Submission re Queensland Anti-Discrimination Bill 2024 (Exposure Draft)

Strategic Policy and Legislation

Department of Justice and Attorney-General

GPO Box 149

Brisbane QLD 4001

Submitted via email: adactreview@justice.qld.gov.au

Friday 22 March 2024

To whom it may concern

Submission re the Anti-Discrimination Bill 2024 (Exposure Draft)

Thank you for the opportunity to provide this short submission in response to the Queensland Anti-Discrimination Bill 2024 (Exposure Draft) as released in February 2024.

I do so as a long-term advocate for the human rights of lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) Australians, with a particular focus on anti-discrimination and vilification law reform.

I note that this consultation has coincided with a number of other developments in LGBTIQ human rights, both federally (renewed debate about a Religious Discrimination Bill, and Sex Discrimination Act 1984 (Cth) amendments to protect LGBTQ students and teachers in religious schools) and in my home state of NSW (including the Conversion Practices Ban Act 2024 (NSW), which was passed this morning), that have restricted my ability to engage more fully with this important consultation process.

However, I did wish to make the following four brief points in relation to key aspects of the Exposure Draft as released.

First, I welcome the fact that the Bill would protect all parts of the LGBTIQ community against discrimination, through the inclusion of the protected attributes of sexual orientation, gender identity and sex characteristics (as proposed in clause 10).

This would retain the status quo, as created by the Births, Deaths and Marriages Registration Act 2023 (Qld), which ensured that non-binary people were finally included within the scope of gender identity, and that intersex people were finally protected by the addition of sex characteristics as a separate attribute (while noting that these amendments have yet to commence).

I also welcome the expansive and inclusive definitions of these attributes, as proposed in Schedule 1 of the Exposure Draft, as well as the explicit inclusion of sex work activity as a protected attribute (replacing lawful sexual activity).

Second, I welcome the fact that the Bill would protect all parts of the LGBTIQ community against vilification, through the inclusion of sexual orientation, gender identity and sex characteristics in clause 84 which regulates ‘hateful, reviling, seriously contemptuous, or seriously ridiculing conduct.’

Once again, this is consistent with the existing Anti-Discrimination Act 1991 (Qld) as amended by the Births, Deaths and Marriages Registration Act (although once again not yet commenced).

I also particularly welcome the inclusion of disability as a relevant attribute for the purposes of this clause, which would be a positive development arising out of the Exposure Draft.

Third, I welcome the narrower approach the Exposure Draft Bill takes in relation to exceptions for employment by religious bodies, and especially for employment by religious educational institutions.

Proposed clause 29, which only allows discrimination on the basis of religious belief or religious activity if: religious participation is a genuine occupational requirement of the work; the worker cannot meet this requirement because of their religious belief or religious activity; and ‘the discrimination is reasonable and proportionate in the circumstances’ – is a significant improvement on the equivalent provision in the existing Anti-Discrimination Act.

Section 25, which essentially creates a ‘Don’t Ask, Don’t Tell’ environment for LGBTQ teachers and other staff in Queensland’s religious schools, is one of the worst features of the current law, not only from an LGBTIQ human rights perspective but more broadly.

Teachers should be employed on the basis of their ability to teach, not their sexual orientation or gender identity.

Removing ‘Don’t Ask, Don’t Tell’, thereby lifting the requirement for many LGBTQ teachers and other workers in religious schools to remain in the closet and maintain hyper-vigilance to prevent unintended disclosure of their orientation or identity, would also have the consequence of allowing them to focus on doing the best job they can – to teach students.

Which means that this reform will ultimately benefit everyone.

Fourth, I welcome the retention of a narrow approach to exceptions for religious educational institutions, as proposed in clause 36.

The Exposure Draft Bill is similar to section 41(a) the existing Act, in allowing discrimination by religious schools against students, but only on the basis of their religion, and only at the point of enrolment.

I also specifically welcome proposed sub-clause 36(2):

‘To remove any doubt, it is declared that a person can not rely on subsection (1) to discriminate against another person on the basis of a protected attribute other than religious belief or religious activity.’

As well as the example provided: ‘A person can not rely on subsection (1) to discriminate against another person on the basis of the other person’s gender identity.’

These provisions are essential to ensure all LGBTQ students are protected, both at enrolment and beyond.

They also have the added benefit of supporting the religious freedom of children and young people, to learn and to grow as they engage in their education, including to question, challenge and develop their own faith, which may be different to the faith of their school.

Finally, I am aware of the submission made by the Australian Discrimination Law Experts Group (ADLEG) and endorse their position on the Exposure Draft Bill, including their specific comments and suggestions regarding a range of further improvements to this legislation.

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

Sincerely

Alastair Lawrie

An LGBTIQ Advocate’s Lament on IDAHOBIT 2024

Today is the International Day Against LGBTIQA+ Discrimination.

May 17 marks the day in 1990 homosexuality was removed from the World Health Organisation Classification of Diseases, with IDAHOBIT now an annual event drawing attention to the denial of fundamental human rights of lesbian, gay, bisexual, transgender, intersex, queer and asexual people around the world, including Australia.

Ordinarily, I would use IDAHOBIT to optimistically highlight issues of anti-LGBTIQ discrimination that can and must be addressed by Commonwealth, State and Territory Governments.

But I must admit I’m running as low on optimism at the moment as I am energy. On IDAHOBIT 2024, I just feel tired.

I’m tired of leaders who promise to protect LGBTQ students in religious schools against discrimination, but then fail to follow through on their commitments.

In the past, this statement applied to former Prime Minister Scott Morrison, who promised to remove the exceptions in the Commonwealth Sex Discrimination Act 1984 that allow religious schools to mistreat students because of their sexual orientation or gender identity in October 2018 – before spending the following three-and-a-half years running away from that commitment.

Now it applies to Prime Minister Anthony Albanese, who promised to protect both LGBTQ students and teachers ahead of the May 2022 federal election but, having received an Australian Law Reform Commission report outlining exactly how to do this, now refuses to introduce legislation to make this a reality without the support of Opposition Leader Peter Dutton.

Which is both an entirely unnecessary requirement – because the Parliamentary numbers exist to pass these reforms without the Liberal and National Parties – and will almost inevitably lead to an outcome which doesn’t actually end this anti-LGBTQ discrimination, either because the Coalition won’t agree to any changes, or any changes that are agreed simply allow this mistreatment to continue in other ways.

I’m tired of states that have allowed their own anti-discrimination laws to atrophy, through decades of neglect, such that they do not provide adequate protection against discrimination to the LGBTIQ community.

