was problematic, and that the right to discriminate against LGBT people should instead be re-contextualised as a positive right.

From the Anglican submission: “[w]hile exceptions are necessary, casting the protection of these rights in a wholly negative manner, in the form of ‘exceptions’, does not do justice to their importance. It suggests they are merely to be tolerated rather than positively recognised and upheld as legitimate and important in themselves.”

Meanwhile, in a ‘Diedre Chambers’ style coincidence, the Catholic submission also wrote: “the terminology of “exceptions” is problematic and fails to acknowledge that the right of freedom of religion is a fundamental human right, which the Commonwealth government is obliged to protect under international law. In our view, the terminology of “exceptions” should be replaced with the terminology of “protections”. Using the terminology of “protections” would recognise that conduct which is deemed not to be unlawful because it is covered by an exception related to religion is in fact lawful because it accords with the fundamental human right of freedom of religion” [emphasis in original].

Both submissions also go further than concerns surrounding terminology to argue that the exceptions which are offered to religious organisations should also be available to individuals – that is, that their personal beliefs should allow them to discriminate, even in their professional lives and when not working for a religious organisation.

For example, the Anglican submission recommended that “[a]n employee should not be required by their employer to undertake particular tasks or provide services in a particular context that are contrary to the employee’s genuinely held religious convictions where this is reasonable.”

Thankfully, that style of exception, which is located somewhere on the bottom half of the slippery slope down to the abhorrent type of laws currently attracting controversy in several US states, was not included in the final Commonwealth legislation. But in making that submission, the Anglican Church of Sydney has made clear the direction it wants anti-discrimination, or more accurately, pro-discrimination, laws to head [As an aside, if it had been passed then, when marriage equality does eventually become a reality, such provisions would have allowed individual employees to refuse to sell wedding cakes, or serve as wedding photographers, merely because of the sexual orientation and/or gender identities of the couples involved].

And they will fight equally hard to ensure that the current framework of exceptions applies in as many contexts as possible. The eventual removal of these exceptions in terms of people accessing aged care services was strongly resisted from some religious bodies, even if their arguments for doing so were quite weak (the Anglican submission on the HRAD Bill suggested that “[i]t may be unsettling to these communities to have residents who do not share their beliefs, values and ethos facility on matters of sexual practice”).

They have been more successful in fighting against recent proposed changes to NSW law that were simply attempting to remove the right of religious and other private schools to discriminate against gay, lesbian and transgender students (NB Bisexuality is shamefully still not a protected attribute in the NSW Anti-Discrimination Act 1977). Alex Greenwich’s amendments are currently on hold, at least in part because of the influence of the two major churches in the Parliament.

As we have seen, some religious organisations have demonstrated over the past 10 years that they are prepared to fight, by whatever means necessary (through the courts, in parliamentary inquiries, by lobbying parliamentarians directly and in public debate) to maintain and even extend the reach of these exceptions.

While this may seem to some like a theoretical (or even theological) debate, they are not doing so because they want the law to recognise abstract rights – they are engaged in this battle because they want the retain the ability to actively discriminate against LGBT people in real life.

Sadly, there are too many stories of this happening, of religious exceptions causing real-world harm to LGBT people. In the lead-up to Mr Greenwich’s Bill being introduced, several lesbian and gay students came forward with stories of being sent to the counsellor’s office for being “sick” (that is, for being gay), of being called disgusting and a disgrace – by a teacher no less – and threatened with exclusion from senior school, and of being told not to talk about their sexuality in addition to being excluded from school events (source: “Discrimination has no place in schools” Alex Greenwich, Sydney Morning Herald, 19 September, 2013).

Not forgetting the recent incident where the Sacred Heart Primary School at Broken Hill, which falls within the Wilcannia-Forbes Catholic Diocese, rejected a young girl’s kindergarten application simply because her parents were two women (source: “Same-sex enrolment row prompts call for law change”, ABC News Online, 15 December 2011).

Of course, these are just some of the stories that we are aware about. Most people who are discriminated against by religious organisations, either directly or indirectly, do not speak up, because they are aware that the discriminatory actions of those bodies are entirely lawful, or because they fear retribution from those organisations if they do so.

Which brings me back to the Mardi Gras Parade. While for many of us the decision to participate on Saturday is an easy one, choosing to celebrate pride in who we are and as part of our community, for others the decision whether to be visible or not in this manner can be significantly more complicated.