I am of course thinking of the successive governments in NSW who failed to update the Anti-Discrimination Act 1977, with the consequence that, in 2024, it still does not protect bisexual, non-binary or intersex people. Or LGBTQ students or teachers. And plenty of others too.

At least the current Minns Labor Government has referred this legislation to the NSW Law Reform Commission for comprehensive review. Although it would be even better if, in the interim, they supported the Equality Legislation Amendment (LGBTIQA+) Bill 2023, currently being considered by a parliamentary committee, which could address many of these shortcomings right now.

I’m even more thinking of the WA Labor Government who, despite promising to modernise the Equal Opportunity Act 1984 after their own Law Reform Commission inquiry process, have failed to use their parliamentary majorities in both houses to do anything about it, squandering what might be a once-in-a-lifetime opportunity to finally bring WA anti-discrimination laws into the 21st century.

I’m tired of the absence of action on birth certificates, particularly in NSW, which remains the only place in Australia that still requires trans and gender diverse people to undergo sterilising genital surgery in order to update their identity documents. And which does not provide legislative options to recognise sex or gender markers beyond male or female either.

Although, as with anti-discrimination reform, this could be solved quickly and easily through the rapid passage of the Equality Bill’s amendments to the Births, Deaths and Marriages Registration Act 1995.

I’m tired of the lack of Medicare funding for gender-affirming healthcare, too. While not all trans and gender diverse people seek access to such services, including but not limited to surgery, many do – but the significant out-of-pocket costs involved place them out-of-reach for far-too-many trans Australians.

These are vital, in many instances literally life-saving, healthcare services. They are the opposite of ‘elective’, and must be properly, publicly, funded, to ensure all trans and gender diverse people who want to can access them.

I’m tired of the glacial pace of change to protect children born with variations of sex characteristics (aka intersex kids) from non-consenting surgeries and other harmful medical interventions.

It’s been more than a decade since the Commonwealth Senate first investigated these gross violations of human rights – the worst violations against any part of the Australian LGBTIQ community – and yet only one jurisdiction has passed any kind of law to limit them (the ACT, which legislated reforms in 2023, although I understand Victoria is also moving, slowly, toward its own scheme).

Intersex people deserve to control what happens to their bodies.

I’m tired of right-wing, and far right, politicians at all levels using the LGBTIQ community as convenient punching bags for their own self-promotional purposes. The latest notorious example being Cumberland City Councillor Steve Christou, with his thankfully short-lived ban on books depicting same-sex parents from council libraries. 

But, really, we could be talking about any number of people who use anti-LGBTIQ platforms to seek, or retain, public office, from Mark Latham to Katherine Deves, and Alex Antic to Claire Chandler.

I’m tired of the far right extremist threat against LGBTIQ people not being taken seriously by Government, and especially by the Commonwealth Government.

In the wake of the downright disturbing sight of neo-Nazis turning up to an anti-trans rally on the steps of Victorian Parliament in March 2023, the Albanese Government passed urgent legislation banning Nazi symbols, and salutes, but so far have still not introduced amendments to prohibit anti-LGBTIQ vilification under federal law.

Nor has there been clear Commonwealth condemnation of the wave of threats of violence and intimidation against Drag Story Times at community libraries around the country.

I’m tired of politicians who turn up to march with us in events like the Sydney Gay & Lesbian Mardi Gras parade, but don’t turn up to vote for us on the floors of our parliaments.

And who post short statements supporting LGBTIQ people on social media on days like today, but won’t say anything when it really matters, when our community is under attack.

I’m tired of some people in the LGBTIQ community who fought for the right to marry for themselves, but then turned away from the ongoing battles for the rights of others within our own community, including trans and gender diverse, and intersex, people.

And especially of fringe groups like the LGB Alliance who actively seek to deny human rights to trans and gender diverse people, employing the same arguments, and sometimes aligned with the same groups, that were used to deny their own.

And I’m tired of the amount of time, energy and emotional resources that we must consistently spend defending existing rights from baseless attack, simply stopping the situation from getting worse, rather than making progress on the many, many issues where change is still desperately needed.

I acknowledge that this list is at least partly the product of my own choice to be an advocate for LGBTIQ equality, both professionally and personally.

A choice that means, to some extent, nearly every day for me is a day standing up against LGBTIQ discrimination.

And so on this International Day Against LGBTIQA+ Discrimination I’m choosing to do something else.

I’m logging off, and spending the day with the man who I love, doing many of the simple but beautiful things we enjoy together.

In other words, we’re making sure on this IDAHOBIT we’re living the gayest, and most fabulous, lives possible.

The struggle for LGBTIQ equality will continue tomorrow. And many, many tomorrows after that.

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Decoding Life, Freedoms and Governance

On April 16 2024, I was invited to give the keynote address to launch Issue 47(1) of the UNSW Law Journal.

I was asked to talk about the Issue’s theme – ‘Decoding Life, Freedoms and Governance’ – with reference to at least some of the Issue’s articles (which are open-source, and can be found here), as well as my background as a long-term LGBTIQ advocate and professional experience in public policy.

The following is what I came up with (the two sections in square brackets were omitted on the night to keep to time, but are included here for completeness). Thanks for reading, I hope you find it interesting. 

‘Decoding Life, Freedoms and Governance’

Thank you for that generous introduction. And of course for the invitation to speak here tonight.

Thank you also for the broad theme of Issue 47(1) to address in my remarks – ‘Decoding Life, Freedoms and Governance’ – which took me several days to ‘decode’.

I must confess I don’t feel particularly qualified to talk in detail on the topic of ‘decoding life’ – which is something most people do in consultation with their therapist.

I do, however, have plenty to say on the twin, and intertwining, topics of ‘decoding freedoms’ and ‘decoding governance’, at least partly based on my lived experience.

That’s because, as a 45-year-old gay man, it has been impossible to avoid thinking about the meaning of freedom – of what I have been free to do, or not do, or protected from, or not, at different stages of my life. And what others, including religious organisations, have been legally free to do to me.

Or to deny the role of governance, and governments – state and federal – in determining the extent of those ‘freedoms’, far-too-often without consultation with or even consideration of those most affected by their decisions.

Indeed, some of the key events in my life overlap with milestones in the history of LGBTIQ rights in Australia.

I was born in July 1978, just weeks after NSW Police arrested 53 people for participating in the first Sydney Gay Mardi Gras parade – an indication of how unwelcoming both the law, and its enforcement, were for LGBTIQ people here.

Although I grew up in rural Joh Bjelke-Petersen-era Queensland, which was undoubtedly worse.

Queensland did not decriminalise male homosexuality between adults until January 1991 – but even then it introduced a differing age of consent for anal intercourse (18, compared to 16 for other sexual acts), a discrepancy that was not abolished until 2016, and with charges and convictions arising because of this inequality still not included in their historical homosexual conviction expungement scheme today.

January 1991 was also personally significant for a couple of reasons. Just one week after decriminalisation, I found myself travelling 800 kilometres from the family farm to a religious boarding school in Brisbane. Then, on my first day there, I found I was same-gender attracted too.

Audience members will be unsurprised to learn religious schools were lawfully permitted to discriminate against LGBTQ students (and teachers) in Queensland at that time. Loopholes my school took full advantage of over the following five years.

While I will spare you the details tonight, it would be an understatement to describe growing up gay at a religious boarding school which enjoyed special privileges to be prejudiced, as horrific. [You can read more about my experiences, here].

Fast forward to 2008, and to another coincidence. I was employed as a ministerial adviser to the Rudd Labor Government. At the same time as I met, and began my first de facto relationship with, the man who is still my partner today, I was provided internal on the details of Commonwealth same-gender de facto relationship recognition.

Some younger members of the crowd may not be aware this recognition did not exist before 1 July 2009.

Then, in January 2010, my partner Steve and I got engaged – meaning I would spend the remainder of my time working for a Government which did not support the legal equality of my own relationship.

Despite departing Canberra in mid-2012, I continued to advocate for the introduction of Commonwealth anti-discrimination protections for LGBTIQ people, something that was finally achieved in June 2013 – just 10 years ago, but almost four decades after race discrimination was prohibited federally, and more than three decades after homosexual discrimination protections were introduced in NSW (something we will return to later).

The subsequent four years were predictably dominated by the subject of marriage equality – not only campaigning for it to be passed, but also debating the manner of its passage, from conscience votes through to the push for the ALP to hold a binding vote.

And from successful LGBTIQ community efforts to stop the Turnbull Coalition Government’s plebiscite, to failed attempts to prevent their postal survey – in another coincidence, I started at the Public Interest Advocacy Centre just a couple of months before we helped one of the unsuccessful High Court challenges to block what may have technically been a statistical survey but was also an anti-democratic anomaly.

I note this challenge fell just prior to the relevant time period for the article ‘How does the High Court interpret the Constitution? A Qualitative Analysis between 2019-21’ – it would have been interesting to see how Tan, Paige, Hrambanis and Green characterised that Wilkie decision. 

In any event, thank you for indulging me in sharing a little of my back-story. Which I think reinforces that to be a gay man – or any member of the LGBTIQ community – in the final two decades of the 20thcentury, and the first few of the 21st, is to have been engaged in a constant state of contestation of our legal rights.

Our lives have been made inherently political, with participation in the political process rendered essential – even if ‘the State’ has frequently been our oppressor, or at least acted on the oppressor’s side.

That background also helps to explain why I am an LGBTIQ advocate today.

Why I chose ‘sexuality-related anti-discrimination law in practice’ as the topic of my law honours paper at ANU.

Why I’ve spent much of the past two decades volunteering for a range of LGBTIQ community organisations, including both the Victorian, and NSW, Gay & Lesbian Rights Lobbies.

And why I have ended up at PIAC, where over the past seven years I have been fortunate enough to work not just on marriage equality, but also on advocacy against the Morrison Government’s Religious Discrimination Bills, which presented a grave threat to the rights of LGBTQ people (as well as women, people with disability and even people of minority faiths).

Above all, I’ve focused on efforts to secure anti-discrimination protections for LGBTQ students and teachers in religious schools, under both state and federal law. Which is obviously a full-circle moment given where I started!

I intend to use the remainder of this speech to talk about what LGBTIQ rights look like in NSW today, across four key issues: conversion practices; birth certificates; medical interventions on intersex children; and anti-discrimination protections.

Now, had I given this address a month ago, I would have been able to make the pithy observation that we live in the worst jurisdiction in Australia for LGBTIQ laws.

Instead, following passage of the Conversion Practices Ban Act in late March, we’ve moved all the way up to equal worst, with Western Australia (actually, that’s perhaps uncharitable – if we’re being generous, we might even be able to say we are now second-worst… just).

From an LGBTIQ advocate’s perspective, this legislation is both welcome and long overdue.

It will legally prohibit conversion practices, defined in section 3 as:

‘a practice, treatment or sustained effort that is (a) directed to an individual on the basis of the individual’s sexual orientation or gender identity, and (b) directed to changing or suppressing the individual’s sexual orientation or gender identity.’

This is needed because, as described in the opening article in issue 47(1) – Martin Clark and Brendan Gogarty’s excellent ‘Searching the Reins and Hearts: Conversion Practices Reforms in Australia’: 

Quote

‘[S]cientific and clinical evidence has consistently shown that there is no evidence that conversion practices are ‘effective’ in their capacity to effect a change or suppression of sexual orientation or gender identity. There is also consistent evidence that conversion practices carry clear risks of harmful effects on those subjected to them, including physical and psychological harms, such as increased suicidality, self-harm, post-traumatic stress disorders, anxiety and depression, feelings of alienation, loneliness and exclusion, sexual dysfunction, substance abuse, internalised homophobia and feelings of failure, and reluctance to seek medical treatment.’

Endquote

Disappointingly to Clark and Gogarty, who argue against a carceral approach, the new Act implements both a criminal offence, and civil complaints scheme, for conversion practices.

Although I must respectfully disagree with them – given the seriousness of the harms they outline, I would suggest criminal penalties for the worst examples are appropriate.

Either way, the passage of this law is a testament to the advocacy of conversion practices survivors like Anthony Venn-Brown, Chris Csabs and Nathan Despott, over many decades.

But I would not be honouring their work without also highlighting their primary criticism of the law as passed – that, unlike the ‘best practice’ scheme in Victoria, the NSW law does not provide a formal mechanism for third-party complaints to Anti-Discrimination NSW.

As it stands, the only complaints that can be made are from survivors directly, or via representative complaints with the consent of each of those survivors.

This framework not only reinforces one of the limitations of anti-discrimination law more broadly – that the onus for seeking redress falls on the people who have been mistreated.

It ignores the particular characteristics of conversion practices, where the people undergoing them appear to do so ‘voluntarily’ (despite what, as Martin and Gogarty note, is the ‘impossibility of genuine consent’ in these circumstances), and are therefore unlikely to bring, or consent to, complaints until after they have extricated themselves from them. If they first survive them.

The lack of third-party complaints is a major gap in this scheme that must be rectified.

The Act also includes a range of ‘carve-outs’, providing that activities like ‘clinically appropriate’ healthcare, ‘stating what relevant religious teachings are or what a religion says about a specific topic’, and ‘parents discussing matters relating to sexual orientation, gender identity, sexual activity or religion with their children’, do not constitute conversion practices.