For people already engaged with religious organisations in different ways, or whose profession may involve applying for jobs with them (for example, more than a third of schools in Australia are religious, an even higher proportion amongst secondary schools), choosing to be ‘out’ through Mardi Gras can have serious repercussions.

Some people can and do have a legitimate fear that being identified as lesbian, gay, bisexual or transgender could result in them being fired, or being refused employment in the first place, in being expelled from school (or seriously mistreated while there), or being denied necessary services. Neither state nor federal anti-discrimination law would currently protect them in these circumstances.

In this respect, despite all of the progress in law reform since the first Mardi Gras parade was held back in 1978, there is still an incredibly long way to go. That is one of the reasons why we must ensure that Mardi Gras, as well as being a celebration of pride, also continues to serve its role as a political protest.

It is also why me must continue to campaign for equality, and to fight for our rights, including the right not to be discriminated against. Given the scale of the challenge involved in removing these unjust religious exceptions, and how hard (some) religious organisations will struggle to retain them (and therefore to maintain their position of privilege in society), we should be aware that it is not a fight that we will win in months. It will take several years, at least – if not decades.

But it is a battle we must wage nonetheless. Because, if LGBT Australians are ever to be truly equal under the law, then the special exceptions granted to religious organisations under Commonwealth, state and territory laws must end.

Explanatory notes: I have attempted to be clear in this post about when I am speaking about gay and lesbian, or LGBT, or LGBTI, because sometimes the law affects these groups in different ways (and please accept my apologies if I have made some errors in this respect). For example, removing religious exceptions cannot be the last major battle for bisexual legal equality – especially if they are not included in the NSW Anti-Discrimination Act in the first place.

Equally, I am not in a position to argue that religious exceptions are the biggest legal issue confronting transgender Australians when uniform positive recognition of gender identity is not yet a reality. And, while intersex people are not subject to religious exceptions under the Sex Discrimination Act, I also wouldn’t describe this issue as more important than banning involuntary medical sterilisation, something I have written about previously (see link: https://alastairlawrie.net/2013/12/25/no-3-senate-report-on-involuntary-or-coerced-sterilisation-of-intersex-people-in-australia/).

Finally, while I wrote in the second paragraph that, for the vast majority of LGBTI Australians, life is unarguably better than it has ever been before, I do not wish to underestimate the ongoing problems of mental illness, depression and suicide which affect many young LGBTI people, or indeed the plight of LGBTI asylum-seekers, who Australia continues to send to Nauru and Manus Island, PNG, for ‘processing and resettlement’.

One (more) final thing: if you liked this post, please consider sharing. Thanks, Alastair

No Homophobia, No Exceptions

During the week, the NSW Gay & Lesbian Rights Lobby (which I am involved in as the Policy Working Group Chair), launched its No Homophobia, No Exceptions campaign, calling for the removal of religious exceptions to LGBTI anti-discrimination protections contained in the Commonwealth Sex Discrimination Act 1984 and the NSW Anti-Discrimination Act 1977.

This is an incredibly important campaign, given these exceptions will possibly be the last barriers to full LGBTI equality in Australia to fall, and a campaign which I am very proud to be involved in.

Now, while this blog, and the posts which I put up here, only ever reflect my personal views on things (ie in this blog I do not speak on behalf of the GLRL, or any other organisation), I would like to take the opportunity to put up a link to two other pages which form key parts of the No Homophobia, No Exceptions campaign.

The first is an op-ed I wrote for the Star Observer newspaper, outlining the reasons for the campaign, and calling for the LGBTI community to get involved. Link here: <http://www.starobserver.com.au/opinion/soapbox-opinion/no-homophobia-no-exceptions/117476

The second link is to a Change.org petition which asks people to support the campaign, by calling on Commonwealth Attorney-General, Senator the Hon George Brandis, and NSW Attorney-General, The Hon Greg Smith MP, to repeal these provisions.

If you support the campaign, and the principle that all people deserve to be treated equally in all areas of public life, irrespective of sexual orientation, gender identity or intersex status, then I strongly encourage you to sign. Link here: http://www.change.org/en-AU/petitions/senator-hon-george-brandis-remove-religious-exceptions-from-anti-discrimination-laws

Thanks.