Despite this, a number of conservative religious organisations campaigned against the law in its totality, alleging it constituted an attack on ‘religious freedom’.

I must, perhaps a little less respectfully this time, disagree with them too. There is no philosophical justification for the right to inflict serious psychological harm, on children and young people, in the (misused) name of religious freedom.

Even in the case of adults – where there is at least a possible argument for the freedom to engage in practices which may result in self-harm – I would submit there is a clear justification for government regulation.

This is because of what Clark and Gogarty describe as the role played by ‘conversion ideology’ as a precursor to ‘conversion practices’:

Quote

‘Survivor-advocates have consistently contended that ‘conversion ideology’ – the worldview that it is possible and necessary for LGBTQA+ people to change their sexual orientation and gender identity, and that being LGBTQA+ is due to trauma, spiritual brokenness, and can be fixed by prayer – is central to defining and understanding conversion practices’,

because

‘the inculcation of these beliefs in congregants is important for smoothing the path for them taking part in actual conversion practices.’

Endquote

In other words, perpetrators of conversion practices first convince healthy people to believe their sexual orientation or gender identity is somehow ‘sick’ (when it is not), before offering a ‘cure’ that actually causes serious psychological harm.

The law should not protect the ‘freedom’ to engage in this abuse.

Before I conclude on this subject, I feel compelled to express my condemnation of the role played by the Liberal/National Coalition during parliamentary consideration of this law.

And especially of their vote in favour of minor-party amendments to remove ‘gender identity’ from any protection under the Conversion Practices Ban Act.

In other words, the NSW Opposition voted for the continued legality of ‘practices, treatments or sustained efforts’ to stop trans people, and especially trans young people, from being trans.

This was a shameful act, and one I would strongly urge them to reconsider in relation to future LGBTIQ law reform – including on the next topic we will turn to.

That is birth certificate legislation, and in particular, the regulation of access by trans and gender diverse people to identity documents reflecting who they are. Sadly, the NSW Births, Deaths and Marriages Registration Act 1995 is unequivocally the worst such law in the nation.

We are the only jurisdiction which still requires people to undergo genital surgery before being able to update their birth certificates – surgery many trans people do not wish to undertake, and of those that do, many cannot afford, because of a lack of Medicare funding.

While we are one of only two jurisdictions, alongside Western Australia, with no legislative options for sex or gender markers beyond male or female: non-binary people cannot access state-issued ID stating they are, in fact, non-binary.

These laws aren’t just an insult to the human dignity of trans and gender diverse people. The requirement for surgery, which causes sterilisation, is a denial of reproductive freedom and therefore the right to found a family.

While the inability of many trans and gender diverse people to access birth certificates reflecting who they are at all, means they are confronted by the possibility of ‘outing’ in the growing range of contemporary scenarios where ID is mandated.

Fortunately, the Equalities Legislation Amendment (LGBTIQA+) Bill 2023, introduced by the Independent Member for Sydney Alex Greenwich and currently being considered by a Parliamentary Inquiry, would address these problems, and at least bring NSW law up to the standard of Victoria and Queensland.

Although even then, and this is my personal rather than professional view, it would fall short of the ‘best practice’ approach of Tasmania, which is the only Australian state or territory to adopt a true ‘self-identification’ model for trans and gender diverse people.

Instead, the NSW law – like Victoria and Queensland – would still require a trans person, in addition to their own statutory declaration, to submit:

‘a support statement by an adult who has known the applicant for at least 12 months stating that (i) the adult believes the person is making the application in good faith, and (ii) the adult supports the person making the application…’

Given identity, including the characteristic of gender identity, is an inherently personal attribute, I do not agree the recognition of someone’s gender should be dependent on whether another person ‘supports’ it.

Looked at from another perspective, I do not concede that my sexual orientation, as a gay man, should only be acknowledged if I am able to produce a statutory declaration from another person saying they ‘support’ it.

I am who I say I am, a fact generally accepted by others. Trans and gender diverse people deserve to enjoy exactly the same respect.

Nevertheless, we (being PIAC), support the Equality Bill as a significant step forward along the long journey to LGBTIQ, and especially trans, equality. We urge both the NSW Government, and Opposition, to support it.

Turning to the third topic I flagged earlier, and in which NSW law is manifestly deficient: medical interventions on intersex children.

For audience members new to this subject, intersex people have innate sex characteristics that do not fit medical norms for female or male bodies. It is estimated somewhere up to 1.7% of children are born with these variations of sex characteristics.

Tragically, the medical system’s response to many intersex children is to perform so-called ‘normalising’ surgeries on them.

These interventions are frequently not clinically necessary for the child’s health, but instead performed for non-therapeutic or ‘psycho-social’ reasons, including to assuage the disappointment of parents who expected their child’s body to conform to societal norms, or to ‘assist’ the child to fulfil gendered stereotypes in the future.

For those curious about what that means in practice, I suggest reading the 2016 Family Court case of Re: Carla, which ruled that a family can consent to the sterilisation of their 5-year-old child without court approval, without clear medical necessity and at least partly motivated by gendered expectations, including attitudes to that young child’s potential future sexuality. It was then, and remains today, a genuinely heart-breaking decision.

These unnecessary surgeries are obviously done without the consent of the person affected by them, who should be free to agree, or not agree, to them when they have at least reached Gillick competency and understand what is involved.

In my view, medical interventions on intersex children, which are a fundamental denial of bodily autonomy, are one of the gravest human rights violations happening in Australia today – not just in relation to the LGBTIQ community, but across society.

There have been multiple public inquiries recommending these practices be ended, including the 2013 Senate ‘Inquiry into the involuntary or coerced sterilisation of intersex people in Australia’, and the Australian Human Rights Commission’s 2021 report ‘Ensuring health and bodily integrity: towards a human rights approach for people born with variations in sex characteristics.’

Sadly, however, only one Australian jurisdiction has so far passed legislation to prohibit these surgeries: the ACT. While I understand Victoria may be close to finalising its own laws.

In contrast, there is no NSW Government commitment to introducing equivalent laws here, nor was it included in Mr Greenwich’s Equality Bill.

This is a gross failure of governments, in NSW and elsewhere, to protect the rights of the most vulnerable.

It is unsurprising I had this issue front-of-mind while reading the article ‘Out-of-Home Care, Contact Orders and Infant Mental Health: Recognising a Unique Developmental Stage in Law, Policy and Practice’ by Rachel Gregory-Wilson, Elizabeth Handsley, Liesel Spencer and Toby Raeburn, including their observation that:

Quote

‘Infancy is, therefore, a special and critically important stage of human development, and infants as a class of persons require special recognition and safeguards, including under child protection law. Infants are not little children, just as children are not little adults; they need different and unique exposures in their environments to facilitate optimum physical growth and emotional development’.

Endquote

While they made this observation in a different context, I think it reasonable to apply these principles to intersex children, who deserve legislative safeguards for their bodily autonomy, and who should be allowed to grow and develop free from unnecessary medical interventions to try to change their bodies into what society expects them to be.

Let intersex kids be free from surgeries performed according to the wants of others, rather than their own needs – and only performed following their own timeframes, if they so consent.

[One final point before moving on – while the circumstances, and associated rights, of trans young people, and intersex children, are quite distinct, it is depressing to observe the intellectual inconsistency of those who oppose the rights of both.

For example, Liberal Senator Alex Antic’s Childhood Gender Transition Prohibition Bill 2023, currently before Commonwealth Parliament, seeks to ban access by trans and gender diverse young people to gender-affirming health care, even puberty blockers and even where they are Gillick competent.

While simultaneously providing a specific carve-out to allow non-consenting medical interventions to continue to be performed on intersex children.

According to Antic, there should be no gender-affirming health care for trans kids who want it and who are able to consent. But no protection for intersex kids from harmful surgeries that are not clinically necessary and where they are in no position to consent.

Trans and intersex kids lose either way].

Turning to the final topic of my speech – anti-discrimination coverage – once again NSW has the worst laws in the country. Nowhere is this more apparent than in the protections the Anti-Discrimination Act 1977 offers, or more accurately fails to offer, LGBTIQ people.

It wasn’t always this way. In fact, NSW was the first Australian jurisdiction to protect lesbians and gay men against discrimination, in late 1982. Incidentally, this was before the decriminalisation of homosexuality in mid-1984, meaning there was an 18-month period during which gay men were criminals but legally could not be denied housing.

But the lack of subsequent reform, especially over the past 28 years, has allowed this law to atrophy.

We are now the only place nation-wide which does not protect bisexual people against discrimination. And one of two, with Western Australia, that does not protect non-binary and intersex people.

The provisions allowing discrimination by religious schools are the broadest in Australia too.

Indeed, they are so broad they apply to all ‘private educational authorities’, not just religious schools. And they offer complete or ‘blanket’ privileges to discriminate – unlike all other jurisdictions, there is no test which NSW schools must satisfy before being permitted to discriminate. The Act simply does not apply to them.

These serious flaws are just some of the reasons PIAC has made comprehensive anti-discrimination law reform a priority, including through our August 2021 report ‘Leader to Laggard: The case for modernising the NSW Anti-Discrimination Act’.

We were obviously pleased NSW Labor listened to that report and made comprehensive review of the ADA an election commitment. And we have welcomed, participated in and will continue to participate in the current NSW Law Reform Commission inquiry into this broken and outdated law.

But, as people discovered at the start of the century – when the Law Reform Commission completed its last review of this legislation, with its report then gathering dust rather than being implemented – an inquiry is meaningless if nothing subsequently changes.

We will continue to advocate to the Minns Labor Government until we finally have an Anti-Discrimination Act fit for the 21st century, one offering genuine protection against discrimination for all communities, including LGBTIQ people.

Speaking of Law Reform Commission reports at risk of gathering dust, I cannot discuss anti-discrimination law reform tonight without also addressing the current situation federally.

[Before we get into those details, however, and on indulgence, I might take this opportunity to vent the frustrations of an advocate for protecting LGBTQ students in religious schools who regularly comes up against the intellectually disingenuous, and sometimes downright dishonest, arguments of those opposed to reform.

I speak of some conservative religious schools, and their representative bodies, who simultaneously claim that religious schools do not discriminate against lesbian, gay, bisexual and trans students – but that under no circumstances can their legal privileges to do so ever be repealed.

They can never satisfactorily answer why that should be the case.

Until you realise it is because these religious schools do in fact discriminate against queer kids – they just call it something else.

Which is how you end up with the anti-LGBTQ, and especially anti-trans, student enrolment contract, proposed by Citipointe Christian College in Brisbane in 2022.

Or the situation in late 2023, when a Sydney Catholic school rejected a female student’s request to bring their same-gender partner to their formal (with it later becoming apparent this was policy across that entire Catholic school network).

Indeed, Catholic schools seem to be experts in this special kind of hypocrisy – claiming not to discriminate, while doing exactly that – as can be seen in the 2023 Sydney Catholic Schools’ ‘Gender Dysphoria Policy’ – a 6-page guide that only ever refers to students with ‘gender dysphoria’, never once acknowledging some students are trans.

I would submit it is fundamentally discriminatory to refuse to acknowledge who a trans child is.

It is almost refreshing to witness the comparative honesty of an organisation like the Presbyterian Church of Australia, who have publicly stated gay students cannot hold leadership positions within their schools because they are unable to ‘model Christian living’.

Almost – until you remember they are unashamedly, and unrepentantly, saying they will actively mistreat young people solely because of an intrinsic attribute.

That is nothing more than bullying, pure and simple. There should be no place for it in places of learning.

Anyway, thanks again for your forbearance.]

As audience members are aware, this issue has been ongoing for several years – since late 2018, when both the then-Morrison Government, and then-Shorten Opposition, promised to protect LGBTQ students. With Labor going further in promising to protect LGBTQ teachers too.

Albanese took these commitments to the May 2022 election, with Attorney-General Mark Dreyfus referring the question of how they should be implemented to the Australian Law Reform Commission in November that year.

The ALRC handed its report to Dreyfus in December. They proposed straight-forward amendments, to the Sex Discrimination Act 1984, and Fair Work Act 2009, to reflect the following two principles:

  1. That LGBTQ young people should enjoy the freedom to learn and to grow, without fear of discrimination on the basis of who they are, and
  2. That LGBTQ teachers should be employed on the basis of their skills and experience, rather than their sexual orientation and gender identity.

We hoped the privileges for prejudice enjoyed by religious schools might finally end.

But, when the Government released the ALRC report in March, those hopes were immediately dashed – because Prime Minister Albanese indicated no legislation would even be introduced to Parliament without bipartisan support from the now-Dutton Opposition. Effectively abdicating responsibility for his own election promises to the parties he had defeated.

Remember, not only did the Coalition do nothing to implement Morrison’s 2018 promise to protect LGBTQ kids, they withdrew their own Religious Discrimination Bills from Senate consideration because of amendments to prohibit discrimination against trans students.

Just today, Shadow Attorney-General Michaelia Cash has written an opinion piece not just opposing reforms to the Sex Discrimination Act, but also backing calls by religious schools for ‘positive rights’ to discriminate under federal law, with the consequence of overriding protections for LGBTQ teachers, and even students, in states and territories that have progressive laws.

It was abundantly clear to observers when Mr Albanese announced his ‘bipartisanship’ push, and is undeniable now, there are only two possible outcomes:

  1. There is no agreement, and therefore no protection for LGBTQ students and teachers
  2. There is agreement – but any Bill supported by the Coalition will not offer genuine protection for LGBTQ students and teachers.

Either way, LGBTQ Australians lose again.

It is hard not to share the sentiments, if not the choice of language, of religious school discrimination survivor James Elliot-Watson, when he described the impasse thus:

Quote

‘MPs are paid in excess of $200,000 so everybody should do their fucking job.

And I think that’s especially true for the leader of the government and my Prime Minister.

The purpose of parliament is to enact laws that ensure the safety, integrity and protection of… Australian citizens and that’s what this is about.

It needs to protect vulnerable children from legal discrimination practices that religious institutions are allowed to engage by chang[ing] the law.

Let’s get it done.’

Endquote

If Albanese doesn’t ‘get it done’ this term, it will be no less a failure of governance, and governments, to realise the basic freedoms of LGBTIQ Australians as the failure to achieve marriage equality over many years.

Indeed, there are many similarities between these two issues.

Both were reforms supported by a large majority of the Australian community.

Both could be delivered with legislative ease, following well-established precedents (in the case of marriage equality, overseas examples; in anti-discrimination law, the successful operation of state and territory laws).

Both issues had politicians who claimed to support change, but were recalcitrant in delivering it.

Significantly, both marriage equality and anti-discrimination reform have seen Prime Ministers impose artificial barriers hindering change – in the former, an unnecessary plebiscite-cum-postal survey; in the latter, the unnecessary need for bipartisan support.

With the result that on both issues LGBTIQ Australians are made to wait far too long for positive change.

Which is the most important point. It is LGBTIQ Australians who suffer real-world harm because of political intransigence.

In marriage equality, we remember Peter ‘Bon’ Bonsall-Boone and Peter De Waal, who were together for 50 years, and, in the face of Bon’s declining health, desperately pleaded for Malcolm Turnbull to introduce marriage equality so they could finally wed.

Bon died 6 months before it was passed.

In relation to LGBTQ students, I think about the person whose story we will never get to hear – because the mistreatment they experience causes them to prematurely end their life.

I say that with confidence – because it was nearly my story.

The horrific discrimination I suffered at the hands of my religious boarding school, which I mentioned earlier, caused me to experience suicide ideation from the second term of year 8, through the final term of Year 12. And beyond.

I am, in many respects, very lucky to still be here.

But I am also full of resolve. Because that is no way for a child to learn, or to grow up.

And so I can state with equal confidence that I, and PIAC, will continue to advocate until no child has to endure the same.

As I come to the end of tonight’s speech, I’m tempted to apologise for the ‘heaviness’ of some of the subjects I’ve spoken about, including the personal impacts of anti-LGBTIQ prejudice.

It is an ‘occupational hazard’ of being an advocate, and especially one who focuses on policy and law reform, to be constantly critical, to highlight where the law is deficient, and the terrible outcomes of those shortcomings.

I do not intend to convey the impression there has been no positive law reform in my lifetime (or since that very first Mardi Gras) – not just on conversion practices, but also decriminalisation, de facto and rainbow family rights, and in many other areas.

Nor is the plight of LGBTQ people in religious schools intractable. I am reliably informed my own boarding school is now welcoming of same-gender attracted and gender diverse students, a product of anti-discrimination protections for students that have existed in Queensland for twenty years.

But I do mean to impart the understanding that the struggle for the full realisation of LGBTIQ human rights and freedoms in Australia is far from over, and that we will never reach that end-point without the concerted efforts of the community, both LGBTIQ and non-LGBTIQ alike.

I welcome those present tonight as fellow travellers on the long journey ahead.

Congratulations on Issue 47(1) of the UNSW Law Journal to Jessie Liu, your editorial team and to all of the authors published. It is truly impressive in its breadth, and depth, of scholarship.

And thank you for listening to my remarks.

[The video of this event has been published here. My speech begins at the 20-minute mark].

Photo credit: UNSW Law Journal

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Religious school homophobia causes long-term harm. But change is possible.

[Content warning: homophobia; violence; suicidal ideation]

I realised I was same-gender attracted on my first day at a religious boarding school in Brisbane in the 1990s. It was terrible timing, and meant my high school experience there was a living hell.

This was a school that was proud to publish its homophobia in its school rules – homosexuality would not be tolerated because it was not in accordance with god’s will.

It was abundantly clear that ‘coming out’ as gay was simply not an option. To do so would likely be met with punishment. And so I didn’t.

At its worst, I vividly recall a school pastor giving a sermon to a chapel full of 600-or-so year 11 and 12 students, talking about how a child from his former parish had come to see him ‘struggling with confusion’ about who he was. He said the child ultimately committed suicide – before observing this was not the worst thing he could have done.

For many queer kids sitting there that day, like me, the sermon’s underlying message was obvious: much better to be dead than gay.

The school’s overall approach to LGBTQ issues oscillated between that kind of explicit prejudice on one hand, and silence and invisibility on the other (including failing to provide any relevant sex education, which was particularly dangerous at a time when HIV/AIDS was still killing thousands).

Looking back, I think this ‘invisibilisation’ was actually more detrimental in terms of its impact on me, because it meant suffering in silence, completely alone, with the people who were supposed to be looking after me offering no solace.

The climate created by the school’s silence on sexual orientation and gender identity also allowed anti-LGBTQ bigotry to flourish amongst its students.

While I cannot be certain homophobia was a conscious motivator in the multiple physical assaults I experienced in Year 11 (which went unpunished by the school), the fact I was ‘different’ in some fundamental way, left cowered by fear into being withdrawn and isolated, rendered me vulnerable.

I can be more confident homophobia was behind the choice by Year 11 students to bestow on me the ‘Big fat poof’ award at the end of Year 12, in front of both peers and boarding school staff, with the latter doing nothing to respond to it.

Not even to check if I was okay.

That was almost three decades ago, so why I am writing about it now?

Because, with Commonwealth Parliament yet again debating the issue of protections for LGBTQ students and teachers – and yet again looking like letting the LGBTQ community down – there’s two points I want people, and especially politicians, to know.

First, that religious school homophobia, biphobia and transphobia causes serious harm. For me, that meant thinking about committing suicide every single day from the start of Term 2 in Year 8, until the final term of Year 12. Sometimes upwards of twenty times a day.

That is no way for a child to live. And definitely no way to learn, or to grow.

Nor does it suddenly end when the students who are the victims of this prejudice leave the school gates for the final time.

Trust me, I know. Those terrible five years have impacted me for much, much longer than that again.

The hurt and the harm I suffered was a major contributing factor to the lost decade that was my twenties, culminating in my thankfully unsuccessful attempt at suicide around my 29th birthday, more than a decade post-school.

Life got better when I met partner just after I turned 30, but I am not ashamed to admit that even now the trauma from my schooling is something I have discussed with my psychologist multiple times over the past 12 months.

And so, if the Labor Government chooses to break their clear election promise to protect LGBTQ students in religious schools, it won’t just be a betrayal of the students currently enrolled in homophobic, biphobic and transphobic schools – who, as highlighted by Equality Australia’s ‘Dismissed, Denied and Demeaned’ report released on Monday, continue to be vulnerable now.

It will be a betrayal of their futures too, with the impacts continuing to be felt in the 2030s, 40s and 50s.

Second, while it may not initially seem like it, my story is one of hope.

Because those experiences were in Queensland – a state which legislated to protect LGBTQ students in religious schools against discrimination two decades ago, and which is currently consulting on promised reforms to protect LGBTQ teachers too.

Far from causing religious schools to cease to exist, as baseless scare-mongering by groups like Christian Schools Australia assert, the main outcome has simply been that LGBTQ students can finally learn and grow safe from discrimination on the basis of who they are.

And, I’m reliably informed by people whom I trust, that includes at the school I went to. Change is possible.

Sadly, that still has not happened everywhere, with religious schools legally free to discriminate against LGBTQ students under Commonwealth law, and in NSW, WA and SA too.

Commonwealth Parliament can rectify this by immediately implementing the straight-forward recommendations of the ALRC report. If they do, they would be choosing to bestow a brighter future on LGBTQ students right across Australia.

*****

For LGBTIQ people, if this post has raised issues for you, please contact QLife on 1800 184 527, or via webchat: https://qlife.org.au/resources/chat

Or contact Lifeline Australia on 13 11 14.

Five years at a homophobic religious boarding school caused decades of harm.

*****

For an extended account of my experiences at that homophobic and harmful religious boarding school, you can read the following:

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The Commonwealth Sex Discrimination Act has included LGBTI Australians for a decade. But it still fails to protect too many LGBTI people against mistreatment.

Commonwealth Parliament passed the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 ten years ago today.

This was historic legislation, finally offering federal anti-discrimination protections to lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians.[i]

And it was long overdue, more than 30 years after NSW became the first jurisdiction in Australia to prohibit discrimination on the basis of homosexuality, way back in 1982.

But, even at the time of passage it was clear these Sex Discrimination Act amendments were incomplete, and their limitations have only become more apparent in the decade since.

Here then are some[ii] of the key short-comings which need to be addressed in order for the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 to live up to its potential.

  1. Replace the protected attribute of intersex status with sex characteristics

The 2013 amendments meant Australia became one of the first jurisdictions in the world to offer anti-discrimination protections to intersex people. It did so by the inclusion of ‘intersex status’ as a protected attribute, defined as:

‘the status of having physical, hormonal or genetic features that are:

(a) neither wholly female nor wholly male; or

(b) a combination of female and male; or

(c) neither female nor male.’

This terminology (intersex status) and associated definition are no longer considered best practice, with peak body Intersex Human Rights Australia advocating for its replacement with ‘sex characteristics’, which was recently defined in amendments to the Queensland Anti-Discrimination Act 1991 in the following way:

‘sex characteristics, of a person, means the person’s physical features and development related to the person’s sex, and includes-

(a) genitalia, gonads and other sexual and reproductive parts of the person’s anatomy; and

(b) the person’s chromosomes, genes and hormones that are related to the person’s sex; and

(c) the person’s secondary physical features emerging as a result of puberty.’

Fortunately, the Commonwealth Government has actually committed to making this change – Industrial Relations Minister Tony Burke promised to replace intersex status with sex characteristics in Parliament in November 2022.[iii]It’s time for the Albanese Government to follow through on this commitment.

2. Protect LGBTQ students in religious schools against discrimination

It is appalling that, in 2023, Commonwealth anti-discrimination laws – which are supposed to protect LGBTI Australians – instead continue to allow religious schools and colleges to discriminate against some of the most vulnerable among us.

The special privileges permitting religious schools to mistreat LGBTQ young people in myriad ways (from refusing to enrol, through to suspension, expulsion and other forms of punishment, as well as an almost unlimited variety of differential treatment to their cis-het counterparts) were never justified. But they look especially archaic, and abhorrent, today.

All students have the right to education, and must be allowed to exercise this right in safety. And because any student, in any school, can be LGBTQ, all schools must be LGBTI-inclusive.

Once again, the Albanese Government has promised to protect LGBTQ students against discrimination. However, rather than simply following the precedents of multiple states and territories which have already legislated to protect LGBTQ kids – some for more than two decades – they chose to refer the issue of the exceptions enjoyed by religious schools to the Australian Law Reform Commission in November 2022 for a six-month inquiry.

Disappointingly, in April 2023, Attorney-General Mark Dreyfus announced that this inquiry was being extended until 31 December 2023. As a result, LGBTQ Year 12 students in 2023 will not be protected against discrimination before they leave school (despite both major parties promising to do so since October 2018, when they were only in Year 7). And another class will likely start, in 2024, still not protected against discrimination on the basis of who they are.

This simply isn’t good enough.

3. Protect LGBTQ teachers in religious schools against discrimination

Of course, LGBTQ students are not the only people in religious schools and colleges who deserve protection against mistreatment. So too do LGBTQ teachers and other workers.

Teachers should be judged simply according to their ability to teach – not their sexual orientation and/or gender identity.

This would not only benefit LGBTQ teachers, who would finally enjoy the same ability to apply for jobs, and promotions, across their industry as cis-het teachers, and would also be free to focus on teaching rather than having to hide in the closet and spend time and emotional energy worrying about whether they will be outed, and sacked as a result.

But it would benefit students too, who would be taught by the best person for the job (not the best cis-het person), and learn from LGBTQ teachers not distracted by the ever-present threat of discrimination. For LGBTQ students, out teachers also offer the prospect of role modelling what a happy life might look like, reducing their potential isolation.

The imperative to remove the ability of religious schools to discriminate against teachers on the basis of their sexual orientation and/or gender identity is only strengthened when we consider the massive sums of taxpayer money – ourmoney – given to these institutions.

Yet again, the Albanese Government has promised to remove the special privileges which allow religious schools to discriminate against LGBTQ workers. But, as with LGBTQ students, the possible protection of LGBTQ teachers has been held up by the lengthy extension to the ALRC inquiry.

LGBTQ teachers shouldn’t have to wait until 2024, or beyond, to enjoy protection against discrimination in the workplace. They should be allowed to focus on lesson plans and marking, not planning how to mask their sexual orientation or gender identity.

4. Protect LGBTQ workers in Government-funded aged care services operated by religious organisations

One of the best provisions of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (Cth) was new sub-section 37(2)(a) which states that the Act’s general religious exception (contained in sub-section 37(1)(d):

‘does not apply to an act or practice of a body established for religious purposes if… the act or practice is connected with the provision, by the body, of Commonwealth-funded aged care.’

In effect, nearly all aged care services across Australia are now prohibited from discriminating against people accessing those services on the basis of their sexual orientation and/or gender identity. In other words, LGBTQ people in all Government-funded aged care services are legally protected against discrimination.

The fact this provision has operated successfully, for a decade, demonstrates that special privileges allowing discrimination by religious organisations delivering what are essentially public services are unnecessary, and should be removed.

We should start by repealing sub-section 37(2)(b),[iv] which still allows faith-based aged care services to discriminate against LGBTQ workers.

All of the arguments which applied to LGBTQ teachers in religious schools, outlined above, also apply to LGBTQ aged care workers. This includes ensuring that the best person for the job is hired, not just the best cis-het person, allowing LGBTQ aged care workers to focus on the important task of delivering care to the elderly rather than worrying about being discovered, and allowing LGBTQ people accessing aged care to see openly-LGBTQ people looking after them.

5. Remove the general religious exception in section 37(1)(d) of the Sex Discrimination Act entirely

The same arguments which apply to LGBTQ students, teachers and aged care workers, also apply to LGBTQ people accessing services and employees across a broad range of other public services – such as disability, health, housing and other community services – which have been increasingly outsourced by state, territory and commonwealth governments over recent years.

All people accessing these services should be free to do so without having to fear discrimination on the basis of their sexual orientation and/or gender identity.

All workers in these industries should have the right to be judged on their ability to perform their role, not on who they are or how they identify. 

Several Australian states and territories have already reformed their anti-discrimination laws to narrow their general religious exceptions along these lines, including Tasmania, Victoria, the ACT and NT, while Queensland and Western Australia have in-principle commitments to implement law reform recommendations achieving the same.[v] It’s time for Commonwealth Parliament to catch up.

Importantly, even if the general religious exception in sub-section 37(1)(d) of the Sex Discrimination Act 1984 (Cth) were removed, religious organisations would continue to enjoy the right to religious freedom through sub-sections (a), (b) and (c), which cover the training and appointment of ministers of religion, and selection of other people to perform functions in connection with religious observances or practices.

6. Prohibit vilification against LGBTI Australians

One major gap which exists in the Sex Discrimination Act, and which unfortunately was not addressed by the historic 2013 amendments, is a lack of Commonwealth prohibition on vilification on the grounds of sexual orientation, gender identity and sex characteristics.

The first half of 2023 has comprehensively demonstrated why such nation-wide prohibitions are essential, with TERFs and neo-Nazis rallying against trans rights on the steps of Victorian Parliament, the Christian Lives Matter riot against LGBTIQ protestors in Sydney, and growing threats of violence and intimidation against drag story time and other local LGBTIQ community events across several jurisdictions.

Disappointingly, there has so far been no national response to the anti-LGBTI substance of these developments. 

The Albanese Government has instead proposed legislation banning the display of Nazi symbols which, while obviously welcome, in the absence of LGBTI vilification laws raises the following question: is anti-LGBTI hate speech acceptable as long as the people engaging in it aren’t wearing Nazi uniforms?

What has been happening so far this year is nothing short of a national crisis. What we need is a national response, including the introduction of Sex Discrimination Amendments prohibiting vilification against LGBTI Australians, equivalent to section 18C of the Racial Discrimination Act 1975 (Cth).

7. Create and appoint a Commissioner for Sexual Orientation, Gender Identity and Sex Characteristics

The dire situation confronting LGBTI Australians in 2023 has highlighted another structural weakness in our anti-discrimination framework – the lack of a stand-alone independent Commissioner for Sexual Orientation, Gender Identity and Sex Characteristics within the Australian Human Rights Commission.

This absence puts LGBTI people at a distinct disadvantage compared to other groups for which dedicated Commissioners have been created, including:

  • Race
  • Sex
  • Disability
  • Age
  • Children
  • Aboriginal and Torres Strait Islander Social Justice, and
  • Human Rights.

Responsibility for LGBTI issues has instead been seen as an ‘add-on’, with the portfolio at various times being held by the Human Rights Commissioner, Sex Discrimination Commissioner and even the President (where it currently sits, although it will likely revert to the Sex Discrimination Commissioner when a replacement for Kate Jenkins is appointed).

But as an ‘add-on’, it never receives the same level of attention as other portfolios, nor the same amounts of funding and resources.

This lower relative prioritisation of LGBTI rights can be seen in the Commission’s muted response to the disturbing developments in the first half of 2023 – as far as I can tell, there have been no media releases or other public policy contributions in response to the TERF and neo-Nazi rally, Christian Lives Matter riot, or escalating wave of anti-LGBTI threats around the country.

Our community is under attack, and Australia’s national human rights institution does not appear to be coming to our defence.

The most straight-forward way to remedy this would be to address the structural weakness which has contributed to it – and that is by creating, and urgently appointing, a stand-alone independent Commissioner for Sexual Orientation, Gender Identity and Sex Characteristics within the AHRC.

NB This post is written in a personal capacity, and does not reflect the views of employers past or present, nor of any community organisations with which I am involved.

Commonwealth Attorney-General Mark Dreyfus, who has responsibility for the Sex Discrimination Act 1984 (Cth), and who therefore has responsibility for amending it to better protect LGBTI Australians.

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Footnotes:


[i] Although the Commonwealth Fair Work Act had offered limited protections to LGB workers, on the basis of ‘sexual preference’, from 2009.

[ii] This is by no means an exhaustive list of the Act’s faults. Other issues which should be addressed include narrowing the exceptions applying to transgender and intersex people in sport, as well as removing the exceptions relating to data collection.

[iii] During debate on legislation that finally included gender identity and intersex status as protected attributes in the Fair Work Act for the purposes of adverse action and unlawful termination provisions.

[iv] Which clarifies that the protection of LGBTQ people in relation to aged care services operated by faith bodies only applies where ‘the act or practice is not connected with the employment of persons to provide that aged care.’

[v] From the Queensland Human Rights Commission and WA Law Reform Commission respectively.